Westons Shoppers City, Inc.

WESTONS SHOPPERS CITY, INC. 291 Westons Shoppers City, Inc. and its subsidiary Wes- tons Shoppers City of Oswego, Inc., and its licensees Miles Fabrics of Oswego, Inc., Drive-In Restau- rants, Inc., d/b/a Ogden Foods; Arness Sales Corpo- ration; and Lesal Retailers of Oswego, Inc., d/b/a Morse Shoes and Retail Store Employees Union, Local 345, AFL-CIO, Retail Clerks International Association Westons Shoppers City of Oswego, Inc., and its licen- sees andRetail Store Employees Union, Local 345, AFL-CIO, Retail Clerks International Association, Petitioner. Cases 3-CA-5539 and 3-RC-5844 April 7, 1975 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On July 31, 1974, Administrative Law Judge Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, Respondents Westons Shoppers City, Inc. and. its subsidiary_ Westons Shoppers City of Oswego, Inc., filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and con- clusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. We agree with the Administrative Law Judge's ulti- mate conclusion that, in accordance with the views set s The Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge' s resolutions with respect to credibil- ity unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings In sec II,A, of his Decision, the Administrative Law Judge inadvertently states that 16 signed authorization cards were received by the Union be- tween September 19 and the morning of September 21, 1973 The correct number is 15, and the Administrative Law Judge accurately listed the names of the 15 employees who executed those cards. Elsewhere in his Decision, the correct number is given The Administrative Law Judge inadvertently failed to consider the valid- ity of the union authorization card signed by employee Betty Monette on October 19, 1973, which card was admitted into evidence Monette's un- controverted testimony was that she signed the card on the date indicated thereon, she read the card before signing it, and the employee who solicited her signature said that the card's purpose was to give the Union the right to represent her. We conclude, therefore, that Monette's card was reliable and should have been counted toward the Union's majority status With the addition of this card to the others found valid and reliable by the Adminis- trative Law Judge, there was a total of 57 such cards executed prior to the elect ion herein The record shows that there were 80 employees in the unit when the Union's petition was filed in September 1973 and 84 employees when the election was held on January 4, 1974. forth by the Board in Steel-Fab, Inc., 212 NLRB 363 (1974), a bargaining order is an appropriate part of the remedy herein because of the serious and pervasive violations of Section 8(a)(1) committed by Respond- ents. However, consistent with our Steel-Fab rationale, we do not adopt either the Administrative Law Judge's preliminary finding that Respondents violated Section 8(a)(5) or his conclusion of law that the Union has been the exclusive representative of the bargaining unit em- ployees herein at all times since September 23, 1973.2 Further, we disavow the Administrative Law Judge's comments respecting whether Respondents had a "bona fide doubt" as to the Union's majority status for that factor is not relevant to the issues herein. In deter- mining the appropriateness of a bargaining order in cases of this type, the Board applies a standard, ap- proved in N. L. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), which evaluates the severity and impact of the unfair labor practices committed. Here, we find' that Respondent has committed "serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election." Gissel, supra, 395 U.S. at 594.3 ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents, Westons Shoppers City, Inc. and its sub- sidiary Westons Shoppers City of Oswego, Inc. and its licensees Miles Fabrics of Oswego, Inc., Drive-In Res- taurants, Inc., d/b/a Ogden Foods; Arness Sales Cor- poration; and Lesal Retailers of Oswego, Inc., d/b/a Morse Shoes, Oswego, New York, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 2 For the reasons expressed in his Steel-Fab, supra, dissent, Member Jenkins would find that Respondents violated Sec. 8(a)(5). 3 See Royal Aluminum Foundry, Inc., 208 NLRB 102 (1974) DECISION Statement of the Case EUGENE F. FREY, Administrative Law Judge: This case was tried before me on due notice to all parties on April 17 and 18 and May 14, 15, and 16, 1974, at Oswego, New York, with all parties appearing by counsel, after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 USC § 151, et seq. (herein called the Act). In Case 3-CA-5539 the issues are whether or not the Respond- ents named above (1) violated Section 8(a)(1) of the Act by various types of interrogation, threats of reprisals, and pro- mises and grants of benefits to induce employees to vote 217 NLRB No. 52 292 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the'Union in a Board election and to refrain from assisting or supporting it otherwise, and (2) since September 26, 1973, failed and refused to bargain with the above Union, on request, as the bargaining agent of a majority of their employees in an appropriate unit, in violation of Section 8(a)(5) of the Act.' In Case 3-RC-5844, the issue is whether or not Respondents, by the acts charged in Case 3-CA-5539 and other conduct, affected the results of an election conducted by the Board on January 4, 1974, in the representation case, to an extent requiring that the election be set aside and/or a bargaining order issue. The Union filed its petition in Case 3-RC-5 844 on Septem- ber 21, 1973. The Regional Director issued his Decision and Direction of Election on November 30, 1973, and a secret- ballot election was conducted by the Board on January 4, 1974, in which 77 out of about 84 eligible voters in a unit described below voted, with 32 voting for the Union, and 38 against it, there being 7 votes challenged. The parties agreed that the challenge to the vote of Brian Moran should be sustained, and the Regional Director so recommended, find- ing that the remaining challenges were not enough to affect the results of the election. On January 11, 1973, the Union- Petitioner filed timely objections to conduct affecting the results of the election, and said Regional Director on Febru- ary 27, 1974, filed his Report on the Objections, finding that Objections 1, 5, 7, 8, 9(a), and 10, and "other conduct not specifically alleged" raised substantial and material questions of fact which were best resolved by a formal hearing, and ordering that the two cases be consolidated for purposes of hearing and decision by an Administrative Law Judge. At the close of the testimony in the consolidated cases, all parties waived oral argument, but Respondents moved dur- ing and at the close of the case to dismiss the complaint in Case 3-CA-5539 on the merits. That motion is denied on the basis of the findings and conclusions stated below. Written briefs filed by all parties have been carefully considered by me in preparation of this Decision, which was signed and released by me on July 31, 1974, for distribution to the parties in the usual course. Upon the entire record in the consolidated cases, observa- tion of witnesses on the stand, and consideration of argu- ments of counsel, I make the following: FINDINGS OF FACT I RESPONDENT'S BUSINESS AND STATUS OF THE UNION Westons Shoppers City, Inc., is a Delaware corporation with its principal office and place of business in New York, New York, and various facilities and retail outlets in various states of the United States, including its facility in Oswego, New York (herein called the store) owned by its subsidiary, Westons Shoppers City of Oswego, Inc. (herein called Wes- tons-Oswego), a New York corporation where it sells goods and materials at retail. The store is the only facility involved in this case. i These issues arise on a complaint issued February 26, 1974, by the Board's Regional Director for Region 3, and amended at the trial, after Board investigation of charges filed by the Union on January 18 and Febru- ary 24, 1974, and answer of Respondents admitting jurisdiction but denying the commission of any unfair labor practices. At all times material herein, the following concerns were licensees from Westons-Oswego of various operations in the store: Miles Fabrics of Oswego, Inc., operated the fabric de- partment; Drive-In Restaurants, Inc. d/b/a Ogden Foods, ran the snack bar; Arness Sales Corporation ran the jewelry department; and Lesal Retailers of Oswego, Inc., ran the shoe department. Respondents admit, and I find, that at all material times herein Westons Shoppers City, Inc., Westons-Oswego, and the above-named licensees are and have been joint employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. - Respondents admit, and I find , that the above-named Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES' A. The Union's Campaign Employees at the store became interested in union repre- sentation early in September 1973 and called Martin Rose, an official of the Oswego Central Labor Council, for assistance. He brought Nicholas Giannone, an organizer of the Union, to a meeting of about 20 employees in the Hotel Pontiac in Oswego on September 18. Both men explained the purposes of and benefits secured by the Union for employees under various contracts with their employers. In explaining the procedure for organizing a union, Giannone said they needed "committed" workers who wanted a union to help them, and that a majority would have to sign cards authorizing the Union to represent them. He read the wording on the cards to them,' and then explained that when a majority were signed up, the Union would advise Respondent that it repre- sented a majority and demand "recognition." He tried to explain this term by stating that after the demand for recogni- tion Respondents might agree to have a third party check the signed cards to make sure they were properly signed without fraud or deceit, and might then recognize the Union as bar- gaining representative for all the workers. He added that, from past experience, he knew very few employers accepted this proof, so that the Union might have to ask for an election "sometime in the future." He told them the signed cards would be kept confidential and not shown to the Employer or anyone else, unless the Employer agreed to a check by a third party, or if the Employer challenged their execution, in which case the signers might have to identify their signatures before a judge. In answer to some questions from workers, he also said they could come to future meetings and learn more about what the Union had to offer to workers, and its future procedures with the Employer. He then asked those present to sign cards, if they were interested in having the Union represent them, and said he would give out blank cards for distribution to other workers. He received signed cards from 2 All dates stated in this Decision are in 1973, unless otherwise specifi- cally noted 3 All cards distributed and in evidence are clearly "single-purpose" cards which state that the signer, after filling in blanks with personal and job information, authorizes the Union to represent the signer for purposes of collective bargaining, in the terms of Sec 9(a) of the Act. WESTONS SHOPPERS CITY, INC. 19 employees at that meeting., Employees distributed blank cards to other workers in the store the next 2 days, and by the morning of September 21, the Union apparently had re- ceived 16 more signed cards,' and about noon that day Giannone caused a telegram to be sent by the Union's Rochester, New York, office to Respondents at their New York City office, claiming majority status among the Oswego employees, offering to furnish proof of such status upon re- quest, and requesting recognition as bargaining agent of said employees and prompt contract negotiations. Respondents received the telegram late that day and replied by letter of September 26, declining recognition of the Union because of doubt that the Union represented an uncoerced majority of employees in an appropriate unit, and suggested a Board- conducted election was the best way to resolve that issue. At the same time it sent its demand to Respondents, the Union also filed a petition with the Board in Case 3-RC-5844 requesting certification as bargaining agent of employees in a specified unit, advising the Board that it had demanded recognition by the Employer that day without reply Sometime on September 21, the Union received 15 more signed cards from employees who signed them on the 21st.6 On September 23, three union agents had a long meeting with about 55 employees in the same hotel, reporting that the Union had signed cards from a majority of employees, and would send a telegram to Respondents, demanding recogni- tion, and had also petitioned the Board for an election. At this meeting many employees asked questions about what benefits they might get if the Union represented them, whether signed cards from a majority of workers meant that the Union was automatically "in the store" or whether there would have to be an election before the workers could get the benefits of the Union. In answer, Giannone repeated the same possible alter- nate procedures for recognition that he had explained on the 18th, including his view that the Union would probably be compelled to go through a Board election. Six employees signed authorization cards at the close of that meeting.' Bel ween September 23 and the date of the election, the Union received eight more signed cards from employees: Di- ane Galvin, Ruth A. Taylor (Halstead), Nancy Wayler, Mi- chael DiNigris, Ruth Reynolds, Anna Mournighan, Kath- leen Russo, and Dennis Yeager! In sum, between September 18 and the date of the election, the Union received 64 signed authorization cards from em- ployees, out of an agreed number of 80 (as of September 21) or 84 (as of election day) eligible voters in the appropriate 4 Leah Bateman, Mary K. Castaldo, Mary A. Brower, Margante L Combs, Brenda J. Earl, Pauline A Farnsworth, Ann Fowler, Mary R Fox, Eileen Himes, Dorothy Miller, Lillian Moyer, Cecelia Prime, Bernice O'Reilly, Catharine Spilman, Agnes Whitney, Linda M Legate, Louise Zeno, Patricia Stark, and Betty Ann Richards. 5 C. Deban, S Deban, Fultz, Shutts, Cuyler, France, Oldenburg, Winchell, Jeffalone, S. I. Russo, Shafer, Tesonco, Casey, Boyzuick, and Reitz. 6 Cetrkelevich, Ladd, Reidy, Green, Feralfa, M Galvin, DeGroff, Inget, Duciaume (Raymond), Hallman, Mitchell, Perry, Thompson, Burke, and Cloonan. 7 Taylor, Wallace, Ahart, Clark, Todd, and West 8 The above facts are found from a composite of uncontradicted and credited testimony of Giannone, Rose, numerous employees who signed cards and attended union meetings, stipulated facts, and documentary evi- dence 293 unit.' Since Respondents' main defense is that they had a good-faith doubt of the Union's majority status, and attack 44 of the cards as unreliable proof of majority status, the circumstances of execution of the cards as bearing on their reliability for that purpose will be considered in my analysis of that defense below. In appraising that defense, however, it is proper to consider at first the" reaction of Respondents toward the union campaign in the crucial period before the election (September 21, 1973, to January 4, 1974).10 B. Respondent's Reaction to the Union's Campaign On September 23, Earle Barclay, general store manager, who at that time had 11 stores including Oswego under his - supervision, called employees Brower, O'Reilly, Casey, Himes, Earl, and Bateman into the store for a conference with Flood, former 'Oswego manager, present. He asked them, why the workers had sought "outside help" and felt it neces- sary to get a "third party" into the store, reminding them they could always bring their problems directly to him without a third party. Flood also told them that the telephone was always handy, they could have called on him to discuss any problems. The employees told Flood this was no longer his concern, as he was no longer the Oswego manager. O'Reilly asked Barclay what the store could offer them without a union, and he replied "nothing."" Respondent was well aware of the organizing campaign as early as September 21, when it received the Union's recognition demand. Barclay admitted that as general store manager, his duty was to han- dle personnel problems in his stores, in the course of which he discussed problems directly with individual workers, often explaining company policies and benefits and why things could or could not be done as requested because of company policy. The Oswego store came under his supervision in Sep- tember. In discharge of these duties Barclay held at least two general meetings with Oswego employees at the store after September 21, for the purpose of allowing them to air their complaints and ask questions about Respondents' operation and its benefits, but he admitted that after the representation petition was filed, he came more often to Oswego, which was his duty wherever he felt there was a "personnel problem." While it is true that it was convenient for him to do so because he was in the same period visiting the Syracuse store, only 30 miles away, preparatory to opening that store, he also admits 9 In its Decision and Direction of Election in the representation case, the Board found that the appropriate bargaining unit within the meaning of Section 9(b) of the Act consisted of All full-time and regular part-time employees employed at Westons Shoppers City of Oswego, Inc., located in Oswego, New York, includ- ing the employees employed by the Licensees, but excluding guards, professional employees the Store Manager, the Assistant Managers, and all other supervisors as defined in the Act. Respondents do not now contest this finding, and I find that such unit is and has been appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 10 Joy Silk Mills, 85 NLRB 1263, enfd 185 F 2d 732 (C.A.D C.), cert denied 341 U.S. 914. 11 These facts are found on credited testimony of Brower and Earl. In light of Barclay's admissions of other remarks to employees regarding their fail- ure to talk directly to him about problems, I do not credit his rather vague denials of these remarks 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he knew many of the Oswego work force personally, having hired them when that store opened several years before. I am satisfied from his testimony that he made special efforts to visit the store more often after September 21 to talk to workers and handle the "personnel problem" which arose with the advent of the Union. I find that his prompt personal inquiry of six employees above, about employees' reasons for seeking a union to solve their problems rather than continu- ing to deal with Respondent and Barclay specifically to solve their problems, was coercive interrogation of the type prohib- ited by the Act. This conclusion is supported by the fact that he deliberately called in six employees who were mostly sen- iors in service, five of them (Bateman, Himes, O'Reilly, Brower, and Earl) had joined the Union on September 18, and three of them (O'Reilly, Brower; and Earl) had thereafter been active solicitors of other employees to sign authorization cards. It is patent that private interrogation of this group at the outset of the union campaign was a coercive attempt to learn the reasons for and extent of the employees' adherence to the Union, not in order to learn whether the Union had majority status so that it could answer its recent demand, but to prepare for further actions to learn and deal with employee grievances and take other steps to undermine their adherence to the Union. I find that by this interrogation Respondents violated Section 8(a)(1) of the Act. Late in September, shortly after the Union's demand, Her- man Haber, who was due to become manager at Oswego in November, spoke to a meeting of all Oswego employees con- vened by Assistant Store Manager William Broderick. After explaining company benefits, he referred to the Union's ap- pearance and said that if the election were held that day, the Union would not win, but even if the Union won, "there is no way we are going to negotiate with the Union." In explain- ing company operations and benefits, Broderick recited the obligations and duties of employees in the store. When em- ployee Angelo J. Jeffalone interrupted to complain that he did not know his full duties and responsibilities (he was train- ing to become department manager in camera department), Broderick got angry and said he already knew his duties. Broderick also argued loudly that "You are not going to work under a revolution, I will not work under a revolution, I will not follow those rules," and that the "happy family situation will cease and exist if a union comes in."12 Haber's prophecy that Respondent would never negotiate with the Union if it won an election was a coercive threat of refusal to bargain with the Union which was designed to impress on workers the futility of choosing the Union as their bargaining agent, and thus violated Section 8(a)(1) of the Act. Brode- rick's warning of a refusal to work under a "revolution" and its "rules" and that advent of the Union would destroy the "happy family" situation were thinly veiled but coercive warnings that Respondents would not operate under union conditions and that present amicable relations between Re- spondents and their employees would change and perhaps become unpleasant if the Union came in. This warning fur- ther violated Section 8(a)(1) of the Act. On an occasion late in September or early October 1973 when Barclay made a periodic visit to the store, he sent word 12 I find this occurrence from uncontradicted and credited testimony of Jeffalone. around that his office was open for discussion with workers all day. No one came to talk to him during the morning, so in the early afternoon he went to the stockroom where he knew many employees personally, and asked them angrily why they had not come in to see him. He told them he was "G- d- good and mad at each of you," asking why they were afraid to come in and talk to him, and added "if you think I am mean now, watch and see how damn mean I can get if you get that union in here." He then walked away angry, but returned shortly and told them he had intended not to give them a booklet he had, but had decided he would, and he distributed insurance booklets showing a new insur- ance plan which became effective for workers in October. 13 I find that Barclay's remarks were coercive in vi- olation of Section 8(a)(1) of the Act when he upbraided the workers for refusing to come to discuss problems with him directly as in the past, which he viewed as a form of desirable "negotiation," and warned that he would act unpleasantly toward them if the Union came in and, by implication, if they ceased approaching him with their problems directly but came only through the Union.14 On an occasion in October 1973 Robert Wegenka, shoe department manager and an admitted supervisor, told a group of workers that he "knew for a fact" that the store would close if the Union came in. In a talk with employees Brower, Jeffalone, and Himes, in mid-December 1973, he asked them why they wanted a union,,arguing that the Union could not offer or pay them anything. When Brower cited reports of certain benefits received by union members in a local supermarket, Wegenka repeated the Union "would not pay off." He added that if the workers thought Company President Howard Simon would let the Union into the Os- wego store, they were mistaken, that he would definitely close it before he would "consider the Union coming in." These facts are found from uncontradicted testimony of Brower and Farnsworth, and I find that Respondents further violated Section 8(a)(l) of the Act by Wegenka's coercive interroga- 13 I find this conversation from credited testimony of employee Casey, as corroborated in large part by that of Barclay I do not credit his denials of any threat that he would be "mean" if the Union came in, for he admits he was very angry at their silence and told-them he was angry with himself for "allowing the situation to go this far," explaining in testimony that the attitude among the workers had changed in September from a "happy family" group. 14 I find no violations of the Act in: (1) talks between Jeffalone and Barclay, and Broderick in October, in which Barclay reminded Jeffalone that he was entitled to 1 paid holiday and 6 paid sick leave days per year under recent changes in the employees' handbook, and advised Jeffalone to tell Broderick what paid holidays he wanted, and Broderick's prompt grant of the paid holiday when Jeffalone requested it There is no proof that these benefits were instituted deliber- ately during the crucial period in order to cause and persuade employees to vote against the Union; the record only supports the inference that they were benefits already in existence before the Union began its campaign, and Barclay was only bringing them to the attention of Jeffalone , just as he reminded employees at other times about company benefits. (2) a speech by Barclay to workers in a store aisle in October, based on uncontradicted testimony of Jeffalone, in which the employees asked about a pay raise, Barclay replied the store was not making much profit , that he had received no raise in 2 years and the company president was getting only $50,000 a year. When employees complained about the attitude of former manager Fink toward them, Barclay said he would guarantee that Fink would never return to Oswego , but Herman Haber would remain as their manager I find nothing coercive or indicative of future promise of benefit in these remarks. WESTONS SHOPPERS CITY, INC. 295 tion of employees about their reasons for wanting a union and the clear coercive threats that Respondents would close the store before allowing a union in it. On an occasion in October, Gus Cahill, receiving manager and security officer at Oswego, who was found a supervisor by the Board in the representation case, told employees Bate- man at the snack bar that if the Union got in, the store would be closed. Late in October, while riding home from work with employee Casey, Cahill told her that he had talked to Barclay who said that if the Union got into the store, President Simon would close it before he would negotiate with the Union. I find these facts from uncontradicted testimony of Bateman and Casey; Cahill did not testify. As both of his remarks were clear threats of reprisal against employees in form of job loss if the Union came into the store, Respondents thereby further violated Section 8(a)(1) of the Act. Shortly after Respondents opened a new store in Syracuse in October, a group of six Oswego employees visited it to look it over and see Flood, its new manager, who had transferred from the Oswego store. When they came in, they met Haber at the snack bar. He asked them what was "going on" and why they were considering a union, and asked if they did not know that President Simon would consider closing the Os- wego store before he would allow a union there. Flood then took them on a tour of the store. That evening the group visited Flood's home at his invitation, and in course of con- versation Mrs. Flood said in the presence of her husband that the workers were very foolish to want a union, for she knew Simon would never allow it to come in, but would close it before he would negotiate with the Union. Mr. Flood sat by without comment or denial of his wife's remarks. I find these facts from credited testimony of Brower and Fowler, two of the employee group. The Floods did not testify, and I do not credit Haber's denial of the remarks attributed to him, be- cause his version of the meeting with the group was sketchy, his testimony on this and other incidents was not impressive, and he engaged in other unlawful conduct as noted elsewhere herein. I find that Respondents further violated Section 8(a)(1) by (1) Mrs. Flood's clear threat that the store would close before Respondent would negotiate with the Union, wli ich was said in presence of her husband, a supervisor, who did not repudiate her remark, and (2) Haber's similar threat and interrogation of workers. On an occasion in mid-November, employee Jeffalone had a private talk in the Pontiac Hotel with Broderick. Jeffalone referred to rumors in the store that it would close if the Union got in. Broderick confirmed that it would probably close if the Union got in, saying it was not making any money, so Respondent would have to close it if it could not afford to run it. Jeffalone expressed surprise at this prophecy, saying he had heard Oswego was supposed to be the best store in Re- spondent's organization. Broderick did not deny this. Jeffa- lone mentioned a store rumor that one Lucille Green, who had been sent to the Syracuse store temporarily, would not return to Oswego because she had been involved in a union before and favored a union in the store. Broderick said this was true, that she would not be back at Oswego because of the Union, but would be sent elsewhere. Broderick asked Jeffalone whether things "would cool down" at Oswego if Broderick became store manager, whether the workers would then "let things ride and forget about everything." Jeffalone replied that he did not think it would have that effect, because "things have gone too far." This discussion is found from uncontradicted testimony of Jeffalone. I find that Respond- ents further violated Section 8(a)(1) by Broderick's interroga- tion as to the effect on workers' union sympathies and dis- satisfaction if he became manager; his clear threat of a store closure if the Union came into it, which is not deprived of coercive effect by his spurious explanation that Respondents could not afford to run it with a union in it (although it was then undergoing a change of top management); and his im- plied threat that employees who favored a union might be transferred away from Oswego, like Green. In the first week of December, employee Bateman asked Haber in the store if she would be laid off on Christmas Eve (as she had received a similar layoff at Christmas 1972). He replied that he did not know what his payroll would be in January 1973 but since she had seniority over other cashiers, she would probably not get laid off, and had nothing to worry about it. He added that if the Union got into the store, he would not guarantee her job.15 Since he did not clearly tie the prophecy of lack of guaranty of her job to some action by the Union after it won the election, the remark was reasona- bly calculated only to warn Bateman that she might be sub- ject to some company reprisal such as loss of job if the work- ers voted the Union in, and in this aspect the remark was violative of Section 8(a)(1) of the Act. On December 10, Haber convened a meeting of all em- ployees in the front of the store. Broderick and one Audry Shafer, an official from the Syracuse store, were present. Haber explained company benefits given to the workers, and also discussed business conditions in the store, advised that the employees would have their jobs if the store continued to do business at a profit, but if it did not, there would be no jobs, whether or not it was unionized , and that a union could not guarantee their jobs. There was a heated discussion between Haber and some employees about company benefits, and on the issue why the workers needed a third party to act for them in the store. Haber told the workers they should think for themselves, and not have someone else think for them. In discussion of the need for a union, Haber told the workers that, even if the Union got into the store, that did not mean that Respondents would have to negotiate with it , but that Respondents would under no circumstances recognize or negotiate with it.16 Haber's prophecy that Respondents would not have to and would not negotiage with the Union was coercive and violative of Section 8(a)(1) since it was well calculated to impress the workers with the futility of adhering to or voting for the Union." 15 This discussion is found from credited testimony of Bateman as cor- roborated in part by Haber. I do not credit bare denials by Haber of the refusal of job guaranty if the Union got in. 16 I find this discussion from credited testimony of Farnsworth , Casey, Fowler, Moyer, and Earl, as corroborated in part by testimony of Haber. I do not credit Haber's conflicting version to the effect that he told the workers Respondents would not have to negotiate with the Union for some time after it won an election, because there would probably be appeals from that decision, for his recollection of the whole discussion was very vague and general, and he is not supported by Broderick, who was not called by Respondent to testify. 17 I find no violation of the Act in a speech of Barclay to employees in the stockroom in December , where he told them that, if the Union came in, he would not sit down and "negotiate" or talk with them directly anymore about their problems, but would have to talk to them only through the Union Continued 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the week before Christmas 1973, Barclay had a talk with employee Farnsworth after a general meeting with the em- ployees, in which he asked her why she had turned against the Company and why the workers began to organize a union. She said she had not turned against the Company, but that since Fink had become manager, the girls had panicked over rumors starting in August or September that the older work- ers would be out of jobs by January 1. She said they also wanted more money. She explained she was a member of the workers' committee (organized at the September 23 union meeting for workers), but was at that point undecided whether they needed a union or not, as she could understand the arguments both ways. Barclay asked her if her children ever made mistakes, whether she would give them a second chance. When she said she would, he asked "Why don't you give us a second chance, then?" He concluded by saying he could not tell her how to vote, but hoped the girls would use common sense and refuse to vote the Union in." I find that Respondents further violated Section 8(a)(1) by Barclay's question as to her and other workers' reasons for adherence to the Union, and his interrogative suggestion that they forego union adherence and give Respondents a "second chance."19 On or about December 26, employee Moyer told Manager Haber in the store that she was losing 4 days of sick leave she had not taken that year, because she did not feel she could be absent that week in the busy period when she was needed to help employee Casey on the service desk. Haber agreed she could not take the days off before year-end for that reason, but said she should wait until after January 1 and he would see what he could do about getting those days for her later, if the Union did not get into the store, but if it got in, he could not do anything about it.20 Lacking any explanation from Haber of the remark that he would be helpless to get her the benefits of the sick days she lost if the Union came in, which might serve to explain whether the grant or nongrant of these days was within or beyond the control of Respondents, I can only conclude that the statement was reasonably calculated to indicate to Moyer that Respondents would not give her these benefits if she and others chose the Union, but promised to give them to her if it lost the election, and was thus coercive in violation of 'Section 8(a)(1) of the Act. - On the evening of January 2, 1974, Barclay read a prepared speech to all night-shift workers assembled in the ladies' lounge of the store. Haber and Broderick were present. Bar- clay prefaced his remarks by saying that he would like to read or its shop steward. This was only a legitimate statement of one of the legal consequences which followed if the Union became the statutory bargaining agent of the employees, and was not coercive. is I find this discussion from credited testimony of Farnsworth, and do not credit Barclay's denials of portions of remarks attributed to him, because he does not give his own version of the whole discussion, and I am con- vinced his questions to her were for the same reason as his earlier unlawful interrogations and threats found above 19 I find no violation of the Act in the statement of Hardware Manager Louis Simone to Haber and Broderick at the store snack bar in the same week to the effect, "Make sure I get my raise." Jeffalone, who gave this uncontradicted testimony, also admitted Simone had previously told him Barclay had promised him a raise and promotion, and Simone got the raise later. Although Jeffalone overheard the remark, there is nothing in it cal- culated to coerce workers in the exercise of any of their statutory rights 201 find this discussion from credible testimony of Casey and Moyer, and do not credit bare denials by Haber of the remarks mentioning the Union a statement and requested that any discussion or questions be held up until he finished it. While he read the speech, how- ever, employee Jeffalone, a young, quick-spoken, and blunt employee, interrupted Barclay several times to ask him to repeat what he had said and to ask. questions. Each-time he was told by Barclay or Broderick to keep quiet and wait until Barclay finished. After Barclay finished the speech; workers asked questions, and there was some discussion of the speech. At least one worker spoke up against a union in the store, giving reasons, but Jeffalone did not speak up in the free discussion period. Broderick detailed company benefits as a reason for voting against the Union. In his speech, Barclay gave several arguments against union representation of the workers, including the dues they would have to pay, pointing to a line of eight baskets of groceries as an example of the cost of their dues for a year. He also said that if the Union won-the election, Respondents were not required to agree on union demands during negotia- tions, which would cause a strike, and that could be called "job insecurity" in contrast with what the Union claimed was "union security." He added that a union could not guarantee their jobs. He also said, with a union in the store, there would be no more open-door policy, with employees free to come to the store office individually to discuss problems, as that would have to be handled through the union shop steward. He also said that with a union all workers would have to work in their areas, could not "communicate back and forth." In the discussion after the speech, there was argument pro and con about the need for a "third party" in the store, with some workers stating reasons for their need. Citing the previous open-door policy, Barclay asked why the workers could not give Respondent a second change for another year to settle grievances. There was argument on it both ways. Barclay made the same speech to day-shift employees on the morning of January 3 in the stockroom, with Haber and Broderick present. Although Barclay made the same request to read the speech without interruption, Jeffalone again tried to interrupt as he did the night before. Barclay and Haber angrily told him to keep quiet or leave the meeting, as he had heard the speech the night before. During the discussion period after the speech, when the same arguments for and against the Union were raised and discussed, Jeffalone got into heated argument with one girl who spoke against the Union, but was told to keep quiet or leave the meeting, as he had attended the meeting the night before.21 I find no viola- tion of the Act in management's conduct of the meetings including the well-merited suppression of the disruptive con- duct and remarks of the brash Jeffalone who seemed bent more on heckling and upsetting Barclay and disrupting-the meetings than engaging in fair and serious discussions on the issues raised by both company and workers. Nor do I find any violations in Barclay's remarks about union dues, the possible course of negotiations with probable strikes and their effect on employees' jobs, and some of the consequences of a union in' the store such as the cessation of free direct discussion and negotiation on problems with workers. The ' only remark which appears to have a coercive effect on workers was the 21 I find the events of both meetings from a composite of credited tes- timony of Jeffalone, Earl, Moyer, Farnsworth, Barclay, and Haber Tes- timony of any of these witnesses at variance therewith is not credited. WESTONS SHOPPERS CITY, INC. 297 rather clear threat that the advent of the Union would result in a curtailment of the free "communication back and forth" which employees had enjoyed in the past. Lacking any expla- nation from Barclay to show that this might arise from con- tract terms, or union rules or policy, the employees could well infer that such limitation on their communication privilege would probably come from Respondents in reprisal for their choice of the Union as bargaining agent. In this remark, I find that Respondents further coerced employees in violation of Section 8(a)(1) of the Act. On January 4, the morning of the election , Broderick told employee Rosemary Snow at the snack bar, in answer to her question, that as far as he knew snack bar employees were not entitled to vote because they were under another manage- ment. Shortly after, Snow met an agent of the Union in the nearby supermarket, who asked if she had voted . When she said she had not, he told her she was on the voting list, so she voted without challenge. Early that morning, employee Pa- tricia Stark, who was on a 6-month leave of absence which began October 5, 1973, called the store and asked employee Casey at the service desk if she knew when the voting started and whether Stark was eligible to vote, as she had not been notified about her eligibility . Casey said she would find out from Broderick. She sought out Broderick who was with the Board agent running the election, and asked him privately if he knew whether Stark could vote. He said he did not know, but would check, and walked off. He came to the service desk shortly and said Stark was not eligible. Casey relayed this answer to Stark on the phone. Stark asked why she could not vote, and Casey said she did not know, but that Stark should come in and ask the Board agent running the election, that maybe she could vote subject to challenge. Stark replied she would not bother to come in if her vote would be challenged, explaining to Casey that she had called in about the vote because she had learned from another employee on leave, Mary Galvin, that her daughter had checked and found her mother's name on the voting list, but also that her vote might be challenged. Start had not previously asked anyone from the store or the Union about the election and the procedure involved, but learned of the date of the election only from girls in the store ." I find no deliberate attempt by Broderick to prevent a worker from voting when he expressed his casual opinion to Snow about the noneligibility of_the snack bar employees, for she could have talked to the Board agent herself, even if she had not met the union agent whose re- marks led her to cast her vote. When Stark called in about her eligibility, she already knew from Galvin that she could vote subject to challenge, but she chose to accept the relayed message from Broderick which , so far as the record shows, merely indicated the result of his investigation . Since he was with the Board agent when Casey questioned him, it is infera- ble that Broderick asked that agent or saw the list of eligible voters which clearly omits the names of both Mary Galvin and Patricia Stark. Hence, I am convinced he truthfully stated through Casey what that list already showed, that Stark was not on the eligible list. I find no violation of the Act in his conduct. I grant Respondents' motion to dismiss para- graph VI(f) of the amended complaint dealing with these incidents. 22 1 find these facts from uncontradicted testimony of Snow and Stark The Wage Increase The record shows that on October 26, 1973, Respondents gave a general wage raise to the Oswego employees, with 58 out of a total of 68 in the work force getting an average 15-cents-an-hour raise after review of their records. General Counsel argues that this raise, larger than ever before given, was distributed in the crucial period before the election to less than the whole ` work force, as a coercive grant of benefits designed to persuade employees to vote against the Union. Brower testified without contradiction that on the day before the raise was given she talked to the store manager about a raise she was scheduled to receive when she took control of an additional department . The manager said he could not mention money matters "with the way the situation stands in the store now." Sometime earlier in that month Jeffalone had talked to Barclay about his chances of advancement, and Barclay replied that "there are possibilities," there might be a chance to advance "if things were not the way they are." The officials' remarks indicate that Respondents may have been holding up any management changes in the store which might cost money while the union campaign was pending, in marked contrast to a large pay raise to most of the work force in the crucial period, which facts together with the timing of the raise in issue and Respondents' other coercive conduct in the same period as found above raise a prima facie inference of coercive intent. However, the inference is less impressive in light of credible oral and documentary proof showing that: A similar raise of about 5 cents or 10 cents an hour had been given to most of the work force periodically ever since the store opened in early 1969. Brower admits that when hired in October 1969, she was told that she would get periodic raises every 6 months; she actually got raises in July 1970, February 1971, June 1972, October 1973, and May 1974, getting them automatically without being told of each one beforehand. Respondents gave a similar but general raise to 34 out of 46 employees reviewed in April 1973. Out of a force of 45 employees, 27 got a similar raise in June 1972. Em- ployee Jeffalone admits that he learned at his hiring by Brode- rick in August 1973 that Respondents had a practice of giving merit raises, and he participated in the October 1973 general raise. Although that raise was an average of 15 cents an hour, as against 5- or 10-cent raises in past years, the larger amount is as fairly explained by the continual inflation and rise in the cost of living as by the inference that it was an unusually large raise before the election for coercive purposes . However, the strength of these facts is weakened by record testimony in- dicating that when Barclay was questioned by workers earlier in October about the possibility of raises, he was pessimistic about grant of a raise, arguing the store and Respondents were not doing well, and that he and other officials had not had salary raises in some years . The reversal of this pessimism by the sudden grant shortly after of the largest raise in store history is cogent proof that Respondents, as part of the coer- cive campaign to undermine the Union's position with the employees and cause its defeat, decided to give a very large raise at that time to wean the employees away from the Union. I find that the grant of the October 26 raise in these circumstances was coercive and further violated Section 8(a)(1) of the Act.23 23 Angels Home Improvement Center, Inc. d/b/a Angels Home Center-San Continued 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Defense of Good-Faith Doubt, and Lack of Majority Status At the outset I find no merit in Respondents' claim of a good-faith doubt of the Union's majority status on and after September 26, because their coercive conduct found above shows clearly that they began an aggressive antiunion cam- paign as early as September 23 for the purpose of frustrating the Union's campaign by various illegal means designed to wear away any support of adherents it may have obtained after September 18, and to dissuade employees from voting for it in the election. The wide variety of unfair labor practices committed in the crucial period are sufficient to negate the claim of bona fide doubt'24 as they indicate that Respond- ents early realized the depth of employees' dissatisfaction with conditions at Oswego, and probably feared that the Union was gaining many adherents as a result. A significant indication of Respondents' attitude appears in Barclay's ad- mission, during one talk with employees late in September, that he was angry with himself "for allowing the situation to go this far." However, apart from the effect of Respondents' conduct, General Counsel must prove that the Union obtained an uncoerced majority of signed authorization cards, to sustain the charge of violation of Section 8(a)(5) of the Act. The important issue on this subject is whether the circumstances of the signing of the 64 cards in evidence (and certainly the 44 specifically attacked by Respondents) show facts indicat- ing misrepresentations to the signers or other circumstances sufficient to negate the presumption of realibility inferable from the mere signing of the cards.25 At first, I note that the explanations by Giannone at September 18 and 23 union meetings, as found above, of the purpose of the Union, what it could try to do for the workers, and the purpose of the cards as well as the probable use to be made of them, made it reasonably clear to the 25 employees who signed cards at those meetings the cards were for the-purpose of authorizing the Union to represent the signers in any dealings with Re- spondents, and that they would be used to secure recognition of the Union as bargaining agent, either by disclosure to a third party, acting for Respondents to prove majority status or, failing that, to get an election for the same purpose. Under either procedure the workers were never advised the repre- sentation purpose of the card was being cancelled or su- perseded, only that it still remained. These representations were consistent with and reinforced the wording of the cards, so the cards of all signers who heard these remarks and then read and basically understood the meaning of the plain word- ing are clearly reliable proof of majority status. The fact that these signers also heard a qualified promise that the cards would be held confidential, absent the need for a card check Bernardino, 193 NLRB 217, 219, 221 (1971), N.L R.B. v. Exchange Parts Co., 375 U S. 405 (1964) 24 The Schwarzenbach-Huber Company, 170 NLRB 1532, 1544 (1968), Snyder Tank Corporation, 177 NLRB 724, 741 (1969). 25 In N.LR.B v Gissel Packing Co, 395 US. 575, 606 (1969), the Supreme Court laid down the rule of presumption 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." or proof of execution in some judicial proceeding, or that the cards would also entitle the signers to attend future union meetings to get more information about it and its procedures, or that an election might be held in the future at which they could vote as they desired, are statements neither inconsistent with the basic stated representation purpose of the cards nor tending to destroy any presumed understanding of that pur- pose created by a reading of them.26 Hence, I find no merit in Respondents' attacks, based on one or more of the above- cited representations, on cards of Fowler, Fox, Legates, O'Reilly, Stark, and Richards, and conclude that cards signed by 19 workers at the September 18 meeting should be counted toward majority status.27 I make the same finding on cards signed by Ahart, Clark, John F. Taylor, Todd, Wallace, and West at the September 23 meeting and reject Respondents' arguments against them 28 In the case of the 15 employees who signed cards in the store or outside, but not at union meetings, at the solicitation of individual employees on September 19 and 20, I find that the basic presumption of reliability arising from reading and signing of the cards is not overcome as to 12 of them by solicitors' statements to them including one or more of the innocuous representations noted above, hence their cards will be counted toward majority status.29 26 Donna Lee Sportswear, 174 NLRB 318, 331 (1969), Fabricators, Incor- porateri 168 NLRB 140,145 (1967);N.LR B. v Gissel Packing Co., supra, where the Supreme Court said at pp 606, 607: "There is nothing inconsist- ent in handing an employee a card saying the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election." The destructive representation that the card was "only for an election" was not made at either of the union meetings Cf. Levi Strauss & Co, 172 NLRB 732, 733 (1968). 27 The only questionable card was that of Betty Ann Richards, who did not read it before signing. Her recollection of what Giannone said at that meeting was fragmentary, limited only to two of the innocuous statements noted above. While she says she did not read the printed wording, but signed the card after someone else filled in the blanks for her, she admits she understood enough to see that it was an "authorization for representation " Although she says she often signs things she does not understand, I do not credit her story as to her past limited understanding of the wording and purpose of the card, and find that she was at the trial a reluctant witness on this point, and hence not credible on that subject. In this connection, the Supreme Court noted in the Gissel case at page 608 that "employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to unions, par- ticularly where company officials have previously threatened reprisals for union activity in violation of Section 8(a)(1)." The basic presumption of reliability of Richards' card is not overcome. 28 Carol Ann Todd signed her card at this meeting without reading its crucial wording, after she heard the speech and explanations by Giannone detailed above, and she says now she gathered from his remarks only that the card was not binding on her in any way and gave her the right to vote for or against the Union in an election, and to get more information about it She admits Giannone told them to sign if they were "interested in the Union," but says she heard statements of the limited purpose of the card from other workers talking around her. While her testimony as to her past understanding of the card was not shaken on cross-examination, I do not credit her story for the same reasons stated as to Richards' card above. 29 Catherine Deban, Shirley Deban, Marie Cuyler, Helen K Fultz, Angelo J. Jeffalone, Satie Russo, Barbara I Shafer, Jean Teasonco, Patricia Casey, Peter Boyzuick, Brenda Reitz, Marcia France. I consider the following cards in this group unreliable to prove majority status: Connie J. Shutts, who read the card but did not understand its wording, and signed it only on the representation of Brower that the card was only to allow Shutts to find out what it was all about, a majority had to be signed before the workers could hold meetings and find out what would happen, and the card was in no way binding on Shutts. Delores Oldenburg, who merely glanced over her card before signing, did not understand its wording, and was told by a solicitor before signing that WESTONS SHOPPERS CITY, INC. 299 Of the 15 cards signed by employees on September 21, Respondents do not specifically question the reliability of those. of DeGroff, Mitchell, and Perry. I consider the 12 others seriatim: Cerklewich: He signed his card at the request of Pete Boy- zuick, who told him he had to sign to get more information about the benefits of the Union, and that it would be kept confidential. He gives conflicting testimony on whether he read it before signing, but it is clear that Boyzuick filled in all the blanks with his personal date. Boyzuick did not testify. Cerklewich favored a union in the store, to "help the store out."' When testifying he was no longer employed by Re- spondents. From his demeanor in testifying, and his admis- sion that he favored the Union, I conclude that he knew what he was doing when he signed (See Levi Strauss & Co., supra), and Ile card is reliable proof toward majority status. Burke: She read, filled out, and signed her card after get- ting nt from Fowler, who asked if she wanted to fill it out "to have the Union represent you." These facts establish its reli- ability, which is not diminished by Fowler's comment that there might be an election later. Cloonan: Her card is reliable, as she read and signed it after getting the same inquiry from Fowler as Burke. Her execu- tion of it on night shift on September 21 does not negate the card, for reasons noted below. Farella signed her card, -filling it in but not reading any of it, after getting it from a worker who told her, while walking in to work, that she should "hurry up and sign, we all have to sign, we are trying to get a union in," and also made the "confidentiality," "no obligation," and "possible vote in the future," representations, same as stated by the union agents. She kept the card for 2 days before signing it. I find that it is reliable, and is not affected by the three additional represen- tations noted, nor by the fact that unknown workers told her after she signed that workers would lose their jobs if they did not sign. Mary Galvin got her card as she was leaving the store, from several workers who told her it "meant llittle, no obligation attached," that they needed so many signed to inquire about the Union and learn more about it. She is hazy about whether she read the printed wording, but admits she read enough to fill in the blanks before signing. The fact that she signed warrants an inference that she read enough to know what it purported to be, notwithstanding the other representations which by themselves might serve to limit its represented pur- pose to that of an address card or ticket to get more informa- tion. The facts cited above are enough to warrant the conclu- sion that it is a reliable card. Inget got her card from a worker, after hearing others unidentified say signed cards were needed if the workers wanted to talk about a union in the store, and to hear what the Union could do for them. She read it over before signing, "it meant nothing," and that the girls needed a certain number signed before they could have a meeting with the Union to find out what it had to offer and how it operated. Her understanding of it was further clouded by con- flicting statements made by numerous other workers at the time in the store I am convinced she was led to ignore the wording and to believe it was only an invitation or ticket to hear more about a union at a meeting Marie Winchell read the card before signing but did not understand its wording during the talk and confusion of workers talking in the store lounge, where she got it from Brower, who told her, as did others, that a majority had to be signed to have a meeting with the Union. and knew that was in terms an authorization for the Union to represent her. She tries to avoid the clear effect of reading and understanding the wording by saying she misinterpreted it and felt that it was designed only to authorize the Union to tell the workers what they could get through a union. At another point, she said she "felt" that the card was designed to "try to get a union in Westons," with "the usual thing a union entails." I am satisfied she knew what unions were for, and that this card authorized the Union to represent her in the store, I find it reliable. Green got her card on night shift on September 21 from a worker who said the girls were "thinking about going into a Union," and several of the cards had to be signed for that purpose. Green then read it over, filled in the blank, and signed. The presumption of reliability from reading it governs here, and is supported by the comment that the cards were needed to "go into a Union." The card is reliable. Hallinan did not examine her card closely after getting it from O'Reilly, but filled it in and gave it back at once. She has poor hearing, but gathered from O'Reilly's remarks that workers could get a union meeting, and admits the latter told her that the only way workers could get different work condi- tions in the store was through a union, and they should find a union if they were interested in one. This remark supports the basic inference that when she signed the card, she wanted a union to act for her to get better working conditions, which means representation in terms of the Act. I find the card reliable. Laddsigned her card after reading and filling it in. She says she understood from its wording that it meant the Union would represent her "if it was voted in." Her understanding of a condition implying an election first could not have come from the card, for it says nothing about that. However, the girl who gave it to her said it was just "to join the Union" but that she was not joining then but after an election where she could vote as she pleased, and that they needed a majority signed to get an election. She also gathered that if she signed it she would get another union card to become a member, if it was voted in. Considering what she read in light of what she was told, I gather that she was impressed with the fact that an election was necessary through use of the cards before she could become a union member and have it represent her for the usual purposes. The representations made to her were, enough to cancel out the wording of the card indicating that it made the Union her agent immediately. I find enough in the record to indicate that the card is unreliable. Raymond(formerly Duciaum) filled in and signed her card without reading any of it, after getting it from a girl who told her, on her inquiry, it would be held confidential, that it "did not mean anything," just "to show you like a union," and to invite the Union to give the workers information about itself and its program. The solicitor also said there was no obliga- tion attached to signing the cards. Raymond also said she "signed the card for representation, I guess," although she did not read it. The failure to read the card, plus the combina- tion of representations by the solicitor, none of which pointed up the "representation" by the Union, and particularly the offhand assurance that it "did not mean anything" are enough to overcome any inference or reliability from mere signature of the card. I find it not reliable. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reidy signed the card after reading only enough of it to enable her to fill in the blanks with personal history; she did not read the printed parts containing the authorization for representation. The girl who gave it to her said it was "for the Union, to get a union in," and that they needed so many signed "so we could have a meeting to discuss the union coming into the store." These representations were calculated to lead Reidy to believe the card was a mere preliminary to getting better acquainted with the Union, if workers were interested in having a union, and are enough to offset any inference from mere signature. I find the card not reliable. Thompson had no discussion with any workers about the card before she got a copy, read, filled in, and signed it, however she admits she understood it was to authorize the Union to'represent the workers, and she "hoped we won the election." I find the card reliable. In sum, I find 12 of the 15 cards signed on September 12 reliable, to be counted toward majority status. Respondents challenge all of the eight cards signed after September 23. I find as follows as to each: DiNigris got his card from Jeffalone, who asked how he felt about having a union in the store. DiNigris said he favored it, and then read and filled out the card before signing. Jeffa- lone also told him the card would insure getting definite wage raises, and restrictions upon hiring and firing. DeNigris had been in a union before. 4 find his card reliable, even though Jeffalone also told him the card would be confidential and would lead to an election. Diane Galvin read, filled out, and signed her card after receiving it from a worker who said she had to sign to find out more about the Union, that it was not binding in any way, and did not bind her to vote for the Union. For reasons stated as to the September 23 cards, I consider the representations of the "more information" purpose and the "no obligation" aspect are not enough to overcome the basic presumption of reliability arising from reading the whole card and signing it. I find the card reliable. Mournighan signed her card after getting it from an em- ployee who asked if she would fill it out "for the Union." Mournighan said she would if there was no obligation to vote for it, the solicitor said there was none. She kept it 2 days and discussed it with her husband before signing and returning it. She read it first, and admits she knew it was an authority to bargain for her, the only qualification being that she would be advised of any negotiation the Union did for her. I find the card reliable. Employees told Reynolds the day before she signed her card, when she got it, that so many signed cards were neces- sary to get the Union to come to the store or hold meetings where they could tell workers about better working condi- tions such as more wages, etc . Despite these representations, she admits she still understood the printing on the card before she signed-it as an "authorization for representation." The basic presumption from her understanding of the words and her signature is not overcome by the workers' representations of a limited purpose of the card as stated above. The card is reliable. Kathleen N. Russo received her card from Brenda Earl who told her about union meetings and suggested , if she wanted to learn more about it, she should sign the card. Russo re- ceived the card and this explanation on return from a leave of absence, but she held the card for about 2 weeks while she heard other employees discuss the good points of the Union. She also discussed it with her mother-in-law Satie Russo and her husband, who was in another union . In discussion about higher wages, etc., she asked other workers what the Union could do for them, and was told it would' get more wages. She herself had a grievance about failure of Respondent to disci- pline a worker for some mistreatment of a customer; com- pany officials had refused to take action at her request. She signed the card the day this happened, and'says she did it to get the right to ask the Union at a meeting' if it could have taken action in this incident if it was in the store; after she signed it, she inquired of agent Giannone about the action of the other worker, and he replied the Union did not handle that type of situation. While she does not say directly that she read the card before signing, I infer that from the fact that she held it long before signing. However, the fact that 'she held the card for many days before signing, and actually signed only after company officials had turned down her complaint about actions of another worker, followed by her prompt inquiry of the union agent about the incident, is enough to indicate that the "information" purpose of the card stated when she got it was still uppermost in her mind when she signed, and'offsets any inference of knowledge of its contents and true effect arising from reading and signing. I find her card of doubtful value and not reliable. Ruth Taylor (Halstead) got her card at the September 23 union meeting detailed above, where she heard Giannone's recital of the Union's purpose and procedure to be followed after getting a majority of signed, cards. She admits she read the card, and then signed it October 20 "to support the Union." For reasons stated above, the various representations by the Union's agent found above (which she admits she heard in part) do not detract from the inference from reading it that she knew the card authorized the Union to act for her in dealings with Respondent. I find it reliable. Wayler admits she signed her card "to get the Union over to Weston," after reading the upper portion of it and filling in the blanks. The solicitor who gave it to her said "it was to get the people together so they could get a union in the store as the union could get them better wages, health care, other benefits." She had heard remarks of Giannone at an earlier meeting and understood also that the card would be confiden- tial and there might be an election later . The first representa- tions made to her, plus her signature, warrant the inference that she knew it was an authorization card , which is not cancelled by the representations as to confidentiality and a possible later election. I find the card reliable. Yeager got his card from Fox, who merely told him to fill it out "for them." He read it over and filled in the blanks before signing it, and says he signedit as an "authority for representation." His testimony that he did not know its pur- pose is not credible, and the presumption from reading and signing governs. I find the card reliable. In sum, I find seven of the eight cards in this group reliable proof of majority status. In recapitulation, I find the Union received reliable signed authorization cards as follows: September 1'8, (19); Septem- ber 19-20, (12); September 21, (12); September 23, (6); and after September 23, (7). It follows, and I further find, that in the agreed unit of 80 employees as of September 21, 1973, the WESTONS SHOPPERS CITY, INC. 301 Union received 43 reliable cards through that date, and a total of 56 before the election. Respondents argue that the Union's demand for recogni- tion of September 21 was defective, because when it was sent at noon that day, the Union had only 35 signed cards (good or bad). While this is true, the fact that it had less than a majority before the transmission does not vitiate the demand, even if I assume from the rather vague testimony of Giannone that he had no proof the night before that the Union would receive a majority of signed cards by noon on the 21st. While the record is not clear as to how many of the 15 card signers of the 21st actually signed before or after noon, it is a fair inference that the Union's officials were promptly advised early enough by employee solicitors that it might have up to 50 cards by the end of that day, so that its agent may well have honestly expected to have majority status by the time the demand was sent. In fact, as noted above, the Union had 43 reliable cards by the end of that day. Hence, the Union's demand for recognition that day was not vitiated, but in fact was made a continuing demand by its filing of the representa- tion petition the same day, with the effect that any reliable cards executed and obtained after that date could be counted toward majority status. Raymond Buick, Inc., 173 NLRB 1292, 1307; Schwarzenbach-Huber Company, supra at 1538; Snyder Tank Corporation, supra at 740; The Dal( Corpora- tion, d/b/a Hoffman Bros., 188 NLRB 319, 323 (1971). Un- der these authorities, it is clear that on September 23, 1973, and when Respondents rejected the Union's continuing de- mand on September 26, the Union had a clear majority of 49 reliable cards in the then unit of 80 employees, and that such majority status has continued ever since. I conclude and find that on and after September 23, the Union was the exclusive representative of all employees in the appropriate unit afore- said for purposes of collective bargaining within the meaning of Section 9(a) of the,Act. Since Respondents refused on and after September 26, 1973, to recognize or bargain with the Union, upon request, as the statutory bargaining agent of employees in the unit aforesaid, and I have found that Respondents' reasons for such refusal are without merit, I conclude and find on the basis of past precedent that Respondents thereby violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondents are a joint employer engaged in commerce, and I he Union is a labor organization, within the meaning of the Act. 2. All full-time and regular part-time employees of all Re- spondents at Westons Shoppers City of Oswego, Inc., located in Oswego, New York, but excluding guards, professional employees, the store manager, the assistant managers, and all other supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since September 23, 1973, the Union has been and now is the exclusive representative of all employees in the unit aforesaid for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By unlawfully interrogating employees about their union activiities and sentiments, threatening them with closure of the Oswego store, loss of jobs, transfers, benefits, and other reprisals if they voted for the Union, offering and granting them a wage raise and other benefits to dissuade them from voting for the Union and as a reward for voting against it, threatening to refuse to negotiate with the Union or operate under union conditions if they voted it into said store, and threats of imposition of unpleasant or more restrictive work- ing conditions if the Union organized the store and the em- ployees stopped direct dealings with Respondent on their problems, Respondents have interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom, and take certain affirmative action neces- sary to remedy the unfair labor practices and effectuate the policies of the Act. As the unfair labor practices involve a wide variety of coercive conduct, I shall recommend a broad cease-and-desist order. The same unfair labor practices also interfered with the election of January 4, 1974, and affected the results thereof, hence I also recommend that the objections to conduct affect- ing the results of the election be sustained and the election be set aside.3° Further, in view of my finding below that a bar- gaining order is warranted, I also recommend that the peti- tion in Case 3-RC-5844 be dismissed and that all proceed- ings therein be vacated and set aside. Under past Board practice with court approval, the usual remedy for violation of Section 8(a)(5) has been a routine order to recognize and bargain with a union on request, and incorporate any understanding reached in a signed agree- ment. However, the variety, extent, and pervasive effect of Respondents' unfair labor practices herein, including the re- peated and potent threats to close the store with inevitable loss of jobs, and threats of other specific reprisals, plus the unusual coercive wage raise before the election, compel the conclusion that Respondents have thereby probably de- stroyed the conditions under which an election can be relied on as a reliable indication of employee choice, to an extent that a second election would not serve that purpose, even after imposition of the standard remedy of posting of a notice for violation of Section 8(a)(1). Hence, the only remedy left is a direct bargaining order." The Board has recently deter- mined that, in such situation, if it determines that an em- ployer's wide and pervasive violations of Section 8(a)(1) clearly dissipated a union's proven majority status and create an atmosphere in which a free and fair election cannot take place, it will dispense with a finding of violation of Section 8(a)(5) and base its remedial bargaining order upon the 8(a)(1) violations by the employer, without preparing for another election, where a representation case pend,'s. Steel- 30 The Union offered no separate evidence in support of the objections, relying entirely on the proofs offered by General Counsel in support of the amended complaint. The objections generally are coextensive with the charges of violations of Sec. 8(a)(1) made in the complaint 31 General Stencils, Inc., 195 NLRB 1109-1111 (1972), NLR B. v Gissel Packing Co., 395 U.S. 575, 614, 615 (1969). 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fab, Inc., 212 NLRB 363 (1974). For that reason, I have recommended dismissal of the proceedings in Case 3-RC-5844, and issue a recommended order in the form outlined in Steel-Fab case. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER32 Respondents, Weston Shoppers City, Inc., Westons Shop- pers City of Oswego, Inc., Miles Fabrics of Oswego, Inc., Drive-In Restaurants, Inc.; d/b/a Ogden Foods, Arness Sales Corporation, and Lesal Retailers of Oswego, Inc., d/b/a Morse Shoes, and their respective officers, agents, successors, and assigns, jointly and severally shall: 1. Cease and desist from: (a) Questioning their employees about their union activities and sentiments in an unlawful manner (b) Threatening their employees with closure of the Os- wego store, loss of jobs, transfers, loss of benefits and other reprisals if they favored the above-named Union or voted for it in an election. (c) Warning their employees that they would close the Oswego store before they would negotiate with said Union. (d) Threatening to impose unpleasant or more restrictive working conditions on their employees if said Union repre- sents them in said store. (e) Promising and granting their employees wage raises or other benefits if said Union did not win the election or get into the store, and to induce them to vote against the Union. (f) Threatening their employees that Respondents would not negotiate with said Union and would not work under union conditions if it got into the store, and the employees ceased direct dealings with Respondents. (g) In any other manner interfering with, restraining, or coercing their employees in the exercise of any rights guaran- teed to them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain with Retail Store Employees Union, Local 345, AFL-CIO, Retail Clerks Inter- national Association, as the exclusive bargaining representa- tive of the employees in a unit of all full-time and regular part-time employees of all Respondents in the Oswego, New York, store, but excluding guards, professional employees, the store manager, the assistant managers, and all other supervisors as defined in Section 2(11) of the Act, respecting rates of pay, wages, hours of employment, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at their store in Oswego, New York, copies of the notice attached hereto marked "Appendix."33 Copies of said 32 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes. notice, on forms to be provided by the Regional Director for Region 3, after being duly signed by Respondents' authorized representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Re- spondents have taken to comply herewith. IT IS ALSO ORDERED that the amended complaint be, and the same hereby is, dismissed insofar as it charges unfair labor practices not specifically found herein. IT IS FURTHER ORDERED that the election -held on January 4, 1974, in Case 3-RC-5844 be set aside, that the petition therein be dismissed, and that the entire proceeding in Case 3-RC-5844 be vacated. 33 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT question our employees about their union activities and sentiments in an unlawful manner. WE WILL NOT threaten our employees with closure of our Oswego Store, loss of jobs, transfers, loss of benefits or other reprisals if they favored Retail Store Employees Union, Local 345, AFL-CIO, Retail Clerks Interna- tional Association, or vote for it in an election. WE WILL NOT warn our employees that we will close the Oswego Store before we will negotiate with the above-named Union. WE WILL NOT threaten to impose unpleasant or more restrictive working conditions on our employees if the above-named Union represents them in said store. WE WILL NOT promise or grant our employees wage raises or other benefits if the above-named Union loses an election or does not represent them in said store, or to induce them to vote against such Union. - WE WILL NOT threaten our employees that we will not negotiate with said Union and will not work under union conditions if the Union represents employees in said store, and if our employees cease direct dealings with us. WE WILL NOT in any other manner interfere with, re- strain or coerce our employees in the exercise of any rights guaranteed to them by Section 7 of the Act. WE WILL, upon request, recognize and bargain with Retail Store Employees Union, Local 345, AFL-CIO, Retail Clerks International Association, as the exclusive bargaining representative of all our employees in the WESTONS SHOPPERS CITY, INC. 303 bargaining unit described below with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment and, if an understanding is leached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time employees of Wes- ton Shoppers City, Inc. and Weston Shoppers City of Oswego, Inc., and of their licensees , in Oswego, New York store, but excluding guards, professional em- ployees, the Store Manager , the Assistant Managers, and all supervisors as defined in the Act. All our employees are free to become or remain, or refuse to become or remain, members of Retail Store Employees Union, Local 345, AFL-CIO, Retail Clerks International Association, or any other labor organization. WESTONS SHOPPERS CITY, INC AND ITS SUBSIDIARY WESTONS SHOPPERS CITY OF OSWEGO, INC, AND ITS LICENSEES MILES FABRICS OF OSWEGO, INC, DRIVE-IN RESTAURANTS, INC d/b/a OGDEN FOODS, ARNESS SALES CORPORATION, AND LESAL RETAILERS OF OSWEGO, INC d/b/a MORSE SHOES