Bonwit Teller, Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1968

170 N.L.R.B. 399 (N.L.R.B. 1968)

BONWIT TELLER, INC
Bonwit Teller , Inc. andLocal 291, Retail , Wholesale
& Department Store Union , AFL-CIO and Local
300, Retail Clerks International Association,
AFL-CIO. Case 13-CA-7534
March 18, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On August 17, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recom-
mended that the complaint be dismissed with
respect to these allegations. Thereafter, the General
Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision, supporting briefs, and
answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The'Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Bonwit Teller, Inc.,
Chicago, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.l
'The Trial Examiner's Recommended Order includes a provision, which
we hereby affirm, that the Regional Director should conduct the elections
directed by the Board in Bonivit Teller, Inc , 159 NLRB 759
399
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This
proceeding, with all parties represented, was heard
before me in Chicago, Illinois, on various dates
between February 7 and 23, 1967,1 pursuant to a
charge filed on July 18 and complaint issued
November 1, 1966. The complaint alleged that
Respondent (herein sometimes called the Com-
pany) violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act. Respondent has denied
commission of the unfair labor practices.
All parties appeared' and were afforded full op-
portunity to be heard and to examine and cross-ex-
amine witnesses. All waived oral argument at the
end of the hearing. Briefs were received from
General Counsel, Respondent, and the Intervenor.
Upon the entire record,' the briefs, and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT; THE LABOR
ORGANIZATION INVOLVED
Respondent, a New York corporation with its
principal office and place of business in the city of
New York, is engaged in the retail sale of women's
clothing and accessories in several States. The only
facility here involved is Respondent's retail store in
Chicago, Illinois. During the - year preceding the
complaint, Respondent's gross sales exceeded $1
million and its purchases and shipments directly in
interstate commerce from points outside of Illinois
exceeded $100,000. I find that at all material times
Respondent has been and is an employer engaged
in commerce within the meaning of the Act; and
that assertion of jurisdiction here is proper.
Local 291, Retail, Wholesale & Department
Store Union, AFL-CIO (the Charging Party, herein
called RWDSU or the Union) and Local 300,
Retail Clerks International Association, AFL-CIO
(the Intervenor, herein called RCIA or Retail
Clerks), are labor organizations within the meaning
of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events; the Issues
In late summer of 1965, the Union (RWDSU)
commenced a campaign to organize Respondent's
' The original hearing, opened by another Trial Examiner on January 17,
1967, was closed on January 19, 1967, after that Trial Examiner
disqualified himself The instant hearing is a de novo hearing
2 The Intervenor did not participate in the hearing, merely having filed a
brief in opposition to issuance of a Section 8(a)(5) order against Respon-
dent
3 As corrected by my order on notice dated July 25, 1967 Respondent's
motion to modify that order is granted in the respects stated in paragraph I
in the motion . Decision on its further motion to reconsider my previous
denial to correct the matter stated in paragraph 2 of said motion is unessen-
tial, since Respondent 's proposed changes would not affect the decision in
this case.
170 NLRB No. 55
400 DECISIONS OF NATIONALLABOR RELATIONS BOARD
nonselling employees in the Chicago store, and held
its first organizational meeting on August 31,
1965.4 The Union thereafter distributed literature
and solicited authorization cards. Literature - dis-
tributed in September stressed the advantages of
unionization and advised the recipients that "Once
a majority of non-selling employees at your store
have signed cards we will take the `necessary legal
steps to establish the union as your Bargaining
Agent."
Respondent sought to counteract the Union's ap
peals through literature of its own. In a September
27 letter, to employees, General Manager Kelly
pointed out that union membership would bring
"financial burdens in the form of dues and assess-
ments," ' and "forced" union meetings and picket-
ing. He told them that "the Union can guarantee
you nothing except these burdens" and invited
them "to chat with [him]' about any questions
[they] may have concerning this or any other
matter." In like tone, Kelly's letter of September 28
cautioned employees not to sign union membership
cards -lest they thereby give up their "right to
choose" through an election. Kelly appealed to em-
ployees not _ to surrender their "individual
freedom," urging that they resist the "dictation" of
"union bosses and shop stewards." He made similar
remarks - in: a storewide -meeting • held around the
same time.
In early, October, the Retail Clerks, (RCIA, Local
300) likewise sought to organize Respondent's em-
ployees. Like, RWDSU, RCIA distributed union
literature, and solicited signatures on authorization
cards. Thus, in a leaflet distributed on October 8,
RCIA stated -that a number of store employees
"have contacted our office and asked questions how
to get a union" at the Company. It went on to say
that RCIA "already know[s] from discussions with"
workers that the employees, desired improved
wages and benefits. After explaining Board certifi-
cation procedures, the leaflet concluded, "So if you
want better things at work and at home send in the
enclosed card. DO IT TODAY." In another leaflet,
distributed on October 13, RCIA again appealed- to
store employees to organize themselves "now" for
"a better future" and requested them to mail in the
RCIA authorization cards. Respondent's store
manager (Kelly) was-aware of RCIA's, as well as
RWDSU's, union activities, including RCIA
representatives' visits-to employees' homes.
On October 19, RWDSU requested recognition
as majority representative of Respondent's non-
selling employees (excluding certain categories
such as fitters and sewers), and on the, next day
(October 20) it filed an election petition. On Oc-
tober 26, Respondent rejected this request on the
ground that it did not "believe" that RWDSU
represented "an - uncoerced= majority" of its em-
4 Unless otherwise specified , subsequent date references are to August
1965-July 1966
s Globe Machine and Stamping Co , 3 NLRB 294, 300
ployees "in an appropriate unit," -suggesting that
"all issues" be resolved by a Board election. As
hereafter-set forth in greater detail (infra, Section
C, 1), a representation hearing was thereafter held
(in November) wherein Respondent and also
RCIA, as Intervenor in the proceeding, took the
position that only an overall unit of both selling and
nonselling employees (i.e., a storewide unit) was
appropriate. On June 20, the Board issued its Deci-
sion and, Direction of Elections, holding that
although the storewide unit was "an appropriate
unit on its face," the narrow nonselling unit favored
by RWDSU also was appropriate. Stating that "the
appropriateness of the nonselling unit 'will depend
finally upon the desires - of the nonselling em-
ployees," the Board directed a "Glbbetype" elec-
tion to enable the nonselling employees to decide if
they wanted -separate representation by RWDSU.
However, the election, scheduled for July'20, was
never held, since RWDSU filed the unfair labor
practice charges in the instant caws -
The basic issues in this case, are: (1) whether
Respondent violated Section 8(a)(1) of the Act by
acts of interference, restraint, and coercion, includ-
ing interrogations , promises of benefits, and threats
of reprisals; and- (2) whether Respondent unlaw-
fully refused to bargain with' RWDSU in-violation
of Section 8(a)(5) and (1).-Subsumed in the latter
issue are questions as to the propriety of RWDSU's
recognition demand and of its, majority status, the
effect of RCIA's contemporaneous rival, organiza-
tional campaign and conflicting recognition de-
mand, Respondent's claimed good-faith doubt con-
cerning RWDSU's majority status, and whether the
Section 8(a),(5) allegations are barred, by the time
limitations of Section 10(b) of the Act.
B. Interference, Restraint, and Coercion
General Counsel contends that subsequent to,the
statutory cutoff date (January 20,,_1966), Respon-
dent inaugurated a program of meetings between
management and groups of employees wherein it
uttered coercive statements. He also contends that
similar coercive utterances and statements were
made in individual meetings , with employees.
Finally, he claims that Respondent unlawfully
granted employees wage-raises and -other benefits in
order to dissuade them from union activity.
1. The meetings between management and
employeegroups
Several employees (RWDSU adherents) called
by General Counsel testified that they attended two
or three meetings in General Manager Kelly's office
during the months of May, June, and July at which
coffee and rolls were served. The meetings, held on
6 It is the Board's policy not to conduct elections while unfair labor prac-
tice charges are pending ..N.L.R.B. v. Auto Ventshade, Inc., 276 F 2d 303,
307 (C.A 5)
BONWIT TELLER, INC.
company time, were normally attended by 8 to 10
employees from different departments and by
managerial officials, including Kelly, Murray, and
Glave. According to employee Jones, at the outset
of the meeting Kelly announced that the purpose of
the- gathering "was to give the employees a chance
to air their views about improvements or things
they wanted to talk about concerning the store and
its policies and what not." Employee Jackson
testified that Kelly told them that it was "an infor-
mal meeting," and they could discuss "anything,"
and that the object of the meeting was "to help im-
prove the communications in the store." A wide
variety of subjects came up at these get-togethers,
ranging from weather and television programs to
improvements in working conditions and effective-
ness of the pending organizational drives. Em-
ployees would volunteer, or Kelly would solicit,
suggestions for improving facilities such as the
recreation and washrooms, the parking lot, and the
wrapping area. Kelly would take notes and promise
to do what he could. At one meeting Kelly told the
employees that he was appointing a head cashier
"to help them out." In some meetings- he an-
nounced the opening of a new sundeck in June.'
Union leaflets and company antiunion literature
were common subjects of discussion.' At times em-
ployees and at other times Kelly raised the union
question. Kelly would compare existing company.
benefits with those promised by the Union and
would explain the election procedure. When em-
ployee Duffy asked Kelly at one meeting, "What is
it . . . that the Union is promising" in relation to
company benefits, Kelly turned to employee Butler
(an RWDSU adherent) and said, "Marie, you have
been to a number of meetings, I am sure. Stand up
and let Miss Duffy know what has gone on from
time to time."9 Butler quoted Kelly as saying that
"he had people : . . come to him and let him know
just what was going on in the Union, that was keep-
ing him posted on everything that was going on."
I The sundeck, available to off-duty employees (e g , during lunch
periods ), was opened on June 17 Kelly testified that he had urged Respon-
dents main office in New York (Mr Steck) to authorize construction of
the sundeck "a number of times before " in the summer of 1965, that he
could not obtain authorization therefor for budgetary reasons until July or
August 1965, and that he "probably" told employees about this new facili-
ty "a couple of months" before its completion, i.e , March or April 1966
He pointed out that other Bonwit Teller stores, including those at New
York, White Plains, and Cleveland had sundecks, the one in Cleveland
built by him while managing that store 5 years before his arrival in Chicago
"Respondent's letters to the employees after the Board's June 20 Deci-
sion and Direction of Elections appealed to employees not to vote for any
union , particularly RWDSU because it sought to represent a narrow unit
composed of only nonselling employees Thus, Kelly's June 29 letter stated
in part
At the insistence of the RWDSU Local 291, a handpicked group,
which the union calls non-selling , has been segregated from the em-
ployees in the rest of the store. This means that Local 291 does not
want this group to have the equal rights and opportunities of promo-
tion to better jobs on a storewide basis which the other employees en-
joy
We do not believe that a majority of our employees desire a labor
union in any group in Bonwit Teller We believe that segregation in
401
Employee Jackson similarly quoted Kelly as -saying
he "knew who attended the meetings and when the
Union meetings were being held."" Employee
Jones testified credibly that in meetings she at-
tended Kelly also mentioned the union president's
"large expense account" and "fleet of cars at his
disposal" which came out of union dues and that
Kelly stated the Union "can't get you anything at
all, or do anything but make promises." Kelly
showed the employees a newspaper clipping report-
ing that a union in Wisconsin had "fined" a
member for not attending a meeting scheduled on a
Sunday morning when she went to church. He com-
mented that Bonwit employees signing cards "were
signing away [their] rights," including the "right to
do [their] own thinking." He also distributed copies
of RWDSU's constitution (apparently printed at
Respondent's expense) asking the employees to
read "carefully" certain portions underlined in red
dealing with what he apparently regarded as bur-
dens of union membership (e.g., financial and other
employee obligations, officers' salaries and powers,
limitations on local autonomy). Among Kelly's
marginal notations is the comment that the Union
was "trying to segregate, split up,.destroy the unity"
at the store.
Kelly commented on the Union's organizational
drives at nearby stores. Referring to the Union's
campaign at Andrew Geller, he said the "men were
out walking up and down the street and in awfully
cold weather and [the Company's employees]
could be placed in the same predicament if [the
employees] had this union."" Referring to the cam-
paign at Saks Fifth Avenue, he said that "even
though they had won an election they hadn't made
any negotiations at all."" -
Employee witnesses testified, however, that Kelly
did not question them as to their union sympathies;
that he assured them that no one would be penal-
ized for union activity, although employees could
still be fired for cause; and that he also asserted
any form is evil We believe that all of our employees should be treated
with equal opportunity if the RWDSU Local 291 believed in equal op-
portunity for all employees, then they would not have segregated a
particular group from the rest of the employees. if this Union really
had the interest of these employees at heart, they should want these
employees to be part of the storewide group
Don't let this union classify you as a second -class citizen Insist on
retaining all the rights and privileges which you now enjoy as part of a
storewide group. -
° Butler replied that anyone interested in the matter "can go and find out
[herself] what is going on [at] the union meeting . I don't have to tell you."
10 While Kelly admitted telling employees that he " knew there were
meetings going on," he denied saying he knew "who was attending" them I
credit Butler and Jackson
" Based on the credited testimony of employees Jones and Jackson
Although first denying making any statements concerning the Andrew
Geller strike and insisting he commented only with respect to hardships in a
then airline strike, Kelly later retracted his denial
12 Based on the testimony of Jackson and Settles Kelly denied making
any reference to Saks Fifth Avenue, indicating he was not aware of any
strike at that store
350-999 0 - 71 - 27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the employees were free to vote for either
RWDSU or RCIA, although he preferred they
voted for "neither."
In several meetings, particularly in the cashiers'
group meeting prior to the scheduled July 28 elec-
tion, Kelly expanded upon the "segregation" theme
which Respondent had stressed in its literature to
employees (supra, footnote 8).13 He told employees
that by promoting RWDSU they "had excluded
[themselves] from other employees of the store,"
thereby "segregating" themselves; that he believed
the Union was trying "to segregate one group of
employees from another"; that the Company was
"against segregation in any form"; and that if
RWDSU came in he "wouldn't be able to treat
[them] as an overall group, he would have to treat
[them] separate" and they might "not enjoy the
same benefits as the other employees." General
Counsel's employee Witnesses also testified that
Kelly stated that he would not bargain with
RWDSU in the small selling unit. Thus, employee
Butler quoted Kelly as saying he "wouldn't sit down
and bargain with the union." Employee Jacobs re-
called Kelly's stating that if the employees voted for
representation in a storewide unit (favored by the
Company) he would bargain, but if they voted for
bargaining in a small unit he "would simply not sit
down and bargain with them at all."
Kelly admitted discussing the subject of "segrega-
tion " with groups of employees after receiving the
Board's June 20 Decision and Direction of Elec-
tions. He testified, "I explained to them that if the
RCIA won in the overall unit, that then I would be
bargaining with them for the entire store, but if the
RWDSU won in the small unit, then I wouldn't be
bargaining with them for the entire store." He de-
nied telling them, however, that he would not bar-
gain with RWDSU "regardless of the results of the
election," explaining, "I said that I wouldn't be bar-
gaining with them, if they won in that election I said
I would not be bargaining with them for the entire
store." When asked if he said "anything else,"
Kelly replied, "I probably said many things in that
meeting because there was a great deal of discus-
sion about the ballots and the reason for the
separate election and so forth." He frankly ad-
mitted that it was "absolutely" his "objective" from
the beginning of the organizational drive "to per-
suade the employees not to support" RWDSU.
I credit the testimony of General Counsel's em-
ployee witnesses that in discussing the "segrega-
tion " question, Kelly also told them that he would
not bargain with RWDSU. The testimony of the
employees, given independently as separated wit-
nesses, was convincing, mutually consistent, and
withstood skillful cross-examination. On the other
hand, Kelly frequently pleaded lack of memory as
to what transpired at meetings, particularly the
cashiers' meeting. While he stated that he took
notes on matters discussed, he produced none,
claiming they had been destroyed. Even more sig-
nificant is the fact that Respondent produced no
witnesses who were present (not even its official
Murray) to corroborate Kelly's version.t4
On July 15 (while the Board election was still
scheduled for July 20), Respondent distributed a
letter announcing the holding of a "victory party"
after business hours on July 19. Announcement of
the party also was made in group meetings with
Kelly. The employees were told that there would be
a buffet supper and door prizes consisting of one
color and one black-and-white television set and six
transistor radios. The party, held as annnonnced,
was attended by about 200 employees. Attendance
was voluntary and all store employees were invited.
Kelly testified that the prizes were "principally to
insure good attendance," and the party itself to re-
lieve the "tension" and "strain" of the intensive
and divisive organizational campaign. He conceded
that the affair could have been held after the elec-
tion, but that "psychologically it would be better to
have it before."
2. The individual meetings
a. Hazel Jones
(1) Jones received a $4 weekly wage increase on
January 31 (infra, footnote 22). Approximately 2
weeks earlier,15 General Manager Kelly had asked
her if she knew "who started this business about the
Union." When Jones replied that the "girl who
started it . . . was no longer in the store," Kelly
asked why they wanted a union. Jones cited as an
example herself, where she was "the principal wage
earner in [her] family," but was left with less than
$50 per week take-home pay. Kelly responded, "I
can do something about that. The [periodic wage]
reviews don't come up until April and I [Jones]
don't have to wait. I can do something about that
now, and I will.""
(2) In May or June 1966, Kelly came to Jones'
desk in the wrapping area and started a conversa-
tion about the Union. Kelly asked Jones "what are
the benefits you expect to get" out of the Union.
When Jones mentioned "the different benefits"
13 The parties stipulated that the nonselling employees for whom
RWDSU sought representation were predominantly Negroes.
14 In crediting the employees ' testimony, I have not overlooked their
sometimes vague, and in some instances palpably erroneous , testimony that
a paragraph in a pretrial statement given to Respondent's attorney was
neither shown nor read to them by counsel . It should be noted that at least
two employees ( Butler and Jacobs ) did not deny seeing the paragraph in
question
15 While unable to "recall the exact date," Jones fixed it "at least 2
weeks" before the raise or the "earlier part" of January
's The above findings are based on the credited testimony of Jones. Fix-
ing the conversation in December , Kelly admitted telling Jones he
"thought" he "might be able to do something" about a wage increase for
Jones , but denied making the statement in a union discussion context
BONWIT TELLER, INC.
they "might get," citing as an example "a better
health plan," Kelly said, "You would give the
Union credit for that, but I have been working on it
for some time and it [a health plan] just came
through." Kelly also said, "The Union can get you
nothing, can't get you anything at all" and that it
could only "make promises." Kelly further said, "I
know about this Union's meetings and I know who
attends them, and why would you want to be con-
nected with such a movement as this. "17
(3) After returning from sick leave in June
1966, Jones asked Kelly (who had arranged loans
for her before) for a $200 loan, stating she had
been off work for a month and needed it to pay
bills. Jones further stated she had applied for sick
pay benefits but had not received them. Kelly told
her that she was "not a friend of Bonwit's" and
should see her "friends" at the Union if she needed
"a favor." Kelly promised to let her know.18
(4) In May to July, Supervisor Flora Levine con-
versed with Jones some three or four times about
the Union. Jones testified that they were "short
conversations, more or less comments" in which
Levine would remark, "How's the union, what's the
state of the union," or "What did you all talk about
at the old union meeting?" Jones conceded that she
andLevine were quite friendly and that Levine put
the questions "in a more or less joking manner."
Jones testified that she would "just pass it [Levine's
question] off lightly," or would ignore Levine, or
reciprocate with a question of her own as to what
went on at a supervisors' meeting. Jones' active
union role in RWDSU was a matter of common
knowledge.
b. Marie Butler
In September 1966 Butler was one of a group of
employees scheduled to participate in a "morale
survey" (infra, footnote 24). While awaiting the
group's arrival, Kelly asked her if she attended
"most of the union meetings." When Butler
acknowledged that she did, Kelly asked "Why is it
that they pick certain people to go to those
meetings? Why is it that they don't do like we do at
the store .... We call everybody." Butler answered
that everybody could go to union meetings. Kelly
then mentioned the picketing at the neighboring
Saks Fifth Avenue store, stating, "I heard they are
not going to get any place in what they are doing."
Reverting to the subject of union meetings, Kelly
said, "You know, I have certain people that come
to me and let me know whenever you are having
one of the union meetings and I get to find out just
what was going on." He also asked Butler if she had
"Based on credited testimony of Jones Kelly only denied saying that he
knew about the Union's meetings and the identity of its attendants , without
giving his version of the incident.
's Recalling the incident , Kelly denied telling Jones to see her union
friends about the loan. Kelly testified that after finding out that Jones
would receive $250 in sick benefits the next week , he concluded that there
was no "need for the loan" and instructed his assistant , Murray, to notify
403
attended the union meeting at which Dr. Martin
Luther King was present.'9
3. The promotion of Corine Wright
In the summer of 1966, Respondent passed out
"bulletins" announcing the promotion of stock
clerk Wright, a Negro, to assistant manager in the
Junior Department on the third floor. The appoint-
ment, effective September 19, involved a $10-per-
week raise. Employee Jones testified that this was
the first such promotion for a Negro in the store.
4. The wage increases
Respondent customarily conducts semiannual
(spring and fall) wage reviews in all of its stores.
The store manager's wage raise recommendations
are submitted to the personnel director at the New
York (main) office, who then personally reviews
each recommendation with the store manager. In
some cases, the final decision is made by the com-
pany president.
Directly in issue here are two company wage in-
creases since January 20, the statutory cutoff date,
i.e., those for January 31 and June 20. Relevant for
background purposes, is Respondent's fall wage
review, leading to its October 1965 wage increases.
Personnel Director McCormick testified that in
accordance with normal procedure she visited the
Chicago store in September 1965 to review Store
Manager Kelly's recommended wage increases for
individual employees. Although Kelly had urged ap-
proval of all proposed raises because there was "a
very tight labor market" in Chicago, some, recom-
mendations were turned down or reduced on the
ground that the cost was too great "in terms of per-
centage sales." McCormick testified that in early
January Kelly requested her to reconsider these
wage actions, in view of the "very excellent Christ-
mas season." Although another of Respondent's
"semi-annual" wage reviews was not yet due, a full-
scale review of practically all departments was con-
ducted in January. Kelly and McCormick testified
that as a result of this special review, wage in-
creases were given to employees whose recom-
mended increases had been entirely disallowed or
reduced in October, as well as to new (or recently
hired) employees who were not yet eligible for
review in October.
The record does not disclose the total number of
wage increases granted in October, although it
shows that at least 18 of 40 to 54 unit nonselling
Jones to that effect. Jones conceded that Murray had notified her of the
forthcoming sick pay benefits
''' Based on the credited testimony of Butler, Kelly admitted asking But-
let, "what was going on with the union" and stating, "you attend the
meetings, you know what 's going on . What are they promising you that you
don't think you can get here"
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees received increases (G.C. Exh. 43).2°
Respondent could produce no records showing the
employees, whose recommended increases had
been disallowed or reduced in October, received in-
creases in January, claiming that their performance
review sheets for the October study had been
"lost."21 However, Respondent's records show that
in January increases were received by 13 nonselling
employees, of whom 7 had received increases also
in October (G.C. Exhs. 17 and 43).22 Twenty other
(selling , etc.) employees also received wage raises
(G.C. Exh. 17). According to Respondent's Janu-
aryjob performance review sheets (Resp. Exhs. 18
to 35, G.C. Exh. 45), employees in 14 of Respon-
dent's 19 departments participated in the January
wage raises.
On June 20, following another wage review,
Respondent granted further wage increases to 32
nonselling employees (G.C. Exhs. 17 and 43).
About 72 other employees also received increases.
For at least six nonselling employees (Copeland,
Hudson, Jackson, Jordan, Tibbs, and Ethel
Wright), this was the third wage increase since Oc-
tober.
On December 5, Respondent granted still
another wage increase , but only to 9 of the 40 to 54
nonselling unit employees (G.C. Exh. 17); 27 other
employees also received raises. For two unit em-
ployees (Hazel Jones and Iona Foster), this was the
third wage increase in 1966.
The record indicates that the pattern of wage
raises since October differed sharply from that in
prior years. Thus, Jackson, whose last raise had
been in December 1963 received three increases
from October (1965) to June (1966). Likewise
Helen Brown who had received no raises between
May 1964 and October 1965 received three in 14
months. So, too, in the cases of Helen Foster,
Anikia Jacobs, and Benjamina Copeland, the latter
receiving four increases since October. Likewise
Emma Davis, who had received no raises in over 2
years before October, then received three. Some of
these employees and others (including Hazel Jones
and Settles) credibly testified that Respondent had
turned down requests for raises prior to October
1965.
5. Conclusions on interference, restraint, and
coercion
a. Initiation of employee group meetings
General Counsel contends that the initiation of,
as well as the utterances in, the Kelly group
meetings were coercive and illegal. Conceding that
"an employer is free to lavish its money on coffee
and rolls for employees, to have them spend part of
their working time in conversation with the General
Manager, and to improve `communications,"' he
argues that the sole object of the meeting herein
was "to defeat a then-current" union campaign.
While I agree with General Counsel's contention
that some of Kelly's utterances and conduct at the
meetings were coercive, I do not believe it has been
established that their initiation was unlawfully
motivated.
The record establishes, and I find, that Respon-
dent, as part of the Genesco complex,23 had form-
lated a management-employee communications
program prior to advent of the Union. Carney,
a Genesco official, credibly testified that Genesco's
program dates back to 1953; that it includes
group meetings between supervisors and em-
ployees, as well as written communications from
management; that the program has been in opera-
tion in various Genesco companies; and that when
the current president (Mildred Custin) of Bonwit
Teller took over that position in 1964, she began to
implement the program in all Bonwit Teller stores.
Kelly credibly testified that in the summer of 1965
his superior in New York (Steck) asked him to im-
plement the communications program in Chicago
by established Genesco procedures, including cof-
fee meetings with small employee groups; that
because of the press of business, implementation
was deferred until Kelly could obtain a personnel
manager to assist him; and that when he obtained
such assistant (Murray) in January 1966, he im-
mediately proceeded to set up small group
meetings, approximately two per week, which have
continued since.
In view of the foregoing and the entire record, I
find that Respondent's communications program,
including the small employee group meetings here
20 As noted infra (Section C, 3, ( e)), while General Counsel claims that
the appropriate nonselling unit included "no more than 40 employees,"
Respondent contends that it included 54 For purposes of the discussion
herein only, it will be assumed that the nonselling unit comprised 54 em-
ployees. In its Decision and Direction of Election (supra, Section A, I ), the
Board found that Respondent employed approximately 193 full-time em-
ployees, of whom 115 were selling and 78 (including 23 alteration and 6 of-
fice employees) were nonselling employees, the selling , alteration, and of-
fice employees were excluded from the unit sought by RWDSU.
21 Store Manager Kelly testified that normally performance sheets are
preserved for 3 years
22 Although the great bulk of the January increases were $2, Hazel Jones
(the most prominent Unionist ) received $4 Another active union em-
ployee, Anikia Jacobs, who received only $ 2, had also received $2 in Oc-
tober Copeland , who received $2 in January , had received $3 in October
23 Bonwit Teller , Inc , is one of 38 companies operated by Genesco
There are I I Bonwit Teller stores in various cities, including New York,
Boston, Philadelphia , and Chicago Only the Boston store is unionized, it
has a storewide unit
BONWIT TELLER, INC.
in issue , was decided on and formulated prior to in-
ception of the organizational drives herein; and that
the institution of such meetings was motivated by
legitimate business considerations to improve
management-employee communications and not
for antiunion or discriminatory reasons. See Mont-
gomery Ward'& Co., 150 NLRB 1374, 1377-78. Cf.
The Jefferson Company, Inc., 110 NLRB 757,
767-76924
b. The group meetings
I find that Respondent through General Manager
Kelly interfered with, restrained, and coerced em-
ployees in his store in the exercise of their rights, in
violation of Section 8(a)(1) of the'Act by the fol-
lowing:25
(1) Kelly's statements that he would not bargain
with -RWDSU. His definitive remarks on this point
rebut the suggestion that he. -only meant to convey
the Company's position that it was not legally
obligated to bargain with the Union - in a narrow
nonselling appropriate unit, at least until disposition
of the unit issue in the pending representation
proceeding. -
(2) His statements that he had people -coming
to him to report on union meetings and that he
knew who attended such meetings. These remarks
tended to create the impression in the minds of em-
ployees that union activities were under Respon-
dent's'surveillance.
(3) His request to employee Butler to stand up
and,relate what had transpired at union-meetings.
(4) His announcements of a "victory party,"
with a buffet- dinner and valuable door prizes (in-
cluding television sets) to be held on the eve of the
election, in anticipation of the Union's defeat.
Under all the circumstances,, it is reasonable to
infer that Respondent's action was designed to
"psychologically" put the employees in a frame of
mind to vote against the Union. In the context of
Respondent's antiunion campaign, - the unusual
character, of its gratuity (there is no evidence -of
prior employer-sponsored employee parties) is
reasonably construable as an inducement toreject
the Union m' the anticipated election. Cf. The Hills
Brothers Company, 67 NLRB 1249, 1255, enfd_ 161
F.2d 179 (C.A. 5).
I find that the following conduct did not con-
stitute unlawful interference, restraint, and coer-
cion:
29 For similar reasons, I find that Respondent 's "morale surveys" in Sep-
tember 1966 and in the prelimitation period July 1965, were not instituted
for discriminatory reasons. These surveys, like the group meetings, were
voluntary and an integral part of Respondent 's direct employee communi-
cation. program , were conducted in Genesco companies whether or not
unionized , and were designed to ascertain the employees' attitudes toward
their pay and working conditions and not their union r'mpathies Cf Mont-
gomery Ward.d Co., supra, at 1377-78. Respondent is of course liable for
coercive conduct engaged in during the course of the surveys as well as in
the group meetings
405
(1) Kelly's noncoercive references to existing
benefits, his critical remarks about union officials
and provisions in RWDSU's' constitution, and his
comments (not shown to be untruthful) about the
strike and status of bargaining at -the neighboring
Andrew Geller and Saks Fifth Avenue stores. These
statements constituted privileged free speech and
legitimate argument.
(2) His announcement of a new sundeck and
the opening of the sundeck on June 17. The pre-
ponderance of evidence does not support a finding
that this improvement was designed to defeat the
Union, the uncontradicted evidence showing that
Respondent has built similar recreational facilities
at other locations and that the one in Chicago was
planned before the organizational drive.
(3) His announcement that he was appointing a
head cashier, which constitutes a reasonable em-
ployer communication to employees on chain of
management authority.
(4) His statements that - the unit sought ' by
RWDSU was a "segregated" unit and that by
promoting it the employees were excluding them-
selves from the rest'of the store. While the matter is
not free from doubt,- Kelly's statements to the
predominantly Negro nonselling employees appear
to be appeals to retain the racially integrated
character of a storewide unit favored- by Respon-
dent, rather than' inflammatory, irrelevant appeals
to racial prejudice. Cf.' Aristocrat Linen Supply
Company, 150 NLRB 1448. His statements are
distinguishable from impermissible "appeals or ar-
guments which can have no purpose except to in-
flame the racial feelings of voters in the election,"
Sewell Manufacturing'Company, 138 NLRB 66, 71.
C€.: General Steel Products, Inc., 157 NLRB 636,
640. As the Board has stated, "a relevant campaign
statement is [not] to be condemned because it may
have social overtones"- and if "temperate in tone,
germane, and correct factually" will not even con-
stitute grounds for setting aside an election. Sewell
Manufacturing Company, supra, 71. Cf. Baltimore
Luggage Company, 162 NLRB 1230. Kelly's further
statement that if the, employees selected'RWDSU
as bargaining representative he would -have to treat
them "separate"'so that they might "not enjoy the
same benefits as other employees," is at best am-
biguous. It is consistent with the, expression of a
view that if he were under legal compulsion to deal
with RWDSU, he would, negotiate separately their
working conditions and benefits; and, further, that
1u In concluding that the acts and statements enumerated herein were
coercive and tended to interfere with employee self-organizational rights, I
have evaluated the conduct in the light of the total situation , rather than as
disjointed events in isolation, Cf., N L.R B v. Morris Fishman and Sons,
Inc, 278 F,2d 792, 796 (C.A 3), N.L R B. v Daniel Construction Co , 341
F 2d 805 (CA 4) 1 have considered the totality of Respondent 's conduct
in the organizational campaign , including its opposition to unionism, the
rank and role of the individuals engaging in, the conduct, and the
reasonably inhibitory effect of the statements upon the employees to whom
directed. -
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a storewide, racially integrated unit would be more
effective and beneficial for the employees than a
small almost all-Negro nonselling unit. Thus con-
strued, the statement constitutes legitimate em-
ployer campaign propaganda.
c. Individual meetings
I find that the following conduct tended to inter-
fere with, restrain, and coerce employees, in viola-
tion of Section 8(a)(1) of the Act:
(1) Respondent's grant of a $4 wage increase to
employee Jones on January 31. The conversation
leading to the wage action-including Kelly's inqui-
ries as to what the employees hoped to get out of
the Union and why they wanted a union, and Jones'
responsive complaint that she was not making
enough money-reasonably supports the inference
that the wage grant (higher in amount than Respon-
dent's usual $2 to $2.50 grants) was motivated by
Kelly's desire to discourage Union adherence.26
(2) Kelly's May or June statement to Jones that
he knew about the Union's meetings and the identi-
ty of attendants, which tended to create an impres-
sion of surveillance of union activity.
(3) His statement to Jones, in response to the
latter's June request for a $200 loan, that she was
not a friend of Bonwit Teller and that she should
look to her union friends for favors. Kelly's state-
ment conveyed the impression that Jones' union
loyalty and activity (Jones was RWDSU's most ac-
tive member) had an inhibitory effect on future
company loans and favors.
(4) His September 1966 interrogation of Butler
as to whether she had attended union meetings and
his statement that he had been advised about and
knew who attended union meetings.
I find that the following conduct did not con-
stitute unlawful interference, restraint, and coer-
cion:
(1) Kelly's inquiry of Jones in January as to who
started the Union and his promise to "do something
about" her low wage complaint, since it has not
been satisfactorily established that the incident
took place prior to January 20, 1966, the beginning
of the Section 10(b) limitation period. (See foot-
note 26, supra.)
(2) Supervisor Levine's inquiries of Jones (in
May to July) as to "the state of the Union" and
what went on "at the old union meeting" which, in
context, were no more than casual remarks in an
exchange of banter between the two, and which
neither tended to inhibit nor coerce.
Z" As noted infra, Kelly's remarks about the Union are not found to be
violations since they were made outside the 6-month statutory limitation
period (i.e , before the January 20, 1966, cutoff date) This does not, how-
ever, preclude their consideration as background for shedding light upon
the character of Respondent's conduct within the statutory period (i e , the
wage increase put into effect on January 31) See N L R B v General Shoe
Corporation, 192 F 2d 504, 507 (C A 6), N L R B v Fitzgerald Mills Cor-
poration , 313 F 2d 260, 264 (C A 2)
(3) Respondent's September 19 promotion of
Corine Wright to assistant manager in the Junior
Department. The fact that this was the first such
promotion for a Negro and that it took place during
the organizational drive does not establish that
Respondent's action was motivated by discrimina-
tory considerations.
d. The wage raises
On the basis of the entire record I find and con-
clude that the general wage increases Respondent
granted in January and June 1966 were discrimina-
torily motivated, for the purpose of dissuading em-
ployees from union activity on behalf of both
RWDSU and RCIA, and especially the former. In
reaching this conclusion 1 'rely particularly on the
following factors: both increases, in midst of the
two organizational drives, were far more extensive
in scope and scale than in prior years; they were
also more widespread than in December 1966, the
end of the organizational drives; the January in-
creases stemmed from an apparently un-
precedented extra review; the discriminatory
motivation shown in Store Manager Kelly's conver-
sation with Jones (the Union's leading proponent)
just before Jones received her January wage in-
crease (supra, section B (5)(c)(1)); and the im-
plausibility of Respondent's reasons for its wage
actions. While it is true, as Respondent stresses,
that there is nothing unlawful or improper about an
employer granting benefits because of economic
circumstances unrelated to union organization, the
record does not warrant a finding that the increases
were unrelated to organizational progress.
Thus, the record fails to support Respondent's
contention that its conduct conformed to an
established policy of conducting semiannual wage
raises. Its claim that the January review was
prompted solely by the desire to rectify wages
reduced or turned down in October, is tenuous in
light of the comprehensive nature of that review,
encompassing as it did a full-scale study of every
department in the store. Nor was Respondent able
to produce the October performance review sheets
to identify the employees affected by the October
action. Furthermore, although Respondent con-
tended that the January raises were prompted by
the fact that Chicago had experienced a good year
and a tight labor market, similar considerations
(stressed by Kelly in discussions with his superiors)
did not prompt equally favorable wage action in
October. ' At the hearing Respondent did not even
Z' Personnel Director McCormick gave 19 or 19 2 percent as the specific
percentage sales improvement in 1965 over 1964 Conceding that she
never saw the precise sales data , she stated that she had obtained the per-
centage figure from other officials in New York In a posthearing motion,
General Counsel moved to strike from Respondent's brief all references to
the 19 or 19 2 figure on the ground that Respondent produced no records
to substantiate it Since General Counsel's contention goes only to the
weight to be given to McCormick's testimony, I deny the motion to strike
BONWIT TELLER, INC. 407
attempt to give its economic justification for the
June raises, stating only that they were the result of
its regular May or June wage review. While some of
Respondent's employees would undoubtedly have
received the June increases in the normal course of
events, there was no showing that over 100 of them
would have done so. The number of increases was
not shown to parallel past patterns or to be justified
on other demonstrated grounds.
I conclude that the purpose and effect of Respon-
dent's January and June wage actions were to
discourage union activity, and, therefore, that they
were violative of Section 8(a)(1) of the Act. It is an
unfair labor practice for an employer to take action
"immediately favorable to employees which is un-
dertaken with the express purpose of impinging
upon the freedom of choice for or against unioniza-
tion and is reasonably calculated to have that ef-
fect." N.L.R.B. v. Exchange Parts Company, 375
U.S. 405, 409.
C. The Refusal To Bargain
1. The facts
The complaint alleges that commencing on or
about and since January 20 (the Section 10(b) cut-
off date) Respondent has unlawfully refused to
bargain with RWDSU. As already noted (supra,
section A), RWDSU made its original bargaining
demand on October 19, requesting recognition for
a unit of "nonselling employees," and- offering to
verify its majority status through a neutral card
check. The next day, October 20, RWDSU
filed a petition for a representation election
(13-RC-10737). Several days later when the Union
renewed its request for recognition in a personal
visit to the store, General Manager Kelly informed
it that the "entire matter had been turned over" to
the Company's attorneys in New York, and on Oc-
tober 26, wrote RWDSU rejecting its recognition
demand. Kelly stated the Company did not "be=
lieve" the Union represented "an uncoerced
majority of our employees in an appropriate unit"
and expressed "the opinion" that the representa-
tion petition already filed by the Union should be
processed in the usual fashion "so that all issues
may be resolved, and our employees in an ap-
propriate unit be given an opportunity to express
their choice in a secret ballot election."
At the hearing on RWDSU's petition on
November 17, the Retail Clerks (RCIA), as well as
a third union (ILGWU, Local 208), intervened,
upon the basis of a one card showing of interest by
each. On November 22, while that hearing was in
recess, RCIA wrote Respondent, claiming to
represent a majority of Respondent's employees in
a storewide unit (i .e., selling and nonselling em-
ployees). On November 24, Respondent filed an
"RM" petition for an election in the storewide unit
(13-RM-816). The petitions were consolidated and
further hearings were held on November 29 and 30.
During the hearing, Respondent and RCIA took the
position that only an overall unit of both selling and
nonselling employees was appropriate, while
RWDSU contended that a unit limited to nonselling
employees, excluding office and alteration em-
ployees, was appropriate.2R Also litigated was the
unit placement of various categories of employees;
e.g., employees in the office, receiving and
shipping, and alteration departments., The Regional
Director transferred the case to the Board for deci-
sion. (See Section 102.67(h) of the Board's Rules
and Regulations.)
On June 20, the Board issued its Decision and
Direction of Elections. After finding that
"Questions affecting commerce exist concerning
the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act," the Board proceeded to
pass on the question of appropriateness of the
requested bargaining units as well as of the catego-
ries of employees includable therein (159 NLRB
759).29 It held that while the overall (selling and
nonselling ) unit sought by RCIA and Respondent
was "an appropriate unit on its face," a nonselling
unit (excluding the "business office and the altera-
tion department") was also appropriate. The Board
stated that "the appropriateness of the nonselling
unit will depend finally upon the desires of the non-
selling employees"; that since "the desires-of the
employees [was] a factor relevant" in the unit
determination, it will "not make a final unit deter-
mination at this time"; and that it will direct an
election among the nonselling employees "to ascer-
tain whether they desire representation separate
from that of the overall unit." The Board ac-
cordingly ordered elections in two separate units or
groups which it described as follows:
Group 1. All full-time and regular part-time
nonselling employees, excluding employees in
the business office and in the alteration depart-
ment.
Group 2. All full-time and regular part-time
employees, including employees in the business
office and the alteration department, but ex-
cluding nonselling employees.
The Board indicated that if a majority of the em-
ployees in Group 1 selected RWDSU, then that unit
would be determined by the Board to be ap-
propriate, but if a majority of those employees did
not vote for RWDSU, the appropriate unit would
be determined to be the single overall (storewide)
unit.
The election directed by the Board was
scheduled for July 20, but on July 18, RWDSU
' ILGWU did not seek to participate in an election in either of the above L" At the hearing all parties agreed that the Trial Examiner was bound by
units, taking the position that the alteration employees should be excluded the Board 's findings ( including unit and eligibility determinations) in the
from a nonselling unit representation proceeding.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed the unfair labor practice charge in - this
proceeding , -alleging , inter alia , that Respondent en-
gaged in acts of interference , restraint , and coer-
cion in the election campaign . The Regional
Director thereupon - canceled the election pending
investigation. On November 1, the complaint
herein was issued , alleging violations of Section
8(a)(1). and (5). On November 21, the Board
granted RWDSU 's November 9 request to
withdraw its petition and dismissed Respondent's
RM petition.
2. Respondent's motion for summary judgment
The Section 8(a)(5) violation alleged in the com-
plaint is predicated on the claim that RWDSU has
been designated majority, representative (by
authorization cards ) of Respondent 's employees in
the nonselling unit (an appropriate unit for collec-
tive bargaining ) since October 19; and that since
January 20 (the Section 10(b) cutoff date) Respon-
dent has refused - to recognize - and bargain with it.
On December 7, Respondent filed a motion for
summary judgment dismissing the Section 8(a)(5)
charge on the grounds, inter alia , that the non-
selling unit described in the complaint (for which
RWDSU sought recognition and bargaining) was
not appropriate ; that the Board having found- a
question concerning representation in the light of
the rival claims of RWDSU and RCIA in conflicting
units, Respondent was- under no obligation to
recognize RWDSU until determination of the
representation question by a Board-conducted elec-
tion ; and that the 6-month Section 10(b).statutory
limitation period barred the complaint since RWD-
SU's claimed majority was attained and its recogni-
tion demand was made outside the 6-month period.
The -motion was denied without prejudice to
renewal in the complaint hearing.
3. Respondent 's defenses
Respondent concedes its refuusal to recognize
and bargain with RWDSU for the reasons stated in
its motion for summary judgment and for additional
reasons, including RWDSU 's alleged lack of majori-
ty in the unit described in the complaint. Respon-
dent contends:
(a) The narrow nonselling unit for which
RWDSU demanded , recognition is inappropriate for
collective bargaining . Respondent claims that while
in its Decision and Direction of Elections, the
Board stated that that unit "could also be -an ap-
propriate unit ," the Board set "a condition
precedent" (Resp . Br. p. 19 ); namely, that " the ap-
propriateness of the nonselling unit will depend
finally upon the desires of-the nonselling employees
in the elections that we shall direct." It disputes
General Counsel 's position , "that even with the
Board 's reservation of 'a final decision to the wishes
of the employees , the employees in the unit had
designated RWDSU by -their authorization , cards"
(G.C.i Br. p. 40), contending ( i), that ,the Board had
expressly directed that the employees shall signify
their choice in a secret -ballot election ( Resp. Br.
18, and 19); and (ii)- that authorization cards are
"notoriously unreliable" for determining employee
sentiment in rival union campaigns ( Resp . Br. pp.
19-21, 42). -
(b) Respondent entertained a good -faith doubt
of RWDSU 's majority status in an appropriate unit,
relying on the circumstances that two-rival cam-
paigns were simultaneously in progress ; that the
Board has "traditionally " favored and established
storewide units in retail department stores; that the
requested narrow unit did not even coincide with
that here established by the Board , since it contem-
plated exclusion of regular part -timers;30 and that
the Board itself "was unwilling to finally determine
the appropriateness " of the requested -unit without
an election ( Resp , Br. pp . 23-29). Respondent con-
tends that "even if certain 8(a)(1) allegations of
the complaint were found meritorious ... their sig-
nificance is utterly drowned by the insurmountable
objective facts which required of Respondent-, a
good-faith- doubt of RWDSU 's representative
status" ( Resp . Br. p. 31 ), and, in any event , that the
alleged 8(-a)(1) conduct took place after- and not
contemporaneously with RWDSU's October bar-
gaining demand (Resp . Br. pp . 31-33). .
(c) Under the Board's Midwest Piping doctrine,3'
Respondent would have been guilty of unfair labor
practices had it recognized one of two rival unions
claiming recognition as exclusive bargaining
representative. I
(d) The illegality of Respondent's refusal to
recognize RWDSU since January 20 (the beginning
of the Section 10 ( b) limitation period ) turns on a
determination that RWDSU had a majority of
signed cards in October 1965 (prior to the limita-
tion period ). Since the majority question is a neces-
sary element in the alleged 8(a)(5) violation, a
finding that such violation occurred is barred, even
assuming RWDSU's recognition demand and
Respondent 's rejection of that demand continued
into the permissible I0(b) period.
(e) RWDSU did not represent a majority of
Respondent 's employees in the nonselling unit for
which it sought recognition; since it possessed no
more than 24 authorization cards of the 52 em-
ployees in that unit on October 20, the - date
Respondent received the bargaining request.
Respondent challenges General Counsel 's position-
(G.C. Br.-p. 56) that there were"no more than-40
employees" in the unit . Specifically in issue is the
status of 13 employees whom General Counsel
w RWDSU indicated in the representation hearing that it would exclude
regular part-time employees
'i' Midwest Piping & S1.pply Co , 63 NLRB 1060
BONWIT TELLER, INC. 409
would exclude and Respondent would include in
the unit;32 and one employee whom General Coun-
sel would include but Respondent would exclude:33
(f) None of the Union's 24 authorization cards
reliably evidence majority - designation since all
were obtained in the heat of rival union campaigns.
Furthermore, at least- seven of the cards were de-
fective and invalid for various reasons, including
material misrepresentations by the card solicitor
that the Union sought a storewide unit. As already
noted, Respondent also contends that one of the
signers (Della Thomas) had severed her, employ-
ment before October 20.
4. Conclusions as to the alleged refusal to bargain
(a)
In Midwest Piping & Supply Co., 63 NLRB 1060,
1070,` the Board laid down the rule that when an
employer is faced with conflicting claims to
representation by rival unions, he must refrain from
recognizing and dealing with either until determina-
tion of the employees' choice by a Board-con-
ducted election. The Board stated that:
Under such circumstances, the Congress has
clothed the Board with the exclusive power to
investigate and determine representatives for
the purposes of collective bargaining. In the'
exercise of this power, the Board - usually
makes such determination, after a proper hear-
ing and at a proper time, by permitting em-
ployees freely to select their bargaining
representatives by secret ballot. In this case,
however, the respondent elected to disregard
the orderly representative procedure set up by
the Board under the Act, for which both
unions bad theretofore petitioned the Board,
and to arrogate to itself the resolution of the
representation dispute against the Steelworkers
and in favor of the-Steamfitters. In our opinion
such conduct by the respondent contravenes
the letter and the spirit of the Act, and leads to
those, very labor disputes affecting commerce
which the Board's administrative procedure is
designed to prevent.
The rule "is a direct outgrowth of the parent doc-
trine of employer neutrality in matters relating to
employees' choice of a bargaining representative ...
[W]here employees are confronted with a choice
of bargaining representatives, the employer may
not accord such treatment to one of the rivals as
will give it an improper advantage in its contest for
the employees ' favor ." N.L.R.B. v. National Con-
tainer Corp ., 211 F.2d 525, 526 (C. A. 2). See also
N.L.R.B. v. Signal Oil and Gas Co., 303 F.2d 785
(C.A. 5); Sun Oil Company, 89 NLRB 833 , 834. Cf.
N.L.R.B. v. Indianapolis Newspapers , Inc.,, 210 F. 2d
501, 503 (C.A. 7).3 -
As already stated , the issue herein is whether
Respondent has unlawfully refused to bargain col-
lectively since January 20, 1966 . It will be recalled
that prior to this date Respondent was confronted
with two conflicting demands for recognition-by
RWDSU on October 19 and by RCIA on
November 22. By January 20 the Regional Director
had asserted jurisdiction - over the representation
proceeding , had completed the hearing on the
representation questions ( including the rival,claims
of the two labor organizations to representation in
conflicting units ), and had transferred the matter
for decision by the Board., I find that a question
concerning representation existed on and after
January 20 , justifying Respondent 's refusal to
recognize RWDSU on and since that - date, assum-
ing RWDSU had a majority of valid cards in an ap-
propriate unit at the time of the- Union 's recogni-
tion demand in October and that this demand con-
tinued to and beyond January 20. -
I cannot agree with General Counsel that this
case does not come within the Midwest Piping doc-
trine because RCIA's-organizational campaign and
recognitional demand failed to raise a "substantial"
or "colorable" representation-claim-''As the Board
has stated, "[I]t is the underlying factual situation
which controls the question whether recognition of
a union by an employer in circumstances of any
given case violates the duty of neutrality." Burke
Oldsmobile, Inc., 128 NLRB 79, 86, modified on
other grounds, 288 F:2d 14 (C.A. 2). See also Iowa
Beef Packers, Inc. v. N.L.R.B., 331 F.2d 176, 182
(C.A.-8). Thus, the Board has held that the "per-
centage of authorization cards shown is immateri-
al." Novak Logging Company, 119 NLRB 1573,
1575, footnote 6. And the "`question concerning
representation' is, existent whether or not a petition
is actually pending before the Board." Id. at 1575,
footnote 4. Indeed, a representation question may
arise where' only a single recognition demand is
made in rival -organizational campaigns. See ,Amer-
ican Dredging Company, 28 NLRB 714, 718. Other
relevant considerations are whether the recognition
of an incumbent union is under attack'35 whether
one of the units sought is inappropriate (William
" These are office employees, nonselling employees in a leased shoe de-
partment, sewers in the millinery department, a disputed transferee to
sales, and part -timers ( regular or casual ) None of these signed a union
authorization card.
a3 General Counsel disputes Respondent's position that the employee
(Della Thomas) was terminated before October 20 If this employee is ex-
cluded from the unit, the Union would have only 23 signed cards
'f'' In William Penn Broadcasting Company, 93 NLRB 1104, 1106, the
Board indicated that in complaint cases "The existence of such a question
concerning representation is determinable by applying the same criteria,
contemplated in Section 9 of the Act, that are uniformly applied by the
Board in finding a 'question of representation' before proceeding to an
election."
35"
[ I ]t appears that the Board will allow greater leeway in the recog-
nition of an incumbent union than of an outside union " Air Master Cor-
poration, et al, 142 NLRB 181, 187, footnote 27. Cf. N.L.R B v. Indi-
anapolis Newspapers, Inc, 210 F 2d 501, 503-504 (C.A 7), Shea Chemical
Corporation, 121 NLRB 1027.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Penn Broadcasting Co., supra, 93 NLRB at 1106),
whether one of the unions has standing to raise the
recognition question 3' and whether the status of
one of the rivals is tainted by unlawful assistance or
other illegal employer conduct. Iowa Beef Packers,
supra , 331 F.2d 183, 184; Weather Seal Incor-
porated, 161 NLRB 1226.
To be sure, as General Counsel points out, the
Board has held that a rival union's bare or naked
claim, without more, will not give rise to a question
concerning representation. See The Boy's Markets,
Inc,, 156 NLRB 105, 107. But even where only one
of two unions has substantial numerical support,
the case may present complex and unique represen-
tation questions for the Board's determination. The
employer need not and should not have to decide
such issues at his peril, risking violation of the Act
by resolving them himself. Furthermore, this record
is devoid of evidence that Respondent knew, or had
reason to know, that RCIA's representation claim
was specious or otherwise untenable.37 In the cir-
cumstances of this case, Respondent was under no
legal obligation to ascertain RCIA's strength, or the
relative strength of RCIA and RWDSU. RCIA had
been allowed to intervene in the pending represen-
tation proceeding.38 The Board proceeded to
resolve the representation questions raised by it,
the rival RWDSU, and the Respondent. And the
Board expressly found the existence of a question
concerning representation . Furthermore , Respon-
dent 's failure to ascertain and check on RCIA's nu-
merical support was not withouthazard as unlawful
intrusion into the protected privacy of employees'
organizational activities. See, Johnnie's Poultry Co,,
146 NLRB 770, enforcement denied on other
grounds 344 F.2d 617 (C.A. 8).
In concluding that a real question concerning
representation existed in this case I rely particularly
on the following factors: the `simultaneous rival
union organizational drives and , card solicitations
before RWDSU,made its bargaining demand in Oc-
96 See Conren, Inc, 156 NLRB 592, 599, enfd 368 F 2d 173 (C A 7),
where in finding that no representation question existed, the Board noted,
among other things , that a settlement agreement between the employer and
one of the rivals stipulated that the rival would not be recognized unless
and until certified by the Board
" While at the hearing General Counsel sought to establish the numeri-
cal strength of RCIA at the time of its original bargaining demand (by way
of a subpena addressed to one of its officials calling for production of cards
"purportedly signed on or before November 22, 1965") he disclaimed any
intention to demonstrate thereby (or in any other way) company
knowledge or awareness of the insubstantiality of RCIA's claim In view of
this disclaimer and since such employer knowledge or awareness was criti-
cal on the issue whether or not Respondent was really faced with conflict-
ing demands , I sustained Respondent 's and RCIA's objection to the
production of the cards
'° The fact that RCIA produced only one card in support of its applica-
tion to intervene does not prove that it did not procure more A labor or-
ganization need not disclose the extent of its strength in the appropriate
unit in order to participate in a proceeding instituted by other parties See
Westinghouse Electric Corporation, 89 NLRB 8, footnote 3, P R. Mallory &
Co , Inc , 89 NLRB 962, 963, footnote 3(d)
as See White Front Sacramento Inc, 166 NLRB 44, 65 LRRM 1461,
where , as here, the appropriateness of a storewide and narrower unit was in
issue Holding that a question concerning representation was presented for
tober 1965; the conflicting recognition demand of
RCIA on November 22; the conflicting and over-
lapping unit demands (a narrow nonselling unit and
an overall storewide unit including nonselling em-
ployees) made by the unions; the complex
representation issues as to scope of the unit and
categories of employees falling within it, and the
desirability of conducting a self-determination
"Globetype" election among the employees in the
narrow unit;40 the Board's assertion of jurisdiction
and pendency of the representation proceeding at
the time of Respondent's January 20 and sub-
sequent (complaint period) refusal to recognize the
Union; and the absence of any contemporaneous
unfair labor practices at the time of the rival
unions' initial bargaining demands (October and
November 1965) and in the ensuing 3 months up to
and including Januar' 20, 1966, the beginning of
the complaint period. 1
I conclude that under the Midwest Piping doc-
trine Respondent's refusal to bargain with RWDSU
on and after January 20, as charged in the com-
plaint, was not in violation of Section 8(a)(5) of
the Act.,
(b)
Even assuming inapplicability of the Midwest Pip-
ing doctrine , I find that General Counsel failed to
establish a violation of Section . 8(a)(5) and entitle-
ment of an 8(a)(5) order.
The bargaining unit in which Respondent sought
recognition was a narrow nonselling unit. However,
by specifically finding that "the appropriateness of
the nonselling unit will depend finally upon the
desires of the nonselling employees in the elections
that we shall direct," the Board in effect condi-
tioned appropriateness of that unit on the wishes of
the nonselling employees as expressed in a secret
Board-conducted (" Globetype ") election. In short,
the employees ' desires for- separate representation
resolution by the Board and not the parties, the Board dismissed the Sec-
tion 8 ( a)(5) charges against the employer
4 Although a good -faith doubt as to unit appropriateness does not or-
dinarily justify an employer 's refusal to recognize a union if the unit is in
fact found appropriate ( see e g ., Primrose Super Markets of Salem , Inc , 353
F 2d 675 (C A I ) ), such doubt is not to be ignored where , as here, the unit
question is so close and inexorably intertwined with the representative
status issue that it reasonably raises doubt as to a majority Clermont's Inc ,
154 NLRB 1397 , 1401-03 , N L_R B v Hannaford Bros Co , 261 F 2d 638,
640(CA 1)
" The Board has frequently taken into account "the time lapse between
the refusal [to bargain ] and the unlawful conduct " ( Aaron Brothers Com-
pany of California , 158 NLRB 1077 ) in assessing the good-faith conduct of
employers in claimed Section 8(a)(5) violations . See Artcraft Hosiery Com-
pany , 78 NLRB 333 , 334, Clermont 's Inc , 154 NLRB 1397, 1401
Although in communications to employees in the prelimitation period
Respondent made known its opposition to organization of the store, its
conduct did not exceed the permissible bounds of free speech and
privileged argument Nor is there any substantial, credible evidence
establishing that certain company improvements in sick benefit payments
in the fall of 1965 and assignments of sales duties to nonselling employees
(who were allowed to keep earned commissions) were discrimmtorily
motivated
BONWIT TELLER , INC. 411
through RWDSU-as against representation by the
rival RCIA in a storewide unit-was a sine qua non
to the appropriateness of the unit sought by RWD-
SU. "In this case, after considering all of the cir-
cumstances of the situation with reference to
whether there should be one or two units selected
as the appropriate collective-bargaining agency, the
Board came to the conclusion that the single factor
that would tip the scales was the preferences of the
employees." N.L.R.B. v. Underwood Machinery
Company, 179 F.2d 118, 120-121 (C.A. 1).
I do not agree with General Counsel's contention
that RWDSU's authorization cards - constituted
adequate means for resolving the employees' unit
preferences under these circumstances. As the
Board has repeatedly pointed out, cards are no sub-
stitutes for elections where rival unions are vying
for employee support.42 See Midwest Piping, 63
NLRB at 1070; Scherrer and Davisson Logging
Company, 119 NLRB 1587, 1588; The Wheland
Company, 120 NLRB 814, 817. Cards are "notori-
ously unreliable" in dual organizational drives. Sun-
beam Corporation, 99 NLRB 546, 550. Thus, as the
Board has noted in Midwest Piping (63 NLRB at
1070), "It is well known that membership cards ob-
tained during the heat of rival organizing campaigns
... do not necessarily reflect the ultimate choice of
a bargaining representative; indeed, the extent of
dual membership among the employees during
periods of intense organizing activity is an impor-
tant unknown factor affecting a determination of
majority status, which can best be resolved by a
secret ballot among the employees." In such situa-
tion, "there is a vast difference between ... a choice
registered as a result of a secret ballot, and such
a choice established by ... signed cards, collected
at the behest of the union organizer." (N.L.R.B. v.
Hannaford Bros. Co., 261 F.2d 638, 641 (C.A. 1)).
In this case, a nonselling employee, who signed an
authorization card for RWDSU, may well have
selected a,larger' bargaining unit if presented with
the choice in a secret election.43
While conceding that normally "an election
would appear to be the logical remedy for sorting
out" conflicting claims in two union situations,
General Counsel contends that "by its massive un-
fair labor practices" Respondent destroyed the con-
ditions for an election, thereby rendering cards the
best available measure for employee sentiment.
General Counsel analogizes to cases such as Bernel
Foam Products Co., Inc., 146 NLRB 1277 where,
because the serious employer unfair labor practices
destroyed the atmosphere for a fair election, the
Board issued-Section 8(a)(5) orders on proof of
majority status by cards. However, none of the
cases relied on by General Counsel involved con-
flicting unit claims and bargaining demands
presenting Midwest Piping type questions which
could be resolved only through the electoral
processes. To accede to General Counsel's request
in this case would be to foreclose the nonselling
employees from representation by RCIA in, a store
wide unit-a right the Board recognized and, af-
forded them in the representation proceeding.
Nor are the Section 8(a)(1) unfair labor prac-
tices found herein of such magnitude as to render a
fair election impracticable or unfeasible after their
dissipation in accordance with conventional
remedial procedures: In neither -Crosby Chemicals,
Inc., 85 NLRB 791, nor Weather Seal Inc., 161
NLRB 1226, did the Board deem bargaining
orders essential, although the unfair labor prac-
tices (Section 8(a)(1), (2), and (3) violations)
appear to have been far more serious, sub-
stantial , and pervasive than here. In Weather Seal,
on which General Counsel relies, the employer un-
lawfully assisted one of the rival unions by, inter
alia, enlisting employees to its support and warning
them of likely business losses if they chose the
disfavored union . The employer also coerced em-
ployees by interrogations, threats of layoffs and of
economic reprisals, and by creating the impression
of surveillance of employee activities on behalf of
the disfavored union. He also discriminatorily laid
off nine supporters of the unwanted union and un-
lawfully discharged its chief proponent. Yet, the-
Board only directed "an election... when [the Re-
gional Director] is satisfied that the effects of the
unlawful assistance, restraint , and coercion have
been dissipated and [the Regional Director] deter-
mines that a free and untrammeled` election can be
held."
I conclude that the unfair labor practices per-
petrated by Respondent are not of such character
as to justify a bargaining duty finding or bargaining
order.
(c)
The combination of circumstances already al-
luded to (supra, section 3(a) and 3(b)) likewise
warrant a finding that Respondent's refusal to
recognize RWDSU, on the basis of a card showing,
was predicated on good-faith doubt of the RWD-
SU's majority, status. Among these factors were the
existence of two rival organizational drives in Oc-
tober (the time of RWDSU's initial bargaining
request) and in January (the beginning of the com-
plaint period); the inherent infirmities in cards as a
measure of employee choice in rival campaigns; the
conflicting and overlapping unit demands of the
two unions; the complex representation questions,
including the doubtful composition of the unit (i.e.,
i2 As heretofore found, both RCIA and RWDSU had solicited card signa-
tures prior to the latter's October 19 recognition demand
43 At one point in his brief, General Counsel in effect concedes that the
authorization cards could not be used as evidence of the signers' unit
preferences He states ( Br p 42 ), "General Counsel does not contend that
by designating RWDSU, the employees were necessarily asking for
separate representation of nonsellers What they intended to do was to
designate RWDSU as their bargaining agent in whatever unit RWDSU
could get."
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the categories of -employees falling therein); the
length of lapse between the initial October. bargain-
ing: demand and the beginning of Respondent's un-
fair.labor
=representation
the Board's assertion of ju-
risdiction and the representatio proceeding finding
of "question concerning representation" in and the,
actual, pendency of that proceeding in the com-
plaint-period refusal to bargain. -See Aaron Brothers
Company, 158,.NLRB 1077; Clermonts, Inc., 154
NLRB-1397; H_ammond,& Irving Inc., 154 NLRB
10.71; N.L.R.B,_ v. Hannaford Bros. Co., 261 F.2d
638,.640-641 (C.A. 1).-
I find that these circumstances afforded valid
bases for Respondent's doubting RWDSU's majori-
ty status. I further find that the. Section 8(a)(1)
violations 'found. herein-all of which, except for
theFJanuary 31 unlawful wage increases, occurred,
in- June. and July (about 8 months-after the initial
October-- bargaining -request)-did not factually
negate the existence of the good-faith doubt.
(d)
Having found that Respondent did not violate, its
statutory', duty to bargain with RWDSU for the
reasons stated, it is unnecessary to pass, on Respon-
dent's additional, legal defense that the alleged
8(a)(5) violation was,barred by Section 10(b) of
the, Act since the- Union's majority was established,
and its regnest for recognition was made, outside
the limitation period. Nor is it necessary to pass on,
its factual defense that RWDSU was not the un-
coerced majority choice of-the employees in the'
narrow, nonselling unit on the basis of valid
authorization` cards.
CONCLUSIONS OF LAW
,1._ Respondent, in violation-of Section,'8(a)(I)-9f
the Act, interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in
Section 7 of the Act, through interrogation, threats
of reprisals, creating the impression of surveillance,
implied and direct promises of benefits, and the
granting of wage increases to dissuade employees
from, union, activities.
2..-The aforesaid violations, are unfair labor prac-
tices-affecting -commerce-, within the meaning of
Section 2(6) and (7) of the Act.
3,.- Respondent did not, violate Section 8(a)(5) of
the,Act by refusing to bargain with RWDSU as the,
exclusive representative of its employees in an ap-,
propriate unit:.
ti- 4. Except as herein concluded, Respondent has
not committed other- unfair labor practices alleged
in the complaint. -
THE REMEDY
Having found that Respondent has engaged in-
certain unfair labor practices, I shall- recommend
the customary cease and desist-order in cases of
this nature, designed to effectuate the policies of
the Act. For the reasons .set forth supra, section III,
C, 3, .(b), I reject General Counsel's request for a
bargaining order to remedy the Section 8(a)(1) un-
fair, labor practices found. I also reject General.
Counsel's request for "an alternate remedy of an,
election in the nonselling unit, limited solely to a
choice between RWDSU and Retail Clerks, exclud-
ing `neither' as a choice," no compelling reason
having been shown for such extraordinary and
unusual remedial provision. I shall recommend that
the Board direct .the Regional Director to conduct-
the, elections in the storewide as well as nonselling
units, in accordance with the Board's June 20, 1966
Decision and Direction of Elections when he
becomes satisfied. that the effects of Respondent's
8(a)(1) violations have been dissipated and deter-
mines that a free and untrammeled, election can be
held. See Weather Seal, Inc., 161 NLRB 1226.
RECOMMENDED ORDER
Upon the entire record in the case, the foregoing
findings of fact and conclusions of law, it is recom-
mended that Respondent, Bonwit Teller,, Inc.,.,
Chicago, Illinois,_ its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning employees about
union matters, threatening reprisals for union ac-
tivity, creating the impression of- surveillance, im-
pliedly or expressly promising benefits, and grant-
ing wage ; increases to dissuade employees from
union activities.
(b) In any other like or related manner interfer-,
ing with, restraining, or coercing employees in the
exercise of their rights under ,Section 7 of the Act..
2. Take the following affirmative action, which is
deemed necessary. to effectuate the policies of the
Act:
- (a) Post at its store in Chicago, Illinois, copies of
the attached notice marked "Appendix."*' Copies
of said notice, on forms provided by the Regional
Director for Region 13, after being duly, signed by,
Respondent's authorized representative,, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily,
posted-. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
ad In the event that this Recommended Order is adopted by the Board,
the words "a'Decision and Order-"-shall be-substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted , for the words "a Decision
and Order.-
BONWIT TELLER, -INC. 413
defaced, or covered by any other material.
(b) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply therewith.'
IT IS FURTHER RECOMMENDED that elections be
conducted by, the Regional Director for Region 13
in the two voting groups described in the Board's
June 20, 1966, Decision and Direction of Elections,
in accordance with the procedures prescribed
herein, at such time as said Regional Director
deems the circumstances permit the free choice of
a bargaining representative.-
IT IS FURTHER -RECOMMENDED that the complaint
be dismissed in all other respects.
' In the event that this Recommended Order is adopted by the Board,
this provision shall be, modified to read. "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX -
NOTICE TO ALL EMPLOYEES
, Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT unlawfully question our, em-
ployees about union activities, threaten them
with reprisals for union activity, create the im-
pression of surveillance, impliedly or expressly
promise benefits, nor -grant wage increases to
dissuade employees from union activities.
WE WILL NOT in like or related manner inter-
fere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of
the Act.
BONWIT TELLER, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from- the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's- Regional
Office, 881 U.S. Courthouse And Federal Office
Building, 219 S. Dearborn Street, Chicago, Illinois,
60604, Telephone 828-7570.