The M. O'Neil Co.

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 150 (N.L.R.B. 1974)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The May Department Stores Company d/b/a The M.
O'Neil Company and Retail Clerks International
Association , Local 698, AFL-CIO. Cases
8-CA-5832 and 8-RC-7117
June 7, 1974
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On May 25, 1972, Administrative Law Judge i
Thomas A. Ricci issued the attached Decision and,
on August 31, 1973, the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
Charging Party filed cross-exceptions and a support-
ing brief. Subsequently, an answering brief was filed
by Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decisions in light of the exceptions and
briefs2 and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge, as modified herein.
The Administrative Law Judge concluded that
Arthur Emma, Respondent's president, made a
speech to the employees in which he threatened to
close the Akron store unless they voted against union
representation, thereby violating Section 8(a)(1) of
the Act. We do not agree.
In reaching his conclusion, the Administrative Law
Judge actually credited Emma's numerous denials of
having made such a threat, but found, nevertheless,
that parts of Emma's speech had intentionally
conveyed to employees the impression that such a
threat had been made. In our view, the Administra-
tive Law Judge erred in his analysis by falling to give
proper weight to the entire context of the speech and
to the circumstances of the election campaign which
preceded it.
The M. O'Neil Company operates nine stores in
the area in and around Akron, Ohio. The election
herein involved the downtowi_ Akron store, the
largest in the group and the Company's principal
store and headquarters. About 1 year prior to the
second election, Arthur Emma was transferred to
Akron by the parent May Department Stores
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Respondent has requested oral argument This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
Company from a position he had held in Richmond,
Virginia, and was appointed O'Neil's president. He
proved a very visible and voluble officer, constantly
talking to employees and frequently making
speeches. He promised the employees he would make
things better for them and said that he had plans for
resuscitating the declining fortunes of the large
downtown store. It appears from the record that
most of O'Neil's suburban and outlying stores were
in better economic condition.
Depending on their work schedule, Respondent's
employees heard Emma's speech either 1 or 2 days
before the election. Prior thereto, the Petitioner had
distributed leaflets containing a cartoon which
unflatteringly depicted Emmas as "The `Carpet
Bagger' President" from Richmond and accused him
of breaking his promise to make things better for
employees by spending company funds on new
chandeliers, new carpets, store structural alterations,
and other refurbishments, instead of on employee
benefits. Another Petitioner leaflet featured a car-
toon which pictured Emma shearing sheep, accom-
panied by the warning, "You know what they're up
to, so don't get fleeced!"
In his speech, Emma-responding to the allega-
tions of the leaflets-stated that the refurbishments
and structural alterations had been made for the
purposes of attracting more customers to a more
appealing store and of reducing losses from pilferage
by having a physical layout less conducive to
shoplifting; that success in turning the store around
would lead to greater job security for employees; and
that the continued pendency of the election during
the past year had prevented him from doing things
directly for employees. At one point, further re-
sponding to the leaflets' criticism, he said he would
rip out the store's new carpeting and chandeliers if he
thought it would result in more money for the
employees. He also explained that because of inner
city problems downtown stores everywhere were in
decline, and that the program he had implemented
was intended to entice new customers and, thereby,
indirectly benefit the employees. At the close of his
speech-which lasted approximately one-half hour-
-Emma stated as follows:
I am a builder. I work with people. If the people
will not work with me I cannot build. It is the
only way I know how. I cannot work with
bickering, dissension, division, hostility. Every-
thing I try to do sabotaged-people sticking
knives in my back. If I can't work at the difficult
and positions of the parties
Respondent 's motion, requesting the Board to disregard the Charging
Party's cross -exceptions , is hereby denied as lacking in merit
211 NLRB No. 14
THE M. O'NEIL COMPANY 151
job of turning this downtown store around, I just
have to abandon it. I have to work in the
branches. I have to work with people who are
interested in seeing us get ahead rather than
working with people who are trying to destroy.
You have to tell me how you feel. This is your life.
You see what has happened at Polsky's.3 You
have watched it, observed it. Vote No, Retail
Clerks. Vote No. Thank you.
In concluding that Emma, in effect, threatened to
close the store if the Union was successful, the
Administrative Law Judge relied on his interpreta-
tion of the statements Emma concededly made and
on the testimony of five of the General Counsel's
witnesses respecting their impressions of the speech.
We give little weight to the accounts of those
witnesses for the following reasons: (1) the Adminis-
trative Law Judge indicated that, in evaluating
testimony, he was inclined to rely less on his
observation of witness demeanor than he was on his
own view of "related objective factors and the logical
probability of events"; (2) only two of those
witnesses testified that Emma said-or, in one case,
implied-that he would close the store if the Union
was voted in and both witnesses failed to make
similar allegations in affidavits they gave to Board
agents shortly after the election, some 2 years prior to
their testimony at the hearing; (3) the other three
witnesses remembered little more than Emma's
remark about concentrating on the branch stores and
did not assert that Emma had conditioned his future
actions on the Union's success in the election; (4) the
Administrative Law Judge failed to cite the testimo-
ny of three other General Counsel witnesses-all
credited by him relative to other unfair labor practice
allegations-to the effect that they had heard
Emma's speech, but could recall no threats having
been made at all; and (5) considering the fact that
over 1,000 employees heard the speech, the testimony
confirming Emma's alleged threats appears minimal.
We conclude from the above that the Administra-
tive Law Judge, rather than reaching his conclusions
on the basis of testimony from credited witnesses,
made his ownjudgment as to the meaning of Emmas'
speech and then cited the testimony of those
witnesses who appeared to support his view.4
In our view, the disputed part of Emma's speech
3 It appears from the record that Polsky's was a department store located
across the street from O'Neil's that had previously been organized by the
Retail Clerks At the time of Emma's speech, Polsky's was apparently
having economic difficulties caused, at least in part, by a truckdriver's
strike.
4 We note that employee Robinson's rather vague testimony concerning
Emma's speech was cited by the Administrative Law Judge, without
comment on, or explanation for, the fact that this same witness was
specifically discredited when he testified regarding other alleged unfair
labor practices
did not constitute a threat to close the store before
allowing the employees to bargain collectively, but,
rather, was a reaction to, and an emotional protest
against, the Union's personal attack on himself and
on his implementation of plans to revive the store,
and could reasonably be understood as such by the
employees.5
While some of Emma's remarks certainly indicate
that without a union his efforts on behalf of the
downtown store would continue unabated, we see
nothing in the speech which threatened that unioni-
zation and improvement in the economic position of
the store were incompatible. Rather, Emma was
asserting that if the attacks against his efforts and
methods for rebuilding the store-as exemplified by
the Union's campaign literature-continued, he
might abandon those efforts and concentrate on the
branch stores. C. E. Glass, Division of Combustion
Engineering, Inc., 189 NLRB 496. If that be con-
strued as a threat, it was not a threat to retaliate
against the employees' desire for union representa-
tion, but a threat to retaliate against anticipated
hostility toward the store-improvement program-an
expected hostility based on past expenence.6
Accordingly, we do not adopt the Administrative
Law Judge's finding that Emma's speech violated
Section 8(a)(1) of the Act.
2. We find, in agreement with the Administrative
Law Judge, that Respondent violated Section 8(a)(1)
of the Act by the following conduct of its supervi-
sors: (1) telling 1 employee, on one occasion, that if
the Union won the election the store would probably
close and, on another, that packing machines might
be brought in to replace certain employees; (2) telling
10 to 15 employees that they should form a company
union instead of supporting the Petitioner; (3) telling
I employee that a union contract would require a
health examination that he could not pass; (4) telling
a total of 10 to 13 employees that certain specified
benefits and privileges would be lost if the Union was
successful; and (5) interrogating approximately 20
employees as to their union sympathies or, in a few
cases, as to the sympathies of others.
3. The Administrative Law Judge, apparently
relying solely on his finding with respect to Emma's
speech, concluded that the unfair labor practices
found herein were of such an extent and nature as to
require that Respondent be ordered to bargain with
5 See Mike Velys, Sr. et at, d/b/a R & M Electric Supply Co, 200 NLRB
No 59
6 Cf The Hiatt Shoe Company Blue Star Shoes, Inc, 195 NLRB 554 We
note that, in setting forth his rationale, the Administrative Law Judge states
"it ]here is no evidence of hostility by anyone, except it be the determination
to bring a union into the store against the Respondent's desire " Were that
the case here, our finding on this issue might be otherwise However, in fact,
the Union had demonstrated hostility toward Respondent on the very issue
Emma was discussing-namely, the steps being taken to improve the
downtown store's image
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. He also concluded that Respondent had
unlawfully refused to bargain in violation of Section
8(a)(5) of the Act.
In view of our finding that Emma's speech was not
unlawful, we conclude that the remaining violations,
set forth supra, are not so coercive that they preclude
the holding of a fair and reliable third election after
application of traditional remedies.? In so conclud-
ing, we have taken into consideration the small
percentage of employees directly affected and the
fact that the conduct was committed by first-line
supervisors who appear to lack authority to carry out
severe threats. Moreover, the instances of interroga-
tion were rather limited, usually being confined to a
single question and, in some instances, those ques-
tions appear to have been largely rhetorical in nature.
Stoutco, Inc., 180 NLRB 178.
Wholly apart from the efficacy of traditional
remedies herein, we note that whatever "lingering
effect" the Respondent's unfair labor practices may
have had has, in part at least, likely been dissipated
by the very considerable lapse of time here, which
time lapse also casts some doubt on the card
signatures as evidence of majority status.8 We note,
in this connection, that the record is at best unclear
as to what proportion of the cards may have been
stale , a factor which further militates against finding
a bargaining order to be an appropriate remedy in
the circumstances of this case. However, since we
have concluded that the facts in this case do not
warrant the issuance of a bargaining order, we need
not pass upon the disputed question of the Union's
majority status as of the date recognition was
requested.
4. The Petitioner's objections to the election
encompass the subject matter of the violations found
herein and, accordingly, we agree with the Adminis-
trative Law Judge that those unfair labor practices
interfered with the employees' free choice in the
election. Therefore, we shall direct that the second
election be set aside and that the Regional Director
shall hold a third election to determine the question
of representation at a time when he deems that a fair
election can be held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
7 Accordingly, we do not adopt the Administrative Law Judge's finding
that Respondent violated Sec . 8(a)(5), without implying that we would have
so found had we concluded that a bargaining order was justified.
8 Member Kennedy would find that this considerable time lapse-none
of which is attributable to Respondent-was largely the product of the
Board 's Decision and Direction of Second Election (181 NLRB 710),
wherein , in his view , the Board unwisely revised the applicable eligibility
The May Department Stores Company d/b/a The
M. O'Neil Company, Akron, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Advising employees to form a company union
in place of the Retail Clerks Union, telling employees
that a vote for the Union would endanger their jobs
with the Respondent, telling employees that the
Company would replace them with machines if a
union should become their bargaining agent, telling
employees they will lose diversified benefits and
privileges if they chose to be represented by a union,
or coercively interrogating its employees concerning
their union sentiments.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist Retail Clerks Interna-
tional Association, Local 698, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, except to the extent that such right may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Post at its downtown store in Akron, Ohio,
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the
Regional Director for Region 8, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the election held on
April 16, 1970, in Case 8-RC-7117 be, and it hereby
rules after the first election had been held . See Member Kennedy's partial
dissent in C. W. Post Center of Long Island University, 198 NLRB No. 79.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
THE M. O'NEIL COMPANY 153
is, set aside , and that Case 8-RC-')117 be, and it
hereby is, remanded to the Regional Director for the
purpose of conducting a new election.
[Direction of Third Election and Excelsior footnote
omitted from publication.]
Board's Office , Suite 1695 , Anthony J. Celebrezze
Federal Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.
TRIAL EXAMINER'S DECISION
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated the Federal Law by
refusing to bargain with Retail Clerks International
Association, Local 698, AFL-CIO:
WE WILL NOT advise our employees to form a
company union in place of any other labor
organization.
WE WILL NOT tell our employees that a vote in
favor of a union will endanger their jobs.
WE WILL NOT tell our employees that we will
replace them with machines if they vote in favor
of any union.
WE WILL NOT tell our employees they will lose
diversified benefits and privileges if they vote for
any union.
WE WILL NOT coercively interrogate our em-
ployees concerning their attitudes towards any
union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to join or assist Retail Clerks International
Association, Local 698, AFL-CIO, or any other
labor organization, and to engage in other
concerted activities • for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
THE MAY DEPARTMENT
STORES COMPANY D/B/A
THE M. O'NEIL
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: This is a consolidated
p oceeding joining for single hearing a complaint case,
se 8-CA-5832, and a representation proceeding, Case
8-RC-7117. On the basis of a charge filed April 22, 1970,
by Retail Clerks International Association, AFL-CIO,
Local No. 698, herein called the Union, the General
Counsel on December 17, 1971, issued a complaint against
the May Department Stores Company d/b/a The M.
O'Neil Company,herein called the Respondent or the
company, alleging violations of Section 8(a)(1), (3), and (5)
of the Act. In the representation case an election was held
on April 16, 1970, and the Union, which lost, filed
objections to conduct affecting the results of the election.
The Regional Director investigated the objections and on
January 11, 1972, issued his Report on Objections in which
he directed a hearing on certain enumerated objections. A
hearing on the complaint and the objections was held
before the duly designated Trial Examiner on March 6, 7,
and 8, and on April 4 and 5, 1972, at Akron, Ohio. On
April 5, pursuant to agreement of all parties, the hearing
was adjourned indefinitely pending ruling by the Trial
Examiner on a motion by the Respondent to dismiss a
major allegation of the complaint. Briefs were thereafter
filed by all three parties.
Upon the entire record, and from my observation of the
witnesses, I make the following: I
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York State corporation, with its
principal office and place of business in St. Louis,
Missouri, is engaged in retail sales of general merchandise.
Through an operating division called The M. O'Neil
Company, it operates department stores in the vicinity of
Akron, Ohio, including the downtown Akron store, the
only location involved in this proceeding. The Respondent
annually sells products valued in excess of $1 million and
receives goods valued in excess of $50,000 in the State of
Ohio directly from out-of-state sources. I find that the
Respondent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act to
exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
1 An unopposed motion by the General Counsel to correct a single
typographical error in the transcript is hereby granted
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Issues Presented and Procedural Status
This is essentially a refusal-to-bargain case, and the
central question to be decided is whether the Respondent
must be ordered to bargain with the Union as exclusive
representative of its approximately 1,360 nonsupervisory
employees. Pursuant to Board decision a first election was
held among these employees on May 22, 1969.2 For
reasons unrelated to any allegation of improper conduct by
any of the parties, the Board set the results of that election
aside and on March 17, 1970, issued a second direction of
election in the same representation proceeding.3 The
second election was held on April 16, 1970; the final tally
of ballots showed 560 votes in favor of, and 624 against,
the Union, with challenges insufficient to affect the results.
As stated, the Union filed objections to the election and a
charge alleging unlawful refusal to bargain.
The complaint alleges that in the period between
issuance of the Board's second direction of election and the
balloting 30 days later, management representatives
committed a number of violations of Section 8(a)(1) of the
Act in the form of illegal statements which of necessity
tended to restrain and coerce the employees in their
freedom of choice in the matter. There is also an allegation
of violation of Section 8(a)(3), unlawful discrimination in
employment against one employee. With a single exception
the complaint allegations of wrongdoing restate the
substance of the interference misconduct charged to the
Company in the Union's objections. On the basis of these
alleged unfair labor practices violating Section 8(a)(1) and
(3), the complaint charges that the Respondent's asserted
refusal to bargain on request must be viewed as also
unlawful under Section 8(a)(5), and to require an affirma-
tive order to bargain as a proper remedy. And it is also
alleged that at the time of the demand and refusal, said to
have occurred on April 13, 1970, the Union in fact
represented a majority of the employees in an appropriate
bargaining unit, as evidenced by properly executed written
authorization cards.
By the close of the third day of hearing, on March 8, the
General Counsel and the Union, having called 24 witness-
es, had completed their case-in-chief, insofar as it em-
braced all allegations and objections, with the sole
exception of the question of demand and refusal, appropri-
ate unit, and majority status. At this point, by agreement of
all parties, it was deemed expedient that the Respondent
should proceed to offer its defense case with respect to all
allegations, and objections, involving issues falling within
the direct ambit of Section 8(a)(1) and (3). The Respondent
denies that any unfair labor practices were committed. It
also argues, however, that even assuming certain violations
of Section 8(a)(l) and (3) may be found, they cannot be of
such an extent and nature as to justify an affirmative
bargaining order, even assuming the General Counsel can
prove demand and refusal and majority status in an
appropriate unit. There was reason for the parties' agreed-
upon novel procedural plan. Resolution of the majority
status issue in this case, involving so large a number of
employees, will give rise to very extended and costly
litigation. Should the violations of Section 8(a)(1) and (3),
if any, adequately proved after full litigation of those
issues, not warrant an unlawful refusal to bargain finding
under the rule ennunciated in N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969), the question of majority
status is mooted.
Accordingly, on April 4 and 5 the Respondent proceeded
to introduce its defense pro tanto -fully responding to the
Government's evidence thus far given, and the Union's
proof in support of its objections. It then moved for
dismissal of the complaint allegation of violation of Section
8(a)(5). The hearing was then adjourned, pending decision
by the Trial Examiner on all issues thus far litigated and
ruling on the critical motion. It is the desire of all parties
that the merits of the Respondent's motion be considered
by both the Trial Examiner and the Board before they are
called upon to litigate the question of the authorization
cards.
B. Overall Picture
Appraisal of the testimony in this record requires
preliminary statement of certain realities pertinent to the
correct decision. The Union campaigned hard to win the
election; the Company was no less determined to persuade
the employees to vote otherwise. As soon as the Board's
direction of second election was received by the Company,
about March 17, it held meetings of supervisors and
distributed to all of them certain instructions. These
consisted of a list of "do's and don'ts" and detailed
statements of the economic benefits at the moment enjoyed
by the bargaining unit employees compared to provisions
found in union (Retail Clerks) contracts at Kaufman's
Department Store in Pittsburgh, and at Click Discount
Store, and two contracts with other unions covering the
Respondent's own employees in its bakery department and
its delivery and maintenance mechanics group. The
supervisors, of whom there are about 150 in this store, were
urged to use this material in their discussion of the pros
and cons of unionism with the employees.
It is a normal practice for departmental supervisors-ar-
ea managers, buyers, and assistant buyers-to hold
Saturday morning meetings with their respective employ-
ees before the store opens for business, where they
ordinarily discuss matters relating to the work to be
performed. During the last several weeks before the April
16 election, the supervisors utilized these meetings on
many occasions to project the Company's views about the
disadvantages of collective bargaining, with frequent
references to the material they had been furnished for this
purpose.
During this same period-again the month preceding the
election-the Company arranged for the employees, in
groups of 25 or 30, to tour the store, if they chose to accept
the invitation, on paid time. The announced purpose was
to interest them in physical improvements that had been
made and the prospects of better working conditions.
2 175 NLRB 514.
3 181 NLRB 710.
THE M. O'NEIL COMPANY 155
About 25 such tours were held, each ending in a
conference room with coffee and cake and Arthur Emma,
the company president, making a speech. The subject of
the imminent election frequently arose and again the
supervisors took the opportunity to suggest things go better
without a union. It is a fair inference, which I make, that
the Respondent planned the tours at this particular time
for the purpose of influencing the outcome of the election.
During the 30 minutes before the store opened on April
15, the day before the election, Emma spoke to virtually all
the dayshift employees-variously estimated as between
800 and 1,000-in a speech intended as the final pitch for
votes in favor of the Company, as the president said. He
gave the same talk at about 5 p.m. the day before to a
smaller group, 200 or more, the employees who were not
scheduled to be in the store the next morning. Emma
pulled no punches; anybody who was not "with" the
Company was a "saboteur," a "snake in the grass."
Turning to the Union's tactics, there is another signifi-
cant fact. The Company has long had a no-solicitation
rule, posted, publicized, and well known by the employees.
In any large department store, with a great number of
employees no doubt widely dispersed when at home, such
a rule hampers attempts at self-organization, "interferes"
with the union's campaign. In this instance the Union's
organizers, full time, paid residents of Akron and out-of-
towners, had no intention of abiding by the rule and
violated it at every turn. Seven of them were identified in
the record by name-Bittinger, Chrisman, Hennigen,
Silvester, Dryer, Finley, and Fuchs, and two-Bittinger
and Hennigen-even testified about their professional
activities inside the store. Kostewics, the store security
director, said he knew of 20 or 30 organizers, but the real
total probably was somewhere between 7 and 20 or 30. All
of them wandered about the store at will, singly and in
pairs, all over the main floor, upstairs in the departments,
up and down the stairs and elevators. They talked to the
people who were at work. All this began in 1968, when the
Union first started obtaining signatures to authorization
cards; the store detectives then picked the organizers up
bodily and literally threw them out the doors; they went
out screaming "at the top of their voices." The Union filed
unfair labor practice charges against the Company for this,
but they were dismissed.
With time the Company "backed off" from this
approach because it "is not good business practice."
Instead it had its security men and women follow the
organizers closely through the store, one on one or four on
four, stand close by when they talked to employees, sit next
to them in the public restaurants of the store, "surround"
them in groups, even blow cigarette smoke in their
direction as an inconvenience. The object was to "inhibit"
their activities "psychologically." The employees saw all
this happen, and it continued right up to the day of the
election.
There are, of course, in this case no charges of
misconduct against the union agents. But it is a fact that
whenever an organizer talks to an employee while he or she
is at work, in the public areas of the department store, of
necessity the employee is also engaged in conversation with
the union solicitor. The employee is no less violating the
no-solicitation rule than is the outsider. No doubt many
employees ignored the interlopers, but there was much
evidence of others who did not. The idea, again and again
repeated by the union witnesses, that they just passed by to
say "hello," "how are you," "how's the kid," is entirely
unpersuasive. I cannot believe that these people, hired
expressly to persuade the employees to vote in favor of the
Union, on their paid time, in the very store where they
were supposed to discharge their direct responsibilities, did
anything but literally engage in organizational activities.
C. Violations of Section 8(a)(1)
The unfair labor practices charged to the Respondent,
said to have coerced and restrained the employees in
violation of Section 8(a)(1) of the Act, fall essentially into
two categories-interrogation and threats of reprisal. The
principal spokesman in the widespread campaign to insure
the defeat of the Union at the election was President
Emma himself. He took pains to stress at the hearing that
he talked often and extensively. He talked to all of the end-
of-tour gatherings when 25 or 30 employees at a time
listened, and then wrapped up the campaign the last 2
days, to all the group on final sessions. A great many
supervisors helped carry the message, whatever it was.
They spoke to smaller gatherings, usually the Saturday
morning meetings in their departments, and with much
greater frequency to individual employees on the selling
floors. The tone of the talks, of course, was set by Emma,
for his is the dominant voice of the Company.
The testimony generally is not always clear as to which
particular meeting or conversation was involved, and the
details given by the many witnesses were very minute and
diversified. It is therefore not possible, coherently and
intelligibly, to make pinpointed credibility resolutions of
every jot and title of disagreement, or to rely too greatly
upon the demeanor of witnesses who spoke of many
incidents involving many different persons. Rather, a fairer
approach in deciding what really happened is to rely at
least as much upon related objective factors and the logical
probability of events.
Fif teen of the twenty three witnesses called !by the General
Counsel' offered what they remembered of Emma's talks, at
one meeting or at another. As he was the principal company
spokesman, the case will be best evaluated if his activities
be considered first.4 The employees were often imprecise in
their recollections, sometimes paraphrased what they had
heard, indeed on occasion stated their impression instead
of quoting other people verbatim. But Emma is an
experienced management representative, very intelligent
and extremely articulate. He was calm and collected at the
hearing and he knew exactly what he was doing as a
witness. What ambiguity there is in his testimony results
from the fact he mixed the reasons for his talks with what
he told the employees. ". . . the major problem was our
downtown store. Obviously, central cities have been having
4 From Emma's testimony: "I practically never stopped talking and to everybody in the store that I am used to being on the selling floor and to
never stopped giving speeches. I think it is part of my style of management. being through the entire store, and I think everybody knows me and I know
I continued to talk to everybody in the store on a regular basis. It is obvious most of the people in the store."
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
problems. The customers who use to go downtown were
going to suburbs because of parking problems and all sorts
of reasons." "... in the downtowns we had all kinds of
problems such as pilferage and so forth." Were these the
words he used to the employees? If his total story is to be
viewed as an entity, it must be so read. In any event, in the
appraisal of an employer's speeches intended to obtain
"no" votes, the legality of his appeal does not turn upon
the exact words he uses but upon the substantive import of
the message he conveys, considering the total circum-
stances of the moment. What Emma really said, particular-
ly during the last two talks, each lasting 20 minutes or
more, on the last 2 days before the election, are best
understood if his own explanation be considered now.
A year earlier Emma had publicized his intent to make
things better for the employees in terms of employment,
and during the period between the first election, in May
1969, and the second, in 1970, in his effort to increase the
volume of business in the downtown store he had
embellished the physical property by adding fancy rugs
and decorative chandeliers. In its own campaign literature
during March and April the Union called him to task for
failing to advance the direct interests of the employees, as
he had promised, and for improving the store, at great
expense, while ignoring the take-home pay of the working
staff. Among other things, Emma defended himself against
this criticism. If he had done nothing directly favorable to
the employees, he explained, it was the fault of the Union,
and the Board, because they kept the question concerning
representation alive and unresolved, until March, when the
Board directed the second election. Any increase in pay or
other concessions during this period would have resulted in
unfair labor practice charges against the Respondent. On
this subject Emma was not wrong. I believe he said this.
But the principal burden of the employee witnesses'
testimony is that Emma also said the Respondent would
close the store altogether if it had to deal with a Union,
that it would abandon the downtown store and turn it into
a warehouse. The M. O'Neil Company also owns and
operates suburban stores in the outskirts of Akron, and,
still according to the employees, Emma threatened that he
would transfer his activities to the outlying stores in
preference to having anything to do with the Union. In his
version, as given at the hearing, Emma said all of this was
no more than a concern with declining business and an
intent to inspire the employees to greater effort in order to
increase the volume of sales.
He started by relating how he explained to the employees
the inner city problems generally, how downtown stores
everywhere were in decline, and how his new c indeliers
and rugs were intended to entice new customers and
indirectly improve the lot of the employees as well. "Q:
... Did you mention this [chandeliers and carpets] in
your talk? A: I certainly did. I talked on it at great length.
This to me typified the whole frustration of the campaign.
Here was a downtown store losing sales to brand new
surburban stores that customers were shopping in because
they were fresh and new." Emma said he wanted to enlist
the cooperation of the employees, and to put an end to
what he called a lack of enthusiasm on the part of some. In
the process he said there were "saboteurs" in the crowd,
"snakes in the grass," people who "knifed him in the
back." In response to a leading question by his lawyer,
Emma said at the hearing that he did not relate these
concepts to unionism. He also said: "My purpose that
morning was to get the people to vote against this Union."
And to make his message clear he referred, during his talks,
to the material set out in the pamphlets the Union had
distributed.
Emma took issue with the employees who said they
heard him utter the words "close the store" or "abandon
the store" or "turn it into a warehouse." He denied having
spoken these precise words. I believe him. He would hardly
be that blunt. But a very revealing portion of his testimony
is his explanation of the word "abandon," which he said he
did use. He said what he meant was he would abandon his
"strategy." "... I said if we couldn't work together, if
everybody didn't work, I would have to abandon my
strategy . . . if we can't make this succeed, and I don't
know whether I said downtown store succeed or not as I
am really not absolutely certain, but I did say that, if we
can't work together, I will abandon it." Artfully, but clearly
enough, he kept stressing the fact something was dividing
the employees, or separating the employees from the store.
"I made very strong adherences to team play . .. and I
made reference time and time again to the fact that we had
to stay united and work together to get a job done." "Q:
Do you recall either at this meeting or any other meeting
using the term `snakes in the grass'? A: I don't recall at this
meeting, I might have. I certainly at times, I imagine, could
have used the expression because I think you have to
understand this. I was working very hard to be a leader
with the group. There were those in the community, there
were executives in the store, there were all kinds of people
who obviously had other objectives than mine, and I don't
think `snake in the grass' is necessarily the most descriptive
term . . . there were those who didn't agree with me and
certainly my competitors across the street and the discount
stores .... ' "There were all kinds of people working
against us. Not everybody had the interest of O'Neil's.
Frankly, saboteurs was the one way to describe it."
There can be no doubt that Emma was by all this telling
the employees the store would be closed, the suburban
stores would be developed in its place, and "jobs and the
security" would be lost, if they voted for the Union. Alt
this talk about saboteurs and snakes in the grass hardly fits
a rational appeal to employees to be more cooperative in
discharging their duties. Given the timing of the events,
one could not believe Emma even had he denied his
purpose was purely to influence the outcome of the
election. He was not talking to executives, he was not
talking to competitors or to the store across the street.
These were the employees who were to vote in the union
election the next day, and what he wanted was for them to
vote his way, and not as they might themselves desire.
I find that the company president threatened to close the
store unless the employees voted against union representa-
tion and thereby restrained and coerced them in violation
of Section 8(a)(1). This was no isolated instance of a threat
voiced to a single employee among many. He was talking
to all of them. During his last two speeches especially,
standing up on the mezzanine of the main floor, with a
THE M . O'NEIL COMPANY 157
microphone in front of him, he had over 800 persons
listening. The May Department Stores Company is a very
large one; it does have surburban stores near Akron, the
ones to which Emma said the business would be trans-
ferred. It was no idle threat and the employees had reason
to take it seriously. It is a euphemism to say , as does the
Respondent's brief, that he was talking about business and
work performance only, and not about the Union at all.
There is no evidence of hostility by anyone, except it be the
determination to bring a union into the store against the
Respondent's desire . On cross-examination, he was asked
had he said : "I cannot work with bickering, dissension,
division, hostility. Everything I tried to do sabotaged
-people sticking knives in my back. If I can't work at a
difficult job of turning this downtown store around, I just
have to abandon it." Emma answered : "To abandon, yes, I
said that. I think that was what I said." He admitted
saying: "I have to work in the branches. I have to work
with people who are interested in seeing us get ahead
rather than working with people who are trying to
destroy." Towards the end of each speech came this: "A
house divided against itself cannot stand . Now, please,
please, make no mistake. This is your decision when you go
into the booth. You vote your own vote, and you vote after
you think and work it through. That is all I ask." 5
Some of the employees testified he actually said he
would close the store. Employee Rich: "And he said if a
union did come in the store that the store would close."
Employee Edwards: "And he did say that he would close
the store ." Employee Bittner : "He said he thought we
didn't need the union affairs, and if the union came into
the store, he would have to close down the main store and
put his time into the branch stores." Other employee
witnesses said they did not hear Emma actually say the
store would "close ." Among these were Hatfield, Ossman,
Melnick and Arnette. Two others first said they did hear
the exact words, and then conceded they may have been
wrong. These were Robinson and Roemer.
But in the light of Emma's own recital at the hearing, I
take the testimony of the following witnesses as the most
reliable of all. Their recollection failed in precision, they
vacillated in the repetition , and some even admitted their
memory may be faulty. But what does appear is that they
were mouthing-whatever the words they used-the
substance of the idea Emma had intended to implant in
their minds. Thus Johnson testified: "He said that since we
didn't want him to help us, that he would just have to
concentrate on the branch stores ." 6 Brathurst : "There was
one thing that is vaguely familiar to me, he made a remark
that he would hate to have to run his office from the
branch stores." Robinson: "I don't know his exact words,
Sir. He said something about leaving or closing the
downtown stores and going to work with the branches."
Stricklen: ". . . he says if the union gets in here, he says he
can tear up those pretty new carpets and take those
chandeliers down. In other words, we can close this store
and concentrate on the branch stores." Catrufo: ". . . he
said that we would have to-if we voted for the union, he
would have to forget about the downtown store and
concentrate on the branch stores and the downtown store
would be turned into a warehouse and there wouldn't be
any jobs in the downtown store."
These last witnesses were the more reliable; Emma's
words were complex, his way was devious and indirect, but
his message was clear. What the witnesses remembered was
the threat that had been made, and therefore candidly said
so. I credit them.
D. Unfair Labor Practices by Other Supervisors
As stated above, the alleged coercive conduct falls into
two categories-interrogation and threats. The threats will
be considered first.
Russell Weyrauch is packing and wrapping supervisor.
Evelyn Kennedy testified Weyrauch engaged her in
conversation about the Union a great many times before
the election, compared working conditions with those at
the Kaufman store in Pittsburgh, spoke of collective
bargaining, even said he would quit if the Union, prevailed.
Kennedy added the supervisor said he would bring in
improved packaging machines, use only two people in the
department, and let go sick people and retirees because the
Company could not afford to pay so many persons with a
union. Kennedy added Weyrauch also said, in the presence
of 10 or 15 employees, "why we didn't start our own
Union, our own Company union." And finally, still in
Kennedy's testimony about Weyrauch, she quoted the
supervisor as "He made a statement several times that if
the Union won the election that they would probably close
the store down."
Franklin Brathurst suffers from a physical ailment and
had to undergo a medical examination, which he passed, to
retain his job. He testified he was twice told, by Supervisor
Menendez 2 weeks before the election and by Weyrauch 2
weeks after it, that his position would be endangered if
there were a union. He quoted both supervisors as saying:
"You are a good guy and a good worker and I would hate
to see you thrown out in the street due to the Union
activity."
While Kennedy spoke of many conversations he was not
quite clear as to where and when each of the particular
intimidating statements were made. In his defense testimo-
5 Apparently someone had made notes of the president's speech, for in
his cross -examination the General Counsel seemed to be asking Emma to
agree that he had made statements that were being read from a document.
At the end of the questioning came this:
Q: "You have to tell me how you feel"-you said that?
A: Absolutely.
Q: "This is your life"-you said that?
A: I would think so, yes.
Q: "You see what has happened in Polskys. (The Retail Clerks had
recently won an election and been certified at Polsky's Department
Store across the street from the Respondent .] You have watched it,
observed it . Vote No, Retail Clerks. Vote No. Thank you." You said
that?
A: It sounds right.
6 At another point in her testimony Johnson said that at one meeting,
while Emma was making a speech , he looked at her hard and said "there are
some snakes in the grass at this meeting." Emma said he might have used
the phrase "snake in the grass" at this meeting , but explained Johnson was
being disruptive of the assemblage . He added` there were people obviously
not with me ," and that Johnson "is an example certainly . She made no
mystery of the fact that she was not with me ." There is neither evidence nor
claim that Johnson was in any way deficient in her work performance or
otherwise disrespectful toward management , except of course it be her
prounion activity.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny Weyrauch, also, referred to many conversations with
Kennedy and with other employees who had been called
before him . He too was not very specific as to which
particular incidents he was denying or explaining away.
The end result is that clarifying findings must consider a
broader picture than isolated details . The supervisor
started by admitting he often discussed pros and cons
about the Union with employees , but he denied ever telling
anyone the store would be "closed ," or that the employees
should form their own union , or that anyone would be
fired because of improved machinery.
The pinpointed credibility question here--did Weyrauch
threaten Kennedy with plant closure-is raised a number
of times throughout the record in one form or another with
respect to other employees also. When the question is
clearcut, one witness giving the other the lie, it would be
unrealistic to say that demeanor alone serves adequately to
resolve the issue . A pervasive and very meaningful fact,
pertinent throughout this record wherever the question
appears, is that the president himself used essentially that
very approach, fear of loss of employment, in his
widespread appeal for no votes . He talked all over the
store . It is a reasonable likelihood that the lower supervi-
sors took their cue from him . I believe Kennedy , and find
Weyrauch, did tell her that the store would be closed, again
in violation of Section 8(a)(l) of the Act.
In this instance there was more to support the credibility
resolution against Weyrauch. Did he suggest the employees
form their own company union? In defense he testified he
suggested to the employees "if they had any difficulty, they
could come in ones , twos , or threes and that my door was
always open ...." But this invitation , an integral part of
his urging that it was a mistake to be represented by the
Retail Clerks Union, makes Kennedy's version of the talk
much more credible. There was still another factor. In
comparing industrial life with and without a union, other
supervisors told the employees their old freedom to
approach management as individuals would be lost, and
they would have to pursue their interest through the Union
only. The Board has held such warnings to be violative of
Section 8(a)(1). Henry I. Siegel Co., Inc., 172 NLRB 825;
Jacob Wiesel d/b/a Saticoy Meat Packing Co., 182 NLRB
713. The implied suggestion that other supervisors were
making is that the employees would be better advised to
come to the Company in some form of grouping other than
an outside union . This, too, adds credence to Kennedy's
testimony that Weyrauch came right out with the idea the
employees should form a company union . Therefore, I find
he did suggest to the 12 or 15 employees assembled that
they should form a union apart from the Retail Clerks, and
thereby again committed a violation of Section 8(axl).
As to the idea he might release Kennedy, or others, by
using new packaging machinery, Weyrauch denied any
such statements . He said all he did was tell Kennedy he,
Weyrauch, was considering a "poly-type machine that
would program 900 packages a day," and that he "might
look into" it , but he decided against using it in the end. I
decide this issue against him also, in part because the total
story about him shows he was determined to go too far in
his efforts to dissuade the employees . A recurring tech-
nique revealed by the record was for the supervisors to
speak of how conditions under union contracts were
inferior to the benefits then enjoyed by the workmen in this
store . They used, as basis for their talks , the agreements in
force between the Retail Clerks Union and The Kaufman
store in Pittsburgh , also owned by May Department Stores,
and a certain Glick Discount Store . They also spoke about,
but did not show the employees , union contracts generally.
And in the comparison they deliberately created the
impression that a vote for this Union would subject these
employees to all the disadvantageous clauses in any other
union contract . An example of this technique is seen in
Brathurst's story of being told his physical condition could
cause him to lose his job "due to the union activities."
Weyrauch said he recalled no such talk, but Menendez,
whom Brathurst also so quoted , explained all he was doing
that day was comparing company conditions here with
contracts elsewhere which "sometimes" require physical
examination "on a yearly basis." There is something deeply
insidious in selecting isolated disadvantageous provisions
in diversified contracts of other unions and deliberately
creating the impression these are all the Respondent's
employees can expect . There is an element of untruth in
this, both because it contains unwarranted speculation as
to how this Union may bargain, and because the asserted
union contract provisions may bear no relationship to this
store . Compare , N.LR.B. v. Bill's InstitutionalCommissary,
418 F.2d 405 (C.A. 5, 1969). I find that, in telling Brathurst
a vote for the Union would endanger his job, Weyrauch
and Menendez illegally coerced him in violation of Section
8(a)(1) of the Act.
I also find, in the total circumstances , that Weyrauch did
tell Kennedy there was danger that the Company would
replace employees with machines if the Union won the
election, still another violation of the statute.
Brathurst had something else to say about Menendez. He
testified that in one of the conversations which Menendez
had invited to discuss unionism generally, the supervisor
told a university student named George Anderson that
whereas now he was given "a half hour or so off to get a
book . . . If you had a Union contract, you would have to
ring out and ring in . . . the time clock would rule your
life." Another employee , Hazel Perri , testified Menendez
once called her with eight or nine other employees into his
office to give them his thoughts about the Union ". . . for
us to think before we voted ." She quoted him as saying,
among other things : "... if the Union got in, we would
have our discount taken away from us and we wouldn't,
like if you have a hair appointment or doctor's appoint-
ment, that some of them leaves early, that will be taken
away . Your stock benefits will be taken away, your stock,
and if you had any personal problems , you could not come
and talk to him, that you would have to go to the Union
and have them come and talk with him." Menendez denied
saying any discount or benefits would be withdrawn. As to
the schoolboy privileges , his testimony is he told the boy
that as things were "the work time can be flexible. A
person can work around a class or so, and, in some
contracts, there is a specific time stated-the.-beginning
and end of work . This might happen ...." I think
Menendez exceeded the permissible bounds of expression
of opinion when he told Anerson he stood to lose existing
THE M. O'NEIL COMPANY 159
privileges with the Union in the picture. To contrast union
conditions with existing "flexibility" is no real contradic-
tion of Brathurst's testimony. As to the threat to a group of
employees in his office that they would lose diversified
benefits and privileges, it is but another example of the
general practice among supervisors of equating, without
objective and aboveboard evidence to the employees, a
vote in favor of the Retail Clerks with automatic
disadvantage to their working conditions. I credit Perri and
Brathurst and find that Menendez violated Section $(a)(1)
of the Act in his talks with them.?
Hatfield testified about another conversation with
Supervisor Pala. She said that after the election Pala once
told her if she was late for work he would have her sent to
the office to be warned, if she was late twice she would be
sent there again , and if it happened a third time she would
be discharged. She said there was no mention of the Union
at all. Pala said he did warn her, because she was a chronic
latecomer and overstayed her breaks. As I do not think it
can be said any disciplinary action taken by an employer
after an election ipso facto violates the statute, I find
nothing wrong in this warning. Nothing happened after it
except that Hatfield peacefully retired.
I can also make no finding of improper or illegal conduct
by a supervisor named Ron Brown, who worked in the
domestic department . Kathryn Meeks, who worked there,
said that "a few days," "3 days" before April 16, Brown
told her in the presence of two other employees that "if the
Union would come in" the employees would lose the 20-
percent discount and "some of us would be laid off
because they wouldn't need all of us." She also said that on
the very day of the election Brown told her to vote but to
"think twice" before casting her ballot. All parties
stipulated that this man Brown quit the Company on April
11, and he did not appear as a witness. While Meeks'
testimony about Brown's threat does stand undenied, a
finding that he was in fact in the store at the time of the
election would require a further finding that the Company
brought him in for the express purpose of influencing the
results, and that he was willing so to be used. No plausible
explanation has been offered, much less proved, as to why
he should have done this. And there is no corroboration for
the witness . If Brown had really been used in this fashion,
after his separation, it is likely someone else would also
have seen him wandering about the store, and come forth
to say so. I will go by the stipulation of the parties, and find
he was not employed after April 11 and was not in the
store at all.
It will be as well now to put at rest another question
arising several times from the total evidence and disputed
in the briefs. It seems that in the Union's contract at the
Pittsburgh Kaufman store there is a provision for a lesser
discount benefit than the 20 percent allowed its employees
by the Respondent without a union. The supervisors
referred to this contract many times in their repeated talks.
There is a difference between straight comparison between
union and nonunion situations in this instance and general
reference to leveling provisions in unspecified union
contracts generally. The Union knew, and knows, about its
own contract provisions; indeed there is no contention the
Respondent's agents misrepresented the comparative
discount rates . A number of employees testified simply
that the supervisors told them they would lose their
discount benefit if the Union won the election. So phrased,
the statements out of the mouth of management would be
pure unfair labor practices. Other witnesses also said they
were told they might lose the benefit, but, more unportant,
they also admitted that what the supervisors really did was
compare the contract of the Union at Kaufman's with
existing conditions in many respects, including the matter
of the discount. And of course, when the supervisors, as
witnesses, referred to this aspect of their talks they denied
making outright threats, and explained they simply
detailed the two existing situations. In fairness, again,
objective things must be considered. The supervisors had
been instructed to compare things with the Pittsburgh store
contract and they did have the Kaufman contract in their
possession when they spoke. This sort of recollection by
the employees 2 years later is necessarily suspect. The
agents were referring to a contract of this very Union, in
another like department store, in an area not too distant
from Akron, There is an implication in the record that in
Pittsburgh, at least, the Retail Clerks leaned towards a
higher wage rate for all employees in preference to
discount privileges in favor of those who could afford to
buy things. Accordingly, I credit the supervisors on this
question, and I find they did not just threaten the loss of
discounts and did not violate the statute by comparing the
disparate conditions between the two stores.
There is testimony by several witnesses of what is said to
have been another form of coercive conduct by the
supervisors-unlawful interference with the right of em-
ployees to campaign in favor of the Union, to encourage
one another to join up or vote in favor of representation.
This testimony, too, must be appraised in the light of
related objective factors-in this instance the no-solicita-
tion rule mentioned above. Frances Smith, of the book
department, started by testifying that her supervisor,
Robert Ahlers, told her before the election, in the presence
of the other girls of the section, "if I didn't play ball with
the company, why, I would lose all my privileges." She
added Ahlers also told her, "if the union did get in, why,
then I would lose my discount and my hospitalization and
I would have to pay for my hospitalization myself." And
Paul Robinson, in display, began by relating how his
supervisor, Robert Schultz, called him to the office a week
before the election to discuss the Union and told the
employee he was not "to talk Union to anybody," and that
he should "cool it with my Union activities." According to
Robinson, Schultz then offered him a promotion, and
when he said he lacked the qualifications, the supervisor
added, "if I would have worked as hard for the Company
as I had for the Union, that I could have handled it easily."
If this testimony of Smith and Robinson be taken out of
r I also credit the testimony of Shirley Arnette that Supervisor Aquila
told her "if the union would ever get in , that all our privileges would be
taken away as of getting our hair done or taking an extra break during the
day." Aquila said he only answered a question by the employees , and said
this was not so. But Arnette's version is more consistent with the tenor of
what all the supervisors were doing behind the device of referring to other
union contracts generally.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the context of the whole story, it creates one impression.
Considered together with the rest of these witnesses'
statements , and in the light of the proper no-solicitation
rule, a different picture emerges.
As Smith expanded on direct and cross -examination, it
developed she was also told not to talk to the union
organizers while at work , or "to different ones of my
friends in the store," and "if George Hennigen and Bruce
Finley would come in . . . that I should let someone else
wait on them ." Finley and Hennigen were two of the
outside organizers in the store every day flouting the no-
solicitation rule. It thus appears , from her own testimony,
that what Ahlers was talking about was the employee
violating the no-solicitation rule both with respect to other
employees and the outside organizers . Smith finally
admitted the reason why she was told to lunch alone in the
public restaurant of the store was because she had been
talking about union activities with other employees while
on duty . Ahlers testified that Smith enjoyed no regular
break period because she only worked short hours, that he
gave her an off-the-record break , that it was reported to
him she wandered about the store talking union to others
and to the outside organizers , and that he told her to stop
this violation of the rule else he would discontinue her
break privilege . He denied any talk of taking away other
privileges from her, and added that he limited her to the
Oak Grille Restaurant "so she would not go out and
solicite." Smith is a completely discredited witness because
she deliberately distorted the facts, again and again evaded
answering direct questions , first saying she never heard of
the no-solicitation rule and then admitting she well knew
about it and was asked to obey it. In the end she admitted
Hennigen and the other union organizers would "stop and
talk to me, sure ." I credit Ahlers.
Robinson , in his added testimony , said Schultz had
called him to the office "to discuss about talking on the
floor, about the Union," and that when the supervisor
asked had he done it, he answered: "the only time I had
talked Union on the floor to anyone during working hours
was when I was questioned by the employees themselves
about it." After this he cavalierly denied he was called in to
be warned on the subject , denied he ever knew about the
rule, admitted he did know , and finally , again, that this was
the reason he was called to the office! Schultz testified the
only thing he did was warn the employee to stop violating
the no-solicitation rule. I credit Schultz and do not believe
Robinson's contrary testimony . In a department store, the
employer may promulgate and enforce a rule against
solicitation, by employees and strangers alike , effective at
all times in all public and selling areas of the premises. The
May Department Stores Co., 59 NLRB 976. Significantly,
there is no contention here that the rule enforced by the
Respondent in its Akron store is or ever was unlawful. It
follows that so long as it had the right to promulgate the
rule it also had the right to enforce it, against anyone. And
this is all that Ahlers and Schultz did with respect to Smith
and Robinson . I find nothing improper in their activities.
There remains the question of interrogation-lawful or
unlawful in this case. Three employees testified they were
asked the direct question-were they on the side of the
Union? Helen Fuller said her supervisor , Pala, asked, "Do
you know who the committee person is in this department
or on this floor?" She answered she did not know. Shirley
Arnette , the office secretary of Aquila , supervisor in the
children's shoe department, testified Aquila asked her how
the ladies on the floor would vote in the election . She said
"in favor," and he then told her he hoped she would not
herself make a mistake. Both Pala and Aquila denied this
testimony.
William Salk is the supervisor in women 's shoes . He gave
a talk to his employees on the subject of the Union the
second Saturday before the election , and used the
Respondent's profit-sharing plan as a takeoff. According
to Macel Bittner, an employee present , Salt explained how
good management was and told the employees there was
no need for "anyone else ." He then asked for a show of
hands as to how many of them could afford to pay union
dues, and raised his own hand to encourage them. No one
raised their hands, but three or four employees answered
"yes." Salk asked Bittner , "You are going for them, aren't
you," and she said yes. Still according to Bittner , Salk then
spoke about employees taking their union dues and putting
them into the Company 's profit-sharing plan instead,
compared the two amounts and explained what the return
in interest would be . Again he called for another show of
hands to see how many were already participating in the
plan. This time there was a showing of hands.
Salk said all he did was explain the Company 's plan, and
suggested if the employees saved on a pack of cigarettes a
day and made a few extra shoe sales they could put this
money into the plan . He expressly denied that he or
anyone else mentioned the Union or union dues at all, and
that he called for the show of hands only about plan
participation . Salk was followed to the stand the next day
by Mary Brown, another employee in his department and
also a witness for the Respondent. She said that before the
meeting Salk gave her a "creed" to read "at the meeting to
the group," and that she did so. Her "creed" read: "If you
work for an Employer, work for him . If you are against an
Employer, get the hell out." After first denying Salk asked
who was paying union dues, or even talked about the
Union, Brown then admitted that Salk , speaking "about
the union ," said the employees should "know exactly what
we were doing," that "he might have mentioned if you pay
Union dues , you could go into profit sharing," and that
Salk asked, "How many of you could afford to pay Union
dues."
Brown was the Respondent 's witness. I credit Bittner and
not Salk . I find that he deliberately interrogated the
employees of his department and thereby committed an
unfair labor practice in violation of Section 8(axl), for
which the Respondent is responsible.
In the circumstances of the pressing campaign carried on
by all of management to impress the employees with the
many reasons why they should not vote the the Union, I
also credit Fuller and Arnette and I find that Supervisors
Pala and Aquila unlawfully interrogated them in further
violation of Section 8(axl).
Six other employees testified that they were asked by
their respective supervisors why they favored the Union.
The question was put differently by each supervisor, but
what it always amounted to was an indirect method for
THE M. O'NEIL COMPANY 161
discovering who they should talk to in order to carry out
the instructions for convincing employees to the Respon-
dentzs vibw., Meeks indomestics, quoted her supervisor,
Patsy, "how do you feel about the union . . . ." Anna
Melnick, in the candy department, quoted her supervisor,
Batalden : ". . . he usually asked what I thought the Union
would do for me that he couldn't do. . . ." Cordella
Cebator, in the same department, testified Batalden said:
"... what could the union do for me that he couldn't do
." Roma Rich, in daywear, said her supervisor, Mrs.
Durgala, asked her ". , . what I thought I was going to get
out of the Union or what the Union was going to do for
me." Robinson, quoting Supervisor Weyrauch: "He asked
me why I wanted a union in the store." And Rohmer said
he was three times asked by Weyrauch "why did I want a
union, why was I in favor of a Union."
I doubt there is a meaningful distinction between asking
an employee whether he favors the Union (which is a clear
violation of Sec. 8(a)(1); see Struksnes Construction Co.,
148 NLRB 1368) and asking him why he favors the Union.
An employee asked the latter question feels no less singled
out, from among the many in the total group, than does the
one who is asked directly whether or not he belongs to the
Union. In fact, the question why one favors the Union
cannot be answered without of necessity revealing the
individual's personal predilection. Curiosity concerning the
employee's attitude toward the Union is logically implicit
in the inquiry, however phrased. But, if the direct question
coerces the employees because they feel they are being
sought out for an ulterior motive, the indirect question
must be deemed naturally to have the same illegal effect.
Moreover, to ask an employee what benefits he expects to
gain by union representation carries with it the inseparable
implication that the supervisor knows of his attachment to
the Union. But this is another way of further intimidating
employees by creating the impression their union activities
are being surveyed by management.
In this store the central program of discrediting the
Union by an unending barrage of talk, from supervisors
high and low, at old and newly created meeting opportuni-
ties , required constant occasion to repeat the message. It
therefore was to be expected the supervisors would want to
invite, and provoke, discussion , particularly from the
prounion-minded personnel. Batalden and Durgala are no
longer with the Company and did not testify. Weyrauch
did not recall whether he questioned Robinson and made
no reference to Roemer's inquiry, but he did say he
discussed the disadvantages of unionism with each of them
often. Pala denied asking anything of Fuller and Meeks.
The Respondent points to the fact these supervisors had
been instructed, in writing, not to question employees
about their feelings for or against the Retail Clerks. But
there was more in the same instructions which the
supervisors ignored. The instructions also told them not to
"invite an employee to your office for the purpose of
discussing any matters related to the Retail Clerks
unionization efforts." Any number of employees testified
about discussions concerning the Union inside and outside
the offices, all started by the supervisors. There is no real
denial on this score. And it was inevitable that this had to
happen, for the main point of the instructions to manage-
ment representatives was that it was their "duty" to see to
it that the employees got "all of the facts, and in this regard
you will play a lead role." How could they discharge this
prime responsibility except by starting discussions on the
subject? The assertion, voiced by some supervisors at the
hearing, and repeated by President Emma with respect to
all the 25 or so end-of-tour speeches he gave, that in each
and every instance when the Union was mentioned it was
always an employee who first opened the subject, is
completely unpersuasive. I find that by interrogating
employees concerning their attitude for or against the
Union Supervisors Weyrauch, Pala, Batalden, and Durgala
violated Section 8(a)(1) of the Act.
E. Surveillance
There was an amendment to the complaint at the start of
the hearing to add an allegation of surveillance of union
activity by the company store detectives. Three employees
-Melnick, Cepator, and Catrufo-testified that at about 6
p.m. on March 3, 1972, as they arrived at the union hall for
a conference of some kind they saw Angela Keener, a
security employee of the Respondent, standing on the
sidewalk across the street reading a newspaper. They said it
was very cold-22 degrees, that Keener looked up, saw
them, and looked down at the newspaper again, and that
she walked away after about 5 minutes.
Keener testified she was nowhere near that spot that day.
She said-apparently by the strangest of coinciden-
ces-she was sick that day, left work early, saw a doctor,
and was home in bed in consequence before 6 o'clock. In
support of her story, the Respondent offered in evidence:
(1) the daily medical log from the office of the store nurse
for March 3, showing that shortly after the noon hour
Keener appeared there complaining of severe pains and
was told to see a doctor; and (2) a certificate signed by her
doctor attesting that she was in his office that day and that
he advised her to go home and rest. Keener said she did
that, going straight from the doctor's office to her home.
No question was raised as to the authenticity of the
documents received in evidence, and I have no reason for
discrediting them. I believe Keener's testimony. In all
probability this was a case of mistaken identity. I therefore
find the surveillance allegation has not been proved.
F. Probation
Six employees testified that beginning some months after
the 1970 election each was placed on probation; some of
them were old-time employees and five of them said they
had never before heard of a probationary system in the
store. One, Catrufo, said she knew about it in 1969. Pence,
the assistant director of personnel, testified the system was
first instituted in 1968, but that the fact of the Union's
organizational campaign had nothing to do with establish-
ment of the policy. There is no allegation in the complaint
on this subject, and in his brief the General Counsel makes
no argument that the Respondent violated the Act in
placing people on probation. I find nothing in this evidence
sufficient for making any finding adverse to the Respon-
dent.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Alleged Violation of Section 8(a)(3)
Judith Walker was a part-time employee hired in
November 1969; after the Christmas season she asked to
be retained and was kept on as a pink card part timer. A
pink card worker is not guaranteed any number of hours
of work per week; she is called as the occasion requires. A
green card part timer is distinguished from a pink card
worker only in that she is guaranteed 20 hours of work a
week . A white card holder, really a full timer, is guaranteed
30 hours of work each week.
In January 1970, Walker joined the Union and went out
of her way a number of times to tell her supervisors of her
prounion attitude. She even enticed them into conversation
to dispute the merits of unionism with them. She violated
the rule against solicitation, was warned about it, but
persisted. Before the election, and after, she asked to be
reclassified to a green card employee, but never was
changed to the different status. Walker quit her job during
the week ending September 6, 1970, according to the
Company's records received in evidence. At the hearing,
she said it was "the last week in October. I am not exactly
sure of the day." She also said she quit because "I wasn't
getting the hours, they weren't calling me."
The complaint alleges that the Respondent "refused to
promote" this girl, and "reduced her hours of employ-
ment" because of her union activities and therefore
violated Section 8(a)(3) of the Act. Asked what remedy he
sought in the event this allegation prevailed, the General
Counsel stated on the record: "Well, it would just be to get
her back pay from the time that her hours were reduced
until the time there was a mutual parting of the ways."
During the 13-week period ending March 24, 1970,
Walker worked an average of 25.9 hours per week; during
the next 13-week period, ending June 23, she worked an
average of 27.8 hours per week; and during the next 11
weeks, until she quit in September, she worked an average
of 28.5 hours weekly. If for no other reason the complaint
must be dismissed as to Walker because in fact there was
no discrimination in employment against her. There is
mention of some variance in fringe benefits enjoyed by
pink card as against green card part-time employees, but
the record says nothing about what these may be or
whether Walker in any way was prejudiced for continuing
to work on the pink card. In any event, no contention is
made and no issue was litigated with respect to any such
possibility.
I think the record falls short, in any event, of proving
union animus directed against this employee. Her total
testimony, pugnacious, evasive, sometimes almost incoher-
ent, is aimed at showing she was very active in the union
campaign , the Company knew it, and tried to stop it. She
spoke of being interrogated, instructed to stop talking up
the Union, and even ordered to stay out of the store
altogether when she was not on duty, by Ben Harstine and
by James Parker, her supervisors. The truth of the matter is
that in virtually every instance when there was talk of the
Union between her and any supervisor it was she who
opened up the subject, deliberately inviting quarrel. Late in
March she spoke to Harstine: "I said, you know I am on
the organizing committee and I would like to know if this is
why I haven't heard about my green card and I asked if he
could talk to Mr. Parker and he said no. He said he was
not allowed to say anything about the union unless I asked
and I didn't and that was the end of the conversation."
Again, to Parker: "I went to Mr. Parker and I asked him if
I could talk to him about my green card and I also asked
him-I said I have heard the union's side and I would like
to hear why the store does not want to have O'Neil's have a
union." She added Parker then explained how conditions
here were better than at Kaufman's in Pittsburgh. She then
said Parker ". . . indicated that they would close this store
if the union got in, due to the fact that outsiders were
trying to tell O'Neil's they did not know how to run their
store." On the day of the election, after the balloting,
Harstine said he was not allowed to ask how anyone had
voted; Walker came back with: ". . . but you would like to
know, wouldn't you and he just looked at me and I said,
well, I voted yes and that was the end of the conversation."
Walker also testified Harstine once said to her "as long as I
had anything to do with the union, went to the meetings,
made any calls to talk to union people, I would get
nowhere with O'Neil's. . . ; that Parker asked her
whether she was going to a union meeting and asked her to
let him know the Union's strategy; and that both
supervisors told her to stay out of the store when she was
not working.
Parker has left the Company and did not testify.
Harstine testified it had been reported to him by Mrs.
Bennett, the higher supervisor who scheduled the work
hours, that Walker was violating the no-solicitation rule,
and that he reminded the employee about this. He denied
ever telling Walker she would not get ahead in the store
because of her union activities, ordering her to stay out of
the store when off duty, or asking had she attended a union
meeting. As to the incident on election day, he said his
only comment was there should now be no hard feelings. I
credit Harstine and, despite the qualified denials and the
fact Parker did not appear, I do not credit Walker. The
company records belie her testimony that she was given
less work as time went on. She said she asked Parker on
May 14 why her hours had been cut "so bad," but in fact
they had not been cut. She knew of the no-solicitation rule;
asked had she been warned about violating it, she first
answered she had not violated it, and denied ever having
been warned. She then reversed, and admitted she was told
about her offenses on that score. She talked with Organizer
Finley in the store, and gave him the membership card
signed by a friend of hers. Asked by Harstine later that day
what she had been doing, she told him she only gave Finley
"some information on a friend of mine." She also told a
story of visiting the store one day with "a friend of mine
who wanted to exchange something and I went downstairs
and was talking to a girl in the accessory department."
Now Parker saw her and asked what she was doing. "I
made a joking remark." When she saw Parker was serious
she said she had come to buy a dress. Walker was on the
organizing committee and had made it a point to inform
Parker. If the supervisor did advise her to stay out of the
store when she was not working he had good reason. She
shifted her testimony; one day she had Harstme asking her
how she was going to vote, and the next saying he was not
THE M . O'NEIL COMPANY 163
allowed to ask . It was she who volunteered, it was she who
wanted the supervisors to know.
I-shall dismiss th$coniplaint with respect to Walker, and
I credit nothing in her -testimony warranting a finding of
illegal conduct by any of the management agents.
H. The Objections to the Election
As stated above, many of the Union's objections to the
1970 election parallel the allegations of restraint and
coercion appearing in the complaint. In view of the
violations of Section 8(a)(1) found above, virtually all
occurring during, the 30-day period preceding the election,
I found merit in the objections and hereby recommend that
the Regional Director set aside the results of the election
and proceed according to law.
While the objections, as written, do not in so many
words attack the no-solicitation rule at all times in effect,
there is ambiguous language in Objection 1 that can be so
read . In his report of objections, in which he also directed a
hearing on other objections, the Regional Director over-
ruled Objection 1. In view of his report, and in view of the
fact there is no allegation in the complaint to the effect that
the no-solicitation rule is in any way improper, I find
nothing in the rule itself or in its enforcement by the
Respondent that would add support to the objections.
The Regional Director did direct that the hearing also be
open to evidence in support of Objection 17. This one
charges the Company with wrongdoing for harrassing the
in-store activities of outside union organizers in the
presence and hearing of rank-and-file employees. The
record iii its entirety shows the theory here is that while an
employer may take steps to enforce its proper no-solicita-
tion rule against the organizers , if it does so in the presence
of employees it unlawfully restrains and coerces them. I
find the argument unconvincing. It is true, for the record
abounds in such testimony, that store detectives made it
difficult, if not impossible, for the organizers to solicit the
employees directly or indirectly in the store. It is true they
blocked the organizers' freedom of movement in the store,
called them offensive names , even pushed them around a
bit. The guards harrassed them in the public restaurants,
sitting too close to them, overtly eavesdropping. The
supervisors even ordered the employees not to talk to the
outsiders , or make sales to them.8 In the context of this
overall picture of planned disregard of the no-solicitation
rule, the restaurants , in which the buying public was
accommodated , must also be deemed "public areas" of the
store . The Company could as well have had the outsiders
ejected physically from the store. The following statement,
made in another context, is equally applicable here. The
circumstances leading up to this painful choice of action
was not the Employer's making, for it was the Union which
actively, repeatedly, and continuously disregarded organi-
zational restrictions laid down by the Respondent, which
conformed to long-established Board policy.
I recommend that Objection 17 be overruled.
9 From the testimony of an organizer, Finley: "Maybe they [the
employees in the store ] would say I would like to see you for coffee and so
we got together . Your know, we got to know them fairly well . . . they
would say how does the election look and I would say it looks real good."
Bittinger, another paid organizer : ". . . we visited around the store in
1. Ruling on Motion
I deny the Respondent's motion to dismiss the complaint
allegation that the Company unlawfully refused to bargain
and violated Section 8(a)(5) of the Act. In my judgment the
unfair labor practices committed by the Respondent's
agents are of such an extent and nature as to support (1)
the conclusion that it rejected the statutory duty to
recognize and bargain with a majority representative of its
employees, and (2) a finding that it must be ordered to
bargain with the Union now, certainly if in April 1970 it
represented a majority of the employees in an appropriate
unit. In the language of the Supreme Court in the Gissel
case, supra, the pertinent question is whether the unfair
labor practices committed were "disruptive of the election
process," such as to preclude "a fair election."
Application of this principle to any particular set of facts
does not permit appraisal pursuant to any fixed formula.
No single precedent, therefore, can be determinative of any
subsequent case . Examination of a number of decisions
reached by the Board in this area of the law after issuance
of Gissel clearly establishes this critical truth. Nevertheless,
under the scheme of the statute, a Trial Examiner is
dutybound to seek guidance in the Board's expressed
views. In a question of this kind, mathematical precision of
analysis is not to be expected. I believe the interpretive
explanation appearing in the Board's recent decision in
General Stencils, Inc., 195 NLRB 1109, supports, indeed
requires, denial of Respondent's motion to dismiss in the
case at bar.
The Board there dealt with a direct threat of loss of
employment, which it called "the most flagrant means by
which an Employer can hope to dissuade employees from
selecting a bargaining representative." Whether, in any
given case, threats of that sort warrant an order to bargain
as the appropriate remedy is best answered in terms of a
series of tests clarified in the dissenting opinion of
Chairman Miller in General Stencil itself. (1) Was there a
threat of loss of employment for some or all of the
employees? Such a threat is "a uniquely distructive tool
more coercive than any other threat." This is
precisely the threat Emma made. (2) Was it seriously
regarded? In the Akron downtown store the employees
could not but regard it seriously. A short time earlier the
Respondent had closed another of its stores, in a nearby
location. The employees knew this, although it was not
shown that the other one closed because a union had
recently won an election there. They certainly had no
reason to believe the Company would not close another.
(3) What was the source of the threat? To these employees
the threat could not have come from a higher source-the
top official of the Company himself. (4) Was it a deliberate
threat? All that is needed to answer this question is to read
even a portion of Emma's own testimony. (5) Was it a
general threat? Emma spoke of releasing all, not only,some¢
of the employees, 1bylclosing the store. And finally, (6) was
the threat disseminated?
several departments saying hello to the employees ... Most of the time I
would go around and say hello and I would talk to people that I would
know." When professionals admit this much from the witness stand, it
would be a mistake to burden this report with the multitude of details in the
record
164 DECISIONS OF NATIONAL LABOR itELATIONS BOARD
In General Stencil, the main issue-whether Section
8(a)(1) had been violated and whether an appropriate order
to bargain was warranted-was deemed a very close
question only because the threat had been voiced to one,
and only one, employee. Indeed, the Second Circuit Court
of Appeals, in remanding the proceeding to the Board for
further consideration, refused enforcement for that very
reason. If there is one thing that is clear on this record it is
that President Emma made sure every single employee in
the store-all 1,300 or so-heard him and heard him well.
ORDER SCHEDULING RESUMPTION OF
HEARING
With a Trial Examiner's denial of a respondent's motion
to dismiss a portion of the complaint the hearing would
normally be resumed for the General Counsel to complete
his case-in-chief in support of the total complaint. The
parties have agreed, however, that regardless of the Trial
Examiner's ruling on that motion in this special case, the
losing party, or parties, would request permission to file an
interim appeal to the Board. It is their desire that the Board
(1) approve or disapprove the Trial Examiner's findings
respecting the 8(a)(1) and (3) allegations of the complaint
at this stage of the proceeding, following the filing of
exceptions, if any, and (2) then consider the merits of the
motion to dismiss the 8(a)(5) allegation in the light of the
Gissel principle. As stated above, the objective of the
parties in all this is to be spared the time and expense
inevitably incidental to litigation of the question of
majority status-in a unit of 1,360 employees-in the event
in the Board's ultimate view of the case that matter
becomes moot.9
Accordingly, I now set the case for resumed hearing on
July 17, 1972, at Akron, Ohio, the precise location to be
determined by the Regional Director. The parties are free
to request further extension of time, through the office of
the Chief Trial Examiner in Washington, D.C., if appropri-
ate to accommodate the Board in its consideration of the
interim appeal to be filed.
9 Consistent with the suggested procedure, the usual formal conclusions
of law, cease-and-desist order, and notice for posting have been omitted
from this Decision. If the case in its entirety should be finally concluded on
this appeal to the Board , no further action by the Trial Examiner will be
required for fashioning those portions of the Board's final order
SUPPLEMENTAL DECISION
POSTURE OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: The
essential issue presented in this now extended consolidated
proceeding is whether the Respondent must be ordered to
bargain with the Union as exclusive representative of its
employees, notwithstanding the fact the Union lost a
Board-conducted election; the grounds for the illegal
refusal-to-bargain finding and affirmative remedial order
are that the Company committed such aggravated unfair
labor practices as to preclude the holding of a new and fair
This Supplemental Decision must be read together with the initial
Decision of May 25, 1972 A posthearing motion by the General Counsel to
correct his Exhibit 11, unopposed, is hereby granted
2 Hennigen also testified he made a similar demand of Millisor at a
election. Because of the extensive scope of the anticipated
litigation, all parties agreed to try the case in two parts:
First, all evidence, pro and con, relating to complaint
allegations of violations of Section 8(a)(1) and (3) of the
Act; and second, all evidence, pro and con, relating to the
refusal-to-bargain, or 8(a)(5), aspects of the case-includ-
ing the questions of demand and refusal, scope and
composition at the appropriate unit, eligibility, and
majority representative status of the Union. Decision on
the first part issued after hearing, on May 25, 1972, and is
now before the Board. Hearing of the second part was held
at Akron, Ohio, on 22 hearing days, beginning October 25,
1972, and ending on May 22, 1973. All parties participated
and filed briefs.
Upon all the evidence record as it now stands, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACTi
A. Demand and Refusal
The prosecution contends that the demand for recogni-
tion and the consequent refusal occurred on April 13, 1970.
The Respondent denies any demand for recognition was
ever made. On this threshold issue the General Counsel
offered testimony by George Henmgen, the Union's
organization director. Hennigen told of a preelection
conference on April 13, 3 days before the 1970 election, in
the office of Mr. Millisor, the Company's lawyer; Henni-
gen was accompanied by Finley and Turner, other agents
of the Union. Present for the Respondent that day were
Millisor and Robert Pence, its then director of employ-
ment. According to Hennigen, before entering the confer-
ence room he told the lawyer that the Union represented a
majority in the unit and offered to submit the authoriza-
tion cards to an impartial person to determine if the claim
were true. He added Millisor "declined recognition." 2
Hennigen was corroborated by Finley, who recalled that
during "some small talk" before the meeting Hennigen
"said something to the effect all of this is not necessary
.. . that we represented a majority of the employees and
he was requesting negotiations for them . . . ... Finley
added Millisor "responded in some fashion ... he made
some remark about the appropriateness and he referred to
the 6th Circuit Court."
Both Pence and Millisor recalled Hennigen's demand.
Pence's version was: ". . . Henmgen made a statement to
the effect that he didn't think this meeting was necessary
because the Union had enough signed cards to win the
election," and that Millisor's response was "a comment
about the Sixth Circuit Court and some rulings that they
had evidently given on unit questions." Millisor, the
lawyer, started his testimony by saying: "... we were
cognizant of the fact that the Union may make some effort
to make a demand at the pre-election conference," and
that therefore "what we decided to do was not have any
member at the meeting who was in the position to respond
to effectively accept that and respond to a demand." To
preelection conference before the 1969 election and was also refused There
is no contention now that an 8(a)(5) violation should be found based upon
any 1969 events
THE M. O'NEIL COMPANY 165
further guard against any demand for recognition, Millisor
decided "we would make an affirmative statement at the
beginning of the meeting that the sole purpose of the
representatives who were there on behalf of the Company,
and the sole extent of their authorization , Mr. Pence and
myself , was to update the eligibility list and make the
corrections to that list.
Apparently the lawyer did make this opening statement,
but his precautions were in vain, for, as he then honestly,
continued to testify, "I do recall a statement being made by
one of the Union representatives , and I frankly cannot
recall which one-something to the effect that there was no
sense in going any further with preparations for the
election because the Union had enough cards that the
election itself was in the bag . . . . We should just submit
the cards to some third party and let them inspect them
and decide it on the basis of the cards . . . I did not
respond in any way directly to that statement . All I said
was that I thought the whole proceedings were going to be
moot anyway because the Sixth Circuit had handed down
some determination and they were going to find the unit
invalid."
A demand for recognition is no less a demand merely
because the employer asks the union to please not talk
about it, nor because it hides the personnel director-in
this case Pence 's immediate superior . The lawyer was the
spokesman and representative of the Respondent that day,
as indeed he has been from first to last, reaching back to
early 1968 when he was sent to the hearing in the
representation case to announce formally that the Compa-
ny will never bargain with this Union until it wins a Board
certification that stands up in the appellate court on
review . In the light of their admissions set out precisely
above , the denials by both Pence and Millisor that
Hennigen had articulated the demand in the precise words
which the union agent used at the hearing in this
proceeding are meaningless . Nor is it true, as the
Respondent now claims , that the parties "had both"
decided that only an election would resolve majority status.
In truth the fiat had been announced by the Company
unilaterally 2 years earlier. Indeed , it was that very
announced decision that virtually compelled all the
resultant talk about elections as the organizational cam-
paign went on and on, with successive futile elections. With
the Respondent practically admitting it knew a demand for
recognition was going to be repeated, and its agents
therefore consciously setting the stage to avoid it, it can
also be found on this total record that there was a
continuing demand for recognition going back to before
the 1969 election . I find that on April 13, 1970, the Union
demanded recognition of the Company anu that the
Company refused to recognize it.
B. Appropriate Bargaining Unit; Inclusion and
Exclusion; Eligibility for Majority Count
Apart from the direct question of unfair labor practices
committed , in every refusal to bargain case there are
subsidiary matters to be resolved : ( 1) The scope of the
appropriate bargaining unit ; (2) as of what precise date is
the union 's asserted majority representative strength to be
tested ; and (3 ) in the situation of a retail department store
or comparable commercial enterprise , which employees
have a sufficient interest in the selection of a bargaining
agent so that their individual choice is to be considered?
The Respondent takes issue with the complaint and the
General Counsel on all three questions in this case. The
complaint says the appropriate unit is the Company's
single downtown store in the city of Akron, but the
Respondent insists it should instead include all 12 of its
separate stores dispersed throughout the State. The
General Counsel contends majority should be tested as of
April 13, 1970, the day of the demand and refusal; the
Respondent argues it should instead be tested as of an
earlier date in March . As to which of the employees
actually at work on April 13 should be deemed the 100-
percent total complement among whom majority must be
tested, the General Counsel says the selective test must be
the same one which the Board established for voting
eligibility immediately preceding the election held on April
16, 1970, as set out in May Department Store, 181 NLRB
710. Against this the Respondent contends the test must be
a broader, more inclusive one. The three issues will be
considered in reverse order.
The last question involves primarily the number of pink
card , or temporary or casual employees , that should be
included in the total count. On this point the Respondent
urges again the precise argument it advanced to the Board
in the representation case and which, after full litigation,
was found wanting. No purpose would be served by
restating in full that formula here ; the Board's decision
that day is a public record available on review at any time
and place. The question having been once fully litigated
and decided by the Board, it is not again litigable. I find no
merit in the Respondent's contention as to this issue now
raised here.
It will be recalled that on April 13 the parties were
preparing for the Board-ordered election to be held 3 days
later , and that it was on April 13 that the Union demanded
recognition and was refused . When the election took place
eligibility to vote was conditioned upon individual employ-
ees satisfying two requirements ; they had to be both on the
payroll 1 day in March , 2 weeks before issuance of the
Board's Direction of Election , and at work on election day.
This scheme follows long-established Board practice in the
processing of representation proceedings , and the reasons
justifying the practice bear no relationship to out -and-out
refusal-to-bargain proceedings . In contrast , every refusal-
to-bargain case the Board ever considered posed the
straight question whether the union in fact represented a
majority at the moment that the employer refused to
extend recognition . This case , in this respect , is no different
from any other , and the Respondent has advanced no
coherent reason why it should be considered on any other
basis. The question of majority status here will therefore be
decided on the basis of whether or not the Union on
exactly April 13 had been authorized to bargain on behalf
of a majority of those employees who on that day fell
within the formula set by the Board . Peerless of America,
198 NLRB No. 138.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Alleged Change in Appropriateness of the Single-
Store Bargaining Unit
The Board's finding in this case , that a unit limited to the
Respondent 's single downtown Akron store is appropriate
for bargaining purposes , was based upon consideration of
the very comprehensive and lengthy record made in the
representation case . If the Respondent's claim that that
same unit is now no longer appropriate is to prevail , it must
be because of affirmative evidence of substantial change in
the major factors that led the Board to make its initial
finding . Moreover, the evidence offered here must be
appraised in the light of two other very pertinent facts. One
is that the Respondent strenuously opposed the single-store
unit from the start ; the other is that it resorted to illegal
methods in order to prevent the Union from establishing
majority status in the unit it always opposed . This is an
unfair labor practice case , in which the prime objective is
to remedy the coercive effects upon the employees of the
proved misconduct of the employer. In a very real sense,
the attack upon the unit already found appropriate is an
affirmative defense and , like any other such , presents the
Respondent with the burden of convincing the Board that
the assertion is sufficient reason to permit it to profit from
its own unfair labor practices . The question of the
appropriateness of the unit now is not to be likened to the
investigatory character of the usual representation pro-
ceeding . Counsel for the Respondent erred when he argued
at this hearing that the General Counsel had no business
concerning himself with the sufficiency or insufficiency of
the evidence said to have destroyed the single -store unit.
Rather, in the circumstances now presented, the unit
finding as made must be reaffirmed , unless the Respondent
has come forth with evidence of significant changes in
operations such as to make reaffirmation of the single-store
unit impossible . Henry Spen and Co., 150 NLRB 138.
Considering the factual findings made by the Board in its
initial decision holding the one-store unit appropriate,
together with the evidence offered here on this point, I
find, as alleged in the complaint , that the unit limited to the
Respondent 's downtown store is still appropriate for
bargaining purposes . The entire grouping of 12 stores,
which the Respondent insists must be joined if any of its
employees are to enjoy statutory bargaining privileges at
all, are still dispersed over a very wide area of Ohio. Each
store is still separately supervised, however the titles given
the local managers and their subordinates may have
recently been changed. For the most part new employees
are hired as extras, or temporary people , and all of them
are still interviewed , appraised, and hired by the individual
store supervisors . Initial recommendations for changes in
wages, first steps toward disciplinary action, evaluation of
performance , all these matters of importance to the
conditions of employment of the total complement of
employees , are still performed by the local representatives
of management.
The Respondent 's position rests almost entirely upon the
oral testimony of Rollin Glazer, its personnel director, and
Clarence Randall, general operations manager. Their
testimony is filled with generalities , conclusionary state-
ments, and arguments ; again and again they evaded direct
questions when asked for specific facts in support of
conclusionary statements; repeatedly they said they simply
did not know, when numbers and plain facts were called
for if their bland statements of opinion were to have any
evidentiary value . For example , one of the ultimate
burdens of their attempted message was to create the
impression that great numbers of employees regularly and
of necessity travel from the distant locations to the central
office as a normal aspect of their regular employment. By
the time they were finished, all that was shown factually is
that new regular-as distinguished from extra and part-
time-employees come to Akron before starting to work to
sign necessary hiring documents , undergo a physical
examination, and receive their identification card. When
this is finished-and of course they do it only at the start of
what may be years of employment-they have no further
occasion to repeat the visit. Glazer made much of the fact
that a profit-sharing plan brings people every year to
Akron. It then developed he was referring to an annual
party-attended only by those employees who chose to
participate in the plan and who care to come at all-where
the people are feted and told what their share of the profit
is. This system is equally true of high-occasion receptions
in Akron when recipients of service awards-or excellent
rated employees-are invited to receive honors . Voluntary
activities of this kind do not substantially relate to what is
normally called day-to-day interests in working conditions.
New sales persons are brought to Akron for a day or two
of training . Glazer said that when necessary they are
brought back for further training, or retraining, if it should
be found by local managers that any have later fallen
behind in their lessons . The initial lesson is, of course, a
one-shot deal ; when asked to give facts and figures as to
the frequency of return to Akron for this purpose by the
dispersed employees, he came forth with nothing definitive.
His repeated statements that the system is new and
therefore more centralized, that there is greater central
control, add nothing to his unsupported conclusions. And
his further statement about a new and more centralized
training program for executives has nothing to do with the
rank and file.
There used to be a branch store personnel manager in
every location; in most of them he is now called the
personnel clerk . A central office post called personnel
director for branch stores had been created. Glazer said
that because of the change in names "the effect has been to
give the downtown organization, and in particular myself,
greater control and centralization of the Personnel activi-
ties in Branch Stores. . . ." In support the Respondent
offered into evidence a very comprehensive personnel
handbook put into the hands of every personnel clerk in
every local store; it is his Bible and instructions on how to
do his job. From all this Glazer concluded that "There are
no areas of discretion left to the Personnel Clerk in the
Branch Store."3 He added the central office man "is
3 Glazer said the present personnel director for branch stores is named predecessor "who handled more than one store." It is pretty clear the idea of
Kelso, and was appointed in January 1973; he added there was a one man in charge of all stores was conceived while this hearing was in
THE M. O'NEIL COMPANY 167
involved in all of the Personnel Actions of any signifi-
cance." He also said that now a director of employment
services "has the opportunity to approve or disapprove all
of the hirings." Which of the countless personnel actions
are "of significance?" What does "opportunity" to partici-
pate mean? How often in fact does the central office man
inject himself in the actual work of the local "clerks"?
These questions, the truly pertinent matters in determining
appropriate unit, are by no means clearly answered by the
total record. As to the personnel handbook, of course it
sets "guidelines" for the local people, as Glazer said; the
local man is also told by the central office the high and the
low limit of pay, and other such matters. There never was a
multilocation commercial operation that did not have such
direction and guidelines for its separate stores or plants. It
does not follow from the fact the central office gives broad
instructions to its local people that the branch store agents
have no "discretion" at all, or that they do not still run the
business in their limited bailiwick.
In the original decision the Board found there had been a
total of 100 employees transferred among the stores over a
2-year period. Glazer said that during the 4 1/2 years
preceding his appearance as a witness there had been
"more than 400," about 10 percent of these "in the
executive levels." He produced no record to support the
figures; he said his assistant had looked at the record and
told him about them. He could not say how many of the
transfers had been from stores which the Company has
closed during the 4-year period, or how many were
temporary, to other locations for no more than special
sales.
The testimony of the general operations manager,
Randall, is no more convincing. There is a store manager
in each location and the operations manager in Akron is
over all. He said the operation manager can make
recommendations for discharge without consulting the
store manager, but "not always, "With these exceptions,"
"it could have been." Does the store manager hire the "so
called high class store people?" "Not totally." Does the
operations manager recommend without consulting the
store manager? "I wouldn't be able to tell you. It would
depend on the circumstances...." Could he estimate the
percentage of cases in which the operations manager does
consult the local man? "That would be very difficult, I am
afraid." He had "no idea" who is paid more-the
operations manager or the local store manager. If Randall
is to be believed in his conclusionary statements, the store
manager has nothing to do with "operational budget,"
"security," "housekeeping," "stockkeeping."
I reaffirm the Board finding that a unit limited to the
Respondent's downtown Akron store is appropriate for
collective-bargaining purposes.
D. The Union's Majority Status: Authorization
Cards
All parties stipulated that the total complement of
employees included in the unit in the manner and at the
critical time alleged in the complaint, was 1,298, and their
names are listed on an agreed-upon exhibit.
To satisfy the affirmative burden of establishing the fact
that on April 13, 1970, a majority of the employees in the
bargaining unit had authorized the Union to represent
them in collective bargaining, the General Counsel offered
four forms of evidence.
1. A written stipulation of all parties, received in
evidence, listing 302 names of persons who had signed
authorization or membership cards in favor of the Union,
all on dates preceding the demand and refusal. All these
persons appear on the list of employees at work on April
13, 1970, and the parties agreed these cards are authentic
and valid for purposes of determining majority status in
this proceeding. The exhibit was supplemented by later
stipulations that Evelyn Baine signed on September 13,
1968, Carol Lacy signed on April 3, 1970, and that Patricia
McGuire is the Patricia Cross included in the total
employee complement list.
2. Authorization or membership application cards
bearing the signature in the name of an employee in the
unit; in some instances there are more than one such card
for a single employee, signed on different dates but always
before April 13, 1970.4 All the cards read as do the
following, one or the other.
RETAIL CLERKS INTERNATIONAL
ASSOCIATION
MEMBERSHIP APPLICATION
Local City State
Applicant Date of Birth_
Residence City
Zip Code Type of Work
Social Security No.
Tele. No. Employer
Business Address
Previous RCIA Affiliation, Local
No. or City When?
I hereby make application for
membership in the RETAIL CLERKS
INTERNATIONAL ASSOCIATION and
affirm that the above statements
are true, and I agree that all
progress
As to Kelso , Glazer said he spends 15 percent of his time in the central
office and goes "once a week" to each and every store but two-this means
eight separate stores-where he spends "half a day" in each To the two
others-many miles away-he goes once every 2 weeks At one of these he
"shoots a day" when he goes Later, counting the hours of the week poorly,
Glazer said that Kelso goes to the Summit Mall, one of the largest of the
eight locations , "Three to five times" each week , and stays "four to five
hours" on each visit At this point the witness attempted to recover by
saying that Kelso "could be working on Saturdays and Sundays and in the
evenings too " This sort of testimony serves little to weaken the
Board's original finding that a single-store unit is appropriate in the case of
this Company
4 As originally offered, these cards , constituting G C Exh 11, totalled
422 Two had been included by mistake Steve Wahl, whose card appeared,
is not the Wahl listed in the total complement agreed upon , and Giorgianna
Tatum's card is dated April 14, 1970, after the demand and refusal Both of
these will be ignored.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moneys paid by me shall be for-
feited and my membership declared
void if they are not true. I
authorize the RETAIL CLERKS
INTERNATIONAL ASSOCIATION to
represent me for the purposes
of collective bargaining and
handling grievances , either
directly or through such local
union as it may duly designate.
Date of Signing
Applicant,' s Signature
We, the Local Union Executive
Board report affirmatively on this
application whose affiliation
date is
Local Union Executive Officer's
Signature
FORWARD THIS COPY TO THE
INTERNATIONAL SECRETARY-
TREASURER
RETAIL CLERKS INTERNATIONAL
ASSOCIATION
(Affiliated with the AFL-CIO)
AUTHORIZATION FOR REPRESENTATION
Desiring to enjoy the rights
and benefits of collective
bargaining I, the undersigned,
employee of the (Firm name)
Employed at Dept. or Store
No. Home Address
Phone City State
Zip Code hereby authorize
Retail Clerks International
Association, AFL--CIO or its
chartered Local Union to repre-
sent me for the purposes of
collective bargaining, respect-
ing rates of pay, wages, hours
of employment, or other
conditions of employment, in
accordance with applicable law.
S By counsel for the Respondent at the hearing:
We have had the burden shifted to us to call people to put testimony
Accompanying the card or cards of each of the 420
persons, there were also offered into evidence one or more
documents bearing the signature of the employee and
found among the Company's regularly kept records. These
consist variously of employment applications, credit cards,
vacation requests , federal income tax withholding forms
(W-4), insurance documents, etc. Although the Respon-
dent did not vouch for the absolute authenticity of the
signatures appearing in its records , it was stipulated that
these miscellaneous documents, used as standards for
comparison here , did come from the company files and are
part of its regular records. All these cards-authorization
and standards for comparison-were offered into evidence
accompanied by the testimony of Joseph Tholl, a profes-
sional handwriting expert called by the General Counsel.
Tholl testified that in his opinion each of the authorization
cards so offered had been signed by the same person whose
related signature appears in the company 's records.
3. Twelve employees from the bargaining unit were
called as witnesses ; each testified to the authenticity of
cards he or she had signed and which were also received in
evidence.
4. One card, dated April 4, 1970, was offered through
the testimony of an international representative of the
Union, then working as an organizer , who authenticated
the card by recognizing his initials on the back.
On the basis of this evidence the General Counsel argues
that 735 (302 + 420 + 12 + 1) employees in the
bargaining unit at the time of demand and refusal had
unequivocally authorized the Union to bargain on their
behalf, a clear majority of the 1 ,298 persons constituting
the total complement.
The Respondent offered countervailing evidence, and
arguments , intended to dispute the correctness of this
ultimate assertion . The defense is aimed primarily at the
420 cards offered only with the support of the comparison
signatures and the testimony of the handwriting expert.
There is an overlapping ambiguity in the Respondent's
variously stated contentions, and it is important to clarify
them at the outset. One argument repeatedly articulated
throughout the hearing is that simply by looking at two
signed documents , one disputed and one conceded, there
can be no finding that the two were signed by the same
hand, even if the examiner be an expert . This argument
goes to the authenticity of the signatures on the authoriza-
tion cards . A second argument , again and again interwov-
en with the first , is that the primary burden of proof resting
upon the General Counsel includes , in a case of this kind,
the affirmative duty of calling the employees as his
witnesses in support of the complaint . The Respondent
insists that, by resting his case-in-chief without calling all
the cardsigners individually, the General Counsel illegally
and unfairly shifted the primary burden of proof to the
Respondent .5 The record shows clearly that this position
has nothing to do with the signatures , but questions instead
the sufficiency of the clear authorization language spelled
out in the cards . Protesting what it called improper shifting
of the primary burden of proof, the Respondent called 187
employees as witnesses . Of these , 183 started by saying
into the record of what was said five years and two months ago, which
is totally absurd position to put the Respondent in. . .
THE M. O'NEIL COMPANY 169
they did sign the authorization cards showing their names
and already received in evidence. They were then ques-
tioned about what happened when they signed, what was
said , what they intended when they signed. The first
argument involves the straight law of evidence, or
admissibility; the second questioning past intent-goes to
the sufficiency of receivable evidence.
Shorn of distracting language, all this is reduced to two
questions : (1) Were the disputed 420 cards in fact signed
by the same persons whose company records were
produced? (2) Is there affirmative reason for rejecting any
of a total of 433 of them now on the ground that the
purpose of the employees in signing the unequivocal cards
was something inconsistent with the expression stated
thereon?
E. Signatures
On this first question the Respondent's ultimate conten-
tion is that a comparison of signatures cannot lead to
absolute certainty that the card was signed by the
employee indicated. The position can perhaps be restated
as no more than philosophical disputation: what is it that
in the finite mind of man is a fact? Counsel for the
Respondent, Mr. Millisor, was absolutely logical and very
persuasive in his reasoning . That is, he was convincing if
the question he raised with respect to the card signatures
be taken out of context, if the overall picture of this
proceeding be ignored. The short answer to his argument is
that the prosecution does not claim the authenticity of
these cards is established in this manner either with that
moral certitude we attach to the Gospel, or with the
mechanical assurance which flows from scientific investi-
gation.
This is a Labor Board proceeding, in which the standard
of proof need not rise to the level of being beyond a
reasonable doubt; the pertinent facts, however the concept
be defined here, need only be established by a preponder-
ance of the substantial evidence on the record as a whole.
N.L.R.B. v. Glenn Raven, 203 F.2d 946 (C.A. 4). Moreover,
it is a refusal-to-bargain case in which it has already been
found that it was the Respondent's misconduct which now
makes it impossible to hold a "reliable" election. It is for
this very reason that authorization cards now become
acceptable proof of employee authorization in this case,
despite the fact they are less reliable than expressions
voiced by secret ballot. Had the Respondent's agents not
chosen to violate the statute by outrageously threatening
everybody's job in retaliation against prounion votes, it
could itself, as does its counsel now, have questioned the
reliability of authorization cards, either with respect to
their signatures or as to the signer's intent. It then had the
right, now forfeited, to insist upon r more reliable test for
proof of the Union's majority status. In any event, this is
how the unanimous opinion of the Supreme Court in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, must
fairly be read. The Court recognized a degree of merit in
the basic position of the Respondent advanced here, when
it said such cards are "admittedly inferior to the election
process." It used them nevertheless, as would do now the
General Counsel, to support an affirmative bargaining
order.
Tholl, the handwriting expert called by the General
Counsel, commented successively upon every one of the
420 cards and said that in his considered judgment in every
case the authorization cards had been signed by the same
persons who had signed the related company record
documents, or the standards he used for comparison. As
part of its defense, the Respondent called 187 witnesses,
present and former employees, all in support of its attack
upon the cards. Of all of these only four denied they had
signed authorization cards bearing their names; all the
rest-a total of 183-recognized their own signatures on
the card or cards bearing their names. Insofar as the
immediate question is whether the authenticity of the cards
can be established, and has been established, by a
matching of signatures under the rules of evidence, the
issue is now limited to 237 cards. With 183 employees
called by the Respondent-all included in the total group
of 420 in General Counsel's Exhibit 11, having admitted
their signatures to the authorization cards in evidence, all
of these 183 are removed from this immediate issue of
authenticity.
Also in defense the Respondent called Paul Osborne,
another handwriting expert. Osborne said that in his
pretestimony preparation, he studied more than 700 cards,
including the 420 which the Respondent put in issue and
the 302 as to which the parties stipulated. Of them all he
was questioned only as to 11, and as to these gave varying
expressions of opinion. Inasmuch as he is an expert in the
field, was called in support of the defense, and studied all
of the cards, it follows that in his professional judgment he
found nothing in any of the remaining cards that raised
serious doubt as to authenticity in his mind, at least not
enough to warrant comment at the hearing.
Some comments are in order at this point. In the course
of their testimony both experts took pains to make clear
that whenever they were saying, with respect to any single
disputed signature, that in their opinion it was or it was not
signed by the employee in question, they were voicing only
an element of probability. a degree of certainty, more or
less. They consistently explained that they were not saying
this card or that was positively, and beyond question,
written or not written by the same hand that appeared on
the agreed-upon standard. Thus each of them detailed how
there are always certain differences and certain similariti,s
between any two signatures examined. Osborne spoke of
"individual normal variations," of "one difference" being
"a controlling factor" and some "similarities" being
"simply coincidence." And Tholl commented upon "writ-
ing variations" in signatures by the same person, as . ell as
"occupational changes" that may reveal differences in
separate writings by the same individual under different
circumstances. In short, their expressions of opinion are
not to be taken like the testimony of a witness who says:
"Believe me, and may Zeus strike me down with a bolt of
lightning if I am lying."
As stated above, Osborne, for the Company, seemed to
be questioning I1 cards; as to some, at least, it is by no
means clear he really doubted authenticity. About employ-
ee Woodruff: "I would say that it is possible, or even
probable, that the latter [the authorization card] contains a
genuine signature. . . . There are certain similarities .. .
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would indicate that it may be the writing of the same
person ." Employee Moirano : "I believe they [authorization
card and standard ] were probably written by the same
person"; Osborne then said one comparison signature was
not enough for him to be sure . Employee Thelma
Williams : "I feel that most probably the signatures on
these two questioned documents were written by Thelma
Williams . But again , with the one specimen I would be
loath to make a definite identification...:'
It is with these thoughts in mind that I reach my own
conclusions and make my own findings as a trier of the
facts . I have very carefully studied all of the cards in
question and painstakenly, more than once , compared the
signatures on them with the related signatures appearing
on the comparison documents . I find that the following
cards cannot fairly be matched with the related standard
signatures and therefore may not be counted towards
majority in this case. Walcie Greene,6 Bess Lake, Rosa Lee
Lamb, Lena Wilkins, and Ethel Cox (Reynolds). There
would be no point in itemizing the minute signature
differences weighed against similarities , infinitesimal curli-
cues which match and which do not match , in the case of
these six cards . The duty of the trial judge in this situation
is not to argue and persuade , but to make findings under
the scheme of the statute.7
Two women , a present and a former employee, as
witnesses were shown the authorization cards bearing their
names and denied they had signed them . Thelma Johnson's
eyes went bad after she left the job and she was therefore
unable to see the questioned signature . Of the great many
cards in evidence , her's presents perhaps the most
extraordinary matching pair of signatures . There is no
escaping the finding she signed that authorization card,
dated April 7, 1970, and I so find . The same is true of a
card signed by "Angelic Cucuzza ," when compared to its
related W-4 form signed by Angeline Cucuzza . Angeline
Cucuzza, the employee , looked at the card and said she did
not sign it, although she did remember signing a card,
adding that her name has an "n" in it-Angeline . She also
said she sometimes calls herself Angie , and signs her name
that way. There is no question in my mind that she did sign
the 'authorization card in evidence and I so find . Compare
L. C. Cassidy, 171 NLRB 951. The signatures in these two
instances are too much alike to lead to any other
conclusion . It is not a matter of discrediting the witnesses;
I doubt either of them lied . More likely they simply forgot.
Subtracting from the original total of 420 cards the 5
cards found insufficient , the 2 already found acceptable
despite contrary testimony , and the 183 authenticated by
the employees themselves, there remain 229 for decision. I
find that in all 229 instances the card or cards were signed
by employees in the bargaining unit , as dated , and all by
April 13, 1970. This finding rests primarily upon the
comparison of signatures between those seen on the
e Greene appeared as a witness and denied she signed the card in
evidence bearing her name ; she said she refused the overtures of two
organizers who went to her home . Charles Ward, a union organizer, was
called later to rebut her testimony , but the story he told is not convincing
for that purpose . He had no personal recollection and spoke only of what
was written on a document placed in his hands at the moment , and which
he said he had prepared after calling on the lady. The card is dated April 10
but his report was dated April 9 , although he insisted he always filled in the
authorization cards and those appearing on the standard or
comparison forms . It also rests , in part, upon certain
related facts which bear indirectly and generally upon the
question of authenticity . All the cards show names of
employees at work in the bargaining unit during the time
of the pertinent events . More than 95 percent of the
employees who testified verified their signatures . They are
all variously dated between February 1968 and April 1970,
the period during which the Union carried on its
organizational campaign. One election was held in May
1968 and another the following April. Many of the cards
are stamped as having been received by the Board's
Regional Office before the first election , assumably to
support the original representation case petition. The
record as a whole shows a consistent pattern during the 2-
year period of union organizers ' soliciting the cards , taking
them into their personal possession , funnelling them into
the Union's office and then forwarding them to the Board.
There is also perfectly credible evidence that they were
kept in the custody of the Union-where logically they
would be found-and then all placed in the hands of the
Board agents when the unfair labor practice charge was
filed. Also, many are postmarked as having been mailed by
the employees directly to the Union. All this points to a
regularity supporting the finding of reliable authenticity.
And, finally, I deem the composite testimony of the two
handwriting experts as also supporting the finding I make.
Both of them examined all of the cards ; Tholl said he
excluded certain ones because he could not state with
assurance that the related signatures matched ; these cards
were not offered in evidence . Osborne said he looked at
over 700 cards and then questioned only 11, some
obliquely and almost tongue and cheek. It is a fair
inference, from this , that in his opinion, too, all the rest are
authentic . From Osborne 's testimony : "But of the 700
signatures that I examined, most of them that I examined I
was satisfied were most probably genuine."
F. Are Authorization Cards Reliable Evidence of
Past Intent?
The Respondent 's second attack on the authorization
cards was variously stated throughout the hearing, and is
repeated in many guises in its brief. When so ingeniously
articulated the argument sounds other than what it really
is, but in the end always reduces itself to the simple
proposition that absent personal testimony by each and
every employee the cards do not suffice to support a
finding that in April 13, 1970, the persons who signed the
cards really wished to be represented by the Union in
collective bargaining . There is a difference between
questioning the authenticity of the signatures and attempt-
ing to nullify the plain language of the printed cards, and
no amount of discourse can mask the distinction. Again
and again counsel for the Company complained that the
report immediately after the visit . He said he always initials the back of
cards he obtains , but this one has no initials at all. His report says nothing
of the lady signing any card . Ward stated at the hearing that he 'inferred'
she signed from the fact his evaluation of the total conversation lead him to
conclude Greene favored the Union.
7 Aero Corp, 149 NLRB 1283; N.L.R.B. v. Hunter Engineering, 215 F.2d
916 (C.A. 8).
THE M. O'NEIL COMPANY 171
General Counsel, by not himself calling all the employees
as witnesses, had unfairly, and unlawfully, shifted the
burden of proof to -the Respondent . What burden of proof?
There is a primary one and a secondary one. The first rests
upon the prosecution , and it is to establish affirmatively
that enough of the employees actually at work on the
refusal date had expressed themselves in favor of the
Union; the prosecution did this by proving they had
signed, in plain and unequivocal language , written authori-
zations . The second burden of proof rests upon the
Respondent in such a case , if it so wishes to defend, and it
is to come forth with convincing evidence that despite the
clear language of the cards the employees who signed were
given to understand , by whoever solicited their signatures,
that the real . purpose was an object inconsistent with what
the plain printed English said.
This is a fairly large unit of employees for an authoriza-
tion card-refusal-to-bargain case , up to this time anyhow.
There has been a certain amount of turnover in personnel,
people have died , a number retired , many have moved
away from the area, and still more have simply left the
Company, or may be there and do not want to be bothered
anymore with the whole business . Who knows but some
may have been so adversely affected by the Respondent's
threats to turn the whole downtown store into a warehouse
that they are just afraid to appear, in court at all.
Developments of this kind are to be expected in so large a
store and with the passage of time . But, it must be said
again, all this could have been avoided. If the Respondent
wished to be spared its present predicament of having to
search for employees who might help it carry a defense
burden, all it had to do was either permit the election
process of the Board to serve its intended function by not
committing unfair labor practices, or agree , as the Union
requested before the election , to submit the cards then to
some impartial observer.
However the defense position be viewed, it appears as
total rejection of the Supreme Court holding in Gissel. The
Court unanimously ruled that where an employer's
preelection misconduct is of such a nature and extent as to
make a fair election impossible, it is just and proper to look
to previously signed authorization cards as reliable
expressions of intent by the employees, and if a majority is
proved in this way to order the employer to bargain in
remedy now for its unfair labor practices. To reject the
cards, and to require that the General Counsel call the
employees as witnesses, means asking them now, after the
intimidating behavior of management agents, whether or
not at the time they signed the cards they really intended
what was written thereon . But this is no different than
polling them in secret ballots. In fact, repeatedly as the
long stream of employees were called by the Respondent,
its counsel asked them one after another that very
question : What were they thinking when they signed? The
question came in many forms, sometimes only by leading
questions , sometimes by outright inquiry as to their past
s By Respondent's counsel on the record:
I submit we are not going to the state of mind retroactively. We are
only trying to present the best possible evidence from that witness as to
what she must have been told was the purpose of the card.
9 The Supreme Court speaking in Gissel:
We also accept the observation that employees are more likely than
state of mind. Counsel attempted to justify the technique
on the ground that with the passage of time memories fail
and that the question was therefore proper. He argues that
if the witness now says her past intent was solely to bring
about an election, or solely to receive union literature, it
follows of necessity this is precisely what the union
organizer who solicited her said to her, else why would she
have thought that?8 It is an ingenious theory, but
transparent . Counsel was still calling for a present
expression of intent, no different from what an employee is
asked when she enters the polling booths. But the Court
has ruled it is not possible fairly and reliably to ask the
lady now, after she has been too seriously intimidated by
the boss.9
Of the 420 cards included in General Counsel's Exhibit
11, then, 6 are eliminated because the signatures cannot be
found authentic, leaving 414. Of the persons who signed
them 186 appeared as witnesses (plus Walcie Greene, one
of the 6 whose cards have already been eliminated).
Deducting 186 from 414 means there are 228 authentic and
clear authorization cards with no cloud of doubt cast upon
them. I find that all 228 are valid for majority counts in this
proceeding.
G. Testimony by Employees Who Signed Cards
The count towards the Union's majority status at this
point stands at 530-302 stipulated cards, plus 228 cards
valid because unambiguous and unimpeached.
1. Forty-three employees called by the Respondent, all
of whom signed cards, gave testimony so barren of
anything that could invalidate their cards under Board law
that this Decision would be pointlessly burdened by
detailing it here. No two stores are exactly alike, of course;
an occasional one starts in one vein only to become clearly
valueless as an attack on the clear authorization spelled out
in the card. Most of the witnesses in this group said no
more than that they were told the card was "to get a union
in" (McLaughlin), or to "show we were interested in
joining the Union" (Quirk), or "to try to get a Union"
(Wanda Long), or that they "understood"-but without
quoting anyone-it was "to aquire a union" (Gill). One
woman, Miller, after saying she signed after being told "it
would help get the Union in," added she later sent back
union literature with a notation she was no longer
"interested." It then developed she was referring to a 1971
interrogatory received from the General Counsel in the
investigation stages of this case. Another witness,
McGeorge, said that after signing her card she wrote to the
union to get it back, and then clarified this was after she
had left the store, after November 1970. "I thought after
we voted, there was nothing else." Cebator was called to
say the card was for an election, but she also admitted on
cross examination that she paid dues to the Union during
1970. Gabor signed one card and Wheeler signed two.
Gabor said she later refused a union agent entry into her
not, many months after a card drive and in response to questions by
company counsel , to give testimony damaging to the union, particular-
ly where company officials have previously threatened reprisals for
union activity in violation of Section 8(a)(1) We therefore reject any
rule that requires a probe of an employee's subjective motivations as
involving an endless and unreliable inquiry.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apartment because "where I live, you don't make a habit of
opening the door to anybody . . . I have high hyperten-
sion...." And Wheeler added he told the union
representatives to stop telephoning him at home: "I didn't
want to be bugged at home. I told them what I made... .
Q: Did you give any indication as to whether you were
interested in the Union? ... A: No."
I find the cards of all 43 of the following employees valid
and that they may be counted towards majority.
Pebble Bartley Catherine Miller
Ada Burkett Frankie Myers
Cordelia Cebator Lela Orihel
Dorothy Collier Verona Palniateer
Clara English Faye Perry
Mary Ereth Madelyn Perry
Mary Fenkanyn Phillip Quirk
Virginia M. Ford Agnes Redl
Helen Gabor Sandra Sharier
Richard Gill Elizabeth Sholley
Alma Hamilton Dorothy Sigmund
Helen Hood Helen Simmons
Flossie Jackson (married Louise Smith
Sunseri)
Jennie Kalail Maye Spence
Rita Knecht Sandy Maschmier (Stewart)
Evelyn Koeberle Josephine Triola
Leo Kormanik John Wheeler
Wanda Long Emma Wilson
Lenore McGeorge Margery Wiseman
Elenore McLaughlin Rita Gates
Anne Mann Eloise Hawthorne
Norma Meeks
530+43-573
2. Of the employee witnesses called by the General
Counsel to authenticate their own card , five were ques-
tioned by counsel for the Respondent but also said nothing
that could invalidate their cards. I therefore find the cards
of Janice Achberger (Forte), Sylvia Feeder, Judith Walker,
Dennis Long, and Mildred Matheny are valid and may
also be counted in.
573+5-578
3. I also find to be valid the cards of Thelma Johnson
and Angeline Cucuzza, who did no more than deny their
signatures.
578 + 2 - 580
4. Thirty-four employees called by the Company spoke
of being told the cards were for an election. They
articulated the idea in a number of ways, some said they
heard such words from the solicitor, some that it was
general talk , some that they just formed such an impres-
sion, and some simply that this is what they had in mind
when they signed. For example, Siegenthaler: ". . . there
was no explanation as what the card was and I took it on
the assumption it was just to get enough names for a vote."
Helena Heid: "I thought it was to have an election."
Allman received the card in the mail, she read it, she
understood it, and then the company lawyer asked: "What
did it mean? . . . A: It meant we could vote the Union in
or we could vote it out." Korman remembered hearing
"Let's get the Union in . . . Hurry up and sign to have an
election and that we wouldn't have to pay the initiation
fee." Coble: "I thought that they had to have so many
signed up to have an election . . . I guess it was for the
Union to represent us as far as I know ." Imes : "I asked
him how many cards he had to have before he could have
an election, and he said he had enough cards to represent
the store without an election but there would be an
election." Stoker: "I just know in my mind I thought, you
know, if you signed the card, that would let the Union
come in so you could vote for or against it." Testa picked a
card off a counter and signed; she said no one told her
anything about the card, but that she thought the reason
for signing was to have an election.
It must have without doubt been common knowledge
and general talk throughout the store all during 1968 and
1969, when most of the cards were signed, that before the
Union came "in" there was going to be an election. The
Respondent's lawyer had announced that decision as a
fixed policy determination by the Company at the very
beginning of the representation case hearing as far back as
May 1968. That the word "an election" means people vote,
and that when they vote they can vote either way, is a
truism. The fact some of the people said they knew they
could vote as they pleased, or were told they could vote as
they pleased, can hardly serve to obliterate the fact they
also agreed, by their signatures, the Union could bargain
for them forthwith.10 The two thoughts are not inconsis-
tent or mutually exclusive . This is why the Court in Gissel
took pains to underscore the word solely when it said it
would be different if the evidence proved the employees
were told the card was to be used only for an election.
In urging out-of-context quotations from the testimony
of various witnesses, Respondent throughout its brief
repeatedly equates the phrase "there will be an election"
with the words "there will be only for an election." It
simply refuses to accept the unanimous decision of the
Supreme Court in Gissel: "In resolving the conflict among
the circuits in favor of proving the Board's Cumberland
rule, we think it sufficient to point out that employees
should be bound by the clear language of what they sign
unless that language is deliberately and clearly cancelled
by a union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature." There is nothing worthy of repetition in the
testimony in any of these 34 witnesses that could possibly
support any finding they were told the purpose of their
card was solely to bring about an election . Angiullo said he
signed and knew an election "would eventually come," and
then proceeded to pay union dues from June 1969 through
December 1970. Grell signed a third card in October 1969
and paid dues for the next 3 or 4 months.
Accordingly, I find the cards of all the following
10 Cumberland Shoe, 144 NLRB 1268 . In Levi Strauss, 172 NLRB 732, cards.... Thus the fact that employees are told in the course of
the Board said: "Declarations to employees that authorization cards are solicitation that an election is contemplated, or that a purpose of the card is
desired to gain an election do not under ordinary circumstances constitute to make an election possible , provides in our view insufficient basis in itself
misrepresentations either of fact or purpose . That purpose . . . is one for vitiating unambiguously worded authorization cards on the theory of
that is entirely consistent with the authorization purpose expressed in the misrepresentation."
THE M . O'NEIL COMPANY
employees valid
majority.
Merlin Akins
Letha Allman
Nicholas Angiulo
Ethel Bennett
Robert Brouse
Margaret Brown
Mary Buchanan
Ralph Coble
Diana Crooks
Frances Davey
Karen Foster
Bertha Grell
Elberda Hall
Ruth Hatter
Helena Heid
Marvin Lee Hill
Virginia Hopp
and that they may be counted for
Archie Hunt
Anna Imes
Alexandra Isakov
Helen A. Jones
Amelia Kaforey
Ann Keberle
Bertha Korman
Geraldine McDonald
Elizabeth Maguire
Mary Michael
Hope Quesenberry
Dorothy Reynolds
Marie Stoker
Helen Swinehart
Margaret Testa
Estelle Woodley
Arthur Siegenthaler
580+34-614
5. A few employees were told the purpose of the card
was only to bring about an election . In one or two of these
cases the witnesses could not recall what individual had
done the soliciting, whether it was a union agent or not;
they were also not precise as to the exact words they had
heard . What is determinative is that these witnesses did
quote the solicitors , and were clear as to the thought
conveyed to them . The concept "solely" can be conveyed
in more ways than one . Mahavich recalled being told that:
" . . if you sign the card , it wasn't committing you to
anything or even telling you that you could possibly-or
that it would even help bring the Union in . That was
mainly to get the Union to be able to bring their vote into
the store." ". . . she told me that . . . they needed a
certain amount of cards for the employees to sign and then
they could bring the vote into the store where everybody
could vote whether they wanted to join a Union or
not. . . ." Jessie Powers: ". . . the instructions were it was
just to help to give the Union a chance for the employees to
have an election if they wanted it ...." "... she said it
was not a binding thing , it was just to get the union so the
people could either vote yes or no.... " Margroff: "She
said the signing of the card was just to be for an election, so
that they could have an election ." LaPointe: "He said that
this card was only so that we could get a vote into the store
so everyone could have a right to vote the way they wanted
to.... he said it was only to get a vote into the store, and
he said that, if I signed it and the Union did get in, I
wouldn't have to pay any initiation fee." Edna Ramsey
quoted the solicitor as saying : "that this card would in no
way obligate me-in any way . It wasjust for a free election
for the Union." I find that these five persons were told the
purpose of their cards were "solely" to bring about an
election, and that their cards therefore may not be used
towards majority.
6. The attack upon the validity of a group of other
cards rests entirely upon an argument drawn from the
single word: binding-not binding, or obligated-not
obligated . Just as the Respondent sees reason enough in
the word "election" for destroying all of the card language
173
which authorizes the Union to bargain for the employees, it
also would have it that if an employee were ! told, or
believed, the card was not "binding," or did not "obligate"
her, it must be found as a fact she did not intend to
authorize bargaining on her behalf. One or two witnesses
will illustrate the point. Hickok, a clerical employee, said
one Deserio gave her the card and that she read it before
signing. Twice Hickok said she asked Deseno nothing
about the cards. Then: "I asked her if it would put me
under any obligation, and she said 'no.' " This is the
totality of the lady's testimony about what she heard or
was told when she signed. Rich said a union man visited
her at home one day to ask was she interested in the union,
and that when she asked what would it do for her, he said
it "would help him if he had so many names he could hand
in or something to that effect." Rich also quoted the union
agent as "He said it would not bind me in any way.. .
Something to that effect, I cannot remember the exact
words . . . that I would not be obligated in any way." The
man then told her she "should think it over and he would
leave the card in the mail box." Rich found the card in her
mailbox, read it, and a week later signed and mailed it
back to the Union. Fikes also received a home visit. She
testified the organizer said he was "getting them [O'Neil's
employees] to sign a card to show they was for the union,
that is all." Her father asked the visitor "if it had any
obligation to it," and he answered, still according to Fikes
. . there was no obligation. It was just to show I was for
the Union." In like vein, Mazak: The union man came to
the door one day: "I just told him I didn't know if I was
interested. He said well, it didn't bind me or anything, it
was just to show I was interested in getting the mailing
literature." She accepted the card, read it, "deliberated
over it a little bit and then signed it and dropped it in the
mail on my way to work one morning." Goss was a
secretary and received a card inside the store. "I was
interested in receiving literature, and I was told I would
receive literature concerning the Union if I signed this
card." Several times she said she remembered nothing else,
but also added the solicitor said "that I was under no
obligation." She mailed the card in later.
Is this affirmative evidence, sufficient to rebut the direct
authorization language in the cards these persons signed?
Is mere use of the phrase "not obligated" or "not binding"
a "misrepresentation" as that word was used by the
Supreme Court in Gissel? I think not. I find all five of these
cards perfectly valid authorizations.
614+5=619
7. The things to which an employee is not obligated, is
not bound, when he signs a card, are countless. The words
are too nebulous to be given concrete definitive meaning,
or any exact purpose inconsistent with immediate authori-
zation for bargaining. Indeed, the fact that in the minds of
the employee "not being bound" had nothing to do with
the direct authorization of the Union as a bargaining agent
is shown in the testimony of several others. Bender: "I
asked him [the union agent at her home] if I would have to
go to court if I signed the card. . . . He said no. . . . He
said there was no obligation if I signed." To Bender "no
obligation" meant she did not have to go to court; in no
way did the idea qualify her authorization to the union.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winters said she heard no more than general talk "to try to
get a Union in O'Neil's to give us better benefits and to
improve our pay." Again and again she insisted she
recalled nothing else about what anyone said to her or that
she heard. After five pages of direct questioning about
whatever else she may have heard and constant repetition
that she heard nothing-"As I said, the only reason I
signed it was in the hope that perhaps if the Union would
be formed we would have better benefits"-came the
leading question: "Did anybody tell you whether you were
obligated when you signed the card? A: No. As near as I
can recall, they said I would not be under an obligation by
signing that card." There is no magic in the word
"obligated" that could change the import of this woman's
total testimony. To her the phrase had no substantive
meaning, else she would have spoken about it long before
the Respondent's lawyer virtually put it into her mouth.
Aronhalt signed four cards, she remembered a great deal of
what she was told. ". . . to build up enough support by
signatures . . . to possibly start a union.. "... to show if
there was enough people to support it . . . a show of
interest as for getting enough signatures . . . for trying to
get a union in." And then, again in response to a purely
leading question: "He said there would be no obligation in
signing the card." That the concept of not being "obligat-
ed" in no way detracted from the expressed intent to be
represented by the Union, appears as clear as can be from
the testimony of Werner: "By signing the card it was not
obligating me in any way. It was more or less a poll to see
who wanted the union at O'Neil's." To the same effect,
Klein: "I had asked her at the time if I would be under any
obligation with this card, and she said that I wouldn't .. .
they were trying to form this Union at O'Neil's-well, just
asked if I would sign the card. That is about it."
A revealing story is that told by Olegar. When the
organizer arrived in his front yard he had a "fear reaction,"
because above all he did not want the Company to know
about any union card he might sign. What had the
organizer told him? "Well, I got the distinct impression
that the card was being used by the organizers and the
Union to give an indication of the probable result of an
election, and I got the impression further that the card
would not be binding, that it would be sent directly to the
National Labor Relations Board so that they could have
an idea whether there were enough people involved in
favor of the Union, indicating that they were in favor of a
union to order an election. . . ." He then had quite a
discussion with the organizer about possible union bene-
fits, in which the agent also "indicated that the purpose
was to show the probable number that could be expected
to vote in favor of the Union. . . ." In the course of cross-
examination intended to show Olegar had read the cards
before signing, came this question and answer: "Did you
indicate to Mr. Forsythe [the organizer] that you would
vote yes? A: The signing of the card indicated that."
Whatever the phrase "the card would not be binding"
might mean, there can be no question but that in this man's
mind it had nothing to do with the state of mind
represented so clearly in his card.
I hold that the mere use of the phrase "not binding," or
"not obligated," in the course of a solicitation conversa-
tion, no more invalidates an authorization card than does
reference to an election to come. I find the cards of the
following employees valid: Bender, Winters, Aronhalt,
Werner, Klein, and Olegar.
619+6=625
8. There are other cards of- which witnesses spoke in
like fashion. In some instances again the sole word
obligated or binding appears, with no explanation, with no
affirmative indication it had any meaning relating to the
authorization so clearly spelled out in the card. Some
witnesses referred passingly to both the idea of the election
and to the phrase not binding, or not obligated. When the
witnesses spoke of both an election and not being
obligated, of necessity it must be taken as a comment on
what election means, i.e., you vote freely. But the fact the
employee knows, or is told, that in an election one votes
freely, or is not obligated, simply does not run counter to
the explicit authorization to bargain. Ruby Hall said the
union man told her "it was a card to give us the right to
vote for or against a union . . . . They said that the card
was not binding and that no one would ever see the card
but them." She asked was she obligated in any way, and
the answer was no. Sharon Jandecka's total testimony is
that when two fellow employees asked her to sign she
asked was she "obligated in any way," and they answered
no. Karen Hamilton listened to an organizer discuss union
benefits and then signed the card at his request. "He said it
was to indicate that I had been contacted and that they
would like to have a rough estimate of how many people
were for the union . . . . He said that I was under no
obligation in signing this." Mary Thomas said she received
a card from "a friend that I worked with . . . she wasn't
one of the big officials," and testified only that the other
lady "said it wasn't binding, to sign the card." Channell
said that when Dorothy, another employee, asked her to
sign, she said, "We wouldn't be obligated in any way, but,
if we signed the card, it might lead to union . . . . By
getting an election." Channell then added she had once
been represented by the Meatcutters Union and had had to
pay dues and attend meetings. Dotson signed three cards.
She quoted Bittinger, a union organizer: "She said it wasn't
binding when she gave me the card, that they were just
starting a Union, that they didn't know how things would
be." "Q: Did Mrs. Bittinger tell you the purpose of the
card? A: Well, they would try to get a union in the store.
That is the only thing that was said to me."
I find the cards signed by Hall, Jandecka, Hamilton,
Thomas, Channell, and Dotson valid.
625+6-631
9. Sixteen employees spoke of the cards serving as
insurance against later paying initiation fees to the Union
in the event it won the expected election, or were
recognized by the Company otherwise. All but three or
four of these simply said they heard rumors to that effect,
or general talk, or merely believed such would be the case.
A few testified they were told this directly by the solicitor.
No matter how the thought arose in their minds when they
signed, and regardless of whether it did or not, such talk at
the time of signing could in no event invalidate any of their
cards. Accordingly, I find that the cards of the following
THE M. O'NEIL COMPANY 175
employees valid and that they be counted towards the exact words, but I was under the impression it was sort
majority.
Allen, June
Baker, Ida
Coleman , Barbara
(Blankenship)
Evans, E. Jane
Fuhrman, Ellen
Green, Jerold
Hanes, Grace
Klug, Mary Jo (Columbo)
Phipps, Elizabeth
Rezack, Helen
Saffels, Mattie
Skacevic, Rose
Smith , Margaret
Stark, Ruth
Woody, Emily
George, Karen
631+16=647
10. A phrase here and there by some witnesses
indicated talk about the cards not being shown to
management representatives ,, or being kept secret . In most
instances the total testimony of the employee shows clearly
the idea, whether voiced to her by the solicitor or whether
merely something she now says was a feeling she had long
ago, was practically of no significance at all. One of the
many assertions advanced by the Respondent in its attack
upon the cards, is that if the employee was told her card
would be kept "secret," or not shown to the Company, it
follows she did not intend to authorize bargaining, and
never mind the fact she said so in writing. The argument
has been rejected too often to justify rehashing here.
Sadaker: "He said they were trying to organize a union at
O'Neil's for the purpose of protecting people who worked
there.... He said nobody would see the card except the
Retail Clerks' union representative or the Government."
Stratton: "She said it would be a good thing for all of us to
get the union in the store . . . . She said they wouldn't let
anyone know that I had signed the card." Strabley: After
five pages of questions and answers during which this girl
could recall nothing that was said when she signed, she was
asked by company counsel : "Q: Did the man who came to
your home to get you to sign the card indicate to you that
the card would be kept confidential? . . . The Witness:
That was my understanding." Rufener: "He said something
like-let me see-it was like to represent you for O'Neil's
or for the Union or whatever, and I think it was just to see
if you did want the Union; but then I thought he said, you
know, it wouldn't be used."
I find the cards of Sadaker, Stratton, Strabley, and
Rufener to be valid and includable in the Union's majority
showing.
647+4=651
11. As already stated, many of the witnesses were
unable to recall the conversations which preceded their
signing of the cards, and in varying degrees spoke instead
of their intentions at the time. Of those who did quote
solicitors or fellow employees, a great number also added,
often before objections to questions could be ruled upon,
comments as to their past mental state . In the lead decision
that must govern the issues here raised as to the reliability
of clearly written authorization cards, the Supreme Court
said : "We, therefore, reject any rule that requires a probe
of an employee's subjective motivations as involving an
endless and unreliable inquiry." Four witnesses offered
nothing but comment as to their past subjective motiva-
tions. Bills, then a college student, said: "I don't remember
of a survey or something of that sort. I wasn't obligated to
the Union or anything like that. . . . I thought it was like a
survey." "That was the impression. . . . That was in my
mind." Baer said she feels that union business, "Like
religion and politics," is "something you should keep to
yourself," and therefore spoke to nobody about her card.
She took one home and signed it. "I did not really feel I
was obligated at that time." Mary Roberts carried a card
with her for days, then signed and mailed it to the Union.
She could not recall who gave her the card, where, or what
anyone said. She added she heard the rumors that "it
would cost more if we didn't join now or we might lose our
jobs or something like that ...... She then volunteered, "I
signed out of fear . . . maybe losing my job." See signed
after several telephone calls from union solicitors who
talked to her about possible benefits; she had previously
hesitated because "I just didn't know exactly what they
had to offer." She then added that later "I was left with the
impression that, if I didn't join the Union, the Union
would have preference, if they got in, our jobs; in other
words, if there happened to be an opening and I wanted it,
it would be given to a Union employee over me. That is the
way I understood it...."
I find the cards of Bills, Baer, Roberts, and See valid and
shall count them towards majority.
651+4=655
12. Some things union organizers say they should not
say. There are misrepresentations that by their nature
should, and do, invalidate cards notwithstanding the clear
language. Catherine Harig, quoting the solicitors: "She said
if we didn't sign the Union card, we would not have a job.
You know, if the Union came in and we didn't sign the
card, we wouldn't have a job." Mrs. Harig has seven
children to support and is separated from her husband.
Edwin Leary was told by the solicitor "The union is coming
in. It is here, sign up, and, if you don't, you know what is
going to happen. It will be rough on you if you don't join
now." I think this sort of solicitation borders too close
upon intimidation or threat to be considered consistent
with a true intent to authorize immediate bargaining by a
union. I find the cards of both Harig and Leary invalid.
Mary Marz said she signed after the solicitor "said if I
didn't sign it I'm gonna be in trouble." A union agent
called her on the phone later and asked was she scared,
didn't she believe in the union? Marz also testified she sent
a letter to the Union about a month later, therefore still in
1968, asking that her card be returned. Bittinger, a union
organizer, called later in rebuttal, recalled she did see such
a letter in the Union's office and gave it to the chief
organizer. I reject Marz's card from the count here.
13. With respect to a number of cards the Respondent
makes a particular argument based upon one employee or
another having been told that in the election that in all
probability would come they could vote in secret, or either
way. In his brief the lawyer asked a perfectly understanda-
ble question: How can you say the employee committed
himself to be represented by the Union just because he
signed a card saying so, if at the same time the thought was
in his mind that he could vote otherwise in an election? He
says these cards must be disregarded as a matter of logic.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No need to defend Supreme Court rationale here; the Fifth
Circuit Court did so in N.LRB. v. WKRG-TV, supra,
when it directly applied the Gissel finding that a card is not
invalidated because the employee was told "he had the
right to vote either way, even though he signed the card."
Elizabeth Barton was told there would be an election and
that ". . . in signing, I would give the people an
opportunity to decide whether they would like to have the
Union at O'Neil's and that it did not obligate me in any
way whatsoever." Neil Fritz: "He [the solicitor] told me it
was to get the election so we could vote for the Union or
against the Union." Martha Long said that when the
solicitor came to her home ". . . I thought I should be in
favor of the Union" because her husband belonged to one,
and that the agent "assured me the card was not binding
and that, when the voting came up, I could vote any way."
She then added that later, after hearing the company
president , Emma, talk about the union, she decided "it was
best not to get the Union in." Carolyn Poston (Sweebe)
signed two cards, one in 1969 and one on April 6, 1970.
Her first statement as to what she was told in the initial
solicitation was: "That the purpose of the card was to see
how many people was interested in the Union. That was
the purpose of the card, that no one would see the card,
and that was all that was said." She then repeated the same
statement . She quoted the 1970 solicitor at her home the
same way: "Same thing as before, that they would just give
me the card to sign and, if I wanted to sign it, to sign it and
they just wanted to see how many people was interested in
the Union. That is all they said about it." At a later point
the witness simply commented: "This was the purpose of
the card. It wasn't no vote or anything." Patricia Spayne, a
college student at the time, signed a card on April 8, 1970.
She said the union agent talked to her for almost an hour
in her house, and spoke at length about the many possible
benefits in conditions of employment. She read the card,
including the "fine print," and signed at the end of his visit.
She quoted him at the hearing as saying "I was not
obligated by any means, that it just showed I was
interested in the Union and that was all." Alice Buzzelli
signed three cards, two in 1968 and one in 1969. About the
first one she quoted the organizer as saying ". . . that I
wasn't obligated, that it wasn't a vote, but he said it was up
to me whether I signed or not." She went to union meetings
later but could recall nothing about what was said in
connection with her separate two cards. After much
questioning by the lawyers, which somewhat confused her,
I asked her just to state whatever she herself recalled,
disregarding all the prompting. "Just give us whatever you
remember. If you remember the idea or the words-... .
The Witness: Not obligated. I signed it on my own." David
Smouse, a witness called by the General Counsel to identify
his own signature. Under examination by Respondent, he
said union agents came to his home and spoke "about the
Union and giving remarks of how we could benefit if the
Union was established at O'Neil's." The witness then
added his understanding was "they were looking for
support to see how much support they could receive-if
they had enough to even botherwith an election, you know,
trying to get into O'Neil's" and that they did say the reason
they wanted him to sign up was "to see if I felt I would
support the union ." He also quoted the agent as saying
there would be an election and "the card did not obligate
me to vote for or against . I could change my mind."
Smouse 's total testimony fits the pattern of all cases where
employees know they can vote "either way" in an election.
The import of his story is not changed by his answer to a
leading question : "Q: Did they tell you this? A: Tell me
that I was-Q : That you were authorizing the union to
represent you only if they won the election? A: Yes." The
witness also said , after this leading question , that when he
signed the card he was "in favor of the Union."
I find the cards of Barton , Fritz, Long, Poston , Spayne,
Buzzelli, and Smouse valid cards.
655+7=662
14. I find the cards of Dorothy Jandecka and Dorothy
Farley also valid . Jandecka testified that when solicited she
said she would go to meetings if she "knew where and
when," and was told if she signed she would be kept
informed and learn more about the Union . Farley said that
two solicitors explained various union benefits to her and
that she told them she "really" had not given the matter
much thought. She then added they told her "she would be
able to go into the meetings and hear both sides of the
thing" if she signed , and she did . See N.LR.B. v.
WKRG-TV, 470 F.2d 1302 (C.A. 5, 1973 ), enfg. 190 NLRB
174, employee Bauman.
662+2=664
H. Leading Questions
There is a considerable group of employee witnesses who
vacillated in their testimony, first saying they were told one
thing and then seeming to recall something else. Some of
these had mixed up recollections of what they had heard at
the time of the solicitation; they merged present thought
processes of what old phrases of necessity meant to them
with outright statements to what they intended, but did not
articulate when they signed. And in a great many of these
instances, testimonial phrases that might in isolation cast
doubt upon the validity of their cards were elicited by pure
and repetitive leading questions by company counsel after
the witness had given direct testimony to the contrary. The
validity of their cards now cannot be summarily deter-
mined by a single phrase out of context from their total
testimony as the Respondent would have it in his brief.
The most reliable testimony of what employees were told
by union organizers when they signed is, of course, what as
witnesses they themselves recalled. The total testimony of
the 187 employees called by the Company cannot be
reprinted here, but it is a fact that throughout, in the
questioning of one witness after another, company counsel
persisted in trying to extract a single "yes" to the purest
leading questions which contained what the Respondent
now calls the magic word sufficient to invalidate a great
many cards. Its brief discusses the total record as though
what came from the witnesses as unprompted recollection
does not exist . Where the burden on the Respondent is to
prove contemporaneous inducement in words destructive
of the clear and unambiguous language of the authoriza-
tion which the witnesses-all English-speaking adults
-read and signed, responses to such leading questions are
especially valueless . See footnote 8, above, and Liz of
THE M . O'NEIL COMPANY 177
Rutland, 156 NLRB 121: "It would be unrealistic to ignore
the Respondent's illegal conduct toward the employees
during the period,between the signing of the cards and the
time of the hearing."
Harold Enders: This man signed two cards, each at the
request of one of the more enthusiastic and principal
employee organizers . Asked directly to repeat what the first
had said to him when requesting his signature , the answer
was: "He told me to sign the card and if we would get
enough cards signed up, we would have an election to have
the Union come in." This answer was immediately
followed by the usual leading question: "Did he tell you
that was the only reason for signing the cards? A: That is
right." As the questioning continued , the witness had
occasion again to repeat what he had been told, and he
phrased it as follows : "He told me that if we signed enough
cards we would have a union . . . . We would have a vote
for the Union." I deem it significant , and determinative,
that each time the witness himself stated his recollection,
the concept "only" did not appear. I am satisfied he
understood what he was signing and meant exactly what
the cards say. He even explained precisely the difference
between the two cards. "The first card was a membership
application. The second card was an authorization for
representative-the first one was a representative ." I find
both his cards valid.
Gladys Harris: "He [the union solicitor] said so I
could vote for the Union whenever they came in." Then
came the leading question: "Q: Did he tell you you could
vote either way? A: Yes." Asked to state what in fact she
recalled was said , Harris then added : "I don't remember,
but that is what I think-that you could vote when the vote
was-either way. If it wasn't, why would you vote?" In my
considered judgment the witness was discoursing upon her
general idea of what voting is about, and not offering
direct testimony giving the he to the card she consciously
signed . Again: "Well, all these years I have thought that he
said that you could vote either way and, if you couldn't
vote either way, why would they have a voting? I mean, if
you were voting, why would they have a vote later?" I find
her card a valid one. - - -
Bertha Krivanich: This woman started by saying she
received the first card from another employee and that
while there was no discussion about its purpose , she knew
the purpose because she read it before signing , and that it
was "that we were trying to get the union in ." She signed a
second card a year later, and read that too. As to this one:
"I heard we were going to get a Union, trying to get a
union in and that that was why we were to sign the cards."
After a certain amount of prompting by company counsel,
she then said : "We were signing the card because we were
trying to get a Union and we could not vote unless we
signed a card." Krivanich admitted all she said was based
upon ". . . you hear things-bits of conversation around"
". . . you hear little tidbits, not that it is true. There is
gossip 'through the store. . . ." I find her card is valid.
Duane Deering: He started by saying the organizer told
him "the card would give us a right in the vote for a Union
if we would want to be represented by a Union and also
that there was no commitment to it other than signing the
card ; that later on we would have an election , which would
be a secret ballot." Asked had the man said what the
purpose of the card was, he answered: "Not really, not
honestly." Deering also signed a second card but could
recall nothing of what was said then. On a second time
around, the witness went back to what the organizer had
said at the first signing, and it came out this way: ". . . and
he said, `We are trying to get a Union in at the
store-Retail Clerks Union. We would like to get the
names of the employees because we had to have these to
bring about an election. We had to have enough signa-
tures.' Gee, other than that, I honestly can't recall word-
for-word." A third version from Deering was he was told it
was not a commitment, it was sort of "a secret thing," "this
wouldn't do anything more than just try to see who wanted
a Union and who didn't; and that they had to have so
much...... All this means to me is Deering heard there
would be an election; the rest is his generalization of what
an election means and he was right. I find his card valid.
Barbara Beichler: This woman vacillated depending
upon how questions were put to her. Asked at the start did
she recall what discussion there had been with employees
who gave her the first card-in June 1968-she said: "No,
except there wouldn't be any obligations." Counsel
persisted: "Q: Any discussion about whether or not the
card was binding on you at all? . . . A: No. Q: May I ask
you again whether or not there was any discussion in which
you were told the card would be binding? A: No, there
wasn't!" And then again the leading technique of mixing
up the witness: "Q: Wasn't what? A: Binding. There was
no obligation. Q: And the card was not binding? A:
Right." Asked later to clarify, to try to "remember better
just what they said to you about the subject, about being
obligated or not being obligated," she said: "I can't
remember what she said." Beichler received a second card
in 1969, mailed it in and recalled no conversation at all
about that one. I do not deem this testimony sufficient to
invalidate either of her cards, both of which I find valid.
Mary Ann Smith: This witness signed two cards but was
very antagonistic toward the Union at the hearing. Her
testimony is confused and inconsistent. As to union
organizers-a woman named Bittinger and a man named
Langley-she said they spoke to her "just a couple of
minutes," but that otherwise "they just kept mulling
around. I never really came out and discussed Union with
anybody other than on the floor in a group. I mean, it
really wasn't a conversation." Asked had any organizer
said anything to her, she answered: "Well, there was some
other women there, and they said, you know, to sign the
card to see how many people were interested in the Union.
It wasn't binding at that time. Q: Did you say anything at
that time? . . . The witness: I said I didn't want any money
coming out of my pay, that it wasn't a binding thing."
Quite apart from the fact that to this lady "not binding"
means being free of payroll deductions, her testimony
cannot fairly be read as quoting anyone on the subject of
binding or not binding. It was her concept and it was she
who raised it. I find her cards valid.
Ritsuko Smith: In answer to the direct question what did
the lady who gave her the card say, Smith answered: "I
asked her why must sign, and she said to get a vote."
Counsel for the Respondent then handed the witness a
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questionaire she had received from the Board in June of
1971, more than a year after the demand and refusal and
after President Emma 's direct threat to turn the whole
company store where this woman still works into a
warehouse with everybody discharged . On the back of the
questionaire there was written-by the witness' husband
and signed by her-a statement that she had signed the
card "only" for an election . Counsel then asked her: "Is
this what the lady told you-what you wrote on your
questionaire? A: Yes" The word "only" never came out of
the witness' mouth at the hearing. Asked a second time
what the solicitor had told her, she answered : ". . . she
brought this card and said , `Mrs. Smith , you must sign.' I
read the card , I asked her what for, and she said to make a
Union . She said, 'We need a vote' I said, `Why must I
sign?' She said, 'Everyone must sign, all employees.' I just
quickly signed , that is all I remember ." I find this lady's
card valid.
Mary Yeich: This lady's testimony, only two pages on the
record , is perfect illustration of the difference between pure
recollection by the witness-or her own reliable testimony
-and the result of prompting intended to change her
story. She is a secretary ; no claim possible here of the
woman not understanding what she read and signed. What
did the other employee say? "A: She said we would get the
same benefits the rubber factories got-wages , pensions,
you know . She stated I was under no obligation to sign
this, but I would be signing on my own ." In the face of this
clear import of the word "obligation" from the witness
herself, counsel asked her again what was said about
obligation . Now the statement by the solicitor changed.
"She just said if I signed it, I wouldn 't be forced to vote for
the union , that it was just to let them know I was interested
in having them represent O'Neil's, but I had no one
approach me and definitely state what the Union could do,
you know." There is no question in my mind that that
witness gave a far more reliable version of the solicitation
talk when she first stated it. I find her card therefore valid.
Margaret Fox: Like Yeich, this witness, too, gave a
perfectly straight story while relating on her own what she
remembered . Later, with deliberately confusing questions,
her story also got mixed up. At the beginning she said, "We
were always talking about the Union" and the girl working
next to her told her to "Sign the card , saying we wanted the
union. . . . If we signed the card , it meant we wanted the
Union , and if other people signed the card , it meant an
election to get the Union in." Then started the questioning
by the Respondent. "What did the card mean to you
-signing the card?" "That I wanted it . It didn't mean I
was joining the Union . If we signed the card and the Union
came in, it meant we didn't have to pay the initiation fee."
Counsel then asked was there any discussion about
whether "or not the card was the vote for the Union?" And
Fox answered "It wasn't a vote ." At this point this was not
the witness quoting anybody , but giving her conception
instead of what an election means . Counsel kept pressing:
"Q: Is that what you were told? A: That it was a vote? [sic
on the question mark] Q : Whether it was a vote , were you
told that? A: No, it was not a vote. They didn't say
anything about a vote . Q: Were you told it was not a vote?
A: There wasn't anything said about it being a vote, no.
The voting is in the election room . The card is not a vote."
This lady signed a second card in April 1970. What was she
told then? "Yes, just another card saying I wanted the
Union ." I find Fox 's cards valid.
Alice King: This witness' testimony consists of practically
nothing but comments as to what she once had in mind,
barren of anything probative of what anyone said to her
when she signed . Did she remember any discussion with
the employee who gave her the card? "No." Did she talk
with anyone before she received the card? "No. I think it
was after." Again, the same question and again , "No." "Do
you know what the card was about? A: Yes and No." "Q:
Did you talk to somebody about it before you signed it? A:
Not one person in particular . There was just talk around
like the lunchroom or something like that ." And then, what
had she heard? "That they would need so many cards and
that to have an election so many signed cards-they
needed so many signed cards to have an election." Then
came a series of leading questions. Was there talk about
what the card meant , about obligation, and always the
answer was "No." And Again: Did anybody say it was for
an election? "I think that was maybe the general-sort of
general idea, yes." Finally, the completely leading ques-
tion: "Were you told that there was no other obligation or
anything else came from signing the card except getting an
election? A: Getting an election. Q: What was your answer
to the question? A: Yes, getting an election ." And again:
(By Mr. Millisor) "Were you told that the card was not like
a vote? ... The Witness: Yes."
It would be a travesty of justice to hold on this sort of
interrogation that this witness herself testified she was told,
before signing her card, by any representative of the
Union, that the purpose of the card, which she admitted
reading, was solely to bring about an election . I find her
card valid.
Florence Kelly: This woman presents another example of
the type of testimony upon which the Respondent relies
very largely to avoid the basic principles reaffirmed in the
Gissel decision. Asked what the solicitor had said, Kelly
stated : "Well, she said it was to get a union in and they had
to have a certain percentage of cards in order to get a
vote." She added the same thing was said when she signed
a second card . She then said she remembered nothing else
the solicitors told her , repeating, as she went on, "She [the
solicitor ] just asked if I would sign a card to help get the
Union in. She didn't argue or fuss with me . They just asked
if I would like to sign a card . They had to have more cards;
so I signed another card." On the last transcript page of
this lady's testimony appears the following:
MR. RICE : Referring now to the first card that you
received from Mrs. Ringwalt , did she state that the only
purpose of signing the card was that you needed a
certain percentage of cards to get the election?
JUDGE Ricci: That was Ringwalt.
Tim WrrNEss: Yes.
MR. RICE : Nothing further.
MR. N.&nssN: [Counsel for the Union]: I would like
to ask the witness to please tell me again in her own
words what Mrs. Ringwalt said.
THE WITNESS: She asked if I would sign the card. I
asked what will the card be, and she said to get the
THE M. O'NEIL COMPANY
percentage of cards signed up in order to have a
vote-an election, rather, to get an election in."
I find the word;`only" is not part of the witness' testimony
at all. In truth it was put there by Respondent's counsel. I
find her cards valid.
Clyde Potter: This man was one of the original
organizers ; he went to the union hall to obtain 'cards
-maybe 500 of them, he "might have called' Hennigen to
arrange the first union meeting . He started by saying
another organizer told him the cards were "To try to get a
vote for the Union, to get the Union in." Counsel then
asked him what was the purpose of the cards, and Potter
voiced an opinion: "If they got enough people, it would
force a vote of the Union." Then again came the leading
question: "Did they [the two other principal employee-
organizers ] tell you that was the only purpose of the card?
A: To get a vote, yes, to bring it up, to get the Union
in there. As far as I recall, yes, to get enough people signing
cards to get a vote for the Union in, to bring up an election.
That is what I understood the purpose to be; isn't that
right?" In the end Potter said, about the man who gave him
the card to sign: "I don't recall that he said anything." This
man's card is absolutely valid.
664+ 12 - 676
1. Miscellaneous
Olivia Parker: This lady testified two organizers talked to
her at home about union benefits-wages, pensions-and
also said : "When I signed the card I was under no
obligation , you know-nobody would know how I voted.
They told me I was under no obligations by signing the
card." Her later testimony indicates what she was really
told is that obligation meant obligation to vote. Asked
again what the men had said about obligation, she
answered: "What was that, please-if I would be obligat-
ed? By signing the card, I would be obligated." She read
the card and signed it. I find her card valid.
Anita Schmidt (Marcella) signed two cards, one in 1968
and one on June 5, 1969. She testified that after signing she
received a "form" letter from the Union asking had she
signed the card and that she returned it with a notation
that she had but "didn't want to have anything to do with
it any more." She said this occurred "I would say about
1970." Asked did she recall the second election and when
the form had been received and returned "in relation to"
that election, she answered: "It was way before I sent the
letter back." She was referring to a general interrogatory
letter mailed out to many employees by the union after she
left, as her testimony otherwise indicates. As it is clear her
letter of disclaimer came after the demand and refusal, I
find her card valid in this proceeding.
Areta Shannon said two union agents were at her home
about an hour and a half talking to her about union
representation . Her first recollection was: "Well, they said
the card was for the purpose of getting enough signatures
to hold an election," and that "it wouldn't be binding or
anything like that." In the course of the discussion she had
occasion to comment to them that she personally preferred
to represent herself, "Like, if I wanted to ask my boss for a
raise , I would rather ask him myself." To this they
explained, as she also recalled, "that I am not the only
179
employee in the store, you know, and that, although the
Advertising Department may not need the Union, maybe
the rest of the store did." They also told her the benefits
they talked about might come to her. She asked did the
card mean she would become a member of the union, and
they said no. The lady then read the card and signed it. I
find her card valid.
Deborah Ferrara All this lady testified to as to what any
solicitor told her is the following: "I do remember he said I
was under no obligation. It was just a card to determine
whether the Union got in or not." I find her card valid.
Viola Austin: Austin did not question the validity of two
cards she signed, the second on April 9, 1970, 4 days before
the demand and refusal. She was called to testify that she
later wrote a letter to the Union saying she was no longer
interested because she was going to quit; she could not
recall when she wrote it. She in fact did quit in October of
1972. She then added she wrote the disclaimer letter "about
a year before" she left the Company. I find her card valid.
Hazel Ramstchaler: A man went to her home, talked
about the Union, possible better wages, and ". . . I asked
if that meant I belonged to the Union or anything like that.
He said no, it was just a procedure. More or less, I figured
it was to show that he was there." I find her card valid. An
employee need not become a union member in order
effectively to authorize it for bargaining purposes.
Emma Grecni: If a clear authorization card can only be
invalidated in a Section 8(a)(5) hearing by evidence of
what was said at the time of the signing, this lady's card is
valid. She testified the woman who gave it to her said:
"They were trying to get a union in the store." "To see how
many people wanted the union is what , at least, I thought
the card was for." She also said she had heard later an
initiation fee would be avoided if she signed then. To this
clear recollection of what was said when she signed, the
witness then blandly added that what she was told had
nothing to do with her signing, and that the real reason was
"to get them [the union adherents] off my back in plain
English." This is precisely the sort of mental state
testimony that may not be used long after the event, and
after the unfair labor practices, to invalidate cards. I find
this lady's card valid.
Dorothy Deserio: This lady went to union meetings,
asked for a supply of cards, and distributed them among
the employees; she said she told them to read the cards
before signing. The Respondent attacks the validity of the
card she signed and suggests her testimony is proof other
cards are also invalid because of what she went around
telling people. She kept changing her story, without
explanation and as the questioning kept changing. Right
off she said an organizer, the first to give her a card, said
she should sign "so the union would know how many
people in O'Neil's would be interested in joining the Union
or would want the Union." She was, at the start of her
testimony, unable to remember that anything else had been
said to her by any union organizer. "All I know is that I
wanted to join the Union." She did recall talk about an
election but said'the word "obligation" was not mentioned
by any union agent. What had she told others herself while
soliciting signatures? "I told them it was just a record, that
the Union wanted to know how many people were
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interested in having a union at O'Neil's." "Did you use the
word 'obligation' when you asked other people to sign the
cards? The Witness: No." Still pressing, the lawyer asked
had she "indicated" to anyone the card was not binding.
At this point the witness vacillated, but, I think, did not
really change her story: ". . . I told them it was just a
record-the way I understood it, it was a record so the
Union would know how many people would be interested
in joining the Union. I told them they were not obligated to
do anything. Some of them were afraid. They thought they
would be fired, and I think the law allows you to join the
Union. You cannot be fired for something like that." I find
Deserio's card valid.ii
Ednarene Gulledge: Two union agents went to her home,
explained the benefits to her, asked her to sign a card and
she did. She added that after she had signed one of them
said he would use it to show his superior he had been there.
She also said that the statement of the organizer was not
the reason why she signed, and that she had no recollection
of why she did so. In the end she added" "He said there
will be no obligations to me for signing it and O'Neil's
would not know that I signed the card. This is all." I find
her card valid.
Doris Schuler: Many years a bookkeeper with the
Company, and after receiving and reading union and
company literature about the union in the mail, she
received a visit from a union representative. Before any
pertinent questions were put to her she hastened to say
.. I didn't know it was a Union card. I was just asked to
sign to show that it was notification that representative had
called at my residence." As she continued, it developed the
solicitor had made quite a visit, had a drink with her
husband, and conversed with him about an organization
both of them belonged to. Schuler said that throughout all
of this the organizer "didn't talk Union at all," a very
improbable likelihood. But she also added she told the man
she had "mixed emotions." She read the card before
signing it. I think this story falls far short of such
misrepresentation as to the meaning of the clearly written
card so as to invalidate it now. I find it a good one.
Georgia Abbott: This woman is deaf, and talks by sign
language , Her husband acted as her interpreter at the
hearing. Mrs. Abbott said the solicitor was with her about
5 minutes on his call to her home, and that ordinarily she
communicates either by hand motion or by written notes.
In questioning the validity of the card she admitted signing
that day the Respondent argues she did not know what she
was doing. I find her conclusionary statement at the
hearing that she did not understand what the card was
about unpersuasive. While saying she used neither sign
language nor written notes when the agent was there, she
also related how the man had asked whether she "wanted
to join the Union," and that she answered no. Some
communication there had to be. Her testimony is also
suspect because she did read the card, indeed filled it out in
all its parts in her own handwriting. She also reads English
11 Deserio's testimony illustrates once again the technique of the
Respondent in equating pure mental state recalled-which will not suffice
to invalidate cards-with probative testimony of what union organizers said
during the organizational campaign . From Mr. Millisor's argument on the
record:
Going back once again, Mrs. Deseno, to the conversation that you had
well enough to have filled in an entire questionaire sent her
by the Board later, G.C. Exh. 32. She is 52 years old, native
born, and I find she understands English well enough. Her
card is valid now.
Chris Becker: A union solicitor sat 2 hours in this man's
house before persuading him to sign. He spoke at great
length about union benefits. At one point Becker told the
man that as he, Becker, was a carpenter and not a sales
person, the Retail Clerks could do him no good and
therefore he wanted nothing to do with it. The solicitor
continued his blandishments, and the argument Becker
recalled hearing clearest was that even if Becker himself
might not gain personally, a victory in the election for the
union "might help some friends," and that if Becker so
wished he could later change his mind. Becker yielded,
read the card at the end of the visit and signed.
It won't do for Becker now to say he did not use his
"judgment" when he signed. If every clear authorization
card supporting a Gissel type Section 8(aX5) finding is to
be thrown away because at some time or other during the
solicitor's sales talk the object of his attention is lukewarm,
or even antagonistic, it probably would mean an end to
each and every Gissel case ever brought before the Board. I
find Becker's card valid.
Elena Sasz: This lady, bom in Romania, has been in the
country since 1946; she became a citizen in 1951. The
Respondent questions the validity of her card on the
ground that she suffers from a language barrier and of
necessity did not know what she was doing. She testified
quite intelligibly without an interpreter. It was she who
asked another employee for a card to sign. What did
"Authorization for Representation" mean to her? "It is like
you join a Union, you be a member, something like that,
you know." What does "Representation" mean? "Like
representing something." I find this lady's card valid.
676+13-689
Clearly, as it thus appears, the Union enjoyed a majority
of at least 689 out of 1298 on the day of demand and
refusal. No useful purpose would be served by unduly
lengthening this decision with further extended discussion
of the evidence relating to the remaining cards of which
employee witnesses spoke. A number of them turn on the
question whether the oral testimony of an employee,
unsupported by any documentary proof, that he expressed
himself as opposed to the union, or as "no longer
interested," after he signed a regular authorization card but
before the demand and refusal, is legally sufficient to
invalidate his card in a proceeding of this kind. Or is his
mere statement at the hearing no more than indirect
recantation of the kind that under the rule of Gissel is of
necessity unreliable? Would such a statement by the
witness now be any different than an expression of opinion
voiced by secret ballot? Were it necessary to decide that
question here, I would hold such testimony insufficient to
invalidate any cards. The question however is moot
because in no event can resolution of the attack upon the
with the representatives from the Union that talked with you about
signing the card, what was your understanding based upon these
conversations as to the obligation , if any, created by the signing of the
card?
To this, his witness answered : "I didn't feel obligated."
THE M. O'NEIL COMPANY 181
remaining cards affect the clear majority status already
shown.
I find that on Aprit r13 1970, when the Union demanded
recognition and the Respondent refused to recognize it, the
Union was the representative for the purposes of collective
bargaining of a majority of the employees in the appropri-
ate unit, and by virtue of Section 9(a) of the Act has been
and is now the exclusive representative of all the employees
in said unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
I also find that by such refusal the Respondent violated
Section 8(aX5) and (1) of the Act.
The Objections in Case 8-RC-7117
On the basis of the violations of Section 8(a)(1) found, I
recommend that the Union's objections to the election held
on April 16, 1970, be sustained and the results of the
election set aside.
The Remedy
Having found that the Respondent has engaged in an
unlawful refusal to bargain with the Union, I shall
recommend that it be ordered to do so upon request and to
cease and desist from further such unfair labor practices.
In the light of the nature and extent of the unfair labor
practices found , I shall also order that the Respondent
cease and desist from in any other manner interfering with
the rights of its employees to enjoy the statutory guarantees
of self-organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above in
section III , above, occurring in connection with the
Respondent 's operations described in section I, above,
have a close , intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All regular selling and nonselling employees of the
Respondent's Akron, Ohio, store, including employees of
Audiophone Company of Akron, Incorporated, and all
qualified "pink card" employees who on April 13, 1970,
were eligible under the criteria set forth in the Board's
Decision in May Department Stores Company, 181 NLRB
710, but excluding professional employees, casual employ-
ees, temporary employees, seasonal employees, guards,
confidential employees, supervisors as defined by the Act,
and employees represented by other labor organizations,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Retail Clerks International Association, Local 698,
AFL-CIO, was on April 13, 1970, and at all times
thereafter has been the exclusive collective-bargaining
representative of Respondent's employees in the appropri-
ate unit, within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the above-named labor
organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By the foregoing conduct, by threatening to close the
entire store in retaliation if the employees voted in favor of
the union, by advising employees to form a company union
in place of the Retail Clerks, by telling employees that a
vote for the Union would endanger their jobs with the
Respondent, by telling employees that the Respondent
would replace them with machines if the Union won the
election, by telling employees that they would lose
diversified benefits and privileges if they chose to be
represented by the Union, and by coercively interrogating
employees concerning their union sentiments, the Respon-
dent has engaged in and - is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]