The M. O'Neil Co.

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The May Department Stores Company d/b/a The M. O'Neil Company and Retail Clerks International Association, Local 698, AFL-CIO. Cases 8-CA-5832 and 8-RC-7117 June 7, 1974 DECISION, ORDER, AND DIRECTION OF THIRD ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On May 25, 1972, Administrative Law Judge i Thomas A. Ricci issued the attached Decision and, on August 31, 1973, the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a support- ing brief. Subsequently, an answering brief was filed by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decisions in light of the exceptions and briefs2 and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein. The Administrative Law Judge concluded that Arthur Emma, Respondent's president, made a speech to the employees in which he threatened to close the Akron store unless they voted against union representation, thereby violating Section 8(a)(1) of the Act. We do not agree. In reaching his conclusion, the Administrative Law Judge actually credited Emma's numerous denials of having made such a threat, but found, nevertheless, that parts of Emma's speech had intentionally conveyed to employees the impression that such a threat had been made. In our view, the Administra- tive Law Judge erred in his analysis by falling to give proper weight to the entire context of the speech and to the circumstances of the election campaign which preceded it. The M. O'Neil Company operates nine stores in the area in and around Akron, Ohio. The election herein involved the downtowi_ Akron store, the largest in the group and the Company's principal store and headquarters. About 1 year prior to the second election, Arthur Emma was transferred to Akron by the parent May Department Stores i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues Company from a position he had held in Richmond, Virginia, and was appointed O'Neil's president. He proved a very visible and voluble officer, constantly talking to employees and frequently making speeches. He promised the employees he would make things better for them and said that he had plans for resuscitating the declining fortunes of the large downtown store. It appears from the record that most of O'Neil's suburban and outlying stores were in better economic condition. Depending on their work schedule, Respondent's employees heard Emma's speech either 1 or 2 days before the election. Prior thereto, the Petitioner had distributed leaflets containing a cartoon which unflatteringly depicted Emmas as "The `Carpet Bagger' President" from Richmond and accused him of breaking his promise to make things better for employees by spending company funds on new chandeliers, new carpets, store structural alterations, and other refurbishments, instead of on employee benefits. Another Petitioner leaflet featured a car- toon which pictured Emma shearing sheep, accom- panied by the warning, "You know what they're up to, so don't get fleeced!" In his speech, Emma-responding to the allega- tions of the leaflets-stated that the refurbishments and structural alterations had been made for the purposes of attracting more customers to a more appealing store and of reducing losses from pilferage by having a physical layout less conducive to shoplifting; that success in turning the store around would lead to greater job security for employees; and that the continued pendency of the election during the past year had prevented him from doing things directly for employees. At one point, further re- sponding to the leaflets' criticism, he said he would rip out the store's new carpeting and chandeliers if he thought it would result in more money for the employees. He also explained that because of inner city problems downtown stores everywhere were in decline, and that the program he had implemented was intended to entice new customers and, thereby, indirectly benefit the employees. At the close of his speech-which lasted approximately one-half hour- -Emma stated as follows: I am a builder. I work with people. If the people will not work with me I cannot build. It is the only way I know how. I cannot work with bickering, dissension, division, hostility. Every- thing I try to do sabotaged-people sticking knives in my back. If I can't work at the difficult and positions of the parties Respondent's motion, requesting the Board to disregard the Charging Party's cross-exceptions, is hereby denied as lacking in merit 211 NLRB No. 14 THE M. O'NEIL COMPANY 151 job of turning this downtown store around, I just have to abandon it. I have to work in the branches. I have to work with people who are interested in seeing us get ahead rather than working with people who are trying to destroy. You have to tell me how you feel. This is your life. You see what has happened at Polsky's.3 You have watched it, observed it. Vote No, Retail Clerks. Vote No. Thank you. In concluding that Emma, in effect, threatened to close the store if the Union was successful, the Administrative Law Judge relied on his interpreta- tion of the statements Emma concededly made and on the testimony of five of the General Counsel's witnesses respecting their impressions of the speech. We give little weight to the accounts of those witnesses for the following reasons: (1) the Adminis- trative Law Judge indicated that, in evaluating testimony, he was inclined to rely less on his observation of witness demeanor than he was on his own view of "related objective factors and the logical probability of events"; (2) only two of those witnesses testified that Emma said-or, in one case, implied-that he would close the store if the Union was voted in and both witnesses failed to make similar allegations in affidavits they gave to Board agents shortly after the election, some 2 years prior to their testimony at the hearing; (3) the other three witnesses remembered little more than Emma's remark about concentrating on the branch stores and did not assert that Emma had conditioned his future actions on the Union's success in the election; (4) the Administrative Law Judge failed to cite the testimo- ny of three other General Counsel witnesses-all credited by him relative to other unfair labor practice allegations-to the effect that they had heard Emma's speech, but could recall no threats having been made at all; and (5) considering the fact that over 1,000 employees heard the speech, the testimony confirming Emma's alleged threats appears minimal. We conclude from the above that the Administra- tive Law Judge, rather than reaching his conclusions on the basis of testimony from credited witnesses, made his ownjudgment as to the meaning of Emmas' speech and then cited the testimony of those witnesses who appeared to support his view.4 In our view, the disputed part of Emma's speech 3 It appears from the record that Polsky's was a department store located across the street from O'Neil's that had previously been organized by the Retail Clerks At the time of Emma's speech, Polsky's was apparently having economic difficulties caused, at least in part, by a truckdriver's strike. 4 We note that employee Robinson's rather vague testimony concerning Emma's speech was cited by the Administrative Law Judge, without comment on, or explanation for, the fact that this same witness was specifically discredited when he testified regarding other alleged unfair labor practices did not constitute a threat to close the store before allowing the employees to bargain collectively, but, rather, was a reaction to, and an emotional protest against, the Union's personal attack on himself and on his implementation of plans to revive the store, and could reasonably be understood as such by the employees.5 While some of Emma's remarks certainly indicate that without a union his efforts on behalf of the downtown store would continue unabated, we see nothing in the speech which threatened that unioni- zation and improvement in the economic position of the store were incompatible. Rather, Emma was asserting that if the attacks against his efforts and methods for rebuilding the store-as exemplified by the Union's campaign literature-continued, he might abandon those efforts and concentrate on the branch stores. C. E. Glass, Division of Combustion Engineering, Inc., 189 NLRB 496. If that be con- strued as a threat, it was not a threat to retaliate against the employees' desire for union representa- tion, but a threat to retaliate against anticipated hostility toward the store-improvement program-an expected hostility based on past expenence.6 Accordingly, we do not adopt the Administrative Law Judge's finding that Emma's speech violated Section 8(a)(1) of the Act. 2. We find, in agreement with the Administrative Law Judge, that Respondent violated Section 8(a)(1) of the Act by the following conduct of its supervi- sors: (1) telling 1 employee, on one occasion, that if the Union won the election the store would probably close and, on another, that packing machines might be brought in to replace certain employees; (2) telling 10 to 15 employees that they should form a company union instead of supporting the Petitioner; (3) telling I employee that a union contract would require a health examination that he could not pass; (4) telling a total of 10 to 13 employees that certain specified benefits and privileges would be lost if the Union was successful; and (5) interrogating approximately 20 employees as to their union sympathies or, in a few cases, as to the sympathies of others. 3. The Administrative Law Judge, apparently relying solely on his finding with respect to Emma's speech, concluded that the unfair labor practices found herein were of such an extent and nature as to require that Respondent be ordered to bargain with 5 See Mike Velys, Sr. et at, d/b/a R & M Electric Supply Co, 200 NLRB No 59 6 Cf The Hiatt Shoe Company Blue Star Shoes, Inc, 195 NLRB 554 We note that, in setting forth his rationale, the Administrative Law Judge states "it ]here is no evidence of hostility by anyone, except it be the determination to bring a union into the store against the Respondent's desire " Were that the case here, our finding on this issue might be otherwise However, in fact, the Union had demonstrated hostility toward Respondent on the very issue Emma was discussing-namely, the steps being taken to improve the downtown store's image 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union. He also concluded that Respondent had unlawfully refused to bargain in violation of Section 8(a)(5) of the Act. In view of our finding that Emma's speech was not unlawful, we conclude that the remaining violations, set forth supra, are not so coercive that they preclude the holding of a fair and reliable third election after application of traditional remedies.? In so conclud- ing, we have taken into consideration the small percentage of employees directly affected and the fact that the conduct was committed by first-line supervisors who appear to lack authority to carry out severe threats. Moreover, the instances of interroga- tion were rather limited, usually being confined to a single question and, in some instances, those ques- tions appear to have been largely rhetorical in nature. Stoutco, Inc., 180 NLRB 178. Wholly apart from the efficacy of traditional remedies herein, we note that whatever "lingering effect" the Respondent's unfair labor practices may have had has, in part at least, likely been dissipated by the very considerable lapse of time here, which time lapse also casts some doubt on the card signatures as evidence of majority status.8 We note, in this connection, that the record is at best unclear as to what proportion of the cards may have been stale, a factor which further militates against finding a bargaining order to be an appropriate remedy in the circumstances of this case. However, since we have concluded that the facts in this case do not warrant the issuance of a bargaining order, we need not pass upon the disputed question of the Union's majority status as of the date recognition was requested. 4. The Petitioner's objections to the election encompass the subject matter of the violations found herein and, accordingly, we agree with the Adminis- trative Law Judge that those unfair labor practices interfered with the employees' free choice in the election. Therefore, we shall direct that the second election be set aside and that the Regional Director shall hold a third election to determine the question of representation at a time when he deems that a fair election can be held. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, 7 Accordingly, we do not adopt the Administrative Law Judge's finding that Respondent violated Sec . 8(a)(5), without implying that we would have so found had we concluded that a bargaining order was justified. 8 Member Kennedy would find that this considerable time lapse-none of which is attributable to Respondent-was largely the product of the Board's Decision and Direction of Second Election (181 NLRB 710), wherein, in his view, the Board unwisely revised the applicable eligibility The May Department Stores Company d/b/a The M. O'Neil Company, Akron, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Advising employees to form a company union in place of the Retail Clerks Union, telling employees that a vote for the Union would endanger their jobs with the Respondent, telling employees that the Company would replace them with machines if a union should become their bargaining agent, telling employees they will lose diversified benefits and privileges if they chose to be represented by a union, or coercively interrogating its employees concerning their union sentiments. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Retail Clerks Interna- tional Association, Local 698, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its downtown store in Akron, Ohio, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's authorized representative, 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. (b) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found be, and they hereby are, dismissed. IT IS FURTHER ORDERED that the election held on April 16, 1970, in Case 8-RC-7117 be, and it hereby rules after the first election had been held . See Member Kennedy's partial dissent in C. W. Post Center of Long Island University, 198 NLRB No. 79. 9 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." THE M. O'NEIL COMPANY 153 is, set aside, and that Case 8-RC-')117 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a new election. [Direction of Third Election and Excelsior footnote omitted from publication.] Board's Office, Suite 1695, Anthony J. Celebrezze Federal Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715. TRIAL EXAMINER'S DECISION APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the Federal Law by refusing to bargain with Retail Clerks International Association, Local 698, AFL-CIO: WE WILL NOT advise our employees to form a company union in place of any other labor organization. WE WILL NOT tell our employees that a vote in favor of a union will endanger their jobs. WE WILL NOT tell our employees that we will replace them with machines if they vote in favor of any union. WE WILL NOT tell our employees they will lose diversified benefits and privileges if they vote for any union. WE WILL NOT coercively interrogate our em- ployees concerning their attitudes towards any union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist Retail Clerks International Association, Local 698, AFL-CIO, or any other labor organization, and to engage in other concerted activities • for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. THE MAY DEPARTMENT STORES COMPANY D/B/A THE M. O'NEIL COMPANY (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 compli- ance with its provisions may be directed to the STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: This is a consolidated p oceeding joining for single hearing a complaint case, se 8-CA-5832, and a representation proceeding, Case 8-RC-7117. On the basis of a charge filed April 22, 1970, by Retail Clerks International Association, AFL-CIO, Local No. 698, herein called the Union, the General Counsel on December 17, 1971, issued a complaint against the May Department Stores Company d/b/a The M. O'Neil Company,herein called the Respondent or the company, alleging violations of Section 8(a)(1), (3), and (5) of the Act. In the representation case an election was held on April 16, 1970, and the Union, which lost, filed objections to conduct affecting the results of the election. The Regional Director investigated the objections and on January 11, 1972, issued his Report on Objections in which he directed a hearing on certain enumerated objections. A hearing on the complaint and the objections was held before the duly designated Trial Examiner on March 6, 7, and 8, and on April 4 and 5, 1972, at Akron, Ohio. On April 5, pursuant to agreement of all parties, the hearing was adjourned indefinitely pending ruling by the Trial Examiner on a motion by the Respondent to dismiss a major allegation of the complaint. Briefs were thereafter filed by all three parties. Upon the entire record, and from my observation of the witnesses, I make the following: I FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York State corporation, with its principal office and place of business in St. Louis, Missouri, is engaged in retail sales of general merchandise. Through an operating division called The M. O'Neil Company, it operates department stores in the vicinity of Akron, Ohio, including the downtown Akron store, the only location involved in this proceeding. The Respondent annually sells products valued in excess of $1 million and receives goods valued in excess of $50,000 in the State of Ohio directly from out-of-state sources. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 An unopposed motion by the General Counsel to correct a single typographical error in the transcript is hereby granted 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues Presented and Procedural Status This is essentially a refusal-to-bargain case, and the central question to be decided is whether the Respondent must be ordered to bargain with the Union as exclusive representative of its approximately 1,360 nonsupervisory employees. Pursuant to Board decision a first election was held among these employees on May 22, 1969.2 For reasons unrelated to any allegation of improper conduct by any of the parties, the Board set the results of that election aside and on March 17, 1970, issued a second direction of election in the same representation proceeding.3 The second election was held on April 16, 1970; the final tally of ballots showed 560 votes in favor of, and 624 against, the Union, with challenges insufficient to affect the results. As stated, the Union filed objections to the election and a charge alleging unlawful refusal to bargain. The complaint alleges that in the period between issuance of the Board's second direction of election and the balloting 30 days later, management representatives committed a number of violations of Section 8(a)(1) of the Act in the form of illegal statements which of necessity tended to restrain and coerce the employees in their freedom of choice in the matter. There is also an allegation of violation of Section 8(a)(3), unlawful discrimination in employment against one employee. With a single exception the complaint allegations of wrongdoing restate the substance of the interference misconduct charged to the Company in the Union's objections. On the basis of these alleged unfair labor practices violating Section 8(a)(1) and (3), the complaint charges that the Respondent's asserted refusal to bargain on request must be viewed as also unlawful under Section 8(a)(5), and to require an affirma- tive order to bargain as a proper remedy. And it is also alleged that at the time of the demand and refusal, said to have occurred on April 13, 1970, the Union in fact represented a majority of the employees in an appropriate bargaining unit, as evidenced by properly executed written authorization cards. By the close of the third day of hearing, on March 8, the General Counsel and the Union, having called 24 witness- es, had completed their case-in-chief, insofar as it em- braced all allegations and objections, with the sole exception of the question of demand and refusal, appropri- ate unit, and majority status. At this point, by agreement of all parties, it was deemed expedient that the Respondent should proceed to offer its defense case with respect to all allegations, and objections, involving issues falling within the direct ambit of Section 8(a)(1) and (3). The Respondent denies that any unfair labor practices were committed. It also argues, however, that even assuming certain violations of Section 8(a)(l) and (3) may be found, they cannot be of such an extent and nature as to justify an affirmative bargaining order, even assuming the General Counsel can prove demand and refusal and majority status in an appropriate unit. There was reason for the parties' agreed- upon novel procedural plan. Resolution of the majority status issue in this case, involving so large a number of employees, will give rise to very extended and costly litigation. Should the violations of Section 8(a)(1) and (3), if any, adequately proved after full litigation of those issues, not warrant an unlawful refusal to bargain finding under the rule ennunciated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the question of majority status is mooted. Accordingly, on April 4 and 5 the Respondent proceeded to introduce its defense pro tanto -fully responding to the Government's evidence thus far given, and the Union's proof in support of its objections. It then moved for dismissal of the complaint allegation of violation of Section 8(a)(5). The hearing was then adjourned, pending decision by the Trial Examiner on all issues thus far litigated and ruling on the critical motion. It is the desire of all parties that the merits of the Respondent's motion be considered by both the Trial Examiner and the Board before they are called upon to litigate the question of the authorization cards. B. Overall Picture Appraisal of the testimony in this record requires preliminary statement of certain realities pertinent to the correct decision. The Union campaigned hard to win the election; the Company was no less determined to persuade the employees to vote otherwise. As soon as the Board's direction of second election was received by the Company, about March 17, it held meetings of supervisors and distributed to all of them certain instructions. These consisted of a list of "do's and don'ts" and detailed statements of the economic benefits at the moment enjoyed by the bargaining unit employees compared to provisions found in union (Retail Clerks) contracts at Kaufman's Department Store in Pittsburgh, and at Click Discount Store, and two contracts with other unions covering the Respondent's own employees in its bakery department and its delivery and maintenance mechanics group. The supervisors, of whom there are about 150 in this store, were urged to use this material in their discussion of the pros and cons of unionism with the employees. It is a normal practice for departmental supervisors-ar- ea managers, buyers, and assistant buyers-to hold Saturday morning meetings with their respective employ- ees before the store opens for business, where they ordinarily discuss matters relating to the work to be performed. During the last several weeks before the April 16 election, the supervisors utilized these meetings on many occasions to project the Company's views about the disadvantages of collective bargaining, with frequent references to the material they had been furnished for this purpose. During this same period-again the month preceding the election-the Company arranged for the employees, in groups of 25 or 30, to tour the store, if they chose to accept the invitation, on paid time. The announced purpose was to interest them in physical improvements that had been made and the prospects of better working conditions. 2 175 NLRB 514. 3 181 NLRB 710. THE M. O'NEIL COMPANY 155 About 25 such tours were held, each ending in a conference room with coffee and cake and Arthur Emma, the company president, making a speech. The subject of the imminent election frequently arose and again the supervisors took the opportunity to suggest things go better without a union. It is a fair inference, which I make, that the Respondent planned the tours at this particular time for the purpose of influencing the outcome of the election. During the 30 minutes before the store opened on April 15, the day before the election, Emma spoke to virtually all the dayshift employees-variously estimated as between 800 and 1,000-in a speech intended as the final pitch for votes in favor of the Company, as the president said. He gave the same talk at about 5 p.m. the day before to a smaller group, 200 or more, the employees who were not scheduled to be in the store the next morning. Emma pulled no punches; anybody who was not "with" the Company was a "saboteur," a "snake in the grass." Turning to the Union's tactics, there is another signifi- cant fact. The Company has long had a no-solicitation rule, posted, publicized, and well known by the employees. In any large department store, with a great number of employees no doubt widely dispersed when at home, such a rule hampers attempts at self-organization, "interferes" with the union's campaign. In this instance the Union's organizers, full time, paid residents of Akron and out-of- towners, had no intention of abiding by the rule and violated it at every turn. Seven of them were identified in the record by name-Bittinger, Chrisman, Hennigen, Silvester, Dryer, Finley, and Fuchs, and two-Bittinger and Hennigen-even testified about their professional activities inside the store. Kostewics, the store security director, said he knew of 20 or 30 organizers, but the real total probably was somewhere between 7 and 20 or 30. All of them wandered about the store at will, singly and in pairs, all over the main floor, upstairs in the departments, up and down the stairs and elevators. They talked to the people who were at work. All this began in 1968, when the Union first started obtaining signatures to authorization cards; the store detectives then picked the organizers up bodily and literally threw them out the doors; they went out screaming "at the top of their voices." The Union filed unfair labor practice charges against the Company for this, but they were dismissed. With time the Company "backed off" from this approach because it "is not good business practice." Instead it had its security men and women follow the organizers closely through the store, one on one or four on four, stand close by when they talked to employees, sit next to them in the public restaurants of the store, "surround" them in groups, even blow cigarette smoke in their direction as an inconvenience. The object was to "inhibit" their activities "psychologically." The employees saw all this happen, and it continued right up to the day of the election. There are, of course, in this case no charges of misconduct against the union agents. But it is a fact that whenever an organizer talks to an employee while he or she is at work, in the public areas of the department store, of necessity the employee is also engaged in conversation with the union solicitor. The employee is no less violating the no-solicitation rule than is the outsider. No doubt many employees ignored the interlopers, but there was much evidence of others who did not. The idea, again and again repeated by the union witnesses, that they just passed by to say "hello," "how are you," "how's the kid," is entirely unpersuasive. I cannot believe that these people, hired expressly to persuade the employees to vote in favor of the Union, on their paid time, in the very store where they were supposed to discharge their direct responsibilities, did anything but literally engage in organizational activities. C. Violations of Section 8(a)(1) The unfair labor practices charged to the Respondent, said to have coerced and restrained the employees in violation of Section 8(a)(1) of the Act, fall essentially into two categories-interrogation and threats of reprisal. The principal spokesman in the widespread campaign to insure the defeat of the Union at the election was President Emma himself. He took pains to stress at the hearing that he talked often and extensively. He talked to all of the end- of-tour gatherings when 25 or 30 employees at a time listened, and then wrapped up the campaign the last 2 days, to all the group on final sessions. A great many supervisors helped carry the message, whatever it was. They spoke to smaller gatherings, usually the Saturday morning meetings in their departments, and with much greater frequency to individual employees on the selling floors. The tone of the talks, of course, was set by Emma, for his is the dominant voice of the Company. The testimony generally is not always clear as to which particular meeting or conversation was involved, and the details given by the many witnesses were very minute and diversified. It is therefore not possible, coherently and intelligibly, to make pinpointed credibility resolutions of every jot and title of disagreement, or to rely too greatly upon the demeanor of witnesses who spoke of many incidents involving many different persons. Rather, a fairer approach in deciding what really happened is to rely at least as much upon related objective factors and the logical probability of events. Fif teen of the twenty three witnesses called !by the General Counsel' offered what they remembered of Emma's talks, at one meeting or at another. As he was the principal company spokesman, the case will be best evaluated if his activities be considered first.4 The employees were often imprecise in their recollections, sometimes paraphrased what they had heard, indeed on occasion stated their impression instead of quoting other people verbatim. But Emma is an experienced management representative, very intelligent and extremely articulate. He was calm and collected at the hearing and he knew exactly what he was doing as a witness. What ambiguity there is in his testimony results from the fact he mixed the reasons for his talks with what he told the employees. ". . . the major problem was our downtown store. Obviously, central cities have been having 4 From Emma's testimony: "I practically never stopped talking and to everybody in the store that I am used to being on the selling floor and to never stopped giving speeches. I think it is part of my style of management. being through the entire store, and I think everybody knows me and I know I continued to talk to everybody in the store on a regular basis. It is obvious most of the people in the store." 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD problems. The customers who use to go downtown were going to suburbs because of parking problems and all sorts of reasons." "... in the downtowns we had all kinds of problems such as pilferage and so forth." Were these the words he used to the employees? If his total story is to be viewed as an entity, it must be so read. In any event, in the appraisal of an employer's speeches intended to obtain "no" votes, the legality of his appeal does not turn upon the exact words he uses but upon the substantive import of the message he conveys, considering the total circum- stances of the moment. What Emma really said, particular- ly during the last two talks, each lasting 20 minutes or more, on the last 2 days before the election, are best understood if his own explanation be considered now. A year earlier Emma had publicized his intent to make things better for the employees in terms of employment, and during the period between the first election, in May 1969, and the second, in 1970, in his effort to increase the volume of business in the downtown store he had embellished the physical property by adding fancy rugs and decorative chandeliers. In its own campaign literature during March and April the Union called him to task for failing to advance the direct interests of the employees, as he had promised, and for improving the store, at great expense, while ignoring the take-home pay of the working staff. Among other things, Emma defended himself against this criticism. If he had done nothing directly favorable to the employees, he explained, it was the fault of the Union, and the Board, because they kept the question concerning representation alive and unresolved, until March, when the Board directed the second election. Any increase in pay or other concessions during this period would have resulted in unfair labor practice charges against the Respondent. On this subject Emma was not wrong. I believe he said this. But the principal burden of the employee witnesses' testimony is that Emma also said the Respondent would close the store altogether if it had to deal with a Union, that it would abandon the downtown store and turn it into a warehouse. The M. O'Neil Company also owns and operates suburban stores in the outskirts of Akron, and, still according to the employees, Emma threatened that he would transfer his activities to the outlying stores in preference to having anything to do with the Union. In his version, as given at the hearing, Emma said all of this was no more than a concern with declining business and an intent to inspire the employees to greater effort in order to increase the volume of sales. He started by relating how he explained to the employees the inner city problems generally, how downtown stores everywhere were in decline, and how his new c indeliers and rugs were intended to entice new customers and indirectly improve the lot of the employees as well. "Q: ... Did you mention this [chandeliers and carpets] in your talk? A: I certainly did. I talked on it at great length. This to me typified the whole frustration of the campaign. Here was a downtown store losing sales to brand new surburban stores that customers were shopping in because they were fresh and new." Emma said he wanted to enlist the cooperation of the employees, and to put an end to what he called a lack of enthusiasm on the part of some. In the process he said there were "saboteurs" in the crowd, "snakes in the grass," people who "knifed him in the back." In response to a leading question by his lawyer, Emma said at the hearing that he did not relate these concepts to unionism. He also said: "My purpose that morning was to get the people to vote against this Union." And to make his message clear he referred, during his talks, to the material set out in the pamphlets the Union had distributed. Emma took issue with the employees who said they heard him utter the words "close the store" or "abandon the store" or "turn it into a warehouse." He denied having spoken these precise words. I believe him. He would hardly be that blunt. But a very revealing portion of his testimony is his explanation of the word "abandon," which he said he did use. He said what he meant was he would abandon his "strategy." "... I said if we couldn't work together, if everybody didn't work, I would have to abandon my strategy . . . if we can't make this succeed, and I don't know whether I said downtown store succeed or not as I am really not absolutely certain, but I did say that, if we can't work together, I will abandon it." Artfully, but clearly enough, he kept stressing the fact something was dividing the employees, or separating the employees from the store. "I made very strong adherences to team play . .. and I made reference time and time again to the fact that we had to stay united and work together to get a job done." "Q: Do you recall either at this meeting or any other meeting using the term `snakes in the grass'? A: I don't recall at this meeting, I might have. I certainly at times, I imagine, could have used the expression because I think you have to understand this. I was working very hard to be a leader with the group. There were those in the community, there were executives in the store, there were all kinds of people who obviously had other objectives than mine, and I don't think `snake in the grass' is necessarily the most descriptive term . . . there were those who didn't agree with me and certainly my competitors across the street and the discount stores .... ' "There were all kinds of people working against us. Not everybody had the interest of O'Neil's. Frankly, saboteurs was the one way to describe it." There can be no doubt that Emma was by all this telling the employees the store would be closed, the suburban stores would be developed in its place, and "jobs and the security" would be lost, if they voted for the Union. Alt this talk about saboteurs and snakes in the grass hardly fits a rational appeal to employees to be more cooperative in discharging their duties. Given the timing of the events, one could not believe Emma even had he denied his purpose was purely to influence the outcome of the election. He was not talking to executives, he was not talking to competitors or to the store across the street. These were the employees who were to vote in the union election the next day, and what he wanted was for them to vote his way, and not as they might themselves desire. I find that the company president threatened to close the store unless the employees voted against union representa- tion and thereby restrained and coerced them in violation of Section 8(a)(1). This was no isolated instance of a threat voiced to a single employee among many. He was talking to all of them. During his last two speeches especially, standing up on the mezzanine of the main floor, with a THE M. O'NEIL COMPANY 157 microphone in front of him, he had over 800 persons listening. The May Department Stores Company is a very large one; it does have surburban stores near Akron, the ones to which Emma said the business would be trans- ferred. It was no idle threat and the employees had reason to take it seriously. It is a euphemism to say, as does the Respondent's brief, that he was talking about business and work performance only, and not about the Union at all. There is no evidence of hostility by anyone, except it be the determination to bring a union into the store against the Respondent's desire. On cross-examination, he was asked had he said : "I cannot work with bickering, dissension, division, hostility. Everything I tried to do sabotaged -people sticking knives in my back. If I can't work at a difficult job of turning this downtown store around, I just have to abandon it." Emma answered : "To abandon, yes, I said that. I think that was what I said." He admitted saying: "I have to work in the branches. I have to work with people who are interested in seeing us get ahead rather than working with people who are trying to destroy." Towards the end of each speech came this: "A house divided against itself cannot stand . Now, please, please, make no mistake. This is your decision when you go into the booth. You vote your own vote, and you vote after you think and work it through. That is all I ask." 5 Some of the employees testified he actually said he would close the store. Employee Rich: "And he said if a union did come in the store that the store would close." Employee Edwards: "And he did say that he would close the store." Employee Bittner : "He said he thought we didn't need the union affairs, and if the union came into the store, he would have to close down the main store and put his time into the branch stores." Other employee witnesses said they did not hear Emma actually say the store would "close." Among these were Hatfield, Ossman, Melnick and Arnette. Two others first said they did hear the exact words, and then conceded they may have been wrong. These were Robinson and Roemer. But in the light of Emma's own recital at the hearing, I take the testimony of the following witnesses as the most reliable of all. Their recollection failed in precision, they vacillated in the repetition, and some even admitted their memory may be faulty. But what does appear is that they were mouthing-whatever the words they used-the substance of the idea Emma had intended to implant in their minds. Thus Johnson testified: "He said that since we didn't want him to help us, that he would just have to concentrate on the branch stores."6 Brathurst: "There was one thing that is vaguely familiar to me, he made a remark that he would hate to have to run his office from the branch stores." Robinson: "I don't know his exact words, Sir. He said something about leaving or closing the downtown stores and going to work with the branches." Stricklen: ". . . he says if the union gets in here, he says he can tear up those pretty new carpets and take those chandeliers down. In other words, we can close this store and concentrate on the branch stores." Catrufo: ". . . he said that we would have to-if we voted for the union, he would have to forget about the downtown store and concentrate on the branch stores and the downtown store would be turned into a warehouse and there wouldn't be any jobs in the downtown store." These last witnesses were the more reliable; Emma's words were complex, his way was devious and indirect, but his message was clear. What the witnesses remembered was the threat that had been made, and therefore candidly said so. I credit them. D. Unfair Labor Practices by Other Supervisors As stated above, the alleged coercive conduct falls into two categories-interrogation and threats. The threats will be considered first. Russell Weyrauch is packing and wrapping supervisor. Evelyn Kennedy testified Weyrauch engaged her in conversation about the Union a great many times before the election, compared working conditions with those at the Kaufman store in Pittsburgh, spoke of collective bargaining, even said he would quit if the Union, prevailed. Kennedy added the supervisor said he would bring in improved packaging machines, use only two people in the department, and let go sick people and retirees because the Company could not afford to pay so many persons with a union. Kennedy added Weyrauch also said, in the presence of 10 or 15 employees, "why we didn't start our own Union, our own Company union." And finally, still in Kennedy's testimony about Weyrauch, she quoted the supervisor as "He made a statement several times that if the Union won the election that they would probably close the store down." Franklin Brathurst suffers from a physical ailment and had to undergo a medical examination, which he passed, to retain his job. He testified he was twice told, by Supervisor Menendez 2 weeks before the election and by Weyrauch 2 weeks after it, that his position would be endangered if there were a union. He quoted both supervisors as saying: "You are a good guy and a good worker and I would hate to see you thrown out in the street due to the Union activity." While Kennedy spoke of many conversations he was not quite clear as to where and when each of the particular intimidating statements were made. In his defense testimo- 5 Apparently someone had made notes of the president's speech, for in his cross-examination the General Counsel seemed to be asking Emma to agree that he had made statements that were being read from a document. At the end of the questioning came this: Q: "You have to tell me how you feel"-you said that? A: Absolutely. Q: "This is your life"-you said that? A: I would think so, yes. Q: "You see what has happened in Polskys. (The Retail Clerks had recently won an election and been certified at Polsky's Department Store across the street from the Respondent .] You have watched it, observed it. Vote No, Retail Clerks. Vote No. Thank you." You said that? A: It sounds right. 6 At another point in her testimony Johnson said that at one meeting, while Emma was making a speech , he looked at her hard and said "there are some snakes in the grass at this meeting." Emma said he might have used the phrase "snake in the grass" at this meeting , but explained Johnson was being disruptive of the assemblage . He added` there were people obviously not with me," and that Johnson "is an example certainly . She made no mystery of the fact that she was not with me ." There is neither evidence nor claim that Johnson was in any way deficient in her work performance or otherwise disrespectful toward management , except of course it be her prounion activity. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ny Weyrauch, also, referred to many conversations with Kennedy and with other employees who had been called before him. He too was not very specific as to which particular incidents he was denying or explaining away. The end result is that clarifying findings must consider a broader picture than isolated details . The supervisor started by admitting he often discussed pros and cons about the Union with employees, but he denied ever telling anyone the store would be "closed," or that the employees should form their own union , or that anyone would be fired because of improved machinery. The pinpointed credibility question here--did Weyrauch threaten Kennedy with plant closure-is raised a number of times throughout the record in one form or another with respect to other employees also. When the question is clearcut, one witness giving the other the lie, it would be unrealistic to say that demeanor alone serves adequately to resolve the issue. A pervasive and very meaningful fact, pertinent throughout this record wherever the question appears, is that the president himself used essentially that very approach, fear of loss of employment, in his widespread appeal for no votes . He talked all over the store. It is a reasonable likelihood that the lower supervi- sors took their cue from him. I believe Kennedy, and find Weyrauch, did tell her that the store would be closed, again in violation of Section 8(a)(l) of the Act. In this instance there was more to support the credibility resolution against Weyrauch. Did he suggest the employees form their own company union? In defense he testified he suggested to the employees "if they had any difficulty, they could come in ones, twos, or threes and that my door was always open ...." But this invitation, an integral part of his urging that it was a mistake to be represented by the Retail Clerks Union, makes Kennedy's version of the talk much more credible. There was still another factor. In comparing industrial life with and without a union, other supervisors told the employees their old freedom to approach management as individuals would be lost, and they would have to pursue their interest through the Union only. The Board has held such warnings to be violative of Section 8(a)(1). Henry I. Siegel Co., Inc., 172 NLRB 825; Jacob Wiesel d/b/a Saticoy Meat Packing Co., 182 NLRB 713. The implied suggestion that other supervisors were making is that the employees would be better advised to come to the Company in some form of grouping other than an outside union . This, too, adds credence to Kennedy's testimony that Weyrauch came right out with the idea the employees should form a company union. Therefore, I find he did suggest to the 12 or 15 employees assembled that they should form a union apart from the Retail Clerks, and thereby again committed a violation of Section 8(axl). As to the idea he might release Kennedy, or others, by using new packaging machinery, Weyrauch denied any such statements . He said all he did was tell Kennedy he, Weyrauch, was considering a "poly-type machine that would program 900 packages a day," and that he "might look into" it, but he decided against using it in the end. I decide this issue against him also, in part because the total story about him shows he was determined to go too far in his efforts to dissuade the employees. A recurring tech- nique revealed by the record was for the supervisors to speak of how conditions under union contracts were inferior to the benefits then enjoyed by the workmen in this store. They used, as basis for their talks, the agreements in force between the Retail Clerks Union and The Kaufman store in Pittsburgh, also owned by May Department Stores, and a certain Glick Discount Store . They also spoke about, but did not show the employees , union contracts generally. And in the comparison they deliberately created the impression that a vote for this Union would subject these employees to all the disadvantageous clauses in any other union contract. An example of this technique is seen in Brathurst's story of being told his physical condition could cause him to lose his job "due to the union activities." Weyrauch said he recalled no such talk, but Menendez, whom Brathurst also so quoted, explained all he was doing that day was comparing company conditions here with contracts elsewhere which "sometimes" require physical examination "on a yearly basis." There is something deeply insidious in selecting isolated disadvantageous provisions in diversified contracts of other unions and deliberately creating the impression these are all the Respondent's employees can expect. There is an element of untruth in this, both because it contains unwarranted speculation as to how this Union may bargain, and because the asserted union contract provisions may bear no relationship to this store. Compare, N.LR.B. v. Bill's InstitutionalCommissary, 418 F.2d 405 (C.A. 5, 1969). I find that, in telling Brathurst a vote for the Union would endanger his job, Weyrauch and Menendez illegally coerced him in violation of Section 8(a)(1) of the Act. I also find, in the total circumstances, that Weyrauch did tell Kennedy there was danger that the Company would replace employees with machines if the Union won the election, still another violation of the statute. Brathurst had something else to say about Menendez. He testified that in one of the conversations which Menendez had invited to discuss unionism generally, the supervisor told a university student named George Anderson that whereas now he was given "a half hour or so off to get a book . . . If you had a Union contract, you would have to ring out and ring in . . . the time clock would rule your life." Another employee , Hazel Perri, testified Menendez once called her with eight or nine other employees into his office to give them his thoughts about the Union ". . . for us to think before we voted." She quoted him as saying, among other things : "... if the Union got in, we would have our discount taken away from us and we wouldn't, like if you have a hair appointment or doctor's appoint- ment, that some of them leaves early, that will be taken away. Your stock benefits will be taken away, your stock, and if you had any personal problems , you could not come and talk to him, that you would have to go to the Union and have them come and talk with him." Menendez denied saying any discount or benefits would be withdrawn. As to the schoolboy privileges, his testimony is he told the boy that as things were "the work time can be flexible. A person can work around a class or so, and, in some contracts, there is a specific time stated-the.-beginning and end of work. This might happen ...." I think Menendez exceeded the permissible bounds of expression of opinion when he told Anerson he stood to lose existing THE M. O'NEIL COMPANY 159 privileges with the Union in the picture. To contrast union conditions with existing "flexibility" is no real contradic- tion of Brathurst's testimony. As to the threat to a group of employees in his office that they would lose diversified benefits and privileges, it is but another example of the general practice among supervisors of equating, without objective and aboveboard evidence to the employees, a vote in favor of the Retail Clerks with automatic disadvantage to their working conditions. I credit Perri and Brathurst and find that Menendez violated Section $(a)(1) of the Act in his talks with them.? Hatfield testified about another conversation with Supervisor Pala. She said that after the election Pala once told her if she was late for work he would have her sent to the office to be warned, if she was late twice she would be sent there again, and if it happened a third time she would be discharged. She said there was no mention of the Union at all. Pala said he did warn her, because she was a chronic latecomer and overstayed her breaks. As I do not think it can be said any disciplinary action taken by an employer after an election ipso facto violates the statute, I find nothing wrong in this warning. Nothing happened after it except that Hatfield peacefully retired. I can also make no finding of improper or illegal conduct by a supervisor named Ron Brown, who worked in the domestic department. Kathryn Meeks, who worked there, said that "a few days," "3 days" before April 16, Brown told her in the presence of two other employees that "if the Union would come in" the employees would lose the 20- percent discount and "some of us would be laid off because they wouldn't need all of us." She also said that on the very day of the election Brown told her to vote but to "think twice" before casting her ballot. All parties stipulated that this man Brown quit the Company on April 11, and he did not appear as a witness. While Meeks' testimony about Brown's threat does stand undenied, a finding that he was in fact in the store at the time of the election would require a further finding that the Company brought him in for the express purpose of influencing the results, and that he was willing so to be used. No plausible explanation has been offered, much less proved, as to why he should have done this. And there is no corroboration for the witness. If Brown had really been used in this fashion, after his separation, it is likely someone else would also have seen him wandering about the store, and come forth to say so. I will go by the stipulation of the parties, and find he was not employed after April 11 and was not in the store at all. It will be as well now to put at rest another question arising several times from the total evidence and disputed in the briefs. It seems that in the Union's contract at the Pittsburgh Kaufman store there is a provision for a lesser discount benefit than the 20 percent allowed its employees by the Respondent without a union. The supervisors referred to this contract many times in their repeated talks. There is a difference between straight comparison between union and nonunion situations in this instance and general reference to leveling provisions in unspecified union contracts generally. The Union knew, and knows, about its own contract provisions; indeed there is no contention the Respondent's agents misrepresented the comparative discount rates. A number of employees testified simply that the supervisors told them they would lose their discount benefit if the Union won the election. So phrased, the statements out of the mouth of management would be pure unfair labor practices. Other witnesses also said they were told they might lose the benefit, but, more unportant, they also admitted that what the supervisors really did was compare the contract of the Union at Kaufman's with existing conditions in many respects, including the matter of the discount. And of course, when the supervisors, as witnesses, referred to this aspect of their talks they denied making outright threats, and explained they simply detailed the two existing situations. In fairness, again, objective things must be considered. The supervisors had been instructed to compare things with the Pittsburgh store contract and they did have the Kaufman contract in their possession when they spoke. This sort of recollection by the employees 2 years later is necessarily suspect. The agents were referring to a contract of this very Union, in another like department store, in an area not too distant from Akron, There is an implication in the record that in Pittsburgh, at least, the Retail Clerks leaned towards a higher wage rate for all employees in preference to discount privileges in favor of those who could afford to buy things. Accordingly, I credit the supervisors on this question, and I find they did not just threaten the loss of discounts and did not violate the statute by comparing the disparate conditions between the two stores. There is testimony by several witnesses of what is said to have been another form of coercive conduct by the supervisors-unlawful interference with the right of em- ployees to campaign in favor of the Union, to encourage one another to join up or vote in favor of representation. This testimony, too, must be appraised in the light of related objective factors-in this instance the no-solicita- tion rule mentioned above. Frances Smith, of the book department, started by testifying that her supervisor, Robert Ahlers, told her before the election, in the presence of the other girls of the section, "if I didn't play ball with the company, why, I would lose all my privileges." She added Ahlers also told her, "if the union did get in, why, then I would lose my discount and my hospitalization and I would have to pay for my hospitalization myself." And Paul Robinson, in display, began by relating how his supervisor, Robert Schultz, called him to the office a week before the election to discuss the Union and told the employee he was not "to talk Union to anybody," and that he should "cool it with my Union activities." According to Robinson, Schultz then offered him a promotion, and when he said he lacked the qualifications, the supervisor added, "if I would have worked as hard for the Company as I had for the Union, that I could have handled it easily." If this testimony of Smith and Robinson be taken out of r I also credit the testimony of Shirley Arnette that Supervisor Aquila told her "if the union would ever get in, that all our privileges would be taken away as of getting our hair done or taking an extra break during the day." Aquila said he only answered a question by the employees, and said this was not so. But Arnette's version is more consistent with the tenor of what all the supervisors were doing behind the device of referring to other union contracts generally. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the context of the whole story, it creates one impression. Considered together with the rest of these witnesses' statements, and in the light of the proper no-solicitation rule, a different picture emerges. As Smith expanded on direct and cross-examination, it developed she was also told not to talk to the union organizers while at work, or "to different ones of my friends in the store," and "if George Hennigen and Bruce Finley would come in . . . that I should let someone else wait on them." Finley and Hennigen were two of the outside organizers in the store every day flouting the no- solicitation rule. It thus appears, from her own testimony, that what Ahlers was talking about was the employee violating the no-solicitation rule both with respect to other employees and the outside organizers . Smith finally admitted the reason why she was told to lunch alone in the public restaurant of the store was because she had been talking about union activities with other employees while on duty. Ahlers testified that Smith enjoyed no regular break period because she only worked short hours, that he gave her an off-the-record break, that it was reported to him she wandered about the store talking union to others and to the outside organizers, and that he told her to stop this violation of the rule else he would discontinue her break privilege. He denied any talk of taking away other privileges from her, and added that he limited her to the Oak Grille Restaurant "so she would not go out and solicite." Smith is a completely discredited witness because she deliberately distorted the facts, again and again evaded answering direct questions , first saying she never heard of the no-solicitation rule and then admitting she well knew about it and was asked to obey it. In the end she admitted Hennigen and the other union organizers would "stop and talk to me, sure." I credit Ahlers. Robinson, in his added testimony, said Schultz had called him to the office "to discuss about talking on the floor, about the Union," and that when the supervisor asked had he done it, he answered: "the only time I had talked Union on the floor to anyone during working hours was when I was questioned by the employees themselves about it." After this he cavalierly denied he was called in to be warned on the subject, denied he ever knew about the rule, admitted he did know, and finally, again, that this was the reason he was called to the office! Schultz testified the only thing he did was warn the employee to stop violating the no-solicitation rule. I credit Schultz and do not believe Robinson's contrary testimony. In a department store, the employer may promulgate and enforce a rule against solicitation, by employees and strangers alike , effective at all times in all public and selling areas of the premises. The May Department Stores Co., 59 NLRB 976. Significantly, there is no contention here that the rule enforced by the Respondent in its Akron store is or ever was unlawful. It follows that so long as it had the right to promulgate the rule it also had the right to enforce it, against anyone. And this is all that Ahlers and Schultz did with respect to Smith and Robinson . I find nothing improper in their activities. There remains the question of interrogation-lawful or unlawful in this case. Three employees testified they were asked the direct question-were they on the side of the Union? Helen Fuller said her supervisor, Pala, asked, "Do you know who the committee person is in this department or on this floor?" She answered she did not know. Shirley Arnette, the office secretary of Aquila , supervisor in the children's shoe department, testified Aquila asked her how the ladies on the floor would vote in the election. She said "in favor," and he then told her he hoped she would not herself make a mistake. Both Pala and Aquila denied this testimony. William Salk is the supervisor in women's shoes. He gave a talk to his employees on the subject of the Union the second Saturday before the election , and used the Respondent's profit-sharing plan as a takeoff. According to Macel Bittner, an employee present , Salt explained how good management was and told the employees there was no need for "anyone else." He then asked for a show of hands as to how many of them could afford to pay union dues, and raised his own hand to encourage them. No one raised their hands, but three or four employees answered "yes." Salk asked Bittner, "You are going for them, aren't you," and she said yes. Still according to Bittner, Salk then spoke about employees taking their union dues and putting them into the Company's profit-sharing plan instead, compared the two amounts and explained what the return in interest would be. Again he called for another show of hands to see how many were already participating in the plan. This time there was a showing of hands. Salk said all he did was explain the Company 's plan, and suggested if the employees saved on a pack of cigarettes a day and made a few extra shoe sales they could put this money into the plan . He expressly denied that he or anyone else mentioned the Union or union dues at all, and that he called for the show of hands only about plan participation. Salk was followed to the stand the next day by Mary Brown, another employee in his department and also a witness for the Respondent. She said that before the meeting Salk gave her a "creed" to read "at the meeting to the group," and that she did so. Her "creed" read: "If you work for an Employer, work for him. If you are against an Employer, get the hell out." After first denying Salk asked who was paying union dues, or even talked about the Union, Brown then admitted that Salk , speaking "about the union," said the employees should "know exactly what we were doing," that "he might have mentioned if you pay Union dues, you could go into profit sharing," and that Salk asked, "How many of you could afford to pay Union dues." Brown was the Respondent's witness. I credit Bittner and not Salk. I find that he deliberately interrogated the employees of his department and thereby committed an unfair labor practice in violation of Section 8(axl), for which the Respondent is responsible. In the circumstances of the pressing campaign carried on by all of management to impress the employees with the many reasons why they should not vote the the Union, I also credit Fuller and Arnette and I find that Supervisors Pala and Aquila unlawfully interrogated them in further violation of Section 8(axl). Six other employees testified that they were asked by their respective supervisors why they favored the Union. The question was put differently by each supervisor, but what it always amounted to was an indirect method for THE M. O'NEIL COMPANY 161 discovering who they should talk to in order to carry out the instructions for convincing employees to the Respon- dentzs vibw., Meeks indomestics, quoted her supervisor, Patsy, "how do you feel about the union . . . ." Anna Melnick, in the candy department, quoted her supervisor, Batalden : ". . . he usually asked what I thought the Union would do for me that he couldn't do. . . ." Cordella Cebator, in the same department, testified Batalden said: "... what could the union do for me that he couldn't do ." Roma Rich, in daywear, said her supervisor, Mrs. Durgala, asked her ". , . what I thought I was going to get out of the Union or what the Union was going to do for me." Robinson, quoting Supervisor Weyrauch: "He asked me why I wanted a union in the store." And Rohmer said he was three times asked by Weyrauch "why did I want a union, why was I in favor of a Union." I doubt there is a meaningful distinction between asking an employee whether he favors the Union (which is a clear violation of Sec. 8(a)(1); see Struksnes Construction Co., 148 NLRB 1368) and asking him why he favors the Union. An employee asked the latter question feels no less singled out, from among the many in the total group, than does the one who is asked directly whether or not he belongs to the Union. In fact, the question why one favors the Union cannot be answered without of necessity revealing the individual's personal predilection. Curiosity concerning the employee's attitude toward the Union is logically implicit in the inquiry, however phrased. But, if the direct question coerces the employees because they feel they are being sought out for an ulterior motive, the indirect question must be deemed naturally to have the same illegal effect. Moreover, to ask an employee what benefits he expects to gain by union representation carries with it the inseparable implication that the supervisor knows of his attachment to the Union. But this is another way of further intimidating employees by creating the impression their union activities are being surveyed by management. In this store the central program of discrediting the Union by an unending barrage of talk, from supervisors high and low, at old and newly created meeting opportuni- ties, required constant occasion to repeat the message. It therefore was to be expected the supervisors would want to invite, and provoke, discussion, particularly from the prounion-minded personnel. Batalden and Durgala are no longer with the Company and did not testify. Weyrauch did not recall whether he questioned Robinson and made no reference to Roemer's inquiry, but he did say he discussed the disadvantages of unionism with each of them often. Pala denied asking anything of Fuller and Meeks. The Respondent points to the fact these supervisors had been instructed, in writing, not to question employees about their feelings for or against the Retail Clerks. But there was more in the same instructions which the supervisors ignored. The instructions also told them not to "invite an employee to your office for the purpose of discussing any matters related to the Retail Clerks unionization efforts." Any number of employees testified about discussions concerning the Union inside and outside the offices, all started by the supervisors. There is no real denial on this score. And it was inevitable that this had to happen, for the main point of the instructions to manage- ment representatives was that it was their "duty" to see to it that the employees got "all of the facts, and in this regard you will play a lead role." How could they discharge this prime responsibility except by starting discussions on the subject? The assertion, voiced by some supervisors at the hearing, and repeated by President Emma with respect to all the 25 or so end-of-tour speeches he gave, that in each and every instance when the Union was mentioned it was always an employee who first opened the subject, is completely unpersuasive. I find that by interrogating employees concerning their attitude for or against the Union Supervisors Weyrauch, Pala, Batalden, and Durgala violated Section 8(a)(1) of the Act. E. Surveillance There was an amendment to the complaint at the start of the hearing to add an allegation of surveillance of union activity by the company store detectives. Three employees -Melnick, Cepator, and Catrufo-testified that at about 6 p.m. on March 3, 1972, as they arrived at the union hall for a conference of some kind they saw Angela Keener, a security employee of the Respondent, standing on the sidewalk across the street reading a newspaper. They said it was very cold-22 degrees, that Keener looked up, saw them, and looked down at the newspaper again, and that she walked away after about 5 minutes. Keener testified she was nowhere near that spot that day. She said-apparently by the strangest of coinciden- ces-she was sick that day, left work early, saw a doctor, and was home in bed in consequence before 6 o'clock. In support of her story, the Respondent offered in evidence: (1) the daily medical log from the office of the store nurse for March 3, showing that shortly after the noon hour Keener appeared there complaining of severe pains and was told to see a doctor; and (2) a certificate signed by her doctor attesting that she was in his office that day and that he advised her to go home and rest. Keener said she did that, going straight from the doctor's office to her home. No question was raised as to the authenticity of the documents received in evidence, and I have no reason for discrediting them. I believe Keener's testimony. In all probability this was a case of mistaken identity. I therefore find the surveillance allegation has not been proved. F. Probation Six employees testified that beginning some months after the 1970 election each was placed on probation; some of them were old-time employees and five of them said they had never before heard of a probationary system in the store. One, Catrufo, said she knew about it in 1969. Pence, the assistant director of personnel, testified the system was first instituted in 1968, but that the fact of the Union's organizational campaign had nothing to do with establish- ment of the policy. There is no allegation in the complaint on this subject, and in his brief the General Counsel makes no argument that the Respondent violated the Act in placing people on probation. I find nothing in this evidence sufficient for making any finding adverse to the Respon- dent. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. The Alleged Violation of Section 8(a)(3) Judith Walker was a part-time employee hired in November 1969; after the Christmas season she asked to be retained and was kept on as a pink card part timer. A pink card worker is not guaranteed any number of hours of work per week; she is called as the occasion requires. A green card part timer is distinguished from a pink card worker only in that she is guaranteed 20 hours of work a week. A white card holder, really a full timer, is guaranteed 30 hours of work each week. In January 1970, Walker joined the Union and went out of her way a number of times to tell her supervisors of her prounion attitude. She even enticed them into conversation to dispute the merits of unionism with them. She violated the rule against solicitation, was warned about it, but persisted. Before the election, and after, she asked to be reclassified to a green card employee, but never was changed to the different status. Walker quit her job during the week ending September 6, 1970, according to the Company's records received in evidence. At the hearing, she said it was "the last week in October. I am not exactly sure of the day." She also said she quit because "I wasn't getting the hours, they weren't calling me." The complaint alleges that the Respondent "refused to promote" this girl, and "reduced her hours of employ- ment" because of her union activities and therefore violated Section 8(a)(3) of the Act. Asked what remedy he sought in the event this allegation prevailed, the General Counsel stated on the record: "Well, it would just be to get her back pay from the time that her hours were reduced until the time there was a mutual parting of the ways." During the 13-week period ending March 24, 1970, Walker worked an average of 25.9 hours per week; during the next 13-week period, ending June 23, she worked an average of 27.8 hours per week; and during the next 11 weeks, until she quit in September, she worked an average of 28.5 hours weekly. If for no other reason the complaint must be dismissed as to Walker because in fact there was no discrimination in employment against her. There is mention of some variance in fringe benefits enjoyed by pink card as against green card part-time employees, but the record says nothing about what these may be or whether Walker in any way was prejudiced for continuing to work on the pink card. In any event, no contention is made and no issue was litigated with respect to any such possibility. I think the record falls short, in any event, of proving union animus directed against this employee. Her total testimony, pugnacious, evasive, sometimes almost incoher- ent, is aimed at showing she was very active in the union campaign, the Company knew it, and tried to stop it. She spoke of being interrogated, instructed to stop talking up the Union, and even ordered to stay out of the store altogether when she was not on duty, by Ben Harstine and by James Parker, her supervisors. The truth of the matter is that in virtually every instance when there was talk of the Union between her and any supervisor it was she who opened up the subject, deliberately inviting quarrel. Late in March she spoke to Harstine: "I said, you know I am on the organizing committee and I would like to know if this is why I haven't heard about my green card and I asked if he could talk to Mr. Parker and he said no. He said he was not allowed to say anything about the union unless I asked and I didn't and that was the end of the conversation." Again, to Parker: "I went to Mr. Parker and I asked him if I could talk to him about my green card and I also asked him-I said I have heard the union's side and I would like to hear why the store does not want to have O'Neil's have a union." She added Parker then explained how conditions here were better than at Kaufman's in Pittsburgh. She then said Parker ". . . indicated that they would close this store if the union got in, due to the fact that outsiders were trying to tell O'Neil's they did not know how to run their store." On the day of the election, after the balloting, Harstine said he was not allowed to ask how anyone had voted; Walker came back with: ". . . but you would like to know, wouldn't you and he just looked at me and I said, well, I voted yes and that was the end of the conversation." Walker also testified Harstine once said to her "as long as I had anything to do with the union, went to the meetings, made any calls to talk to union people, I would get nowhere with O'Neil's. . . ; that Parker asked her whether she was going to a union meeting and asked her to let him know the Union's strategy; and that both supervisors told her to stay out of the store when she was not working. Parker has left the Company and did not testify. Harstine testified it had been reported to him by Mrs. Bennett, the higher supervisor who scheduled the work hours, that Walker was violating the no-solicitation rule, and that he reminded the employee about this. He denied ever telling Walker she would not get ahead in the store because of her union activities, ordering her to stay out of the store when off duty, or asking had she attended a union meeting. As to the incident on election day, he said his only comment was there should now be no hard feelings. I credit Harstine and, despite the qualified denials and the fact Parker did not appear, I do not credit Walker. The company records belie her testimony that she was given less work as time went on. She said she asked Parker on May 14 why her hours had been cut "so bad," but in fact they had not been cut. She knew of the no-solicitation rule; asked had she been warned about violating it, she first answered she had not violated it, and denied ever having been warned. She then reversed, and admitted she was told about her offenses on that score. She talked with Organizer Finley in the store, and gave him the membership card signed by a friend of hers. Asked by Harstine later that day what she had been doing, she told him she only gave Finley "some information on a friend of mine." She also told a story of visiting the store one day with "a friend of mine who wanted to exchange something and I went downstairs and was talking to a girl in the accessory department." Now Parker saw her and asked what she was doing. "I made a joking remark." When she saw Parker was serious she said she had come to buy a dress. Walker was on the organizing committee and had made it a point to inform Parker. If the supervisor did advise her to stay out of the store when she was not working he had good reason. She shifted her testimony; one day she had Harstme asking her how she was going to vote, and the next saying he was not THE M. O'NEIL COMPANY 163 allowed to ask. It was she who volunteered, it was she who wanted the supervisors to know. I-shall dismiss th$coniplaint with respect to Walker, and I credit nothing in her -testimony warranting a finding of illegal conduct by any of the management agents. H. The Objections to the Election As stated above, many of the Union's objections to the 1970 election parallel the allegations of restraint and coercion appearing in the complaint. In view of the violations of Section 8(a)(1) found above, virtually all occurring during, the 30-day period preceding the election, I found merit in the objections and hereby recommend that the Regional Director set aside the results of the election and proceed according to law. While the objections, as written, do not in so many words attack the no-solicitation rule at all times in effect, there is ambiguous language in Objection 1 that can be so read. In his report of objections, in which he also directed a hearing on other objections, the Regional Director over- ruled Objection 1. In view of his report, and in view of the fact there is no allegation in the complaint to the effect that the no-solicitation rule is in any way improper, I find nothing in the rule itself or in its enforcement by the Respondent that would add support to the objections. The Regional Director did direct that the hearing also be open to evidence in support of Objection 17. This one charges the Company with wrongdoing for harrassing the in-store activities of outside union organizers in the presence and hearing of rank-and-file employees. The record iii its entirety shows the theory here is that while an employer may take steps to enforce its proper no-solicita- tion rule against the organizers, if it does so in the presence of employees it unlawfully restrains and coerces them. I find the argument unconvincing. It is true, for the record abounds in such testimony, that store detectives made it difficult, if not impossible, for the organizers to solicit the employees directly or indirectly in the store. It is true they blocked the organizers' freedom of movement in the store, called them offensive names, even pushed them around a bit. The guards harrassed them in the public restaurants, sitting too close to them, overtly eavesdropping. The supervisors even ordered the employees not to talk to the outsiders, or make sales to them.8 In the context of this overall picture of planned disregard of the no-solicitation rule, the restaurants, in which the buying public was accommodated, must also be deemed "public areas" of the store. The Company could as well have had the outsiders ejected physically from the store. The following statement, made in another context, is equally applicable here. The circumstances leading up to this painful choice of action was not the Employer's making, for it was the Union which actively, repeatedly, and continuously disregarded organi- zational restrictions laid down by the Respondent, which conformed to long-established Board policy. I recommend that Objection 17 be overruled. 9 From the testimony of an organizer, Finley: "Maybe they [the employees in the store ] would say I would like to see you for coffee and so we got together. Your know, we got to know them fairly well . . . they would say how does the election look and I would say it looks real good." Bittinger, another paid organizer: ". . . we visited around the store in 1. Ruling on Motion I deny the Respondent's motion to dismiss the complaint allegation that the Company unlawfully refused to bargain and violated Section 8(a)(5) of the Act. In my judgment the unfair labor practices committed by the Respondent's agents are of such an extent and nature as to support (1) the conclusion that it rejected the statutory duty to recognize and bargain with a majority representative of its employees, and (2) a finding that it must be ordered to bargain with the Union now, certainly if in April 1970 it represented a majority of the employees in an appropriate unit. In the language of the Supreme Court in the Gissel case, supra, the pertinent question is whether the unfair labor practices committed were "disruptive of the election process," such as to preclude "a fair election." Application of this principle to any particular set of facts does not permit appraisal pursuant to any fixed formula. No single precedent, therefore, can be determinative of any subsequent case. Examination of a number of decisions reached by the Board in this area of the law after issuance of Gissel clearly establishes this critical truth. Nevertheless, under the scheme of the statute, a Trial Examiner is dutybound to seek guidance in the Board's expressed views. In a question of this kind, mathematical precision of analysis is not to be expected. I believe the interpretive explanation appearing in the Board's recent decision in General Stencils, Inc., 195 NLRB 1109, supports, indeed requires, denial of Respondent's motion to dismiss in the case at bar. The Board there dealt with a direct threat of loss of employment, which it called "the most flagrant means by which an Employer can hope to dissuade employees from selecting a bargaining representative." Whether, in any given case, threats of that sort warrant an order to bargain as the appropriate remedy is best answered in terms of a series of tests clarified in the dissenting opinion of Chairman Miller in General Stencil itself. (1) Was there a threat of loss of employment for some or all of the employees? Such a threat is "a uniquely distructive tool more coercive than any other threat." This is precisely the threat Emma made. (2) Was it seriously regarded? In the Akron downtown store the employees could not but regard it seriously. A short time earlier the Respondent had closed another of its stores, in a nearby location. The employees knew this, although it was not shown that the other one closed because a union had recently won an election there. They certainly had no reason to believe the Company would not close another. (3) What was the source of the threat? To these employees the threat could not have come from a higher source-the top official of the Company himself. (4) Was it a deliberate threat? All that is needed to answer this question is to read even a portion of Emma's own testimony. (5) Was it a general threat? Emma spoke of releasing all, not only,some¢ of the employees, 1bylclosing the store. And finally, (6) was the threat disseminated? several departments saying hello to the employees ... Most of the time I would go around and say hello and I would talk to people that I would know." When professionals admit this much from the witness stand, it would be a mistake to burden this report with the multitude of details in the record 164 DECISIONS OF NATIONAL LABOR itELATIONS BOARD In General Stencil, the main issue-whether Section 8(a)(1) had been violated and whether an appropriate order to bargain was warranted-was deemed a very close question only because the threat had been voiced to one, and only one, employee. Indeed, the Second Circuit Court of Appeals, in remanding the proceeding to the Board for further consideration, refused enforcement for that very reason. If there is one thing that is clear on this record it is that President Emma made sure every single employee in the store-all 1,300 or so-heard him and heard him well. ORDER SCHEDULING RESUMPTION OF HEARING With a Trial Examiner's denial of a respondent's motion to dismiss a portion of the complaint the hearing would normally be resumed for the General Counsel to complete his case-in-chief in support of the total complaint. The parties have agreed, however, that regardless of the Trial Examiner's ruling on that motion in this special case, the losing party, or parties, would request permission to file an interim appeal to the Board. It is their desire that the Board (1) approve or disapprove the Trial Examiner's findings respecting the 8(a)(1) and (3) allegations of the complaint at this stage of the proceeding, following the filing of exceptions, if any, and (2) then consider the merits of the motion to dismiss the 8(a)(5) allegation in the light of the Gissel principle. As stated above, the objective of the parties in all this is to be spared the time and expense inevitably incidental to litigation of the question of majority status-in a unit of 1,360 employees-in the event in the Board's ultimate view of the case that matter becomes moot.9 Accordingly, I now set the case for resumed hearing on July 17, 1972, at Akron, Ohio, the precise location to be determined by the Regional Director. The parties are free to request further extension of time, through the office of the Chief Trial Examiner in Washington, D.C., if appropri- ate to accommodate the Board in its consideration of the interim appeal to be filed. 9 Consistent with the suggested procedure, the usual formal conclusions of law, cease-and-desist order, and notice for posting have been omitted from this Decision. If the case in its entirety should be finally concluded on this appeal to the Board, no further action by the Trial Examiner will be required for fashioning those portions of the Board's final order SUPPLEMENTAL DECISION POSTURE OF THE CASE THOMAS A. Ricci, Administrative Law Judge: The essential issue presented in this now extended consolidated proceeding is whether the Respondent must be ordered to bargain with the Union as exclusive representative of its employees, notwithstanding the fact the Union lost a Board-conducted election; the grounds for the illegal refusal-to-bargain finding and affirmative remedial order are that the Company committed such aggravated unfair labor practices as to preclude the holding of a new and fair This Supplemental Decision must be read together with the initial Decision of May 25, 1972 A posthearing motion by the General Counsel to correct his Exhibit 11, unopposed, is hereby granted 2 Hennigen also testified he made a similar demand of Millisor at a election. Because of the extensive scope of the anticipated litigation, all parties agreed to try the case in two parts: First, all evidence, pro and con, relating to complaint allegations of violations of Section 8(a)(1) and (3) of the Act; and second, all evidence, pro and con, relating to the refusal-to-bargain, or 8(a)(5), aspects of the case-includ- ing the questions of demand and refusal, scope and composition at the appropriate unit, eligibility, and majority representative status of the Union. Decision on the first part issued after hearing, on May 25, 1972, and is now before the Board. Hearing of the second part was held at Akron, Ohio, on 22 hearing days, beginning October 25, 1972, and ending on May 22, 1973. All parties participated and filed briefs. Upon all the evidence record as it now stands, and from my observation of the witnesses, I make the following: FINDINGS OF FACTi A. Demand and Refusal The prosecution contends that the demand for recogni- tion and the consequent refusal occurred on April 13, 1970. The Respondent denies any demand for recognition was ever made. On this threshold issue the General Counsel offered testimony by George Henmgen, the Union's organization director. Hennigen told of a preelection conference on April 13, 3 days before the 1970 election, in the office of Mr. Millisor, the Company's lawyer; Henni- gen was accompanied by Finley and Turner, other agents of the Union. Present for the Respondent that day were Millisor and Robert Pence, its then director of employ- ment. According to Hennigen, before entering the confer- ence room he told the lawyer that the Union represented a majority in the unit and offered to submit the authoriza- tion cards to an impartial person to determine if the claim were true. He added Millisor "declined recognition." 2 Hennigen was corroborated by Finley, who recalled that during "some small talk" before the meeting Hennigen "said something to the effect all of this is not necessary .. . that we represented a majority of the employees and he was requesting negotiations for them . . . ... Finley added Millisor "responded in some fashion ... he made some remark about the appropriateness and he referred to the 6th Circuit Court." Both Pence and Millisor recalled Hennigen's demand. Pence's version was: ". . . Henmgen made a statement to the effect that he didn't think this meeting was necessary because the Union had enough signed cards to win the election," and that Millisor's response was "a comment about the Sixth Circuit Court and some rulings that they had evidently given on unit questions." Millisor, the lawyer, started his testimony by saying: "... we were cognizant of the fact that the Union may make some effort to make a demand at the pre-election conference," and that therefore "what we decided to do was not have any member at the meeting who was in the position to respond to effectively accept that and respond to a demand." To preelection conference before the 1969 election and was also refused There is no contention now that an 8(a)(5) violation should be found based upon any 1969 events THE M. O'NEIL COMPANY 165 further guard against any demand for recognition, Millisor decided "we would make an affirmative statement at the beginning of the meeting that the sole purpose of the representatives who were there on behalf of the Company, and the sole extent of their authorization , Mr. Pence and myself, was to update the eligibility list and make the corrections to that list. Apparently the lawyer did make this opening statement, but his precautions were in vain, for, as he then honestly, continued to testify, "I do recall a statement being made by one of the Union representatives, and I frankly cannot recall which one-something to the effect that there was no sense in going any further with preparations for the election because the Union had enough cards that the election itself was in the bag . . . . We should just submit the cards to some third party and let them inspect them and decide it on the basis of the cards . . . I did not respond in any way directly to that statement. All I said was that I thought the whole proceedings were going to be moot anyway because the Sixth Circuit had handed down some determination and they were going to find the unit invalid." A demand for recognition is no less a demand merely because the employer asks the union to please not talk about it, nor because it hides the personnel director-in this case Pence's immediate superior. The lawyer was the spokesman and representative of the Respondent that day, as indeed he has been from first to last, reaching back to early 1968 when he was sent to the hearing in the representation case to announce formally that the Compa- ny will never bargain with this Union until it wins a Board certification that stands up in the appellate court on review. In the light of their admissions set out precisely above, the denials by both Pence and Millisor that Hennigen had articulated the demand in the precise words which the union agent used at the hearing in this proceeding are meaningless. Nor is it true, as the Respondent now claims, that the parties "had both" decided that only an election would resolve majority status. In truth the fiat had been announced by the Company unilaterally 2 years earlier. Indeed, it was that very announced decision that virtually compelled all the resultant talk about elections as the organizational cam- paign went on and on, with successive futile elections. With the Respondent practically admitting it knew a demand for recognition was going to be repeated, and its agents therefore consciously setting the stage to avoid it, it can also be found on this total record that there was a continuing demand for recognition going back to before the 1969 election . I find that on April 13, 1970, the Union demanded recognition of the Company anu that the Company refused to recognize it. B. Appropriate Bargaining Unit; Inclusion and Exclusion; Eligibility for Majority Count Apart from the direct question of unfair labor practices committed, in every refusal to bargain case there are subsidiary matters to be resolved : ( 1) The scope of the appropriate bargaining unit ; (2) as of what precise date is the union's asserted majority representative strength to be tested ; and (3) in the situation of a retail department store or comparable commercial enterprise , which employees have a sufficient interest in the selection of a bargaining agent so that their individual choice is to be considered? The Respondent takes issue with the complaint and the General Counsel on all three questions in this case. The complaint says the appropriate unit is the Company's single downtown store in the city of Akron, but the Respondent insists it should instead include all 12 of its separate stores dispersed throughout the State. The General Counsel contends majority should be tested as of April 13, 1970, the day of the demand and refusal; the Respondent argues it should instead be tested as of an earlier date in March. As to which of the employees actually at work on April 13 should be deemed the 100- percent total complement among whom majority must be tested, the General Counsel says the selective test must be the same one which the Board established for voting eligibility immediately preceding the election held on April 16, 1970, as set out in May Department Store, 181 NLRB 710. Against this the Respondent contends the test must be a broader, more inclusive one. The three issues will be considered in reverse order. The last question involves primarily the number of pink card, or temporary or casual employees, that should be included in the total count. On this point the Respondent urges again the precise argument it advanced to the Board in the representation case and which, after full litigation, was found wanting. No purpose would be served by restating in full that formula here ; the Board's decision that day is a public record available on review at any time and place. The question having been once fully litigated and decided by the Board, it is not again litigable. I find no merit in the Respondent's contention as to this issue now raised here. It will be recalled that on April 13 the parties were preparing for the Board-ordered election to be held 3 days later, and that it was on April 13 that the Union demanded recognition and was refused. When the election took place eligibility to vote was conditioned upon individual employ- ees satisfying two requirements; they had to be both on the payroll 1 day in March, 2 weeks before issuance of the Board's Direction of Election , and at work on election day. This scheme follows long-established Board practice in the processing of representation proceedings , and the reasons justifying the practice bear no relationship to out-and-out refusal-to-bargain proceedings. In contrast, every refusal- to-bargain case the Board ever considered posed the straight question whether the union in fact represented a majority at the moment that the employer refused to extend recognition. This case, in this respect, is no different from any other, and the Respondent has advanced no coherent reason why it should be considered on any other basis. The question of majority status here will therefore be decided on the basis of whether or not the Union on exactly April 13 had been authorized to bargain on behalf of a majority of those employees who on that day fell within the formula set by the Board. Peerless of America, 198 NLRB No. 138. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Alleged Change in Appropriateness of the Single- Store Bargaining Unit The Board's finding in this case, that a unit limited to the Respondent's single downtown Akron store is appropriate for bargaining purposes, was based upon consideration of the very comprehensive and lengthy record made in the representation case . If the Respondent's claim that that same unit is now no longer appropriate is to prevail, it must be because of affirmative evidence of substantial change in the major factors that led the Board to make its initial finding. Moreover, the evidence offered here must be appraised in the light of two other very pertinent facts. One is that the Respondent strenuously opposed the single-store unit from the start ; the other is that it resorted to illegal methods in order to prevent the Union from establishing majority status in the unit it always opposed . This is an unfair labor practice case , in which the prime objective is to remedy the coercive effects upon the employees of the proved misconduct of the employer. In a very real sense, the attack upon the unit already found appropriate is an affirmative defense and, like any other such , presents the Respondent with the burden of convincing the Board that the assertion is sufficient reason to permit it to profit from its own unfair labor practices . The question of the appropriateness of the unit now is not to be likened to the investigatory character of the usual representation pro- ceeding . Counsel for the Respondent erred when he argued at this hearing that the General Counsel had no business concerning himself with the sufficiency or insufficiency of the evidence said to have destroyed the single-store unit. Rather, in the circumstances now presented, the unit finding as made must be reaffirmed, unless the Respondent has come forth with evidence of significant changes in operations such as to make reaffirmation of the single-store unit impossible. Henry Spen and Co., 150 NLRB 138. Considering the factual findings made by the Board in its initial decision holding the one-store unit appropriate, together with the evidence offered here on this point, I find, as alleged in the complaint, that the unit limited to the Respondent's downtown store is still appropriate for bargaining purposes. The entire grouping of 12 stores, which the Respondent insists must be joined if any of its employees are to enjoy statutory bargaining privileges at all, are still dispersed over a very wide area of Ohio. Each store is still separately supervised, however the titles given the local managers and their subordinates may have recently been changed. For the most part new employees are hired as extras, or temporary people, and all of them are still interviewed, appraised, and hired by the individual store supervisors. Initial recommendations for changes in wages, first steps toward disciplinary action, evaluation of performance, all these matters of importance to the conditions of employment of the total complement of employees, are still performed by the local representatives of management. The Respondent's position rests almost entirely upon the oral testimony of Rollin Glazer, its personnel director, and Clarence Randall, general operations manager. Their testimony is filled with generalities , conclusionary state- ments, and arguments; again and again they evaded direct questions when asked for specific facts in support of conclusionary statements; repeatedly they said they simply did not know, when numbers and plain facts were called for if their bland statements of opinion were to have any evidentiary value. For example, one of the ultimate burdens of their attempted message was to create the impression that great numbers of employees regularly and of necessity travel from the distant locations to the central office as a normal aspect of their regular employment. By the time they were finished, all that was shown factually is that new regular-as distinguished from extra and part- time-employees come to Akron before starting to work to sign necessary hiring documents , undergo a physical examination, and receive their identification card. When this is finished-and of course they do it only at the start of what may be years of employment-they have no further occasion to repeat the visit. Glazer made much of the fact that a profit-sharing plan brings people every year to Akron. It then developed he was referring to an annual party-attended only by those employees who chose to participate in the plan and who care to come at all-where the people are feted and told what their share of the profit is. This system is equally true of high-occasion receptions in Akron when recipients of service awards-or excellent rated employees-are invited to receive honors . Voluntary activities of this kind do not substantially relate to what is normally called day-to-day interests in working conditions. New sales persons are brought to Akron for a day or two of training. Glazer said that when necessary they are brought back for further training, or retraining, if it should be found by local managers that any have later fallen behind in their lessons. The initial lesson is, of course, a one-shot deal ; when asked to give facts and figures as to the frequency of return to Akron for this purpose by the dispersed employees, he came forth with nothing definitive. His repeated statements that the system is new and therefore more centralized, that there is greater central control, add nothing to his unsupported conclusions. And his further statement about a new and more centralized training program for executives has nothing to do with the rank and file. There used to be a branch store personnel manager in every location; in most of them he is now called the personnel clerk. A central office post called personnel director for branch stores had been created. Glazer said that because of the change in names "the effect has been to give the downtown organization, and in particular myself, greater control and centralization of the Personnel activi- ties in Branch Stores. . . ." In support the Respondent offered into evidence a very comprehensive personnel handbook put into the hands of every personnel clerk in every local store; it is his Bible and instructions on how to do his job. From all this Glazer concluded that "There are no areas of discretion left to the Personnel Clerk in the Branch Store."3 He added the central office man "is 3 Glazer said the present personnel director for branch stores is named predecessor "who handled more than one store." It is pretty clear the idea of Kelso, and was appointed in January 1973; he added there was a one man in charge of all stores was conceived while this hearing was in THE M. O'NEIL COMPANY 167 involved in all of the Personnel Actions of any signifi- cance." He also said that now a director of employment services "has the opportunity to approve or disapprove all of the hirings." Which of the countless personnel actions are "of significance?" What does "opportunity" to partici- pate mean? How often in fact does the central office man inject himself in the actual work of the local "clerks"? These questions, the truly pertinent matters in determining appropriate unit, are by no means clearly answered by the total record. As to the personnel handbook, of course it sets "guidelines" for the local people, as Glazer said; the local man is also told by the central office the high and the low limit of pay, and other such matters. There never was a multilocation commercial operation that did not have such direction and guidelines for its separate stores or plants. It does not follow from the fact the central office gives broad instructions to its local people that the branch store agents have no "discretion" at all, or that they do not still run the business in their limited bailiwick. In the original decision the Board found there had been a total of 100 employees transferred among the stores over a 2-year period. Glazer said that during the 4 1/2 years preceding his appearance as a witness there had been "more than 400," about 10 percent of these "in the executive levels." He produced no record to support the figures; he said his assistant had looked at the record and told him about them. He could not say how many of the transfers had been from stores which the Company has closed during the 4-year period, or how many were temporary, to other locations for no more than special sales. The testimony of the general operations manager, Randall, is no more convincing. There is a store manager in each location and the operations manager in Akron is over all. He said the operation manager can make recommendations for discharge without consulting the store manager, but "not always, "With these exceptions," "it could have been." Does the store manager hire the "so called high class store people?" "Not totally." Does the operations manager recommend without consulting the store manager? "I wouldn't be able to tell you. It would depend on the circumstances...." Could he estimate the percentage of cases in which the operations manager does consult the local man? "That would be very difficult, I am afraid." He had "no idea" who is paid more-the operations manager or the local store manager. If Randall is to be believed in his conclusionary statements, the store manager has nothing to do with "operational budget," "security," "housekeeping," "stockkeeping." I reaffirm the Board finding that a unit limited to the Respondent's downtown Akron store is appropriate for collective-bargaining purposes. D. The Union's Majority Status: Authorization Cards All parties stipulated that the total complement of employees included in the unit in the manner and at the critical time alleged in the complaint, was 1,298, and their names are listed on an agreed-upon exhibit. To satisfy the affirmative burden of establishing the fact that on April 13, 1970, a majority of the employees in the bargaining unit had authorized the Union to represent them in collective bargaining, the General Counsel offered four forms of evidence. 1. A written stipulation of all parties, received in evidence, listing 302 names of persons who had signed authorization or membership cards in favor of the Union, all on dates preceding the demand and refusal. All these persons appear on the list of employees at work on April 13, 1970, and the parties agreed these cards are authentic and valid for purposes of determining majority status in this proceeding. The exhibit was supplemented by later stipulations that Evelyn Baine signed on September 13, 1968, Carol Lacy signed on April 3, 1970, and that Patricia McGuire is the Patricia Cross included in the total employee complement list. 2. Authorization or membership application cards bearing the signature in the name of an employee in the unit; in some instances there are more than one such card for a single employee, signed on different dates but always before April 13, 1970.4 All the cards read as do the following, one or the other. RETAIL CLERKS INTERNATIONAL ASSOCIATION MEMBERSHIP APPLICATION Local City State Applicant Date of Birth_ Residence City Zip Code Type of Work Social Security No. Tele. No. Employer Business Address Previous RCIA Affiliation, Local No. or City When? I hereby make application for membership in the RETAIL CLERKS INTERNATIONAL ASSOCIATION and affirm that the above statements are true, and I agree that all progress As to Kelso, Glazer said he spends 15 percent of his time in the central office and goes "once a week" to each and every store but two-this means eight separate stores-where he spends "half a day" in each To the two others-many miles away-he goes once every 2 weeks At one of these he "shoots a day" when he goes Later, counting the hours of the week poorly, Glazer said that Kelso goes to the Summit Mall, one of the largest of the eight locations, "Three to five times" each week , and stays "four to five hours" on each visit At this point the witness attempted to recover by saying that Kelso "could be working on Saturdays and Sundays and in the evenings too " This sort of testimony serves little to weaken the Board's original finding that a single-store unit is appropriate in the case of this Company 4 As originally offered, these cards , constituting G C Exh 11, totalled 422 Two had been included by mistake Steve Wahl, whose card appeared, is not the Wahl listed in the total complement agreed upon, and Giorgianna Tatum's card is dated April 14, 1970, after the demand and refusal Both of these will be ignored. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD moneys paid by me shall be for- feited and my membership declared void if they are not true. I authorize the RETAIL CLERKS INTERNATIONAL ASSOCIATION to represent me for the purposes of collective bargaining and handling grievances , either directly or through such local union as it may duly designate. Date of Signing Applicant,' s Signature We, the Local Union Executive Board report affirmatively on this application whose affiliation date is Local Union Executive Officer's Signature FORWARD THIS COPY TO THE INTERNATIONAL SECRETARY- TREASURER RETAIL CLERKS INTERNATIONAL ASSOCIATION (Affiliated with the AFL-CIO) AUTHORIZATION FOR REPRESENTATION Desiring to enjoy the rights and benefits of collective bargaining I, the undersigned, employee of the (Firm name) Employed at Dept. or Store No. Home Address Phone City State Zip Code hereby authorize Retail Clerks International Association, AFL--CIO or its chartered Local Union to repre- sent me for the purposes of collective bargaining, respect- ing rates of pay, wages, hours of employment, or other conditions of employment, in accordance with applicable law. S By counsel for the Respondent at the hearing: We have had the burden shifted to us to call people to put testimony Accompanying the card or cards of each of the 420 persons, there were also offered into evidence one or more documents bearing the signature of the employee and found among the Company's regularly kept records. These consist variously of employment applications, credit cards, vacation requests, federal income tax withholding forms (W-4), insurance documents, etc. Although the Respon- dent did not vouch for the absolute authenticity of the signatures appearing in its records, it was stipulated that these miscellaneous documents, used as standards for comparison here, did come from the company files and are part of its regular records. All these cards-authorization and standards for comparison-were offered into evidence accompanied by the testimony of Joseph Tholl, a profes- sional handwriting expert called by the General Counsel. Tholl testified that in his opinion each of the authorization cards so offered had been signed by the same person whose related signature appears in the company 's records. 3. Twelve employees from the bargaining unit were called as witnesses ; each testified to the authenticity of cards he or she had signed and which were also received in evidence. 4. One card, dated April 4, 1970, was offered through the testimony of an international representative of the Union, then working as an organizer, who authenticated the card by recognizing his initials on the back. On the basis of this evidence the General Counsel argues that 735 (302 + 420 + 12 + 1) employees in the bargaining unit at the time of demand and refusal had unequivocally authorized the Union to bargain on their behalf, a clear majority of the 1 ,298 persons constituting the total complement. The Respondent offered countervailing evidence, and arguments, intended to dispute the correctness of this ultimate assertion. The defense is aimed primarily at the 420 cards offered only with the support of the comparison signatures and the testimony of the handwriting expert. There is an overlapping ambiguity in the Respondent's variously stated contentions, and it is important to clarify them at the outset. One argument repeatedly articulated throughout the hearing is that simply by looking at two signed documents, one disputed and one conceded, there can be no finding that the two were signed by the same hand, even if the examiner be an expert. This argument goes to the authenticity of the signatures on the authoriza- tion cards. A second argument, again and again interwov- en with the first, is that the primary burden of proof resting upon the General Counsel includes, in a case of this kind, the affirmative duty of calling the employees as his witnesses in support of the complaint. The Respondent insists that, by resting his case-in-chief without calling all the cardsigners individually, the General Counsel illegally and unfairly shifted the primary burden of proof to the Respondent .5 The record shows clearly that this position has nothing to do with the signatures , but questions instead the sufficiency of the clear authorization language spelled out in the cards. Protesting what it called improper shifting of the primary burden of proof, the Respondent called 187 employees as witnesses. Of these, 183 started by saying into the record of what was said five years and two months ago, which is totally absurd position to put the Respondent in. . . THE M. O'NEIL COMPANY 169 they did sign the authorization cards showing their names and already received in evidence. They were then ques- tioned about what happened when they signed, what was said, what they intended when they signed. The first argument involves the straight law of evidence, or admissibility; the second questioning past intent-goes to the sufficiency of receivable evidence. Shorn of distracting language, all this is reduced to two questions : (1) Were the disputed 420 cards in fact signed by the same persons whose company records were produced? (2) Is there affirmative reason for rejecting any of a total of 433 of them now on the ground that the purpose of the employees in signing the unequivocal cards was something inconsistent with the expression stated thereon? E. Signatures On this first question the Respondent's ultimate conten- tion is that a comparison of signatures cannot lead to absolute certainty that the card was signed by the employee indicated. The position can perhaps be restated as no more than philosophical disputation: what is it that in the finite mind of man is a fact? Counsel for the Respondent, Mr. Millisor, was absolutely logical and very persuasive in his reasoning. That is, he was convincing if the question he raised with respect to the card signatures be taken out of context, if the overall picture of this proceeding be ignored. The short answer to his argument is that the prosecution does not claim the authenticity of these cards is established in this manner either with that moral certitude we attach to the Gospel, or with the mechanical assurance which flows from scientific investi- gation. This is a Labor Board proceeding, in which the standard of proof need not rise to the level of being beyond a reasonable doubt; the pertinent facts, however the concept be defined here, need only be established by a preponder- ance of the substantial evidence on the record as a whole. N.L.R.B. v. Glenn Raven, 203 F.2d 946 (C.A. 4). Moreover, it is a refusal-to-bargain case in which it has already been found that it was the Respondent's misconduct which now makes it impossible to hold a "reliable" election. It is for this very reason that authorization cards now become acceptable proof of employee authorization in this case, despite the fact they are less reliable than expressions voiced by secret ballot. Had the Respondent's agents not chosen to violate the statute by outrageously threatening everybody's job in retaliation against prounion votes, it could itself, as does its counsel now, have questioned the reliability of authorization cards, either with respect to their signatures or as to the signer's intent. It then had the right, now forfeited, to insist upon r more reliable test for proof of the Union's majority status. In any event, this is how the unanimous opinion of the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, must fairly be read. The Court recognized a degree of merit in the basic position of the Respondent advanced here, when it said such cards are "admittedly inferior to the election process." It used them nevertheless, as would do now the General Counsel, to support an affirmative bargaining order. Tholl, the handwriting expert called by the General Counsel, commented successively upon every one of the 420 cards and said that in his considered judgment in every case the authorization cards had been signed by the same persons who had signed the related company record documents, or the standards he used for comparison. As part of its defense, the Respondent called 187 witnesses, present and former employees, all in support of its attack upon the cards. Of all of these only four denied they had signed authorization cards bearing their names; all the rest-a total of 183-recognized their own signatures on the card or cards bearing their names. Insofar as the immediate question is whether the authenticity of the cards can be established, and has been established, by a matching of signatures under the rules of evidence, the issue is now limited to 237 cards. With 183 employees called by the Respondent-all included in the total group of 420 in General Counsel's Exhibit 11, having admitted their signatures to the authorization cards in evidence, all of these 183 are removed from this immediate issue of authenticity. Also in defense the Respondent called Paul Osborne, another handwriting expert. Osborne said that in his pretestimony preparation, he studied more than 700 cards, including the 420 which the Respondent put in issue and the 302 as to which the parties stipulated. Of them all he was questioned only as to 11, and as to these gave varying expressions of opinion. Inasmuch as he is an expert in the field, was called in support of the defense, and studied all of the cards, it follows that in his professional judgment he found nothing in any of the remaining cards that raised serious doubt as to authenticity in his mind, at least not enough to warrant comment at the hearing. Some comments are in order at this point. In the course of their testimony both experts took pains to make clear that whenever they were saying, with respect to any single disputed signature, that in their opinion it was or it was not signed by the employee in question, they were voicing only an element of probability. a degree of certainty, more or less. They consistently explained that they were not saying this card or that was positively, and beyond question, written or not written by the same hand that appeared on the agreed-upon standard. Thus each of them detailed how there are always certain differences and certain similariti,s between any two signatures examined. Osborne spoke of "individual normal variations," of "one difference" being "a controlling factor" and some "similarities" being "simply coincidence." And Tholl commented upon "writ- ing variations" in signatures by the same person, as . ell as "occupational changes" that may reveal differences in separate writings by the same individual under different circumstances. In short, their expressions of opinion are not to be taken like the testimony of a witness who says: "Believe me, and may Zeus strike me down with a bolt of lightning if I am lying." As stated above, Osborne, for the Company, seemed to be questioning I1 cards; as to some, at least, it is by no means clear he really doubted authenticity. About employ- ee Woodruff: "I would say that it is possible, or even probable, that the latter [the authorization card] contains a genuine signature. . . . There are certain similarities .. . 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which would indicate that it may be the writing of the same person." Employee Moirano: "I believe they [authorization card and standard ] were probably written by the same person"; Osborne then said one comparison signature was not enough for him to be sure. Employee Thelma Williams: "I feel that most probably the signatures on these two questioned documents were written by Thelma Williams. But again, with the one specimen I would be loath to make a definite identification...:' It is with these thoughts in mind that I reach my own conclusions and make my own findings as a trier of the facts. I have very carefully studied all of the cards in question and painstakenly, more than once, compared the signatures on them with the related signatures appearing on the comparison documents. I find that the following cards cannot fairly be matched with the related standard signatures and therefore may not be counted towards majority in this case. Walcie Greene,6 Bess Lake, Rosa Lee Lamb, Lena Wilkins, and Ethel Cox (Reynolds). There would be no point in itemizing the minute signature differences weighed against similarities, infinitesimal curli- cues which match and which do not match , in the case of these six cards . The duty of the trial judge in this situation is not to argue and persuade , but to make findings under the scheme of the statute.7 Two women, a present and a former employee, as witnesses were shown the authorization cards bearing their names and denied they had signed them . Thelma Johnson's eyes went bad after she left the job and she was therefore unable to see the questioned signature. Of the great many cards in evidence, her's presents perhaps the most extraordinary matching pair of signatures. There is no escaping the finding she signed that authorization card, dated April 7, 1970, and I so find. The same is true of a card signed by "Angelic Cucuzza ," when compared to its related W-4 form signed by Angeline Cucuzza . Angeline Cucuzza, the employee, looked at the card and said she did not sign it, although she did remember signing a card, adding that her name has an "n" in it-Angeline. She also said she sometimes calls herself Angie , and signs her name that way. There is no question in my mind that she did sign the 'authorization card in evidence and I so find. Compare L. C. Cassidy, 171 NLRB 951. The signatures in these two instances are too much alike to lead to any other conclusion. It is not a matter of discrediting the witnesses; I doubt either of them lied . More likely they simply forgot. Subtracting from the original total of 420 cards the 5 cards found insufficient, the 2 already found acceptable despite contrary testimony, and the 183 authenticated by the employees themselves, there remain 229 for decision. I find that in all 229 instances the card or cards were signed by employees in the bargaining unit, as dated, and all by April 13, 1970. This finding rests primarily upon the comparison of signatures between those seen on the e Greene appeared as a witness and denied she signed the card in evidence bearing her name ; she said she refused the overtures of two organizers who went to her home. Charles Ward, a union organizer, was called later to rebut her testimony, but the story he told is not convincing for that purpose. He had no personal recollection and spoke only of what was written on a document placed in his hands at the moment , and which he said he had prepared after calling on the lady. The card is dated April 10 but his report was dated April 9 , although he insisted he always filled in the authorization cards and those appearing on the standard or comparison forms. It also rests, in part, upon certain related facts which bear indirectly and generally upon the question of authenticity . All the cards show names of employees at work in the bargaining unit during the time of the pertinent events. More than 95 percent of the employees who testified verified their signatures . They are all variously dated between February 1968 and April 1970, the period during which the Union carried on its organizational campaign. One election was held in May 1968 and another the following April. Many of the cards are stamped as having been received by the Board's Regional Office before the first election, assumably to support the original representation case petition. The record as a whole shows a consistent pattern during the 2- year period of union organizers' soliciting the cards, taking them into their personal possession , funnelling them into the Union's office and then forwarding them to the Board. There is also perfectly credible evidence that they were kept in the custody of the Union-where logically they would be found-and then all placed in the hands of the Board agents when the unfair labor practice charge was filed. Also, many are postmarked as having been mailed by the employees directly to the Union. All this points to a regularity supporting the finding of reliable authenticity. And, finally, I deem the composite testimony of the two handwriting experts as also supporting the finding I make. Both of them examined all of the cards; Tholl said he excluded certain ones because he could not state with assurance that the related signatures matched ; these cards were not offered in evidence. Osborne said he looked at over 700 cards and then questioned only 11, some obliquely and almost tongue and cheek. It is a fair inference, from this, that in his opinion, too, all the rest are authentic. From Osborne's testimony: "But of the 700 signatures that I examined, most of them that I examined I was satisfied were most probably genuine." F. Are Authorization Cards Reliable Evidence of Past Intent? The Respondent's second attack on the authorization cards was variously stated throughout the hearing, and is repeated in many guises in its brief. When so ingeniously articulated the argument sounds other than what it really is, but in the end always reduces itself to the simple proposition that absent personal testimony by each and every employee the cards do not suffice to support a finding that in April 13, 1970, the persons who signed the cards really wished to be represented by the Union in collective bargaining. There is a difference between questioning the authenticity of the signatures and attempt- ing to nullify the plain language of the printed cards, and no amount of discourse can mask the distinction. Again and again counsel for the Company complained that the report immediately after the visit . He said he always initials the back of cards he obtains, but this one has no initials at all. His report says nothing of the lady signing any card . Ward stated at the hearing that he 'inferred' she signed from the fact his evaluation of the total conversation lead him to conclude Greene favored the Union. 7 Aero Corp, 149 NLRB 1283; N.L.R.B. v. Hunter Engineering, 215 F.2d 916 (C.A. 8). THE M. O'NEIL COMPANY 171 General Counsel, by not himself calling all the employees as witnesses, had unfairly, and unlawfully, shifted the burden of proof to -the Respondent . What burden of proof? There is a primary one and a secondary one. The first rests upon the prosecution , and it is to establish affirmatively that enough of the employees actually at work on the refusal date had expressed themselves in favor of the Union; the prosecution did this by proving they had signed, in plain and unequivocal language , written authori- zations. The second burden of proof rests upon the Respondent in such a case , if it so wishes to defend, and it is to come forth with convincing evidence that despite the clear language of the cards the employees who signed were given to understand, by whoever solicited their signatures, that the real .purpose was an object inconsistent with what the plain printed English said. This is a fairly large unit of employees for an authoriza- tion card-refusal-to-bargain case, up to this time anyhow. There has been a certain amount of turnover in personnel, people have died, a number retired, many have moved away from the area, and still more have simply left the Company, or may be there and do not want to be bothered anymore with the whole business. Who knows but some may have been so adversely affected by the Respondent's threats to turn the whole downtown store into a warehouse that they are just afraid to appear, in court at all. Developments of this kind are to be expected in so large a store and with the passage of time. But, it must be said again, all this could have been avoided. If the Respondent wished to be spared its present predicament of having to search for employees who might help it carry a defense burden, all it had to do was either permit the election process of the Board to serve its intended function by not committing unfair labor practices, or agree , as the Union requested before the election, to submit the cards then to some impartial observer. However the defense position be viewed, it appears as total rejection of the Supreme Court holding in Gissel. The Court unanimously ruled that where an employer's preelection misconduct is of such a nature and extent as to make a fair election impossible, it is just and proper to look to previously signed authorization cards as reliable expressions of intent by the employees, and if a majority is proved in this way to order the employer to bargain in remedy now for its unfair labor practices. To reject the cards, and to require that the General Counsel call the employees as witnesses, means asking them now, after the intimidating behavior of management agents, whether or not at the time they signed the cards they really intended what was written thereon . But this is no different than polling them in secret ballots. In fact, repeatedly as the long stream of employees were called by the Respondent, its counsel asked them one after another that very question : What were they thinking when they signed? The question came in many forms, sometimes only by leading questions, sometimes by outright inquiry as to their past s By Respondent's counsel on the record: I submit we are not going to the state of mind retroactively. We are only trying to present the best possible evidence from that witness as to what she must have been told was the purpose of the card. 9 The Supreme Court speaking in Gissel: We also accept the observation that employees are more likely than state of mind. Counsel attempted to justify the technique on the ground that with the passage of time memories fail and that the question was therefore proper. He argues that if the witness now says her past intent was solely to bring about an election, or solely to receive union literature, it follows of necessity this is precisely what the union organizer who solicited her said to her, else why would she have thought that?8 It is an ingenious theory, but transparent. Counsel was still calling for a present expression of intent, no different from what an employee is asked when she enters the polling booths. But the Court has ruled it is not possible fairly and reliably to ask the lady now, after she has been too seriously intimidated by the boss.9 Of the 420 cards included in General Counsel's Exhibit 11, then, 6 are eliminated because the signatures cannot be found authentic, leaving 414. Of the persons who signed them 186 appeared as witnesses (plus Walcie Greene, one of the 6 whose cards have already been eliminated). Deducting 186 from 414 means there are 228 authentic and clear authorization cards with no cloud of doubt cast upon them. I find that all 228 are valid for majority counts in this proceeding. G. Testimony by Employees Who Signed Cards The count towards the Union's majority status at this point stands at 530-302 stipulated cards, plus 228 cards valid because unambiguous and unimpeached. 1. Forty-three employees called by the Respondent, all of whom signed cards, gave testimony so barren of anything that could invalidate their cards under Board law that this Decision would be pointlessly burdened by detailing it here. No two stores are exactly alike, of course; an occasional one starts in one vein only to become clearly valueless as an attack on the clear authorization spelled out in the card. Most of the witnesses in this group said no more than that they were told the card was "to get a union in" (McLaughlin), or to "show we were interested in joining the Union" (Quirk), or "to try to get a Union" (Wanda Long), or that they "understood"-but without quoting anyone-it was "to aquire a union" (Gill). One woman, Miller, after saying she signed after being told "it would help get the Union in," added she later sent back union literature with a notation she was no longer "interested." It then developed she was referring to a 1971 interrogatory received from the General Counsel in the investigation stages of this case. Another witness, McGeorge, said that after signing her card she wrote to the union to get it back, and then clarified this was after she had left the store, after November 1970. "I thought after we voted, there was nothing else." Cebator was called to say the card was for an election, but she also admitted on cross examination that she paid dues to the Union during 1970. Gabor signed one card and Wheeler signed two. Gabor said she later refused a union agent entry into her not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particular- ly where company officials have previously threatened reprisals for union activity in violation of Section 8(a)(1) We therefore reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apartment because "where I live, you don't make a habit of opening the door to anybody . . . I have high hyperten- sion...." And Wheeler added he told the union representatives to stop telephoning him at home: "I didn't want to be bugged at home. I told them what I made... . Q: Did you give any indication as to whether you were interested in the Union? ... A: No." I find the cards of all 43 of the following employees valid and that they may be counted towards majority. Pebble Bartley Catherine Miller Ada Burkett Frankie Myers Cordelia Cebator Lela Orihel Dorothy Collier Verona Palniateer Clara English Faye Perry Mary Ereth Madelyn Perry Mary Fenkanyn Phillip Quirk Virginia M. Ford Agnes Redl Helen Gabor Sandra Sharier Richard Gill Elizabeth Sholley Alma Hamilton Dorothy Sigmund Helen Hood Helen Simmons Flossie Jackson (married Louise Smith Sunseri) Jennie Kalail Maye Spence Rita Knecht Sandy Maschmier (Stewart) Evelyn Koeberle Josephine Triola Leo Kormanik John Wheeler Wanda Long Emma Wilson Lenore McGeorge Margery Wiseman Elenore McLaughlin Rita Gates Anne Mann Eloise Hawthorne Norma Meeks 530+43-573 2. Of the employee witnesses called by the General Counsel to authenticate their own card , five were ques- tioned by counsel for the Respondent but also said nothing that could invalidate their cards. I therefore find the cards of Janice Achberger (Forte), Sylvia Feeder, Judith Walker, Dennis Long, and Mildred Matheny are valid and may also be counted in. 573+5-578 3. I also find to be valid the cards of Thelma Johnson and Angeline Cucuzza, who did no more than deny their signatures. 578 + 2 - 580 4. Thirty-four employees called by the Company spoke of being told the cards were for an election. They articulated the idea in a number of ways, some said they heard such words from the solicitor, some that it was general talk, some that they just formed such an impres- sion, and some simply that this is what they had in mind when they signed. For example, Siegenthaler: ". . . there was no explanation as what the card was and I took it on the assumption it was just to get enough names for a vote." Helena Heid: "I thought it was to have an election." Allman received the card in the mail, she read it, she understood it, and then the company lawyer asked: "What did it mean? . . . A: It meant we could vote the Union in or we could vote it out." Korman remembered hearing "Let's get the Union in . . . Hurry up and sign to have an election and that we wouldn't have to pay the initiation fee." Coble: "I thought that they had to have so many signed up to have an election . . . I guess it was for the Union to represent us as far as I know." Imes : "I asked him how many cards he had to have before he could have an election, and he said he had enough cards to represent the store without an election but there would be an election." Stoker: "I just know in my mind I thought, you know, if you signed the card, that would let the Union come in so you could vote for or against it." Testa picked a card off a counter and signed; she said no one told her anything about the card, but that she thought the reason for signing was to have an election. It must have without doubt been common knowledge and general talk throughout the store all during 1968 and 1969, when most of the cards were signed, that before the Union came "in" there was going to be an election. The Respondent's lawyer had announced that decision as a fixed policy determination by the Company at the very beginning of the representation case hearing as far back as May 1968. That the word "an election" means people vote, and that when they vote they can vote either way, is a truism. The fact some of the people said they knew they could vote as they pleased, or were told they could vote as they pleased, can hardly serve to obliterate the fact they also agreed, by their signatures, the Union could bargain for them forthwith.10 The two thoughts are not inconsis- tent or mutually exclusive. This is why the Court in Gissel took pains to underscore the word solely when it said it would be different if the evidence proved the employees were told the card was to be used only for an election. In urging out-of-context quotations from the testimony of various witnesses, Respondent throughout its brief repeatedly equates the phrase "there will be an election" with the words "there will be only for an election." It simply refuses to accept the unanimous decision of the Supreme Court in Gissel: "In resolving the conflict among the circuits in favor of proving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature." There is nothing worthy of repetition in the testimony in any of these 34 witnesses that could possibly support any finding they were told the purpose of their card was solely to bring about an election. Angiullo said he signed and knew an election "would eventually come," and then proceeded to pay union dues from June 1969 through December 1970. Grell signed a third card in October 1969 and paid dues for the next 3 or 4 months. Accordingly, I find the cards of all the following 10 Cumberland Shoe, 144 NLRB 1268. In Levi Strauss, 172 NLRB 732, cards.... Thus the fact that employees are told in the course of the Board said: "Declarations to employees that authorization cards are solicitation that an election is contemplated, or that a purpose of the card is desired to gain an election do not under ordinary circumstances constitute to make an election possible, provides in our view insufficient basis in itself misrepresentations either of fact or purpose . That purpose . . . is one for vitiating unambiguously worded authorization cards on the theory of that is entirely consistent with the authorization purpose expressed in the misrepresentation." THE M. O'NEIL COMPANY employees valid majority. Merlin Akins Letha Allman Nicholas Angiulo Ethel Bennett Robert Brouse Margaret Brown Mary Buchanan Ralph Coble Diana Crooks Frances Davey Karen Foster Bertha Grell Elberda Hall Ruth Hatter Helena Heid Marvin Lee Hill Virginia Hopp and that they may be counted for Archie Hunt Anna Imes Alexandra Isakov Helen A. Jones Amelia Kaforey Ann Keberle Bertha Korman Geraldine McDonald Elizabeth Maguire Mary Michael Hope Quesenberry Dorothy Reynolds Marie Stoker Helen Swinehart Margaret Testa Estelle Woodley Arthur Siegenthaler 580+34-614 5. A few employees were told the purpose of the card was only to bring about an election . In one or two of these cases the witnesses could not recall what individual had done the soliciting, whether it was a union agent or not; they were also not precise as to the exact words they had heard. What is determinative is that these witnesses did quote the solicitors, and were clear as to the thought conveyed to them. The concept "solely" can be conveyed in more ways than one. Mahavich recalled being told that: ". . if you sign the card, it wasn't committing you to anything or even telling you that you could possibly-or that it would even help bring the Union in. That was mainly to get the Union to be able to bring their vote into the store." ". . . she told me that . . . they needed a certain amount of cards for the employees to sign and then they could bring the vote into the store where everybody could vote whether they wanted to join a Union or not. . . ." Jessie Powers: ". . . the instructions were it was just to help to give the Union a chance for the employees to have an election if they wanted it ...." "... she said it was not a binding thing, it was just to get the union so the people could either vote yes or no.... " Margroff: "She said the signing of the card was just to be for an election, so that they could have an election." LaPointe: "He said that this card was only so that we could get a vote into the store so everyone could have a right to vote the way they wanted to.... he said it was only to get a vote into the store, and he said that, if I signed it and the Union did get in, I wouldn't have to pay any initiation fee." Edna Ramsey quoted the solicitor as saying: "that this card would in no way obligate me-in any way. It wasjust for a free election for the Union." I find that these five persons were told the purpose of their cards were "solely" to bring about an election, and that their cards therefore may not be used towards majority. 6. The attack upon the validity of a group of other cards rests entirely upon an argument drawn from the single word: binding-not binding, or obligated-not obligated. Just as the Respondent sees reason enough in the word "election" for destroying all of the card language 173 which authorizes the Union to bargain for the employees, it also would have it that if an employee were ! told, or believed, the card was not "binding," or did not "obligate" her, it must be found as a fact she did not intend to authorize bargaining on her behalf. One or two witnesses will illustrate the point. Hickok, a clerical employee, said one Deserio gave her the card and that she read it before signing. Twice Hickok said she asked Deseno nothing about the cards. Then: "I asked her if it would put me under any obligation, and she said 'no.' " This is the totality of the lady's testimony about what she heard or was told when she signed. Rich said a union man visited her at home one day to ask was she interested in the union, and that when she asked what would it do for her, he said it "would help him if he had so many names he could hand in or something to that effect." Rich also quoted the union agent as "He said it would not bind me in any way.. . Something to that effect, I cannot remember the exact words . . . that I would not be obligated in any way." The man then told her she "should think it over and he would leave the card in the mail box." Rich found the card in her mailbox, read it, and a week later signed and mailed it back to the Union. Fikes also received a home visit. She testified the organizer said he was "getting them [O'Neil's employees] to sign a card to show they was for the union, that is all." Her father asked the visitor "if it had any obligation to it," and he answered, still according to Fikes . . there was no obligation. It was just to show I was for the Union." In like vein, Mazak: The union man came to the door one day: "I just told him I didn't know if I was interested. He said well, it didn't bind me or anything, it was just to show I was interested in getting the mailing literature." She accepted the card, read it, "deliberated over it a little bit and then signed it and dropped it in the mail on my way to work one morning." Goss was a secretary and received a card inside the store. "I was interested in receiving literature, and I was told I would receive literature concerning the Union if I signed this card." Several times she said she remembered nothing else, but also added the solicitor said "that I was under no obligation." She mailed the card in later. Is this affirmative evidence, sufficient to rebut the direct authorization language in the cards these persons signed? Is mere use of the phrase "not obligated" or "not binding" a "misrepresentation" as that word was used by the Supreme Court in Gissel? I think not. I find all five of these cards perfectly valid authorizations. 614+5=619 7. The things to which an employee is not obligated, is not bound, when he signs a card, are countless. The words are too nebulous to be given concrete definitive meaning, or any exact purpose inconsistent with immediate authori- zation for bargaining. Indeed, the fact that in the minds of the employee "not being bound" had nothing to do with the direct authorization of the Union as a bargaining agent is shown in the testimony of several others. Bender: "I asked him [the union agent at her home] if I would have to go to court if I signed the card. . . . He said no. . . . He said there was no obligation if I signed." To Bender "no obligation" meant she did not have to go to court; in no way did the idea qualify her authorization to the union. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Winters said she heard no more than general talk "to try to get a Union in O'Neil's to give us better benefits and to improve our pay." Again and again she insisted she recalled nothing else about what anyone said to her or that she heard. After five pages of direct questioning about whatever else she may have heard and constant repetition that she heard nothing-"As I said, the only reason I signed it was in the hope that perhaps if the Union would be formed we would have better benefits"-came the leading question: "Did anybody tell you whether you were obligated when you signed the card? A: No. As near as I can recall, they said I would not be under an obligation by signing that card." There is no magic in the word "obligated" that could change the import of this woman's total testimony. To her the phrase had no substantive meaning, else she would have spoken about it long before the Respondent's lawyer virtually put it into her mouth. Aronhalt signed four cards, she remembered a great deal of what she was told. ". . . to build up enough support by signatures . . . to possibly start a union.. "... to show if there was enough people to support it . . . a show of interest as for getting enough signatures . . . for trying to get a union in." And then, again in response to a purely leading question: "He said there would be no obligation in signing the card." That the concept of not being "obligat- ed" in no way detracted from the expressed intent to be represented by the Union, appears as clear as can be from the testimony of Werner: "By signing the card it was not obligating me in any way. It was more or less a poll to see who wanted the union at O'Neil's." To the same effect, Klein: "I had asked her at the time if I would be under any obligation with this card, and she said that I wouldn't .. . they were trying to form this Union at O'Neil's-well, just asked if I would sign the card. That is about it." A revealing story is that told by Olegar. When the organizer arrived in his front yard he had a "fear reaction," because above all he did not want the Company to know about any union card he might sign. What had the organizer told him? "Well, I got the distinct impression that the card was being used by the organizers and the Union to give an indication of the probable result of an election, and I got the impression further that the card would not be binding, that it would be sent directly to the National Labor Relations Board so that they could have an idea whether there were enough people involved in favor of the Union, indicating that they were in favor of a union to order an election. . . ." He then had quite a discussion with the organizer about possible union bene- fits, in which the agent also "indicated that the purpose was to show the probable number that could be expected to vote in favor of the Union. . . ." In the course of cross- examination intended to show Olegar had read the cards before signing, came this question and answer: "Did you indicate to Mr. Forsythe [the organizer] that you would vote yes? A: The signing of the card indicated that." Whatever the phrase "the card would not be binding" might mean, there can be no question but that in this man's mind it had nothing to do with the state of mind represented so clearly in his card. I hold that the mere use of the phrase "not binding," or "not obligated," in the course of a solicitation conversa- tion, no more invalidates an authorization card than does reference to an election to come. I find the cards of the following employees valid: Bender, Winters, Aronhalt, Werner, Klein, and Olegar. 619+6=625 8. There are other cards of- which witnesses spoke in like fashion. In some instances again the sole word obligated or binding appears, with no explanation, with no affirmative indication it had any meaning relating to the authorization so clearly spelled out in the card. Some witnesses referred passingly to both the idea of the election and to the phrase not binding, or not obligated. When the witnesses spoke of both an election and not being obligated, of necessity it must be taken as a comment on what election means, i.e., you vote freely. But the fact the employee knows, or is told, that in an election one votes freely, or is not obligated, simply does not run counter to the explicit authorization to bargain. Ruby Hall said the union man told her "it was a card to give us the right to vote for or against a union . . . . They said that the card was not binding and that no one would ever see the card but them." She asked was she obligated in any way, and the answer was no. Sharon Jandecka's total testimony is that when two fellow employees asked her to sign she asked was she "obligated in any way," and they answered no. Karen Hamilton listened to an organizer discuss union benefits and then signed the card at his request. "He said it was to indicate that I had been contacted and that they would like to have a rough estimate of how many people were for the union . . . . He said that I was under no obligation in signing this." Mary Thomas said she received a card from "a friend that I worked with . . . she wasn't one of the big officials," and testified only that the other lady "said it wasn't binding, to sign the card." Channell said that when Dorothy, another employee, asked her to sign, she said, "We wouldn't be obligated in any way, but, if we signed the card, it might lead to union . . . . By getting an election." Channell then added she had once been represented by the Meatcutters Union and had had to pay dues and attend meetings. Dotson signed three cards. She quoted Bittinger, a union organizer: "She said it wasn't binding when she gave me the card, that they were just starting a Union, that they didn't know how things would be." "Q: Did Mrs. Bittinger tell you the purpose of the card? A: Well, they would try to get a union in the store. That is the only thing that was said to me." I find the cards signed by Hall, Jandecka, Hamilton, Thomas, Channell, and Dotson valid. 625+6-631 9. Sixteen employees spoke of the cards serving as insurance against later paying initiation fees to the Union in the event it won the expected election, or were recognized by the Company otherwise. All but three or four of these simply said they heard rumors to that effect, or general talk, or merely believed such would be the case. A few testified they were told this directly by the solicitor. No matter how the thought arose in their minds when they signed, and regardless of whether it did or not, such talk at the time of signing could in no event invalidate any of their cards. Accordingly, I find that the cards of the following THE M. O'NEIL COMPANY 175 employees valid and that they be counted towards the exact words, but I was under the impression it was sort majority. Allen, June Baker, Ida Coleman, Barbara (Blankenship) Evans, E. Jane Fuhrman, Ellen Green, Jerold Hanes, Grace Klug, Mary Jo (Columbo) Phipps, Elizabeth Rezack, Helen Saffels, Mattie Skacevic, Rose Smith, Margaret Stark, Ruth Woody, Emily George, Karen 631+16=647 10. A phrase here and there by some witnesses indicated talk about the cards not being shown to management representatives ,, or being kept secret. In most instances the total testimony of the employee shows clearly the idea, whether voiced to her by the solicitor or whether merely something she now says was a feeling she had long ago, was practically of no significance at all. One of the many assertions advanced by the Respondent in its attack upon the cards, is that if the employee was told her card would be kept "secret," or not shown to the Company, it follows she did not intend to authorize bargaining, and never mind the fact she said so in writing. The argument has been rejected too often to justify rehashing here. Sadaker: "He said they were trying to organize a union at O'Neil's for the purpose of protecting people who worked there.... He said nobody would see the card except the Retail Clerks' union representative or the Government." Stratton: "She said it would be a good thing for all of us to get the union in the store. . . . She said they wouldn't let anyone know that I had signed the card." Strabley: After five pages of questions and answers during which this girl could recall nothing that was said when she signed, she was asked by company counsel: "Q: Did the man who came to your home to get you to sign the card indicate to you that the card would be kept confidential? . . . The Witness: That was my understanding." Rufener: "He said something like-let me see-it was like to represent you for O'Neil's or for the Union or whatever, and I think it was just to see if you did want the Union; but then I thought he said, you know, it wouldn't be used." I find the cards of Sadaker, Stratton, Strabley, and Rufener to be valid and includable in the Union's majority showing. 647+4=651 11. As already stated, many of the witnesses were unable to recall the conversations which preceded their signing of the cards, and in varying degrees spoke instead of their intentions at the time. Of those who did quote solicitors or fellow employees, a great number also added, often before objections to questions could be ruled upon, comments as to their past mental state . In the lead decision that must govern the issues here raised as to the reliability of clearly written authorization cards, the Supreme Court said : "We, therefore, reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry." Four witnesses offered nothing but comment as to their past subjective motiva- tions. Bills, then a college student, said: "I don't remember of a survey or something of that sort. I wasn't obligated to the Union or anything like that. . . . I thought it was like a survey." "That was the impression. . . . That was in my mind." Baer said she feels that union business, "Like religion and politics," is "something you should keep to yourself," and therefore spoke to nobody about her card. She took one home and signed it. "I did not really feel I was obligated at that time." Mary Roberts carried a card with her for days, then signed and mailed it to the Union. She could not recall who gave her the card, where, or what anyone said. She added she heard the rumors that "it would cost more if we didn't join now or we might lose our jobs or something like that ...... She then volunteered, "I signed out of fear . . . maybe losing my job." See signed after several telephone calls from union solicitors who talked to her about possible benefits; she had previously hesitated because "I just didn't know exactly what they had to offer." She then added that later "I was left with the impression that, if I didn't join the Union, the Union would have preference, if they got in, our jobs; in other words, if there happened to be an opening and I wanted it, it would be given to a Union employee over me. That is the way I understood it...." I find the cards of Bills, Baer, Roberts, and See valid and shall count them towards majority. 651+4=655 12. Some things union organizers say they should not say. There are misrepresentations that by their nature should, and do, invalidate cards notwithstanding the clear language. Catherine Harig, quoting the solicitors: "She said if we didn't sign the Union card, we would not have a job. You know, if the Union came in and we didn't sign the card, we wouldn't have a job." Mrs. Harig has seven children to support and is separated from her husband. Edwin Leary was told by the solicitor "The union is coming in. It is here, sign up, and, if you don't, you know what is going to happen. It will be rough on you if you don't join now." I think this sort of solicitation borders too close upon intimidation or threat to be considered consistent with a true intent to authorize immediate bargaining by a union. I find the cards of both Harig and Leary invalid. Mary Marz said she signed after the solicitor "said if I didn't sign it I'm gonna be in trouble." A union agent called her on the phone later and asked was she scared, didn't she believe in the union? Marz also testified she sent a letter to the Union about a month later, therefore still in 1968, asking that her card be returned. Bittinger, a union organizer, called later in rebuttal, recalled she did see such a letter in the Union's office and gave it to the chief organizer. I reject Marz's card from the count here. 13. With respect to a number of cards the Respondent makes a particular argument based upon one employee or another having been told that in the election that in all probability would come they could vote in secret, or either way. In his brief the lawyer asked a perfectly understanda- ble question: How can you say the employee committed himself to be represented by the Union just because he signed a card saying so, if at the same time the thought was in his mind that he could vote otherwise in an election? He says these cards must be disregarded as a matter of logic. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No need to defend Supreme Court rationale here; the Fifth Circuit Court did so in N.LRB. v. WKRG-TV, supra, when it directly applied the Gissel finding that a card is not invalidated because the employee was told "he had the right to vote either way, even though he signed the card." Elizabeth Barton was told there would be an election and that ". . . in signing, I would give the people an opportunity to decide whether they would like to have the Union at O'Neil's and that it did not obligate me in any way whatsoever." Neil Fritz: "He [the solicitor] told me it was to get the election so we could vote for the Union or against the Union." Martha Long said that when the solicitor came to her home ". . . I thought I should be in favor of the Union" because her husband belonged to one, and that the agent "assured me the card was not binding and that, when the voting came up, I could vote any way." She then added that later, after hearing the company president, Emma, talk about the union, she decided "it was best not to get the Union in." Carolyn Poston (Sweebe) signed two cards, one in 1969 and one on April 6, 1970. Her first statement as to what she was told in the initial solicitation was: "That the purpose of the card was to see how many people was interested in the Union. That was the purpose of the card, that no one would see the card, and that was all that was said." She then repeated the same statement. She quoted the 1970 solicitor at her home the same way: "Same thing as before, that they would just give me the card to sign and, if I wanted to sign it, to sign it and they just wanted to see how many people was interested in the Union. That is all they said about it." At a later point the witness simply commented: "This was the purpose of the card. It wasn't no vote or anything." Patricia Spayne, a college student at the time, signed a card on April 8, 1970. She said the union agent talked to her for almost an hour in her house, and spoke at length about the many possible benefits in conditions of employment. She read the card, including the "fine print," and signed at the end of his visit. She quoted him at the hearing as saying "I was not obligated by any means, that it just showed I was interested in the Union and that was all." Alice Buzzelli signed three cards, two in 1968 and one in 1969. About the first one she quoted the organizer as saying ". . . that I wasn't obligated, that it wasn't a vote, but he said it was up to me whether I signed or not." She went to union meetings later but could recall nothing about what was said in connection with her separate two cards. After much questioning by the lawyers, which somewhat confused her, I asked her just to state whatever she herself recalled, disregarding all the prompting. "Just give us whatever you remember. If you remember the idea or the words-... . The Witness: Not obligated. I signed it on my own." David Smouse, a witness called by the General Counsel to identify his own signature. Under examination by Respondent, he said union agents came to his home and spoke "about the Union and giving remarks of how we could benefit if the Union was established at O'Neil's." The witness then added his understanding was "they were looking for support to see how much support they could receive-if they had enough to even botherwith an election, you know, trying to get into O'Neil's" and that they did say the reason they wanted him to sign up was "to see if I felt I would support the union." He also quoted the agent as saying there would be an election and "the card did not obligate me to vote for or against. I could change my mind." Smouse's total testimony fits the pattern of all cases where employees know they can vote "either way" in an election. The import of his story is not changed by his answer to a leading question : "Q: Did they tell you this? A: Tell me that I was-Q : That you were authorizing the union to represent you only if they won the election? A: Yes." The witness also said, after this leading question , that when he signed the card he was "in favor of the Union." I find the cards of Barton, Fritz, Long, Poston, Spayne, Buzzelli, and Smouse valid cards. 655+7=662 14. I find the cards of Dorothy Jandecka and Dorothy Farley also valid. Jandecka testified that when solicited she said she would go to meetings if she "knew where and when," and was told if she signed she would be kept informed and learn more about the Union . Farley said that two solicitors explained various union benefits to her and that she told them she "really" had not given the matter much thought. She then added they told her "she would be able to go into the meetings and hear both sides of the thing" if she signed, and she did. See N.LR.B. v. WKRG-TV, 470 F.2d 1302 (C.A. 5, 1973), enfg. 190 NLRB 174, employee Bauman. 662+2=664 H. Leading Questions There is a considerable group of employee witnesses who vacillated in their testimony, first saying they were told one thing and then seeming to recall something else. Some of these had mixed up recollections of what they had heard at the time of the solicitation; they merged present thought processes of what old phrases of necessity meant to them with outright statements to what they intended, but did not articulate when they signed. And in a great many of these instances, testimonial phrases that might in isolation cast doubt upon the validity of their cards were elicited by pure and repetitive leading questions by company counsel after the witness had given direct testimony to the contrary. The validity of their cards now cannot be summarily deter- mined by a single phrase out of context from their total testimony as the Respondent would have it in his brief. The most reliable testimony of what employees were told by union organizers when they signed is, of course, what as witnesses they themselves recalled. The total testimony of the 187 employees called by the Company cannot be reprinted here, but it is a fact that throughout, in the questioning of one witness after another, company counsel persisted in trying to extract a single "yes" to the purest leading questions which contained what the Respondent now calls the magic word sufficient to invalidate a great many cards. Its brief discusses the total record as though what came from the witnesses as unprompted recollection does not exist. Where the burden on the Respondent is to prove contemporaneous inducement in words destructive of the clear and unambiguous language of the authoriza- tion which the witnesses-all English-speaking adults -read and signed, responses to such leading questions are especially valueless. See footnote 8, above, and Liz of THE M. O'NEIL COMPANY 177 Rutland, 156 NLRB 121: "It would be unrealistic to ignore the Respondent's illegal conduct toward the employees during the period,between the signing of the cards and the time of the hearing." Harold Enders: This man signed two cards, each at the request of one of the more enthusiastic and principal employee organizers. Asked directly to repeat what the first had said to him when requesting his signature, the answer was: "He told me to sign the card and if we would get enough cards signed up, we would have an election to have the Union come in." This answer was immediately followed by the usual leading question: "Did he tell you that was the only reason for signing the cards? A: That is right." As the questioning continued , the witness had occasion again to repeat what he had been told, and he phrased it as follows : "He told me that if we signed enough cards we would have a union . . . . We would have a vote for the Union." I deem it significant, and determinative, that each time the witness himself stated his recollection, the concept "only" did not appear. I am satisfied he understood what he was signing and meant exactly what the cards say. He even explained precisely the difference between the two cards. "The first card was a membership application. The second card was an authorization for representative-the first one was a representative." I find both his cards valid. Gladys Harris: "He [the union solicitor] said so I could vote for the Union whenever they came in." Then came the leading question: "Q: Did he tell you you could vote either way? A: Yes." Asked to state what in fact she recalled was said, Harris then added : "I don't remember, but that is what I think-that you could vote when the vote was-either way. If it wasn't, why would you vote?" In my considered judgment the witness was discoursing upon her general idea of what voting is about, and not offering direct testimony giving the he to the card she consciously signed. Again: "Well, all these years I have thought that he said that you could vote either way and, if you couldn't vote either way, why would they have a voting? I mean, if you were voting, why would they have a vote later?" I find her card a valid one. - - - Bertha Krivanich: This woman started by saying she received the first card from another employee and that while there was no discussion about its purpose, she knew the purpose because she read it before signing , and that it was "that we were trying to get the union in." She signed a second card a year later, and read that too. As to this one: "I heard we were going to get a Union, trying to get a union in and that that was why we were to sign the cards." After a certain amount of prompting by company counsel, she then said : "We were signing the card because we were trying to get a Union and we could not vote unless we signed a card." Krivanich admitted all she said was based upon ". . . you hear things-bits of conversation around" ". . . you hear little tidbits, not that it is true. There is gossip 'through the store. . . ." I find her card is valid. Duane Deering: He started by saying the organizer told him "the card would give us a right in the vote for a Union if we would want to be represented by a Union and also that there was no commitment to it other than signing the card; that later on we would have an election, which would be a secret ballot." Asked had the man said what the purpose of the card was, he answered: "Not really, not honestly." Deering also signed a second card but could recall nothing of what was said then. On a second time around, the witness went back to what the organizer had said at the first signing, and it came out this way: ". . . and he said, `We are trying to get a Union in at the store-Retail Clerks Union. We would like to get the names of the employees because we had to have these to bring about an election. We had to have enough signa- tures.' Gee, other than that, I honestly can't recall word- for-word." A third version from Deering was he was told it was not a commitment, it was sort of "a secret thing," "this wouldn't do anything more than just try to see who wanted a Union and who didn't; and that they had to have so much...... All this means to me is Deering heard there would be an election; the rest is his generalization of what an election means and he was right. I find his card valid. Barbara Beichler: This woman vacillated depending upon how questions were put to her. Asked at the start did she recall what discussion there had been with employees who gave her the first card-in June 1968-she said: "No, except there wouldn't be any obligations." Counsel persisted: "Q: Any discussion about whether or not the card was binding on you at all? . . . A: No. Q: May I ask you again whether or not there was any discussion in which you were told the card would be binding? A: No, there wasn't!" And then again the leading technique of mixing up the witness: "Q: Wasn't what? A: Binding. There was no obligation. Q: And the card was not binding? A: Right." Asked later to clarify, to try to "remember better just what they said to you about the subject, about being obligated or not being obligated," she said: "I can't remember what she said." Beichler received a second card in 1969, mailed it in and recalled no conversation at all about that one. I do not deem this testimony sufficient to invalidate either of her cards, both of which I find valid. Mary Ann Smith: This witness signed two cards but was very antagonistic toward the Union at the hearing. Her testimony is confused and inconsistent. As to union organizers-a woman named Bittinger and a man named Langley-she said they spoke to her "just a couple of minutes," but that otherwise "they just kept mulling around. I never really came out and discussed Union with anybody other than on the floor in a group. I mean, it really wasn't a conversation." Asked had any organizer said anything to her, she answered: "Well, there was some other women there, and they said, you know, to sign the card to see how many people were interested in the Union. It wasn't binding at that time. Q: Did you say anything at that time? . . . The witness: I said I didn't want any money coming out of my pay, that it wasn't a binding thing." Quite apart from the fact that to this lady "not binding" means being free of payroll deductions, her testimony cannot fairly be read as quoting anyone on the subject of binding or not binding. It was her concept and it was she who raised it. I find her cards valid. Ritsuko Smith: In answer to the direct question what did the lady who gave her the card say, Smith answered: "I asked her why must sign, and she said to get a vote." Counsel for the Respondent then handed the witness a 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questionaire she had received from the Board in June of 1971, more than a year after the demand and refusal and after President Emma's direct threat to turn the whole company store where this woman still works into a warehouse with everybody discharged . On the back of the questionaire there was written-by the witness' husband and signed by her-a statement that she had signed the card "only" for an election. Counsel then asked her: "Is this what the lady told you-what you wrote on your questionaire? A: Yes" The word "only" never came out of the witness' mouth at the hearing. Asked a second time what the solicitor had told her, she answered : ". . . she brought this card and said , `Mrs. Smith, you must sign.' I read the card, I asked her what for, and she said to make a Union. She said, 'We need a vote' I said, `Why must I sign?' She said, 'Everyone must sign, all employees.' I just quickly signed, that is all I remember." I find this lady's card valid. Mary Yeich: This lady's testimony, only two pages on the record, is perfect illustration of the difference between pure recollection by the witness-or her own reliable testimony -and the result of prompting intended to change her story. She is a secretary; no claim possible here of the woman not understanding what she read and signed. What did the other employee say? "A: She said we would get the same benefits the rubber factories got-wages, pensions, you know. She stated I was under no obligation to sign this, but I would be signing on my own ." In the face of this clear import of the word "obligation" from the witness herself, counsel asked her again what was said about obligation. Now the statement by the solicitor changed. "She just said if I signed it, I wouldn 't be forced to vote for the union, that it was just to let them know I was interested in having them represent O'Neil's, but I had no one approach me and definitely state what the Union could do, you know." There is no question in my mind that that witness gave a far more reliable version of the solicitation talk when she first stated it. I find her card therefore valid. Margaret Fox: Like Yeich, this witness, too, gave a perfectly straight story while relating on her own what she remembered . Later, with deliberately confusing questions, her story also got mixed up. At the beginning she said, "We were always talking about the Union" and the girl working next to her told her to "Sign the card , saying we wanted the union. . . . If we signed the card, it meant we wanted the Union, and if other people signed the card , it meant an election to get the Union in." Then started the questioning by the Respondent. "What did the card mean to you -signing the card?" "That I wanted it. It didn't mean I was joining the Union. If we signed the card and the Union came in, it meant we didn't have to pay the initiation fee." Counsel then asked was there any discussion about whether "or not the card was the vote for the Union?" And Fox answered "It wasn't a vote." At this point this was not the witness quoting anybody, but giving her conception instead of what an election means . Counsel kept pressing: "Q: Is that what you were told? A: That it was a vote? [sic on the question mark] Q : Whether it was a vote, were you told that? A: No, it was not a vote. They didn't say anything about a vote. Q: Were you told it was not a vote? A: There wasn't anything said about it being a vote, no. The voting is in the election room . The card is not a vote." This lady signed a second card in April 1970. What was she told then? "Yes, just another card saying I wanted the Union." I find Fox's cards valid. Alice King: This witness' testimony consists of practically nothing but comments as to what she once had in mind, barren of anything probative of what anyone said to her when she signed. Did she remember any discussion with the employee who gave her the card? "No." Did she talk with anyone before she received the card? "No. I think it was after." Again, the same question and again, "No." "Do you know what the card was about? A: Yes and No." "Q: Did you talk to somebody about it before you signed it? A: Not one person in particular . There was just talk around like the lunchroom or something like that ." And then, what had she heard? "That they would need so many cards and that to have an election so many signed cards-they needed so many signed cards to have an election." Then came a series of leading questions. Was there talk about what the card meant, about obligation, and always the answer was "No." And Again: Did anybody say it was for an election? "I think that was maybe the general-sort of general idea, yes." Finally, the completely leading ques- tion: "Were you told that there was no other obligation or anything else came from signing the card except getting an election? A: Getting an election. Q: What was your answer to the question? A: Yes, getting an election." And again: (By Mr. Millisor) "Were you told that the card was not like a vote? ... The Witness: Yes." It would be a travesty of justice to hold on this sort of interrogation that this witness herself testified she was told, before signing her card, by any representative of the Union, that the purpose of the card, which she admitted reading, was solely to bring about an election . I find her card valid. Florence Kelly: This woman presents another example of the type of testimony upon which the Respondent relies very largely to avoid the basic principles reaffirmed in the Gissel decision. Asked what the solicitor had said, Kelly stated: "Well, she said it was to get a union in and they had to have a certain percentage of cards in order to get a vote." She added the same thing was said when she signed a second card. She then said she remembered nothing else the solicitors told her, repeating, as she went on, "She [the solicitor ] just asked if I would sign a card to help get the Union in. She didn't argue or fuss with me. They just asked if I would like to sign a card . They had to have more cards; so I signed another card." On the last transcript page of this lady's testimony appears the following: MR. RICE : Referring now to the first card that you received from Mrs. Ringwalt, did she state that the only purpose of signing the card was that you needed a certain percentage of cards to get the election? JUDGE Ricci: That was Ringwalt. Tim WrrNEss: Yes. MR. RICE : Nothing further. MR. N.&nssN: [Counsel for the Union]: I would like to ask the witness to please tell me again in her own words what Mrs. Ringwalt said. THE WITNESS: She asked if I would sign the card. I asked what will the card be, and she said to get the THE M. O'NEIL COMPANY percentage of cards signed up in order to have a vote-an election, rather, to get an election in." I find the word;`only" is not part of the witness' testimony at all. In truth it was put there by Respondent's counsel. I find her cards valid. Clyde Potter: This man was one of the original organizers ; he went to the union hall to obtain 'cards -maybe 500 of them, he "might have called' Hennigen to arrange the first union meeting. He started by saying another organizer told him the cards were "To try to get a vote for the Union, to get the Union in." Counsel then asked him what was the purpose of the cards, and Potter voiced an opinion: "If they got enough people, it would force a vote of the Union." Then again came the leading question: "Did they [the two other principal employee- organizers] tell you that was the only purpose of the card? A: To get a vote, yes, to bring it up, to get the Union in there. As far as I recall, yes, to get enough people signing cards to get a vote for the Union in, to bring up an election. That is what I understood the purpose to be; isn't that right?" In the end Potter said, about the man who gave him the card to sign: "I don't recall that he said anything." This man's card is absolutely valid. 664+ 12 - 676 1. Miscellaneous Olivia Parker: This lady testified two organizers talked to her at home about union benefits-wages, pensions-and also said : "When I signed the card I was under no obligation, you know-nobody would know how I voted. They told me I was under no obligations by signing the card." Her later testimony indicates what she was really told is that obligation meant obligation to vote. Asked again what the men had said about obligation, she answered: "What was that, please-if I would be obligat- ed? By signing the card, I would be obligated." She read the card and signed it. I find her card valid. Anita Schmidt (Marcella) signed two cards, one in 1968 and one on June 5, 1969. She testified that after signing she received a "form" letter from the Union asking had she signed the card and that she returned it with a notation that she had but "didn't want to have anything to do with it any more." She said this occurred "I would say about 1970." Asked did she recall the second election and when the form had been received and returned "in relation to" that election, she answered: "It was way before I sent the letter back." She was referring to a general interrogatory letter mailed out to many employees by the union after she left, as her testimony otherwise indicates. As it is clear her letter of disclaimer came after the demand and refusal, I find her card valid in this proceeding. Areta Shannon said two union agents were at her home about an hour and a half talking to her about union representation. Her first recollection was: "Well, they said the card was for the purpose of getting enough signatures to hold an election," and that "it wouldn't be binding or anything like that." In the course of the discussion she had occasion to comment to them that she personally preferred to represent herself, "Like, if I wanted to ask my boss for a raise, I would rather ask him myself." To this they explained, as she also recalled, "that I am not the only 179 employee in the store, you know, and that, although the Advertising Department may not need the Union, maybe the rest of the store did." They also told her the benefits they talked about might come to her. She asked did the card mean she would become a member of the union, and they said no. The lady then read the card and signed it. I find her card valid. Deborah Ferrara All this lady testified to as to what any solicitor told her is the following: "I do remember he said I was under no obligation. It was just a card to determine whether the Union got in or not." I find her card valid. Viola Austin: Austin did not question the validity of two cards she signed, the second on April 9, 1970, 4 days before the demand and refusal. She was called to testify that she later wrote a letter to the Union saying she was no longer interested because she was going to quit; she could not recall when she wrote it. She in fact did quit in October of 1972. She then added she wrote the disclaimer letter "about a year before" she left the Company. I find her card valid. Hazel Ramstchaler: A man went to her home, talked about the Union, possible better wages, and ". . . I asked if that meant I belonged to the Union or anything like that. He said no, it was just a procedure. More or less, I figured it was to show that he was there." I find her card valid. An employee need not become a union member in order effectively to authorize it for bargaining purposes. Emma Grecni: If a clear authorization card can only be invalidated in a Section 8(a)(5) hearing by evidence of what was said at the time of the signing, this lady's card is valid. She testified the woman who gave it to her said: "They were trying to get a union in the store." "To see how many people wanted the union is what, at least, I thought the card was for." She also said she had heard later an initiation fee would be avoided if she signed then. To this clear recollection of what was said when she signed, the witness then blandly added that what she was told had nothing to do with her signing, and that the real reason was "to get them [the union adherents] off my back in plain English." This is precisely the sort of mental state testimony that may not be used long after the event, and after the unfair labor practices, to invalidate cards. I find this lady's card valid. Dorothy Deserio: This lady went to union meetings, asked for a supply of cards, and distributed them among the employees; she said she told them to read the cards before signing. The Respondent attacks the validity of the card she signed and suggests her testimony is proof other cards are also invalid because of what she went around telling people. She kept changing her story, without explanation and as the questioning kept changing. Right off she said an organizer, the first to give her a card, said she should sign "so the union would know how many people in O'Neil's would be interested in joining the Union or would want the Union." She was, at the start of her testimony, unable to remember that anything else had been said to her by any union organizer. "All I know is that I wanted to join the Union." She did recall talk about an election but said'the word "obligation" was not mentioned by any union agent. What had she told others herself while soliciting signatures? "I told them it was just a record, that the Union wanted to know how many people were 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in having a union at O'Neil's." "Did you use the word 'obligation' when you asked other people to sign the cards? The Witness: No." Still pressing, the lawyer asked had she "indicated" to anyone the card was not binding. At this point the witness vacillated, but, I think, did not really change her story: ". . . I told them it was just a record-the way I understood it, it was a record so the Union would know how many people would be interested in joining the Union. I told them they were not obligated to do anything. Some of them were afraid. They thought they would be fired, and I think the law allows you to join the Union. You cannot be fired for something like that." I find Deserio's card valid.ii Ednarene Gulledge: Two union agents went to her home, explained the benefits to her, asked her to sign a card and she did. She added that after she had signed one of them said he would use it to show his superior he had been there. She also said that the statement of the organizer was not the reason why she signed, and that she had no recollection of why she did so. In the end she added" "He said there will be no obligations to me for signing it and O'Neil's would not know that I signed the card. This is all." I find her card valid. Doris Schuler: Many years a bookkeeper with the Company, and after receiving and reading union and company literature about the union in the mail, she received a visit from a union representative. Before any pertinent questions were put to her she hastened to say .. I didn't know it was a Union card. I was just asked to sign to show that it was notification that representative had called at my residence." As she continued, it developed the solicitor had made quite a visit, had a drink with her husband, and conversed with him about an organization both of them belonged to. Schuler said that throughout all of this the organizer "didn't talk Union at all," a very improbable likelihood. But she also added she told the man she had "mixed emotions." She read the card before signing it. I think this story falls far short of such misrepresentation as to the meaning of the clearly written card so as to invalidate it now. I find it a good one. Georgia Abbott: This woman is deaf, and talks by sign language, Her husband acted as her interpreter at the hearing. Mrs. Abbott said the solicitor was with her about 5 minutes on his call to her home, and that ordinarily she communicates either by hand motion or by written notes. In questioning the validity of the card she admitted signing that day the Respondent argues she did not know what she was doing. I find her conclusionary statement at the hearing that she did not understand what the card was about unpersuasive. While saying she used neither sign language nor written notes when the agent was there, she also related how the man had asked whether she "wanted to join the Union," and that she answered no. Some communication there had to be. Her testimony is also suspect because she did read the card, indeed filled it out in all its parts in her own handwriting. She also reads English 11 Deserio's testimony illustrates once again the technique of the Respondent in equating pure mental state recalled-which will not suffice to invalidate cards-with probative testimony of what union organizers said during the organizational campaign. From Mr. Millisor's argument on the record: Going back once again, Mrs. Deseno, to the conversation that you had well enough to have filled in an entire questionaire sent her by the Board later, G.C. Exh. 32. She is 52 years old, native born, and I find she understands English well enough. Her card is valid now. Chris Becker: A union solicitor sat 2 hours in this man's house before persuading him to sign. He spoke at great length about union benefits. At one point Becker told the man that as he, Becker, was a carpenter and not a sales person, the Retail Clerks could do him no good and therefore he wanted nothing to do with it. The solicitor continued his blandishments, and the argument Becker recalled hearing clearest was that even if Becker himself might not gain personally, a victory in the election for the union "might help some friends," and that if Becker so wished he could later change his mind. Becker yielded, read the card at the end of the visit and signed. It won't do for Becker now to say he did not use his "judgment" when he signed. If every clear authorization card supporting a Gissel type Section 8(aX5) finding is to be thrown away because at some time or other during the solicitor's sales talk the object of his attention is lukewarm, or even antagonistic, it probably would mean an end to each and every Gissel case ever brought before the Board. I find Becker's card valid. Elena Sasz: This lady, bom in Romania, has been in the country since 1946; she became a citizen in 1951. The Respondent questions the validity of her card on the ground that she suffers from a language barrier and of necessity did not know what she was doing. She testified quite intelligibly without an interpreter. It was she who asked another employee for a card to sign. What did "Authorization for Representation" mean to her? "It is like you join a Union, you be a member, something like that, you know." What does "Representation" mean? "Like representing something." I find this lady's card valid. 676+13-689 Clearly, as it thus appears, the Union enjoyed a majority of at least 689 out of 1298 on the day of demand and refusal. No useful purpose would be served by unduly lengthening this decision with further extended discussion of the evidence relating to the remaining cards of which employee witnesses spoke. A number of them turn on the question whether the oral testimony of an employee, unsupported by any documentary proof, that he expressed himself as opposed to the union, or as "no longer interested," after he signed a regular authorization card but before the demand and refusal, is legally sufficient to invalidate his card in a proceeding of this kind. Or is his mere statement at the hearing no more than indirect recantation of the kind that under the rule of Gissel is of necessity unreliable? Would such a statement by the witness now be any different than an expression of opinion voiced by secret ballot? Were it necessary to decide that question here, I would hold such testimony insufficient to invalidate any cards. The question however is moot because in no event can resolution of the attack upon the with the representatives from the Union that talked with you about signing the card, what was your understanding based upon these conversations as to the obligation, if any, created by the signing of the card? To this, his witness answered : "I didn't feel obligated." THE M. O'NEIL COMPANY 181 remaining cards affect the clear majority status already shown. I find that on Aprit r13 1970, when the Union demanded recognition and the Respondent refused to recognize it, the Union was the representative for the purposes of collective bargaining of a majority of the employees in the appropri- ate unit, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. I also find that by such refusal the Respondent violated Section 8(aX5) and (1) of the Act. The Objections in Case 8-RC-7117 On the basis of the violations of Section 8(a)(1) found, I recommend that the Union's objections to the election held on April 16, 1970, be sustained and the results of the election set aside. The Remedy Having found that the Respondent has engaged in an unlawful refusal to bargain with the Union, I shall recommend that it be ordered to do so upon request and to cease and desist from further such unfair labor practices. In the light of the nature and extent of the unfair labor practices found, I shall also order that the Respondent cease and desist from in any other manner interfering with the rights of its employees to enjoy the statutory guarantees of self-organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular selling and nonselling employees of the Respondent's Akron, Ohio, store, including employees of Audiophone Company of Akron, Incorporated, and all qualified "pink card" employees who on April 13, 1970, were eligible under the criteria set forth in the Board's Decision in May Department Stores Company, 181 NLRB 710, but excluding professional employees, casual employ- ees, temporary employees, seasonal employees, guards, confidential employees, supervisors as defined by the Act, and employees represented by other labor organizations, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Retail Clerks International Association, Local 698, AFL-CIO, was on April 13, 1970, and at all times thereafter has been the exclusive collective-bargaining representative of Respondent's employees in the appropri- ate unit, within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct, by threatening to close the entire store in retaliation if the employees voted in favor of the union, by advising employees to form a company union in place of the Retail Clerks, by telling employees that a vote for the Union would endanger their jobs with the Respondent, by telling employees that the Respondent would replace them with machines if the Union won the election, by telling employees that they would lose diversified benefits and privileges if they chose to be represented by the Union, and by coercively interrogating employees concerning their union sentiments, the Respon- dent has engaged in and- is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]