Altman Camera Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1973

207 N.L.R.B. 940 (N.L.R.B. 1973)

940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Altman Camera Co., Inc. and Warehouse and Mail
Order Employees Union Local 743, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Cases
13-CA-10869, 13-CA-10970, and 13-CA-10970
(1 & 2)
December 14, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 8, 1973, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs; Respondent filed cross-exceptions, a support-
ing brief, and answering brief; and the Charging
Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order except as
modified below.
The Administrative Law Judge found, and we
agree , that Respondent violated Section 8(a)(1) of the
Act by interrogating its employees concerning their
union sympathies or activities; by promising them
benefits or improved conditions if they refrained
from union activities; and by threatening employees
with loss of benefits, and possible loss of jobs, if the
Union became their collective-bargaining representa-
tive. The Administrative Law Judge also correctly
found that when the Union made its demand for
recognition in the appropriate unit on September 10,
1971,1 it had 37 valid authorization cards2 designat-
ing it as the collective-bargaining representative of a
majority of the 67 unit employees.
The General Counsel excepts, inter alia, (1) to the
Administrative Law Judge's failure to find that
Respondent's refusal to recognize and bargain with
the Union violated Section 8(a)(5) of the Act; (2) to
his finding that a Gissel bargaining order3 is
I Unless otherwise specified, all dates below refer to 1971.
2 The General Counsel contends, contrary to the Administrative Law
Judge, that the cards of three other employees , namely, Raymond Kudlick,
Janet Hilliard, and Robert Moy, should have been found valid. As we agree
with the Administrative Law Judge that the Union achieved a majority by
virtue of the 37 cards, we do not deem it necessary to pass on the validity of
the 3 cards in question.
3 N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
unwarranted because "the loss of union support [in
late October and early November] was due to the
organizing tactics of the union representatives"
rather than the unfair labor practices of Respondent;
and (3) to his finding that the unfair labor practices
are not likely to occur again and will not prevent the
holding of a fair election. We find merit in these
exceptions.
As noted above, Respondent engaged in the
following unlawful conduct which took place soon
after the employees led by Delmar Behr, Danny
Frazier, Jack Fentiman, Saul Meyer, and Willis
Searles commenced their organizational activities on
August 26:
On September 7, Dan Winkler, the manager of the
second floor of Respondent's four-floor store, at-
tempted to ascertain from Meyer the identity of the
union adherents: 4 On other occasions in September,5
Winkler engaged in conversations with employees
Richard Garrison and Michael Abrams wherein he
attempted to find out which employees were support-
ers of the Union. Winkler also sought to discourage
this support by informing them that employees
would not receive any more money by being
represented by the Union and that Respondent
would apply its work rules more strictly if the Union
represented them.
On a number of different occasions in September,
William Emas, a first-floor manager, discussed the
Union with several employees. Emas told Frazier
that the employees were stupid for wanting a union
and would have no effective voice in their affairs if
the Union represented them. In addition, Emas
warned Frazier that the Respondent could close the
store and engage exclusively in the mail order
business with only 10 employees. Emas repeated the
latter statement to Behr, Searles, and employee
Leonard Olson, and expressed his desire that
employees should bring their problems and com-
plaints to the managers . Emas also warned employee
Robert Erlien that the employees could lose their
present level of benefits if the Union negotiated on
their behalf. Finally, Emas suggested to Erlien that
conditions would improve in the future.
During September, Melvin Ross, another first-floor
manager, reiterated to such employees as Searles and
Erlien the threat that they stood a chance of losing
existing benefits if the Union became their represent-
4 According to Meyer's uncontradicted testimony, Winkler also asserted
that there was a "chance" that Respondent might close the store "if the
union did come in."
S Pursuant to a representation petition filed on September 10, the parties
agreed to hold an election on November 4. However , on November 2, the
Regional Director canceled the election pending investigation of the charges
filed by the Union in Case 13-CA-10970-2.
207 NLRB No. 143
ALTMAN CAMERA CO.
ative. Ross also impliedly promised that benefits
would be given employees if they rejected the Union.
Although, as noted above, the Administrative Law
Judge properly held that the Union acquired a
majority on September 10 and Respondent thereafter
engaged in serious unfair labor practices, we are of
the opinion that he erred in not finding that
Respondent refused to bargain in violation of
Section 8(a)(5) of the Act, and in concluding that a
Gissel bargaining order was ; not justified on the
ground that the subsequent loss of employee support
for the Union was directly attributable to their
disenchantment with its tactics.
In its Gissel decision, the Supreme Court relied on
objective considerations in holding that a bargaining
order is an appropriate remedy when an employer
rejects a card majority while at the same time
committing unfair labor practices "that tend to
undermine the union's majority and make a fair
election an unlikely possibility." 6 However, the
Administrative Law Judge improperly turned to
subjective considerations in giving weight to the
following tenuous evidence concerning the repudia-
tion of the Union:
At a union meeting on October 27, both employee
Louis Keister and a union official appealed to the
employees not to "cop out on the union" and to give
it a chance to get in and see what it could do for the
employees. Keister nevertheless regarded the union
official's plea as offensive because he spoke in a
"very gruff, very rough" manner.
Although Keister did not recall that the union
official threatened anyone with bodily harm, Olson,7
who apparently was not present at the union meeting
of October 27, testified that he was informed by
Frazier the latter "felt threatened" by the union
official.
Shortly thereafter, Olson asked to see Respondent's
president, Ralph Altman, to whom he stated that the
union literature was "insulting" and that he was
therefore not going to vote for the Union. Olson also
informed Altman that several of the "key starters" of
the Union, who quit Respondent's employ, had
sponsored the Union as a "personal insult or affront"
to Altman.
Moy8 testified that early in November he discussed
with fellow employees Olson, Fentiman, and Frazier
their dissatisfaction with the postponement of the
election by the Regional Director. According to
Moy, Fentiman and Frazier also declared that they
would like to give Altman "another chance" because
he was being "squeezed" by the Union. Following
these discussions, Moy, assisted by Fentiman and
6 N.LR.B. v. Gissel Packing Co., Inc., supra at 579
7 About a month before the heanng, Olson received a weekly wage
increase of $20_
941
Olson, prepared a petition, dated November 6,
disavowing the Union. The petition was signed by 48
employees, most of whom did not testify as to their
reasons for doing so.
As found above, Respondent on September 10
wrongfully refused to recognize and bargain with the
Union and thereupon embarked upon a course of
flagrantly coercive conduct designed to dissipate and
undermine the Union's majority. In view of this
finding, which is based on the objective test set forth
in Gissel Packing, we disavow the Administrative
Law Judge's reliance on subjective considerations to
determine why many employees repudiated the
Union. It is not our intention to read the minds of
the employees in an effort to ascertain whether, as
found by the Administrative Law Judge, any loss of
their support for the Union was attributable to the
"organizing tactics of the union representatives."
However, even assuming the propriety of that
approach, the record contains strong evidence that
the loss of support was indeed to a considerable
extent the result of Respondent's unlawful conduct.
Thus, as noted above, there was testimony that some
employees felt that Respondent was being
"squeezed" by the Union and should be given
another chance and that the petition disavowing the
Union stemmed from the employees' dissatisfaction
with the postponement of the election by the
Regional Director because of Respondent's unfair
labor practices.
In view of the foregoing, we conclude that the
employees' majority designation of the Union as
expressed in their authorization cards provides a
more reliable measure of the employees' true desires
than would be provided by an election. Accordingly,
in order to protect the employees' statutory rights
and interests, we find that Respondent's refusal to
bargain violated Section 8(a)(5) and (1) of the Act
and we shall issue a bargaining order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Altman Camera Co., Inc., its officers, agents,
successors, and assigns, shall take the action set forth
in the Administrative Law Judge's recommended
Order as herein modified:
1. Add the following as paragraph 1(e) and
renumber the present paragraph 1(e) accordingly:
8 Three weeks prior to the hearing, Moy was promoted from salesman to
acting floor manager.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(e) Refusing to bargain collectively with the
above-named Union as the exclusive bargaining
representative of the employees in the following unit:
All full-time and regular part-time selling and
non-selling employees excluding office clerical
employees, casual employees, confidential em-
ployees, and all guards and supervisors as defined
in the Act."
2. Add the following as paragraph 2(a) and
renumber the subsequent paragraphs accordingly:
"(a) Upon request, bargain collectively with Ware-
house and Mail Order Employees Local Union 743,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in the
appropriate unit described above with respect to
rates of pay, wages, hours of employment and, if an
understanding is reached, embody such understand-
ing in a signed agreement."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
below with respect to wages, hours of employ-
ment, and other conditions of employment and, if
an agreement is reached, we will sign it. The
appropriate unit is:
All full-time and regular part-time selling
and non-selling employees, excluding office
clerical employees, casual employees, confi-
dential employees, and all guards and
supervisors as defined in the Act.
All our employees are free to become, remain, or
refrain from becoming or remaining members of any
labor organization, except to the extent that this right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the
National Labor Relations Act, as amended.
ALTMAN CAMERA CO.,
INC.
(Employer)
Dated By
(Representative ) (Title)
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a duly held trial, that we violated Federal law,
we hereby notify our employees that:
WE WILL NOT question our employees regard-
ing their union sympathies or desires regarding
Warehousemen and Mail Order Employees Un-
ion Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization.
WE WILL NOT tell our employees that they will
lose their existing benefits if the Union becomes
their collective-bargaining representative.
WE WILL NOT promise our employees improve-
ments in their terms or conditions of employment
if they refrain from supporting the Union.
WE WILL NOT tell our employees that if the
Union becomes their collective-bargaining repre-
sentative they will lose their jobs.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE WILL bargain collectively on request with
the Union as the exclusive representative of the
employees in the appropriate unit described
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Room 881, Everett McKinley Dirk-
sen Senate Building , 219 South Dearborn Street,
Chicago , Illinois 60604 , Telephone 312-353-7572.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge: Upon a
charge filed in Case 13-CA-10869 on September 9, 1971,'
by Warehouse and Mail Order Employees Union Local
743, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereinafter called
the Union), and upon subsequent charges filed in Cases
13-CA-10970(1 & 2) on October 26 and November 1,
respectively, against Altman Camera Co., Inc. (hereinafter
called the Respondent), a consolidated complaint and
notice of hearing was issued by the Regional Director for
Region 13 on March 1, 1972. The consolidated complaint
alleged, inter alia, that the Respondent committed numer-
ous violations of Section 8(a)(1) of the Act by: (1)
promising employees benefits to dissuade them against
union representation; (2) threatening employees with loss
of existing benefits if the Union became their bargaining
representative; (3) threatening to close down or change its
t Unless otherwise indicated, all dates herein refer to the year 1971.
ALTMAN CAMERA CO.
manner of operations if the Union came in; (4) unlawfully
interrogating employees about their union sympathies and
desires; (5) and instigating an employee petition against
the Union. The complaint further alleged that the
Respondent violated Section 8(a)(3) of the Act by
discharging employee Walter Mueller for the reason that
he joined or assisted the Union or engaged in other
protected concerted activity. Finally, the complaint alleged
that the Respondent violated Section 8(a)(5) of the Act by
refusing to recognize and bargain collectively with the
Union as the exclusive bargaining representative designat-
ed by a majority of its employees in an appropriate
bargaining unit .2
This case was tried before me in Chicago, Illinois, on
April 24, 25, 26, 27, and 28 and June 5, 6, and 7, 1972. All
parties were represented by counsel and afforded an
opportunity to be heard and to introduce relevant evidence
bearing on the issues. Briefs were submitted by all counsel
and were fully considered by me in arriving at my decision
in this matter.
Upon the entire record herein, including my evaluation
of the testimony of the witnesses based upon my
observation of their demeanor, and upon consideration of
the relevant evidence I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent, is, and has been at all material times
herein, an Illinois corporation engaged in the retail sale of
still and motion picture cameras, photography equipment,
and related products. The Respondent maintains its office
and principal place of business in Chicago, Illinois. During
the past calendar year, the Respondent in the course and
conduct of its business operations sold and distributed
goods and products having a gross value in excess of
$500,000 dollars. During a similar period the Respondent
received goods and products valued in excess of $50,000
directly from points located in states other than the State
of Illinois.
From the basis of the foregoing, I find that the
Respondent is, and has been at all times material herein,
an employer as defined in Section 2(2) of the Act engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
Warehouse and Mail Order Employees Union Local 743,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, is a labor
organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent's store and office facilities are housed in
a multistory building in downtown Chicago. The first or
street floor contains the still camera department where
2 The General Counsel also contended that a bargaining order should
issue because the Respondent's unfair labor practices prevented the holding
943
films and camera accessories are sold as well. The photo
processing department is also located on this floor. Motion
picture cameras and equipment are sold on the second
floor, and darkroom equipment is sold on the third floor.
The fourth floor of the building contains the shipping
department and a separate section for the receiving
department and storage facilities. Ralph Altman, president
of Respondent, maintains his office on the second floor
and the bookkeeping and billing office, managed by Mrs.
Altman, is located on the fourth floor.
Each department is supervised by a manager, and in
some instances there are several assistant managers. In
addition to the department managers, the Respondent has
a general store manager whose desk was located on the
first floor.
Although a substantial part of the sales are made to
customers who come directly to the store, the Respondent
also handles a large volume of mail order business. When a
mail order is received, it is passed along to a salesperson in
the appropriate department for handling. It is the custom-
ary practice for the assigned salesperson to gather the
merchandise and write up an invoice showing the cost and
the amount of insurance coverage, based on the value of
the items. A packing list is also filled out and contains
essentially the same information contained on the invoice.
This is primarily for the use of the checker and the
shipping clerk. Once an order is filled, it is then checked by
another employee to see that all of the merchandise
requested is properly included. The order is then sent to the
shipping department for packaging and shipment by the
carrier specified.
B. The Efforts To'Organize the Respondent's
Employees
During the latter part of August several of the Respon-
dent's employees began discussing the possibility of having
a union to represent them. These employees (Behr, Frazier,
Fentiman, Meyers, and Searles) decided to go to the
Union's headquarters to get information on organizing the
store. On August 26, they went to the union headquarters
and spoke to Bonnie Cummings, a union representative.
Cummings informed them it was necessary to get the
employees to sign authorization cards requesting that the
Union be their bargaining representative. Cummings
explained that there were several methods available to
achieve recognition. He stated that if 51 percent of the
employees signed authorization cards, the Union` could
request recognition from the Respondent based on a card
check, or they could have an election conducted by the
National Labor Relations Board or a state agency.
Cummings also told the employees the Union would not
seek an election until they had at leasf 51 percent of the
employees signed up. He gave the employees authorization
cards to solicit signatures from their coworkers. Arrange-
ments were also made to conduct meetings between the
union representatives and the rest of the employees.
After meeting with the union representatives, the five
employees decided to begin meeting with their coworkers
of a fair election. N.LR B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575
(1969).
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discuss organizing the store. On August 31, they met
with a group of employees at a nearby restaurant called the
Jolly Chef. There were no union officials present at this
meeting. The organizing group told the employees they
were seeking to get union representation. Authorization
cards were passed out and the employees were urged to
sign in order to show they were interested in organizing a
union. It was agreed that Walter Mueller would attempt to
solicit signatures from the older employees in the store and
the other members of the organizing group would
concentrate on the other employees.3
On September 2, a meeting between the union officials
and approximately 25 of the Respondent's employees was
held at the Jolly Chef restaurant. This meeting was held
after store hours. Cummings testified that he again
informed the employees that the Union could seek
recognition based on a card check if 51 percent of the
employees in the unit were signed up. If the Employer did
not agree to a card check, the Union would then use the
cards to secure an election conducted either by the Board
or by a state agency. Blake, another union representative
present at the meeting, told the employees that the cards
would not bind them to membership obligations and they
would not have to pay dues or initiation fees until the
Union and the Respondent entered into a contract.
On September 7, Altman returned to the store from a
Labor Day weekend vacation in Miami and was informed
of the Union's efforts to organize his employees. Altman
testified that Arnold Bernstein, the general manager,
placed a blank union authorization card in an envelope
addressed to him. As he picked up the mail from
Bernstein's desk on the way to his office, he saw the
envelope. Several of the floor managers also told Altman
the employees had been attending a union meeting and
there was an organizing campaign going on in the store.
Altman testified that he left the store later on during the
day and when he returned he contacted his attorney to ask
for advice. It was then decided there should be a meeting
of the store managers with the attorney and Altman that
evening so that they could be apprised of what they could
lawfully do and say during the union campaign.
On the day that Altman became aware of the organiza-
tional effort, there were several conversations in the store
between groups of employees and floor managers.
Winkler, manager of the second floor, approached
employee Meyers and asked if he could talk with him while
he was eating lunch in the store. Meyers testified that
Winkler discussed the organizing campaign among the
employees. According to Meyers, Winkler wanted to know
which employees were behind the effort. Meyers stated
that he identified himself as one of the employees but
refused to name others. Meyers stated that Winkler wanted
to know if Mueller, Abrams, or Gulati were in on the
campaign? Meyers refused to identify any specific employ-
ee, but merely said there was support among the employees
working on the second floor. Meyers further testified that
during the course of the conversation Winkler stated that if
a union became the representative of the employees,
Altman might close the store and go to Miami. According
to Meyers, Winkler also asked why the employees sought
to be represented by the Teamsters Union. Meyers replied
that the employees decided to go with a strong union that
would back them up.
Winkler confirmed that he had a conversation with
Meyers on September 7, but stated that the employee
asked to talk to him. He testified that Meyers wanted to
discuss the discharge of Mueller (treated elsewhere in this
decision) because the employees felt that Mueller had been
fired as a result of the organizing activity in the store.
Winkler stated that he had only learned about the Union
the preceding Saturday. He acknowledged that Meyers
admitted being one of the employees seeking to get union
representation and that Meyers identified Mueller as a
strong union adherent. Winkler also admitted that he
asked Meyers what he hoped to gain by having a union,
and that he suggested that the employees should have gone
directly to Altman with any complaints they may have had.
During the course of this conversation, according to
Winkler, Meyers informed him that he was leaving the
Respondent's employ shortly. Winkler then told Meyers he
felt the employee was a good worker, and he had intended
giving him extra jobs in purchasing in order to prepare him
to take charge of that operation.
That evening a dinner meeting was held between
Altman, the managers, and Altman's attorney in a local
restaurant. The attorney advised Altman and the managers
that they were not to make any promises to the employees
nor were they to threaten the employees in any way.
Altman's attorney also instructed the managers not to ask
the employees any questions regarding their union affilia-
tions or desires .5
The organizing effort continued to be the current topic
of discussion in the store among the employees and,
according to the testimony, among the managers. Frazier
stated that approximately a week after the authorization
cards had been signed he had a conversation with Emas,
an assistant manager on the first floor. According to
Frazier, Emas said the employees were "stupid" and then
recounted how he had been "shafted" by a union in a
factory where he once worked. Frazier also testified to a
second conversation with Emas several days later. During
this conversation, initiated by Emas, he repeated his
observation that the employees were stupid to push for a
union. When Frazier stated that the employees were
dissatisfied, Emas replied that the employees would have
no effective voice if the Union got into the store. Emas
wanted to know why the employees chose the Teamsters,
and Frazier stated that they knew how to get things done.
Emas then made the observation that the Teamsters were
involved in graft. He also said, according to Frazier, that
Altman would close the store and engage only in a mail
order business.
Olson testified to a conversation with Emas which he
stated occured on September 8. Olson testified that Emas
3 Mueller was a senior employee with the Respondent, in terms of length 5 Winkler testified that during the meeting with the Respondent's
of service, and had rapport with the older employees. attorney, he learned that his conversation with Meyers was unlawful. He
4 All of these individuals, except Mueller, who was discharged that stated he told this to the employee the following day.
morning, worked in Winkler's department.
ALTMAN CAMERA CO. 945
told him the managers had a meeting the evening before
and if the employees had any complaints or problems, they
should bring them directly to the managers. Olson asked
Emas if it was true that Altman might close the store, and
he replied that he could not say what Altman might do. He
stated Altman might retire or he might go into the mail
order business.
Searles testified to several conversations with Emas
during this time. He stated that on September 13, Emas
asked him why the employees chose the Teamsters Union.
Searles replied that the employees chose the Teamsters
because they were a strong union. Searles further testified
that on another occasion he overheard Emas speaking to
Olson in the back of the store regarding plans that Altman
had for the employees. According to Searles, Emas
mentioned that Altman had plans for the employees, and
any problems the employees had should be brought to the
managers. He further stated that he could not disclose any
details of Altman's plans for the employees because of the
wage freeze. Searles testified that Emas wanted to know
what the employees would do if Altman "put the key in the
door." Searles asked Emas if Altman would lock out the
employees, and Emas replied that Altman could go into
the mail order business with just 10 employees.
Several other employees testified to conversations with
Emas regarding the Union. Behr testified that the day after
the meeting of the managers, Emas told him that the store
could be turned into a mail order house. Erlien stated that
he initiated a conversation with Emas in the early part of
September. Erlien made the comment that the negotiations
between the Union and Altman would start at the present
level of benefits and go up. According to Erlien, Emas
stated that the negotiations would start at the minimum
wage. During the course of this conversation Emas stated
that Altman had made some mistakes [referring to
Altman's relationship with the employees ] but that
conditions would improve.
Curtis testified that approximately a week before the
proposed election (November 4), Emas asked him how he
stood regarding the election. Curtis replied that he was
committed (apparently in favor of the Union). Emas then
told the employee that things would be better without the
Union because the employees could not get any more than
they already had at the present time. He also told Curtis
that Altman realized that he had made mistakes regarding
the employees in the past. Curtis further testified that Emas
said the employees would have to pay dues and there
would be no guarantee that the Union would keep its
promises to them. Lurey, another employee, testified that
during the last of September or the first part of October, he
was asked by Emas where he stood regarding the Union.
He claimed he was reluctant to tell Emas whether or not he
supported the Union.6
Emas was called as a witness and testified regarding his
conversations with employees concerning the Union. He
admitted discussing the Union with Searles, Frazier, and
Olson. He placed this conversation as occurring shortly
after September 13. He stated that he walked up as Searles
was telling the other two employees about the Teamsters.
He testified that he asked why they picked the Teamsters
and was informed that it was a strong union which could
close down the Respondent's operation if necessary.
According to Emas, he then told the employees that if the
Union attempted to close the store, Altman had alterna-
tives available to him. He stated Altman could change
locations and go into another, type of business. He also
mentioned that Altman could change to a mail order
operation. When asked if Altman would follow this course,
he stated he had no idea. Emas also testified to a
conversation several days later with Frazier and Behr.
According to Emas, Frazier was talking about the benefits
to be gained if the employees were represented by a union.
Emas took issue with Frazier and told the employees that
he was once a member of the Textile Workers Union. He
denied, however, saying that the employees were "stupid"
to join the Union or that Altman would close down the
store if the Union got in.
Emas further testified regarding a conversation with
Curtis. Emas stated the conversation was initiated by the
employee who complained about being "hassled" by all of
the talk in the store regarding the Union. According to
Emas, Curtis claimed to be undecided about the Union,
but felt that it was the only means by which the employees
could communicate with Altman. Emas admitted recount-
ing the disadvantages of union representation to the
employee, but denied asking the employee if he were in
favor of the Union or stating that things would be better
without a union in the store.
Emas also admitted having separate conversations with
Olson and Behr. He stated that he walked up while Behr
was discussing the benefits the employees would receive if
represented by the Union (he did not indicate to whom
Behr was talking at the time). Emas testified that he began
to recite the benefits that the employees were presently
getting from the Respondent. He denied stating that the
employees should hold off with the idea of union
representation until the end of the wage freeze. He also
testified that Olson claimed the Union would be the only
means of communicating with Altman. Emas told the
employee that it was a store policy for employees to bring
problems to the managers and they in turn would take it up
with Altman. He acknowledged that during this conversa-
tion he informed Olson that he was doing a fine job and he
(Emas) had recently mentioned the fact to Altman. Emas
denied having any conversation with Lurey. According to
Emas this employee was difficult to talk to and he did not
discuss the Union with him. He also denied having any
conversation with Erlien.
There is also testimony of several conversations between
employees and Melvin Ross, a manager on the first floor.
Searles testified that on September 7 he overheard Ross
talking to employee Behr. According to Searles, Ross
stated that Altman had invested $100,000 in equipment on
the third floor and had made considerable improvements
on the building. Ross told Behr that Altman would now
turn to the needs of the employees. He indicated that
Altman had been preoccupied with the capital improve-
ments and had not been as considerate of the employees'
6 Lurey's conversation with Emas was not mentioned in the affidavit he cross-examination , Lurey stated he thought he had included the conversa-
gave the Board agent investigating the case. When questioned about this on tion ih his statement.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needs as he should have been. Searles asked Ross what the
Respondent intended doing for the employees. According
to Searles, Ross replied that Altman would try to help the
employees, but he could not give any specifics because of
the wage freeze which was in effect at that time.7
Searles further testified that Ross spoke to him in the
presence of employees Olson and Frazier on the evening of
September 16. According to Searles, Ross stated that the
Union would run their organization and would do all of
the bargaining for the employees. He told the employees
that if the Union represented them they would lose a lot of
the benefits that they presently enjoyed. Searles testified
that Ross detailed 11 benefits he claimed the employees
were now receiving. Searles took issue with him and stated
that the so-called benefits were nothing more than any
employee would receive as part of his job conditions.8
Erlien testified that he had a conversation with Ross
sometime in the early part of September. According to
Erlien, Ross indicated that Altman had paid more
attention to the business needs of the store than to the
needs of the employees, but conditions would improve
because Altman was now aware of his mistake in this
regard.
Ross testified that he did not become aware of the
organizing effort until the meeting was held for the
managers on September 7. According to Ross, after the
second meeting of the managers on September 13, he had a
conversation with the employees in which he detailed the
benefits the employees were currently receiving from the
Respondent. Ross admitted to having a second conversa-
tion with the employees on the first floor. He told the
employees that if the Union became their representative,
everything would be subject to negotiation. He denied ever
telling the employees they would be hurting themselves if
they joined the Union. Ross admitted that during the
course of one of his conversations with the employees, he
made the statement that Altman had made some mistakes
in being preoccupied with completion of the building. But
where he had made mistakes in the past, he had always
corrected them. He felt certain that Altman would do
likewise regarding the needs of the employees. Ross denied
telling the employees that Altman would sell the building
to Berghoff or that the Respondent would turn the
business into a mail order house.
There is also testimony in the record regarding conversa-
tions between employees and Second Floor Manager
Winkler. Garrison, a salesman in that department, testified
that during the first week in September, Winkler asked how
he felt about the Union. Garrison stated that it did not
matter one way or the other, as he was only interested in
getting more money. According to Garrison's testimony,
Winkler replied that a salary increase was not possible
because of the wage freeze. Winkler also mentioned that
r Searles also testified that Ross mentioned that the owners of the
restaurant (Berghoff 's) next to the Respondent's building were anxious to
expand by acquiring Altman's building. Ross denied making this statement,
and Linkevich, a senior employee, testified that he mentioned that Berghoff
made an offer which Altman might now consider.
8 There had been a second meeting of the Respondent's managers and
the Respondent's attorney on September 13. The attorney told the managers
they could talk about the disadvantages of belonging to a union and the job
benefits the employees were currently receiving. The attorney also informed
the negotiations with the Union would have an impact on
the employees' wages.
Abrams, a salesman on the second floor, testified that on
September 15, Winkler asked how he felt about the Union.
The employee replied that he would go whichever way it
was best for him. Abrams recalled a second conversation
with Winkler which took place approximately 2 weeks
later. He stated that Winkler told him the Union could call
a strike and the employees would not get any more money.
According to Abrams, Winkler stated that the Union
would not be good for anybody. He also told the employee
that all of the company rules would be applied uniformly
and strictly enforced if the Union got in.
Winkler acknowledged having a conversation with
Garrison. He initiated the conversation because he wanted
to explain the reasons for the discharge of Meuller on
September 7. He denied ever asking the employee how he
felt about the Union during the course of this conversation.
Winkler also admitted talking to Abrams regarding the
Union. According to Winkler, he told the employee that all
of the benefits that the employees received would have to
be negotiated, if the Union represented them. Winkler
stated that Abrams volunteered the statement that he was
undecided about the Union, and Winkler sought to explain
some of the disadvantages of belonging to a union to him.
Winkler also recalled telling the employee that if a strike
occurred, the employees could be permanently replaced.
Several employees testified that they had conversations
with Altman in his office regarding the Union. Janet
Hilliard , a saleswoman on the first floor, went to Altman's
office shortly before September II to request a transfer to
the third floor department. Hilliard testified that while she
was there Altman asked about her position regarding the
Union. The employee stated she told Altman that she was
neither for it or against it, and that she could see
advantages as well as disadvantages being represented by
the Union. Hilliard subsequently received the transfer to
the third floor department.
Lurey, a salesman on the third floor, testified that he
went into Altman's office to discuss an increase in his
salary. Lurey wanted more money, but was told that
nothing could be done about it at the present time. Lurey
suggested to Altman that he could pay the employees more
money without making it known, and Altman rejected this
idea. During the course of this conversation, Lurey brought
up the subject of the Union. According to Lurey, Altman
stated he was secure in his business and he was not going
to allow a union to create problems for him. Altman
mentioned that he would just as soon step out of business
because he did not need the problems.
Although Altman admitted having conversations with
both Hilliard and Lurey, his version of the conversations
differed from the testimony of the employees, Altman
the managers that they could tell the employees that they could be replaced
during an economic strike , and that the Union could make promises which
it would not necessarily be able to keep. The managers were further
instructed to state that the Respondent could not make any promises to the
employees during the organizing campaign . Altman gave the managers a list
of benefits which he felt he was presently giving the employees. This list
included such things as overtime pay for Saturday work and group
hospitalization, financed solely by employee contributions.
ALTMAN CAMERA CO. 1 947
stated that Hilliard came to him with a request to be
transfered from the photofinishing department to the
darkroom equipment on the third floor. Altman testified
that he told Hilliard that he would have to discuss the
matter with the third floor manager and also with his
attorney to see if it could possibly be construed as some
sort of unfair labor practice because of the - union
campaign . Altman complained to the employee about now
having to confer with his attorney before making business
decisions because of the organizing campaign. According
to Altman, Hilliard mentioned that the Union did have
some good points. Altman denied ever asking the employee
about her position regarding the Union. As to the
conversation with Lurey, Altman stated that the employee
came in to see him with a request for more money . Altman
told him a wage increase was prohibited by Phase I of the
wage freeze. When Lurey suggested he be given a wage
increase "under the table," Altman refused: During the
conversation Lurey asked Altman if he intended selling the
business and moving to Florida? Altman responded by
saying it would be ridiculous to give up the business after
many years of investment of time and money.
C. The Discharge of Mueller
Walter Mueller, a salesman on the second floor had been
employed by the Respondent since October 1968. In
March 1969, Mueller was asked to assume the duties of an
assistant floor manager of his department. He received a
$10-a-week wage increase, and in October of that year the
Respondent posted an official notice making Mueller the
assistant floor manager. He then received an additional
$10 per week in wages .9 In November 1970, Mueller asked
Altman for a raise in pay. He was told that his sales did not
warrant a pay increase. Mueller then complained that
when he became assistant manager, he was told that his job
did not depend upon his sales but on the way that he
helped to maintain the department. Mueller asked Altman
for permission to relinquish his position as assistant
manager and this request was granted. Mueller's wages,
however, remained at the level he was receiving as an
assistant floor manager. The following month Mueller's
sales showed a substantial increase, and he again requested
a pay raise. He was informed by Altman that he was
"lucky" and his request was denied.
Mueller attended the meeting held by the union officials
with the employees at the Jolly Chef on September 2.
Mueller signed a card on September 3. Mueller testified
that he also attended a meeting of the employees held at
the restaurant the last week in August. He stated the
following day he talked with Winkler about the Union.
Winkler wanted to know what the employees would gain
by being represented by a union. Mueller replied that they
would achieve job security, more money, and hospitaliza-
tion benefits. According to Mueller, Winkler stated that
the Respondent had these items in the "fire." Mueller also
9 Mueller was one of the more productive salesmen in his department
and it was on the basis of his sales that he was asked to assume the new
duties and responsibilities.
10 Winkler denied having these conversations with Mueller.
11 Bernstein testified that he received a union authorization card from
Linkevich but not from Mueller. This was corroborated by Linkevich.
testified that after the second meeting- on September 2, he
again discussed the Union with Winkler. He repeated his
claims about the advantages of union representation and
was told by Winkler that Altman had plans to give these
kinds of benefits to the employees and the Union was not
needed.1o
Mueller -testified that he approached employees Linke-
vich (the most senior of the nonmanagerial employees) and
Tomer regarding 'signing authorization cards for the
Union. According to Mueller, Linkevich flatly rejected the
idea and Tomer indicated that he had reservations.
Mueller also stated that he gave a card to Arnold
Bernstein, the general manager, the day after the meeting
on September 2. Mueller said he did so in a jocular vein
and told Bernstein, "here, Arnold, become union mem-
ber." According to Mueller, Bernstein put the card in his
pocket and continued on his way."
The testimony regarding the circumstances surrounding
Mueller's discharge on September 7 is conflicting. Mueller
testified that Altman came to the store and, at approxi-
mately 10 a.m., paged Managers Wills and Winkler on the
intercom and instructed them to come into his office.
Fifteen minutes later, Mueller was paged and told to come
into Altman's office. Only Mueller and Altman, were
present at the time. According to Mueller, Altman stated
that Mueller was not a company employee and that he had
been dissatisfied since his request for a pay raise had been
denied. Altman told the employee he would probably be
happier elsewhere and that he was fired as of that moment.
Altman insisted that Mueller leave the premises at once
and paid him for the balance of the week. Mueller placed
the time of his conversation with Altman at approximately
10:15 a.m. He stated that he returned to his department to
gather his personal belongings and said farewell to several
employees in his department and on the first floor before
he left the store.
Joseph Knecht, a salesman on the first floor testified that
on the morning of September 2, he was taking inventory of
camera equipment in the rear of the store. He was standing
next to, the escalator which led to the second floor and was
near the-desks of Bernstein and Wills. He observed Altman
and Wills going up the escalator and he overheard Altman
ask Wills, "how long have you known this?" He stated that
Wills replied, "since last Tuesday." 12 According to
Knecht, Altman paged Bernstein, Mrs. Altman,13 Winkler,
and Ross. Each of these pages were made individually and
all were instructed to call Altman's office telephone
number. Knecht stated that following these pages, he
observed Wills returning to his work area. Following this
he heard a page for Mueller over the intercom and the
employee was instructed to report to Altman's office. He
stated that approximately 15 minutes later, Wills walked
from the area where his desk was located and told Ross
that he "just fired Walt Mueller."
Altman testified that Mueller had caused a number of
problems involving his work 'at the store, and the
12 Knecht testified that he arrived at the store at 8:45 a.m. that morning
He states that he did not overhear the conversation between Altman and
Wills until approximately 45 minutes later
13 Mrs. Altman was frequently paged over the intercom system by a code
name of Mrs. Anderson. Knecht testified that on this occasion she was
paged by her code name
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accumulation of these complaints caused him to discharge
Mueller on September 7. Altman stated that on September
2, prior to leaving for a Labor Day weekend vacation in
Florida with his wife, he was first made aware of a
situation involving Mueller's handling of a mail order
shipment. According to Altman, as he and Mrs. Altman
were leaving the store that evening, she told him that she
had "had it with Walt Mueller." Mrs. Altman informed
him that Mueller had made an error in the mail order
shipment, causing it to be underinsured and the Respon-
dent could possibly lose $1,000 as a result of this mistake.
The mail order shipment involved the purchase of camera
equipment and accessories by the University of Windsor in
Ontario, Canada. Although the versions of what occurred
are conflicting, the testimony and the record evidence
indicate that the circumstances surrounding this particular
shipment were as follows:
On August 18, Mueller was given a mail order request to
fill. Mueller gathered the material requested and itemized
the value of the shipment on the invoice and on the
shipping ticket. Mueller totaled the invoice and shipping
ticket in his head instead of using the adding machine
pursuant to standing instructions by the Respondent. He
arrived at a figure of $4,050.80, but the correct total should
have been $5,120.80. Accordingly, Mueller indicated on
the shipping ticket that the insurance value of the shipment
was $4,051. When the copies of the invoice were received
by the billing department, one of the employees discovered
the mistake and informed Mrs. Altman. Mrs. Altman
instructed the employee to notify Winkler of the error and
to have it corrected before the shipment left. The
bookkeeping clerk did so and Winkler brought it to
Mueller's attention. Mueller testified that Winkler showed
him the second and third copies of the invoice and told
him to correct the error. According to Mueller, he was not
instructed to go to the shipping department to correct the
packing slip, nor did he do so. Winkler, however, testified
that he told Mueller to correct all of the copies of the
invoice and to go to the shipping department to make the
necessary corrections on the packing slip.
Although Mueller filled the order on the 18th of August
and it was checked on the 19th, the shipment was not
packaged until the 20th. The carrier did not come for the
shipment until August 26. Because the carrier was
unwilling to accept the responsibility for possible loss of
insured items, the shipping clerk called Mrs. Altman. She
went to the shipping department and decided to ship by a
different carrier. New labels were made out and the
shipping clerk crossed out the name of the designated
carrier on the packing list. In so doing he inadvertently
crossed out the first item on the list which consisted of two
Bolex cameras totaling $1,070. The shipment was insured,
however, for the incorrect amount which still remained on
the packing list.
On September 2, the Respondent received a letter dated
August 31, from the University of Windsor inquiring about
14 The clerk posted the correct amount of the invoice on the
Respondent 's books as a charge against the University 's account.
15 Mrs . Altman testified that sometime during the month of May,
Mueller went to the receiving department and took equipment to the sales
floor before it had been logged in on the Respondent 's records. This caused
considerable problems as the Respondent had to make numerous inquiries
the shipment. Mrs. Altman was informed by the office
clerk that the inquiry concerned the same shipment
Mueller had erroneously undervalued.14 Upon checking,
Mrs. Altman determined that the shipment was underin-
sured because the packing list had never been corrected.
She contacted Winkler who stated that he had instructed
Mueller to correct all of the documents connected with the
order, and he assumed that all of the instructions were
followed.
Mrs. Altman complained that this was only one of
several incidents involving Mueller and she urged that
Altman discharge the employee.15 Altman told his wife
that he would deal with the matter concerning Mueller
upon their return and urged her to enjoy the holiday
vacation.
Altman testified that when he returned to the store on
September 7, he received the blank union card from
Bernstein and was told of the union activity by Wills. He
went into his office and Winkler came in to discuss several
incidents that involved Mueller during his absence.
Winkler reported that the store could possibly lose $140 as
a result of a mistake made by Mueller in handling a
customer's order. He stated that a customer had come into
the store and asked Mueller for stabalizing equipment to
enable him to take motion pictures from a moving vehicle.
According to the report given Altman, Mueller told the
customer he needed an Aeroflex Gyro Head Stabilizer and
tripod. The Respondent did not keep this equipment in
stock, and Mueller asked Winkler where he could find the
selling price of the items. Winkler stated that Mueller did
not explain the customer's problem to him. Winkler
showed Mueller where the items were located in the sales
catalog so that he could order the equipment from the
manufacturer for direct delivery to the customer.16
Winkler told Altman that on September 3, the customer
called and stated that he had contacted the manufacturer
in New York and was informed that the equipment was not
the type that would serve his particular needs. According
to Winkler, the customer was very upset and Winkler
agreed to accept the merchandise back once it was
delivered from the manufacturer. He also agreed to refund
the customer's money, including the shipping charges.
Winkler calculated that the total cost for correcting this
mistake would amount to $140. He claimed that he warned
Mueller to check with him in the future before selling
equipment with which he was unfamiliar to customers.
Winkler also told Altman that on September 4, a
customer had come into the store asking to see Mueller.
Mueller was on his lunch hour and another salesman
attempted to assist the customer. According to Winkler,
the customer claimed Mueller had promised to give him
five free rolls of motion picture film, if he purchased a used
motion picture camera from the Respondent. The sales-
man called Winkler over and Winkler explained to the
customer that it was against the Respondent's policy to
throw in any free items with the purchase of camera
of shippers about merchandise that had in fact been received. As a result of
this particular incident , the Respondent discouraged sales personnel from
going to the shipping and receiving departments.
Is Winkler places the date of this transaction as September 1, and an
invoice introduced into evidence indicates that the customer paid the full
amount of the purchase price ($879.75) on that date.
ALTMAN CAMERA CO. 949
equipment. The customer insisted that Mueller had made
such a promise, but Winkler refused to accede to the
request. The customer ultimately bought the camera and
the film he required. Winkler stated that when he
mentioned the incident to Mueller, the employee denied
making a promise to give the customer free film.
Winkler reported one final incident to Altman at this
time. He stated that shortly after the store opened that
morning, Mueller sat in the chair by his desk and
complained about the profit the store made on the used
equipment he sold. Mueller claimed that he had a large
volume of sales and he received none of the profit that the
Respondent made off each item. Mueller, according to
Winkler, was very excited and banged the arms of the chair
while voicing his complaint.
Altman asked Winkler if he knew of the incident
involving the shipment to the University of Windsor.
Winkler indicated that he was aware of the situation, and
recommended that Mueller be discharged.17 Altman stated
that he agreed with this recommendation and as Winkler
left his office he called Mueller in to discharge him. Bcth
Winkler and Altman testified that none of the other
managers had been called into the office prior to
Altman's conversation with Mueller.
D. The Events Following Mueller's Discharge
Mueller's discharge was a cause of concern among
employees in the store. Meyers testified that on September
9, he went to Winkler to find out why Mueller was fired.
He stated that Winkler told him Mueller was unhappy in
his job and had problems. Winkler, according to Meyers,
said that the Union was only one of the reasons why
Mueller was fired. Garrison, another employee, testified
that several weeks after Mueller's discharge Winkler asked
him if he knew the reason. Garrison replied that he had
heard rumors to the effect that Mueller was discharged
because of the Union. Winkler stated that Mueller was
discharged because he was not a "company man."rs
A meeting of the employees and union officials was held
at the Jolly Chef Restaurant on September 9. Many
employees who, attended renewed their pledge to support
the Union's organizing effort as well as the Union's vow to
get Mueller reinstated in his job. During the course of this
meeting the employees were addressed by Cummings and
by the attorney for the Union. The Union's 'attorney was
present to answer questions that the employees had about
the wage freeze and its impact on negotiations when the
Union became their bargaining representative. More cards
were passed out during this meeting and signed by a
number of the employees. In addition, a written pledge was
circulated stating that the employees pledged their support
to the Union. This pledge was signed by 35 employees
attending the meeting.19 During the course of the meeting
Cummings again informed the employees that signing the
17 Winkler also testified that Mueller frequently "drank " his lunch and
had to be asked to leave the salesfloor to sober up . There is no indication,
however, that he mentioned this to Altman at the time of recommendation
to discharge the employee.
is Wntkler ' admitted discussing Meuller's discharge with Meyers and
Garrison, and also with employee Jobanputra. In each instance, Winkler
said he 'demed that Mueller's involvement with the Union, had anything to
do with the decision to fire him.
authorization cards did not mean that they were joining the
Union at that time . He assured them that it would only
mean that they would join the Union if the Respondent
agreed, on the basis of a card check , to recognize the
Union as the bargaining representative . He further
explained that if an election became necessary , the cards
would manifest an indication of their desire to join the
Union.
On September 10, the Union requested recognition as the
bargaining representative of the employees and the Re-
spondent refused . The Union then filed a representation
petition with the Regional Office of the Board . Unfair
labor practice charges were filed in Case 13-CA-10869
regarding the discharge of Meuller, and subsequent
charges were filed in Case 13-CA-10970 and
13-CA-10970( 1 & 2). A request to proceed with the
election was filed however, and an agreement was entered
into to hold the election on November 4.20
On September 28, Altman assembled the employees
prior to opening the store and spoke to them regarding the
pending election . He read from a prepared text and he
informed the employees that under the law he could not
make any promises , but that the Union could promise
them anything . He further informed the employees that all
of their benefits would be the subject of collective-
bargaining negotiations in the event the Union became
their representative . He admitted having made mistakes in
dealing with the employees , but 'told them that he could
not tell them how he intended to correct the situation
because of the pending election . He asked the employees to
reject the Union in the coming election and to give him a
vote of confidence.21
E. The Disaffection of the Employees with the
Union
After the agreement for an election was executed by the
parties, the employees' interest in the Union began to
vascillate. Behr, Meyers, and Searles voluntarily left the
Respondent 's employ for personal reasons. The chief
advocates on behalf of the Union at this point became
Fentimen , Frazier, Kiester, and Olson. Mueller, who
secured employment elsewhere , continued to be active in
the organizing effort.
On October 25, Fentimen and Frazier asked Altman if
they could see him in his office . Altman agreed, but only
on the condition that he meet with each employee
separately. Frazier testified that when he met with Altman
he complained about the management-employee relation-
ships in the store . Frazier also complained about the
manner in which several supervisors handled personnel.
Frazier asked Altman to give Mueller his job back, and the
Respondent refused . Frazier suggested that Altman would
have to give the employees what they were demanding, and
asked why there were not more black sales personnel in the
is C.P. Exh. 1.
20 On November 2, the Regional Director cancelled the scheduled
election pending investigation of the unfair labor practices charged in Case
13-CA-10970-2; which also covered the charges in the previously filed Case
13-CA-10970-1.
21 Altman made a similar speech to the employees on October 20. On
this occasion he again read from a prepared text.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store. Altman replied that he had employees of all races
and nationalities and where individuals were qualified, he
hired them. Frazier indicated during this meeting that if a
vote were held at that time, the Union would win. He
wanted Altman to spell out what changes he would make
and what benefits he would grant the employees if they
dropped the matter involving the Union. Altman indicated
during this conversation that management had made some
mistakes in the past in dealing with the employees, but he
was aware of this and would correct it in the future 22
On October 27 there was another meeting between the
union officials and the employees at the Jolly Chef
Restaurant. An organizer for the Union spoke to the
employees at this meeting in a manner which caused a
number of them to turn against the Union. Kiester testified
that the organizer sounded rough and angry. Kiester and
Olsen took particular exception to the manner in which the
union representative spoke to Frazier during the meeting.
Shortly thereafter, Olson asked Altman if he could see
him in his office. The employee told Altman that he was
not going to support the Union because he felt insulted by
the union literature which was directed at the employees.
He also told Altman that the key union adherents had left
the Respondent's employ and they only brought in the
Union as a personal affront to Altman.23
After the scheduled election was postponed because of
the final charges filed by the Union, several employees
began to feel that the Union was trying to become their
representative without allowing them an opportunity to
express their preference in an election. Fentimen, Frazier,
Moy, and Olson began discussing the matter and the
employees' growing disenchantment with the Union. On
the basis of advice given Fentimen by a Board agent, Moy,
with the assistance of Fentimen and Olson, drafted a
petition on November 6. The petition disavowed any
support or affiliation with the Union. The petition was
circulated among the employees in the store and 48 of
them signed it. Copies of the petition were sent to Altman,
the Board's' regional office, and to the Union.
F. The Authorization Cards
As noted, the employees who originally contacted the
Union were told by Cummings that the authorization cards
could be used in three ways in order to gain recognition:
by a card check, by a Board-conducted' election, or by an
election held by a state agency. The employees were
advised by Cummings to explain the alternative methods
to their coworkers when they solicited signatures. Forty-
one cards were introduced into evidence with varying
statements as to what representations were made to the
signers at the time of the solicitation. Some cards were
undated and others were submitted on the basis of
testimony by a handwriting expert, who compared the
22 The above is a synthesis of the testimony of Frazier and Altman.
There is no testimony in the record regarding the conversation between
Altman and Fentimen
z3 Olson testified that at the time he spoke with Altman he was aware of
the fact that Fentimen and Frazier had already been in Altman's office.
Another employee, Robert Moy, also testified that he went in to see Altman
to assure him of his support and to let him know he did not want the Union
in the store.
24 The authorization cards were single purpose cards authorizing the
signatures on the cards with signatures on W-4 forms given
to Altman by employees at the time of hire. The record
contains the following evidence regarding the submitted
authorization cards: 24
Willis Searles, Delmar Behr, Danny Frazier, Saul Meyers,
Jack Fentimen: There is no doubt, based on the testimony
of these employees, that they were advised of the
alternative methods of achieving recognition at the time
they signed cards.
John Apolinski, Lax Jobanputra: It was stipulated by the
parties that Apolinski and Jobanputra signed cards on
August 27 and September 3, respectively. Jobanputra
testified he had no information concerning an election and
was only familiar with what was printed on the face of the
card.
Leonard Olson: This employee testified that he received a
card from Searles and that he read it at the time. He signed
it on August 27.
George Gintowt: Gintowt testified that he received a card
from Will Searles, who asked him to think about it and to
sign . Gintowt was told he would be joining the Union if he
signed. Gintowt signed the card on August 27.
Michael Abrams: This employee signed a card while
attending a meeting of the employees at the Jolly Chef. He
received the card several days before from Saul Meyers
who indicated that if the employees got a majority to sign
cards, they could have an election and get the Union in the
store . Abrams read the card before signing.25
Richard Garrison: Garrison received his card from
Meyers. The employee was told that the card was not
binding on him. Garrison read the card and did not sign it
until he attended the meeting at the Jolly Chef on
September 9.
Jerrold Goldblatt: This employee received his card from
Meyers. At the time he was informed he did not have to
pay union dues, but if the Union won the election and the
contract was agreed upon, all employees would have to
begin paying dues. Goldblatt signed the card on August 29.
Elizabeth Noda: Noda signed the card on August 31,
after getting it from one of the employees at a meeting at
the Jolly Chef. She was informed that the cards would
show employee interest in formmg the Union.
George Curtis: Curtis received his card from Searles on
August 30, and signed it at that time. Searles informed the
employee that the card would authorize the Union to be
spokesman for the employees.
Ernest Parra, William Klein: These two employees
received cards at the meeting between the employees and
the union representatives at the Jolly Chef on September 2.
Parra recalls the union representative telling the employees
that as soon as a majority had signed they would ask
recognition from the Respondent. Klein got his card from
Union to act as the collective-bargaining representative of the signer The
cards clearly stated that the signer would not be responsible for payment of
initiation fees or dues until a contract had been signed by the Employer
zs Abrams testified that the union representative told the employees the
cards would give them the right to be represented by the Union in
bargaining. He indicated this statement was made before he signed the card
However, the card bears the date August 28, and Cummings did not meet
with the employees until September 2.
ALTMAN CAMERA CO. 951
Mueller who stated, "you might as well separate the men
from the boys."
Louis Keister: This employee received his card in the
store on September 2 and signed it. He was unable to recall
who gave him the card, but did recall that he was told the
card would afford him protection against any reprisals
being taken against him. He recalled nothing being said
about any election, nor did he understand that he was
joining the Union at that time.
Robert Erhen: Erlien attended the meeting at the
restaurant on September 2 and was given an authorization
card by Frazier. Erlien executed the card the next day and
turned it in.
Don Klein: Klein was given a card by Searles at the
meeting at the Jolly Chef. Klein read the card before
signing it and had no recollection of any conversation
about the purpose of the card.
Louise Markiewicz: This employee signed a card on
September 3. Although she did not recall who gave her the
card, she understood it was for the purpose of securing
information about the Union.
Walter Mueller: Mueller received his card from Meyers,
who also gave him several other cards to pass out to other
employees. Mueller was the employee designated to
contact or solicit authorization cards from the other older
employees at the store.
Joseph Knecht: Attended the meeting at the Jolly Chef
where the union representatives told the employees that the
cards were to designate the Union as the collective-
bargaining representative. Knecht recalled that the cards
could be used on the basis of a card count, or a state or
board conducted election.
John Damor: He received a card from Abrams and took
it home and filled it out the following day. Damor did not
date the authorization card. However, someone else placed
the date of September 4 on the card.
Raymond Kudlick: Kudlick signed a card on September
4. He received it from Behr in- the store, signed it at that
time. Kudlick testified that he was told that several
employees had talked to union representatives and when
enough of 'them had signed cards, the labor board would
hold an` election to see if the employees wanted a union to
represent them.
Satish Gulati: Gulati received a card from Mueller on
September 4 in the store. He had previously received a card
from Meyers, but had misplaced it. Meyers told Gulati the
card was a means to get an election to determine if the
employees wanted a union. Mueller said nothing to him
about the purpose of the card which he ultimately signed.
Ismail Vohra: Vohra received a card from Jobanputra in
the store. Vohra was told that the employees wanted a
union to represent them in order to get more benefits.
Vohra did not sign the card immediately, but took it and
turned it in at a subsequent meeting of the employees. His
card was dated September 7.
Eloy Narea: Received his card from Searles. He signed
and returned it to him.
William Schmidt: This employee signed a card on
September 9. He had previously been given a card but had
neglected to sign it. At the time he received the initial card
he was told that it would show the employees' interest in
what the Union had to offer and that it would not be
binding on him. Schmidt read the card before signing it.
John Morgan: Morgan signed a card on August 31 at a
meeting of the employees at the Jolly Chef. Morgan
testified- that he was informed that if a strong enough
showing of interest was made by the employees, they
would have an election. He was also told that the card
would indicate how many employees were interested in the
Union and would protect employees if they were dis-
charged for union activities.
Several cards were submitted which were signed by
employees, but were undated.
Janet Hilliard: This employee received a card from
Searles. She testified that she signed it and gave it back to
him. The card was undated, but Hilliard states that she
executed the card prior to September 11. Examination of
the card, however, shows that it was received at the Board's
offices on September 14; in contrast to the other cards
which were submitted to the Board on September 10.
Richard Martinez: Martinez testified that he signed a
card at the union meeting at which the union representa-
tives and the union attorney was present (September 9).
Martinez stated that he was informed the purpose of the
card was to allow the Union to represent the employees.
Although his card was undated, it contained the Board
office stamp of September 10.
Leslie Lurey: Lurey also signed a card at the meeting
with the employees and the union representatives at the
Jully Chef. According to Lurey, the employees were told
that the Union wanted an election in the store. As in the
case of Martinez' card, Lurey's card also bore the Board
office date stamp of September 10.
Robert Moy: Moy testified that he was given a card by
Fentimen at a meeting of the employees of the Jolly Chef
Restaurant. Moy stated that no union representatives were
present at this meeting. Moy testified that Fentimen
indicated that the card was an expression of the employees'
desires to have a vote regarding whether they wanted the
Union to represent them. He also stated that it would
protect the employees if their jobs were in jeopardy
because of activities on behalf of the Union, and that the
card was not binding on the employees. Moy recalled that
he did not sign the card until the meeting at the restaurant
2 days after Mueller was discharged (September 7). Moy's
card contained the Board office stamp of September 10.
Carlos Velazquez: Velazquez was not available to testify
regarding his authorization card. However, his father took
the stand and stated that Velazquez was in Texas at the
time of the trial. His father testified that the card shown
him purportedly bearing the signature Carlos Velazquez
was in fact his son's signature. The card, contained the
Board office stamp of September 10.
There were seven cards offered by the General Counsel
for which the card signers were not available to testify. A
handwriting expert examined these cards along with the
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signatures of the employees contained on W-4 forms given
to the Respondent for income tax purposes. The handwrit-
ing expert testified that the cards of the following
employees were signed by the same individuals who
executed the W-4 forms: Scott Levitt, Donald Levitt,
Gabrielle (Manny) Carrillo, Andrzej Markiewicz,26 James
Schwab, Walter McDonald, and Michael Gendville.27
G. The Appropriate Unit
A joint exhibit was submitted by the parties indicating
that on September 10 (the date of the Union's request for
recognition and the filing of the representation petition),
there were 67 employees in the bargaining unit. It was also
agreed that an appropriate unit for purposes of collective-
bargaining consisted of:
All full-time and regular part-time selling and non-
selling employees in the Respondent's store, excluding
office clerical employees, guards, and supervisors as
defined in the Act.
IV. CONCLUDING FINDINGS
At the conclusion of the General Counsel's case,
paragraphs 6(b), (c), and (d) were dismissed because there
was no evidence in the record to sustain these allegations.28
The General Counsel was also granted permission, over the
objections of the Charging Party, to withdraw paragraph
6(o) which alleged that Tekler, a supervisor, circulated a
petition against the Union among the employees.
The threshhold issue to be decided here relates to the
alleged violations of Section 8(a)(l) brought about by the
conduct of the Respondent's managers and supervisors.
The circumstances surrounding this unlawful activity, if
found to exist, bear upon the determination of whether
Mueller was unlawfully discharged and whether a bargain-
ing order is the only effective remedy in this case.
A. The 8(a)(1) Violations
The record is filled with testimony of conversations
between employees and management officials regarding
the consequences of union representation and the organiz-
ing activity taking place at the Respondent's store. In
making my determination as to whether a violation has
been committed, I consider the totality of circumstances as
well as the substance of the individual conversations.
Winkler spoke to Meyers at length on September 7 about
the organizing campaign. Although he claimed the employ-
ee initiated the conversation, it is of little consequence
here. By his own admission, Winkler sought to find out
what the employees hoped to gain and why they selected
the Teamsters. It is also evident that Winkler was
26 Markiewicz' card was dated in a different color ink with an obviously
different handwriting . The date on the card was September 5, however, the
card also was stamped by the Board's regional office on September 10.
27 Gendville's signature on the W-4 was virtually identical to the
signature contained on the card . According to the handwriting expert, this
was somewhat confusing because it was almost as if the signature had been
traced . However, the handwriting expert examined Gendville 's signature on
the employee pledge of support to the Union, and stated that the signature
on the card and on that document were written by the same individual.
28 Par . 6(b) alleged that Altman told the employees he would give them
attempting to get Meyers to identify the union adherents;
especially those in his department. Thus his conversation
with Meyers constituted more than legitimate inquiry into
union sentiment and strength among the employees.
Rather, his efforts to identify the adherents was clearly
coercive, since Mueller had been discharged earlier that
same day. The mere fact that Winkler subsequently
informed Meyers that he learned the conversation was
unlawful does not dissipate the unlawful nature of the
conversation, nor does it relieve the Respondent from the
responsibility for the statements.
Winkler also engaged in conversations with employees
Garrison and Abrams about the Union, although Winkler
denied attempting to find out the employees' sentiment
regarding the Union. I do not credit him. The frequency of
his conversations with employees concerning the Union
and the admitted character of his statements cause me to
conclude that he was attempting to find out if the
employees were supporters of the Union. Furthermore, it is
evident that Winkler was attempting to discourage this
support by informing the employees they would not receive
any more money by being represented by the Union, and
that the Respondent would apply its work rules more
strictly if the Union represented them. It is abundantly
clear that Winkler's statements were coercive and implied
that the Respondent would retaliate against the employees
by imposing restrictions which did not exist prior to the
organizing effort. These statements far exceed the right of
free speech as envisioned by Section 8(c) of the Act and
contain obvious threats of reprisal expressly prohibited by
that portion of the Act.
The most active of the Respondent's managers was
Emas. With the exception of the alleged conversation with
Lurey, the record discloses six separate instances in which
he discussed the Union with employees. In these conversa-
tions there were recurring themes which I find were
unlawful. For example, Emas told Frazier that the
employees were stupid for wanting a union and they would
have no effective voice in their affairs if the Union
represented them. Emas indicated that the Respondent
could change the nature of the operation and engage
exclusively in the mail order business. This statement was
repeated in conversations with Olson and Searles. Emas
stated that the Respondent would need only 10 employees
to run a mail order operation.29
Not only did Emas indicate that employees could lose
their jobs if the Union represented them, but he also told
Erlien that the employees could lose their present level of
benefits if the Union negotiated for them. In addition,
Emas suggested that Altman had made mistakes in dealing
with the employees in the past, but that conditions would
improve in the future. While he did not spell out what type
of improvements he was alluding to, it is evident that the
whatever benefits the Union was promising them . Par. 6(c) alleged that
Altman told employees they would lose their Christmas bonus or sickleave
benefits if the Union represented them. Par. 6(d ) alleged that Altman told
employees they would have meetings to improve their relationship.
29 Although Emas denied stating any specific number of employees
required to run the mail order operation, I do not credit him . Moreover, he
admitted mentioning that the Respondent could go in the mail order
business and it was evident to the employees that such an operation would
eliminate jobs.
ALTMAN CAMERA CO.
promise of this vague improvement was designed to cause
employees to withdraw support for the Union.
I do not, however, give credence to the testimony of
Lurey in which he stated Emas sought to ascertain his
position regarding the Union. Although Lurey gave a
sworn statement to. the Board Agent, he made no mention
of this particular conversation until he testified at the trial.
Having observed him under cross-examination regarding
this matter, I find that his testimony concerning this
particular incident is not worthy of belief.30
I also find in this context that the statements made by
Ross to the employees were unlawful. Ross told the
employees that they stood a chance of losing existing
benefits during negotiations. Although he denied making
this statement, I do not credit him in this regard. This
statement was consistent with the statements of economic
loss voiced by Emas and the futility of being represented
by the Union as expressed by Winkler. In addition, Ross
repeated the theme frequently expressed by the manag-
ers-that the Respondent had been preoccupied with the
capital improvements in the store and had neglected the
needs of the employees. As in the case of Emas, Ross told
the employees that conditions would improve in the future.
Standing alone this vague promise of better conditions
would not be unlawful, but in the context of the numerous
unlawful statements made to the employees by the
managers, I find that Ross, by implication, was promising
the employees unspecified benefits if they rejected the
Union.31
I do not find that the separate conversations between
Altman and employees Hilliard and Lurey transcended the
bounds of free speech permitted by the Act. Altman's
complaint about having to check with his attorney before
making a business decision regarding an employee's
request for a transfer was nothing more than an expression
of frustration and contained no threats of reprisal or
promises of benefit. I do not find that in this conversation
Altman sought to ascertain Hilliard's position on the
Union. Nor do I find that Altman told Lurey, when that
employee asked for a wage increase "under the table," that
he would sell the business and move to Florida.
The speeches given by Altman to the assembled
employees were also, in my judgment, free of any taint of a
violation of the Act. Nothing in the recount of the speeches
indicated that the Respondent made any promises or
voiced any threats of reprisal, expressed or implied, when
speaking to the employees. The law does not require an
Employer to remain silent when confronted with a union
organizing campaign. He has a right to oppose the
organizational effort and to ask the employees not. to
30 The fact I credit Emas regarding the alleged conversation with Lurey
has no bearing on my unwillingness to credit him on other matters. As
stated by Judge Learned Hand, "nothing is more common in all kinds of
Judicial decisions than to believe some and not all." NLRB. v. Universal
Camera Corporation, 179'F.2d 749, 754 (C.A. 2).
3' In evaluating the statements made by Ross, I do not find that he told
the employees the Respondent would sell the building to Berghoffs . Rather,
I find that the statement was made by Linkevitch during a discussion where
Ross was present.
32 The Respondent argues in its brief that even if the employees were
questioned about their views concerning the Union, no violation occurred
because the conversations took place at their work stations and were not
conducted under circumstances that were mtimidatmn. This rationale
953
support the union, provided he does not engage in threats
or make promises. N.L.R.B. v. Sanitary Laundry, Inc., 441
F_2d 1386 (C.A. 10, 1971); N.L.R.B. v. Lenkurt Electric
Co., 438 F.2d 1102 (C.A. 9, 1971); N.L.R.B. v. TRW-
Semiconductors, Inc., 385 F.2d 753 (C.A. 9, 1967). I find,
therefore, that the speeches made by Altman to the
employees on September 28 and October 20 were lawful
under Section 8(c) of the Act.
In sum, I find, upon consideration of the totality of the
statements made to employees by Winkler, Emas, and
Ross, that the Respondent's managers threatened employ-
ees with loss of benefits and loss of employment if the
Union became their bargaining representative. I further
find that the managers unlawfully interrogated employees
to ascertain their sympathies and desires regarding the
Union and that subtle promises of benefit were made to
the employees to induce them to reject the Union in the
pending election. This conduct patently interfered with,
restrained, and coerced the employees in their Section 7
right to join, assist, or form a union and violated Section
8(a)(1) of the Act 32
B. The '8(a)(3) Violation
The discharge of Mueller presents a closer question.
Mueller was the top salesman in his department and, as
such, was given the position and responsibility of an
assistant manager. It was only at his request that he was
relieved of this responsibility in November 1970. On the
other hand, there is no question that Mueller caused the
Respondent some grave problems by the manner in which
he dealt with customers, handled merchandise, and
performed his duties at the store.33 The critical issue here is
whether Mueller was discharged because of his involve-
ment with the Union or because Altman felt that he could
no longer tolerate the kinds of mistakes Mueller made
during the course of his job. In my judgment, Mueller was
discharged for the latter reason.
I am not unmindful of the fact that Mueller was active in
the organizational campaign and solicited signatures of the
older employees. Nevertheless, I am persuaded on the basis
of the evidence that the decision to discharge Mueller was
made prior to the time his union activity was known by
Altman. The taking of the merchandise from the receiving
area before it was accounted for and the difficulty this
caused, coupled with the underinsuring of the University
of Windsor order, were sufficient grounds to justify Mrs.
Altman's anger toward the employee. Mrs. Altman
credibly testified that she told her husband on the eve of
their holiday weekend she was fed up with Walt Mueller
and recommended that he be fired. Although Altman did
misconceives the purpose of the protection afforded by the Act. Obviously
the Act precludes conversations which are conducted in intimidating
circumstances, but it also proscribes conduct which carries, explicitly or
implicitly, the threat of retaliation and coercion or contains pronuses of
benefit calculated to interfere with the right of employees to engage•in a
union organizational campaign.
33 In arriving at my conclusion , I do not rely upon WmkIpr's statements
that Mueller frequently "drank" his lunch and had to be removed from the
sales area until he sobered up. It is highly unlikely that Winkler would not
report this to Altman, yet Winkler was the only management witness to
mention the fact of Mueller's purported drinking. Furthermore , it is just as
unlikely that Winkler would have tolerated this kind of conduct which
would have impaired Mueller's ability to carry out his duties.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not state he would do so, he promised to attend to the
problem when they returned from their weekend vacation.
Upon his return he was immediately confronted with
complaints about Mueller from Winkler regarding three
specific situations. Winkler also recommended that Muel-
ler be discharged. These facts persuade me to conclude
that Mueller was discharged because of the Respondent's
dissatisfaction with the number of complaints received
about the employee; especially the complaints expressed
by his wife several days before. In so doing, I do not credit
the testimony of Knecht wherein he claimed he overheard
Wills say he had gotten Mueller fired. Nor do I credit
Mueller's testimony regarding his conversations with
Winkler about the Union before September 7. Rather, I
find that at the time of Mueller's discharge, Altman had no
knowledge of the employee's activity on behalf of the
Union. I further find that the discharge was caused by
Altman's dissatisfaction with Mueller's attitude and mis-
takes which culminated in a series of complaints about this
employee. Accordingly, I find that the Respondent did not
unlawfully discharge Mueller, and that the General
Counsel has failed to establish a violation of Section
8(a)(3).
C. The Bargaining Order
The record indicates that 67 employees were in the
bargaining unit on September 10-the critical date herein.
Forty-one cards were introduced into evidence to support
the Union's claim of majority status at the time of the
request for recognition. Of this number, 35 cards were
signed and dated prior to September 10.34 The Respondent
contends that 12 of the signed and dated cards cannot be
considered valid. The Respondent argues that they were
represented to the card signers as being for a purpose other
than the purpose set forth on the face of the card.35 The
Respondent further contends that the misrepresentations
were such as to vitiate the language of the card, and the
cards cannot be used in determining the Union's majority
status. The Respondent contends that Kudlick, Vohra,
Schmidt, Garrison, and Keister testified that they were told
by the solicitors that the cards were in no way binding on
them. For this reason, the Respondent argues these cards
are invalid. Respondent further contends that employees
Erlien and Lurey were similarly told by the Union's
attorney that the cards were not binding.
As noted by the Respondent in its brief, it is the totality
of the circumstances surrounding the card solicitation
which determines whether the printed purpose of the card
is vitiated by the representations or misrepresentations of
the solicitor. Levi Strauss & Co., 172 NLRB 732. Although
Erlien and Lurey were told that the cards were not binding,
the information imparted to them did not end at that point.
Both testified that they were at the meeting of the
employees at the Jolly Chef, and there is testimony in the
record that the employees were also told at this meeting
that the cards were not binding in the sense that they
would be obligated to pay union dues or initiation fees.
The employees were informed that their financial obliga-
tions to the Union would not commence until the Union
negotiated a collective-bargaining agreement with the
Respondent. In these circumstances it cannot be said that
the employees were led to believe that they were not
authorizing the Union to act as their bargaining represent-
ative. Accordingly, I find that the cards of Erlien and
Lurey were valid designations of the Union as their
collective-bargaining representative.
Vohra testified that he read the card before filling it out
and that he was informed that the employees were "trying
to get together." Although the Respondent interprets this
as meaning that the card was for the purpose other than
stated on its face, I do not agree. I find that the statement
made to Vohra was not such as to direct him to "disregard
and forget the language above his signature." N L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 606 (1969). Schmidt
signed his card on September 9 at the meeting of the
employees and the union representatives held at the Jolly
Chef. While Schmidt was informed that the card was not
binding, I find, as in the case of Erlien and Lurey that
Schmidt was further informed that the statement "not
binding" meant the employees were under no obligation in
terms of union membership until a collective-bargaining
agreement had been negotiated. Therefore, I find that
Schmidt's card is a valid designation of the Union as his
bargaining representative.
Garrison testified that Meyers told him the card was not
binding on him in any way. However, Garrison further
testified that he kept the cards several days and attended a
union meeting in which the union representatives spoke to
the employees before he turned his card in. At this meeting
the employees were told the ultimate purpose for which the
cards could be used. In these circumstances, I find that
Garrison's card was a valid designation of the Union as his
collective-bargaining representative.
Keister was told that by signing the card he would
protect himself against being fired or action taken against
him for union activity. He was further told that it did not
mean he wanted to be in the Teamsters Union. He
specifically stated that he was never told anything about an
election or that the card was not binding on him. Kiester
read the card completely before signing it. Thus, contrary
to Respondent's contention, I do not find any material
misrepresentation which would cause me to exclude this
card.
Gulati received his original card from Meyers. He was
told that the employees were going to attempt to unionize
the store and if he was for it, to fill out the card. He stated
the card would initiate the procedure by which an election
could be held so that the voice of the employees could be
heard. Gulati misplaced the card and received a second
one from Mueller, which he signed and turned in. On the
basis of these facts, I shall include Gulati's card towards
the determination of the majority status. As the Supreme
Court stated in Gissel,36 "there is nothing inconsistent in
handing an employee a card that says the signer authorizes
34 This group includes the card of Mueller. As I have found that Mueller 35 As previously noted, the cards with unambiguous designations of the
was not unlawfully discharged on September 7, 1 do not include his card in Union as the collective-bargaining representative of the signer
determining whether the Union represented a majority of the employees on 36 Gissel Packing Co, supra, p. 607
September 10
ALTMAN CAMERA CO.
the Union to represent him and then telling him that the
card will probably be used first to get an election"
Abrams signed his card at the Jolly Chef Restaurant and
was told by Meyers that it was a means by which the
employees could get an election and get the Union in the
store. Abrams read the card before signing. He subsequent-
ly attended the meeting at the Jolly Chef where he was told
the cards would give the Union the right to represent the
employees. Considering all of the circumstances, I find that
Abrams' card is a valid designation of the Union as his
collective-bargaining representative.
Morgan testified that he signed the card at the meeting
of the employees at the Jolly Chef. Morgan was told that if
there was sufficient interest among the employees, they
could have an election. He was also informed that the card
would protect him against being discharged for union
activities In view of the fact that Morgan attended all of
the meetings where the alternative uses of the cards were
discussed, I shall include his card in determining the
Union's majority status.
Goldblatt received his card from Meyers. He was told
that he would not have to pay union dues but that if the
Union won an election and a contract were agreed upon,
he would then become responsible for dues. I do not
construe this representation as conveying the thought that
the only purpose of the card was to hold an election.
Accordingly, I include Goldblatt's card
Although the Respondent contends that employee
Markowitz was pressured into signing a card, her testimo-
ny indicates that she was first approached and given a card
in order to get more information about the Union. Before
Markowitz signed her card, other employees talked with
her about the wisdom about having a union represent them
in the store. Markowitz also testified that she read the card
before signing. Under these circumstances, I find that
Markowitz' card is a valid designation of the Union as her
bargaining agent.
Respondent objects to the inclusion of the card of
Kudlick in determining the Union's majority status. In my
judgment, there is validity to the Respondent's objection.
This employee testified that he was told that the cards were
a means of polling the employees to determine if they
wanted an election. Further, that if an election were held
and the Union won, then the card signers would be
members without having to pay an initiation fee. He also
stated that everything hinged upon the election which was
to be held later. In these circumstances, I find that the
representation made to this particular employee was that
the card was for the purposes of an election, and no other.
Accordingly, I will not include the card of Kudlick in
determining the Union's majority status
The card of Hilliard was undated. This card was
stamped as being received by the Regional Office on
September 14-4 days after the Union made its demand
for recognition. Hilliard could not state when she signed
3T The Respondent also argues that the authentication by the handwrit-
ing expert is faulty because there was no proof that the W-4 forms supplied
by the Employer were in fact signed by the employees whose names were
indicated thereon This argument is of little merit The W-4 forms were in
the Respondent's possession, and it is upon these forms, presumably, that
deductions and reports were made to the Internal Revenue Service Aero
Corporation, 149 NLRB 1283, 1287
955
the card, nor could she place the date as being within the
period prior to the demand by the Union. Under these
circumstances, I shall not include the card of Hilliard. Rea
Construction Co., 137 NLRB 1769.
The Respondent takes issue with the authentication of
signatures on seven cards by the handwriting expert. The
handwriting expert compared the signatures on the cards
with the signatures on the W-4 forms executed by the
employees. With the exception of one signature (Gend-
ville), the expert testified that the signatures on the W-4
forms and those on the cards were made by the same
individuals. As to the signature of Gendville, the expert
was hesitant because the signatures were so identical that it
could be said that the card was a tracing. However, the
expert compared the signature on the card to that on the
pledge of support signed by the employees at the union
meeting on September 9. On the basis of this comparison,
he was certain that the signature on the card was written by
the same individual who signed the pledge. Comparison of
signatures on authorization cards with other documents,
especially those in the possession of the Employer, have
long been approved by the Board as a means of
authenticating signatures. I find, therefore, that all of the
signatures authenticated by the expert were in fact the
signatures of the employee-signers, and that the cards are
properly included in determining the Union's majority
status 37
Respondent also contests the validity of the card of
Robert Moy. Moy's testimony is clear that this employee
was told that the sole purpose of the card was to secure an
election. He was informed that signing the card simply
meant that he was on record as requesting a vote regarding
the Union. I shall not include this card in determining the
Union's majonty status.
The signature on the card purportedly signed by Carlos
Velazquez was identified by his father. Velazquez was in
Texas and unable to appear at the trial. The card was
undated but it bore a stamp indicating it had been received
by the Regional Office of the Board on September 10.38
The senior Velazquez credibly testified and identified his
son's handwriting. The Respondent argues that the father
is not a handwriting expert and his testimony regarding his
son's signature was not reliable or probative. I reject these
contentions and find that the card was properly authenti-
cated.
In sum , I find that of the 41 cards submitted in evidence,
the cards of Kudlick, Hilliard, Moy, and Mueller are not
properly includable in determining the Union's majority
status as of September 10, for the reasons cited above.
Accordingly, I find that at the time the Union made a
demand for recognition, it possessed 37 valid authorization
cards designating it the collective-bargaining representative
of a majority of the Respondent's employees in an
appropriate unit.
The General Counsel argues that the Respondent was
38 All of the undated cards, with the exception of Hilliard's card, were
stamped as being received by the Regional office on September 10. In view
of all of the circumstances surrounding the testimony of the card signers
and those who testified about sending cards to the Union, I find that all of
the undated cards, except that of Hilliard , were in fact fully authenticated
and are to be included in the Union's majority. Rea Construction Co, supra
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under a duty to recognize and bargain with the Union on
September 10 because a majority of the employees had
designated the Union as their bargaining representative at
the time of the request. But an Employer can reject a
union's request for recognition and insist upon an election,
"unless he engages in contemporaneous unfair labor
practices likely to destroy the union's majority and
seriously impede the election." Gissel Packing Co., Inc.,
supra, p. 600. But the fact that an employer engages in
misconduct, during an organizing campaign, does not
necessarily mean that the misconduct will support a
bargaining order. Aaron Brothers Company of California,
158 NLRB 1077, 1079. The paramount question to be
determined is whether the unfair labor practices are such
as to undermine the union's majority status and preclude
the holding of a fair election
At first blush it would appear that this case is a classic
one for a Gissel type remedy. The Union acquired a
majority, intervening unfair labor practices occured, and
the support of the employees was lost. But there is more to
be considered here. The loss of employee support for the
Union can be traced directly to other factors. The key
adherents of the organizing effort voluntarily left the
Respondent's employ after initiating the organizing drive
in the store. But perhaps more important, is the fact that
the remaining movants on behalf of the Union became
completely disenchanted and alienated by the manner in
which the union representatives dealt with them and the
tactics used to sustain organizing drive. Moreover, Moy,
who was instrumental in circulating the petition renounc-
ing the Union, testified that many of the employees were
disturbed because the Union was attempting to achieve
recognition without giving the employees an opportunity to
express their preferences by secret ballot.
On balance, I am of the opinion that the unfair labor
practices here did not result in the loss of employee support
for the Union. Indeed, it is evident that after the discharge
of Mueller, the employees were more solidly behind the
Union than ever before. Rather, I find that the loss of
union support was due to the organizing tactics of the
union representatives, which alienated the employees.
I further find that the unfair labor practices found herein
are not likely to occur again, and their impact can be
dispelled by the posting of a notice. In sum, I do not find
that the misconduct would prevent a holding of a fair
election after the effects of the unfair labor practices have
been dissipated. Accordingly, I find that a bargaining
order is not warranted in this case. New Alaska Develop-
ment Corp., 194 NLRB 830.
CONCLUSIONS OF LAW
1. Respondent, Altman Camera Co., Inc., is an employ-
er as defined in Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) of the Act.
2. Warehouse and Mail Order Employees Union, Local
743, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening employees with economic loss, loss of
existing benefits, and possible job loss, and by making
unlawful inquiries as to employee sentiment regarding the
Union, the Respondent, by its agents and supervisors,
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act, and
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The Respondent did not violate Section 8(a)(3) of
the Act by discharging Walter Mueller on September 7,
1971.
5. The Respondent did not violate Section 8(a)(5) of
the Act by refusing to recognize and bargain with the
Union as the collective-bargaining representative of a
majority of its employees.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend the issuance of
an order that it cease and desist therefrom and that it take
certain affirmative action necessary to effectuate the
policies of the Act.
Accordingly, upon the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER39
Respondent, Altman Camera Co., Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
sympathies or activities.
(b) Promising employees benefits or improvements in
their terms or conditions of employment if they refrained
from supporting the Union, or any other labor organiza-
tion.
(c) Threatening employees with loss of existing benefits if
the Union became their collective-bargaining representa-
tive.
(d) Threatening employees with possible loss of their jobs
and economic loss if the Union became their collective-
bargaining representative.
(e) In any other manner interfering with, restraining or
coercing employees in the exercise of the right to self
organization, to form labor organizations, to join or assist
the above-named labor organization or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activity for the purpose of collective bargaining
or their mutual aid or protection, or refrain from any and
all such activities, except to the extent that such rights may
39 In the event no exceptions are filed this Order as provided in Section Regulations, be adopted by the Board and become its findings, conclusions,
102.46 of the Rules and Regulations of the National Labor Relations Board, and Order, and all objections thereto shall be deemed waived for all
the findings, conclusions, recommendations, and Order herein, shall as purposes
provided in Section 10(c) of the Act and in Section 102 48 of the Rules and
ALTMAN CAMERA CO.
be affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act.
(a) Post at its store in Chicago, Illinois, copies of the
attached notice marked "Appendix." 40 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the authorized
representative of the Respondent shall be posted immedi-
ately upon receipt thereof, and shall be maintained for 60
4° In the event this Order is enforced by ajudgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
957
consecutive days thereafter, in conspicuous places includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days of the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the
complaint setting forth violations not specifically found
herein be dismissed.
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "