Westons Shoppers City, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1975

217 N.L.R.B. 291 (N.L.R.B. 1975)

WESTONS SHOPPERS CITY, INC. 291
Westons Shoppers City, Inc. and its subsidiary Wes-
tons Shoppers City of Oswego, Inc., and its licensees
Miles Fabrics of Oswego , Inc., Drive-In Restau-
rants, Inc., d/b/a Ogden Foods; Arness Sales Corpo-
ration; and Lesal Retailers of Oswego, Inc., d/b/a
Morse Shoes and Retail Store Employees Union,
Local 345 , AFL-CIO, Retail Clerks International
Association
Westons Shoppers City of Oswego, Inc., and its licen-
sees and Retail Store Employees Union , Local 345,
AFL-CIO, Retail Clerks International Association,
Petitioner. Cases 3-CA-5539 and 3-RC-5844
April 7, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On July 31, 1974, Administrative Law Judge Eugene
F. Frey issued the attached Decision in this proceeding.
Thereafter, Respondents Westons Shoppers City, Inc.
and. its subsidiary_ Westons Shoppers City of Oswego,
Inc., filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and con-
clusions of the Administrative Law Judge, as modified
herein, and to adopt his recommended Order.
We agree with the Administrative Law Judge's ulti-
mate conclusion that, in accordance with the views set
s The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
In sec II,A, of his Decision, the Administrative Law Judge inadvertently
states that 16 signed authorization cards were received by the Union be-
tween September 19 and the morning of September 21, 1973 The correct
number is 15, and the Administrative Law Judge accurately listed the names
of the 15 employees who executed those cards. Elsewhere in his Decision,
the correct number is given
The Administrative Law Judge inadvertently failed to consider the valid-
ity of the union authorization card signed by employee Betty Monette on
October 19, 1973, which card was admitted into evidence Monette's un-
controverted testimony was that she signed the card on the date indicated
thereon, she read the card before signing it, and the employee who solicited
her signature said that the card's purpose was to give the Union the right
to represent her. We conclude, therefore, that Monette's card was reliable
and should have been counted toward the Union's majority status With the
addition of this card to the others found valid and reliable by the Adminis-
trative Law Judge, there was a total of 57 such cards executed prior to the
elect ion herein The record shows that there were 80 employees in the unit
when the Union's petition was filed in September 1973 and 84 employees
when the election was held on January 4, 1974.
forth by the Board in Steel-Fab, Inc., 212 NLRB 363
(1974), a bargaining order is an appropriate part of the
remedy herein because of the serious and pervasive
violations of Section 8(a)(1) committed by Respond-
ents. However, consistent with our Steel-Fab rationale,
we do not adopt either the Administrative Law Judge's
preliminary finding that Respondents violated Section
8(a)(5) or his conclusion of law that the Union has been
the exclusive representative of the bargaining unit em-
ployees herein at all times since September 23,
1973.2
Further, we disavow the Administrative Law Judge's
comments respecting whether Respondents had a
"bona fide doubt" as to the Union's majority status for
that factor is not relevant to the issues herein. In deter-
mining the appropriateness of a bargaining order in
cases of this type, the Board applies a standard, ap-
proved in N. L.. R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969), which evaluates the severity and impact of
the unfair labor practices committed. Here, we find'
that Respondent has committed "serious unfair labor
practices that interfere with the election processes and
tend to preclude the holding of a fair election." Gissel,
supra, 395 U.S. at 594.3
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondents, Westons Shoppers City, Inc. and its sub-
sidiary Westons Shoppers City of Oswego, Inc. and its
licensees Miles Fabrics of Oswego, Inc., Drive-In Res-
taurants, Inc., d/b/a Ogden Foods; Arness Sales Cor-
poration; and Lesal Retailers of Oswego, Inc., d/b/a
Morse Shoes, Oswego, New York, their officers,
agents, successors, and assigns, shall take the action set
forth in the said recommended Order.
2 For the reasons expressed in his Steel-Fab, supra, dissent, Member
Jenkins would find that Respondents violated Sec. 8(a)(5).
3 See Royal Aluminum Foundry, Inc., 208 NLRB 102 (1974)
DECISION
Statement of the Case
EUGENE F. FREY, Administrative Law Judge: This case was
tried before me on due notice to all parties on April 17 and
18 and May 14, 15, and 16, 1974, at Oswego, New York, with
all parties appearing by counsel, after pretrial proceedings in
compliance with the National Labor Relations Act, as
amended, 29 USC § 151, et seq. (herein called the Act). In
Case 3-CA-5539 the issues are whether or not the Respond-
ents named above (1) violated Section 8(a)(1) of the Act by
various types of interrogation, threats of reprisals, and pro-
mises and grants of benefits to induce employees to vote
217 NLRB No. 52
292 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the'Union in a Board election and to refrain from
assisting or supporting it otherwise, and (2) since September
26, 1973, failed and refused to bargain with the above Union,
on request, as the bargaining agent of a majority of their
employees in an appropriate unit, in violation of Section
8(a)(5) of the Act.' In Case 3-RC-5844, the issue is
whether or not Respondents, by the acts charged in Case
3-CA-5539 and other conduct, affected the results of an
election conducted by the Board on January 4, 1974, in the
representation case, to an extent requiring that the election be
set aside and/or a bargaining order issue.
The Union filed its petition in Case 3-RC-5 844 on Septem-
ber 21, 1973. The Regional Director issued his Decision and
Direction of Election on November 30, 1973, and a secret-
ballot election was conducted by the Board on January 4,
1974, in which 77 out of about 84 eligible voters in a unit
described below voted, with 32 voting for the Union, and 38
against it, there being 7 votes challenged. The parties agreed
that the challenge to the vote of Brian Moran should be
sustained, and the Regional Director so recommended, find-
ing that the remaining challenges were not enough to affect
the results of the election. On January 11, 1973, the Union-
Petitioner filed timely objections to conduct affecting the
results of the election, and said Regional Director on Febru-
ary 27, 1974, filed his Report on the Objections, finding that
Objections 1, 5, 7, 8, 9(a), and 10, and "other conduct not
specifically alleged" raised substantial and material questions
of fact which were best resolved by a formal hearing, and
ordering that the two cases be consolidated for purposes of
hearing and decision by an Administrative Law Judge.
At the close of the testimony in the consolidated cases, all
parties waived oral argument, but Respondents moved dur-
ing and at the close of the case to dismiss the complaint in
Case 3-CA-5539 on the merits. That motion is denied on the
basis of the findings and conclusions stated below. Written
briefs filed by all parties have been carefully considered by me
in preparation of this Decision, which was signed and
released by me on July 31, 1974, for distribution to the parties
in the usual course.
Upon the entire record in the consolidated cases, observa-
tion of witnesses on the stand, and consideration of argu-
ments of counsel, I make the following:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS AND STATUS OF THE UNION
Westons Shoppers City, Inc., is a Delaware corporation
with its principal office and place of business in New York,
New York, and various facilities and retail outlets in various
states of the United States, including its facility in Oswego,
New York (herein called the store) owned by its subsidiary,
Westons Shoppers City of Oswego, Inc. (herein called Wes-
tons-Oswego), a New York corporation where it sells goods
and materials at retail. The store is the only facility involved
in this case.
i These issues arise on a complaint issued February 26, 1974, by the
Board's Regional Director for Region 3, and amended at the trial, after
Board investigation of charges filed by the Union on January 18 and Febru-
ary 24, 1974, and answer of Respondents admitting jurisdiction but denying
the commission of any unfair labor practices.
At all times material herein, the following concerns were
licensees from Westons -Oswego of various operations in the
store: Miles Fabrics of Oswego, Inc., operated the fabric de-
partment ; Drive-In Restaurants, Inc. d/b/a Ogden Foods,
ran the snack bar; Arness Sales Corporation ran the jewelry
department ; and Lesal Retailers of Oswego , Inc., ran the shoe
department.
Respondents admit , and I find , that at all material times
herein Westons Shoppers City, Inc., Westons-Oswego, and
the above -named licensees are and have been joint employers
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act. -
Respondents admit, and I find , that the above-named
Union is a labor organization within the meaning of Section
2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES'
A. The Union's Campaign
Employees at the store became interested in union repre-
sentation early in September 1973 and called Martin Rose, an
official of the Oswego Central Labor Council, for assistance.
He brought Nicholas Giannone, an organizer of the Union,
to a meeting of about 20 employees in the Hotel Pontiac in
Oswego on September 18. Both men explained the purposes
of and benefits secured by the Union for employees under
various contracts with their employers. In explaining the
procedure for organizing a union , Giannone said they needed
"committed" workers who wanted a union to help them, and
that a majority would have to sign cards authorizing the
Union to represent them. He read the wording on the cards
to them,' and then explained that when a majority were
signed up, the Union would advise Respondent that it repre-
sented a majority and demand "recognition." He tried to
explain this term by stating that after the demand for recogni-
tion Respondents might agree to have a third party check the
signed cards to make sure they were properly signed without
fraud or deceit, and might then recognize the Union as bar-
gaining representative for all the workers. He added that,
from past experience, he knew very few employers accepted
this proof, so that the Union might have to ask for an election
"sometime in the future." He told them the signed cards
would be kept confidential and not shown to the Employer
or anyone else, unless the Employer agreed to a check by a
third party, or if the Employer challenged their execution, in
which case the signers might have to identify their signatures
before a judge. In answer to some questions from workers, he
also said they could come to future meetings and learn more
about what the Union had to offer to workers, and its future
procedures with the Employer. He then asked those present
to sign cards, if they were interested in having the Union
represent them, and said he would give out blank cards for
distribution to other workers. He received signed cards from
2 All dates stated in this Decision are in 1973, unless otherwise specifi-
cally noted
3 All cards distributed and in evidence are clearly "single-purpose" cards
which state that the signer, after filling in blanks with personal and job
information, authorizes the Union to represent the signer for purposes of
collective bargaining, in the terms of Sec 9(a) of the Act.
WESTONS SHOPPERS CITY, INC.
19 employees at that meeting., Employees distributed blank
cards to other workers in the store the next 2 days, and by
the morning of September 21, the Union apparently had re-
ceived 16 more signed cards,' and about noon that day
Giannone caused a telegram to be sent by the Union's
Rochester, New York, office to Respondents at their New
York City office, claiming majority status among the Oswego
employees, offering to furnish proof of such status upon re-
quest, and requesting recognition as bargaining agent of said
employees and prompt contract negotiations. Respondents
received the telegram late that day and replied by letter of
September 26, declining recognition of the Union because of
doubt that the Union represented an uncoerced majority of
employees in an appropriate unit, and suggested a Board-
conducted election was the best way to resolve that issue.
At the same time it sent its demand to Respondents, the
Union also filed a petition with the Board in Case
3-RC-5844 requesting certification as bargaining agent of
employees in a specified unit, advising the Board that it had
demanded recognition by the Employer that day without
reply
Sometime on September 21, the Union received 15 more
signed cards from employees who signed them on the
21st.6
On September 23, three union agents had a long meeting
with about 55 employees in the same hotel, reporting that the
Union had signed cards from a majority of employees, and
would send a telegram to Respondents, demanding recogni-
tion, and had also petitioned the Board for an election. At this
meeting many employees asked questions about what benefits
they might get if the Union represented them, whether signed
cards from a majority of workers meant that the Union was
automatically "in the store" or whether there would have to
be an election before the workers could get the benefits of the
Union. In answer, Giannone repeated the same possible alter-
nate procedures for recognition that he had explained on the
18th, including his view that the Union would probably be
compelled to go through a Board election. Six employees
signed authorization cards at the close of that meeting.'
Bel ween September 23 and the date of the election, the
Union received eight more signed cards from employees: Di-
ane Galvin, Ruth A. Taylor (Halstead), Nancy Wayler, Mi-
chael DiNigris, Ruth Reynolds, Anna Mournighan, Kath-
leen Russo, and Dennis Yeager!
In sum, between September 18 and the date of the election,
the Union received 64 signed authorization cards from em-
ployees, out of an agreed number of 80 (as of September 21)
or 84 (as of election day) eligible voters in the appropriate
4 Leah Bateman, Mary K. Castaldo, Mary A. Brower, Margante L
Combs, Brenda J. Earl, Pauline A Farnsworth, Ann Fowler, Mary R Fox,
Eileen Himes, Dorothy Miller, Lillian Moyer, Cecelia Prime, Bernice
O'Reilly, Catharine Spilman, Agnes Whitney, Linda M Legate, Louise
Zeno, Patricia Stark, and Betty Ann Richards.
5 C. Deban, S Deban, Fultz, Shutts, Cuyler, France, Oldenburg, Winchell,
Jeffalone, S. I. Russo, Shafer, Tesonco, Casey, Boyzuick, and Reitz.
6 Cetrkelevich, Ladd, Reidy, Green, Feralfa, M Galvin, DeGroff, Inget,
Duciaume (Raymond), Hallman, Mitchell, Perry, Thompson, Burke, and
Cloonan.
7 Taylor, Wallace, Ahart, Clark, Todd, and West
8 The above facts are found from a composite of uncontradicted and
credited testimony of Giannone, Rose, numerous employees who signed
cards and attended union meetings, stipulated facts, and documentary evi-
dence
293
unit.' Since Respondents' main defense is that they had a
good-faith doubt of the Union's majority status, and attack
44 of the cards as unreliable proof of majority status, the
circumstances of execution of the cards as bearing on their
reliability for that purpose will be considered in my analysis
of that defense below. In appraising that defense, however, it
is proper to consider at first the" reaction of Respondents
toward the union campaign in the crucial period before the
election (September 21, 1973, to January 4, 1974).10
B. Respondent's Reaction to the Union's Campaign
On September 23, Earle Barclay, general store manager,
who at that time had 11 stores including Oswego under his -
supervision, called employees Brower, O'Reilly, Casey,
Himes, Earl, and Bateman into the store for a conference with
Flood, former 'Oswego manager, present. He asked them,
why the workers had sought "outside help" and felt it neces-
sary to get a "third party" into the store, reminding them they
could always bring their problems directly to him without a
third party. Flood also told them that the telephone was
always handy, they could have called on him to discuss any
problems. The employees told Flood this was no longer his
concern, as he was no longer the Oswego manager . O'Reilly
asked Barclay what the store could offer them without a
union, and he replied "nothing."" Respondent was well
aware of the organizing campaign as early as September 21,
when it received the Union's recognition demand. Barclay
admitted that as general store manager, his duty was to han-
dle personnel problems in his stores, in the course of which
he discussed problems directly with individual workers, often
explaining company policies and benefits and why things
could or could not be done as requested because of company
policy. The Oswego store came under his supervision in Sep-
tember. In discharge of these duties Barclay held at least two
general meetings with Oswego employees at the store after
September 21, for the purpose of allowing them to air their
complaints and ask questions about Respondents' operation
and its benefits, but he admitted that after the representation
petition was filed, he came more often to Oswego, which was
his duty wherever he felt there was a "personnel problem."
While it is true that it was convenient for him to do so because
he was in the same period visiting the Syracuse store, only 30
miles away, preparatory to opening that store, he also admits
9 In its Decision and Direction of Election in the representation case, the
Board found that the appropriate bargaining unit within the meaning of
Section 9(b) of the Act consisted of
All full-time and regular part-time employees employed at Westons
Shoppers City of Oswego, Inc., located in Oswego, New York, includ-
ing the employees employed by the Licensees, but excluding guards,
professional employees the Store Manager, the Assistant Managers,
and all other supervisors as defined in the Act.
Respondents do not now contest this finding, and I find that such unit is
and has been appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
10 Joy Silk Mills, 85 NLRB 1263, enfd 185 F 2d 732 (C.A.D C.), cert
denied 341 U.S. 914.
11 These facts are found on credited testimony of Brower and Earl. In light
of Barclay's admissions of other remarks to employees regarding their fail-
ure to talk directly to him about problems, I do not credit his rather vague
denials of these remarks
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he knew many of the Oswego work force personally,
having hired them when that store opened several years
before. I am satisfied from his testimony that he made special
efforts to visit the store more often after September 21 to talk
to workers and handle the "personnel problem" which arose
with the advent of the Union. I find that his prompt personal
inquiry of six employees above, about employees' reasons for
seeking a union to solve their problems rather than continu-
ing to deal with Respondent and Barclay specifically to solve
their problems, was coercive interrogation of the type prohib-
ited by the Act. This conclusion is supported by the fact that
he deliberately called in six employees who were mostly sen-
iors in service, five of them (Bateman, Himes, O'Reilly,
Brower, and Earl) had joined the Union on September 18,
and three of them (O'Reilly, Brower; and Earl) had thereafter
been active solicitors of other employees to sign authorization
cards. It is patent that private interrogation of this group at
the outset of the union campaign was a coercive attempt to
learn the reasons for and extent of the employees' adherence
to the Union, not in order to learn whether the Union had
majority status so that it could answer its recent demand, but
to prepare for further actions to learn and deal with employee
grievances and take other steps to undermine their adherence
to the Union. I find that by this interrogation Respondents
violated Section 8(a)(1) of the Act.
Late in September, shortly after the Union's demand, Her-
man Haber, who was due to become manager at Oswego in
November, spoke to a meeting of all Oswego employees con-
vened by Assistant Store Manager William Broderick. After
explaining company benefits, he referred to the Union's ap-
pearance and said that if the election were held that day, the
Union would not win, but even if the Union won, "there is
no way we are going to negotiate with the Union ." In explain-
ing company operations and benefits, Broderick recited the
obligations and duties of employees in the store. When em-
ployee Angelo J. Jeffalone interrupted to complain that he
did not know his full duties and responsibilities (he was train-
ing to become department manager in camera department),
Broderick got angry and said he already knew his duties.
Broderick also argued loudly that "You are not going to work
under a revolution, I will not work under a revolution, I will
not follow those rules," and that the "happy family situation
will cease and exist if a union comes in."12 Haber's
prophecy that Respondent would never negotiate with the
Union if it won an election was a coercive threat of refusal
to bargain with the Union which was designed to impress on
workers the futility of choosing the Union as their bargaining
agent, and thus violated Section 8(a)(1) of the Act. Brode-
rick's warning of a refusal to work under a "revolution" and
its "rules" and that advent of the Union would destroy the
"happy family" situation were thinly veiled but coercive
warnings that Respondents would not operate under union
conditions and that present amicable relations between Re-
spondents and their employees would change and perhaps
become unpleasant if the Union came in. This warning fur-
ther violated Section 8(a)(1) of the Act.
On an occasion late in September or early October 1973
when Barclay made a periodic visit to the store, he sent word
12 I find this occurrence from uncontradicted and credited testimony of
Jeffalone.
around that his office was open for discussion with workers
all day. No one came to talk to him during the morning, so
in the early afternoon he went to the stockroom where he
knew many employees personally, and asked them angrily
why they had not come in to see him. He told them he was
"G- d- good and mad at each of you," asking why they
were afraid to come in and talk to him, and added "if you
think I am mean now , watch and see how damn mean I can
get if you get that union in here." He then walked away
angry, but returned shortly and told them he had intended
not to give them a booklet he had, but had decided he would,
and he distributed insurance booklets showing a new insur-
ance plan which became effective for workers in
October. 13 I find that Barclay's remarks were coercive in vi-
olation of Section 8(a)(1) of the Act when he upbraided the
workers for refusing to come to discuss problems with him
directly as in the past, which he viewed as a form of desirable
"negotiation," and warned that he would act unpleasantly
toward them if the Union came in and, by implication, if they
ceased approaching him with their problems directly but
came only through the Union.14
On an occasion in October 1973 Robert Wegenka, shoe
department manager and an admitted supervisor, told a
group of workers that he "knew for a fact" that the store
would close if the Union came in. In a talk with employees
Brower, Jeffalone, and Himes, in mid-December 1973, he
asked them why they wanted a union ,,arguing that the Union
could not offer or pay them anything. When Brower cited
reports of certain benefits received by union members in a
local supermarket, Wegenka repeated the Union "would not
pay off." He added that if the workers thought Company
President Howard Simon would let the Union into the Os-
wego store, they were mistaken, that he would definitely close
it before he would "consider the Union coming in ." These
facts are found from uncontradicted testimony of Brower and
Farnsworth, and I find that Respondents further violated
Section 8(a)(l) of the Act by Wegenka's coercive interroga-
13 I find this conversation from credited testimony of employee Casey, as
corroborated in large part by that of Barclay I do not credit his denials of
any threat that he would be "mean" if the Union came in, for he admits he
was very angry at their silence and told -them he was angry with himself for
"allowing the situation to go this far," explaining in testimony that the
attitude among the workers had changed in September from a "happy
family" group.
14 I find no violations of the Act in:
(1) talks between Jeffalone and Barclay, and Broderick in October, in
which Barclay reminded Jeffalone that he was entitled to 1 paid holiday and
6 paid sick leave days per year under recent changes in the employees'
handbook, and advised Jeffalone to tell Broderick what paid holidays he
wanted, and Broderick 's prompt grant of the paid holiday when Jeffalone
requested it There is no proof that these benefits were instituted deliber-
ately during the crucial period in order to cause and persuade employees to
vote against the Union ; the record only supports the inference that they
were benefits already in existence before the Union began its campaign, and
Barclay was only bringing them to the attention of Jeffalone , just as he
reminded employees at other times about company benefits.
(2) a speech by Barclay to workers in a store aisle in October, based on
uncontradicted testimony of Jeffalone, in which the employees asked about
a pay raise , Barclay replied the store was not making much profit , that he
had received no raise in 2 years and the company president was getting only
$50,000 a year. When employees complained about the attitude of former
manager Fink toward them, Barclay said he would guarantee that Fink
would never return to Oswego , but Herman Haber would remain as their
manager I find nothing coercive or indicative of future promise of benefit
in these remarks.
WESTONS SHOPPERS CITY, INC. 295
tion of employees about their reasons for wanting a union and
the clear coercive threats that Respondents would close the
store before allowing a union in it.
On an occasion in October, Gus Cahill, receiving manager
and security officer at Oswego, who was found a supervisor
by the Board in the representation case, told employees Bate-
man at the snack bar that if the Union got in, the store would
be closed. Late in October, while riding home from work with
employee Casey, Cahill told her that he had talked to Barclay
who said that if the Union got into the store, President Simon
would close it before he would negotiate with the Union. I
find these facts from uncontradicted testimony of Bateman
and Casey; Cahill did not testify. As both of his remarks were
clear threats of reprisal against employees in form of job loss
if the Union came into the store, Respondents thereby further
violated Section 8(a)(1) of the Act.
Shortly after Respondents opened a new store in Syracuse
in October, a group of six Oswego employees visited it to look
it over and see Flood, its new manager , who had transferred
from the Oswego store. When they came in, they met Haber
at the snack bar. He asked them what was "going on" and
why they were considering a union, and asked if they did not
know that President Simon would consider closing the Os-
wego store before he would allow a union there. Flood then
took them on a tour of the store. That evening the group
visited Flood's home at his invitation, and in course of con-
versation Mrs. Flood said in the presence of her husband that
the workers were very foolish to want a union, for she knew
Simon would never allow it to come in, but would close it
before he would negotiate with the Union. Mr. Flood sat by
without comment or denial of his wife's remarks. I find these
facts from credited testimony of Brower and Fowler, two of
the employee group. The Floods did not testify, and I do not
credit Haber's denial of the remarks attributed to him, be-
cause his version of the meeting with the group was sketchy,
his testimony on this and other incidents was not impressive,
and he engaged in other unlawful conduct as noted elsewhere
herein. I find that Respondents further violated Section
8(a)(1) by (1) Mrs. Flood's clear threat that the store would
close before Respondent would negotiate with the Union,
wli ich was said in presence of her husband , a supervisor, who
did not repudiate her remark , and (2) Haber's similar threat
and interrogation of workers.
On an occasion in mid-November, employee Jeffalone had
a private talk in the Pontiac Hotel with Broderick. Jeffalone
referred to rumors in the store that it would close if the Union
got in. Broderick confirmed that it would probably close if
the Union got in , saying it was not making any money, so
Respondent would have to close it if it could not afford to run
it. Jeffalone expressed surprise at this prophecy, saying he
had heard Oswego was supposed to be the best store in Re-
spondent's organization. Broderick did not deny this. Jeffa-
lone mentioned a store rumor that one Lucille Green, who
had been sent to the Syracuse store temporarily, would not
return to Oswego because she had been involved in a union
before and favored a union in the store. Broderick said this
was true, that she would not be back at Oswego because of
the Union, but would be sent elsewhere. Broderick asked
Jeffalone whether things "would cool down" at Oswego if
Broderick became store manager , whether the workers would
then "let things ride and forget about everything ." Jeffalone
replied that he did not think it would have that effect, because
"things have gone too far." This discussion is found from
uncontradicted testimony of Jeffalone . I find that Respond-
ents further violated Section 8(a)(1) by Broderick's interroga-
tion as to the effect on workers ' union sympathies and dis-
satisfaction if he became manager; his clear threat of a store
closure if the Union came into it, which is not deprived of
coercive effect by his spurious explanation that Respondents
could not afford to run it with a union in it (although it was
then undergoing a change of top management ); and his im-
plied threat that employees who favored a union might be
transferred away from Oswego, like Green.
In the first week of December , employee Bateman asked
Haber in the store if she would be laid off on Christmas Eve
(as she had received a similar layoff at Christmas 1972). He
replied that he did not know what his payroll would be in
January 1973 but since she had seniority over other cashiers,
she would probably not get laid off, and had nothing to worry
about it. He added that if the Union got into the store, he
would not guarantee her job.15 Since he did not clearly tie
the prophecy of lack of guaranty of her job to some action by
the Union after it won the election , the remark was reasona-
bly calculated only to warn Bateman that she might be sub-
ject to some company reprisal such as loss of job if the work-
ers voted the Union in, and in this aspect the remark was
violative of Section 8(a)(1) of the Act.
On December 10, Haber convened a meeting of all em-
ployees in the front of the store. Broderick and one Audry
Shafer, an official from the Syracuse store, were present.
Haber explained company benefits given to the workers, and
also discussed business conditions in the store , advised that
the employees would have their jobs if the store continued to
do business at a profit, but if it did not, there would be no jobs,
whether or not it was unionized , and that a union could not
guarantee their jobs . There was a heated discussion between
Haber and some employees about company benefits, and on
the issue why the workers needed a third party to act for them
in the store. Haber told the workers they should think for
themselves, and not have someone else think for them. In
discussion of the need for a union, Haber told the workers
that, even if the Union got into the store, that did not mean
that Respondents would have to negotiate with it , but that
Respondents would under no circumstances recognize or
negotiate with it.16 Haber's prophecy that Respondents
would not have to and would not negotiage with the Union
was coercive and violative of Section 8(a)(1) since it was well
calculated to impress the workers with the futility of adhering
to or voting for the Union."
15 This discussion is found from credited testimony of Bateman as cor-
roborated in part by Haber . I do not credit bare denials by Haber of the
refusal of job guaranty if the Union got in.
16 I find this discussion from credited testimony of Farnsworth , Casey,
Fowler, Moyer , and Earl, as corroborated in part by testimony of Haber. I
do not credit Haber's conflicting version to the effect that he told the
workers Respondents would not have to negotiate with the Union for some
time after it won an election, because there would probably be appeals from
that decision , for his recollection of the whole discussion was very vague and
general, and he is not supported by Broderick, who was not called by
Respondent to testify.
17 I find no violation of the Act in a speech of Barclay to employees in
the stockroom in December , where he told them that, if the Union came in,
he would not sit down and "negotiate" or talk with them directly anymore
about their problems, but would have to talk to them only through the Union
Continued
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the week before Christmas 1973, Barclay had a talk with
employee Farnsworth after a general meeting with the em-
ployees, in which he asked her why she had turned against
the Company and why the workers began to organize a union.
She said she had not turned against the Company, but that
since Fink had become manager, the girls had panicked over
rumors starting in August or September that the older work-
ers would be out of jobs by January 1. She said they also
wanted more money. She explained she was a member of the
workers' committee (organized at the September 23 union
meeting for workers), but was at that point undecided
whether they needed a union or not, as she could understand
the arguments both ways. Barclay asked her if her children
ever made mistakes, whether she would give them a second
chance. When she said she would, he asked "Why don't you
give us a second chance, then?" He concluded by saying he
could not tell her how to vote, but hoped the girls would use
common sense and refuse to vote the Union in." I find that
Respondents further violated Section 8(a)(1) by Barclay's
question as to her and other workers' reasons for adherence
to the Union, and his interrogative suggestion that they
forego union adherence and give Respondents a "second
chance."19
On or about December 26, employee Moyer told Manager
Haber in the store that she was losing 4 days of sick leave she
had not taken that year, because she did not feel she could
be absent that week in the busy period when she was needed
to help employee Casey on the service desk. Haber agreed she
could not take the days off before year-end for that reason,
but said she should wait until after January 1 and he would
see what he could do about getting those days for her later,
if the Union did not get into the store, but if it got in, he could
not do anything about it.20 Lacking any explanation from
Haber of the remark that he would be helpless to get her the
benefits of the sick days she lost if the Union came in, which
might serve to explain whether the grant or nongrant of these
days was within or beyond the control of Respondents, I can
only conclude that the statement was reasonably calculated
to indicate to Moyer that Respondents would not give her
these benefits if she and others chose the Union, but promised
to give them to her if it lost the election, and was thus coercive
in violation of 'Section 8(a)(1) of the Act. -
On the evening of January 2, 1974, Barclay read a prepared
speech to all night-shift workers assembled in the ladies'
lounge of the store. Haber and Broderick were present. Bar-
clay prefaced his remarks by saying that he would like to read
or its shop steward. This was only a legitimate statement of one of the legal
consequences which followed if the Union became the statutory bargaining
agent of the employees, and was not coercive.
is I find this discussion from credited testimony of Farnsworth, and do
not credit Barclay's denials of portions of remarks attributed to him, because
he does not give his own version of the whole discussion, and I am con-
vinced his questions to her were for the same reason as his earlier unlawful
interrogations and threats found above
19 I find no violation of the Act in the statement of Hardware Manager
Louis Simone to Haber and Broderick at the store snack bar in the same
week to the effect, "Make sure I get my raise." Jeffalone, who gave this
uncontradicted testimony, also admitted Simone had previously told him
Barclay had promised him a raise and promotion, and Simone got the raise
later. Although Jeffalone overheard the remark, there is nothing in it cal-
culated to coerce workers in the exercise of any of their statutory rights
201 find this discussion from credible testimony of Casey and Moyer, and
do not credit bare denials by Haber of the remarks mentioning the Union
a statement and requested that any discussion or questions be
held up until he finished it. While he read the speech, how-
ever, employee Jeffalone, a young, quick-spoken, and blunt
employee, interrupted Barclay several times to ask him to
repeat what he had said and to ask. questions. Each-time he
was told by Barclay or Broderick to keep quiet and wait until
Barclay finished. After Barclay finished the speech; workers
asked questions, and there was some discussion of the speech.
At least one worker spoke up against a union in the store,
giving reasons, but Jeffalone did not speak up in the free
discussion period. Broderick detailed company benefits as a
reason for voting against the Union.
In his speech, Barclay gave several arguments against
union representation of the workers, including the dues they
would have to pay, pointing to a line of eight baskets of
groceries as an example of the cost of their dues for a year.
He also said that if the Union won-the election, Respondents
were not required to agree on union demands during negotia-
tions, which would cause a strike, and that could be called
"job insecurity" in contrast with what the Union claimed was
"union security." He added that a union could not guarantee
their jobs. He also said, with a union in the store, there would
be no more open-door policy, with employees free to come to
the store office individually to discuss problems, as that
would have to be handled through the union shop steward.
He also said that with a union all workers would have to work
in their areas, could not "communicate back and forth." In
the discussion after the speech, there was argument pro and
con about the need for a "third party" in the store, with some
workers stating reasons for their need. Citing the previous
open-door policy, Barclay asked why the workers could not
give Respondent a second change for another year to settle
grievances. There was argument on it both ways.
Barclay made the same speech to day-shift employees on
the morning of January 3 in the stockroom, with Haber and
Broderick present. Although Barclay made the same request
to read the speech without interruption, Jeffalone again tried
to interrupt as he did the night before. Barclay and Haber
angrily told him to keep quiet or leave the meeting, as he had
heard the speech the night before. During the discussion
period after the speech, when the same arguments for and
against the Union were raised and discussed, Jeffalone got
into heated argument with one girl who spoke against the
Union, but was told to keep quiet or leave the meeting, as he
had attended the meeting the night before.21 I find no viola-
tion of the Act in management's conduct of the meetings
including the well-merited suppression of the disruptive con-
duct and remarks of the brash Jeffalone who seemed bent
more on heckling and upsetting Barclay and disrupting-the
meetings than engaging in fair and serious discussions on the
issues raised by both company and workers. Nor do I find any
violations in Barclay's remarks about union dues, the possible
course of negotiations with probable strikes and their effect
on employees' jobs, and some of the consequences of a union
in' the store such as the cessation of free direct discussion and
negotiation on problems with workers. The ' only remark
which appears to have a coercive effect on workers was the
21 I find the events of both meetings from a composite of credited tes-
timony of Jeffalone, Earl, Moyer, Farnsworth, Barclay, and Haber Tes-
timony of any of these witnesses at variance therewith is not credited.
WESTONS SHOPPERS CITY, INC. 297
rather clear threat that the advent of the Union would result
in a curtailment of the free "communication back and forth"
which employees had enjoyed in the past. Lacking any expla-
nation from Barclay to show that this might arise from con-
tract terms, or union rules or policy , the employees could well
infer that such limitation on their communication privilege
would probably come from Respondents in reprisal for their
choice of the Union as bargaining agent. In this remark, I find
that Respondents further coerced employees in violation of
Section 8 (a)(1) of the Act.
On January 4 , the morning of the election , Broderick told
employee Rosemary Snow at the snack bar, in answer to her
question, that as far as he knew snack bar employees were not
entitled to vote because they were under another manage-
ment . Shortly after , Snow met an agent of the Union in the
nearby supermarket , who asked if she had voted . When she
said she had not, he told her she was on the voting list, so she
voted without challenge. Early that morning, employee Pa-
tricia Stark, who was on a 6-month leave of absence which
began October 5 , 1973, called the store and asked employee
Casey at the service desk if she knew when the voting started
and whether Stark was eligible to vote, as she had not been
notified about her eligibility . Casey said she would find out
from Broderick . She sought out Broderick who was with the
Board agent running the election , and asked him privately if
he knew whether Stark could vote. He said he did not know,
but would check , and walked off. He came to the service desk
shortly and said Stark was not eligible. Casey relayed this
answer to Stark on the phone. Stark asked why she could not
vote, and Casey said she did not know, but that Stark should
come in and ask the Board agent running the election, that
maybe she could vote subject to challenge. Stark replied she
would not bother to come in if her vote would be challenged,
explaining to Casey that she had called in about the vote
because she had learned from another employee on leave,
Mary Galvin , that her daughter had checked and found her
mother's name on the voting list, but also that her vote might
be challenged . Start had not previously asked anyone from
the store or the Union about the election and the procedure
involved, but learned of the date of the election only from
girls in the store ." I find no deliberate attempt by Broderick
to prevent a worker from voting when he expressed his casual
opinion to Snow about the noneligibility of_the snack bar
employees, for she could have talked to the Board agent
herself, even if she had not met the union agent whose re-
marks led her to cast her vote. When Stark called in about
her eligibility , she already knew from Galvin that she could
vote subject to challenge, but she chose to accept the relayed
message from Broderick which , so far as the record shows,
merely indicated the result of his investigation . Since he was
with the Board agent when Casey questioned him, it is infera-
ble that Broderick asked that agent or saw the list of eligible
voters which clearly omits the names of both Mary Galvin
and Patricia Stark . Hence, I am convinced he truthfully
stated through Casey what that list already showed, that
Stark was not on the eligible list. I find no violation of the Act
in his conduct . I grant Respondents ' motion to dismiss para-
graph VI(f) of the amended complaint dealing with these
incidents.
22 1 find these facts from uncontradicted testimony of Snow and Stark
The Wage Increase
The record shows that on October 26, 1973, Respondents
gave a general wage raise to the Oswego employees , with 58
out of a total of 68 in the work force getting an average
15-cents-an-hour raise after review of their records. General
Counsel argues that this raise, larger than ever before given,
was distributed in the crucial period before the election to less
than the whole ` work force , as a coercive grant of benefits
designed to persuade employees to vote against the Union.
Brower testified without contradiction that on the day before
the raise was given she talked to the store manager about a
raise she was scheduled to receive when she took control of
an additional department . The manager said he could not
mention money matters "with the way the situation stands in
the store now." Sometime earlier in that month Jeffalone had
talked to Barclay about his chances of advancement, and
Barclay replied that "there are possibilities," there might be
a chance to advance "if things were not the way they are."
The officials ' remarks indicate that Respondents may have
been holding up any management changes in the store which
might cost money while the union campaign was pending, in
marked contrast to a large pay raise to most of the work force
in the crucial period , which facts together with the timing of
the raise in issue and Respondents' other coercive conduct in
the same period as found above raise a prima facie inference
of coercive intent . However, the inference is less impressive
in light of credible oral and documentary proof showing that:
A similar raise of about 5 cents or 10 cents an hour had been
given to most of the work force periodically ever since the
store opened in early 1969. Brower admits that when hired
in October 1969 , she was told that she would get periodic
raises every 6 months; she actually got raises in July 1970,
February 1971, June 1972, October 1973, and May 1974,
getting them automatically without being told of each one
beforehand. Respondents gave a similar but general raise to
34 out of 46 employees reviewed in April 1973. Out of a force
of 45 employees, 27 got a similar raise in June 1972. Em-
ployee Jeffalone admits that he learned at his hiring by Brode-
rick in August 1973 that Respondents had a practice of giving
merit raises , and he participated in the October 1973 general
raise. Although that raise was an average of 15 cents an hour,
as against 5- or 10-cent raises in past years , the larger amount
is as fairly explained by the continual inflation and rise in the
cost of living as by the inference that it was an unusually large
raise before the election for coercive purposes . However, the
strength of these facts is weakened by record testimony in-
dicating that when Barclay was questioned by workers earlier
in October about the possibility of raises , he was pessimistic
about grant of a raise , arguing the store and Respondents
were not doing well, and that he and other officials had not
had salary raises in some years . The reversal of this pessimism
by the sudden grant shortly after of the largest raise in store
history is cogent proof that Respondents, as part of the coer-
cive campaign to undermine the Union's position with the
employees and cause its defeat , decided to give a very large
raise at that time to wean the employees away from the
Union. I find that the grant of the October 26 raise in these
circumstances was coercive and further violated Section
8(a)(1) of the Act.23
23 Angels Home Improvement Center, Inc. d/b/a Angels Home Center-San
Continued
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Defense of Good-Faith Doubt, and Lack of
Majority Status
At the outset I find no merit in Respondents' claim of a
good-faith doubt of the Union's majority status on and after
September 26, because their coercive conduct found above
shows clearly that they began an aggressive antiunion cam-
paign as early as September 23 for the purpose of frustrating
the Union's campaign by various illegal means designed to
wear away any support of adherents it may have obtained
after September 18, and to dissuade employees from voting
for it in the election. The wide variety of unfair labor practices
committed in the crucial period are sufficient to negate the
claim of bona fide doubt'24 as they indicate that Respond-
ents early realized the depth of employees' dissatisfaction
with conditions at Oswego, and probably feared that the
Union was gaining many adherents as a result . A significant
indication of Respondents' attitude appears in Barclay's ad-
mission , during one talk with employees late in September,
that he was angry with himself "for allowing the situation to
go this far."
However, apart from the effect of Respondents' conduct,
General Counsel must prove that the Union obtained an
uncoerced majority of signed authorization cards, to sustain
the charge of violation of Section 8(a)(5) of the Act. The
important issue on this subject is whether the circumstances
of the signing of the 64 cards in evidence (and certainly the
44 specifically attacked by Respondents) show facts indicat-
ing misrepresentations to the signers or other circumstances
sufficient to negate the presumption of realibility inferable
from the mere signing of the cards.25 At first, I note that the
explanations by Giannone at September 18 and 23 union
meetings, as found above, of the purpose of the Union, what
it could try to do for the workers, and the purpose of the cards
as well as the probable use to be made of them, made it
reasonably clear to the 25 employees who signed cards at
those meetings the cards were for the-purpose of authorizing
the Union to represent the signers in any dealings with Re-
spondents, and that they would be used to secure recognition
of the Union as bargaining agent , either by disclosure to a
third party, acting for Respondents to prove majority status
or, failing that, to get an election for the same purpose. Under
either procedure the workers were never advised the repre-
sentation purpose of the card was being cancelled or su-
perseded, only that it still remained. These representations
were consistent with and reinforced the wording of the cards,
so the cards of all signers who heard these remarks and then
read and basically understood the meaning of the plain word-
ing are clearly reliable proof of majority status. The fact that
these signers also heard a qualified promise that the cards
would be held confidential, absent the need for a card check
Bernardino, 193 NLRB 217, 219, 221 (1971), N.L R.B. v. Exchange Parts
Co., 375 U S. 405 (1964)
24 The Schwarzenbach-Huber Company, 170 NLRB 1532, 1544 (1968),
Snyder Tank Corporation, 177 NLRB 724, 741 (1969).
25 In N.LR.B v Gissel Packing Co, 395 US. 575, 606 (1969), the
Supreme Court laid down the rule of presumption 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."
or proof of execution in some judicial proceeding, or that the
cards would also entitle the signers to attend future union
meetings to get more information about it and its procedures,
or that an election might be held in the future at which they
could vote as they desired, are statements neither inconsistent
with the basic stated representation purpose of the cards nor
tending to destroy any presumed understanding of that pur-
pose created by a reading of them.26 Hence, I find no merit
in Respondents' attacks, based on one or more of the above-
cited representations, on cards of Fowler, Fox, Legates,
O'Reilly, Stark, and Richards, and conclude that cards signed
by 19 workers at the September 18 meeting should be counted
toward majority status.27 I make the same finding on cards
signed by Ahart, Clark, John F. Taylor, Todd, Wallace, and
West at the September 23 meeting and reject Respondents'
arguments against them 28
In the case of the 15 employees who signed cards in the
store or outside, but not at union meetings, at the solicitation
of individual employees on September 19 and 20, I find that
the basic presumption of reliability arising from reading and
signing of the cards is not overcome as to 12 of them by
solicitors' statements to them including one or more of the
innocuous representations noted above, hence their cards will
be counted toward majority status.29
26 Donna Lee Sportswear, 174 NLRB 318, 331 (1969), Fabricators, Incor-
porateri 168 NLRB 140,145 (1967);N.LR B. v Gissel Packing Co., supra,
where the Supreme Court said at pp 606, 607: "There is nothing inconsist-
ent in handing an employee a card saying the signer authorizes the union
to represent him and then telling him that the card will probably be used
first to get an election." The destructive representation that the card was
"only for an election" was not made at either of the union meetings Cf.
Levi Strauss & Co, 172 NLRB 732, 733 (1968).
27 The only questionable card was that of Betty Ann Richards, who did
not read it before signing. Her recollection of what Giannone said at that
meeting was fragmentary, limited only to two of the innocuous statements
noted above. While she says she did not read the printed wording, but signed
the card after someone else filled in the blanks for her, she admits she
understood enough to see that it was an "authorization for representation "
Although she says she often signs things she does not understand, I do not
credit her story as to her past limited understanding of the wording and
purpose of the card, and find that she was at the trial a reluctant witness on
this point, and hence not credible on that subject. In this connection, the
Supreme Court noted in the Gissel case at page 608 that "employees are
more likely than not, many months after a card drive and in response to
questions by company counsel, to give testimony damaging to unions, par-
ticularly where company officials have previously threatened reprisals for
union activity in violation of Section 8(a)(1)." The basic presumption of
reliability of Richards' card is not overcome.
28 Carol Ann Todd signed her card at this meeting without reading its
crucial wording, after she heard the speech and explanations by Giannone
detailed above, and she says now she gathered from his remarks only that
the card was not binding on her in any way and gave her the right to vote
for or against the Union in an election, and to get more information about
it She admits Giannone told them to sign if they were "interested in the
Union," but says she heard statements of the limited purpose of the card
from other workers talking around her. While her testimony as to her past
understanding of the card was not shaken on cross-examination, I do not
credit her story for the same reasons stated as to Richards' card above.
29 Catherine Deban, Shirley Deban, Marie Cuyler, Helen K Fultz, Angelo
J. Jeffalone, Satie Russo, Barbara I Shafer, Jean Teasonco, Patricia Casey,
Peter Boyzuick, Brenda Reitz, Marcia France. I consider the following cards
in this group unreliable to prove majority status:
Connie J. Shutts, who read the card but did not understand its wording,
and signed it only on the representation of Brower that the card was only
to allow Shutts to find out what it was all about, a majority had to be signed
before the workers could hold meetings and find out what would happen,
and the card was in no way binding on Shutts.
Delores Oldenburg, who merely glanced over her card before signing, did
not understand its wording, and was told by a solicitor before signing that
WESTONS SHOPPERS CITY, INC. 299
Of the 15 cards signed by employees on September 21,
Respondents do not specifically question the reliability of
those. of DeGroff, Mitchell, and Perry. I consider the 12
others seriatim:
Cerklewich: He signed his card at the request of Pete Boy-
zuick, who told him he had to sign to get more information
about the benefits of the Union, and that it would be kept
confidential. He gives conflicting testimony on whether he
read it before signing, but it is clear that Boyzuick filled in
all the blanks with his personal date. Boyzuick did not testify.
Cerklewich favored a union in the store, to "help the store
out."' When testifying he was no longer employed by Re-
spondents. From his demeanor in testifying, and his admis-
sion that he favored the Union, I conclude that he knew what
he was doing when he signed (See Levi Strauss & Co., supra),
and Ile card is reliable proof toward majority status.
Burke: She read, filled out, and signed her card after get-
ting nt from Fowler, who asked if she wanted to fill it out "to
have the Union represent you." These facts establish its reli-
ability, which is not diminished by Fowler's comment that
there might be an election later.
Cloonan: Her card is reliable, as she read and signed it after
getting the same inquiry from Fowler as Burke. Her execu-
tion of it on night shift on September 21 does not negate the
card, for reasons noted below.
Farella signed her card, -filling it in but not reading any of
it, after getting it from a worker who told her, while walking
in to work, that she should "hurry up and sign, we all have
to sign, we are trying to get a union in," and also made the
"confidentiality," "no obligation," and "possible vote in the
future," representations, same as stated by the union agents.
She kept the card for 2 days before signing it. I find that it
is reliable, and is not affected by the three additional represen-
tations noted, nor by the fact that unknown workers told her
after she signed that workers would lose their jobs if they did
not sign.
Mary Galvin got her card as she was leaving the store, from
several workers who told her it "meant llittle, no obligation
attached," that they needed so many signed to inquire about
the Union and learn more about it. She is hazy about whether
she read the printed wording, but admits she read enough to
fill in the blanks before signing. The fact that she signed
warrants an inference that she read enough to know what it
purported to be, notwithstanding the other representations
which by themselves might serve to limit its represented pur-
pose to that of an address card or ticket to get more informa-
tion. The facts cited above are enough to warrant the conclu-
sion that it is a reliable card.
Inget got her card from a worker, after hearing others
unidentified say signed cards were needed if the workers
wanted to talk about a union in the store, and to hear what
the Union could do for them. She read it over before signing,
"it meant nothing," and that the girls needed a certain number signed before
they could have a meeting with the Union to find out what it had to offer
and how it operated. Her understanding of it was further clouded by con-
flicting statements made by numerous other workers at the time in the store
I am convinced she was led to ignore the wording and to believe it was only
an invitation or ticket to hear more about a union at a meeting
Marie Winchell read the card before signing but did not understand its
wording during the talk and confusion of workers talking in the store lounge,
where she got it from Brower, who told her, as did others, that a majority
had to be signed to have a meeting with the Union.
and knew that was in terms an authorization for the Union
to represent her. She tries to avoid the clear effect of reading
and understanding the wording by saying she misinterpreted
it and felt that it was designed only to authorize the Union
to tell the workers what they could get through a union. At
another point, she said she "felt" that the card was designed
to "try to get a union in Westons," with "the usual thing a
union entails." I am satisfied she knew what unions were for,
and that this card authorized the Union to represent her in
the store, I find it reliable.
Green got her card on night shift on September 21 from a
worker who said the girls were "thinking about going into a
Union," and several of the cards had to be signed for that
purpose. Green then read it over, filled in the blank, and
signed . The presumption of reliability from reading it governs
here, and is supported by the comment that the cards were
needed to "go into a Union." The card is reliable.
Hallinan did not examine her card closely after getting it
from O'Reilly, but filled it in and gave it back at once. She
has poor hearing, but gathered from O'Reilly's remarks that
workers could get a union meeting , and admits the latter told
her that the only way workers could get different work condi-
tions in the store was through a union , and they should find
a union if they were interested in one. This remark supports
the basic inference that when she signed the card, she wanted
a union to act for her to get better working conditions, which
means representation in terms of the Act. I find the card
reliable.
Laddsigned her card after reading and filling it in. She says
she understood from its wording that it meant the Union
would represent her "if it was voted in." Her understanding
of a condition implying an election first could not have come
from the card, for it says nothing about that. However, the
girl who gave it to her said it was just "to join the Union" but
that she was not joining then but after an election where she
could vote as she pleased, and that they needed a majority
signed to get an election. She also gathered that if she signed
it she would get another union card to become a member, if
it was voted in. Considering what she read in light of what
she was told, I gather that she was impressed with the fact
that an election was necessary through use of the cards before
she could become a union member and have it represent her
for the usual purposes. The representations made to her were,
enough to cancel out the wording of the card indicating that
it made the Union her agent immediately. I find enough in
the record to indicate that the card is unreliable.
Raymond (formerly Duciaum) filled in and signed her card
without reading any of it, after getting it from a girl who told
her, on her inquiry, it would be held confidential, that it "did
not mean anything," just "to show you like a union," and to
invite the Union to give the workers information about itself
and its program. The solicitor also said there was no obliga-
tion attached to signing the cards. Raymond also said she
"signed the card for representation, I guess," although she
did not read it. The failure to read the card, plus the combina-
tion of representations by the solicitor, none of which pointed
up the "representation" by the Union, and particularly the
offhand assurance that it "did not mean anything" are
enough to overcome any inference or reliability from mere
signature of the card. I find it not reliable.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reidy signed the card after reading only enough of it to
enable her to fill in the blanks with personal history; she did
not read the printed parts containing the authorization for
representation. The girl who gave it to her said it was "for the
Union, to get a union in," and that they needed so many
signed "so we could have a meeting to discuss the union
coming into the store." These representations were calculated
to lead Reidy to believe the card was a mere preliminary to
getting better acquainted with the Union, if workers were
interested in having a union, and are enough to offset any
inference from mere signature. I find the card not reliable.
Thompson had no discussion with any workers about the
card before she got a copy, read, filled in, and signed it,
however she admits she understood it was to authorize the
Union to'represent the workers, and she "hoped we won the
election." I find the card reliable.
In sum, I find 12 of the 15 cards signed on September 12
reliable, to be counted toward majority status.
Respondents challenge all of the eight cards signed after
September 23. I find as follows as to each:
DiNigris got his card from Jeffalone, who asked how he felt
about having a union in the store. DiNigris said he favored
it, and then read and filled out the card before signing. Jeffa-
lone also told him the card would insure getting definite wage
raises, and restrictions upon hiring and firing. DeNigris had
been in a union before. 4 find his card reliable, even though
Jeffalone also told him the card would be confidential and
would lead to an election.
Diane Galvin read, filled out, and signed her card after
receiving it from a worker who said she had to sign to find
out more about the Union, that it was not binding in any way,
and did not bind her to vote for the Union. For reasons stated
as to the September 23 cards, I consider the representations
of the "more information" purpose and the "no obligation"
aspect are not enough to overcome the basic presumption of
reliability arising from reading the whole card and signing it.
I find the card reliable.
Mournighan signed her card after getting it from an em-
ployee who asked if she would fill it out "for the Union."
Mournighan said she would if there was no obligation to vote
for it, the solicitor said there was none. She kept it 2 days and
discussed it with her husband before signing and returning it.
She read it first, and admits she knew it was an authority to
bargain for her, the only qualification being that she would
be advised of any negotiation the Union did for her. I find the
card reliable.
Employees told Reynolds the day before she signed her
card , when she got it, that so many signed cards were neces-
sary to get the Union to come to the store or hold meetings
where they could tell workers about better working condi-
tions such as more wages, etc . Despite these representations,
she admits she still understood the printing on the card before
she signed-it as an "authorization for representation." The
basic presumption from her understanding of the words and
her signature is not overcome by the workers' representations
of a limited purpose of the card as stated above. The card is
reliable.
Kathleen N. Russo received her card from Brenda Earl who
told her about union meetings and suggested , if she wanted
to learn more about it, she should sign the card. Russo re-
ceived the card and this explanation on return from a leave
of absence, but she held the card for about 2 weeks while she
heard other employees discuss the good points of the Union.
She also discussed it with her mother-in-law Satie Russo and
her husband , who was in another union . In discussion about
higher wages, etc., she asked other workers what the Union
could do for them, and was told it would' get more wages. She
herself had a grievance about failure of Respondent to disci-
pline a worker for some mistreatment of a customer; com-
pany officials had refused to take action at her request. She
signed the card the day this happened, and'says she did it to
get the right to ask the Union at a meeting' if it could have
taken action in this incident if it was in the store; after she
signed it, she inquired of agent Giannone about the action of
the other worker, and he replied the Union did not handle
that type of situation. While she does not say directly that she
read the card before signing, I infer that from the fact that
she held it long before signing. However, the fact that 'she
held the card for many days before signing, and actually
signed only after company officials had turned down her
complaint about actions of another worker, followed by her
prompt inquiry of the union agent about the incident, is
enough to indicate that the "information" purpose of the card
stated when she got it was still uppermost in her mind when
she signed, and'offsets any inference of knowledge of its
contents and true effect arising from reading and signing. I
find her card of doubtful value and not reliable.
Ruth Taylor (Halstead) got her card at the September 23
union meeting detailed above, where she heard Giannone's
recital of the Union's purpose and procedure to be followed
after getting a majority of signed, cards. She admits she read
the card, and then signed it October 20 "to support the
Union ." For reasons stated above, the various representations
by the Union's agent found above (which she admits she
heard in part) do not detract from the inference from reading
it that she knew the card authorized the Union to act for her
in dealings with Respondent. I find it reliable.
Wayler admits she signed her card "to get the Union over
to Weston," after reading the upper portion of it and filling
in the blanks. The solicitor who gave it to her said "it was to
get the people together so they could get a union in the store
as the union could get them better wages, health care, other
benefits ." She had heard remarks of Giannone at an earlier
meeting and understood also that the card would be confiden-
tial and there might be an election later . The first representa-
tions made to her , plus her signature , warrant the inference
that she knew it was an authorization card , which is not
cancelled by the representations as to confidentiality and a
possible later election. I find the card reliable.
Yeager got his card from Fox, who merely told him to fill
it out "for them." He read it over and filled in the blanks
before signing it, and says he signedit as an "authority for
representation." His testimony that he did not know its pur-
pose is not credible, and the presumption from reading and
signing governs . I find the card reliable.
In sum, I find seven of the eight cards in this group reliable
proof of majority status.
In recapitulation, I find the Union received reliable signed
authorization cards as follows: September 1'8, (19); Septem-
ber 19-20, (12); September 21, (12); September 23, (6); and
after September 23, (7). It follows, and I further find, that in
the agreed unit of 80 employees as of September 21, 1973, the
WESTONS SHOPPERS CITY, INC. 301
Union received 43 reliable cards through that date, and a
total of 56 before the election.
Respondents argue that the Union's demand for recogni-
tion of September 21 was defective, because when it was sent
at noon that day, the Union had only 35 signed cards (good
or bad). While this is true, the fact that it had less than a
majority before the transmission does not vitiate the demand,
even if I assume from the rather vague testimony of Giannone
that he had no proof the night before that the Union would
receive a majority of signed cards by noon on the 21st. While
the record is not clear as to how many of the 15 card signers
of the 21st actually signed before or after noon, it is a fair
inference that the Union's officials were promptly advised
early enough by employee solicitors that it might have up to
50 cards by the end of that day, so that its agent may well
have honestly expected to have majority status by the time
the demand was sent. In fact, as noted above, the Union had
43 reliable cards by the end of that day. Hence, the Union's
demand for recognition that day was not vitiated, but in fact
was made a continuing demand by its filing of the representa-
tion petition the same day, with the effect that any reliable
cards executed and obtained after that date could be counted
toward majority status. Raymond Buick, Inc., 173 NLRB
1292, 1307; Schwarzenbach-Huber Company, supra at 1538;
Snyder Tank Corporation, supra at 740; The Dal( Corpora-
tion, d/b/a Hoffman Bros., 188 NLRB 319, 323 (1971). Un-
der these authorities, it is clear that on September 23, 1973,
and when Respondents rejected the Union's continuing de-
mand on September 26, the Union had a clear majority of 49
reliable cards in the then unit of 80 employees, and that such
majority status has continued ever since. I conclude and find
that on and after September 23, the Union was the exclusive
representative of all employees in the appropriate unit afore-
said for purposes of collective bargaining within the meaning
of Section 9(a) of the,Act.
Since Respondents refused on and after September 26,
1973, to recognize or bargain with the Union, upon request,
as the statutory bargaining agent of employees in the unit
aforesaid, and I have found that Respondents' reasons for
such refusal are without merit, I conclude and find on the
basis of past precedent that Respondents thereby violated
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondents are a joint employer engaged in commerce,
and I he Union is a labor organization, within the meaning of
the Act.
2. All full-time and regular part-time employees of all Re-
spondents at Westons Shoppers City of Oswego, Inc., located
in Oswego, New York, but excluding guards, professional
employees, the store manager, the assistant managers, and all
other supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. At all times since September 23, 1973, the Union has
been and now is the exclusive representative of all employees
in the unit aforesaid for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By unlawfully interrogating employees about their union
activiities and sentiments, threatening them with closure of
the Oswego store, loss of jobs, transfers, benefits, and other
reprisals if they voted for the Union, offering and granting
them a wage raise and other benefits to dissuade them from
voting for the Union and as a reward for voting against it,
threatening to refuse to negotiate with the Union or operate
under union conditions if they voted it into said store, and
threats of imposition of unpleasant or more restrictive work-
ing conditions if the Union organized the store and the em-
ployees stopped direct dealings with Respondent on their
problems, Respondents have interfered with, restrained, and
coerced employees in the exercise of rights guaranteed to
them by Section 7 of the Act, in violation of Section 8(a)(1)
of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease and
desist therefrom, and take certain affirmative action neces-
sary to remedy the unfair labor practices and effectuate the
policies of the Act. As the unfair labor practices involve a
wide variety of coercive conduct, I shall recommend a broad
cease-and-desist order.
The same unfair labor practices also interfered with the
election of January 4, 1974, and affected the results thereof,
hence I also recommend that the objections to conduct affect-
ing the results of the election be sustained and the election be
set aside.3° Further, in view of my finding below that a bar-
gaining order is warranted, I also recommend that the peti-
tion in Case 3-RC-5844 be dismissed and that all proceed-
ings therein be vacated and set aside.
Under past Board practice with court approval, the usual
remedy for violation of Section 8(a)(5) has been a routine
order to recognize and bargain with a union on request, and
incorporate any understanding reached in a signed agree-
ment. However, the variety, extent, and pervasive effect of
Respondents' unfair labor practices herein, including the re-
peated and potent threats to close the store with inevitable
loss of jobs, and threats of other specific reprisals, plus the
unusual coercive wage raise before the election, compel the
conclusion that Respondents have thereby probably de-
stroyed the conditions under which an election can be relied
on as a reliable indication of employee choice, to an extent
that a second election would not serve that purpose, even
after imposition of the standard remedy of posting of a notice
for violation of Section 8(a)(1). Hence, the only remedy left
is a direct bargaining order." The Board has recently deter-
mined that, in such situation, if it determines that an em-
ployer's wide and pervasive violations of Section 8(a)(1)
clearly dissipated a union's proven majority status and create
an atmosphere in which a free and fair election cannot take
place, it will dispense with a finding of violation of Section
8(a)(5) and base its remedial bargaining order upon the
8(a)(1) violations by the employer, without preparing for
another election, where a representation case pend,'s. Steel-
30 The Union offered no separate evidence in support of the objections,
relying entirely on the proofs offered by General Counsel in support of the
amended complaint. The objections generally are coextensive with the
charges of violations of Sec. 8(a)(1) made in the complaint
31 General Stencils, Inc., 195 NLRB 1109-1111 (1972), NLR B. v Gissel
Packing Co., 395 U.S. 575, 614, 615 (1969).
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fab, Inc., 212 NLRB 363 (1974). For that reason, I have
recommended dismissal of the proceedings in Case
3-RC-5844, and issue a recommended order in the form
outlined in Steel-Fab case.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER32
Respondents, Weston Shoppers City, Inc., Westons Shop-
pers City of Oswego, Inc., Miles Fabrics of Oswego, Inc.,
Drive-In Restaurants, Inc.; d/b/a Ogden Foods, Arness Sales
Corporation, and Lesal Retailers of Oswego, Inc., d/b/a
Morse Shoes, and their respective officers, agents, successors,
and assigns, jointly and severally shall:
1. Cease and desist from:
(a) Questioning their employees about their union activities
and sentiments in an unlawful manner
(b) Threatening their employees with closure of the Os-
wego store, loss of jobs, transfers, loss of benefits and other
reprisals if they favored the above-named Union or voted for
it in an election.
(c) Warning their employees that they would close the
Oswego store before they would negotiate with said Union.
(d) Threatening to impose unpleasant or more restrictive
working conditions on their employees if said Union repre-
sents them in said store.
(e) Promising and granting their employees wage raises or
other benefits if said Union did not win the election or get into
the store, and to induce them to vote against the Union.
(f) Threatening their employees that Respondents would
not negotiate with said Union and would not work under
union conditions if it got into the store, and the employees
ceased direct dealings with Respondents.
(g) In any other manner interfering with, restraining, or
coercing their employees in the exercise of any rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with Retail Store
Employees Union, Local 345, AFL-CIO, Retail Clerks Inter-
national Association, as the exclusive bargaining representa-
tive of the employees in a unit of all full-time and regular
part-time employees of all Respondents in the Oswego, New
York, store, but excluding guards, professional employees,
the store manager , the assistant managers, and all other
supervisors as defined in Section 2(11) of the Act, respecting
rates of pay, wages, hours of employment, or other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Post at their store in Oswego, New York, copies of the
notice attached hereto marked "Appendix."33 Copies of said
32 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Recommended Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order and all objections
thereto shall be deemed waived for all purposes.
notice, on forms to be provided by the Regional Director for
Region 3, after being duly signed by Respondents' authorized
representative, shall be posted by them immediately upon
receipt thereof, and be maintained by them for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps Re-
spondents have taken to comply herewith.
IT IS ALSO ORDERED that the amended complaint be, and the
same hereby is, dismissed insofar as it charges unfair labor
practices not specifically found herein.
IT IS FURTHER ORDERED that the election -held on January 4,
1974, in Case 3-RC-5844 be set aside, that the petition
therein be dismissed, and that the entire proceeding in Case
3-RC-5844 be vacated.
33 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT question our employees about their
union activities and sentiments in an unlawful manner.
WE WILL NOT threaten our employees with closure of
our Oswego Store, loss of jobs , transfers , loss of benefits
or other reprisals if they favored Retail Store Employees
Union, Local 345, AFL-CIO, Retail Clerks Interna-
tional Association , or vote for it in an election.
WE WILL NOT warn our employees that we will close
the Oswego Store before we will negotiate with the
above-named Union.
WE WILL NOT threaten to impose unpleasant or more
restrictive working conditions on our employees if the
above-named Union represents them in said store.
WE WILL NOT promise or grant our employees wage
raises or other benefits if the above-named Union loses
an election or does not represent them in said store, or
to induce them to vote against such Union.
- WE WILL NOT threaten our employees that we will not
negotiate with said Union and will not work under union
conditions if the Union represents employees in said
store, and if our employees cease direct dealings with us.
WE WILL NOT in any other manner interfere with, re-
strain or coerce our employees in the exercise of any
rights guaranteed to them by Section 7 of the Act.
WE WILL, upon request, recognize and bargain with
Retail Store Employees Union , Local 345, AFL-CIO,
Retail Clerks International Association , as the exclusive
bargaining representative of all our employees in the
WESTONS SHOPPERS CITY, INC. 303
bargaining unit described below with respect to rates of
pay, wages, hours of employment, or other terms and
conditions of employment and, if an understanding is
leached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time employees of Wes-
ton Shoppers City, Inc. and Weston Shoppers City of
Oswego, Inc., and of their licensees , in Oswego, New
York store, but excluding guards, professional em-
ployees, the Store Manager , the Assistant Managers,
and all supervisors as defined in the Act.
All our employees are free to become or remain , or refuse
to become or remain , members of Retail Store Employees
Union, Local 345, AFL-CIO, Retail Clerks International
Association, or any other labor organization.
WESTONS SHOPPERS CITY, INC AND ITS
SUBSIDIARY WESTONS SHOPPERS CITY OF
OSWEGO, INC, AND ITS LICENSEES MILES
FABRICS OF OSWEGO, INC, DRIVE-IN
RESTAURANTS, INC d/b/a OGDEN
FOODS, ARNESS SALES CORPORATION,
AND LESAL RETAILERS OF OSWEGO, INC
d/b/a MORSE SHOES