American National Stores, Inc.

AMERICAN NATIONAL STORES, INC. 127 American National Stores , Inc. and Retail Store Em- ployees' Union, Local No. 655, affiliated with Retail Clerks International Association , AFL-CIO. Case 14-CA-6136 January 27, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 14, 1971, Trial Examiner Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs, and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only insofar as con- sistent with this Decision. 1. We agree with the Trial Examiner's findings that Respondent violated Section 8(a)(1) of the Act by the statements of Manager Copeland to employees that, should the Union become their representative, Re- spondent would not bargain and would withhold cer- tain commissions theretofore paid. We do not agree with the Trial Examiner's further findings, however, that Respondent did not violate Section 8(a)(1) by the following conduct: (a) Copeland told employee Butler that he had heard that Butler was an instigator of the Union and knew who the others were. The Trial Examiner reasoned that it was reasonable to expect that Copeland's statement was the result of his surmise, processes of reasoning, and commonsense, and did not establish actual surveil- lance. We are not persuaded by this reasoning. As the Trial Examiner found, Copeland's statement was that he had "heard," and thus "knew," the employees who had instigated unionization. We are not here concerned with whether this statement was true, or whether it proved actual surveillance. The significant fact, in our opinion, is whether Copeland's statement had a reason- able tendency to discourage the employees in exercising their statutory rights by creating the impression that he had sources of information about their union activity.' (b) Coupled with these statements was Copeland's further action in yielding to the employees' longstand- ing but previously rejected complaints about not receiv- ' Columbian Carbon Company, 79 NLRB 62, enfd 177 F 2d 1003 (C A 10) ing certain commissions. The record shows that since becoming manager in September 1970, Copeland had been awarding the commissions on management sales usually to the same employee. Complaints were made to Copeland urging that he rotate such commissions among all the employees; but Copeland refused to do so. When the complaints were carried by the employees to the district supervisor, he instructed Copeland to rotate the commissions; but Copeland still refused to do so. About 5 months later, Copeland's complained-of practice caused the employees to begin their organiza- tional activity, and a majority of them signed cards designating the Union to represent them for collective- bargaining purposes. When Copeland learned of this union activity, his response was to call a meeting of the employees. During the course of the meeting, accord- ing to Copeland's own testimony, the employees again complained of his handling of the commissions. Cope- land thereupon agreed with their complaints, and adopted the system they had sought in vain for so long prior to resorting to union activity. Despite Copeland's other antiunion conduct, the Trial Examiner found that Copeland's conduct in finally remedying the employees' complaints about commissions was innocent and lawful, on the ground that what Copeland did was in response to employee requests. The Trial Examiner seems to overlook the fact that Copeland had refused to remedy the com- plaints until his conduct had driven the employees into organizing collectively. We are convinced that the tim- ing of such conduct warrants an inference that it was designed to defuse the employees' union activity, par- ticularly in the absence of evidence of any legitimate economic reason for the timing of the change.2 Accordingly, we find that Respondent violated Sec- tion 8(a)(1) of the Act by giving employees the impres- sion that their union activities were under surveillance, by threatening to withhold commissions from em- ployees, by telling employees that it would not bargain collectively even if the Union were designated by a majority, and by changing the system of awarding com- missions in order to discourage union activity. We fur- ther find that these violations of Section 8(a)(1) are sufficiently extensive, pervasive, and serious, to warrant a broad 8(a)(1) order. 2. The Trial Examiner recommended dismissal of the Section 8(a)(5) allegation, although Respondent was shown to have refused the Union's request to bargain based on a card majority in the appropriate unit.' Spe- cifically, the Trial Examiner found that Respondent ' Mossgrove Mining Co, Inc, 158 NLRB 1325, 1328, Triangle Plastics, Inc, 166 NLRB 768, 775 We find the appropriate unit in this case to be the following unit All retail sales employees at Respondent's Rolla, Missouri, store, ex- cluding office clerical employees, professional employees, guards, and supervisors as defined in the Act 195 NLRB No. 3 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had committed no "serious" unfair labor practices that would interfere with the holding of an election, or re- quire an 8(a)(5) finding or the issuance of a bargaining order based on cards alone. In this case, however, we have found that Respond- ent committed unfair labor practices which, consider- ing the small size of the unit (four employees), were "serious" enough to make a fair election doubtful, if not impossible. Here, employee interest in organization emerged as a result of their dissatisfaction with Re- spondent's position on the distribution of management commissions. After their union interests became mani- fest, Respondent first threatened to eliminate allocation of such commissions if the Union were designated, and then yielded to employee demands by agreeing to an equitable distribution system. This unlawful grant of benefits, under Board remedial policy, need not be re- scinded. Nevertheless, Respondent, by taking this step, rendered academic the very basis for employee organi- zational activity. It is apparent, therefore, that this con- duct falls within that category of unfair labor practices which conventional Board remedies may not ade- quately dissipate so that a fair election can be held with reasonable certainty. We therefore find that the Un- ion's cards provide a more reliable test of the em- ployees' desires in these circumstances. Consequently, we conclude that, in order to protect the statutory rights and interests of the employees, it is essential to find that Respondent's refusal to bargain violated Sec- tion 8(a)(5) and (1). We shall order Respondent, on request, to recognize and bargain with the Union as the statutory representative of its employees for the pur- poses of collective bargaining.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, American Na- tional Stores, Inc., Rolla, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatenting to withhold commissions from its employees if they join or assist Retail Store Employees' Union, Local No. 655, affiliated with Retail Clerks In- N.L.R.B v. Gissel Packing Company, 395 U.S. 575; George A. Angle, d/b/a Kansas Refined Helium Co., 176 NLRB 1031. We find Linden Lum- ber Division, Summer & Co., 190 NLRB No. 116, inapplicable to the facts in this case. While Chairman Miller agrees that a bargaining order is appro- priate herein, he would , for reasons stated in his separate concurrence in United Packing Co. ofJowa, Inc., 187 NLRB No. 132, predicate this remedy solely upon the serious violations of Section 8(a)(1) committed by Respond- ent. In addition, Chairman Miller would not find an 8(a)(1) violation based on the statement by store manager Copeland that "they [the Union] were not going to change the way he runs that store." In Chairman Miller's view this vague statement was not tantamount to an expression by management of a determination not to bargain with the Union , and in no event constituted an interference with employee Section 7 rights ternational Association, AFL-CIO, or any other labor organization. (b) Informing its employees that it would not bargain with the Union even if a majority of the employees designate the Union as their representative for collec- tive bargaining. (c) Creating the impression of surveillance of the union activities of its employees. (d) Changing the commission system or other em- ployee benefits in order to discourage union activity among its employees. (e) Refusing to bargain collectively with the Union as the exclusive representative of its employees in the following appropriate unit: All retail sales employees at the Rolla, Missouri, store, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the Union as the exclusive representative of all employees in the above- described appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its store in Rolla, Missouri, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative, shall be posetd by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive 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. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " AMERICAN NATIONAL STORES , INC. 129 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you with the withhold- ing of commissions if you join or assist Retail Store Employees, Union, Local No. 655, affiliated with Retail Clerks International Association, AFL- CIO. WE WILL NOT inform you that we will not bar- gain if you select the Union to represent you. WE WILL NOT create the impression that we are engaging in surveillance of your union activities. WE WILL NOT change the commission system or other employee benefits in order to discourage union activity among you. WE WILL NOT refuse to bargain collectively with Retail Store Employees , Union, Local No. 655, affiliated with Retail Clerks International As- sociation, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment , and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All retail sales employees of our Rolla, Mis- souri, store, excluding office clerical em- ployees, professional employees , guards, and supervisors as defined in the Act. AMERICAN NATIONAL STORES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101 , Telephone 314-622-4142. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS F. MAHER , Trial Examiner. Upon a charge and an amendment thereto filed on March 5 and April 20, 1971, respectively, by Retail Store Employees' Union, Local No. 655, affiliated with Retail Clerks International Association, AFL-CIO, herein called the Union , against American Na- tional Stores, Inc., Respondent herein, the Regional Director for Region 14 of the National Labor Relations Board , herein called the Board , issued a complaint on behalf of the General Counsel on April 21 , 1971, and an amended complaint on June 11 , 1971, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 , et seq.), herein called the Act. In its duly filed answer and amended answer Respondent, while admitting certain allegations of the complaint , denied the commission of any unfair labor practice . At the trial of the matter the complaint was further amended by the addition of an addi- tional allegation of violation of Section 8(a)(1) of the Act, to which Respondent interposed its oral denial. Pursuant to notice a trial was held before me in Rolla, Missouri, where the parties were present, represented by counsel, afforded full opportunity to be heard, to present evidence and oral argument, cross-examine witnesses, and file briefs. Briefs were filed by General Counsel and the Respond- ent on August 12, 1971. At the same time Respondent filed a motion to correct the transcript of the hearing in certain respects . Upon my inspection of the transcript and noting the errors, and in the absence of objection , I grant the motion and correct the record accordingly. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me , I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE. BUSINESS OF THE RESPONDENT American National Stores, Inc., Respondent herein, is a Missouri corporation with its principal office and place of business located in St. Louis, Missouri . Respondent main- tains a store in Rolla, Missouri (frequently referred to in the record as Biederman's, Respondent former corporate title), and other stores in the States of Missouri and Illinois, where it is engaged in the operation of retail furniture stores. During the year ending December 31, 1970, Respondent, in the course and conduct of its business operations, sold at retail furniture and related items, and derived gross income there- from in excess of $500,000. During the same period Respond- ent purchased and caused to be transported to its stores located in the State of Missouri furniture and related items in excess of $50,000, of which furniture and related items valued in excess of $50,000 were transported and delivered to its Missouri stores directly from points located outside the State of Missouri, or from other enterprises located in the State of Missouri who received such furniture and related items from States other than the State of Missouri. Upon the foregoing admitted facts I conclude and find Respondent to be an employer engaged in interstate com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED It is admitted and I accordingly find Retail Store Em- ployees' Union, Local No. 655, affiliated with Retail Clerks International Association, AFL-CIO, to be a labor organiza- tion within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Facts Union interest among Respondent's sales employees ap- pears to have been generated by sales procedures adopted by Melvin Copeland when he assumed the position and duties of store manager in September 1970. Specifically, for the past 2 or 3 years prior to that time the commissions derived from management sales, i.e., sales made by the store manager, were allocated among the sales personnel of the store by the toss of a coin or by drawing lots among the salesmen. In other stores of Respondent, however, the general practice had been to allocate each management sales commission to the store salesman who was "number one on the up list" at the time the sale was made, the recipient then reverting to the bottom of the list.' Shortly after Copeland became manager he changed the commission allocation system by the simple expedient of giv- ing his commissions to one or other of the two lead salesmen.' This change became an immediate source of aggravation to employee Butler who protested the arrangement to Copeland, to no avail. Indeed when Butler first protested the arrange- ment in October 1970 Copeland told Butler "It was his store and he would run it the way he wanted to." About the same time Butler went to Respondent's ter- ritorial supervisor, Sorroco, and complained to him of the inequities of the commission distribution. Sorroco, according to Butler, thereupon informed Mr. Copeland that manage- ment sales would be given to the number one salesman on the list.' The change was not made, however, until 5 months later. On or about February 1, 1971, employee Butler telephoned the Union's business agent and asked him to either send someone to talk with the employees about joining the Union or tell him how they could join. Butler was sent application form cards. These cards authorizing the Union to represent the employees were distributed among the sales personnel and three were signed and returned to the Union. Those signing the cards were Butler and employees Elouise Garmes and Dennis Hayes. The fourth member of the sales force, Dick Rodgers, did not sign a card. When the Union received the authorization cards it im- mediately sent Respondent a letter dated February 11, 1971, as follows: Mr. Richard Young Biederman National Stores Inc. 1260 Andes Drive St. Louis, Mo. 63132 Dear Mr. Young: February 11, 1971 The system was credibly explained by employee Jack Butler and Store Manager Copeland as a routine whereby sales personnel, in turn, wait at the front of the store to meet customers As each customer is met the salesman crosses his name from the top of the list, places it at the bottom, and is replaced at the door by the next salesman on the list No representation has been made that lead salesmen, who stand in for the manager in his absence, are supervisors within the meaning of the Act Sorroco was not called as a witness by Respondent Copeland was not questioned about the incident By means of this letter as well as by personal contact, we hereby advise you that this union represents the majority of your store employees, employed at the Biederman Store, located in Rolla, Missouri. We earnestly request recognition for collective bargain- ing purposes for all selling employees, excluding the store manager. If you question our majority status, we are prepared to prove same by a card check against your company pay- roll. We request that everything remain status quo in order to avoid any future problems. We earnestly request a conference, at your earliest con- venience, in order to negotiate a contract covering wages, hours, working conditions, and other provisions normally contained in a collective bargaining agreement. May we hear from you. Very truly yours, /s/ Jack Valenti Jack Valenti, Executive Secretary RETAIL STORE EMPLOYEES UNION LOCAL 655 In a reply dated February 16, 1971, the Respondent wrote as follows: February 16, 1971 Mr. Jack Valenti Retail Clerks Local #655 1401 Hampton Avenue St Louis, Mo. 63139 Dear Jack: Referring to your letter of February 11, 1971 requesting recognition of the salesmen at the Biederman store in Rolla, Missouri, we have a good faith doubt that you represent a majority of the salesmen in an appropriate unit, and request that the National Labor Relations Board conduct a secret election. Very truly yours, AMERICAN NATIONAL STORES, INC. /s/ Richard T. Young Richard T. Young Personnel Director RTY/dl cc: National Labor Relations Board - St Louis Office Following this exchange of correspondence Store Manager Copeland and employee Butler engaged in several conversa- tions on February 22 that are significant to the issues pre- sented. Thus Copeland approached Butler in the store and said he had heard that Kay Wilson, the Union's organizer, and Butler "were the instigators in getting the Union into the Biederman store." To which Butler replied that they were not the only ones. Copeland then said he knew that and he also knew who the others were.' Twenty minutes later Copeland resumed the conversation. Copeland mentioned his past friendship with the union or- ganizer, Wilson, but went on to say it did not matter who the union used in its dealings with him, "they were not going to change the way he runs that store." They then argued at length over the practice of allocating management sales to leadmen, Butler contending that the leadmen were already receiving extra compensation for their extra duties. Copeland then said that if the Union came in and succeeded in stopping him from giving the commission to the leadmen "he would put them in House 99," a designation for a "company sale" on which no one received a commission.' Later on the same day, February 22, according to Copeland, a sales meeting was called during the course of which the employees protested the allocation of commissions. Thus he testified that they told The credited testimony of Butler, Copeland did not deny it The foregoing is the credited, undenied testimony of Butler AMERICAN NATIONAL STORES, INC. him they would like to have the commission on his own sales divided on a more systematic basis , suggesting that the man on the "up" position get the sale. Copeland agreed to this request and it was put into effect. Employee Hayes testified that the effective date was March 1, 1971. Shortly thereafter, during the last week of February and several days before Butler was transferred to another store at his own request, Copeland approach Butler and told him he was allocating a management sale to him . In Butler's words: "He told me to go put my name of the ticket and don't say he had never gave me anything." Butler transferred from the store on February 28.6 B. Conclusions The facts here suggest more of a running feud between employee Butler and Store Manager Copeland than interfer- ence, restraint and coercion of employees. Unless, then, they become entangled in the restraints of the Act Store Manager Copeland's favoritism in the distribution of company com- missions and the Respondent's failure to enforce its territorial supervisor's orders, while not to be condoned, are of no con- cern here. When and if, however, they impinge upon the employees' rights that is a different matter. Copeland made three statements which, it is alleged, con- stitute unlawful interference, restraint, and coercion. He told employee Butler that he knew that he had instigated the Union and that he knew who the other employees were. He stated that the Union would not change the way he ran the store, and that should it succeed in preventing management sales commissions being allocated to leadmen the commis- sions would not be given to anyone. I am not persuaded that Copeland's expression of knowl- edge of who among the employees were union members con- stituted surveillance, the impressions of surveillance, or inter- ference of any sort. On February 11 he was told by the Union that it represented a majority of his four employees. It is certainly reasonable to expect that in the period intervening he would be legitimately curious enough to at least surmise who these three people are. Butler had been haggling with him since September over the commissions; Hayes had been reduced from leadman in December; and Rogers had been consistently favored with the management commissions. It is not unreasonable to conclude from this that Copeland knew who was in the Union by the processes of reason and com- monsense, and not surveillance. Such being the case I find no fault in telling Copeland that he knew what the Union had already told him 10 days earlier-that a majority had signed up. Copeland's other two statements are on a different footing. Thus he said that the Union would not change the way he ran the store, and that if it did succeed in changing the manage- ment commissions system no one would get them. Citation of authority is unnecessary to establish that by categorically announcing an intention not to bargain with a Union, which certainly was the import of Copeland's remark, and threatening to withdraw employee benefits if the Union were to persist in the bargaining an employer indulges in classic forms of interference with employee rights prescribed by the Act. I accordingly conclude and find that by threaten- ing to withhold commissions and by stating its determination not to bargain with the Union respecting changes in store operations should the Union become the employees' repre- sentative, Respondent thereby violated Section 8(a)(1) ofthe Act. The foregoing findings are based upon the credited testimony of Butler, and unless stated specifically to the contrary stand undemed. 131 It is also alleged that by Copeland changing the commis- sion system in March and by allocating Butler a substantial management commission on the day before he transferred from the store Respondent implemented a change in the method of commission allocation in order to discourage the employees' union activity. This allegation is completely with- out substance. Store Manager Copeland testified without con- tradiction that at a February 22 sales meeting the employees, being the members of the bargaining unit, protested the allo- cation of management commissions to the leadmen and re- quested a more equitable distribution. A change reflecting this request change was put into effect on March 1, and Butler was given his opportunity to participate in the change im- mediately before he transferred from the store. Had the employees not specifically asked for this substan- tial improvement in their income Respondent's action could well be interpreted as the sort of beneficial grant historically classified as interference with employee union preference. But this change was at the employees' initiative, not Copeland's, and presumably in belated compliance with his own superi- or's orders to make such a change. I fail to see how or why compliance with such a legitimate request made by all the members of a bargaining unit constitutes interference with their statutory rights. Indeed to hold otherwise would be tantamount to concluding that once a union's support had been enlisted the employees have foreclosed themselves, as a group, from asking, as distinct from receiving, any benefit. I do not perceive this to be within the bounds of the Act's proscription and conclude and find that Respondent has not thereby violated Section 8(a)(1). It is alleged that Respondent's refusal to bargain upon the Union's request of February 11 (supra) constitutes a violation of the Act and that its subsequent conduct, described in detail above (supra), tended to undermine the Union, destroy its majority status and impede the election process. Specifically, I am asked to find that two unlawful statements of Copeland resulted in these grave consequences. First, he said that the advent of the Union would not make him change the way he ran the store; and second, that if the Union forced him to change management commission allocation method there would be no commission. The fact of the matter is that he has changed the system, and as a result the commissions now go to the employees and do not revert to the Company. In such a posture it is difficult to assess the statements, however unlawful they may have been made, as impeding the election process. Indeed the eventual determination of the commis- sion issue by Copeland's capitulation in favor of the em- ployees on March 1 suggests that the statements might have affected the election's processes, not in the Respondent's fa- vor, but the Union's. Upon the foregoing considerations, therefore, I conclude and find that Copeland's statements, already found to have unlawfully interfered with Respondent's employees (supra), did not have the effect of undermining the Union or destroy- ing its majority status. Nor did it tend to impede the election process here within the purview of the Supreme Court's crit- eria that "the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election."' (Emphasis supplied) I do not consider these statements to be of the "serious" type anticipated by the Supreme Court. There still remains for consideration an employer's bar- gaining obligation in the absence of interference with the election process where, as here, the employer has not himself petitioned the Board for an election. The Gissel decision left ' NL.R.B. v Gisse! Packing Co, 395 U S 575, 594 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this issue open for the Board's future determination.' The Board, however, has met the issue in Linden Lumber Divi- sion, Summer and Co., 190 NLRB No. 116, where it was stated as "Whether, absent election interference, an employer who insists on an election must initiate the election by his own petition." Earlier, in Derse, Arthur F., President and Wilder Mfg. Co., Inc., 185 NLRB No. 76, the Board found a Section 8(a)(5) violation where the employer had independ- ent knowledge of the union's majority status and there was no effort made to resolve the majority issue through the elec- tion process. Here, however, as in Linden Lumber, there does appear to be independent employer knowledge of the Union's majority status. Indeed Store Manager Copeland's statement of his knowledge of who were the union members (three out of four in the unit) was alleged to be a violation of Section 8(a)(1), and this was proven by credible, undenied evidence (supra). And as in Linden Lumber, there was here the em- ployer's "request that the National Labor Relations Board conduct a secret election" (supra). This offer to resolve the majority status by resort to a Board election distinguishes it from the Wilder case where a violation had been found. The facts, conforming as they do in this area to those in Linden Lumber, permit of no conclusion other than the one reached in Linden: namely, that "Respondent should be found guilty of a volation of Section 8(a)(5) solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election." (Emphasis supplied.) Although Respondent has requested a Board election here, the evidence nonetheless suggests it independently knew of the Union's majority status. All this quite apart from the fact that three of the four employees signed union authorization cards. Under the Board's holding in Linden, as quoted above, however, I will not rely upon these duly signed authorization cards because they, like Respondent's independent knowl- edge, is evidence "other than the results of a Board election." In the absence, therefore, of adequate evidence of the Union's majority status to establish it as bargaining representative of Respondent's employees I must conclude and find that it has not refused to bargain in violation of Section 8(a)(5) when it has not petitioned for a Board election. I recommend that the complaint be dismissed in that respect. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its business operations described in section I, 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 the free flow of commerce. V THE REMEDY It has been found that Respondent has violated the Act in several respects. I will accordingly recommend that an order issue requiring it to cease and desist therefrom. I shall recom- mend the posting of an appropriate notice of compliance with such order as the Board issues. 395 U S 575, 595, Got, fn 18 [Recommended Order omitted from publication.]