Tipton Electric Co.

I)DECISIONS OF NATIONAL LABOR RELATIONS BOARI) Tipton Electric Company and Professional Furniture Company and Retail Store Employees Union, Local 655, affiliated with Retail Clerks International Asso- ciation, AFL-CIO. Cases 14 CA 10220 and 14 RC 8353 May 14. 1979 DECISION AND ORDER By CHAIRMAN FANNIN(; ANI) MEMBHRS JENKINS ANI) MURPHY On September i, 1978, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter the Respondents 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. 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge's finding that the assistant to the sales manager, Mi- chael Krieg, 3 created the impression of surveillance by showing employees a list upon which he had re- corded his opinion of each employee's union senti- ments. However, we disagree with his finding that Krieg engaged in surveillance by maintaining the list. We do not believe that it is unlawful fr anyone to IThe Respondents have requested oral argument. Ihis request s hereby denied as the record, the exceptions, and the brief adequatel present he issues and positions of the parties. 2 The Respondents hase excepted to certain credibility findings nmade by the Administraltive I.as Judge. It is the Board's established policy llot to overrule an admiiitraltie law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence co,nvinces us that the resolutions are incorrect. Standard Dr Wall Prldulv. Inc. 91 NL.RB 544 (1950). enfd. 188 i.2d 362 (3d ('ir 1951). We have carefully examined the record and find n basis for reversing his findings. urther. we find no merit to the Respondents' cottentin thalt the Administrative l.aw Judge was biased. Since we agree with the Administrative law Judge's finding that Krieg iccupied a position from which employees culd reasoniably inter that he spoke on behalf of the Respondents. we need not rely on his findings that Krieg was a supervisor. Member Murphy agrees with the Adminlslratile Iaw Judge's finding that Krieg was an agent acting on behalf II the Respondents at all times naterial herein. ('oinsequenly, she concludes that Krieg's statements in his aflidal i concerning his telling employees that till,aing the election the Respondents would make cert;lin changes in terms Aof mplonlient re in the nture l admissions against interest and re. therefore. not hearsa . Accordingly. she finds that the Administratie l.aw Judge's reliance on 4.i/ J Bar ind ('. Inc., 236 NI.RB 242 (1978). in which she dissented, i misplaced because there the affidavit was used to prove ai fact in conflict with his eslimon at the hearing: i.e.. that the witness was a supersisor In those circumstances Member Murphy would hase treated such afllidaiit as heairsay because the witness was not subject Io cross-examination at the tking it the statement and thus it did not meet the requirements of Federal Rule 801(c) of the Federal Rules if i idence tII qualil a a admissible ecidence form an opinion concerning any individual's union sentiments. Since there is no evidence that Krieg based his opinion on information gathered by illegal means, we are not convinced that Krieg's mere re- cording of his opinions violated the Act. We also disagree with the Administrative Law, Judge's finding that the Respondent's violated Sec- tion 8(a)( I) of the Act when Krieg and Tipton Vice President Allen Fishman separately told salesman Tony Mikulis that, in the event of a salesmen's strike. the Respondents would maintain operations by using stock clerks and management personnel. Both state- ments were in response to questions by Mikulis re- garding the Respondent's intentions to continue op- erations and constitute nothing more than lawful statements of the Respondent's intention to exercise their right to do so. Finally. we believe that the remedial hargaining or- der recommended b the Administrative Law Judge is warranted. Before the election the Union enjoyed the support of a majority of employees, as evidenced by signed authorization cards. However. the Respon- dents told employees that, with a union, the' could not present their grievances directly to. or discuss their problems directly with, management. They told employees that the Union would "split the company down the middle" and that it threatened the loss of' harmonious working relationships. Not only did the Respondents, on one occasion, promise changes in their payback and draw policies but. on another, the3 implied that, but for the union campaign, the sale- man's draw would have been increased. Nor did the Respondents attempt to limit their un- lawful conduct to that aimed solelI at dissipating the Ilnion's preelection mtajority. After the election, and while the UInion's objections were pending, the Re- spondents changed their draw and payback policies. an action which. as the Administrative Law Judge found, constituted a substantial benefit to employees and carried out their illegal preelection promises. Moreover. these postelection benefits fiollowed an- nouncements of both their appreciation fr the em- ployees' "vote of confidence" and their hopes that management and salesmen would, once again, work as a "unified team." As the Supreme Court said in A'I...R.B. . '- change Paris C(., 375 U.S. 405. 409 (1964): The danger inherent in well-timed increases in benefits is the suggestion of'a fist inside the elvet glove. mployees are not likely to miss the infer- ence that the source of' benefits now conferred is also from which future benefits must flow and which may dry up if' not obliged. Here, the Respondents' postelection grant of' bene- fits rewarded employees for rejecting a union which the Respondent had earlier portrayed as a divisive 242 NLRB No. 36 202 I IPION I.ECIRIC C<OMPANY force which would destro\ harmonious working rela- tionships. It wIas a calculated application of the carrot and the stick to condition emplosee response to anN union organizing effort, and it affords the Respon- dents an unlawfully acquired advantage in regard to a rerun election which cannot he cured h simpl' or- dering them to mend their ways in the future and post ia notice. AMI N)tl) CON( II, SiONS o0 LAW\\ Delete the Administrative Law Judge's Conclu- sions of L.aw 21(h) and (f)., relettering his subsequent conclusions accordingl. OR I) R Pursuant to Section 10(c) of the National I.abor Relations Act, as amended, the National I.abor Rela- tions Board adopts as its Order the recommended Or- der of' the Adlinistrative law . Liudge. as modified be- low, and hereb\ orders that the Respondents. ipton Electric ('ompany and Professional urniture (om- pany. St. Louis, Missouri. their otlicers. agents. suc- cessors, and assigns, shall take the action set orth in the said recommended Order. as so modified: I. Substitute the foillowing tfor paragraphs (a) and (f) of the recommended Order: "(a) ('reating the impression that they are engag- ing in surveillance of their emploNees' union activities on behalf of Retail Store F mplo)ees nion. l.ocal 655. affiliated with Retail Clerks International Associ- ation. AFL ('10." "(f) Telling employees that, in the event opera- tions are continued during a strike, those who do not support the nion will he made assistant store man- agers. 2. Delete paragraph (d) of the recommended Or- der and reletter the subsequent paragraphs accord- inglv. 3. Substitute the attached notice for that of the Administrative Law Judge. I IS FURI lt IR ORD)t REI) that the complaint he dis- missed insofar as it alleges violations of the Act not specifically tfund herein. II IS URIIItR ()R)ERIl) that the election held on April 15, 1977. in Case 14 RC 8353 he set aside and that the petition in that matter he dismissed. A PP N I)lX NoI i To it o)Yl is Po),sI-I) BY ORDER (- IIt NAI IONAl .AH()R R AlIo()NS BOARDI An AgencN of the United States G(overnment After a hearing at which we were represented bh our attorneys and at which all sides presented evidence. it has been found that we have iolated the National l.ahor Relations Act in certain respects. \VWe have been directed to take certain actions and to post this notice. W' \t II. NO I say or do anything to make ou helieve that we ha e spied or that we are spying on what ou do in connection with the Retail Store Employees nion. l.ocal 655, affiliated with Retail ('lerks International Association. AFI. ('10. or an\ other labor organization. WI- \vIII N(oI in the future gi e ou or prom- ise to give you improved paN benetits or anything else of value to induce ou to stop helping. to stop supporting, or to refrain from otilng for the ahove-nalled UInion or an other labor organi- zillon. Wi \\1t I Nt tell ou that, in the event opera- tions are c ntinued dlring a strike. those ` ho do not support the I nion ill he made assistant llanllgers. Wi *111 N()I threaten that i' \ou select the aboe--namled Union or an\ other labor organi- zation ou will lose the right t talk direetl\ with ma nagement about -our grievances and ther wkork-related problems or tha t !ou will l )se our agreeable orking conditions anld relationship with us. Wi- wi\ i 'o l denN onu jobh ransfers or other- uise discrilinate aig;allnst U n because of' oulr union activities and s! mnpathies. W'1 \l I recognize and. upon request. hargain with Retail Store I:mplo ees nion. l.ocal 655. affiliated u,ith Retail (Clerks International Associ- ali n\ A:l (10(). as the excl lui e representativ.e of' otitr eilllo ees in tile appropriate unit. I he approprlate Iunlt is: All full-time and regular prt-time retail selling personnel employed b\ lipton Electric ('tomlpan' and Professional I urniture Con0111- pa n at our facilities located in the metropoli- tan St. Louis area, including Missouri and Illi- nois, excluding managers. assistant managers. ofice clerical and professional employees. gua;rds and super isors as defined in the Act. and all other emploNees. Wi. \\11i N( in anl tother mnl;lner interfere with. restrain, or coerce ou in tile exercise of your rights under Section 7 of the National I.a- hb( Relations Act. 'I11'P1()N I.II('I I ('()\IP\NN PR(ISSI0()N'xI 1:1t RN II RI ( P)\11''XNY 203 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION SIAIl[MLNI OF- 111L CAS Rol] iRI M. S( IwIARZBARI. Administrative Law Judge: This case was heard at St. Louis. Missouri. upon an unfair labor practice complaint issued pursuant to a charge and amended charge filed by Retail Store Employees Union, Local 655, affiliated with Retail Clerks International Asso- ciation, AFL-CIO, herein the Union. Specifically, the com- plaint alleges that Tipton Electric Company, herein Tipton, and Professional Furniture Company, collectively referred to herein as the Respondent. as joint employers of the em- ployees in the unit herein,' violated Section 8(a)(I) of' the Act by creating the impression of and engaging in surveil- lance of employees' union activities: threatening employees with loss of their right to deal directly with management concerning grievances and with loss of harmonious working conditions and relationships with management if they se- lected the Union as their bargaining representative: promis- ing employees improved pay benefits to be effective after the representation election and actually granting such pay benefits after the election while objections were pending: informing employees that if they selected the Union as their bargaining representative, a strike would be inevitable and bargaining would be fitile, and that if a strike occurred, employees who did not support the Union would remain employed: and by denying a desired transfer to an em- ployee because of his union activities. Pursuant to a petition filed by the Union in Case 14 RC 8353 and a Stipulation for Certification Upon Consent Election, approved by the Regional Director for Region 14. a representation election by secret ballot was conducted on April 15. 1977,2 among the employees of the Respondent in the agreed bargaining unit referred to above. The tally of ballots served upon the parties immediately following the election showed that of approximately 41 eligible voters. 40 cast ballots of which 14 were cast for the Union, 20 were cast against the Union. and 6 ballots were challenged. At the hearing, the Stipulation for Certification Upon Consent Election in Case 14-RC-8353. pursuant to which the election in that matter was conducted, was received over objection of counsel for the Respondent who. although having signed the Stipulation, sought to place in issue the appropri- ateness of the unit and the status of Tipton and Professional Furniture as joint employees of the unit employees, matters agreed in the Stipulation. Issues raised by the remaining election objections are consolidated r hear- ing in the instant proceeding as paralleling allegations of the complaint. The Respondent argues, however, that the Stipulation is irrelevant and immate- rial here, as it relates solely to the representation proceeding, which matter, the Respondent contends, should be severed from the complaint case. How- ever. having stipulated jurisdiction and their status as joint employers of the unit employees for purposes of securing a consent election under the Board's supervision, the Respondent is now estopped from denying same in the ab- sence of valid grounds, not here shown. See Charles T Joyce. d/h/u Interna- tional Kitchens, 189 NLRB 79, fn. I (1971): Capitaon Drilling Contpan. 167 NLRB 144. 145. fn. 4 (19671. As Tipton and Professional Furniture are estopped from denying their status as joint employers. as the present matter involves a continuation of Case 14 RC 8353. and as the objections to the election mirror certain allegations of the complaint, I reaffirm my ruling at the hearing denying the Respondent's motion for severance. The relevant unit which consists, in effect. of all full-time and regular part- time selling employees employed by the Respondent at its facilities in the metropolitan St. Louis area, including Missouri and Illinois. excluding all others, will be considered. infra. 2 All dates hereinafter are within 1977 unless stated to be otherwise. There were no void ballots and the challenged ballots were not sufficient in number to affect the results of the election. The Union filed timely objections to conduct affecting the results of the election. In its objections, the Union alleged that in the critical period before the election.' the Respon- dent had engaged in conduct of a type set forth in certain allegations of the complaint. 4 All parties were given full opportunity to participate,' to introduce relevant evidence?, to examine and cross-examine witnesses, and to file brick. Briefk filed by the General Counsel and the Respondent have been carefully consid- ered. Upon the entire record of the case7 and my observation of the witnesses and their demeanor. I make the following: FtIN Ib)I S t)l Ft: I . illt I L:SINISS tl til RISt'0INI)I-NI The Respondent, Tipton Electric Company and Profes- sional Furniture Company. consists of' Missouri corpora- (ions with a principal office and warehouse at Hazelwood. Missouri. herein called the Respondent's Brown Campus facility, and with retail stores located throughout the St. lIouis. Missouri. metropolitan area, including the Brown Campus facility. They are engaged in the retail sale of ap- pliances. television sets. refrigerators, and audio and elec- tronics equipment, and beds and sleepware, respectively. have some common ownership and central control of labor relations and, for purposes of' this proceeding, as fund above, constitute a joint employer. During the year ending April 30. 1977. a representative period. Tipton Electric and Professional Furniture, each in the course and conduct of its respective business operations. derived gross revenues in excess of' $500,000 from the retail sale of appliances and furniture, and purchased and caused to be transported and delivered to the Brown Campus facility. appliances and fur- In Gdvmear Tire and Ruhher Comnpat,. 138 NLRB 453 (1962). the Board defined the critical period before an election as the interval from the date of the filing of the petition to the time of the election. Conduct occurring during this period found to have interfered with the employees' freedom of choice at the polls may be grounds for setting aside the election. Accordingly. in the present case, the critical period is from January 24 to April 15, the date of the election. ' The Board by its Order, dated June 14, adopted the Regional Director's recommendations in his Report on Objections that Objections I. 2. 3 as to part D. and 4 as to parts B. C. D, and E. be overruled, and directed that the issues raised with respect to the Union's Objections 3, as to parts A. B,. C. 4 as to part A. and 5 be consolidated for hearing with the complaint case. No merit is found to the Respondent's argument at the hearing and in its brief that it was prejudiced when following the Respondent's motion for separation of witnesses. the Respondent and other parties, respectively, were permitted to retain only one witnesses-principal in the hearing room in addi- tion to counsel, thereby denying the Respondent's request to have present officials from both Tipton and Professional Furniture. This was consistent with my earlier finding that, although separate corporations. Tipton and Professional Furniture are united in interest in this proceeding as joint em- ployers of the unit employees. It further is noted that as Allen E. Fishman. president of Professional Furniture and executive vice-president of Tipton. was present throughout the proceeding. the Respondent had available a re- sponsible official of both Respondent concerns. I At the hearing. the Respondent's repeated efforts to adduce subjective testimony as to witnesses' states of' mind were rejected. as such evidence is not considered reliable. N.L.R B v. Hunter Outdoor Producs., Inc., 440 F.2d 876. 879. fn. 3 (Ist Cir. 19711 7 In accordance with the post-hearing stipulation of the General Counsel and Respondent. the record of this proceeding is hereby corrected. 204 TIPTON EI.ECTRIC COMPANY niture and other goods and materials valued in excess of $50.000. of which goods and materials alued in excess of $50.000 were transported and delivered to the Brown Cam- pus facilith in Hazelwood directly from points located out- side the State of Missouri. Tipton Electric and Professional Furniture. herein collec- tively called the Respondent. are now and have been at all times material herein. employers engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. and are joint employers of the employees in the unit found appropriate herein. II. IIII- I.lOR ORG(ANZA'rlION INVOIVEil) Retail Store Employees Union. Local 655. affiliated with Retail Clerks International Association. AFL CIO. is a la- bor organization within the meaning of Section 2(5) of the Act. 11. llt Al.l.tiGlD UNFAIR LABOR PRACtIItS A. Background Tipton operates a chain of 10 retail stores throughout the greater St. Louis, Missouri. metropolitan area where it sells household electrical appliances, including refrigerators. televison sets, and audio items. Two of the stores are in nearby Illinois, one in St. Charles County. Missouri. and the remainder in the City of St. Louis. The Respondent's offices, principal store (Store No. 9). and warehouse are in Hazelwood, Missouri. at a facility known as the Brown Campus. Each store has a manager. an assistant manager. and one or more salespersons. In some but not all of these stores, Tipton leases a portion of the sales space to Profes- sional Furniture Company., where the latter sells beds and bedding. Sylvan Kaplan is president of Tipton and Allen E. Fish- man, Tipton's executive vice president. is also president of Professional Furniture. Prior to September 1976, the per- sonnel employed in the Respondent's stores did not belong to a union. On or about September 1, 1976. the Union began an or- ganizational campaign among persons employed in the Re- spondent's stores. As part of its campaign, the Union mailed correspondence and authorization cards to employ- ees, conducted meetings, and otherwise solicited employees' signatures on authorization cards. Although the record in- dicates that the Union requested recognition of the Respon- dent, the complaint does not allege and the General Coun- sel does not contend that such recognition, in fact, was requested. B. Alleged Interference, Restraint, and Coercion Although the representation petition, as noted, was filed on January 24, the events alleged as unlawful took place between early March and the time of the April 15 election, with certain other allegedly unlawful conduct occurring af- ter the date of the election. The Respondent denies the commission of any unfair labor practices and asserts that the Union never has had the support of a true majority of the unit employees. I. The preelection conduct of Sylvan Kaplan and Allen E. Fishman a. The Mart-(h 25 letter and the spee'h to emnplqvees The record reveals that on about March 25. Tipton Pres- ident Sylvan Kaplan sent the following letter on Tipton's stationery to the unit employees: I am writing this letter because I feel that it is very important for you to understand how strongly I feel against having a union at Tipton. Personally, I am up- set that any salesperson would want to subject another person to a union in the Tipton stores. With a union, you would lose your right to speak and act as an individual in matters that affect your job. You could no longer contact me directly or anyone else in the organization with your problems, but would have to speak and act through the union. This would affect not only the personal relationship that many of us have had over a period of time, but also would af- fect your status as professional salesmen in permitting someone else to do the talking for you. As members of the union, you would be giving the union, and only the union, the right to speak for you about your working conditions. Over the years. I have gotten to know many of you very well and I simply cannot imagine professional- type people willing to sell themselves out. Vote in your interest-vote NO. The theme in the second paragraph in the March 25 let- ter-that if the Union were selected, the employees no longer would be able to directly approach management with their problems-was carried forward in a brief speech which Kaplan read to unit personnel during the last week of March and in early April as he toured the Respondent's stores. This address, entitled "Employees Lose Their In- dividuality in a Union Store." began as follows: When a union enters, salesmen lose their right to speak or act as individuals. They can no longer go di- rectly to their management with their problems but must speak and act through the union. If the union disagrees because of political or selfish personal rea- sons (and you know how this happens in any organiza- tion) a salesman may have no voice, no influence in his work or working conditions. There is little room for dissent in unions. The union tells salesmen what they may or may not do and normal friendships between salesmen and the manager are forced out.... This speech, which was also read at certain stores by Tip- ton's executive vice president, Allen E. Fishman, on Kap- lan's behalf, went on to state that the cost of unions to salespersons would be a financial burden from which they would get nothing they could not obtain without having a union. The speech iterated that it was Kaplan's policy to provide as many employee benefits as possible, outlined benefits then available, and noted that the Union is a great "leveler" because of its blind adherence to seniority. which 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would take precedence over employee loyalty, ability, and performance. Erwin W. Welling8 testified that Kaplan had read the foregoing speech on about March 28 at the store where he was employed to the assembled store manager, the assistant store manager. and three sales employees, including Well- ing. After reading the speech, Kaplan called for questions. Welling asked the if' the address was not the same as the letter they had received in the mail a day or two before. Kaplan agreed, but observed that if Welling had read the letter, there is more to that document. Salesman Edward Hawkenbery testified that during the last week of March, Fishman visited Store No. 2 on Cham- bers, St. Louis, where he was employed, and read Kaplan's speech to a gathering of sales employees. When Fishman asked for questions, Hawkenbery volunteered some com- plaints and told Fishman that he had signed the union card. Fishman retorted that he did not care if Hawkenbery had signed the union card and that he did not want to know who had signed a card for the Union. In Reidbord Bros. Co.,9 Administrative Law Judge Robert Cohn, in his Board-approved Decision, found as follows: . . [the supervisor] misstated the law when he advised that, with a union at the plant, employees could not "go directly to a supervisor and register a complaint." Section 9(a) of the Act expressly provides that "any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have their grievances adjusted, with- out the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the collective-bargaining contract or agree- ment then in effect: ProvidedJiurther, that the bargain- ing representative has been given opportunity to be present at such adjustment." As . . . noted in Block- Southland Sportswear, Inc., 19 "this statutorily protected right of employees thus to present their own grievances and to speak for themselves is undoubtedly a right cherished by many employees and [the employer's] statement that after the Union came in, employees would not be able to go to him with their problems was, by its nature, the threat of a loss of benefits in reprisal for the election of the Union. 19170 NLRB [936. 949 950]. As in Reidbord, supra, it also is concluded that the letter and speech further violated the Act in threatening that if the employees selected the Union as their bargaining repre- sentative, the prevailing harmonious working conditions and personal relationships between the Respondent and employees would no longer exist, implying that "the em- ployees would take sides against the Respondent, a never- ceasing conflict . . ." to the employees' ultimate disadvan- tage. In this context no merit is found to the Respondent's argument that the representations made in the letter and 8 In late March, Welling, a conspicuous union adherent, was employed as an appliance salesman by Tipton at its Store No. I on Hampton, St. Louis. 9 189 NLRB 158, 162 (1971). Also see Graber Manufacturing ompany. Inc., 158 NLRB 244 (1966), enfd. 382 F2d 990 (7th Cir. 1967). speech are merely lawful predictions, based upon the Com- pany's experience, of the situation which would obtain were the Union designated as the employees' bargaining agent. Accordingly, for the above reasons, it is concluded that Kaplan's letter of March 25 to employees and the speech that he and Fishman delivered to employees in late March and early April, indicating that if they selected the Union, they' would lose their right to directly present grievances to management and that harmonious working conditions and personal relationships with management would be lost, are, respectively, violative of Section 8(a)( 1) of the Act. b. The events lit the April I awarsd meeting Salesman Welling testified that the Respondent rewards its successful sales personnel by presenting them with bo- nuses at annual awards meetings, and that, on April I 1, he attended such a meeting in the showroom of Respondent's main facility at the Brown Campus. Also present were members of top management, including Kaplan. Fishman, and Personnel Director Ceil Tobin, the store manager, assistant store managers. the other sales personnel, and warehouse support staff. After the awards were distributed and the credits acknowledged. a recess was called. The salesmen, including Welling, who had been asked to re- main, returned after the recess at which time Kaplan told the group that if the Union won the election but could not come to an agreement with Tipton on the terms of a con- tract, his only obligation under the law, in the event of a strike, would be to put the salesmen on a preferential hiring list. He was not going to do anything that was not economi- cally sound for Tipton. During the meeting, Personnel Director Tobin explained that one of her functions was to help the salesmen file medi- cal claims and cited instances where this service and proved beneficial. Kaplan then invited employee questions. In response to an employee's question about improving communications, which also suggested that Kaplan and Fishman might meet with salesmen directly to hear their grievances, problems, or questions. Kaplan replied that if the salesmen wanted, he could reinstitute the Monday morning sales meetings.l Fishman, in response to another question received from the floor, replied that the Company was "in a pregnant state" and that he could not discuss any changes in employ- ment conditions. However, he continued, a computerized feasibility study showed that increasing the salesmen's draw by $200 a month" would not adversely affect the Compa- ny's profitability. However, Fishman declared, at the time, 10 Welling explained that during his first years with the Respondent. ip- ton had conducted weekly Monday morning sales meetings at the Brown Campus beginning approximately 2-1/2 hours efore the start of the work- day, which all sales personnel from the arious stores were required to at- tend. These meetings were later conducted on alternate Mondays until they were discontinued in October 1976, in response to the salesmen's complaints. There was no expression by the sales staff that these meetings were desirable or that they should be resumed. " At the time of the April I 11 meeting, the sales staff was compensated on a commission basis, with salesmen receiving $600 monthly draws against their anticipated sales. There then was in effect a requirement that sales- persons who did not average sales equal to or above their monthly draws owed the difference to the Respondent at the end of the year. As 'will be discussed, this policy was later changed. 206 TIPTON .E(CTRIC COMPANY he could not say anything concerning improved emplosee conditions in view of the pending election. 2 I disagree with the General ('ounsel's contention that Kaplan's response concerning intracompanv communica- tions. to the effect that the Monday morning sales meetings possibly should he resumed, constituted an unlawful solici- tation of employee grievances or an improper offer to hold remedial grievance meetings in order to discourage em- ployee support for the Ulnion. As noted, the former Mon- day morning sales meetings had been a decided imposition upon the staff and were discontinued because of their un- popularity. In this context. it is difficult to see how a refer- ence to the reinstitution of these meetings. properly de- scribed in the Respondent's brief as a heavy-handed response to a question, could have constituted an induce- ment in the sense urged hb the General Counsel. Accord- ingly, I do not find Kaplan's reference to the possibility of resuming the Monday morning sales meetings to he viola- tive of Section 8(a)( I ) of the Act. However I do agree with the General Counsel that Fish- man's response that the Company had studied increasing the monthly draw and that it was feasible as not adversely affecting company profits. made but 4 days before the elec- tion. was unlawful. Fishman's statement thus made tended strongly to impress upon employees that theN did not re- quire a union to receive a pay raise then being conspicu- ously considered. Additionally. rather than restricting him- self' to explanations of the Respondent's legal obligation. Fishman's statement implied that the substantial increase in the draw would have been forthcoming but for the initi- ation and progress of the Union's campaign. As in Sta-Hi Division, Sun Ctemnicral (Corporation.' such a gratuitous comment had the fotreseeable effect of placing the onus for delay of the pay increment on the Union and. therefore was in violation of Section 8(a)(l). In so concluding. it also is noted that there is no evidence that the feasibility study thus announced was consistent with the Respondent's exist- ing practice." c. Additional unlawfid pre'elecion conduct h Fishman Tony' Mikulis, a salesman employed at the Respondent's Store No. 21 in Granite City. Illinois. testified that during the week of March 21, Fishman visited his store and told Mikulis, the only unit salesman then present, that he and Kaplan had been going to the stores to ask if the salesmen had any questions about the union situation. Mikulis re- plied that he had heard that if the Union came in, it would split the Company down the middle, with the result that the salesmen would have to voice their grievances through a shop steward instead of going directly to the store man- ager." Fishman responded that as far as he knew that this 1 Several other employee witnesses who had attended the April t I meet- ing testified that no promises of benefits had been made and Welling himself averred that Fishman's statement aout the favorable results of the stud as to increasing the draw was not tied It) the election. ' 226 NLRB 646 (1976). 4 Also see.J M. Balters Co. Inc, d/h/a Jaison's. 212 NLRB .7 8 (1974. is Mikulis based his questions of March 21 to Fishman on earlier conver- sations Mikulis had had with Michael Krieg, assistant to the sales manager. during which Krieg had made these points. Krieg's status as a supervisor and/or agent of the Respondent and certain of his other activities are in issue and will be considered below was true. If the Union came in. it would be necessary for the employees to proceed through a steward Fishman. according to Mikulis. likened what would hap- pen if the Uinion came in to what then what was going on at the ('ompany's warehouse where the employees were repre- sented under a collective-bargaining agreement between the Respondent and a different union. Fishman stated that even the most routine instructions could not be given di- rectly to the men, but must he conveyed through the stew- ard. Mikulis then requested confirmation as to whether it was true that the Company would use stock clerks instead of salesmen if there were a strike. Fishman replied that if there were a strike, the Respondent would keep the stores open. continuing operations: to do this. thes would use stock clerks, store managers. and assistant store managers. Fishman declared that the Company had remained open when the warehouse employees were on strike, keeping both the warehouse and stores in operation, and. if a strike by the salesmen occurred, the Company would keep the stores open again. Mikulis observed that Fishman's words sounded like a threat because evers time someone said "union" the Company said "strike." Fishman answered that he was not making a threat but was stating what would happen if there were a strike. Mikulis' account of this con- versation was not disputed by Fishman. In accord with the General Counsel, it is concluded that fishman's statement concerning a strike, although in reply to a question, was but a continuation of Assistant to the Sales Manager Krieg's earlier portrayal of the inevitability of a strike and the resultant replacement of employees it they supported the Union. As similarly found in Rayinond A. Gartmlan, d/h/a WGK Radio, ' Fishman "could hardly have painted more graphic word pictures to demonstrate to employees the futility of their selection of the Union as their collective-bargaining representative." It therefobre is concluded that his statement was in violation of Section 8(a)(l ) of the Act.- I further agree with the General Coun- sel that Fishman's statement to Mikulis that employees would lose their right to directly approach management with their problems and grievances is a restatement of the representations contained in Kaplan's March 25 letter to employees and in the speech delivered by him and Fishman to unit employees during the end of March and the begin- ning of April. above found violative of the Act.' For the reasons set forth in connection with the letter and speech. this misrepresentation, repeated sufficiently during the pre- election period so as to appear part of the Respondent's preelection strategy, is again found to be in violation of Section 8(a)( 1). Welling testified that on April 1. on his return from lunch, he was told by a supervisor to go into the store man- ager's office where Fishman was talking to two other sales- men, Larry Smith and Mike Paulus. As Welling entered, Fishman was asking Paulus whether it made any sense to him that a company would not show a profit and thereby would have to pay a higher interest rate or is it just some 1'201 NLRB 763 (1973). " See also Atnerace Corporation. ESAA Division. 217 NRB 850 (1975); Coosa a/lley Covnalescent Center. 224 NLRB 1288 (1976): The Singer Corn- paln. Friden Dloiuion 199 NI.RB 1195. 1214 15 1972) t1 See Reldblrd Br Co(, svupr at 162. 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more union "bullshit." Fishman then asked Welling if he had any questions. When Welling said that he did not. Fishman stated, "Well, I know where you stand and i I had been in your position when the half-commission system came into being' I probably would have taken some type of action, but I don't believe I would have done the same thing that you have." Although this undenied incident, which created in Well- ing an impression that his union activities were under sur- veillance by the Respondent, was not specifically alleged in the complaint, it is closely related to matters that were al- leged. was litigated at the hearing and, therefore, is violative of Section 8(a)( ) of the Act. 3. Michael Krieg's supervisory and/or agency status The General Counsel contends that Michael Krieg. as a supervisor and/or agent of the Respondent, engaged in suc- cessive unlawful acts among employees as he visited the various stores in his capacity as assistant to the sales man- ager with responsibility for overseeing the Respondent's ex- tended sales program (ESP). T The Respondent denies that Krieg, a former salesman, had supervisory or agency status to bind the Respondent by his actions, or that his conduct was unlawful. Krieg was first employed by the Respondent in May 1973 as a salesman, continuing in that capacity until April 1974, when he became an assistant store manager. In October 1975, he became a store manager, remaining so until Au- gust 1, 1976, when he was removed as manager, again be- coming a salesman. Krieg left the Respondent's employ on September 20, 1976, but returned as a salesman 3 months later, on December 13. On March 3, John Maragos, the Respondent's sales man- ager, issued the following memorandum to the Respon- dent's sales force: We are pleased to announce the appointment of Mike Krieg to the newly created capacity of Company E.S.P. Specialist and Assistant to the Sales Manager. 1 The half-commission system was instituted by the Respondent in April 1976. Before then, the Respondent showed the suggested retail price on its price tags. However, the Respondent's price book listed a second price. called the "low price" for each item. Between the prices shown on the tags and the lower figures specified in the Company's book., the cost to the cus- tomer was negotiable, the salesmen attempting to get the highest return. After the new system was instituted, the Company's price book also reflected percentage discounts on most items, called the "super low price." less than the low price. If necessary, salesmen were required to offer the merchandise at the super low price to close sales before customers left the store. On items sold between the low book price and the super low price, the salesperson received but half-commission. As a result. in some instances. thanks to bar- gain-hunters and customers who had learned that lesser prices were avail- able, salesmen received lower commissions than before the institution of the half-commission system. This became a source of employee dissatisfaction. 0 Under the Respondent's strongly emphasized extended sales program, familiarly called ESP, sales employees were expected to sell contracts to customers for continued servicing of their newly purchased goods for periods extending beyond the manufactures' warranties, and a quota was established requiring that each salesperson's ESP sales volume fall within a minimum specific percentage of that employee's total sales. Failure to meet this quota during a given calendar quarter automatically resulted in placing the em- ployee on probation. If the salesperson met the quota in the next quarter, he was removed from probation. Employees who failed to meet their ESP quo- tas in two consecutive quarters were subject to discharge. Mike. on a regular once a week basis, will be into every store, helping our sales staff improve their E.S.P. performance. Mike's past track record in selling E.S.P. speaks well of his ability and personal skill in achieving big dollar E.S.P. percentage compared to monthly vol- ume. The memorandum concluded with a request for general co- operation with Krieg in his efforts. In his duties as assistant to the sales manager and ESP specialist, Krieg attempted to visit each store once a week, where he began each visit by reviewing the ESP figures on the sales tickets completed by the sales employees as a part of each sale, to see and record how much extended service was sold by each. He then met with individual salesmen, reviewing their tickets with them and asking why with regard to specific tickets, they did not sell extended service what reasons customers had given for not taking the extended sales service and what the sales- man's response had been. Employees who had been suc- cessful in their ESP sales were complimented by Krieg, and poor salesmen were asked to explain their performances. Krieg offered improvements in sales techniques to deficient ESP salespersons and, generally, to others whom he ob- served while they worked with customers. Krieg also con- sulted with the store managers with respect to the ESP pro- gress of' the various salesmen in their stores. As noted, his responsibility centered around ESP sales, upon which his compensation was largely based.2 Krieg had no office or desk, but worked from his brief- case as he made his rounds of the stores, regularly reporting to Sales Manager Maragos. On one occasion after assuming his present assignment, Krieg, testifying that he wanted to test his authority, recommended to Fishman that salesman Edward Hawkenbery, if he consented, should be trans- ferred to the main store at the Brown Campus. This recom- mendation was neither expected nor acceptable." Salesman Tony Mikulis testified that he had been on pro- bation fbr his failure to meet his ESP quotas during the two consecutive quarters which ended on March 31, and. in accordance with the above-described company policy, he expected to be discharged in April. However, on March 25. Krieg, during a visit to his store. told Mikulis that he had discussed with Fishman and others the idea of obtaining an extension for him past the April I deadline. He subse- quently received this extension although Fishman testified that probation and discharges for substandard ESP sales are automatically effectuated by computer. Krieg's roster of store personnel, including store manag- ers and assistant managers, contained personal notations as to the job performances of certain of the persons named. Included among these was a notation next to the name of one of the store managers to "watch him close." Krieg ex- plained that this individual had recently taken over as store manager and that Maragos had asked him to watch the new manager's managerial abilities as the Company was 1 Unlike sales personnel who, as noted, received a draw against commis- sions. Krieg was paid a flat monthly salary plus 5 percent of all ESP dollars produced in a given month above those earned in the corresponding month of the preceding year. 22 The denial of Hawkenbery's proposed transfer is alleged in the com- plaint as violative of the Act and will he considered below. 208 TIPTON ELECTRIC COMPANY not certain that he could handle the store. As directed. Krieg reported back to Maragos on this matter during the first week in April, testifying that on that occasion he and Maragos also had discussed the ability of various employ- ees with respect to ESP sales and the effectiveness of differ- ent store managers in the operation of their stores. In the course of that session, Maragos asked Krieg whether the specific store manager referred to above could manage. Krieg stated that in his view the store manager in question could handle the store and, in time. would be one of Tip- ton's best managers. Maragos, who had his own records and information sources. did not agree with Krieg, and the store manager continued under observation. Fishman and Krieg denied that the latter has any of the indicia of supervisory authority set forth in Section 2( 1 1) of the Act." However, Fishman gave him a multipage list of things that he was permitted and not allowed to say to employees in connection with the forthcoming election, de- claring that he was going to distribute the same to all Tip- ton store managers and assistant managers. He told Krieg that he, too, should have a copy since he went from store to store and it might be felt that Krieg had more authority than his position warranted. Krieg was required to read this document in Fishman's presence, and he afterwards ques- tioned Fishman on an item concerning employee inter- views, noting that this was part of his job. Fishman told Krieg that he should not say or do anything that might incriminate the Company or himself.?4 It further is noted, as will be detailed below, that Krieg, consistent with the above-found conduct of Kaplan and Fishman, told Mikulis that if the Union was designated as bargaining representative, the employees would lose their right to directly approach management with their problems and grievances. On the above facts, noting that Respondent identified Krieg to its sales force as assistant to the sales manager with responsibility for ESP sales and that he had authority to critize, compliment, and instruct employees with respect to sales, met with the sales manager and store managers to discuss employee ESP sales progress, and assisted the sales manager in evaluating store managers and employees, I find that although Krieg's authority to independently affect the employment status of employees was limited, 5 he at all material times responsibly directed sales employees in more than routine fashion, and that, in performing this function, he exercised independent judgment sufficient to bring him within the statutory definition of supervisor. In any event, even if Krieg were not a supervisor within the strict mean- ing of the Act, the record establishes that the Respondent 23 Sec. 2(11) of the Act defines the term "supervisor" as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employ- ees or responsibly direct them, or to adjust their gnevances, or effectively recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, hut requires the use of independent judgment. 2 Although the Respondent included Krieg's name in the voting eligibility list prepared for use in the election, Krieg did not attempt to vote, explaining that he was not a retail salesman. Earlier, before assuming his present posi- tion and while still a salesman, Krieg had signed a union authorization card. 25 Although Krieg's actual role in obtaining Mikulis' reprieve from dis- missal after the latter's failure to meet his ESP quotas in the two successive quarters is not clear in the record, the evidence tending to show that Krieg was involved in this decision is unrebutted. placed him in a position where emplo ces could reasonabhls believe that he spoke on behalt of ,iil.miagnet. Ihereore. I find that his conduct is imlput.itl to the Respondent." 4. Krieg's alleged tnlatul conduct a. The nivrcprevllliol of eniploee rights Salesman Mikulis testified that Krieg visited his store during the week of March 10. After reviewin Mikulis' sales tickets with him on that occasion, Krieg declared that if the Union came in, it would divide the Companv and that, if the Respondent's employ- ees went union. all the employees would have to have their grievances handled through union representatives or shop stewards instead of going to the management directlb. When Mikulis asked whether that meant that if he had a problem in the store he could not go directly to the man- ager. Krieg replied that the Union would kind of split things down the middle and the employees would have to go to the Union. The foregoing unrefuted statement is identical to that above found to he violative of Section 8(a)( I ) of the Act with regard to Kaplan's March 25 letter and speech to em- ployees during late March in that it misstates to employees their rights under Section 9(a) of the Act. The same viola- tion is found here.2Y b. Krieg's list of employees' union sympathies Mikulis testified that on about March 17. while Krieg was again reviewing his ESP performance with him, he asked Krieg whether the Union was supported by many or few people. Krieg replied that to his knowledge at the mo- ment, the vote was 21 to 20 for the Union. In response to Mikulis' question as to how he could come up with such detailed figures, Krieg replied that, between the two of them, he had been taking a survey of the employees and decided which way he thought they would vote. He then produced and read from several pages taken from a yellow tablet, stating that basically the employees in most of the stores were either all for or all against the Union. Krieg observed that Store No. 6 is all for the Union and Store No. 9 is all against the Union. After Krieg, continuing to read his list, outlined the support the Union had at the various stores, he told Mikulis that he had him down as being against the Union. Mikulis did not reply. During the last week of March, Krieg returned to the Granite City store. After reviewing with Mikulis his ESP performance for the past week, Krieg stated that he had heard that Fishman and Kaplan were going to the stores to 26 Helena Laboratories Corporarion, 225 NLRB 257. 258 (1976), enfd in part 557 F.2d 1183, (5th Cir. 1977); Broyhill Company, 210 NLRB 288, 294 (1974), enfd. 514 F.2d 655 (8th Cir. 1976). In concluding that Kneg's con- duct is binding upon the Respondent, it also is noted. as will be shown, that certain of his pronouncements to employees were wholly consistent with representations to the staff made by Kaplan and Fishman, found unlawful herein. It further is noted that Fishman, too, in furnishing Krieg with direc- tions for self-conduct in the preelection period, copies of which were distrib- uted to members of management. had perceived Krieg as having special status. See Blake. Moffrr & To.ne, 214 NLRB 859, 863, fn. 4 (1974). 2 Reidbord Bros. Co., supra. 209 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talk to the employees and asked if either had been at this store vet. Mikulis replied that Fishman had come earlier." Mikulis stated that he had a question for Krieg, as Fishman had said that the ('Corpany would use stock clerks instead of salesmen should there be a strike. He asked if Krieg had heard anything about this. Krieg replied affirmatively, that he had heard this would he true if there were a strike. Krieg told Mikulis that he should not worry about it, though. If there were a strike, the (Company would use salesmen who had voted against the Union and would find a way of keep- ing them in their jobs: they would be made assistant sales managers. Mikulis asked how the Company could know who was for or against the Union. Krieg replied, "Well, we will know." Mikulis asked whether the list he had had was how the Company was going to know. Krieg repeated that they would know. Krieg, in turn, testified that after becoming assistant to the sales manager, he continued to overhear discussions of the Union's organizational compaign by salesmen, store managers, and assistant store managers at various stores, and admitted having shown "a lot of people," including Mikulis and various store managers, a list containing the names of the Respondent's employees broken down by stores, and notations as to how he thought the employees were going to vote.2 Krieg concededly told Mikulis that a rumor was circulat- ing that the Union had the support of 70 to 80 percent of the employees, but that from the list he was making, Krieg did not believe that the Union had nearly that much sup- port, but only had the backing of either 20 or 21 percent. Krieg also admitted telling Mikulis that he had him marked as being against the Union.'° Although Krieg admittedly showed the list to store managers, he denied having notified Kaplan or Fishman of its existence and he further denied having informed any employee that the list had been kept at the request of the Company. Krieg also recalled having told Mikulis that if a strike did take place, those who elected to cross the picket line could do so. Krieg admittedly told managers and assistant man- agers that in the event of a strike, the Company could use clerks instead of salesmen in continuing its operations, but he denied having said this to Mikulis. He also denied telling Mikulis that should a strike occur, people who voted against the Union would become assistant managers. It is clear that the Respondent unlawfully created the impression of engaging in surveillance of its employees' union sympathies and activities by Krieg's conduct in showing Mikulis and other employees his list, with the ex- planation that it was being used to record the Union senti- ments of the sales staff." 28 Mikulis' reference was to Fishman's above-described visit when he, too, had told Mikulis that if the Union came in, employees would no longer be able to directly approach management and had detailed what the Respon- dent's policy would be in the event of a strike. 29 Krieg showed his list to Pete Brockmeier, manager of Store No. 1, on about March 4. Brockmeir had told him that he should not be quite so open about it, Although Krieg related that he also showed the list to other store managers, Brockmeier is the only one whose name he could recall in this regard. The list was originally his copy of the Respondent's personnel roster. 30 Krieg testified that the basis for his determinations as to whether specific employees were for or against the Union generally depended upon his esti- mate of their job contentment. I' Doughboy Recreational, Inc. 229 NLRB 381, 388 (1977). Krieg's further statements to Mikulis that he had been taking a survey as to how the employees were going to vote and that he had recorded the latter as being against the Union, and his use of the list to make judgments about the extent of the Union's support among employees, clearly constituted surveillance of employee union activity and ad- ditionally created the impression of surveillance of same, in respective violation of Section 8(a)(1) of the Act. 2 It further is found that the Respondent also violated Sec- tion 8(a)(1) of the Act by Krieg's response to Mikulis af- firming that the Respondent would use clerks in the face of a strike but that Mikulis need not worry as, in such circum- stances, the Company would keep the jobs of salesmen who had voted against the Union, making them assistant man- agers.3' c. Krieg ' preelection promise of an improved payl policy Erwin Welling testified that in about mid-March, while Krieg was visiting the Hampton store where Welling was employed, Krieg told Welling in the presence of another salesman that regardless of the outcome of the election, Kaplan and Fishman were now aware that there were prob- lems, that the salesmen were unhappy, and that there would be some changes made. He did not say what those changes would be. The General Counsel concedes in his brief that Krieg's statement as described by Welling, standing alone, would not be sufficient to sustain the violation alleged, but he ar- gues that the incident must be viewed in context with Krieg's testimony. Krieg, however, was not a forthcoming witness in connection with this incident. After initially de- nying that he had told Welling or any other employees that there would be changes made after the election, he re- viewed his pre-trial affidavit, executed during the General Counsel's investigation, which Krieg conceded contained his statement as described by Welling, that there would be some changes in terms and conditions of employment. This was part of a general statement heard by most employees at the store, including Welling. Although Krieg conceded that in his affidavit he had admitted having said that such changes would take place, he then testified at the hearing that at the time in question he had merely stated that he wanted to see changes in the half-commission policy, ex- plained above, and the payback system, which required re- payment by salespersons of draws available for use during vacation periods and for other purposes. Contrary to his affidavit, Krieg denied having announced that such changes actually would occur. Noting the inconsistent nature of Krieg's testimony in this area, his tendency, when pressed under examination, to nI N.L.R.B. v. Arrow Specialties, Inc.. 437 F.2d 552 (8th Cir. 1971); Coosa Valley Convalescent Center, 224 NLRB 1288. 3 Amerace Corporation, ESNA Division, 217 NLRB 850(1950); The Singer Company, 199 NLRB 1195; Coosa Valley Convalescent Center, supra. Krieg's denial of Mikulis' account of what he had said would occur in the event of a stnrike is not credited in view of his admitted other conduct violative of the Act, including that arising in connection with his listing of employee union support and his statement to employees that they would lose their right to directly approach management with grievances if they selected a union. Moreover, the disputed representation as to the Respondent's policy con- cerning jobs in the event of a strike is consistent with Fishman's statements to the same effect. 210 I IPION I.lE(' RI(' (COMPAN abandon original denials and to move more closely to the representations in his affidavit as to swhat had occurred. and noting also his participation in the pattern of unlawful con- duct described herein, I credit the account of the incident set forth in Krieg's affidavit itas referred to in his testimon, and find that on the occasion in question. he told Welling and other employees, that after the election. changes would be made in the half-commission sstemn and the pahback policy. In Alhvi J. Bart & ( o., ' the Board found that thile Adinin- istrative Law Judge had properly credited the pre-trial affi- davit of a witness in concluding. contrary to that itness' testimony at the hearing, that he was a supervisor within the meaning of the Act. In that case, the Board accepted the witness' affidavit not merely as a prior inconsistent statement for purposes of impeachment. but also as sub- stantive evidence used in concluding that the witness, in fact, was supervisory. In so doing the Board noted: The authorities are divided as to whether the prior statement of a witness who is later subject to cross- examination with respect to the statement is hearsas. The "orthodox view" classifies such statements as hearsay which may be admitted under traditional ex- ceptions for impeachment purposes. The modern trend, however. is that prior inconsistent statements of a witness are not hearsay at all and, accordingly, that they may be used substantively. E.g., Model Code of Evidence. Rule 503(b) (American Law Institute 1942). See, generally. McCormick's Itandlhook of /lhc Law of Evidence §251 (E. Cleary ed. 1972): Ill. a. Wigmore, Evidence, §1018. Adopting an intermediate position. Congress drafted Rule 801(d) of the Federal Rules of Evidence to provide that the prior statement of a wit- ness is not hearsay if"the declarant testified at the trial or hearing and is subject to cross-examination concern- ing the statement, and the statement is .. . inconsistent with his testimony, and was given under oath subject to the penalty of perjury ... in a deposition .... ' In the present case, procedurally analogous to Bart, sU- pra, it has been concluded that the most accurate account of what Krieg told employees at the Hampton store with respect to postelection changes in their working conditions is contained in his affidavit, as described in the record and supplemented by his testimony, and that he then told em- ployees that changes would be made in the hall-commission policy and the payback system. In light of the Burt case, the references made by Krieg as to the content of his affidavit should be considered in reaching this conclusion. Although. unlike Bari, the affidavit itself is not in evidence. its relevant content is sufficiently clear in the record as to suffice. Also as in Barr, Krieg was subject to cross-examination as to his affidavit and general testimony. and his affidavit is not the only evidence of his participation in unlawful conduct. It therefore is found that Krieg's statement to employees be- fore the representation election that the Respondent would improve certain terms of employ ment violated Section 8(a)(1) of the Act. 4 236 NLRB 242 35 Id at 243 d. iT/ rc/JUval t trn.s/i'' Ed iard 11aokcnh'crv EIdward t awkenbery. frmerl emplo,ed bh the Respon- dent at its Store No. 2. on Chambers, St. I ouis." testified thalt hen Krieg isited his store on abouit Mlarch 15. he asked ho fl;a kenhers filt about hbeing Irans'erred to Store No. 9. the headquarters store at the Brown Campus. Krieg continued that the Cormpan , had manI ne er em- plosees at that location and that he though that a ken- ber. with his experience. could he of use there as Krieg's remuneration was based upon increasing the \olumie of fSP sales)' llawkenberx replied that he had been consider- ing leasing the Respondent's emplo hut. is aln alternative. would request a transfer to the Brow n ('alipus store ;Is he felt that he could make more mone, there. llawkenber testified that he ne, er receied this transfer. In the following week, wvhen Krieg returned to the (Chainm- hers store, he asked Krieg if anything had happened as the result of Krieg's conversation with Fishman concerning his transfer. Krieg replied that Fishman had stated that l he did not favor llakenherv's transfer at that timne as he id not think that it would he good ideaI to put someone in a position to poison people's minds. Krieg testified that he initialls had asked Hlawkcnber if he was happy with the current situation and it he w as mak- ing enough money. HawkenberN said he Nats not. Krieg told Hawkenbery he would attempt to get him the transfer. In his testimony. Krieg explained that he undertook this pro}- ect to test his authority. However, when Krieg broached the matter to Fishman. the latter told him that because of the upcomin g election. it ,would he like triling to hu, a vote to transfer lItir kenher because Hawvkenher had been known to he er! unhalpp with his situation at l ipton. having been removed troim management, Fishman stated his belief that Havkenberx. with his negative attitude. constant complaints, and proh- lems \with the (onlpan would serve to undermine a rela- tively happy store at the Brown (ampus, TM Krieg testified that on his next \isit to lav kenber 's store, he told the latter that he had spoken to Fishman about his transfer, but that because Havkenherv as a 'o At the time f the hearing. HavkenberD was working tr a different emploser. tloweer, Ha, kenber> earlier had worked for the Respondent tr 7 ears He had started as salesman and sersed as a store manager for 2- 1/2 )ears hbefore reering to the satus o' salesman. In which capaci,. he was at the time of the events considered herein 13 Hawkenbers had no problems in selhing ESP sl Fishman recalled that in mid-March. Krieg had asked him .hether he had given thought to transferring Ed Ha;wkenher). an experienced salesman. to Store No. 9. as tlavskenber's ESP sales ablhit) might he useful at that store In response. Fishman had told Krieg sharplI that he was to conten trate on adsising people on h to sell FSP and to not becomne in,lsNed in this subject Fishman then told Krieg that there as no opening at the Brown ('ampus store and that it he put 1tawkenbery there hen there Aas no pening, there was a psslilthv that someone would sas that Fi:shman was trying to hun his s,.te. because a month r Iso earlier he had seen tlawkenhers serve as a union witness at the National Lahbor Relations Board representation case hearing. Fishman als, nl;rmed Krieg that the manager of the store here tHawkenhers vwas then emplo.Ned had tIld him that Ilawkenhers constantl complained about his J,,b and personal situation and was depressing srne of tlh salespeople to a poilt v here II was .ilectllrlg their sales. Fishman declared that he did not .ant sonieone llke that to poison the situaiolln at Sore No. 9. where the sal's silulnle. p.rl Itom iSP. a.1 w u(- stlandlng. 2 11 DECISIONS OF NA I()ONAI. ABOR REI.A rIONS BOARI) kinown complainer. ishman felt that he woulid poison the minds of' the people at the warehouse store a happy hunch who got along well together and made a lot of money. Krieg reported to Hawkenbery that because of the coming election, to transfer him would be like buying a vote and that therefore. Fishman was denying the transfer. Soon after the election. a vacancy having developed. salesman Jim Dorris was transferred to the Brown C'amnpus store. The above accounts by Hawkenbery. Krieg, and Fish- man as to the events underlying the denial of Hawkenbery's requested transfer do not basically conflict. However, it is noted from the above testimony that while Fishman was motivated by some administrative concerns in refusing the transfer. he included among his stated reasons Hawkenbery's appearance as a union witness at an earlier representation case hearing and the related impact that transferring Hawkenbery would have upon employees be- fore the election. It is noted that in reporting to Hlawken- bery the reasons why his transfer was denied, Krieg told this conspicuous union adherent that the effect of transfer- ring him would be to poison the employees' minds and that it would be like buying a vote. Accordingly. both Fishman and Krieg explained the refusal to transfer Hawkenbery in the context of the pending election in such fashion as to indicate to Hawkenbery, from Krieg's explanation, that had he not been a known union advocate, his transfer request might have been approved. Therefore, it is concluded that the failure to transfer Hawkenbery was based in part upon his support for the Union, in violation of Section 8(a)( I ) of the Act.' 5. The Respondent's postelection conduct After the conclusion of the representation election on April 15, Kaplan sent the following memorandum of that date to all sales personnel: Now that the election is over. I hope that we can once again become a unified team and work for the mutual success of Tipton and each and everyone of the people employed by Tipton. I hope that the activities of the past month will have a long range benefit be- cause it certainly made clear that there are things that have to be done at Tipton and which can bring about a better situation for everyone. Within the next two weeks, I will be having discus- sions with various sales people relating to some of the ideas which Allen [Fishman] and I have heard ex- pressed in recent months and will be coming out with some changes which I think will be very beneficial. I appreciate the vote of confidence that the sales per- sonnel have given and I want you all to know that the management of Tipton is going to do everything it can to make Tipton a profitable operation which will offer the short range and long range security and income that you all desire. Thereafter, while the Union's objections to the election "9 Hawkenbery's statement to Fishman in the last week of March that he had signed a union card, noted supra, occurred after the denial of the trans- fer. were pending, Fishman sent the following nlcnloranduml, dtited April 22. to all ripton Electric sales personnel: Starting Ma) 1. 1977. Tipton is going to make the following matjor changes in the draw sstem or I ipton Electric ('ompan5 employees: Salespersons at Tipton for less than three months will continue to have a draw of $600()()() per month. Salespersons at l'ipton for three months or more will have a draw of $800.0() per month. Salespersons with Tipton five years or more will hale a draw of $1000.0X) per month. At the end of each calendar year, ans salespersons who have an accumulated income under draw f:r the year will he wiped clean, if' the salespersons were with Tipton fr at least 6 full months. The changes came about ron the requests by many of the salespersons for us to rev iev the dra~w sstem on the basis that it is economicall 3 sound. since there is no salesperson who will be making as little as $7.200.00 per year. An increase in draw results in the sellin[ per- sonnel being able to better budget for their o),n per- sonal expenses and also rewards persons who are sell- ing with the ('ompany for 5 five ears with the knowledge that they will be earning at least $12.0(NX).00 a ear. Syl and I appreciate the logic behind the request and thank all those who came forth with various ideas re- lating to changes in draw. The benefits thus afforded on April 22. in addition to the above-indicated increases in the draw. included the intro- duction of a polic wherebh salespersons with 6 months service whose income from sales did not exceed their draw no longer owed the difference to the Company. These bene- fits were afforded in the context of' Kaplan's statement of appreciation for the ote of' conlidence that the sales per- sonnel had given management a,, contained in his April 15 memorandum.4 " In Fseltihal Psvis, lIt. A /ir ( r'edc P/a.tic. a Dil - sion of' Grede Foti hlrWs. I('.. .Admninistrative .law J.idge Davidson, in finding a simnilar violation in his Board-ap- proved Decision, noted as follows: Not only does the timinig suggest that Respondent sought to gain an advantage if a new election was di- rected, but the letter sent to the employees to annomnce the increased benefits gies atirmativc evidence that Respondent sought to consCey that the grant of berefits at that time was made to tulfill the implied promise in [the employer's preelectionI letter. Thus. the introduc- tion and close of' the Ietter thnked the the employees for their vote of confidence in ... manaerl ent and the close invited "continued teIL i work and cooperation in the future ... to make [tIe plait] even a better place to " The benefits allnotllned in ilic \f 22 rllcmoranduni i ar iplril em- ployees may not also h e been c.il ddil I 'lte IPrtesi nat Furntur: em- ploees, as Sharon Slern Sumnmr lr , 1r t a'r s$llil I urniure emnploec. esli- fied that she did not receiced th . ir, i ,,i1, dra\w 41 224 NLR 1312, 1315 212 TIPTON ELECTRIC COMPANY work." indicating that because . . . employees had joined the team of Respondent's nonunion employees they had received the benefits described in the letter The Respondent's arguments in its brief that Kaplan's April 15 memorandum was vague in that it promised "changes." not "benefits," and that the memoranda and benefit improvements should be discounted as not influenc- ing the election, having issued thereafter, were answered in the Felsenthal case. There, it was noted that the timing of the postelection benefits suggested that the Respondent, in the event of a new election, would gain an advantage, and the new benefits clearly had been made available in appre- ciation for the employees' vote. Therefore, I conclude that the Respondent's actions in increasing the draw and eliminating its draw payback pol- icy after the election, while objections were pending, was a reward to employees for having rejected the Union in ful- fillment of the implied promise in Fishman's statement to employees on April II and, therefore. violated Section 8(a)( ) of the Act.42 C. The Applicabilitv of a Bargaining Order 1. The appropriate unit The April 15 election conducted pursuant to the Stipula- tion for Certification Upon Consent Election, executed by the parties and approved by the Regional Director. in- volved the following unit: All full-time and regular part-time retail selling per- sonnel employed by the Employer at its facilities lo- cated in the metropolitan St. Louis area, including Missouri and Illinois, excluding managers, assistant managers, office clerical and professional employees, guards and supervisors, as defined in the Act, and all other employees. The Respondent contends that the Stipulation, in providing for a less-than-storewide unit of only retail selling employ- ees, established an inherently inappropriate unit and cannot control. In WCA R, Inc.,4 and Blades Manufacturing Corporation. et al.,4 the Board found that a unit definition agreed to in a preelection representation case stipulation is binding on the employer in a subsequent hearing where the representation case objections have been consolidated with a related unfair labor practice case. The Respondent's further contention, that a unit restricted only to selling personnel in the Re- spondent's stores is inherently inappropriate in that such a unit also should include nonselling personnel is rebutted by the Board's more recent decision in Wickes Furniture, a Division of The Wickes Corporation,45 where it was found that a unit restricted solely to retail sales personnel is ap- propriate. 42 See also Westminster Community Hovpira. Inc., 221 NLRB 185 (1975). ' 203 NLRB 1235, 1243 (1973). " 174 NLRB 937, 939 (1969). ' 5 231 NLRB 154 (1977). 2. The Union's majority status The General Counsel and the Union contend that he Respondent's unfair labor practices were so pervasive and opprobrious as to have effectively destroyed the Union's majority support within the sales unit. which, in the critical period before the election, consisted of between 43 and 46 employees.4 The parties disputed the unit placement of em- ployees Diane Smith. Mary Brown, and Dale Baden, whom the Respondent. contrary to the General Counsel, would include within the unit. Although the Union claimed that it originally had re- ceived a total of 23 signed authorization cards dated be- tween September and November 1976,.-the Respondcnt challenges cards signed by employees Janice Harris, Shar:n Stern Summers, Katie Snyder. Darrell Revels, Shai Farber, and Paul Devino on the ground that their signatures on these cards had been induced by misrepresentation. a. The unit placement issue Diane Smith At the hearing the parties submitted the following com- plete factual stipulation concerning Diane Smith: Smith, an employee of Professional Furniture, has no ti- tle, is hourly paid and is supervised solely by Harold Kopit- sky, who owns 75 percent of the Professional Furniture stock, Smith works at the Brown Campus facility where she spends approximately 40 percent of her time in clerical du- ties, including typing and filing for Kopitsky, in an office which she shares with him on the second floor. This is the sole office leased by Professional Furniture from Tipton. Smith spends approximately 15 percent of her time reorder- ing products for Professional Furniture, doing so on a rou- tine basis to maintain inventory levels. She spends between 25 and 35 percent of her time on the sales floor of Brown Campus store selling the products of Professional Furni- ture. while covering for people who are absent, at lunch, or on vacation. If someone is on vacation for a 2-week period. Smith does not cover for that person for the entire 2 weeks. She regularly does replace one specific unit employee every Thursday for 2 hours at the Brown Campus facility. She also works on the floor during sales and holidays, and has worked on the sales floor on occasions up to 20 hours a week. Smith also could work at sales for more than 40 hours a week. Smith also could work at sales for more than 40 hours a week. Smith receives no commission on sales that she makes, but does receive the same health insurance, profit sharing life insurance, discount buying privileges, va- cations, and the availability of disability insurance as all other Tipton employees, including the sales force. Smith has contact with the salespersons at the Brown Campus facility when engaged in sales duties. She has no supervi- sory authority of any kind. On the above facts, noting that Smith basically is as- signed to an office where she works under the separate su- pervision of a corporate owner rather than a store manager. ' The above minimum and maximum unit sizes are by stipulation of th, parties. '7 All union cards considered herein were dated in 1976. 213 DECISIONS 01: NATIONAL ILABOR RE.A'TIONS BOARD spends the great bulk of her time in clerical duties, that the time she does spend on the floor selling Professional Furni- ture's products essentially is in replacement of other em- ployees, and that she is hourly rated and does not received sales commissions I find that her duties essentially are of a clerical nature, lacking the significant characteristics and incentives of the sales function. Accordingly, it is concluded that Smith does not share a community of' interest with other sales employees and, therefore, is excluded from the unit. Mary Brown The parties entered into a partial stipulation as to Brown's duties and responsibilities. In accordance with their agreement at the hearing, Brown is employed by Tip- ton, has the title of director of administration 4s receives a monthly salary rather than commissions, and works at the Brown Campus facility, where she shares an office with a Tipton clerical employee. She is supervised by the merchan- dising manager, Jerry Merritt, and assist Merritt during ap- proximately 50 to 75 percent of her time." The parties further agreed that although Brown's title is director of' administration and she was so regarded in the past when she had substantive responsibilities in maintain- ing inventory, at which time 12 employees reported to her. since December 1975, Brown has had no one working un- der her direction. At the time of the hearing, Brown could occasionally request specific typing assistance from the clerical employee who shares her office or from other such personnel. s Brown testified that she also receives calls from custom- ers referred by Kaplan or Fishman and from personal ac- quaintances and relatives, selling merchandise only to those who have been referred. Accordingly, Brown's sales work caters exclusively to a private or privileged clientele who know that when they speak to her they will receive specially discounted prices not generally available.' Brown's initial contact with such customers is by phone, when she at- tempts to determine their needs and, within the framework established by the customer, indicates the different brands and models, their specifications, comparative features, and advantages and disadvantages. Brown may complete the sale on the telephone, or, if a customer wishes to inspect the merchandise. Brown will invite the party to the Brown Campus showroom. In handling these transactions, it is necessary for Brown to become periodically updated on the Respondent's inventory. Brown, who at the time of the hearing spent about 10 to 15 percent of her time in sales-related work, including the clerical ticket-writing and recording aspect, never has been "The stipulation also specified that Brown would represent that at the time of the hearing she did not have administrative duties over other employ- ees. "9 Merritt's responsibilities include purchasing "white goods" such as re- frigerators. washers, and dryers, as distinguished from "hi own goods." which includes television sets and audio equipment, and assuring that the items he buys arrive at the stores from the warehouse. 5 The foregoing concludes the stipulated evidence as to Brown's duties. s' The bottom prices, established in advance by Kaplan or Merritt, are profitable and it is Brown's responsibility, if possible, to make the sales. assigned to a store as a sales employee.,' never has covered for absent salesmen, and sells only to the special customers referred to above. Her principal contact with store sales personnel comes when they call her to obtain special items not then in inventory and for information as to when such items might be delivered. On the above facts, noting that Brown's background and the great majority of her time have been in clerical and other functions. that she is separately supervised by the merchandising manager, and that, unlike the sales staff, she is paid a monthly salary and does not receive commissions, is never assigned to the sales floor, and handles only special customer transactions, it is concluded that Brown. although no longer a supervisor, does not share a community of in- terest v ith the sales employees such as to warrant her inclu- sion in the unit. Accordingly, I find that Brown should be excluded from the unit. Dale Baden Baden, once principally concerned with the commercial leasing of the Respondent's equipments by March and April was engaged in the outside sales of Advent large screen television sets and major audio equipment to com- mercial or institutional purchasers, such as hotels, theatres, restaurants, discotheques, and other businesses. In so doing, Baden operates from the Sight and Sound office at the Brown Campus, which he uses principally to make his tele- phone calls. In conducting his outside sales operation, Baden spends about 45 percent of his time away from the Respondent's premises, creating new business and dealing with prospec- tive customers, and he is the only salesperson reimbursed by the Respondent for using his own automobile on sales trips. Interested customers are usually brought by Baden to the Brown Campus where the Advent television and var- ious audio systems are displayed." In addition to time spent away from the Respondent's premises and in administering 2 Brow n began her employment with the Company in 1968 as a part-time clerical employee. In 1971. she began to work for the Respondent on a full- time basis. mostly in inventory control, also serving as secretary to Kaplan and then to Fishman, as well. Although she received the director of admin- istration title in 1972. her duties remained mostly clerical until 1974. when she became responsible for inventory control. However, as noted, in Decem- her 1975. she was relieved of her administration duties and assumed her present functions 15 After a period of initial employment as a salesman during which he rose to the position of assistant store manager, Baden left the Respondent's em- ploy, returning I year later with the title of vice president of Sight and Sound Leasing Company a wholly owned corporate subsidiary of Tipton. which serves as its leasing unit. In late 1976, it was decided to phase out the leasing end of the Respondent's business and in the next year. only one short-term lease was made. Baden's remaining responsibilities in March and April as to the 75 to 80 outstanding leases made earlier was to receive and record rental payments. a procedure which occupied a maximum of about 5 percent of his time. Most such leases had been marketed by other salesmen who received the same commissions available to Baden. As leasing commissions accrue when the lease is made, Baden's continued work with these leases did not afford him additional compensation. 5 As these items of major equipment are not generally available at all of the Respondent's stores and as most salesmen are not equipped to sell them. store salesmen who do receive inquiries in these areas generally either refer such customers directly to Baden or invite Baden to help them close the transactions. Prior to April 15 Baden and the salesman who thus assisted him would split commissions. Since then, assisting salespersons receive only fiat fees. Baden is paid the commission. 214 TIPTON ELECTRIC COMPANY the leases. Baden spends about 20 percent of his time on the telephone attempting to promote sales and in followup calls to check customer satisfaction. He allots another 10 percent to administering extensive mailing programs and promo- tions. Baden also is regulary scheduled to work as a floor salesman when the Respondent runs its 3-day long cus- tomer appreciation sales, held thrice yearly." Baden also fills in at stores where help is needed and is on the floor of the Brown Campus store for roughly an hour a day, where he picks up customers who may be unattended. The record reveals that Baden's business card designa- tion as vice president of Sight and Sound is but a strategem to increase his prestige with the commercial purchasers with whom he deals. His own paychecks are from Tipton. He has no authority to sign checks for Sight and Sound or for the Respondent, and no one works under his authority. Baden is compensated by draw against commissions, as are the other salesmen, and he receives the same benefits. From the record herein, contrary to the General Counsel, it is concluded that Baden is a sales employee who should be included in the unit found herein. While his situation is singular in that most of his work is performed away from the Respondent's premises in the sale of the Respondent's larger and more sophisticated items, it is a distinction based upon skill and experience rather than on a basic difference in the nature of the work performed. Baden's background and efforts with the Respondent relate to sales, and he is regularly scheduled to do store selling during customer ap- preciation sales. He covers for absent salesmen and daily meets with customers at the Brown Campus store. While it is not practicable for other salesmen to sell quantities of the specific merchandise principally sold by Baden. salesmen may attempt to do so and, in fact, an Advent set was sold by another salesman. Baden is compensated in the same manner as other salespersons, has identical benefits, and is without special authority. Accordingly, I find that his inter- ests are so united with those of other sales employees as to warrant his inclusion in the unit. Having found that Brown and Smith should be excluded from the unit and that Baden should be included, I deter- mine that the unit consists of 44 employees. b. The disputed authorization cards At the hearing, the signed, dated authorization cards of 17 employees were received in evidence without dispute as to their validity. The Respondent's argument that the cards of six other employees, all admittedly completed and signed by the employees in question, should not be counted as induced by misrepresentation will now be evaluated. The Union began its organizational campaign among the Respondent's employees on about September 1, 1976, when it began to mail authorization cards to employees accompa- nied by a letter of that date which, in relevant part. pro- vided as follows: 1s While working at the store during the 9 days of customer appreciation sales each year, Baden like other salesmen. takes his turn with incoming customers on a rotating basis and reports to the store manager at the as- signed location. Otherwise. he is directly responsible to Kaplan or Fishman. meeting weekly with one or the other to discuss his sales progress. Enclosed, you will find two authorization cards to be used by yourself and a co-worker who is also inter- ested. Local 655 must have at least 51% of the employ- ees employed by Tipton sign one of the cards to obtain union representation. Remember three important things when signing this card: I. You are not joining a union, by signing the card. 2. You cannot be fired by signing the card. 3. You are onl allowing Local 655 to attempt to negotiate a contract, which you will vote on! The authorization cards enclosed, used throughout the Union's campaign, were as follows: RFTAIL. STORE EMPLOYFFS UNION OCAl NUMBER 655 AFt CIO AUTHORIZATION FOR REPRESENIAtION Union's address Union's telephone number Date Name Home Ph Address (Street) (Zone) (City) (State) Employed by: Company Store No. Store Address Job title (Full-time Department Weekly' S My day off is Date of E one e-Part-time) alary .mployment I, the undersigned, of my own free will, authorize the above named union, their agents or representatives to act for me as a collective bargaining agency in all mat- ters pertaining to pay rates, hours of employment and other conditions of employment. (Signature) TillIS (ARD IS KEPI SIRI(CTIY CONFIDENTAI.-- In M & J Trucking Co., Inc.s,6 administrative Law Judge Shapiro in his Board-approved Decision restated the fol- lowing relevant principles: It is settled that, where an employee has signed an unambiguous authorization card of the type here, it counts as a designation unless the Respondent can demonstrate that the card's clear language was "delib- erately and clearly cancelled by an union adherent with words calculated to direct the signer to disregard and forget the language above his signature." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 606 (1969). In par- ticular, "there is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will be used first to get an election." Gissel, supra, at 607-608. Accord: Texaco v. N.L.R.B., 436 F.2d 520, 523 524 (C.A. 7, 1971). Indeed, the Supreme Court in Gissel expressly validated the authorization cards where each of the employees "were told one or more of the following: (1) that the card would be used to get an election; (2) that he had the right to vote either way, '6214 NLRB 592. 607 (1974). 215 DECISIONS OF: NATIONAL LABOR RELATIONS BOARD even though he signed the card .... " Supra. at 584. fn. 5. In evaluating the validity of the Union's card: The Board looks to substance rather than to form. It is not the use or nonuse of certain key or "magic" words that is controlling, but whether or not the to- tality of circumstances surrounding the card solicita- tion is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election. Levi Strauss] 172 NLRB 732, 733 (1968), fn. 7 [cited with approval in Gissel, supra, 608, fn. 27.] The authorization cards depicted above are worded un- ambiguously and on their face clearly set forth a purpose to designate the Union as the signatory's collective-bargaining agent. Such purpose is furthered by the representation in the Union's accompanying September I letter. As was noted in Levi Strauss Inc., Co., supra, with reference to the type of authorization cards herein involved: An employee who signs such a card may perhaps not understand all the legal ramifications that may fol- low his signing, but if he can read he is at least aware by his act of signing he is effectuating the authorization the card declares. The disputed cards will be considered in consonance with the above principles. Janice Harris Harris, employed by Tipton at its Store No. 10, Crest- wood Plaza, St. Louis, testified that she had received her authorization card by mail in early September, but did not recall receiving the Union's September I letter enclosed therewith. Harris admits completing, dating, signing, and mailing her card to the Union on September 16, but denies having read the body of the card although proximate to the filled-in blanks. Harris related that she had submitted her signed card to the Union solely to obtain information about that organiza- tion, at the urging of three fellow employees-Jack Zeber. Erwin Welling, and Mike Oldani.57 Zeber, after asking if she had mailed in her card, had told Harris that in that way she could find out about the Union. Although Harris replied that she already knew how she felt about the Union, Zeber had insisted that she learn more. Harris testified that she had been reluctant to discuss with Welling, during a telephone conversation, whether she had sent in her card. Welling then told her that the card did not commit her to anything. Harris replied that she was not interested. In September, before signing her card, Harris also was approached by Oldani who asked if she had signed and sent in the card. She told him that she had not. Oldani expressed his wish that she would send in the card, that she thereby would receive information, that it did not commit her one way or the other but would bring a vote to the Company. Oldani stated that the purpose of the card was to enable employees to obtain information about the Union. Harris, 5" Harris was the only witness to testify as to the circumstances under which her card was signed. as noted, then completed, signed, and mailed the card, by her account, solely to obtain information. Harris' testimony that she had never read the card and did not know its intent is incredible as she had retained the card for approximately 2 weeks, had had at least three ear- nest discussions with fellow employees concerning the card's significance, and its purpose was spelled out in close proximity to the blanks she completed. It further is noted that Zeber, Welling, and Oldani were fellow employees and not agents for the Union. It now is fund that Harris' card was a valid designation for the Union." Sharon Stern Summers Summers" testified that she had completed and signed her union authorization card on November 8.9' Stern re- lated that she read the card before signing it. She further said that in the first week of November she had a conversa- tion with two other employees of her store, Mike Louis and Eric Caldwell. On that occasion, Louis told her that if there was a union, there would be a more equitable commission system which would enhance her earning power and that if she signed the card she would simply be opting for an elec- tion and to have both sides present their cases. After this conversation, she signed her card and gave it to Louis who, in turn, handed it to Caldwell. As the record shows that Summers had read the single purpose card before signing and as there is no evidence that she was told anything inconsistent with the express lan- guage of the card, it is concluded that Summers' card was a valid designation. Katie Snyder Snyder, an employee of Professional Furniture, testified that on October 12, while she was at her desk in the sleep department of the Respondent's Crestwood store, she was approached by Robert J. Litteken. the Union's director of organizing. who told her that the Union did not know that she was employed as she had not been at any of the stores. Snyder explained that this was because she alternated be- tween certain stores. Litteken observed that as Snyder had not sent in her card, the Union did not know where she was working and could not communicate with her. Snyder, stat- ing that she had not realized that this was the card's pur- pose, agreed to mail in the card from her home.6 Litteken offered to save her the trouble of finding the card by hand- ing her one which she could sign immediately. Snyder testi- " Cumberland Shoe Corporation, 144 NLRB 1268 69, enfd. 351 F.2d 917 (6th Cir. 1965); Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489, 493-494 (1972). 9 Summers, who no longer was with the Respondent at the time of the hearing, was employed by Professional Furniture from July 1976 to the fol- lowing May, in the sale of beds and bedding, at the Respondent's Store No. 20, Fairview Heights, Illinois. 6 Summers, who was then married, signed the card under her maiden name, Sharon Lee Stem. 61 Snyder's reference was to the letter and authorization cards she had received in the mail on about September I. Between then and the time she signed the card, October 12, Snyder had received additional correspondence from the Union, all of which, she related, she had stored unread in a drawer at her home, after first opening the envelopes. Snyder testified that she had never read the union card. 216 TIPTON ELECTRIC COMPANY fled that Litteken then told her that the card was just for an election. It did not mean that she was for or against any- thing. hut was just so that the Union would know where she was employed. Snyder then filled out the card, signed it. and gave it to Litteken. Litteken testified that when he solicited Snyder's signa- ture at her desk, he discussed with her the reasons why she should have the Union represent her and told her that the card could be used by the Union to gain recognition from the Respondent. Nothing was said about the card being used for an election. Litteken also testified that he had made no reference as to other employees who had signed cards other than to tell Snyder that it was necessary to obtain cards from the majority of employees in order to obtain recognition. Snyder then signed and gave him the authorization card. Noting that Snyder had long retained possession of var- ious union materials, including the card and September 1 letter, had completed the card herself at Litteken's request, as but three short lines appear on the card authorizing the Union to represent and negotiate for the signatory, and as Snyder. herself, testified that it was not her practice to sign unread documents. I do not credit her statement that she had never read the brief paragraph on the card's face ex- plaining its purpose. I credit Litteken's testimony that he had told Snyder be- fore she signed that the card was to be used to gain recogni- tion and that nothing was then said about its use for an election, as he appeared to be a forthright credible witness whose testimony was substantively more logical. For the foregoing reasons, it is concluded that Snyder knew the purpose of her card before filling out and signing it, that she was not induced to sign through misrepresenta- tion, and that her authorization constituted a valid designa- tion of the Union.62 Darrell Revely The parties briefly litigated the authorization card of Darrell Revely. employed by the Respondent as a salesman at Store No. 2. on Chambers, St. Louis. Revely testified that he received the card and letter from the Union dated Sep- tember I, sent to his home at the start of the Union's cam- paign. He mailed his signed authorization card, dated Sep- tember 10, back to the Union after filling in all the blanks and signing it. Subsequently. in November. Revely attended a union meeting with other employees during which Shai Farber, a salesman, asked the presiding union representatives. Robert Litteken and Tom Willey, what sending in the card would mean. One of these officials replied that it simply' meant that the Union was trying to get 51 percent of the distrib- uted cards signed and returned to let it know that the em- ployees were interested and to allow an election. The card, it was iterated, did not mean that the signatory employees had joined the Union. As there is no evidence to indicate that Revely's card. which he had read before signing. was in any way tainted by misrepresentation, it is deemed a valid designation for the Union. e2 Jas. H. Matohews & Co. v. N.LRB., 354 F.2d 432. 437 438 (8th Cir. 1965), cert. denied 384 U.S. 1002 (1966). Shai Farher and Paul Devino Farber and Desinot ' testified that on Sundab. November 7. they and about 20 other employees attended a meeting at the union hall conducted by Director of Organizing Litte- ken and Union Representatives Tom Willey and Terry Bowman. Willy opened the meeting, stating that after 51 percent of the employees in the unit had signed cards. the Union could go for an election. If the Union won the election. it would become the bargaining representative for the employees and would bargain with management about benefits. An explanation as made as to how the Union could improve the employees' situation by helping to achieve greater bene- fits. Both Farber and Devino testified that later in the meet- ing. while questions were being received. Farber asked whether signing an ;authorization card meant that he was committed to the Union and would give the Union the power to bargain. Willey replied that the card was merely for the purpose of securing an election at Tipton.? Both men testified that based on the foregoing explana- tion, they each signed a card and returned it to the union officials. Although Farber and Devino claimed not to have re- ceived authorization cards in the mail in September. Farber acknowledged that he did receive cards and correspondence by mail from the Union during October. This included the Union's above-described letter, dated September . and Farber admits that prior to the time he signed the card at the meeting. he had read the union card from one to four times. Devino. too. read the card before signing and, contrary to his testimony at the hearing. averred in his pretrial affidavit that he did not recall that there had been any mention at the meeting that the cards' sole purpose was to enable an election.b Union Representative Willey testified that during the November 7 meeting. Farber asked but one question. "If the Union got in and the contract was negotiated would everyone have tojoin the Union?" Willey had replied that if the negotiated contract contained a union-securitN clause. everyone in the unit would have to join. Farber had pro- tested. Willey testified that he had explained to those at the meeting that the Union was attempting to organize the Tip- ton sales people. If 51 percent of the employees signed the distributed cards, the Union would demand recognition of the Employer. who, at that point, would either grant the Union a card check and recognition and begin negotiations. or tell the Union to petition the National Labor Relations Board for an election. Willey related that he told the group that if the second alternative happened and the Employer '3 Both Farber and Devino are salesmen employed a the Respondent's Store No. 6, St. Charles Rock Road, St. Ann. Missouri. "4 As Dcvino similarly recalled, Willey answered Farher's question by stat- ing that the card did not represent a vote for the Union nor did it commit the signer to anything. but was only for the purpose o obtaining an election. 65 The parties stipulated at the hearing that were employee James Dorris present, he would testify as had Farber and Devino concerning the events of the November 7 meeting. Dorris' signed authorization card. dated Septem- ber 16. was received by stipulation. 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to grant a card check and recognition, the Union definitely would petition the Board for an election. He out- lined the Boaid's representation case procedures in arrang- ing and conducting elections. Willey related that at the conclusion of the meeting, Far- ber and Devino approached him at the front of the room. Farber asked if signing the card meant that he would be obligated to join the Union. Willey, in turn, asked whether he meant by joining the Union, that he would have to pay union dues and initiation fees or be required to attend meetings. Farber replied affirmatively: if he signed the card, would he be obligated to the Union in any fashion as far as that goes? Willey said that he would not be. On the record herein, I credit Willey's testimony as to the November 7 meeting.w6 Both Farber and Devino had read their cards before signing them, in Farber's case, perhaps several times. Farber also had previously received and read the Union's September I letter to employees and other union correspondence, and Devino's testimony was contra- dicted by his own earlier affidavit wherein he could not recall that it had been stated on November 7 that the sole purpose of the cards were to secure an election. Noting from the credited testimony that no statement was made at the meeting as to the purpose of the cards that was inconsis- tent with that described on their face, it is concluded that the cards signed by Farber and Devino are valid designa- tions.67 Conclusions as to the Union's majority status Having found no merit to the Respondent's challenges to the validity of authorization cards signed by Janice Harris, Sharon Stern Summers, Katie Snyder, Darrell Revely, Shai Farber, and Paul Devino, it is concluded that these cards are valid and should be counted in establishing the Union's majority status. In addition to the foregoing, the parties have introduced into the record the signed and dated au- thorization cards of 17 other employees, the validity of which was not contested. Accordingly, I find that by the time the Respondent be- gan its pattern of unlawful conduct in the first week of March 1977, there were 44 employees in the bargaining unit, 23 of whom freely had authorized the Union to repre- sent them by signing unequivocal authorization cards. as their exclusive bargaining representative in what has been determined as the appropriate unit. It is not significant that the Union thereafter may have lost its majority status for it must be presumed that, but fbr the Respondent's un- fair labor practices, that majority would have been re- tained."6 I am in agreement with the General Counsel's claim that the Respondent's unfair labor practices were sufficiently fla- grant to warrant entry of a remedial bargaining order, al- though no request for recognition was made to the Respon- dent by the Union.6 In the context of the pending election," the Respondent embarked on a course of unlawful conduct to undermine the Union's majority status. The Respondent coercively created the impression of and engaged in surveillance of its employee's union activities; on several occasions it threat- ened employees that if they selected the Union, they would lose their right to talk directly with management concerning grievances and, also, they would lose harmonious working conditions and relationships with management. Employees were informed by the Respondent that if they chose the Union, bargaining would be futile, a strike would be inevi- table, and, in an event of a strike, employees who did not support the Union would remain employed. The Respon- dent promised and granted employees an improved pay policy to become effective after the election, and denied an employee a requested transfer, in part because of his union activities. All the above conduct, except for the actual granting of the improved compensation program, took place between the date of the filing of the petition and the date of the election. Under these circumstances, the likelihood that a fair elec- tion could be insured by the use of traditional Board rem- edies is sufficiently remote to warrant a finding that the desires of the employees, once expressed through authoriza- tion cards, would be better protected through issuance of a bargaining order. Accordingly, I shall require the Respon- dent to recognize and, upon request, bargain with the Union as bargaining agent for the employees in the unit found appropriate herein.' In these circumstances, I find that the duty to bargain commenced on March 10, 1977, the date the Respondent began its pattern of unlawful conduct to undermine the Union's majority status. 2 c. The refusal to bargain It has been found that on March 3, the Union represent- ed at least 23 of the Respondent's 44 employees-hence a majority-by virtue of the employees' execution of authori- zation cards which on their face duly designated the Union as their exclusive representative for purposes of collective bargaining with the Respondent. It is, therefore, concluded that the Union had been val- idly selected by a majority of the Respondent's employees 6 Willey's account generally was corroborated by the testimony of em- ployee Gary Meier, also present at the November 7 meeting. Meier related that he had received the same message at the meeting as from the Union's above September I letter to employees. 67 As there is no evidence that James Dorris' card, signed in September well before the time of the above meeting, was procured by misrepresenta- tion, it, too, is deemed a valid designation. "American Map Company, Inc., 219 NLRB 1174 (1975); J. C Penny (o., Inc., 160 NLRB 279, 287 (1966), enfd. 384 F.2d 479 (10th Cir. 1967). 6N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575; Trading Port, Inc., 219 NLRB 298 (1975); American Map Company, Inc., supra. See also Ludwig Fish & Produce, Inc., 220 NLRB 1086 (1975), where the Board, in issuing a bargaining order, noted that there was nothing in Gissel which conditioned the bargaining order remedy upon a demand for bargaining, and reiterated that the test in Gissel was whether it reasonably may be concluded that the Respondent's unfair labor practices may have rendered "a fair and reliable election" impossible. 70 The election petition, as noted, was filed on January 24 and the Stipula- tion for Certification Upon Consent Election was approved on February 16. 71 Trading Port, Inc., supra; Ludwig Fish & Produce, Inc., supra. In Felsen- thal Plastics, Inc., et al, 224 NLRB, supra at 1319, it was found that the grant of promised benefits following an election made impossible the con- duct of a fair second election. 71 Although the complaint alleges that the Respondent's pattern of unlaw- ful conduct began on March 3, the evidence indicates the date found herein. 218 TIPTON ELECTRIC COMPANY D. The Ohieclions to the Eletion in ('asI 14 R(' 8353 The Union's objections to the election closely parallel certain of the unfair labor practices allegations set forth in the complaint and found violative herein. including the Re- spondent's promises to employees of an improved pas pol- icy effective after the election and the Respondent's con- duct in creating the impression of and engaging in surveillance of its employees' union activities. These unfair labor practices precluded the exercise of a free and unco- erced choice in the election. The Regional Director, as noted, was affirmed bh the Board in his recommendation that Objections Nos. 1. 2. 3 as to part D, and 4 as to parts B, C. D, and E, he overruled. In view of the bargaining order found applicable herein. it is recommended that the election in Case 14- RC 8353 he set aside and that the said representation proceeding he dismissed. IV. THE EFFECT OF TE UNFAIR ABOR PRAC('IICES LUP()N ('OMMER('E The activities of the Respondent set forth in Section III. above, occurring in connection with the Respondent's op- erations described in Section 1, above, have a close. Inti- mate, and substantial relationship to trade, traffic and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THIE REMEII)Y Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act.73 For the reasons set forth above, I shall recommend that the Respondent be ordered, upon request. to bargain collectively with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit. As a bargaining order has been found appropriate, it is recommended that the election held in Case 14 RC 8353 be set aside and that the petition in that matter be dis- missed. CON(CI.USIONS o)F LAW 1. The Respondent is an employer 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. The Respondent violated Section 8(a)(1) of the Act by: (a) Creating the impression that it was engaged in sur- veillance of the union activities and sympathies of its em- ployees. ?3 As the unfair labor practices committed by the Respondent are serious and go to the very heart of the Act I shall recommend that it cease and desist therefrom and in any other manner from interfering , ith the rights of employees guaranteed under Sec. 7 of the Act N I. RB s Enlwtlkrl ffR Co.. 120 F.2d 532 14th Cir 1941 ). (h) Engaging in surveillance of the union activities and sympathies of its employees. (c) Threatening employees with loss of their right to speak direct with management concerning their gries- ances and other work-relalted problems if they should select a union. (d) Promising new pay benefits to its employees during the critical period before the election. (e) Granting new pay benefits to its employees immedi- ately after the election in reward for their antiunion ote. (f) Informing employees that ift' they supported the Union a strike would be inevitable and bargaining futile. (g) Telling employees that in the event of a strike. em- plovees who did not support the Union would remain em- ploy ed. (h) D[ensing an employee a requested job transfer be- cause ot his union activities. (i) Threatening emplo)ees with loss of harmonious work- ing conditions and relationships with management if the, designated the Union as their bargaining representative. 4. The following unit is appropriate for purpose of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time retail selling per- sonnel employed by Tipton Electric Company and Professional Furniture Company at their facilities lo- cated in the metropolitan St. Louis area, including Missouri and Illinois, excluding managers. assistant managers, office clerical and professional employees. guards and supervisors, as defined in the Act, and all other employees. 5. On or about March 10, 1977, and at all times material thereafter, the Union herein represented a majority of the employees in the above-described appropriate unit, and it has been the exclusive representative of all said employees for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. B refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the above-described unit since on or about March 10, 1977. the Respondent has engaged in. and is engaging in, further unfair labor practices within the mean- ing of Section 8(a)( I ) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent's unlawful conduct interfered with the representation election held on April 15. 1977. ORDER" The Respondent. Tipton Electric Compan, and Profes- sional Furniture Compan. St. Louis. Missouri, their offi- cers, agents. successors. and assigns, shall: 7 In the event no exceptions are filed as provided b Sec 102 4 of the Rules and Regulations of the Natonal Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. he adopted b the Board and become its findings. conclusions and Order. and al! ohections thereto shall he deemed waised for all purposes 219 Dl( CISIONS OF NATIONAL LABOR RELATIONS BOARD I. Cease and desist from: (a) Engaging. or giving employees the impression that it is engaging. in surveillance of their activities or sympathies in support of Retail Store Employees Union Local 655. af filiated with Retail Clerks International Association. AFL CIO. (b) Promising and/or granting benefits to employees to dissuade employees from joining. assisting. voting t)r, or in any other manner supporting the above-named Union, or any other labor organization. (c) Threatening employees that if they support the Union, they will lose their right to directly approach man- agement concerning their grievances and job-related prob- lems and that they will otherwise lose their harmonious working conditions and relationship with management. (d) Informing employees that it is futile to support a union. (e) Threatening employees that if they designate the Union as bargaining representative, a strike would be inevi- table. (f) Threatening employees that in the event of a strike, those employees who do not support the Union will remain employed. (g) Denying employees requested job transfers because of their union activities. (h) Refusing to recognize and, upon request, bargain with the above-named Union as the exclusive collective- bargaining representative of its employees in the following unit: All full-time and regular part-time retail selling per- sonnel employed by Tipton Electric Company and Professional Furniture Company at their facilities lo- cated in the metropolitan St. Louis area, including Missouri and Illinois, excluding managers, assistant managers, guards and supervisors, as defined in the Act, and all other employees. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act. (a) Upon request, recognize and bargain with Retail Store Employees Union, Local 655. affiliated with Retail Clerks International Association, AFL-CIO. as the exclu- sive collective-bargaining representative of its employees in the bargaining unit set forth above, with respect to wages, hours, and other terms and conditions of employment and. if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its various metropolitan St. Louis area facili- ties, including those in Missouri and Illinois, copies of the attached notice marked "Appendix."" Copies of the notice on forms provided by the Regional Director of Region 14. after being duly signed by the Respondent's authorized rep- resentatives. shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director of Region 14, in writ- ing, within 20 days from the date of this Order. what steps the Respondent has taken to comply herewith. IT IS ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 11 Is FURTHEIR O)RDIRE ) that the election held on April 15. 1977, in Case 14 RC-8353 hereby is set aside and that the petition in that matter is dismissed. '5 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- iona! Labor Relations Board," 220