Fashion Fair, Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1968

173 N.L.R.B. 142 (N.L.R.B. 1968)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fashion Fair , Inc. and Local 725, Retail Clerks
International Association , AFL-CIO. Case
25-CA-3000
October 9, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MLMBFRS
FANNING AND BROWN
On June 6, 1968, Trial Examiner George A.
Downing issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that the allegations
pertaining thereto be dismissed. Thereafter the Re-
spondent filed exceptions to certain portions of the
Decision of the Trial Examiner and a supporting brief,
the Charging Party filed a brief in answer to the
Respondent's exceptions, and the General Counsel
filed a brief supporting the Decision of the Trial
Examiner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection 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 this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent here-
with.
1 The Trial Examiner found, and for reasons
stated in his Decision, we agree, that Respondent
violated Section 8(a)(1) of the Act by issuing warn-
ings to employees Berry and Combs because of their
union activities. We also agree with the Trial Exam-
iner's finding that Respondent's imposition of a more
onerous work condition on employee Berry was
motivated by antiunion considerations and in viola-
tion of Section 8(a)(3) of the Act. Unlike the Trial
Examiner, however, we do not find Respondent's
I All dates, unless otherwise indicated are 1967
2 The Union notified Respondent on November 17 that it planned
to conduct informational picketing at the Bloomington store On
promise and subsequent grant of wage increases to
have violated the Act for the following reasons.
The facts show that Respondent had been experi-
encing difficulties with the local Fire Department
because conditions at its store were in violation of the
Fire Code. On September 25, 1967,1 the city
attorney threatened to condemn Respondent's build-
ing as unsafe unless the conditions were remedied
Late in October, Fire Inspector Axsom again warned
Respondent that, although the Fire Department's
standards had been met for a few days, the renewal of
certain prior conditions would lead to further action
unless corrected within 5 days.
Carter was made acting store manager on or about
November 9 and immediately called an employee
meeting at which he spoke about the conditions at
the store which the Fire Department considered
objectionable. Carter told the employees that if they
would work together and clean up the store he would
see what he could do about getting them raises.
Thereafter, on several occasions Fire Inspector
Axsom inspected the store and gave it interim
ratings of "OK." Finally on November 21, Axsom
wrote Respondent's president informing him that
the Department's recommendations had been com-
piled with 2 As promised earlier, Carter on Nov-
ember 22, recommended that area Supervisor
Greenguard approve raises for those employees
who had helped him clean up the store.
Greenguard agreed, saying he would visit the store
and approve the raises on Monday, November 27.
Carter then posted the Fire Department letter on the
timeclock, and announced meetings of night shift
employees on Friday, November 24, and on the
following Monday for employees on the day shift.
The Friday meeting was not held because of the
picketing but that on Monday was held as scheduled.
At the meeting Carter announced that the employees
would receive wage increases as promised Other
employees, apparently not in attendance were told
individually they would receive raises.
In finding that Respondent had failed to make out
its defense to the allegation that the wage increases
were timed to induce employees to refrain from
becoming or remaining members of the Union, the
Trial Examiner relied on both the November 2 letter
from Respondent to the Fire Department stating the
store was up to standards set by the Fire Department,
and the interim ratings of "O.K." given the store by
the Department on November 8, 10, 16, and 20. He
therefore concluded there was time prior to the
picketing for Carter to implement his promises and
that the timing of the promise on November 27 was
November 24, it began picketing and promptly launched its organiza-
tional campaign.
173 NLRB No. 28
FASHION FAIR, INC. 143
inspired by the picketing and Respondent's knowl-
edge of the organizational activity. Inspector Axsom
of the Fire Department testified, however, that these
interim ratings did not necessarily mean all conditions
at the store met the Department's standards. Addi-
tionally, the record reveals that Respondent was not
formally notified that the Department was satisfied
with overall conditions until November 21. We
find, under all the circumstances, that Respondent's
promises and grants of wage increases were in
implementation of its preorganization campaign
promises which were contingent upon employee
cooperation in alleviating conditions found objection-
able by the Fire Department. As the Fire Department
did not grant formal clearance to Respondent until
after the Union informed Respondent that an organi-
zation drive was imminent, and since Respondent
took immediate steps to grant the increases upon
receiving clearance from the Fire Inspector, we
cannot find, as did the Trial Examiner, that Respond-
ent failed to establish its defense that the increases
were based upon factors other than the then pending
organizational activity. Accordingly, we shall dismiss
the allegation that Respondent violated Section
8(a)(1) by promising and granting wage increases.
2 The Trial Examiner found that Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to recognize the Union as majority represent-
ative in the appropriate unit. In so finding, the Trial
Examiner reasoned that Respondent's 8(a)(1) and (3)
violations were calculated to prevent the Union from
gaining additional strength, to dissipate whatever
strength the Union had, and to undermine the
Union's status as majority representative. We disagree.
Having reversed the Trial Examiner's 8(a)(1) finding
based upon the wage increases, the remaining unlaw-
ful conduct attributable to Respondent is limited to
the warnings issued Combs and Berry and the
instruction to Berry that she no longer sit while
working. These incidents occurred about 1 to 2 weeks
before the Union made its demand for recognition.
Considering their timing, character, and the condition
under which they occurred, we find this conduct,
though unlawful, was not so flagrant or extensive that
it must necessarily have had as its objective the
destruction of the Union's majority.3 Accordingly,
we find that the General Counsel has not sustained his
burden of establishing that Respondent's refusal to
bargain violated Section 8(a)(5) of the Act, and,
accordingly, we shall dismiss that allegation of the
complaint.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Fashion Fair, Inc., Bloomington, Indiana, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Issuing warnings and threatening employees
with discharge and imposing more arduous working
conditions on employees because of their union
sentiments and activities.
(b) Discouraging membership in the Union or in
any other labor organization of its employees by
imposing more arduous working conditions, or in any
related manner discriminating against them in regard
to hire or tenure of employment or any term or
condition of employment.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its offices and store at Bloomington,
Indiana, copies of the attached Notice marked "Ap-
pendix."' Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
duly signed by an authorized representative of Re-
spondent, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicious places, including all
places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said Notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 25, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply herewith
3 In view of our dismissal of the 8 (a)(5) allegation in the complaint,
we find it unnecessary to pass upon the Trial Examiner's findings on
issues related to the union 's majority status
4 Hammond & Irving, Incorporated, 154 NLRB 1071, 1073
5 In the event this Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the
National Labor Relations Board and in order to
effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT issue warnings to employees,
threaten them with discharge, or impose more
arduous work conditions because of their union
sentiments or activities.
WE WILL NOT discourage membership in Local
725, Retail Clerks International Association, AFL-
CIO, or any other labor organization of our
employees, by imposing more arduous working
conditions on them or in any like or related manner
discriminate against them in regard to hire or tenure
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment , or any term or condition of
employment.
WE WILL NOT in any like or related manner inter-
fere with, restrain , or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
Local 725, Retail Clerks International Association,
AFL-CIO, or any other labor organization , except to
the extent provided in Section 8(a)(3) of the Act.
FASHION FAIR, INC
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this
Notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street,
Indianapolis, Indiana 46204, Telephone
317-633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE A DOWNING, Trial Examiner: This proceeding
brought under Section 10(b) of the National Labor Relations
Act, as amended, was heard at Bloomington, Indiana, on April
8, 9, and 10, 1968, pursuant to due notice The complaint
which was issued on February 29, 1968, on charges filed on
December 14, 1967, and February 26, 1968, alleged in
substance that Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1), (3), and (5) of the Act by
various specified acts of interference, restraint, coercion and
discrimination in November and December 1967, and by
refusing on and after December 8 to bargain with the Union as
the majority representative of its employees in an appropriate
unit. Respondent answered denying said unfair labor practices.
Upon the entire record in the case and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent, an Ohio corporation, operates some 17 dis-
count department stores in Ohio, Kentucky, and Indiana,
including the store involved herein at Bloomington, Indiana.
Respondent sells annually at retail at its Bloomington store
goods valued in excess of $500,000 and purchases annually
from extrastate points goods valued in excess of $50,000.
Respondent is therefore engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2 (5) of the Act
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
During the past several years the Union has engaged in a
campaign to organize the employees in many of Respondent's
17 stores but has been successful in obtaining recognition in
only one, at New Albany, Indiana The campaign at Bloom-
ington began as an outgrowth of informational picketing which
was conducted on the weekends of November 24-26 and
December 1-2, 1967, and of which Respondent was notified
on November 17 1 A formal request to bargain was made on
December 11 and was refused on December 16 on the ground
of good-faith doubt of majority
Aside from the refusal-to-bargain issues, which include also
a question as to the Union's actual majority, there is in issue
conduct by Store Manager James F Carter involving alleged
warnings and threats of reprisals in relation to union activities,
of promises and grants of economic benefits, and of discrimi-
nation through providing less employment and assigning more
arduous job tasks to Patti Combs and Clara Berry.
B Interference, Restraint and Coercion
Respondent was notified in advance by the Union that it
intended to engage in informational picketing at the Blooming-
ton store and the word was relayed to Store Manager James F.
Carter who testified that he in turn informed a few employees
When the picketing began on November 24, Carter also learned
promptly that the Union was engaged as well in an organiza-
tional campaign Thus Loris (Mike) Francke testified that on
Saturday night after the picketing started he and James Owen
informed Carter that they had had coffee with Charles E.
Mercer (the Union's organizing director), who was trying to get
them to sign cards. Carter stated that he thought the store had
more to offer and could be run better under management the
way it was. Francke testified further that 3 or 4 days after he
signed an authorization card on November 28, Carter informed
him he was doing a good job and Carter would see about
getting him a raise.
Carter admitted that after the picketing began some of the
employees spoke to him about the Union and about having
signed cards Owen and Francke were two of those and he told
them he felt that Fashion Fair had more to offer but that they
were free to do as they pleased.
The evidence is also undisputed that on Monday following
the first weekend of picketing (November 27) Carter called a
meeting of employees at which he repeated the statement that
Fashion Fair had more to offer than a union and announced
that he was seeking approval from the Company for certain
raises which he had requested for employees. However the
context of the latter announcement is in some dispute, it will
1 All events herein occurred in 1967 unless otherwise specified.
FASHION FAIR, INC.
be more fully adverted to in summarizing, infra, the evidence
which Respondent offered in defense of the promised raises
The evidence established that Carter followed through on
the matter of the promised raises . Beverly Clark, for example,
testified that she attended another meeting of employees at
which Carter announced that he had obtained approval from
his district supervisor, Greenguard, for certain raises which the
employees would receive in their next week's paycheck Clark
received the raise as promised Alice Watson testified that some
2 weeks after the employee meeting Carter informed her and
Suzanne Sipes that the "office" had approved raises for them
and thereafter Watson received her raise.
Summaries of Respondent's records received by stipulation
reflected that during the last 5 weeks of 1967, Respondent
gave a total of 20 raises as follows. Eight on December 2, one
on December 9, one on December 14, eight on December 23,
and two on December 30. The records reflected similarly that
in the first 47 weeks of 1967, Respondent gave a total of 38
raises.
Respondent did not substantially contest the foregoing
evidence and rested its defense mainly on Carter's testimony
that the raises were given in fulfillment of a promise he made
around November 9, to try to obtain raises for the employees
if they would cooperate with him in helping to clean up
conditions in the store concerning which the fire department
was threatening to close the store. Carter was made acting
manager of the store early in November and around November
9, he called an employee meeting in which among other things
he referred to the problems with the fire department and made
the statement above referred to.
Though the General Counsel's witnesses testified generally
that they could not recall that Carter made any promises of
raises in meetings before the picketing began, James Owen
corroborated Carter's testimony that Carter informed the
employees that if they would work together and clean up the
store he would see what he could do to get raises for them.
Similar testimony was given on cross-examination by General
Counsel's witnesses Alice Watson, Patti Combs and Clara
Berry. I therefore credit Carter's testimony concerning the
November 9 meeting.
Carter testified further that for the next 2 weeks inspectors
from the fire department came in daily, but that on November
21, he received a letter from the department which stated that
the store had complied with all recommendations of the
department. Thereupon Carter called Greenguard, his district
supervisor, reported receipt of the letter, and recommended
that Greenguard approve "a lot of raises" for employees who
had helped him clean up the store and who were underpaid.
Greenguard replied that he would be there Monday to approve
the raises. Thereupon Carter posted the letter over the
timeclock and later put up a notice calling a store meeting for
his employees for Friday evening for the night shift and 9
o'clock Monday for the day help. The Friday meeting was not
held because of the picketing but the Monday meeting was
held as previously referred to.
The General Counsel offered in refutation the testimony of
Chester L. Axsom, inspector of the fire department, and the
records of that department which established the following
Respondent's difficulties with the fire department which
existed for some months reached a climax before November 1.
On September 25, the city attorney threatened to condemn
the store as unsafe unless Respondent remedied conditions of
noncompliance with the fire code and on October 30, Axsom
145
wrote Respondent warning it that though its standards were
met for a few days the renewal of certain prior conditions
would lead to further action unless corrected within 5 days.
On November 2, Respondent's president wrote Axsom assuring
him that necessary steps had been taken to rectify the
situation and that the manager had already informed him that
the conditions to which Axsom called attention had been
corrected.
Axsom's personal inspections made thereafter on November
8, November 10, November 16 and November 20, bore out
Respondent's representations concerning compliance, and
Axsom noted in his inspection report under each date that
conditions were "O.K." On November 21, Axsom wrote
Respondent's president informing him that Carter had com-
plied with all his recommendations. That was the letter which
Carter posted on the bulletin board on or about November 22,
and which he followed with the notice calling employee
meetings for Friday afternoon and Monday morning
The General Counsel also calls attention to the following
evidence concerning the promising of a raise to Loris Francke
who was hired on November 22 On November 28, Francke
signed an authorization card in the Huddle Restaurant in the
presence of employee Sipes and Union Representative Mercer.
Carter came in while they were there, ordered something to
eat, and remained until after Francke left. A few days later
Carter informed Francke that the latter was doing a good job
and Carter would see about getting him a raise Carter made no
denial of the foregoing on direct examination and when
questioned on cross concerning what part Francke had played
in clearing up the store for the fire department, testified that
Francke got goods out of the aisles and put out merchandise as
it came in. When Carter's attention was called to the fact that
Francke was not hired until November 22, he denied that he
ever promised Francke a raise.
As is seen, Carter at first attempted to credit Francke with a
part in rectifying the situation of which the fire department
complained, he made no attempt to deny the promise of a
raise until reminded that Francke was not hired until after the
situation was fully cleared up I therefore credit Francke's
testimony.
Carter's remaining conduct related to alleged discriminatory
treatment accorded to Patti Combs and Clara Berry and will be
considered in Section C, infra
CONCLUDING FINDINGS
As is seen the evidence is undisputed that in the immediate
setting of the picketing and with knowledge that the Union
was also engaged in an organizing campaign Respondent
represented to employees that it had more to offer than the
Union and announced in employee meetings that wage
increases were being granted. Other employees were informed
individually during the ensuing week (as Carter admitted) that
they were to get raises and eight actually received them in their
next paychecks. Additional raises during the month brought
the total to 20 as compared with only some 38 during the
preceding 11 months.
Respondent's defense was that it acted only to fulfill
Carter's promise of November 9 to see what he could do to get
raises for the employees if they would help him clean up the
conditions of which the fire department was complaining That
defense was exploded on rebuttal by evidence that Respondent
had complied fully with the department's recommendations
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to November 9 and that it remained in full compliance
throughout the remainder of the year Carter's claims of daily
inspe..tions and of continuing difficulties were wholly dis-
proved, and it was not until the picketing began and he learned
also of the organizational attempts that he took action in
claimed implementation of his prior promise
Carter's testimony was further discredited by his attempt to
assign to Francke a role in rectifying the situation and by his
promise of a raise to Francke though the latter was not
employed until after full compliance with the fire depart-
ment's recommendations. Furthermore, if Carter were genu-
inely interested in rewarding the employees for cleaning up the
store, there was more than ample time for him to have
initiated his recommendations before the picketing began.
I therefore conclude and find on the entire evidence that
Respondent failed to establish its defense. I find to the
contrary that Carter's promises of raises on November 27, and
later were inspired by the picketing and by knowledge of the
organizational movement and that the raises were announced,
promised and granted to induce the employees to refrain from
becoming or remaining members of the Union NL R B. v.
Exchange Parts Co, 375 U.S. 405, 409-410, Kellwood
Company, Southern Division, 170 NLRB No. 84 By such
conduct Respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed in Section 7 of
the Act.
C Discrimination
Patti Combs and Clara Berry were among the first employ-
ees to sign authorization cards and were the most active in
soliciting other employees, for only they were called-aside
from Mercer-as authenticating witnesses on cards obtained by
solicitors of other employees. I find on the basis of the
evidence set forth below that Respondent was aware of their
prounion sentiments.
Both Combs and Berry testified that their work had not
been criticized before the union activity began Berry testified
that a week before the picketing Carter praised her for doing a
good job and stated he was recommending her for a 10 cent
raise. Combs testified that on November 28, Carter told her
she was doing a good job and stated he would see if he could
get her a 10 cent raise.
In the meantime when the picketing began Berry passed out
to customers at Carter's request handbills which declared that
the employees were not on strike. When later called back by
Carter to do so again, Berry did not comply. Though she did
not inform Carter directly of her refusal, she told a couple of
employees that she refused to pass them out, and she was not
again requested to do so. As Carter himself made the request
of Berry, it may be inferred that he learned of her refusal to
comply with his direction.
On November 29, Combs, Berry and Jerome Games had
lunch with Union Representative Mercer at Woolworth's lunch
counter (near the store). All four of them testified that Carter
came in, ordered something to dunk at the counter , and left.
They all saw him and he looked at them.
When Combs and Berry returned to the store they were
immediately called separately to Carter's office. Combs testi-
fied that Carter informed her she was not doing a good job,
that he was going to put her name in a little book as a first
warning, and that the third warning would mean automatic
termination. Combs inquired what was wrong with the drug
department (in which she worked) and Carter mentioned
nothing specifically other than "overall drug department" and
that sales were down.
Berry testified that Carter told her that her work was
slacking up, her reports were late, she was getting grouchy with
customers, and that this would be her first warning. He stated
that he was putting her under Harris, the assistant manager,
who would be watching her and who would make reports to
Carter about her work. Carter also informed her that she was
not working on a "sit down" job and that she was not to sit
anymore when she worked
Prior to that time Berry sat some 15 to 20 percent of her
time and was never instructed not to do so. Martha Evans, who
spent some 2 or 3 hours a day helping Berry with her work,
testified that she and Berry sat for a part of the time while
doing certain portions of the work and that she had never been
cautioned or warned not to sit down.
Berry testified further that around December 5, Carter
called her to the office again and complained of her delay in
getting out her "lay-away" report. Though Berry explained
that it was due to the fact that there were no punted forms on
hand and that the forms had to be written out, Carter told her
that that was her second warning and that the next one would
not be a warning Answering Berry's inquiries, Carter admitted
that he had not ordered more printed forms and had not
spoken to any of the other girls who also worked on the
report.
Though the complaint alleged and the General Counsel also
attempted to show that Combs and Berry were also dis-
criminated against by changing their lunch hours to separate
times, Combs admitted that her own lunch hour was changed
at her request when she told Carter she did not want to eat
with Berry.
Finally there was evidence, confirmed by Carter' s testi-
mony, that beginning with the week ending December 9,
Carter cut the hours worked by Combs and Berry by
scheduling them to report a half hour later than usual and by
giving them a day off at the end of the week. Combs testified
that Carter informed her the cut was made because of a
shortage on his payroll.
Respondent's evidence raised slight question concerning the
treatment accorded to Combs and Berry as set forth above but
went mainly to the point of knowledge, to establishing
"cause" and to negativing a discriminatory motivation.
On the knowledge issue Carter denied that Combs once told
him she signed a card and denied as well that he saw Combs
and Berry having lunch with Mercer just before he called them
to his office. Though I credit Carter 's denial over Comb's
contrary testimony concerning the card (which was contra-
dicted by her pretrial affidavit), I do not credit his denial of
the mutually corroborative testimony of four opposing wit-
nesses concerning the encounter at luncheon.
Insisting, however, that the latter incident did not establish
knowledge, Respondent argues further that there was no
showing that Carter knew or had reason to know who Mercer
was or that he was a union organizer . That contention ignores
wholly the evidence concerning Mercer ' s presence on the
picket line and the undenred testimony of Francke that he and
Owen discussed with Carter early in the picketing Mercer's
efforts to persuade them to sign authorization cards.
Admitting that he reprimanded Combs and Berry about
their work, Carter testified that in Combs ' case it was because
she was not putting the drugs out on display, was talking to
FASHION FAIR, INC 147
customers too much and was not getting her lob done In fact
Carter testified that after becoming manager he spoke to
Combs every day concerning her performance, informing her
that he was expecting improvement, but admitted that he
never informed Combs of any disciplinary action, never
warned her she might be laid off and never called her in
previously to give her any warning. He admitted further that
he "might have" told Combs he was marking her name in a
book.
Admitting also that the office incident was the first warning
he gave Berry, Carter testified that he "got on" Berry several
times about her bad work. As for the lay-away report
concerning which he gave Berry her second warning, Carter
admitted that it was Bernice Lankford's regular job to get it up
and that he did not speak to any of the other girls about it.
Carter denied that he promised either Combs or Berry a
raise , Combs because she had not been there long enough 2
and Berry because she was sick a lot and was not getting the
job done
Though Carter also denied that he told Berry she was to
stand to do her work, he admitted that Harris, the assistant
store manager, had spoken to her about standing, a require-
ment which under the testimony of Evans and Berry had not
previously been imposed.
As for the reduction in hours, Carter testified that in the
week ending December 2, he exceeded his payroll budget by
$139 and that he accordingly adjusted the schedule for the
following weeks by reducing the hours of Combs and Berry as
well as those of several other employees Combs was included
because she was a relatively new employee and was not doing a
good job at the time Berry was included because she had
previously asked for time off, had a record for tardiness and
frequently reported with sloppy dress and appearance 3
Carter admitted that he hired new employees during the
following weeks but testified that they were night cashiers and
that none of them was doing any work which Combs and
Berry were doing
Concluding Findings
On the foregoing record I conclude and find that Carter
became fully apprised by the luncheon encounter of the union
sentiments of Combs and Berry regardless of his knowledge or
lack of knowledge before that time Furthermore Carter's
spontaneous reaction reflected a disposition to retaliate and to
seek immediate retribution.
The measure of Carter's credibility was manifest both in
denying that he saw Berry and Combs with Mercer and in his
specious explanations of how he came to act just at that time.
Thus though the job performances of the two girls had been
consistently bad under his testimony Carter admittedly had
not warned either of disciplinary action and had called neither
of them to his office Indeed the record, including Carter's
testimony, contained no reasonable explanation for the timing
of Carter's conduct save for the luncheon encounter which
immediately preceded it I conclude on the entire evidence
that Carter's conduct was sparked by that encounter and was
intended as a demonstration of displeasure to discourage them
from further adherence to the Union The later warning to
Barry was plainly a continuation of Carter's earlier treatment
and was an obvious attempt to build a record against her of
warnings preparatory to discharge
I therefore conclude and find that by warning and
threatening Combs and Berry with discharge under the
circumstances found above Respondent interfered with,
restrained and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act and that by imposing upon
Berry the requirement that she stand at all times while
working, Respondent imposed more arduous working condi-
tions and thereby discriminated in regard to conditions of
employment to discourage adherence to or membership in the
Union.
I find, however, that the General Counsel failed to establish
by a preponderance of the evidence that Respondent discrimi-
nated against Combs and Berry by changing their lunch hour
or by reducing their hours of work Combs' testimony left the
allegation about the lunchtime change without support. As for
the reduction in hours, the General Counsel failed to refute
Respondent's evidence that the work schedules were cut in
adjustment to the payroll budget and that a number of other
employees were affected Furthermore Respondent's records
showed that following the week ending December 9,4 Combs'
total weekly hours were at normal levels. In Berry's case the
reasons which Carter assigned for selecting her (tardiness,
requests for time off, etc.) appeared reasonable on the face of
the entire record. Though Respondent admittedly hired new
employees after reducing the work schedules, the General
Counsel made no attempt to refute Carter's testimony that the
new help was hired as night cashiers and not as day employees
to do the type of work which was done by Combs and Berry
D. The Refusal to Bargain
1 The request and the refusal
On Monday, December 11, Carter received in the mail an
undated form letter in which the Union claimed to represent a
majority of the employees at Respondent's Bloomington store
and requested recognition and a meeting for bargaining at
which the Union would prove its majority status by a card
check to be conducted by some neutral third party Carter
immediately called Lass in Cincinnati, read the letter to him,
and was directed to forward the letter to Lass Lass also
directed Carter to write the Union the following letter over his
signature as store manager
This is to advise you that I have received your letter of
12/9/67. Since I am not authorized on your demand I have
forwarded your letter to our office in Cincinnati to the vice
president Mr Lass who handles these matters
It was stipulated that Mercer would testify that on or about
December 8, he mailed simultaneously to Carter at Blooming-
ton and Lass at Cincinnati form letter requests to bargain
concerning which Carter testified. Lass testified that he
received his copy of that letter around December 13, and that
he answered it by his letter of December 16, with a refusal to
recognize the Union because of "a good faith doubt that your
2 Compare , however, the promise of a raise to Francke who had an
even shorter period of employment
3 Berry had a second job on which she worked as late as midnight
and she admitted that with two jobs on her hands she "wouldn't have
minded" the opportunity for reporting later although she "just didn't
expect it "
4 The General Counsel concedes there was a substantial overall
decrease in hours worked in that week
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization represents a majority of the employees in an
appropriate unit." Lass' letter continued as follows
Since 1959 Fashion Fair has received many similar demands
for recognition from various local unions of the Retail
Clerks In all but one of these instances the claim of
majority was disproved by an NLRB election or by the
Union merely abandoning its claim
It concluded with the suggestion that the Union avail itself
of the election procedures of the NLRB.
On the foregoing record I conclude and find that the
request to bargain was actually received by Respondent on
December 11, when Carter read the request to Lass, and that
the request was refused on December 16
2. The constituency of the unit
The identities of the employees who constituted the unit
herein (see Conclusion of Law No. 3, infra), were established
by Respondent's letter of January 29, 1968, to the Regional
Director, with exceptions now to be noted. Listed were the
names of some 42 employees, four of whom (Debra Morrow,
Charlene Pocock, Susan Pratt, and Mary Purtlebough) were
stipulated to be excluded as seasonal employees. There
remained in issue George Bayne, Jr., and Cheryl Treadway
whose names were not listed but whom the General Counsel
contended should be included.5
Bayne was hired around November 11, and signed an
authorization card on November 30 He last worked on
December 8, but was troubled with a bad back and did not
return to work after that. Bayne did not know on December 8,
that he would not return and told no one that he was quitting
or was not coming back, and though he saw Carter in a
restaurant a day or so later, he told Carter only that he was
sick. In fact Bayne did not decide until about 3 days after he
left the job that he was not going back to it and then he did
not inform anyone of his decision. No evidence was offered
that Respondent took any action to terminate Bayne before it
received the request to bargain.
On the foregoing record I conclude and find that Bayne is
properly to be included in the unit as of December 11.
Cheryl Treadway was employed from January through
April of 1967, and was rehired around October 23. She
testified that she was laid off around the first of November by
Assistant Manager Ball, who informed her that Carter directed
him to lay her off because of a payroll shortage but that it was
not to be permanent and that he would call her when the
payroll was increased. Ball left the store shortly thereafter.
Though Treadway frequently visited the store and saw Carter,
she never inquired whether there was work for her, even during
the Christmas season when she knew that other employees
were being hired.
Carter testified that he himself made the decision to
discharge Treadway, that he directed Ball to fire her when she
went home at 5 o'clock on November 11, and that he had no
intention of ever rehiring her or recalling her.
On the foregoing record I conclude and find that Treadway
was terminated on November 11, and was not an employee at
the time Respondent received the Union's request to bargain.
5 Though Respondent at first contended that Dorothy Moore should
be excluded , its present view is that she was properly included but that
I therefore conclude and find that on December 11, when
Respondent received the request to bargain the unit consisted
of the 39 employees, whose names are listed in Appendix A
hereto attached.
3. The Union's majority
The General Counsel offered in evidence authorization
cards signed by 26 of the employees whose names are listed on
Appendix A hereto and which bear the designation (C)
thereon. Respondent does not attack the validity of the
authorizations signed by 14 of those employees and I conclude
and find on the basis of the testimony in the record that the
cards signed by the following employees constitute valid
authorizations George Bayne, Jr., Clara Berry, Barbara
Chambers, Iva Chambers, Beverly Clark, Patti Combs, Stephen
Crum, Loris (Mike) Francke, Linda Hickey, George Hunter,
Marjorie Miller, Sherry Pfafflin, Suzanne Sipes, and Christine
Waldnp.
In issue are the authorizations signed by the remaining 12
employees, Dorothy Moore, Alice Watson, Jerome Games,
Martha Evans, David Doyle, Phyllis Morganett, Steven
Chambers, Jeannette Meadows, Edith Stewart, Glodene
Waldnp, James Owen, and Marilyn Owen, who will be
considered in the order named.
In the case of Dorothy Moore Respondent does not
question the original signing as constituting a valid authonza-
tion but argues that after she signed the card she quit her
employment and that she never reaffirmed the card upon being
rehired on December 11. It contends that her act of quitting
terminated as well the authorization of the Union to represent
her and that it was necessary for her to reaffirm the
authorization before her card can be counted toward the
alleged majority
I reject that contention which is not supported by a citation
of any authority. The card which Moore signed authorized the
Union to act as her collective-bargaining representative in her
employment with Respondent She was an employee on
December 11, when the Union made its request to bargain and
she had not in the meantime undertaken to withdraw or
revoke the earlier authorization
In attaching the validity of Alice Watsons card Respondent
assigns a single sentence from her entire testimony to the
effect that she was left with the impression that if a certain
number of employees signed cards there would be a vote on
whether or not the store would go union. Watson, a high
school graduate authenticated her own card testifying that she
kept it for a while after Patti Combs handed it to her and that
she read it, filled it out, and signed it before returning it to
Combs Denying at first on cross-examinations that Combs said
to her the effect of signing the card was to get an election,
Watson continued that she did not remember exactly what
Combs said but that, " [M] y knowledge about the card was
that if I signed that card it meant the Union would be
representing the employees and that later on if they got a
certain number that there would be a direct vote whether or
not the store would go Union." Watson added, however, that
she recalled nothing that Combs said which gave her that
impression and did not know exactly how she was left with it.
her authorization card should not be counted toward the Union's
majority . See section 3, infra
FASHION FAIR, INC
Jerome Games, a student in the 12th grade, testified that he
kept his card for a while after Combs gave it to him, that he
read it, filled it out in part and signed it before returning it to
Combs Though Games claimed he understood what the card
meant, he testified that his understanding was that it was to
represent the employees in a vote for the Union and that is
what Combs told him and that was why he signed it On
further examination Games testified that Combs told him the
card "was to represent us in a vote whether the Union would
represent us in a vote. If a certain percent signed these cards
there would be a vote held in the store to decide . whether
or not the Union would get in."
Games' card was originally authenticated by Combs who
testified only that she gave Games the card and that he later
returned the signed card to her.
The card of Martha Evans was received on the authentica-
tion of Patti Combs, who testified that she gave the card to
Evans and that Evans later returned the signed card to her.
Evans herself when cross-examined by Respondent's counsel
testified that a union representative told her that, "[I] f we had
a percentage of the people to sign it then we would take a vote
as to whether we wanted the Union to represent us and that
we was under no obligation to the card" or by signing the card.
Evans, who had had 12 years of schooling, admitted that she
read the card before she signed it, that she discussed it with
Combs and Clara Berry and also discussed it some five times
with her husband, who was a member of the Union at another
plant.
The card of David Doyle was received on the authentication'
of Patti Combs, who testified that Doyle had refused to sign a
card for Mercer until he talked with Combs. Combs thereafter
talked with him and Doyle signed the card and gave it back to
her.
Doyle himself when cross-examined by Respondent's coun-
sel testified that Mercer told him the card was, "To represent
us and to help us," and if over half of the employees signed,
then "we could go ahead from there and later on to vote for a
Union." Doyle, an 11th grade student, testified that he also
talked with Patti Combs and with the vice principal at high
school about whether he should sign the card and that the
latter advised him to consider the matter of what better
working conditions might be obtained and whether increased
wages might amount to more than the Union dues he would
pay Doyle admitted that he knew that by signing the card he
was helping to get the Union in.
Phyllis Morganett testified that she signed her card at the
request of Clara Berry and Patti Combs who told her that if
they got enough people to sign they could take a vote on
whether or not to get a union in and that it did not mean that
she was for or against the Union. Morganett filled out the card
and signed it without reading it, taking for granted what they
said. She had discussed with Combs and Berry on prior
occasions the possibility of higher pay and better working
conditions if the Union got in and she also discussed the Union
with her husband, who was himself a union member Mor-
ganett admitted that she knew by signing the card she was
helping to get a union in but repeated that she was informed it
did not mean she was for or against the Union.
6 Both General Counsel and Union counsel claimed impeachment of
Waldrip's testimony by an unsigned statement which Attorney Fisher
took from her and which was received in evidence . Further examination
of the document , however, discloses that it was only a sketchy
149
Combs testified that she talked with Morganett several
times concerning the Union and the benefits that might be
obtained Morganett questioned her among other things as to
how the employees could get a union in and Combs explained
that there were three ways as she understood it, one by
signature check, one by proving a violation against the NLRB,
and one by vote Berry in turn denied that she said anything to
Morganett about a vote but told her that the card authorized
the Union to represent the employees
Respondent attacked six additional cards (Steven Cham-
bers, Jeannette Meadows, Edith Stewart, Glodene Waldrip,
James Owen and Marilyn Owen), which had been received on
the authentication of Organizing Director Mercer, by calling
the signatories (except Marilyn Owen) as well as Bernice
Lankford who was also solicited by Mercer.
Chambers testified in part that Mercer told him the card
was to show that Mercer had talked with him and that he
would like to have a vote on the Union and that if they got a
majority to sign the employees would be able to have a vote on
whether they wanted a union or not. On cross-examination,
however, Chamber testified that Mercer had discussed the
Union and union benefits with him on an earlier home visit and
had shown him contracts with other stores as well as the union
magazine, "It Pays to Belong." Chambers then informed
Mercer that before deciding he wanted to talk the matter over
with his father, who was a member of IBEW at another plant.
He later showed the card to his father, who told him about the
benefits of union membership but told him the decision was
up to him.
Jeannette Meadows testified that Mercer told her that by
signing the card she would be under no obligation and that
there would be a secret vote on whether the employees were
for or against a union. On cross-examination Meadows testified
that Mercer discussed union benefits with her, showed her the
union magazine and read some of the sections to her She
testified further that she read the card and willingly signed it
Edith Stewart testified that she was told by a union
representative (whom she was unable to identify as Mercer)
that if the Union got enough cards signed then it would come
to a vote for a union and that she signed because the union
representative stated they needed a majority in order to get a
vote for or against a union. On cross-examination Stewart
admitted that Mercer explained to her certain benefits of the
Union and that she read the card before she signed it Stewart
admitted further that in a prior employment at another plant
she had been in favor of the union and had talked in favor of it
to other employees.
Goldene Waldnp testified that Mercer told her he needed
her signature on the card to help get a majority so that the
employees could vote on the Union. On cross-examination
Waldnp admitted that she read the card before signing it but
denied that Mercer gave her a copy of the union magazine or
that he read any part of the magazine to her. Waldnp admitted
that she had belonged to IBEW when employed at another
plan t.6
James Owen testified that he and his wife, Marilyn Sue
Owen, signed cards for Mercer in their home after Mercer
explained they were under no obligation by signing and that
memorandum of Fisher 's rough notes of the interview and that as
concerned Mercer 's representations it was too indefinite to serve as
direct impeachment of Waldrip 's testimony
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there would still have to be a vote on the Union. On
cross-examination Owen admitted that he had talked with
Mercer on prior occasions, including one in a restaurant with
Mike Francke during the picketing when Mercer explained the
benefits and wage increases which might be expected. Owen
admitted further that the home visit lasted some 30 or 40
minutes and that Mercer left the union magazine with him.
Finally Owen admitted that Mercer on one occasion discussed
with him the process by which the employees would vote to
ratify a proposed contract and Owen was uncertain whether
the percentage figure (51 percent) which Mercer mentioned
related to the cards or to the percent needed to ratify a contract.
Respondent also called Bernice Lankford, who did not sign
a card, for the purpose of establishing a pattern of representa-
tions on Mercer's part. Lankford testified that Mercer informed
her he needed a certain number of signatures in order to have a
vote whether the employees would have a union or not. On
cross-examination, however, Lankford admitted that Mercer
had talked with her some hour and a half and that he
explained to her the three ways by which union representation
would be obtained (i.e., a card check by a neutral party, an
election conducted by the Board, or a Board order without an
election if the Company violated NLRA). Lankford admitted
further that Mercer showed her the union booklet and that he
read portions of it to her.
Mercer, testifying both in chief and on rebuttal, denied that
he told any employees the card was only for the purpose of
getting a vote or that they were under no obligation when they
signed and denied further stating that he wanted the card as a
record of his contacts. Mercer testified that he explained that
there were three ways by which union representation could be
obtained. One was that if 51 percent of the employees signed,
recognition might be obtained by a card check but the
Company did not have to agree to that, another way was to go
through an NLRB election when 30 percent of the employees
signed cards; and finally if 51 percent had signed cards and the
Company violated the National Labor Relations Act, the
Board might order the Company to recognize the union
without an election.
Mercer also left with each employee (except Barbara
Chambers) a copy of the Union's magazine, "It Pays To
Belong," which contained further detailed explanations con-
cerning the matters which Mercer covered orally. Finally
Mercer explained the procedures provided in the Union's
constitution for employee ratification of a proposed contract
and in that connection read to them the applicable paragraph
from the Union constitution, concluding with the sentence, "A
majority vote by secret ballot of those present and voting shall
be necessary to accept or to reject the proposal " So far as
obligation was concerned Mercer testified he informed the
employees they were under no obligation to become members
of the Union until 30 days after a contract was signed and
further that if the NLRB did conduct an election the
employees were not obligated to vote for the Union.
In addition to the foregoing Mercer testified in specific
reference to Respondent's witnesses as follows
He left the union booklet with Steven Chambers and
explained to him the three ways of getting a union in and also
explained the provision for a secret vote by employees on the
acceptance or rejection of a proposed contract. Mercer
explained to Meadows some of the union benefits and how the
employees could get union representation if they desired. He
also explained to her the provision in the constitution for a
secret vote by the employees on contract ratification.
Mercer explained to Edith Stewart the three ways the
Union could get in and also read to her the provision in the
constitution concerning a secret vote on a contract. Mercer
made similar explanations to Glodene Waldnp, telling her also
that one way to get a union in was by a vote in a Labor Board
election in which the employees would be free to vote.
Mercer first explained the use of the authorization to Owen
at the restaurant during the picketing and later went to Owen's
home where he told Owen and his wife the three ways of
getting a union in and also about voting on contract
ratification. He left them a copy of the union magazine and
went through it with them completely before they signed.
Concluding Findings
There is little in the above resume which supports
Respondent's attack on the validity of any one of the 11 cards
in question. The cards themselves contained only a simple,
unambiguous authorization of the Union to represent the
signatory in matters of collective bargaining, in phrasing which
was plainly within the understanding of persons with the
schooling which Respondent's employees had
The Board has consistently followed the rule that testimony
by the signer concerning his subjective intent is irrelevant and,
absent clear evidence of misrepresentation, cannot contradict
the clear designations expressed in the cards which they sign.7
The Board also continues to follow the rule of Joy Silk Mills v.
NL R.B., 185 F.2d 732, 743 (C.A.D.C.), that an employee's
thoughts (or afterthoughts) as to why he signed a union card
and what he thought the card meant cannot negative the overt
action of having signed a card designating the Union as
bargaining agent. Dan River Mills Incorporated, 121 NLRB
645, 648.
The Board does however look beyond the face of the
authorization in cases where the employees are told that the
only or sole purpose of the card is to obtain an election or a
vote Cumberland Shoe Corporation, 144 NLRB 1268, enfd
351 F.2d 917 (C A 6), Shelby Manufacturing Company, 155
NLRB 464, 466, and cases cited at footnote 4, Sandy's Stores
Inc., 163 NLRB No. 95, R W Inc., d/b/a K. Mart Foods, 170
NLRB No 67. But the evidence here fails to show any case in
which the employee was informed that the card was to be used
only to get an election. Mercer's testimony was that though he
referred to an election as one method of obtaining union
representation he explained the other two methods and called
attention also to the provisions of the Union magazine and the
Union constitution. That testimony was substantially con-
firmed by Respondent's witnesses Bernice Lankford and James
Owen, and there were others who admitted that Mercer either
left with them the Union magazine or read from it certain of
its provisions.
What the entire evidence suggests is that some confusion
may have existed on the part of some of the signatories from
the detailed explanations which Mercer made concerning the
various uses to which the cards could be put and by his
7 Jefferson Wire and Cable Corp, 159 NLRB 1384 , 1394, Dan
Howard Manufacturing Company, et al, 158 NLRB 805; Conren Inc,
d/b/a Great Scott Supermarket, 156 NLRB 592 , enfd. 368 F.2d 173.
FASHION FAIR, INC.
reference to (or reading from) the provisions of the constitu-
tion concerning a majority vote by employees on contract
ratification But the record does not establish that Mercer
thereby resorted to misrepresentation or that he deliberately
sought to confuse the prospective signatories. It was obvious
too that the claimed confusion and/or misunderstanding was
greatly exaggerated, for a number of Respondent' s witnesses
admitted seeking advice from members of their families (who
were union members) or from other persons, and some had
previously worked in union plants In such cases it is difficult
to conceive that the signatories were under any real misappre-
hension concerning the meaning of the simple authorization or
concerning Mercer's explanations
I therefore conclude and find on the entire evidence that on
December 11, the Union held valid authorizations from 26
employees" in a unit of 39 and was thus the exclusive
representative of all employees in such unit within the meaning
of Section 9(a) of the Act
4. Good-faith doubt, the appropriateness of
a bargaining order
Respondent in rejecting the request to bargain in its letter
of December 16, rested its claim of good-faith doubt on the
following.
Since 1959 Fashion Fair,has received many similar demands
for recognition from various local unions of the Retail
Clerks. In all but one of these instances the claim of
majority was disproved by an NLRB election or by the
Union merely abandoning its claim.
Respondent established the factual correctness of the
quoted paragraph by Lass' testimony and by offers of proof
No further evidentiary support for the alleged good-faith
doubt was offered and though Respondent's brief now refers
to a "questionable" majority because of alleged misrepresenta-
tion or union created confusion concerning the signing of
cards, it made no attempt at the hearing to establish that any
of the employees made any such claims to it prior to rejection
of the Union's request Carter, Respondent's obvious conduit
for such reports, testified to nothing of such a character and to
nothing else which was indicative of doubt on his part
concerning the Union's majority
Respondent's defense thus rests solely on Lass' testimony
that, sitting in the Cincinnati office, he doubted the Union's
majority because except in one of its stores the Union had
been unsuccessful in establishing majority status. It is difficult
to perceive how that fact would support a claim of doubt at
the Bloomington store, particularly since there was no showing
that Lass knew or could have known the extent of the Union's
success in signing up the Bloomington employees, and Carter,
who by his own admissions learned considerable from the
employees, gave no indication that he entertained doubt of the
Union's majority claims Furthermore the Union's success at
one store itself demonstrated the fallacy of blanket assertions
of doubt and established that majority claims could properly
be measured and answered only in the light of circumstances at
individual stores.
But Respondent calls attention to no circumstances at
Bloomington which gave rise to any doubt on its part at the
time Lass received and rejected the Union's request. Further-
8 I hereby receive in evidence the authorization card of Jerome
Combs on which ruling was reserved at the hearing
151
more the Union's request itself proposed a reliable method for
resolving the majority question for in requesting a meeting for
recognition and bargaining it stated that it would attend
"prepared to prove its majority status via a card check
conducted by any neutral third party whom we can mutually
agree upon " Respondent could easily have resolved its alleged
doubt if it had availed itself of that offer, for it would have
learned that at Bloomington-as at New Albany-the Union in
fact represented a majority of the employees
Instead, however, Respondent demonstrated both before
and after the request to bargain that its disposition was to
forestall the Union and to dissipate its majority Thus immedi-
ately upon learning that the Union was engaged in an
organizing campaign it announced the granting of a number of
increases (thereby substantiating Carter's representations that
Respondent indeed had more to offer than the Union) and it
warned and threatened Combs and Berry with discharge in
retaliation for their union adherence. Following the request
Respondent continued its bestowal of wage increases, obvi-
ously to influence employee action in choosing a bargaining
representative As the Supreme Court recognized in Medo
Photo Supply Corp v NLRB, 321 US 678, 686, such
action may be "induced by favors bestowed by the employer
as well as by his threats or domination " The Court followed
that holding in N.L R B. v Exchange Parts Company, 375 U S.
405, pointing out that-
The danger inherent in well-timed increases in benefits is
the suggestion of a fist inside the velvet glove. Employees
are not likely to miss the inference that the source of
benefits now conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged.
Also see Western Cartridge Company v N.L R.B, 134 F 2d
240, 244 (C.A. 7), where the court expressed agreement with
the Board that "[I] nterference is no less interference because
it is accomplished through allurements rather than coercion,
when, as here, the system is employed to stem a tide of
organization . "
I therefore conclude and find that by refusing to bargain
with the Union on and after December 16, Respondent
engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act. Here (as in Noma Lites Corp , 170
NLRB No. 142) Respondent's unfair labor practices were
calculated to prevent the Union from gaining additional
strength, to dissipate whatever strength the Union had at the
time of the commission of the unfair labor practices, and to
undermine the Union's status as majority representative As
Respondent's conduct made the holding of a free election
impossible, the Board may properly require Respondent to
recognize and to bargain with the union Joy Silk Mills v
NL R.B, 185 F.2d 722 (C A D C.), N.L R B v Atco-Surgical
Supports, Inc., 394 F.2d 659 (C.A. 6) (decided May 10, 1968),
N.L.R B. v. Goodyear Tire & Rubber Co, 394 F 2d 711 (C.A.
5) (decided May 6, 1968), and cases there cited.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case I make the following
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of the
Act, Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By imposing more arduous working conditions on Clara
Berry, Respondent discriminated in regard to conditions of
employment to discourage membership in the Union, thereby
engaging in unfair labor practices proscribed by Section 8(a)(3)
and (1) of the Act
3 All regular full-time and part-time employees employed
in Respondent's Bloomington, Indiana, store excluding the
store manager, assistant store manager, casuals and/or seasonal
employees, guards, confidential employees, professional em-
ployees, and all supervisors as defined in the Act, constitute a
unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act
4 On December 11, 1967, and continuing to date the
Union has been the exclusive representative of all the
employees in the above-described unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment
5. By refusing to bargain with the Union on and after
December 16, 1967, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
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 engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action outlined
below which I find to be necessary to remedy and to remove
the effects of the unfair labor practices and to effectuate the
policies of the Act For the reasons stated in section D(4),
supra, I shall recommend an appropriate bargaining order.
Inasmuch as Clara Berry voluntarily quit her employment
on December 22, it is unnecessary to provide for an affirmative
remedying of the discriminatory treatment accorded her
[Recommended Order omitted from publication ]
APPENDIX A
Employees in Unit-December 11, 1967
(C) George Bayne, Jr (C) George Hunter
(C) Clara Berry Eva Ketcham
(C) Barbara Chambers Bernice Lankford
(C) Iva Chambers (C) Jeanette Meadows
(C) Steve Chambers Deloris Miller
(C) Beverly Clark (C) Magorie Miller
(C) Patti Combs
Shirley Comley
(C)
(C)
Phyllis Morganett
Dorothy Moore
(C) Stephen Crum
Beverly Deckard
(C)
(C)
James Owen
Marilyn Owen
(C) David Doyle (C) Sherry Pfafflin
(C) Martha Evans
Shirley Fleener
Donald Fleener
(C)
(C)
Suzanne Sipes
Edith Stewart
Irene Stewart
(C) Loris (Mike) Francke Shirley Stewart
(C) Jerome Games
Sandra Ham
Aola Hawkins
(C)
(C)
Ramona Stone
Christine Waldrip
Glodene Waldrip
(C) Linda Hickey (C) Alice Watson
Linda Welch