Famous-Barr Co.

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'The May Department Stores Company d/b/a Famous-Barr Company and Teamsters Local No. 709, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Teamsters Local No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Cases 14-CA-3361, 14-CA-3844, 14-CA-3957, 14-CA-4155, and 14-RC-4843 February 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 19, 1968, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. The Trial Examiner also found merit in certain objections to the election in Case 14-RC-4843, and recommended that the election be set aside and a new election be directed. Thereafter, Respondent, the General Counsel, and the Charging Parties filed exceptions to the Trial Examiner's Decision, and the General Counsel and the Charging Parties filed supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner only to the extent consistent herewith. 1. We agree with the Trial Examiner that Respondent, by interrogation, threats, and attributing responsibility to the Union for the inability of certain employees to secure wage increases, violated Section 8(a)(1) of the Act. 'The General Counsel and Charging Parties have filed exceptions to the Trial Examiner's Decision, requesting additional remedies which they urge would be meaningful in effectuating the policies of the Act . We deem it inappropriate, however, in this case to depart from our existing policies with respect to remedial orders and, therefore, deny the said request However, we disagree with his conclusion that Respondent's withholding of wage increases from unit employees in July 1965 did(not violate the Act. Respondent had granted wage increases during April and May -of each year from 1961 through 1965 to its warehouse employees.2 On June 22, 1965, the Board issued a Decision and Direction of Election, in part, finding a warehouse unit appropriate but excluding certain categories of employees. On July 5, 1965, but prior to the Board election,3 Respondent granted further increases to virtually all the excluded employees, but withheld similar increases from employees in the unit, and indicated to them that the Union was responsible for its failure to grant the increases to them. Respondent's asserted justification for withholding increases from unit employees was that these employees were still involved in the representation campaign. ° As the Board has held, an employer confronted with a union organizing campaign should decide the question of granting or withholding benefits as he would if a union were not in the picture; if his course of action in granting or withholding benefits is prompted by the Union's presence, he violates the Act.' We are satisfied that Respondent's action in July 1965 was prompted by the Union's presence. It is apparent that in July 1965, Respondent withheld increases from unit employees, not for valid reasons unrelated to its employees' union or other concerted activity, but because, as it in effect concedes, the unit employees were involved in activities protected by the Act. Consequently, we find, contrary to the Trial Examiner, that Respondent, by withholding pay increases in July 1965, violated Section 8(a)(1) of the Act. 2. We agree with the Trial Examiner that Respondent's no-solicitation rule was valid. However, we further find, contrary to the Trial Examiner, that in the circumstances of this case Respondent in suspending Lois Watkins for 3 days did not discriminatorily enforce the rule in violation of Section 8(a)(1) and (3). The record reveals that Watkins was soliciting union authorization cards from employees who were on duty in public areas of the store. While Respondent permitted such solicitation for certain charities and for gifts on exceptional occasions, most solicitation was prohibited. Such exceptions made to a valid no-solicitation rule do not amount to discriminatory enforcement.' Moreover, in previous years others had been either discharged or suspended for 'We agree with the Trial Examiner's finding that the increases given in 1964 and 1965 were generally equivalent to those given in prior years 'The Union lost the election held on July 21, 1965, by 97 to 93 in agreement with the Trial Examiner, we find that the subsequent granting of wage increases to unit employees in January 1966 was not violative of the Act 'Dorn's Transportation Company, Inc, 168 NLRB No 68, The Great Atlantic & Pacific Tea Company. Inc., 166 NLRB No 36, and cases cited therein. 'See Astronautics Corporation of America, 164 NLRB No 89 174 NLRB No. 109 FAMOUS-BARR CO. 771 solicitation unrelated to union or concerted activities, in violation of the rule. Finally, Watkins herself had previously been warned against soliciting on one occasion when she was engaged in solicitation not involving union or concerted activities. Accordingly, we find that Respondent in applying the rule to Watkins did not violate the Act. 3. For the reasons set forth by the Trial Examiner, we shall adopt his recommendation that the objections filed in Case 14-RC-4843 be sustained and that the election held on May 20, 1966, be set aside. We shall not, however, adopt his recommendation that a third election be held. On March 15, 1968, Local 688 filed a petition in Case 14-RC-5899, seeking an election among certain employees at Respondent's warehouse involved in the instant proceeding. In that case certain questions have been raised concerning the unit relationships of the employees involved herein and the employees designated in the petition therein. In these circumstances, we believe it would best effectuate the purposes of the Act to consolidate Cases 14-RC-4843 and 14-RC-5899, so that the interrelated unit questions may be considered in a single proceeding. Accordingly, we shall sever Case 14-RC-4843 from the instant proceeding for purposes of such consolidation and such further proceedings as may be warranted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, The May Department Stores Company d/b/a Famous-Barr Company, St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Coercively interrogating employees concerning their union membership, sympathies, and activities. (b) Threatening employees to freeze wages and deprive them of benefits if they support Teamsters Local No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and informing employees that the Union's organizational activity is the reason for their inability to receive wage increases (c) Withholding any pay increase to which its employees would otherwise be entitled but for their union or concerted activities or their recourse to the processes of the Board. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. "Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make employees whole, for the losses they have sustained as a consequence of the unlawful conduct by making the benefits instituted in January 1966 retroactive to July 5, 1965, with interest computed as in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due under the terms of this Order. (c) Post at its Spring Avenue Service building and at its South County department store in the Greater St. Louis, Missouri, area, copies of the attached notice marked "Appendix."7 Copies of the said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said Notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for Region 14, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the instant complaint be dismissed to the extent that it alleges unfair labor practices not found herein. IT IS FURTHER ORDERED that the election in Case 14-RC-4843, held on May 20, 1966, be, and it hereby is, set aside, and that Case 14-RC-4843 be, and it hereby is, severed from this proceeding for purposes of consolidation with Case 14-RC-5899, and such further proceedings as may be appropriate. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: The Act gives all employees the following rights: To organize themselves. To form, loin, or support unions. To bargain as a group through a representative they choose. To act together for collective bargaining or other mutual aid or protection. To refuse to do any or all of these things WE WILL NOT coercively interrogate employees concerning their union membership, sympathies, or activities. WE WILL NOT threaten employees that we will freeze wages, withhold wage increases , or deprive them of any other benefits if they join or support Teamsters Local No. 688, affiliated with International Brotherhood of 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters, Chauffeurs, Warehousemen and Helpers of America.. WE WILL NOT withhold any pay increases or deprive employees of any other benefits because of union or concerted activities or recourse by employees to the processes of the Board. WE WILL NOT inform employees that the Union's organizational activity is the reason for their inability to receive wage increases. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through a representative of their own choosing, to engage in concerted activity for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL make employees, whole, for losses they have 4ustained by making the benefits instituted in January 1966 retroactive to July 5, 1965, with interest. All our employees are free to become, remain, or to refrain from becoming or remaining, members of Teamsters Local No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. Dated By THE MAY DEPARTMENT STORES COMPANY D/B/A FAMOUS-BARR COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions they may communicate directly with the Board's Regional Office, 314 N. Broadway, 1040 Boatmen's Bank Building, St. Louis, Missouri 63102, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding, with all the parties represented, was heard on various days from October 16 through October 25, 1967, on the consolidated complaints of the General Counsel, issued on August 31, 1966, and June 30, 1967,2 and the answers of The May Department Stores Company, d/b/a Famous-Barr Company, herein called the Respondent or Company. In essence, the consolidated complaints charge the Respondent with various acts of interference, restraint and coercion of its warehouse employees in the exercise of their statutory rights and discriminating against them by withholding certain wage increases, granting others, and by transferring three employees out of the appropriate bargaining unit, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as, amended Similar statutory violations are alleged with respect to the Respondent's conduct affecting its store employees and involve, inter alia, the removal of name tags from their persons, the maintenance of an assertedly invalid no-solicitation rule, its discriminatory enforcement, and the unlawful suspension of employee Lois Watkins. In Case 14-RC-4843, which the Regional Director ordered consolidated with the complaint cases for the purpose of receiving evidence to resolve the issues raised by the union's objections to conduct affecting the results of the election, the alleged misconduct is, in part, the same as some of the alleged unfair labor practices. At the close of the hearing only the Respondent argued its position orally. Thereafter, all the parties filed comprehensive and illuminating briefs The Respondent's motion made at the hearing to dismiss the consolidated complaints, upon which ruling was reserved, is disposed of in accordance with my findings and conclusions set forth below. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following. FINDINGS AND CONCLUSIONS L THE BUSINESS OF THE RESPONDENT The Respondent, a corporation with its principal office and place of business in St. Louis, Missouri, is engaged in the retail sale and distribution of household goods, wearing apparel and related products. Involved herein are the Respondent's Spring Avenue Service Building or warehouse and its various stores in St. Louis and suburban areas. The May Department Stores Company operates other stores in States outside of Missouri. In the course and conduct of its St.' Louis operations, the Respondent annually purchases goods and materials valued in excess of $50,000 from sources outside the State which are transported directly to these facilities. It's annual retail sales exceed $500,000. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that effectuation of the policies of the Act warrants the Board's assertion of jurisdiction herein. IL THE LABOR ORGANIZATIONS INVOLVED There is no question, and I find, that Local 688 is a labor organization within the meaning of Section 2(5) of the Act. It was also stipulated that Local 709 was such a labor organization until June 1, 1965. 'Since the issuance of the consolidated complaints Local 688 has changed its name as appears in the title and will hereinafter be referred to as Local 688 Previously the union was known as Warehouse & Distribution Workers Union Local 688 with the same affiliation 'The charge in Case 14-CA-3361, was filed on May 18, 1964, by Teamsters Local No. 709, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called Local 709, and a copy was duly served on the Respondent by registered mail the same day The charges in Cases l4-CA-3844, 3957 and 4155 were filed by Local 688 on December 17, 1965, April 22, 1966, and November 22, 1966, respectively, and copies were duly served on the Respondent by registered mail on the filing dates. FAMOUS-BARR CO. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of Events It will be useful for a better understanding of the issues herein to summarize the events and the many proceedings that have already taken place. From at least 1948 until April 30, 1964, Local 709 represented certain classifications of the Respondent's employees at the Spring Avenue wafehouse or service facility on a members-only basis pursuant to successive contracts.' Desiring to secure recognition as exclusive representative, Local 709 undertook an organizing campaign among the warehouse employees and filed a representation petition (Case 14-RC-4843) on May 1, 1964. On May 18, 1964, Local 709 filed unfair labor practice charges against the Respondent (Case 14-CA-3361). Without admitting that it had committed any unfair labor practices, the Respondent entered into a Settlement Agreement, approved by the Regional Director on June 5, 1964, whereby it agreed to post a Notice To All Employees and to comply with its terms and provisions.4 Following a hearing on the representation petition, the Board on June 22, 1965, issued its Decision and Direction of Election, finding that a unit of warehousing employees at the Spring Avenue service facility, with specified inclusions and exclusions, appropriate for collective-bargaining purposes. The Board also permitted Local 709 to be replaced by Local 688 as petitioner The latter organization had succeeded to the rights and obligations of Local 709 during the pendency of those proceedings. Pursuant to the Decision and Direction of Election, an election was held on July 21, 1965, which the Union lost by a vote of 97 to 93 with sufficient challenges to affect the outcome of the election. Local 688 filed timely objections to conduct affecting the results of the election. The following October 28 the Regional Director issued his Report On Challenged Ballots And Objections in which he recommended that certain ballots be opened and that if the revised tally did not show that a majority of valid votes were cast for the Union, that the Board sustain one of the objections, set aside the election, and direct that a rerun election be conducted. Upon exceptions filed by Local 688 and the Respondent, the Board on March 22, 1966, substantially sustained the Regional Director, and ordered that certain challenged ballots be opened with the same condition that, if the union did not prevail, a second election be held.' While exceptions to the Regional Director's above Report were pending before the Board for ruling, Local 688 on December 17, 1965, filed another unfair labor practice charge in Case 14-CA-3844. On February 8, 1966„ the Respondent again signed a Settlement Agreement, which the Regional Director approved the following day, but in which Local 688 refused to join. Here, too, the Respondent agreed to post a Notice To All Employees and to comply with its terms, without admitting that it had violated the Act.6 It was also understood that the Agreement would not affect the objection issues before the Board in the representation case. In accordance with the Board's Supplemental Decision and Direction of March 22, 1966, the challenged ballots were opened. Since Local 688 failed to secure a majority, the election was set aside, as therein provided, and a second election was scheduled. However, on April 22, 773 1966, Local 688 filed a third unfair labor practice charge (Case l4-CA-3957) which caused the postponement of the election to May 20, 1966 Local 688 lost that election too, by a vote of 110 to 76, with the challenged ballots being insufficient in number to affect the results. Local 688, thereupon, filed timely objections. On August 31, 1966, the Regional Director issued his Decision, finding that three of the union's objections' raised substantial and material issues which could best be resolved at a hearing. On the same day, the Regional Director issued an Order Revoking Approval of Settlement Agreements in Cases 14-CA-3361 and 3844, previously mentioned, and reinstated them as active cases. In addition, the Regional Director consolidated these cases with Case 14-CA-3957, and issued a consolidated complaint based on charges filed therein. Hearing on the objections in Case 14-RC-4843 was also consolidated with the hearing on the complaint cases. On September 16, 1966, the Respondent filed an answer denying the commission of any unfair labor practices.8 'Board Decision and Direction of Election, Case 14-RC-4843, 153 NLRB 341, 342 It appears that at various times the Respondent has also had collective-bargaining contracts with Local 709 or its successor, Local 688, covering in separate units furniture drivers and helpers, and parcel drivers In addition , it has maintained separate bargaining relations with other unions for carpenters, electricians, and carpet layers "Specifically, the Respondent agreed to refrain from discouraging membership in Local 709 by threatening to discharge employees because of their union membership or activities, or by indicating that Local 709 would not give them fair representation , coercively interrogating employees concerning their union membership, activities or sympathies; promising wage increases to employees who induce others not to join Local 709, and in any other manner interfering with, restraining or coercing employees in the exercise of their statutory rights 'In so doing, the Board found that a supervisor 's "persistent and searching interrogation of all the employees [under his supervision] . restrained at least the 19 employees . from casting a free and untrammeled ballot" and that such conduct warranted vacating the election. For this reason, the Board found it unnecessary to find, as did the Regional Director, that this conduct violated Section 8(axl) of the Act Although the consolidated complaint alleged the acts of the supervisor in question, Al Sartori, to be violations of Section 8(a)(1), no evidence was adduced at the hearing and the pertinent allegations of the complaint were dismissed on motion of the Respondent 'According to the Settlement Agreement , the Respondent undertook not to interrogate employees about their voting intentions or union activities, or to threaten employees with layoff or loss of benefits if they chose Local 688 as their bargaining representative , or in any other manner to interfere with, restrain or coerce employees in the exercise of their statutory rights. 'These are. Objection III, that the Respondent distributed false election propaganda to eligible employees to which Local 688 had no opportunity to reply; Objection IV, that the Respondent discriminatorily and unilaterally transferred employees out of the bargaining unit; and Objection V, that the Respondent unilaterally granted wage increases to bargaining unit employees and promised additional increases The latter two objections allege conduct substantially similar to conduct alleged to be unlawful in the consolidated warehouse complaint herein 'On January 13, 1967, the Respondent entered into a Settlement Agreement remedying all the allegations of the consolidated complaint issued in the above Cases 14-CA-3361,-3844, and-3957, including conduct alleged as unfair labor practices occurring, in part, between the date of the first election on July 21, 1965, and the date of the second election on May 20, 1966. Over Local 688's objection, the Regional Director approved the Settlement Agreement. The Respondent also signed a Stipulation , agreeing that the second election be vacated and a rerun election be conducted after compliance with the Settlement Agreement. Accordingly, the Regional Director, on January 18, 1967, issued a Second Supplemental Decision and Order, severing the representation case from the complaint cases, withdrawing the Notice of Hearing heretofore issued in the representation case, setting aside the second election , and directing a rerun election at a 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the fall of 1966, Local 688 initiated a drive to organize the Respondent's employees at its downtown and suburban stores. The Respondent 's reaction to this drive led to Local 688's filing unfair labor practice charges against it (Case 14-CA-4155) On June 30, 1967, the Regional Director issued a complaint based on these charges which he consolidated with the Spring Avenue warehouse complaints and the hearing on objections. B. The Evidence 1. Relating to the Spring Avenue Warehouse complaints a. The Respondent's union opposition; alleged preelection interrogation and other antiunion acts There were approximately 250 warehouse employees whom Local 709 and its successor Local 688 originally sought to organize at the Spring Avenue Service Building The record is perfectly clear that the Respondent did not welcome the prospect that its employees might select the Teamsters or, indeed, any union, as their exclusive bargaining representative although, as indicated above, it did have bargaining relations with that organization and other unions for employees in different classifications at this warehouse facility While opposition to a union's organizational efforts are undeniably not per se unlawful, the critical question to be decided is whether the Respondent resorted to measures prohibitied by the Act to undermine its campaign. We turn to the evidence. In April 1964, before Local 709-filed its representation petition on May 1, 1964, Martin Glynn, supervisor of the furniture delivery department, summoned a number of his employees individually to his office According to the uncontradicted testimony of employee Joseph J. Marzuco, which I credit,' Glynn, in the presence of Supervisor James Hammond, tried to dissuade him from him joining or supporting the union, telling him, in substance, that it would be a waste of money to pay the union $6 (apparently referring to dues or initiation fees), and to follow "through with this union deal." Glynn also warned Marzuco that "he would freeze all wages and . . . [he, Marzuco] wouldn't receive any benefits." In the same month, Glynn called employee Ernest Stout to his office. Again, in the presence of Hammond, Glynn inquired whether he had been approached by the union. When Stout answered affirmatively, Glynn asked him, what he intended to do and Stout replied that he did not know at that time. Glynn also asked Stout what he expected to gain if the union came in and Stout answered that he figured the employees would get better raises and working conditions. At some point in the interview, Hammond commented that he was once a member of the Teamsters Union and that, although he sometimes worked only 2 days a week, he was still required to pay dues. Further along in the conversation, Glynn stated that it was up to Stout himself to decide whether or not to join the Union. time to be announced. However, on Local 688's appeal to the General Counsel from the Regional Director's approval of the latest Settlement Agreement, the agreement was invalidated . Whereupon , on June 30, 1967, the Regional Director issued an Order Setting Aside Second Supplemental Decision and Order in the representation case and reinstated the Notice of Hearing and Order Consolidating Cases issued on August 31, 1966. 'Although Glynn was deceased at the time of the hearing, Hammond was not called by the Respondent to testify. Also in April 1964, Leroy Taylor, a former warehouse employee, was questioned by his supervisor, Art Long, whether he belonged to the union or was going to join it. Taylor replied that he was not a member but planned on j oin ing." Sometime during this month, Warehouse Superintendent William B. Kelly and employee Oscar Daub" engaged each other in a conversation while waiting for an elevator in the Spring Avenue building. Observing a stack of union cards in Daub's shirt pocket, Kelly remarked that he didn't know why the employees wanted to get involved with a bunch of gangsters like Dave Beck and Jimmy Hoffa. Daub vigorously protested Kelly's gangster characterization, asserting that his father had been a Teamsters Union official for a long time. In colorful and unequivocal language, Kelly then warned Daub that, if he were caught passing out union cards in the warehouse on company time in violation of the Company's no-solicitation rule, he would throw Daub out of the building.12 Daub admitted that from the inception of his employment he was aware of the Company's no-solicitation rule which was posted on the warehouse bulletin board." Insofar as relevant, this rule provides that "[s]olicitation by employee's of the Company is prohibited while any employee involved is on working time . . The validity of this prohibition is not questioned. In May 1964, Kelly initiated a conversation with employee Henry Kellermann and another employee in which he mentioned the organizational drive and declared that employee Daub was no good and was just a union organizer and troublemaker. On another occasion during that month, Kelly summoned Kellermann to his office. There, Kelly asked him whether he was involved with the union and received a negative reply. Although Kelly' then commented that Hoffa was taking funds from the union and was going to be put in jail, he indicated that he didn't care if Kellermann joined the union. In April 1964, Supervisor Joseph Simons started a discussion about the union with employee Richard Miller, who worked under him. Simons asked Miller whether he intended to join the union. When Miller simply smiled without responding, Simons referred to Hoffa and commented that the union was prejudiced against colored people. At this point, Miller turned away and resumed work. The following month, Miller spoke to Simons about a raise. Simons replied that he could not get one, adding, according to Miller's uncontradicted and credited testimony, something to the effect that it was because "the union had stopped all raises " In the early part of May 1964, employee J. D. Vaught went to Kelly's office and asked him for a raise. Kelly told him that he couldn't give him or anybody else in the receiving department a raise until "this thing" "blowed over." A day or two later Vaught returned to Kelly's office, stated that he didn't come to ask for a raise but to "This finding is based on Taylor's uncontradicted testimony , which I credit At first, Taylor testified that Long asked him whether he was "anticipating" the union It is quite clear to me that the witness meant to use the phrase "participating in the union " "Daub quit his job 4 months later "In view of the fact that Kelly saw the well-exposed union cards in Daub's possession and warned him against distributing them on company time and property, I have difficulty in believing that Kelly would also ask Daub such a pointless question as whether he had signed a card, as Daub testified Accordingly, I do not credit Daub's testimony in this respect "The foregoing findings are based on parts of the testimony of Daub and Kelly which I deem credible. FAMOUS-BARR CO. tell Kelly that the latter had lied to him. Vaught, however, did not indicate the reason for his opinion. As would be expected, Kelly resented Vaught's remarks, Former employee Leroy Taylor testified that during a weekend in the summer of 1964, while performing some private work at Superintendent Kelly's home, Kelly briefly discussed employee Daub with him. According to Taylor, Kelly promised him a $5 a week wage increase at the warehouse if he would work "the hell out of" Daub on the railroad cars at the warehouse. Taylor, whose duties included unloading railroad cars, replied that, while he could not make Daub work harder, he would tell him to do so. Taylor further testified that he never received the $5 increase because Kelly fired Daub before he could give the increase to him. It, however, appears that Daub had voluntarily quit his job in August 1964, which as indicated below was actually about 4 months after the Kelly-Taylor conversation in question. On cross-examination, Taylor testified that his conversation with Kelly took place at the warehouse, although indicating that he was not too certain. In his pretrial affidavit executed on May 27, 1964," Taylor stated that the incident occurred at Kelly's home about 3 or 4 weeks before the affidavit was given, and that he did not know whether the offer of the raise was jokingly made. Kelly contradicted Taylor's testimony admitting, howevei, that he mentioned Daub to him at his (Kelly's) home but simply asked whether Daub, whom he had recently transferred to the warehouse receiving dock, was doing a day's work Although I have some doubts about Kelly's testimony, I am also not entirely impressed with Taylor's version. Apart from the inconsistencies in Taylor's testimony regarding the time and place of his conversation with Kelly, there is no evidence that Daub was actually subjected to heavy work Moreover, I find it difficult to believe that, if Kelly were aware of Taylor's prounion sympathies, as Taylor testified, he would enlist Taylor, rather than his supervisor, to take retaliatory measures against Daub because of the latter's union activities which, I presume, is the General Counsel's purpose for introducing such testimony. I, accordingly, do not credit Taylor's testimony in this respect. A hearing on the representation petition was held on various dates in May and June 1964, following which the case was referred to the Board in Washington, D. C. While the case was pending there until the Board issued its Decision and Direction of Election on June 22, 1965, Robert H. Hinton, who was then Respondent's furniture manager or delivery superintendent, allegedly engaged in preelection conduct under the circumstances related below. In February, March or April 1965,15 Edward J. Lavac, a former employee in the furniture delivery department, spoke to Hinton about a raise which he thought he deserved because of his length of service and ability. There is a conflict in the testimony of the participants in this conversation as to the nature of Hinton's response. Lavac testified on direct examination that Hinton replied that wages were tied up because the union was trying to organize the employees but that he would see what, if anything, he could do for Lavac. On cross-examination, Lavac testified that, "I believe . . . [Hinton] said since the union is trying to organize, I don't know, I guess he must ' 'T'his document was received in evidence to support Taylor's estimony, after ' his veracity was put in question by reason of his discharge for submitting to the Company forged charge account applications of purported customers 775 have said more or less that they can't give no raises right at that time." Subsequently, Lavac testified that Hinton just said "that the union was trying to organize and he didn't think that they'd be able to get me a raise." Hinton categorically denied that he stated that wages were tied up because the union was organizing. According to him, he advised Lavac that the union had a request for an election pending in Washington, and that therefore he did not know whether he could do anything for'him but he would see. Several weeks after this conversation, Hinton informed Lavac that he would receive a raise of a few dollars a week. Lavac's testimony seems to me to be based on uncertain impressions dulled by the passage of time rather than on a distinct and reliable recollection As compared with Lavac's vague account, Hinton's testimony, on the other hand, was more convincing and probable and I credit it. There is also testimony by employee Stout that in June 1965, a day after he had attended a union meeting, he was approached by Hinton who asked him how the union meeting turned out. Stout retorted that he understood they were not supposed to talk about the union on company premises. Assuring Stout that he wouldn't say anything about the discussion, Hinton asked him how many people had attended. Stout replied about 117 or 120. Hinton then inquired of Stout, whom he noted was "around most of the boys," what they expected from the union Stout answered that the employees expected more money and better working conditions. Hinton denied ever having had such a conversation with Stout. Stout impressed me as a witness who would not fabricate testimony. I, accordingly, credit him. b. Pre- and post-election wage increases and adjustments; interdepartmental employee transfers The April - May and September 28, 1964, Wage Raises As indicated previously, the Respondent for at least 20 years was party to successive contracts with Local 709 which provided for periodic wage increases for the union's members in specified warehouse job classifications. The last contract provided for increases on May 1 of 1961, 1962 and 1963. As a matter of practice, however, the Respondent in April or May of each year granted wage increases, not only to employees covered by these contracts, but to all warehouse employees, members and nonmembers alike, and whether or not working in the contract classifications, except those governed by other union agreements. Assertedly, pursuant to this long-established practice, the Respondent on April 27, 1964, granted wage increases to a substantial number of employees whom Local 709 was attempting to organize.16 Most of these employees were subsequently included in they bargaining unit the Board found appropriate in its Decision and Direction of Election issued on June 22, 1965. "Lavac had difficulty remembering dates and mistakenly believed that the conversation was sometime between the first and second elections or after the second one The first election was actually held on July 21, 1965 "The record shows the following wage increases given in 1964 21 during the period from January to April 26, 136 on April 27, 1 in May, 1 from June to September 27, 105 on September 28, and 2 from September 29 through December. In 1963, the Respondent granted 57 raises on April 29, 170 in May, and 24 during the period from June through December The consolidated complaint alleges a violation in the Respondent's 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about September 28, 1964, some 4 months after the hearing in the representation proceeding, the Respondent granted raises to 105 employees therein involved. In a letter dated October 8, 1964, sent to Local 709, Personnel Director F. T. Bastman, explained the reason for this action. Noting that the instant representation case and other retail cases have been pending for some time before the Board, without the prospect of immediate decision, Bastman wrote: This presents us with a serious problem with our employees at Spring Avenue. For some months now, we have held off making wage adjustments that would have been made last spring in the normal course. Now, however, the NLRB proceedings are being delayed much longer than any of us expected. In fairness to the employees something ought to be done. We have had a number of resignations at Spring Avenue. There is a real morale problem Accordingly, we have decided to grant wage adjustments to employees who are overdue for them. In passing this information along, I want to assure you that this is not intended as any effort to undermine our relationship with your union. It is only because these people deserve a pay adjustment and we are in for a long additional delay in resolving the NLRB case. If that case should ultimately be resolved on a basis that would require bargaining between our company and your union, we would, of course, be guided accordingly. Bastman testified that the adjustments which he withheld the preceding spring, mentioned in his letter, were not granted at that time because they would have exceeded the amounts normally given to employees at that time of the year and were not permissible under the law. This letter went unanswered. The April 1965 Raises; the July 1965 Additional Increases to Employees Excluded from the Unit No decision on the representation petition was forthcoming until June 22, 1965. In the meantime, employee dissatisfaction with their wages became more apparent, resulting in a high degree of labor turnover made more acute by difficulties encountered in hiring needed warehouse employees at established company wage scales. Therefore, on April 26, 1965, according to the Respondent, it granted the usual increases to 252 employees who were the subjects of the representation case, as it was accustomed to do at this time of the year." In the Board's subsequent Decision, certain employees, whom the Union sought to represent, were excluded from the appropriate bargaining unit. On July 5, 1965, the Respondent granted additional increases to 55 of these employees10 comprising most of those excluded from the unit. Admittedly, these increases were above the ones usually given in April-May of each year. Bastman testified that these increases were intended to bring their wages in line with competitive levels and that they had been deliberately withheld until then only because the Board's decision on the question of representation had not yet been rendered. He further testified that, on advice of counsel, similar increases were not given to the included purported failure to grant the customary wage raises in May of 1964 and 1965 As will hereinafter appear, the Respondent also granted a substantial number of raises in May 1965 "The record also shows that for the period from January to April 25, 1965, 43 increases were granted, and 3 during the period from May to July 4, 1965. employees in order to avoid being accused of interfering with the election scheduled for July 21, 1965. Increased Hiring Rates; the January 1966 Adjustment of Employee Wages As indicated previously, the election held on July 21, 1965, was inconclusive. The next day, the Respondent notified the warehouse employees of this fact and the consequent delay in resolving the question of representation. The challenges to certain cast ballots and objections to the results of the election which were filed were not ruled upon by the Regional Director until the following October 28 and thereafter were not finally disposed of by the Board on the parties' exceptions until March 22, 1966. During this period, the Respondent asserts, it continued to experience considerable difficulties in hiring new warehouse employees at existing company rates to meet its labor turnover and rising business needs. The labor market was tight and highly competitive with the result that the Respondent found it necessary in individual cases in order to recruit help in unit job categories to pay from $5 to $10 above company wage levels. This inevitably created further discontent among the older employees when they learned that some of the new hires were earning more than they were or that others were paid about as much, although they lacked their experience." In addition, such hiring upset the Respondent's traditional wage structure. According to the Respondent, this unhappy wage situation prompted it to give serious thought to a realistic revision of its hiring rates and wage ranges for all job classifications in light of labor market conditions. In January 1966, the Respondent revised its wage structure and developed a program of wage adjustment for each individual then on the payroll to bring him up to a level which would be commensurate with his experience, ability and length of service. Before putting this plan into effect, the Respondent, through its counsel, made inquiries at the Board's Regional Office to ascertain the status of the pending challenges and objections to the election. Receiving no reasonable assurance of a decision in the near future the Respondent, on advice of counsel, felt justified in proceeding with what it conceived to be long overdue wage adjustments In early February 1966, wage adjustments, effective January 31, 1966, and periodically thereafter were communicated to individual employees by their respective supervisors who were directed to refrain from making any reference to the Union. No evidence was produced of any departure from these instructions. The formula adopted for the wage adjustments provided for periodic wage increases generally at 3-month intervals, over a period of a year until the individual reached the newly created wage level. However, depending on an employee's employment status and job category the number of steps to reach his level varied from one to four for different individuals." In "The record indicates that two of the included employees were also given raises at this time, as were 49 other included employees during the period from July 6 through December 1965. During the latter period, increases to eight additional excluded employees were granted "There is also evidence in the record of employees asking management for increases at these and other times without reference to the wages paid to new employees. "According to Bastman , employees who were excluded from the appropriate unit were not qualified to participate in this wage program because their wages had already been adjusted in July 1965 . However, he also testified that certain excluded employees received a further adjustment a month later because of the rapidly escalating wages in the tight labor market FAMOUS- BARR CO. explaining the wage increases to employees, supervisors were instructed to interview separately each employee under his supervision and to follow the format of a document entitled "Suggested Points for Wage Interview with Spring Avenue Employees,"" which was furnished to them. There is no evidence that the supervisors failed to follow these suggestions c. Transfers of employees Leroy Haskins , Darrell Vaught, and Pete Bastus Upon learning that the Respondent had hired two warehouse employees at a higher wage than they were receiving, employees Haskins, Vaught, Bastus and another employee Elmer Skaggs, who subsequently quit, in August or September 1965 complained to their supervisor, Leonard Jordan, and asked for a raise. Thereupon, Jordan arranged for them to speak to Superintendent Kelly who interviewed them separately.22 Haskins testified that he repeated his grievance to Kelly and requested a raise. Haskins further testified that, in response, Kelly said that "the union had him in a crack or bind,"23 although Kelly also stated that he would call the downtown office to see what could be done for him but that he could not promise anything. According to Vaught's testimony, Kelly's response to his request for an increase was to the effect that he couldn't give him one "because the union had things tied up." Kelly contradicted Haskins' and Vaught's versions, denying that he mentioned the union to any of them As he recalled, Kelly testified, he told Haskins and the others that the case was tied up with the Labor Board in 'The document stated 1. The company has planned for a long time to grant wage increases for employees at Spring Avenue, but, as we told you before, in view of the Labor Board election that was pending, we felt that the rules would not permit granting increases while the election case was pending. 2 But this particular election case has been delayed and has been pending for much longer than the usual Labor Board election case It has been nearly 2 years since the company was first served with notice of the request for election. 3 We have tried to find out how long it will be before the Labor Board would 'resolve this election case , but we were not able to find out how long it will be It may be months longer before the case is resolved 4, Meanwhile, we had to increase hiring - in rates in order to get people to come to work here 5. In view of this, we feel that it is only fair to you, who have been with us for some time , to be granted an increase also 6. So I am happy to tell you that effective your pay will be increased from-to _ per week Then, according to our established progression schedule, to bring your pay up to what the company considers a proper rate range for your job, you will receive a further increase of-per week on_, and an additional increase of_ per week on- 7 (It is all right for the supervisor to congratulate the employees and discuss anything the employees care to discuss in the way of personal problems, operation of job, etc . But the supervisor should, in this interview , avoid any direct reference to the union ) "In disagreement with Haskins and Vaught, Kelly placed his first conversation with the four employees in February of 1965 I find it not particularly important to determine whether these conversations occurred at that time or the following fall, as Haskins and Vaught testified, or whether this was an entirely different conversation than the ones leading to the transfers in question It is noted , however, that Haskins testified that after this conversation he received a raise The Company 's record shows that Haskins, Bastus and Skaggs, were granted raises on February 15, 1965 "Haskins could not recall the exact term used by Kelly 777 Washington and that, while he could not promise anything, he would see what he could do for them. It is noted that at this time the Regional Director's investigation of the election challenges and objections was in progress. Considering all the facts and circumstances and the context in which Kelly's remarks were made, I find that, regardless of whose account is more accurate, Kelly's remarks reflected the Respondent's dilemma with respect to the granting of wage increases at that time in the face of the pending unresolved challenges and objections 24 The next occasion that Haskins, Vaught and Bastus sought a raise was in October 1965.25 Here, again, after speaking to their supervisor, Jordan, they were separately interviewed by Kelly who informed them, in substance, that since they were at the top scale in their job classifications, he could not give them a raise. However, he asked them whether they would be interested in job openings in other departments which paid higher wages. The record discloses that it is not an uncommon practice at the warehouse to transfer employees from one job to another. In his conversation with Haskins, Kelly mentioned an opening in the furniture finishing workroom. Haskins accepted this job after being interviewed by Supervisor Simons who was in charge of that department. In his conversation with Vaught, ' Kelly told him about an opening in the garage and one in the carpet workroom Vaught expressed interest in the latter job, which he, too, accepted after talking to Bob Everett, the supervisor of that department. Under similar circumstances Bastus was offered and accepted a transfer to the furniture finishing workroom. A few days later, the three employees began working at their new jobs at increased pay. Kelly denied knowledge of Haskins' and Bastus' union activities or sympathies and there is no evidence to the contrary. I credit Kelly's denial. On the other hand, Kelly candidly admitted that he was aware that Vaught belonged to the Union.26 d. The Board's rulings on the challenges and objections, subsequent events On March 22, 1966, the Board ordered certain challenged ballots be counted and that, if Local 688 failed to secure a majority of the votes cast, the election be set aside. On March 29 , the Respondent communicated this information to the warehouse employees . Since it appeared that after the challenged ballots were counted that the Union lost the election, it was accordingly vacated and a second election was scheduled . However, this election was deferred when Local 688 on April 22 filed the unfair labor practices charges in Case 14-CA-3957. These charges alleged that the unilateral transfer of Haskins, Vaught and another employee, Kellermann , out of the bargaining unit was discriminatory and that the January 1966 wage increases and promise of others were unlawful. The filing of these charges prompted the Respondent on or about April 25, 1966, to post the following notice to the warehouse employees over Superintendent Kelly's signature: "If Kelly's February 1965 date of the conversations were correct, the parties would have been awaiting the Board's Decision and Direction of Election at that time. "The month is indicated by the fact that Haskins and Bastus were transferred to other jobs on October 18 and Vaught on October 21, 1965 26Vaught was elected to the Union 's negotiating committee which never became active because of Local 688's failure to win certification 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am sorry to have to tell you that the government election that was scheduled for next Tuesday may again be postponed at the Teamsters request. The Union has complained about things that occurred months ago. They are protesting because the company did not consult the union before we promoted employees to better jobs. Also, the union wants the government to order the company not to increase your wages. The new complaints may tie up the election for some time. We will keep you advised. At about this time, Supervisor Roy Benning read a statement to an assembled group of employees in the furniture delivery department. According to the testimony of employee Charles W. Spink, Benning stated that "All wages . . . would be frozen because the union had filed unfair labor practices against the company." On cross-examination, Spink testified that Benning "just said - [the union] had filed unfair labor practices and raises would be frozen" but did not say that the union was complaining that employees were given raises Employee Lavac, who apparently attended the same meeting, testified that Benning said that "the union had frozen our wages, they didn't want the company to give us our wages due to the organizing again." Lavac further testified that Benning assured them they would receive the previously announced April increase but that the October 1966 and January 1967 steps "were frozen." When cross-examined, Lavac testified he could not recall whether the union's unfair labor practice charges were mentioned. However, in his pretrial affidavit, which was executed on July 6, 1966, Lavac stated that he believed that Benning mentioned that the Union had filed unfair labor practice charges against the company, and that "our raises were frozen or - [Benning] might have said he didn't know if we were going to get our raises." Although Benning did not testify, I am unable to view Spink's or Lavac's testimony as accurately reflecting Benning's remarks. However, I do find that Benning, in effect, reported to the employees that the filing of unfair labor practice charges might cause a suspension of the series of wage increases announced the previous February. In this connection, it is noted that Personnel Director Bastman's affidavit, which the General Counsel put in evidence, recites that it was only after numerous employees had expressed concern that the previously announced wage adjustments would be blocked as a consequence of the filing of the charges in question did the Respondent advise them that they would nevertheless be effectuated. Probably at about the time when Benning reported to employees the filing of the above-mentioned charges and before the rescheduled second election, former warehouse employee, William H. Ferrell, credibly testified, without contradiction, that while in the warehouse elevator, Superintendent Kelly, in the presence of Delivery Superintendent Hinton, expressed amazement that "those people . . . [objected] to a raise when they are not with us, or don't belong to us, or something to that effect." Ferrell, to whom the remark was directed, thought he responded with a smile. 2. Evidence relating to the store complaint a. Local 688's efforts to organize the store employees In the fall of 1966, following the issuance of the consolidated complaint in the Spring Avenue warehouse cases, Local 688 instituted a drive to organize some 6,000 employees at the Respondent's downtown and suburban stores. In an obvious - attempt to defeat these organizational efforts, the Respondent promptly countered with an intensive campaign of antiunion literature and propaganda, concededly noncoercive in tenor,27 which it regularly mailed to its store employees at their homes.28 Local 688 responded in kind, distributing a substantial number of union handbills, circulars and pamphlets to employees. However, Local 688 insists that its campaign material did not reach all the employees, as did the Respondent's. In what appears to be the first letter addressed to employees, dated October 13, 1966, the Respondent announced the Company's consistent policy to be that the "employees and the Company will be better off without the Teamsters - or any other union." Continuing, the letter stated* Because your name, address and phone number may appear on a list the Teamsters are trying to make, you may be called on the phone or visited at home. You should know you don't have to discuss anything with Teamster organizers if you don't want to. We are sorry if you are inconvenienced by these professional organizers, but they will keep bothering you until you give them a firm "Not Interested." If you are asked to sign a union card, be sure you understand exactly what your signature on the card means. If you sign, you may be agreeing to pay $8, or more, dues every month, plus initiation fees. You may also be expected to obey union rules about strikes, picket lines, or compulsory attendance at meetings. Members are often fined for violating Teamster rules. Your Company respects your right to make your own decision, as a free American We certainly would not tell you what to do, but we believe your own best interest will be served by refusing to sign any Teamster card. If you have any questions, feel free to discuss them with your Supervisor. Simultaneously with the mailing of this letter, the supervisors were alerted to its contents and that they would be furnished with a booklet containing information to assist them in their discussions with employees. The next day the Respondent distributed a "Checklist for Managers" containing both antiunion material relating to the Teamsters, Local 688, and a statement of the company's union and personnel policies and employee benefits. The only significant evidence in the record pertaining to discussions between supervisors and employees is set forth below. b. Removal of name tags; alleged interrogation and coercion In October or November 1966, shortly after Local 688 began its organizational drive, the Respondent ordered its salespeople, waitresses and other employees at its stores to remove their name tags which they customarily wore. This particular type of identification had been in use at these stores since 1960 at least and was intended to enable "It is not alleged or contended that this literature amounted to interference, restraint or coercion of employees prohibited by Section 8(a)(1) of the Act. 2"It appears that only one leaflet was passed out at the stores. FAMOUS-BARR CO. customers to learn the name of a particular salesperson in the event they desired to report to management the type of service the wearer gave them. In addition, displaying their names might furnish salespeople with a greater opportunity for earning commissions, should customers call in and place orders for merchandise, crediting the sale to an identified salesperson.29 The practice of wearing name tags, however, is not uniform throughout the May Department Stores chain. Some stores follow it, while others do not. According to Ernest W. Ratchford, operations manager of the South County Store, the decision to order the discontinuance of the use of name tags originated in a conversation he had one morning with t aleslady whose name he could not recall. She informed him and Store Manager Nau that a person posing as a customer approached her the night before at her counter, asked her to join the union and attempted to secure her name and address. Since she and other salesladies were not interested in getting involved with the union or having the union learn their names, this saleslady requested permission for her and her coworkers to remove their name tags. Ratchford conveyed this information and request to Personnel Director Bastman who, in turn, convened a meeting of store superintendents at which Bastman ordered the removal of name tags at all the stores. Edith R. Weinstein, a former saleslady at the Downtown Store, testified that in October 1966 Floor Superintendent Donna J. Ledbetter instructed her and another saleslady, Ponnie Nord, that, if they were approached by anyone from the Teamsters Union, which she characterized as a "bunch of gangsters," not to talk to him but to report it immediately to their supervisor and the solicitor would be put out of the store. She further testified- that Ledbetter warned that "anyone [found] talking to the Teamsters would be let out of they signed to go into a union - or even talked to any of the union people who came into the store." Weinstein's response to Ledbetter's remarks seems to have been confined to her objection to Ledbetter's reference to the Teamsters Union as a "gangster" organization because her brother had been a "Teamster" for 40 years. Ledbetter denied ever having had the foregoing conversation. However, she did admit speaking to a group of employees whom she had assembled to tell them that "if they were annoyed on the floor with anyone that belonged to the Teamsters or that identified themselves, passing out handbills, that they were to notify" her or some other department head. While I believe that in some respect Ledbetter's testimony suffers from a lack of candor, I am not completely impressed with, and do not accept Weinstein's testimony that Ledbetter, the only store supervisor, among several hundred, charged with making an unlawful threat, had actually engaged in such conduct, In November 1966, Mary Seward, formerly employed in the kitchen of the Respondent's restaurant in the South County Store, initiated a conversation with Assistant Restaurant Manager Mildred Freyhage, by asking her whether she was aware that there was a union organizer in their midst. After exacting a promise from Freyhage that she would not report it, Seward told her that while she was at work in the kitchen the day before Lois Watkins, a waitress, the subject of discrimination charges herein, "It is noted that the Respondent furnishes its salespersons with ample supplies of business cards which manifestly would serve such purposes. 779 approached her and inquired whether she was interested in joining the union and stated that she (Watkins) had union cards in her locker. After some discussion, Freyhage asked Seward if she had a card. Seward replied in the negative. In answer to another inquiry made by Freyhage, Seward informed her that Bernice Chamberlain, another kitchen employee who is still in the Respondent's employ, was present during her conversation with Watkins. The discussion ended with Freyhage remarking that she was sorry she had made the promise because she was going to report the, Watkins' incident to Operations Manager Ratchford. This she later did.30 About 10 or 15 minutes after Freyhage's conversation with Seward, Chamberlain called Freyhage over to her worktable in the kitchen and volunteered the information that she had received a union card. Freyhage then asked to see the card, cautioning Chamberlain not to identify the individual who gave it to her because she already knew it. Chamberlain, thereupon, handed the card to Freyhage who, after looking at it, offered to return it to Chamberlain. However, Chamberlain declared that she had no use for the card and didn't want it. Probably at this point, Chamberlain told Freyhage that her husband disapproved her joining the union and that her daughter, Mareth Govero, another employee, suggested that she turn over the card to Freyhage.31 There is also uncontradicted testimony given by Seward, which I accept, that later in the day of her conversation with Freyhage, when she was in Restaurant Manager Jack Wunsch's office to receive a personal call, Wunsch remarked that he heard that she had a union card. Seward further credibly testified that she denied it and that, in answer to her question whether Freyhage had informed him that she had a card, Wunsch stated that it wasn't but that Chamberlain's daughter did. In departing, Seward indicated that she was in favor of the right union getting in. c. Alleged partial invalidity of the Respondent's no-solicitation rule, discriminatory enforcement At all times material herein, a no-solicitation rule32 has been in effect at all the Respondent's stores and service buildings in the St. Louis area . This rule has been posted on employee bulletin boards and provides in relevant part: 1. Solicitation by employees of the Company is prohibited while any employee - is on working time, and at all times in non-public areas of the store where noise or talking is not allowed . Solicitation by employees is also prohibited during all hours when the store is open, in selling and customers' service areas, in public areas adjacent thereto and in waiting and rest rooms used by the public. 3. This rule applies to all stores and service buildings and to solicitations for all purposes, including miscellaneous charities, outside insurance, punch boards, raffle schemes, lottery tickets, magazine clubs, labor organizations, societies, lodges and the like. "The foregoing findings are based on the combined credible testimony of Seward and Freyhage. 'These findings are based on portions of the testimony given by Chamberlain and Freyhage, which I find reflect the probable truth. "The Respondent has maintained a no-solicitation rule for more than 15 years in different forms. The one quoted in the text has been in effect since at least 1964 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. It is a violation of this rule either to solicit or be solicited in a prohibited manner. There are times when expressions of friendship or good will for co-workers are permissible, but in order to protect employees from too frequent collections for such purposes written permission for such solicitation must be obtained from the Store Superintendent. Any violation of this rule should be reported at once to your immediate supervisor, the Store Superintendent or the Personnel Director. Authority to grant permission for solicitation for purposes of "expressions of friendship or good will" is vested in the employment manager at the Downtown Store, the superintendent at the respective branch stores, and the Superintendent at the warehouse. The General Counsel and Local 688 challenge the validity of the rule because it sanctions such "expressions of friendship or good will" during working hours or in specified places at all times, while absolutely prohibiting union solicitation under similar circumstances. Reflecting company policy with respect to what collections may or may not be permitted by the rule's exception for "expressions of freindship or good will," is the memorandum dated December 4, 1961, directed to "All Executives" on the subject "Collections For Supervisors." This document stated: It has long been the established rule of Famous-Barr Company that there shall be no collection of money to buy gifts for executives, buyers, department heads, and other supervisors. The "No-Solicitation" rule which was circulated November 9, 1949, permits collections in case of retirement, death in the family, etc., if handled in the proper manner: When employees desire to make a collection in a department for funeral flowers, wedding gifts, Christmas presents, or presents of any kind - in short, a collection of any amount however small, or for any purpose however deserving, - the collection may not be made until arrangements have been made with a supervisor of the department and the supervisor has obtained written permission from the Employment office. Requests for such permission will receive favorable consideration where no imposition or hardship will result, except that permission will not be granted for collections to purchase gifts for supervisory employees or executives Please see that the above rule is observed as violations lead to immediate disciplinary action. Bastman and Operations Manager Ratchford generally confirmed the above statement of company policy, but testified that collections for funeral flowers were limited to members of the employees' immediate family and collections for wedding gifts could be made only where employees themselves were getting married. Ratchford further testified that collections for employee birthday gifts or solicitation on behalf of outside organizations, such as, high schools, charities, religious or church groups, or Parent-Teachers Associations, were not permitted, although flower collections for hospitalized employees were. In accordance with company policy, the record reveals a number of instances of collections and solicitation at the Downtown, South County and Clayton Stores for nonunion permissible purposes. 33 On the other hand, there is evidence of many instances of nonunion collections and solicitations banned by the rule but which were engaged in by employees during working hours, with the knowledge and consent of supervisors and, indeed, on some occasions with their participation. Specifically, the record contains evidence of employee sales of ballpoint pens and candy on behalf of church groups;" employee sales of a weekly publication called the "Grit";35 a World Series baseball pool in which Assistant Restaurant Manager Freyhage sold tickets; 36 the sale of C.B.C. high school football tickets by Freyhage;3" collections for birthday gifts, a present for an employee leaving the Company's employ, Christmas and birthday gifts for supervisors, and solicitations for charitable and religious organizations.' d. Alleged discrimination against employee Lois Watkins Lois Watkins worked as a waitress in the coffee shop in the Respondent's South County Store from April 1965 until she voluntarily quit in March 1967 During Local 688's organizational campaign in the fall of 1966, she became interested in the union78 and undertook to solicit membership on its behalf. She discussed the union with a number of coworkers, including Seward and Chamberlain, in the coffee shop, kitchen, and away from the store, expressing her prounion viewpoint and inquiring whether they wanted to join. Watkins had actually distributed union cards to only three employees, one of whom was Chamberlain, while all were off duty. Although Watkins claimed she was not aware of the no-solicitation rule, she knew that employees were not supposed to make collections. However, it is perfectly clear that during slow periods employees in the coffee shop and kitchen were permitted to, and customarily did, discuss among themselves and with Assistant Manager Freyhage a variety of nonunion subjects unrelated to their work. In the early part of November 1966, during working hours Watkins asked Seward and Chamberlain who were at work in the kitchen, whether they were interested in joining the union. When they answered affirmatively, Watkins stated that she had cards in her locker, which she would give them after they got off work. At the end of their shift, Watkins handed Chamberlain a card in the parking lot as they were leaving for home. As previously noted, the next morning, probably Wednesday, November 9, Seward and Chamberlain volunteered the information of Watkins' solicitation to Assistant Restaurant Manager Freyhage, who promptly 33However, there is evidence of only one case where permission was first obtained from management "Employee Seward , who engaged in this activity, was directed to stop this practice after the suspension of Lois Watkins , whose case is hereafter discussed. "Employee Chamberlain sold and delivered this paper while on duty to about eight employees over a period of several months "I based this finding on mutually corroborative testimony of employees Lois Watkins and Janet Monsen "Watkins testified that during working hours Freyhage came around and asked employees whether they were interested in purchasing these football tickets, which she was selling for her nephews who were attending that school; that she told Freyhage she would ask her husband, and that the next day she ordered 10 tickets from Freyhage Freyhage testified that Watkins first approached her for tickets. However, it also appears that Freyhage sold tickets to two other employees and a number of men at a bowling alley I find Watkins' testimony more credible "On November 20, 1966 , after her 3-day suspension , Watkins and another employee attended Local 688's shop stewards convention As a precautionary measure, the union notified the Respondent of their attendance. FAMOUS-BARR CO. 781 went to see Operations Manager Ratchford in his office. In the presence of Store Manager Nau, Freyhage reported her conversation with Seward and Chamberlain that Watkins had union cards and was talking to employees about joining.39 Ratchford instructed Freyhage to submit a written report, which she did a day or two later. On or about November 11, after a prior unsuccessful effort to reach Personnel Director Bastman at the Downtown office, Ratchford reviewed the Watkins' situation with Bastman who agreed to a 3-day disciplinary suspension if Watkins had, in fact, violated the Company's no-solicitation rule. On Saturday, November 12, Ratchford summoned Watkins from her work to his office. There he confronted her with the accusation that she was soliciting cards in violation of the no-solicitation rule, informing her that he had received a report that five employees had complained about her solicitation.40 Admittedly, the Freyhage report was the only source of Ratchford's knowledge of Watkins' union solicitation. Watkins made no defense. As a disciplinary measure, Ratchford imposed a 3-day layoff beginning the following Monday, with a warning that a repetition of the offense would result in a more severe penalty, including dismissal. A memo to this effect was placed in Watkins' personnel file. At the hearing, Ratchford gave as the reason for the suspension Watkins' "solicitation of other employees, talking to them about the union . trying to enlist them into joining the Teamsters Union on company time, on company property." After her suspension, Watkins returned to work. About December 1, 1966, she was again called to Ratchford's office. Ratchford questioned her whether she had started, or participated, in a collection for a gift for an employee, Ann Reando, who was quitting her job.4" Watkins denied that she had, although she admitted that she was asked to contribute and did. The interview ended with Ratchford expressing satisfaction that she was not involved in the collection for "[o]therwise . . . [he] would have had to fire" her. Concerning the collection for the Reando gift, it is undisputed that a few days before December 1, 1966, Edna Kalbfleisch, a waitress still in the Respondent's employ in the coffee shop at the South County Store, was responsible for initiating that collection. According to practice, during working hours she set up a jar in the back bay area of the coffee shop and asked employees to contribute if they so desired .41 On December 1, Kalbfleisch was called to Ratchford's office. Ratchford charged her with soliciting contributions in violation of the store' s rule. Kalbfleisch responded that she did not realize that she was doing anything wrong .41 Ratchford then advised her that her offense would "Freyhage testified that when she reported Watkins to Ratchford her immediate supervisor at the restaurant , Jack Wunsch , had not yet come to work Ratchford was apparently mistaken in his testimony that Wunsch had accompanied Freyhage on this occasion. It does appear that Wunsch was with her a day or two later when Freyhage submitted the requested written report of the Watkins' episode '.However, no evidence was produced of any employee complaints "Ratchford testified that he called Watkins into his office because Freyhage had previously reported to him that Watkins had been involved in that collection. Freyhage, however, denied that she had reported the incident to Ratchford but informed her superior , Jack Wunsch, as soon as she learned about the incident. "Watkins credibly testified, without contradiction, that at one point she had seen employee Mareth Govero walking around in the restaurant and kitchen with the jar in her hand soliciting employee contributions. nevertheless be noted in her personnel file and admonished her that it must not happen again. Unlike Watkins' case, Kalbfleisch was not given a disciplinary layoff. The memo placed in her file states that "[n]o disciplinary action was taken other than the official reprimand due to the fact that it is not clear whether the supervisor involved implied that employee was not doing anything wrong." Significantly, not only did Kalbfleisch's supervisor, Freyhage, deny telling her that, but it appears that Kalbfleisch did not assert such an excuse when interviewed by Ratchford. To explain the difference in treatment accorded Watkins and Kalbfleisch for violating the no-solicitation rule, Ratchford testified that there were extenuating circumstances in the latter's case In the first place, Ratchford testified, Kalbfleisch professed that she was unaware that she was doing anything wrong, which Watkins did not do, and secondly, and what he regarded as more important, was the fact that, in answer to Kalbfleisch's question whether it was wrong for her to take up the collection, her supervisor, Freyhage, told her that she didn't think it was wrong, to forget it, and that it would be all right. Aside from the Watkins and Kalbfleisch episodes, the Respondent, according to the testimony of Personnel Director Bastman, had occasion to penalize two employees for violating the Company's no-solicitation rule. One such case occurred several years before 1964, when a supervisor was discharged for soliciting money for a gift for another supervisor and permitting employees to take up the collection. The other situation was a 3-day suspension in 1964 or 1965 of a warehouse employee who had conducted a raffle or lottery. C. Concluding Findings" 1. With respect to the Warehouse consolidated complaint a. Coercive and restraining statements, interrogation There can be no doubt that an employer is privileged to wage a campaign to defeat a union's efforts to organize his employees and secure representation status at the polls provided his conduct does not fall into an area forbidden by the Act.45 I find that the Respondent's Warehouse Superintendent and other supervisors in the respects indicated below engaged in conduct which exceeded permissible limits and constituted interference, restraint, and coercion of employees within the meaning of Section 8(a)(1) of the Act. "I find it unnecessary to resolve a conflict in testimony as to whether Kalbfleisch actually had any conversation with Freyhage concerning Kalbfleisch's involvement in this collection before Kalbfleisch was called into Ratchford's office 44In making my concluding findings, I have taken official notice, as the General Counsel and Local 688 has requested me to do, of the following Board decisions in which the Respondent was found to have violated the Act. 53 NLRB 1366 (1943 ), enfd as modified 146 F 2d 66 (C A. 8), affd 326 U S 376, 59 NLRB 976 (1944), enfd as modified 154 F 2d 533 (C A 8); 70 NLRB 94 (1946), enfd 162 F 2d 247 (C A 8). 1 note that 22 years have elapsed since the last decision "Section 8 (c) provides. The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Specifically, and without repeating the evidence detailed in the preceding section of this Decision, I find coercive Supervisor Glynn's warning to employee Marzuco to "freeze all wages" and deprive him of benefits in order to dissuade him from joining or supporting Local 688. Also having a similar deterring and calculated effect on employees are the statements of Superintendent Kelly and Supervisor Simons to employees J. D. Vaught and Miller, respectively, placing blame on the employees' inability to secure a raise upon the union's organizational activity. Kelly told Vaught that he could not receive a raise until "this thing" "blowed over," and Simons advised Miller that "the union had stopped all raises " Although the union had filed a representation petition at about that time, the Respondent was not precluded from granting customary wage increases, as it well knew and, indeed, gave raises to a substantial number of employees. In these circumstances, I find Kelly's and Simon's remarks violative of Section 8(a)(1) of the Act.d6 As noted above, on five separate occasions Superintendent Kelly and four other supervisors,47 questioned employees concerning their union sympathies, intentions to loin, or attendance at a union meeting, As this interrogation occurred "in an atmosphere of active opposition to the union, Bourne v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964), without explanation to the employees of the purpose of the questioning and under circumstances indicating that it had no legitimate purpose, Edward Fields, Inc. v. N.L R.B., 325 F 2d 754, 758-759 (2d Cir. 1963) and was unaccompanied by any assurance against reprisals, see N.L.R B. v. Lorben Corporation, 345 F.2d 346, 348 (2d Cir. 1965),"48 I find it amounted to a coercive and unwarranted intrusion into the employees' self-organizational rights .41 On the other hand, I find Superintendent Kelly's warning to employee Daub that he risked discharge if he solicited union membership in the warehouse on company time in violation of the Company' s no-solicitation rule did not unlawfully interfere with his right to organize. Of course, a broad prohibition of solicitation on company time, without regard to whether it was the employee's working or nonworking time, is invalid in the absence of evidence that it was necessary in order to maintain production and discipline 50 However, it appears to me that Kelly's outburst at Daub was only intended to remind Daub not to violate the Company's permissible posted rule applicable to working time only, of which Daub, the son of a Teamsters Union official, was fully aware. I also am unable to find violative of the Act Supervisor Hinton's statement in early 1965 to employee Lavac, in response to the latter's request for a wage increase, that he did not know whether he could do anything for him because of the pendency of the case in Washington I find nothing in Hinton's statement, as I have found above in "McCormick Longmeadow Stone Co., Inc.. 158 NLRB 1237, 1242, Dorn's Transportation Company, Inc, 168 NLRB No 68. "Glynn, Long, Simons, and Hinton. It also appears that Glynn had summoned to his office a number of other employees, although there is no evidence as to what had transpired there "Bryant Chucking Grinder Company v N L.R.B., 389 F 2d 565, 67 LRRM 2017, 2018 (C.A 2), enfg 160 NLRB 1526 1 do not regard Superintendent Kelly's remark to employee Kellermann that he didn't care if he joined or Glynn's statement to employee Stout that it was up to him to join, sufficient assurance against reprisals or, in the circumstances, excusing the interrogation 491d, Struksnes Construction Co, Inc, 165 NLRB No. 102; Fontana Bros , 169 NLRB No. 56 "Republic Aviation Corp v. N L R B. 324 U S 793, 803, fn. 10. Kelly's and Simons' remarks, improperly imputing to the union the loss of wage increases. Indeed, several weeks later Hinton advised Lavac that he would receive a wage raise which, Company records show, he and a substantial number of other employees actually received on April 26, 1965, in accordance with the Company's prevailing practice. b. Withholding and granting of wage increases The consolidated complaint alleges that the Respondent violated Section 8(a)(3) and (I) of the Act because, for discriminatory reasons, it withheld wage increases in May 1964 and 1965 which it customarily granted at that time of the year; in June 1965, it gave raises to certain employees excluded from the unit found appropriate in the Board's Decision and Direction of Election in Case 14-RC-4843 issued that month, while denying increases to employees included in the unit; and during the fall of 1965, increased hiring rates for new employees and promised them further periodic increases, but denied raises to its older employees. The General Counsel and Local 688 view the Respondent's conduct as a grand manipulation of wage increases to convince employees that they could only suffer detriment by seeking union organization. Vigorously denying this charge, the Respondent insists its actions were guided solely by sound business and other legitimate considerations. It is settled law that the granting of wage increases or other employee benefits by an employer during a union's organizational campaign or the pendency of a representation petition or ruling on objections to an election is not a per se violation of the Act. Rather, it has been held, the legality of such a grant of benefits depends upon the motive behind it - whether the "conduct immediately favorable to employees . . . is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is calculated to have that effect."" This is but a recognition of the fact that there are a variety of reasons, legitimate and otherwise, that may dictate this action. Certainly, questions of motive cannot be determined mechanically without reference to all the facts and surrounding circumstances, including the employer's antiunion attitude. To be sure, an employer's conferral of economic benefits during organizational activity or the pendency of representation proceedings may be suspect and, unless explained, may well lend itself to an unfair labor practice finding that it was intended to defeat the union's efforts to secure representational status. However, if he demonstrates that substantial business or other legitimate reasons actually prompted the grant of benefits, no violation could be found A similar test of motivation has been held to be applicable to an employer's withholding of customary benefits from employees.52 If the employer denies benefits he would otherwise grant to employees were it not for the union's campaign to organize the employees and achieve recognition, he violates the Act If economic reasons govern his decision no unfair labor practice is committed. "N.L R.B. v. Exchange Parts Co, 375 U S. 405, 409, McCormick Longmeadow Stone Co, Inc., supra Champion Pneumatic Machinery Co, 152 NLRB 300, Ambox, Incorporated, 146 NLRB 1520 "Dorn's Transportation Company, Inc, 168 NLRB No. 68, Dan Howard Mfg Co. 158 NLRB 805 FAMOUS-BARR CO. Applying the foregoing principles, I find that the record does not sustain the allegations of the consolidated complaint. As related above, the Respondent, in conformity with past practices, granted wage increases in April-May 1964 and 1965, in the same general range as those given in prior years, even though the warehouse superintendent and a supervisor had unlawfully informed two employees that he union had caused a freeze on granting raises. Therefore, I find that there is no factual basis for the allegation that the Respondent withheld such increases. Moreover, I find, in disagreement with the General Counsel and Local 688, that the September 28, 1964, increases were not the usual wage adjustment that the Respondent failed to institute in May 1964- On the contrary, I find that those additional increases were necessitated by employee dissatisfaction with their wage scales, and the developing labor turnover and tight labor market and were not intended to penalize employees because of the union's organizational campaign. The General Counsel and Local 688 also contend that because of the union's activity the Respondent discriminatorily denied the employees included in the election unit the same wage increases it conferred on July 5, 1965, upon the employees whom the Board had excluded from the unit. Concededly, this was an adjustment designed to bring wages up to the competitive area rate which had been postponed because of the lengthy delay in the issuance of the Board's Decision and Direction of Election. It is also perfectly clear that the included employees were scheduled to vote in the Board election to be held on July 21, 1965. Significantly, there is no evidence that the Respondent exploited this increase in its campaign of opposition to the union . In these circumstances, I find plausible the Respondent's asserted reason that it withheld granting the raise yin question to the included employees lest it be charged with election interference. Accordingly, I conclude that the record does not support the inference that the Respondent's July 5 action was discriminatorily motivated.53 Concerning the hiring in the fall of 1965 of employees at higher rates than those established in the warehouse, here, too, I find, on the basis of the record before me, that this was essential in order to enable the Respondent to recruit needed warehouse personnel in the face of a tight and competitive labor market. No convincing evidence was presented to show a contrary prevailing labor situation, or that the Respondent in reality acted, as it did, in reprisal for union activity. Lastly, I find that the Respondent's revision of its wage structure in January 1966, and its program of individual wage adjustments which was announced to each employee separately the following month, were not shown to be other than dictated by legitimate business reasons. As previously discussed, the undisputed evidence reveals that the Respondent adopted this course of action to remedy an intolerable and inequitable wage situation that developed in its warehouse and that it did so only after failing to receive an encouraging answer to its inquiries from the Regional Office as to when a Board ruling on objections to the first election pending for a regrettably long time could be expected. Nor am I able to find sufficient evidence in the Respondent' s subsequent conduct to impugn the asserted legitimate business considerations prompting the wage structure revision and the wage adjustment program. "Uarco Incorporated, 169 NLRB No. 162 783 In sum, I conclude that the General Counsel failed to prove the allegations of the consolidated complaint that the Respondent discriminatorily withheld wage increases and granted others. c. Job transfers of Haskins, Bastus, and Vaught The consolidated complaint alleges that in October 1965 the Respondent denied these three warehouse employees a wage increase but offered them a raise if they would accept a transfer to other jobs outside the appropriate unit. It is further alleged that the Respondent's action was motivated by a desire to discourage these employees from continuing their union membership and activity and that the Respondent thereby violated Section 8(a)(1) and (3) of the Act. I find these allegations not substantiated by the evidence. It is quite clear from the factual findings I have heretofore made that the Respondent declined to grant raises to Haskins, Bastus and Vaught because they were already receiving the maximum in their job classifications. Moreover, it appears that this was the reason why they were offered better paying jobs in other departments to available openings, which they voluntarily accepted, and that the transfers were not designed to siphon off votes in the unit Local 688 sought to represent, as the General Counsel and Local 688 suggest. Additionally, there is absolutely no evidence to contradict the denial of Superintendent Kelly, who offered and authorized these transfers, that he was aware that Haskins or Bastus even belonged to the union, although he candidly admitted knowledge of Vaught's membership. In these circumstances, I find that the pertinent allegations of the consolidated complaint were not proven. 2. With respect to the Store complaint a. Interrogation and threats On the basis of the factual findings I have heretofore made, I find that Assistant Restaurant Manager Freyhage did not interrogate employees Seward and Chamberlain concerning their union activities, as alleged in the complaint. The record discloses that Freyhage asked Seward whether she had a card after the latter volunteered that she was solicited by employee Watkins to join the union. As for Chamberlain, it appears that she, too, volunteered information to Freyhage that she had received a union card and that Freyhage thereupon requested to see it. Such conduct in the contexts indicated, I find, does not assume the character of coercive interrogation prohibited by the Act. I further find no factual support for the allegations in the complaint that Floor Superintendent Ledbetter questioned employee Weinstein about her union activities and threatened her with discharge if she joined the union. The only conduct I find amounting to unlawful interrogation is Restaurant Manager Wunsch's remark to employee Seward that he had heard that she had a union card, which elicited her negative response. b. Removal of name tags It is the position of the General Counsel and Local 688 that the Respondent ordered the store employees to remove the name tags, which they had customarily worn, for the purpose of preventing the union from securing employees' names to use in its organizational campaign 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the Respondent thereby violated Section 8(a)(1) of the Act. They further contend that such conduct decreased the opportunity of sales personnel to earn additional sales commissions, should customers call in and place orders for merchandise, crediting the sale to an identified salesperson. This, they urge, constituted a change in a condition of employment to discourage union membership within the meaning of Section 8(a)(3) of the Act. The Respondent, on the other hand, contends that since the purpose of the name tags was not to furnish the union with a ready source for compiling a list of employees, nor were name tags a condition of employment, no unfair labor practice was committed in their removal. Although in a sense the union's organizational drive could probably be affected by its inability to secure the names of employees in this manner, I am not entirely convinced that the Respondent's conduct amounted to an unlawful infringement of its employees' statutorily protected rights. The action taken by the Respondent obviously did not deprive its employees of an opportunity freely to communicate with union organizers outside the stores, if they so desired. 54 Moreover, as the Respondent notes, name tags were designed to serve business purposes and were not intended as an invitiation to organizers to collect names of prospective union supporters in the stores. I further find that, assuming that the name tags could conceivably be regarded as a condition of employment - a point which need not be decided - the change does not impress me as having such a significant impact on terms and conditions of employment as to amount to discrimination within the meaning of Section 8(a)(3) of the Act. c. The no-solicitation rule; its enforcement No question is raised concerning the validity of the rule insofar as it prohibits in designated store and warehouse areas .. solicitation for all purposes, including miscellaneous charities, outside insurance, punch boards, raffle schemes, lottery tickets, magazine clubs, labor organizations, societies, lodges and the like. However, the rule contains an exception which the General Counsel and Local 688 contend invalidates the rule. This exception states: There are times when expressions of friendship or good will for co-workers are permissible, but in order to protect employees from too frequent collections for such purposes written permission for such solicitation must be obtained from the Store Superintendent. The law is well settled that, in the interest of maintaining efficient operation and discipline, an employer may have a rule prohibiting union solicitation by employees during working hours.55 However, as the Supreme Court noted in Republic Aviation, "such rule must be presumed to be valid in the absence of evidence "The holding of the Board in Popeil Brothers , Inc., 101 NLRB 1083, 1084, and Kelco Corporation, 79 NLRB 759, 763, relied on by the General Counsel are plainly not applicable to the facts of this case In Pope,!, the employer changed working hours of its employees and required them to enter and leave the plant by normally unused exits in order to prevent them from meeting or encountering union organizers stationed outside the plant In a comparable situation in Kelco, the employer required the entire shop to work overtime for the purpose of preventing its employees from attending a scheduled union meeting. that it was adopted for a discriminatory purpose. -56 (Emphasis added). Where the employer is motivated not by a concern over such legitimate interests as efficient operation and discipline but by a desire to interfere with employees' self-organizational rights, the Board and the courts have uniformly held that the no-solicitation rule is invalid .51 Manifestly, issues of this nature cannot be resolved mechanically" but consideration must be given to all the facts and circumstances surrounding its adoption. The exclusion from the ban of solicitation for nonunion purposes is only one factor to be considered. Except for the fact that the rule permits authorized collections "as expressions of friendship or good will for co-workers," the record is barren of any evidence that it was promulgated as a device for impeding or obstructing the union's organizational efforts. Quite the contrary, it is clear that this rule was instituted long before the union commenced its drive to organize the Respondent's store employees and is of the type that may well serve the Respondent's legitimate business requirements.59 In these circumstances, I find insufficient evidence to warrant invalidating the rule. Despite the validity of the rule, I nevertheless find that it was discriminatorily enforced. As indicated earlier in this decision, the record contains instances of solicitation for nonunion purposes prohibited by the rule by employees during working hours, with the knowledge and consent of supervisors and, indeed, sometimes with supervisory participation. Among other things, this solicitation encompassed the sale of ballpoint pens, candy and football tickets, the conduct of a baseball pool, and collections for birthday gifts and charities. In contrast, the Respondent lost little time to suspend Lois Watkins, whose case is discussed below, for soliciting union membership purportedly in violation of the rule. Viewing the different treatment accorded union and ostensibly proscribed nonunion solicitation against the background of its union opposition, I find that the Respondent imposed an unjustified restriction on employee self-organizational rights and that it thereby violated Section 8(a)(1) of the Act. d Watkins' suspension As noted above, Lois Watkins, then a waitress in the Respondent's coffee shop in its South County Store, was suspended on November 21, 1966, for the asserted reason that she had solicited her co-workers in the restaurant and kitchen in violation of the no-solicitation rule Having found that this rule was applied in a discriminatory manner to bar union solicitation but not solicitation for ostensibly proscribed nonunion purposes, it follows that "Republic Aviation Corp v N L.R.B, 324 U S. 793, 797-798, 803, fn 10, approving Peyton Packing Co., 49 NLRB 828, 843-844 "Id at 803, fn. 10. "Winchester Spinning Corp, 168 NLRB No 60, (TXD), Ward Manufacturing, Inc, 152 NLRB 1270, 1271, The Wm H Block Company, 150 NLRB 341, 342-343, Revere Camera Company, 133 NLRB 1658, 1665-66, enfd 304, F.2d 162, 165 (C A. 7), Denver Tent and Awning Company, 47 NLRB 586, enfg 138 F 2d 410, 411 (C A 10) "Ibid "In The May Company, 136 NLRB 797, involving the Respondent's affiliated Cleveland store, the Board observed that the no-solicitation rule, which was similar to the one in question here, "is of the broad but privileged type " That rule also contained a similar exception to the solicitation ban. Id at 798, fns. 2 and 4 FAMOUS-BARR CO. Watkins' suspension violated Section 8(a)(3) and (1) of the Act.60 In any event, I find that the real reason for Watkins' suspension was her activity in promoting the union and soliciting membership among her co-workers and not her violation of the rule. Without detailing the evidence, it is noted that the suspension occurred against a background of the' Respondent's determined opposition to Local 688's efforts to organize the store employees. Also quite revealing is Assistant Restaurant Manager Freyhage's haste with which she reported to Operations Manager Ratchford Watkins' solicitation of employees Seward and Chamberlain to join Local 688. This was in sharp contrast with Freyhage's permissive attitude toward employee solicitations and money collections during working hours for nonunion purposes prohibited by the rule. In fact, Freyhage, herself sponsored a baseball pool and sold football tickets to employees. Moreover, it is a common practice for employees to discuss among themselves, a variety of subjects, nonunion in nature , which do not pertain to their work. Further reflecting upon the Respondent's motivation in suspending Watkins is the pronounced difference in the treatment accorded her and Edna Kalbfleisch, another waitress, for violating the no-solicitation rule. In Watkins' case, Freyhage promptly reported her to Ratchford because she "thought it was ... [her] duty" to do so, and thereafter, at Ratchford's request, submitted a written report. However, with respect to Kalbfleisch, who had taken up a collection for a gift for an employee subsequent to Watkins' suspension, Freyhage simply notified her immediate superior, but did not discuss the matter with Ratchford before he reprimanded Kalbfleisch; nor was Freyhage asked to furnish a written report of the incident. It is also significant that, unlike Watkins who was given a 3-day disciplinary layoff, Kalbfleisch was merely reprimanded.61 I find unconvincing Ratchford's testimonial explanation for this disparity in punishment that Kalbflersch had told him that she was unaware that she was doing anything wrong, which Watkins did not do, and more importantly that Freyhage had told Kalbfleisch that she didn't think she had done anything wrong in making the collection and to forget it However, not only did Freyhage deny telling Kalbfleisch that, but Kalbfleisch did not assert such an excuse when Ratchford interviewed her. Lastly, I find that the evidence of discrimination was not rebutted by the fact that before 1964 a supervisor had been discharged for collecting money for a gift for another supervisor, in complete disregard of the Company's constant reminder to supervisors that such conduct was forbidden, or the fact that in 1964 or 1965 a warehouse employee had received a 3-day suspension for conducting a raffle or lottery in the service building. Suffice it to say, subsequent to those episodes until the Watkins' incident, supervisors displayed no inclination to enforce the no-solicitation rule. In view of the foregoing, I conclude that the Respondent discriminatorily suspended Watkins to discourage membership in Local 688 and thereby violated Section 8(a)(3) and (1) of the Act. 'Tyrone Hydraulics, Inc, 161 NLRB 1476 611 seriously doubt whether Kalbfleisch would have even been reported to Ratchford had Watkins not been previously disciplined for her union activity Probably this was done to give an air of legitimacy to Watkins' suspension Furthermore , it is noted that Ratchford also questioned Watkins whether she was responsible for the gift collection . In response to her denial , Ratchford expressed relief that he did have to fire her had it been otherwise IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 785 The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent as described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and its free flow. V. THE REMEDY Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. Since Lois Watkins lost 3 days' pay and other moneys she normally would have earned as a waitress in the Respondent's coffee shop as a result of her discriminatory suspension, I recommend that the Respondent be ordered to reimburse her in such amount, less her net earnings during that period. If required, the Respondent shall make available to the Board all payroll and other records necessary to determine the sum of money thus owing to Watkins. Furthermore, I recommend that the Respondent post an appropriate notice at its store, warehouse and service building facilities. In view of the nature of the unfair labor practices here found, including discrimination which "goes to the very heart of the Act,"" there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.63 The General Counsel and Local 688 request additional remedies which they urge would be meaningful in effectuating the policies of the Act. Specifically, they ask that the practice of wearing name tags be restored and that the names and addresses of employees be made available to the Union.64 In addition, Local 688 seeks an order providing for (a) a Board official to read the notice to be posted to assemblages of employees on company time, (b) mailing a copy of such notice to each employee, with specified exceptions; (c) permission for the Union on request, to address assemblages of employees for at least 1 hour; and (d) reasonable union access to company bulletin boards for at least 1 year. It is firmly established that Section 10(c)65 vests the Board with broad discretion to devise remedies to meet the needs of particular situations.66 However, this discretion is not without limitation. The "power to "N.L R.B v Entwistle Mfg Co., 120 F 2d 532, 536 (C.A 4). "N L R B v. Express Publishing Company, 321 U S 426, 433. "The General Counsel confines his request to names and addresses of "store employees in the unit which the Union is seeking to organize " Local 688, on the other hand, desires that this information be furnished for "all Famous employees excluding supervisors and those presently under a collective-bargaining agreement." "Section 10(c) reads, in relevant part, that when it has been found that an unfair labor practice has been committed the Board is empowered to require the wrongdoer "to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act " "Phelps Dodge Corp v. N L.R.B.. 313 U.S. 177, 194, Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO v NLRB. (Mechanical Handling Systems), 365 U.S. 651, 655. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD command affirmative action is remedial, not punitive,""' as the Supreme Court has observed, and does not enable the Board "to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order." 68 In view of the nature of the unfair labor practices found herein, which are plainly not of the flagrant and "massive" type as those involved in the cases relied upon by the General Counsel and Local 688 in support of their proposed remedy, I seriously doubt that the extraordinary relief requested by them is appropriate or permissible. Accordingly, I do not recommend it. As further redress, Local 688 seeks an order directing the Respondent to bargain with it as the exclusive representative of the employees in the warehouse unit. However, no proof of Local 688's majority status was adduced. For this reason, the Board is without authority, under the majority principle in Section 9(a) of the Act,69 to issue a bargaining order.'" I find without merit Local 688's argument that, since the first election ultimately resulted in a tie vote, it should be presumed that it would have won the election had the Respondent not committed any unfair labor practices. However, that election had been set aside, and a second election was held in which objections were filed and litigated in the instant proceeding. Moreover, as the Board observed in rejecting a comparable contention, although "the possibility is strong that but for Respondent's unlawful conduct the Union would ultimately have secured the additional support it needed here to achieve majority status," this did not justify issuing a bargaining order.71 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 688 is, and its predecessor, Local 709 was until June 1, 1965, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Lois Watkins to discourage membership in, and activities on behalf of, Local 688, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By reason of the foregoing conduct, and by coercively interrogating employees concerning their union membership, sympathies and activities; by threatening an employee to "freeze all wages" and deprive him of benefits in order to dissuade him from joining of supporting the union; by informing an employee that the union's organizational activity was the reason for their inability to receive a wage increase; and by "Republic Steel Corporation v. N L R B, 311 U.S 7, 12; see also Local 60, Carpenters, supra. "Consolidated Edison Co of New York, Inc v. N L.R B., 305 U.S 197, 235-236. "This section provides Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment "H. W Elson Bottling Company, 155 NLRB 714, 716 "Id at 715-716 discriminatorily enforcing the Company's no-solicitation rule to bar solicitation for union purposes but not for nonunion purposes, except as permitted by the rule, the Respondent has interfered with, restrained and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not violated the Act by withholding or granting benefits, ordering its employees to remove name tags, transferring employees out of jobs in the appropriate unit, promulgating and maintaining an invalid no-solicitation rule, or by engaging in other conduct except as found above. Objections to the Second Election in Case 14-RC-4843, Recommendations Consolidated for hearing herein are three of the objections filed by Local 688 in Case 14-RC-4843. These objections alleged as grounds for setting aside the election the Respondent's conduct in discriminatorily transferring employees out of the bargaining unit,72 (b) granting wage increases to unit employees in January 1966 and promising them additional raises; and (c) distributing false election propaganda on May 19, 1966, the day before the election, under circumstances not affording Local 688 an opportunity to reply. The first two objections relate to matters litigated in the complaint cases. In accordance with my findings there, I find no merit in these objections. However, I find otherwise with respect to the third objection. The Respondent's handbill in question was obviously designed to reply to the leaflet Local 688 had distributed on May 18, 1966, among the warehouse employees, which listed the wage gains the union had obtained for the warehouse employees of two of the Respondent's competitors, Scruggs, Vandervoort & Barney,73 and Sears Roebuck & Company. In pertinent part, the Respondent's handbill, a copy of which is attached as Appendix A, stated: At Scruggs' warehouse the Teamster contract covers a total of 12 men. This is about half the number of jobs that were there when the Teamsters got in some years ago. .... Although Scruggs has opened additional stores, the number of jobs under their warehouse contract has been cut about in half. Scruggs has now sold their warehouse, and they have to vacate the building within the next few weeks. The rest of the handbill is not in issue. Local 688 presented uncontroverted evidence that there were 12 employees employed at Scruggs' warehouse in 1958,'° who were covered by a contract between Scruggs and Local 709, the predecessor of Local 688, and that on May 19, 1966, there were 21 employees. The Respondent, on the other hand, offered no evidence to substantiate the truth of its statements in its handbill concerning the number of warehousemen employed by Scruggs at the specified times. "Actually, Local 688 relied only on the transfers of employees Haskins, Vaught, and Kellermann. The transfer of the last individual was not alleged in the complaint as an unfair labor practice, nor was it litigated. "This company will be referred to as Scruggs, although it has undergone several name changes by successor companies. '4No evidence, however, was available as to how many warehouse employees there were in the unit when another union, Teamsters Local 752, secured its first contract years before 1958. FAMOUS- BARR CO. With respect to the Respondent's assertion that Scruggs had sold its warehouse and had to vacate the building, there is no question that it was true. However, Local 688 urges that the statement was misleading since it implied that Scruggs' warehouse employees would soon lose their jobs. Accordingly, Local 688 produced undisputed testimony that Scruggs had built a new warehouse at another location and that on or about May 19, 1966, was in the process of moving into it. The record discloses that the Respondent's leaflet in question came to Local 688's attention on May 19, 1966, shortly before 8 p.m., when a warehouse employee handed it to Ronald Camache, the union's business representative in charge of the organizational drive. Camache testified that he did not have sufficient opportunity to investigate the truth of this handbill and prepare a responsive leaflet for distribution among the unit employees before the election which was scheduled to be held the next day between 3 to 6 p.m. In Hollywood Ceramics," the Board restated the rule concerning the circumstances under which a misrepresentation of fact in campaign literature would warrant the invalidation of the results of an election, in these words: . an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether deliberate or not, may reasonably be expected to have a significant impact on the election. Applying this test to the facts of this case, I find, contrary to the Respondent's contention, that its handbill, conveying as it did an erroneous picture of Scruggs' employment situation attributable to the union, constituted a substantial misrepresentation which could well have seriously affected the election results. As the circulation of this handbill was timed to deprive Local 688 of an adequate opportunity to prepare an answer for distribution among the voters before the election, I find that the Respondent's conduct exceeded the bounds of fair [awful electioneering and interfered with the free choice of 787 the employees. Accordingly, I recommend that the second election be set aside and a new election be directed at an appropriate time when the effects of the Respondent's unfair labor practices are deemed dissipated. [Recommended Order omitted from publication.] "Hollywood Ceramics Company, Inc, 140 NLRB 221, 224. APPENDIX A To Our Spring Avenue Employees- We have been urging you not to be misled by union promises. The Teamsters Security Bulletin passed out last night shows what we mean Consider the Facts: . The pink sheet doesn't even tell you what jobs it is talking about that are supposed to be paying the rates quoted at other companies. At Scruggs' warehouse the Teamster contract covers a total of 12 men. This is about half the number of jobs that were there when the Teamsters got in some years ago. To say, as this Security Bulletin says, that those people do the "very same work" or that the Scruggs warehouse does the "very same work" as you do is ridiculous. Most of the kind of work we do here is now done at the Scruggs stores, not their warehouse. Although Scruggs has opened additional stores, the number of jobs under their warehouse contract has been cut about in half. Scruggs has now sold their warehouse, and they have to vacate the building within the next few weeks. * * * * * Comparing our operation with Sears Roebuck is equally ridiculous. Our service building operation is altogether different from theirs, which handles such items as plumbing and heating equipment, building materials and very few small packages. * * * * * This Teamster local has many members who receive lower wages than yours. They, of course, don't tell you about those contracts.