Dayton Hudson Corp.

National Labor Relations Board - Board Decisions

Aug 18, 1994

314 N.L.R.B. 795 (N.L.R.B. 1994)

795
314 NLRB No. 129
DAYTON HUDSON CORP.
1 302 NLRB 982.
2 Dayton Hudson Department Store v. NLRB, 987 F.2d 359 (6th
Cir. 1993).
3 In its Objection 2, the Respondent alleged that the Union’s May
8, 1990 letter intentionally contained gross misrepresentations of ma-
terial facts about the Respondent’s profits and that its distribution
was timed to preclude any effective response. The court upheld the
Board’s decision to overrule Objection 2 insofar as the Respondent
alleged that the Union’s campaign flyer distributed on the day of the
election, May 11, 1990, constituted a forged document. The court
also upheld the Board’s decision to overrule Objections 3 and 4.
4 In its motion to reopen the record, the Respondent alleged that
the Union had forged authorization cards and had used these to
claim widespread support for the Union during the campaign.
5 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Here the judge based his findings not only on the demeanor of the
witnesses, but also on the weight of the evidence, established or ad-
mitted facts, inherent probabilities, and reasonable inferences drawn
from the record as a whole. In particular, we agree with the judge’s
finding that John Madgwick’s claim that he forged authorization
cards is a ‘‘total fabrication.’’ The Respondent errs in claiming that
the delay of almost 4 years from the events at issue and the hearing
about them impaired the judge’s credibility findings. To the extent
that delay may have adversely affected any testimony, it would have
equally affected all witnesses, not just those of the Respondent. See
Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1343 (9th Cir. 1987).
Moreover, the judge did not rely on imprecision and vagueness alone
in making his credibility findings. He specifically cited demeanor as
well as the panoply of considerations outlined above. We refer espe-
cially to the judge’s analysis of the testimony of John Madgwick,
Rosemary Minni, and Suzann Roberts. We find no error in the
judge’s credibility findings.
6 In its exceptions, the Respondent asserts that Region 7’s mis-
handling of authorization cards deprived the Respondent of the ‘‘full
inquiry’’ mandated by the court on remand. The Respondent refers
to the fact, which was revealed at the hearing, that on November 9,
1992, the Region inadvertently returned cards to the Union from the
Respondent’s Westland store rather than from the Respondent’s
Fairlane store. (The Fairlane store was the subject of a withdrawn
election petition also involving the Union.) The Union returned the
Westland cards on November 23, 1992, when the Union discovered
the mistake. With reference to this incident, the Respondent’s coun-
sel acknowledged on the record that there was ‘‘no evidence or sug-
gestion that what has been represented by the General Counsel or
by [counsel for the Union] is not entirely true.’’ The parties also
stipulated that there were 268 Westland cards stamped with the Re-
gion’s March 12, 1990 date, the day the Union filed its petition,
bearing the names of employees in the bargaining unit at that time.
In its brief to the judge, the Respondent referred to this incident
and asserted that it had been deprived of an opportunity to inves-
tigate the 2-week period that the Union had possession of the cards.
The judge correctly dismissed the Respondent’s arguments by noting
that at no time had the Respondent sought a continuance; that the
268 cards bore the Region’s March 12, 1990 stamp; and that the Re-
spondent made no suggestion of any motive for tampering with the
stamped cards or how such tampering could have affected the out-
come of this case.
The Respondent now states in its exceptions that the Union had
the opportunity to sanitize the time-stamped cards by removing those
that allegedly had been fraudulently signed. The Respondent refers
to no evidence to support this allegation. We find no merit in this
attempt by the Respondent to resurrect its forged-cards allegation.
Continued
Dayton Hudson Department Store Company, a Di-
vision of Dayton Hudson Corporation and
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW, AFL–CIO. Case 7–CA–31476
August 18, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On May 15, 1991, the National Labor Relations
Board issued a Decision and Order in this proceeding
granting the General Counsel’s Motion for Summary
Judgment and finding that the Respondent had violated
Section 8(a)(5) and (1) by refusing to bargain with the
Union.1 The Respondent was ordered to cease and de-
sist and to take certain affirmative action to remedy the
unfair labor practices.
Thereafter, the Respondent filed a petition for re-
view with the United States Court of Appeals for the
Sixth Circuit, and the Board filed a cross-petition for
enforcement of its Order. On March 1, 1993, the court
granted the Respondent’s petition for review and de-
nied the Board’s cross-petition for enforcement.2 The
court held that: (1) the Board must reevaluate one of
the two union campaign documents at issue in the Re-
spondent’s Objection 2 in the representation pro-
ceeding in Case 7–RC–19227;3 (2) the Respondent
was entitled to a hearing on the allegation that the
Union had forged authorization cards, which was the
subject of the Respondent’s motion to reopen the
record filed on June 7, 1991.4 The court remanded the
proceeding to the Board for the limited purposes set
forth in its opinion.
On November 22, 1993, the Board remanded the
proceeding to the Regional Director for Region 7 for
the purpose of arranging a hearing before an adminis-
trative law judge limited to the allegation concerning
the false authorization cards. The Board also ordered
that the administrative law judge’s decision should in-
clude both the forged cards allegation and a reevalua-
tion of the Union’s May 8, 1990 letter to employees.
On March 25, 1994, Administrative Law Judge Mar-
ion C. Ladwig issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and the Union answered the Respond-
ent’s exceptions, and the Respondent replied to the
Union’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,5 and con-
clusions6 and to adopt the recommended Order.
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judge Ladwig has rendered the ‘‘full inquiry’’ mandated by the
court and found that John Madgwick’s tale of forged cards is a
‘‘total fabrication.’’ We agree with this finding. The Respondent’s
innuendo in no way contravenes it.
ORDER
The Board’s Order reported in 302 NLRB 982
(1991), is reaffirmed.
Mark D. Rubin, Esq., for the General Counsel.
Timothy K. Carroll and John Birmingham, Esqs., of Detroit,
Michigan, for the Respondent.
Nancy Schiffer and Betsey Engel, Esqs., of Detroit, Michigan,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. On re-
mand from the United States Court of Appeals for the Sixth
Circuit, a hearing was held on January 18–21, 1994.
In an election held on May 11, 1990, at the Company’s
Westland, Michigan store, the vote was 274 for the Union
(UAW), 8 for another union, and 179 against both. On De-
cember 26, 1990, the Board rejected the Company’s objec-
tions and certified the Union. On May 15, 1991, the Board
granted a Motion for Summary Judgment and ordered the
Company to bargain.
On June 7, 1991, the Company filed a motion to reopen
the record, alleging that it had obtained a statement from the
Union’s principal employee organizer to the effect that ‘‘nu-
merous authorization cards’’ were forged and ‘‘intentionally
used by the UAW to falsely portray union strength and sup-
port from a majority of the eligible voters.’’ On September
30, 1991, in the absence of ‘‘any allegation that the employ-
ees were actually shown the allegedly forged cards,’’ the
Board denied the motion.
On March 1, 1993, the court remanded the case, instruct-
ing that ‘‘the record be reopened and a new hearing held on
the issue of forged authorization cards.’’ At the hearing the
employee organizer, John Madgwick, falsely testified that the
cards submitted to support the March 12, 1990 petition were
‘‘30 percent plus a few extras.’’ He claimed that weeks later,
when the cardsigning slowed, he forged 10 to 20 cards to
start a bandwagon. In fact, the Union submitted 268 cards
with the petition, a 61.8-percent majority of the alleged 433
employees in the bargaining unit.
In addition, Madgwick gave grossly conflicting versions of
his purported forgeries in his May 10, 1991 written statement
to the Company, in a June 6, 1991 affidavit, and in his Janu-
ary 18, 1994 testimony (in which he, changing his testimony,
claimed that certain assertions he made in the affidavit were
lies).
After weighing all the evidence, as discussed below, I
agree with the Union that Madgwick’s claim that he forged
authorization cards is a ‘‘total fabrication.’’
I find that the whole basis of the Company’s motion to re-
open the record—that the Union used forged authorization
cards to portray a false picture of majority support—is
grounded on fabricated evidence.
As further instructed by the court, a May 8, 1990 cam-
paign letter is reevaluated.
FINDINGS OF FACT
A. The Court’s Remand
On June 7, 1991, over a year after the Union won the May
11, 1990 election at the Westland mall store—by a vote of
274 for the Union, 8 for a Commercial Workers local, and
179 against both unions (C.P. Exh. 11)—the Company filed
a motion, dated May 30, 1991, to reopen the record (G.C.
Exh. 1(i)), alleging that it had
discovered evidence, and obtained a statement from the
principal employee/organizer, to the effect that Charg-
ing Party UAW had forged, or caused to be forged, nu-
merous authorization cards prior to the May 11, 1990
election, which cards were intentionally used by the
UAW to falsely portray union strength and support
from a majority of the eligible employee voters. [Em-
phasis added.]
In its supporting brief (attached to G.C. Exh. 1(i)) the
Company alleged:
In this case, by forging numerous authorization
cards, the Union created a false image, or ‘‘outward
manifestation’’ of majority support which operated as a
‘‘useful campaign tool. . . .
. . . .
They commenced forging cards when they had ob-
tained valid, uncoerced cards from only 1/3 of the vot-
ing unit. [Emphasis added.]
In making these representations, the Company was relying
on a written statement given by employee John Madgwick
on May 10, 1991, to Company President Dennis Toffolo and
company counsel (R. Exh. 3). Regarding the number of au-
thorization cards he claimed he had forged, Madgwick as-
serted in the written statement: ‘‘Just how many I do not re-
member.’’ He further asserted, ‘‘At the time I did this, we
had about 165 cards signed.’’
To the contrary, the parties stipulated at the hearing (Tr.
190) that there are ‘‘268 cards [emphasis added] in the pos-
session of Region 7, all stamped on March 12, 1990 [the
date the Union filed the election petition].’’ Madgwick’s
claim of ‘‘about 165 cards’’ would be 38.1 percent (a little
over a third) of the 433 employees alleged in the March 12,
1990 petition to be in the bargaining unit (C.P. Exh. 10). The
actual number of 268 cards submitted with the petition was
61.8 percent of the alleged unit—a clear majority.
In its order denying the motion to reopen the record (G.C.
Exh. 1M at 3, 5–6), after observing that the Union ‘‘denies
that any cards were forged’’ or ‘‘had any involvement in any
alleged forgery,’’ the Board denied the Company’s motion,
‘‘absent any allegation that the employees were actually
shown the allegedly forged cards.’’
Relying on the Company’s representation of the facts, the
court ruled, Dayton Hudson Department Store v. NLRB, 987
F.2d 359, 367 (6th Cir. 1993):
We . . . find that the use of forged authorization
cards to create a false picture of the extent of Union
797DAYTON HUDSON CORP.
support, independent of whether the cards actually were
shown to any employees, might constitute precisely the
sort of pervasive misrepresentation and artful deception
that we indicated in Van Dorn [Plastic Machinery Co.
v. NLRB, 736 F.2d 343 (6th Cir. 1984), discussed later]
could, under the proper circumstances, be the basis for
setting aside an election. . . .
Because the use of forged cards to generate Union
support, if this prevented employees from separating
truth from untruth and affected their right to a free and
fair choice, would require a different result in the pro-
ceedings before the Board, the failure of the Board to
grant the motion to reopen the record was an abuse of
discretion. A hearing on this issue will ensure full in-
quiry into such questions as how many authorization
cards were forged, the actual use to which those cards
were put, when these incidents occurred, and whether
and in what context any misrepresentation concerning
the cards occurred.
The court remanded the case to the Board with the instruc-
tion that the record be reopened and a new hearing held on
the issue of forged authorization cards and also with the in-
struction that the Board reevaluate the May 8, 1990 cam-
paign letter (as discussed later).
B. Purported Forging of Cards
1. Successful organizing campaign
Robert King, the regional director of UAW Region 1A,
was in charge of the organizing campaign. He was assisted
by Assistant Director Ray Westfall and other staff represent-
atives. (Tr. 61–62, 192–193, 199–203, 208, 230–231, 269,
281–282, 287; C.P. Exh. 5.)
The organizing at the Westland mall store began in Janu-
ary 1990. King’s strategy for a successful campaign was to
obtain the support of 65 percent of the employees before re-
leasing authorization cards for them to sign and before filing
an election petition. To obtain this support, he relied on vol-
unteers in all departments and areas of the store, to constitute
an informal organizing committee. The 30 to 40 (or more)
committee members contacted the employees, seeking sup-
port for the Union and determining who were for and against
it. (Tr. 193–195, 197–198, 204–206, 227–228, 279.)
In committee meetings and in meetings of employees in
various union halls, the Union posted large poster paper on
the walls, showing the various departments and areas and in-
dicating the number of employees, how many were prounion,
how many were undecided, and how many were not in favor
of the Union. This ‘‘information gathering involving the
large poster sheets,’’ showing ‘‘numbers for each depart-
ment,’’ continued ‘‘right up to the election.’’ (Tr. 65–66,
195, 198, 205–206, 209, 213–215, 279–281, 284–286, 297.)
Finally, after spending ‘‘a lot of time’’ assessing the union
support at the store, through ‘‘committee meetings and the
charts,’’ Director King determined that the Union had
achieved the support of 65 percent of the employees and de-
cided to release the authorization cards for them to sign (Tr.
205–206, 227–228). The Union issued a notice to the em-
ployees (R. Exh. 2), announcing that ‘‘The UAW’s cards
will be handled at the membership meeting on Sunday,
March 4 at 6:30 p.m.’’ About 175 or 200 employees at-
tended the meeting and 161 of them signed authorization
cards that evening. Committee members and others took
cards back to the store to be signed. (Tr. 206–208, 228, 242,
273, 282–283.)
Cards were being signed at such a fast pace, showing
‘‘very positive and very strong’’ support, that on Thursday
of that same week, March 8, 1990, Director King determined
that the Union had the support of 65 percent of the employ-
ees. He authorized the filing of a petition and on Monday,
March 12, Assistant Director Westfall filed it (in Case 7–
RC–19227), alleging 433 employees in the unit. As found,
Westfall submitted 268 authorization cards (61.8 percent) in
support of the petition. (Tr. 190, 208, 212, 243, 264–266.)
After the Union filed the petition, the focus of the orga-
nizing committee was to maintain the Union’s ‘‘support with
the people who had committed support to the UAW.’’ As
credibly testified by Director King (who, by his demeanor on
the stand, impressed me most favorably as a truthful, forth-
right witness), ‘‘we had the necessary cards to have an elec-
tion. Now it was a matter of winning the election’’ (Tr. 210,
212–215):
Q. At the point that the petition was filed on March
12th, but before you had the Excelsior list [about April
11], was there a continued push at that time to collect
additional cards?
. . . .
A. No. We were very, very happy with the support
we had and the really strong support, or I would call
overwhelming support we had. . . .
. . . .
Q. What did [the organizing committee] do after the
petition was filed?
A. They went back and contacted all their co-
employees and found out what the company was doing,
what things the company was saying, what was the re-
sponse to the different company literature. Would keep
us abreast of current issues on almost a day-to-day
basis of what was going on in the store.
Q. Were they given duties with respect to card dis-
tribution or collection after the petition was filed?
A. No, if they got an additional card and they turned
it in, that was fine.
Committee member Jacquelyn Garner credibly testified
that the committee had no role in soliciting authorization
cards after the Union filed the petition. The members
‘‘would accept a card if someone handed it in, but to ac-
tively solicit them, no.’’ (Tr. 284–286.) Mary Grab, the co-
chairman of the committee, credibly confirmed that after the
petition was filed, employees were not urged at union meet-
ings to collect more cards, and no committee member that
she knew of solicited cards (Tr. 244–245, 254). (By their de-
meanor on the stand, both Garner and Grab appeared to be
truthful witnesses.)
As Assistant Director Westfall credibly testified, the only
signed cards he received after filing the petition were about
‘‘a dozen or so’’ from Madgwick. Because ‘‘We already
filed the petition,’’ he told Madgwick that ‘‘those cards
would be kept in the safe.’’ (Tr. 266–268, 272.) The parties
stipulated (Tr. 320) that there were 16 of these cards (about
which Westfall testified), that 1 was a duplicate signed
March 28, and that 1 was not dated. Among the other 14
798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cards, 2 were dated March 10 (the Saturday before the
March 12 petition), 2 were dated March 12 (the date of the
petition), 2 on March 26, 1 each on March 14, 17, 25, 27,
and April 2 and 4 (all before the April 11 Excelsior list), and
on April 19 and 25 (after the Excelsior list).
When the Company and Union met at the Regional Office
to sign a stipulated election agreement and set a date for the
election, the Company ‘‘said we will let you have this date
[May 11] for the election if you allow us to include the
leased areas.’’ The Union agreed, ‘‘rather than delaying the
election.’’ (Tr. 229, 255.)
The Excelsior list, which the Union received about April
11, 1990 (C.P. Exhs. 6, 7), contained the names of 537 em-
ployees (104 more than the Union had calculated would be
in the bargaining unit). The list included not only employees
in leased departments, but also some persons who were no
longer working there and some who had died (Tr. 209–211,
229, 285).
The organizing committee was not assigned to solicit the
added employees to sign cards (Tr. 230–231, 244–245, 284).
King credibly testified (Tr. 210–211):
Q. After you received the Excelsior list, was there
then a push to gather additional cards?
A. There was a push and scramble to find out all the
people who were on that list, to have somebody contact
them and find out their support of the union. It wasn’t
necessary for a push of cards at that point, it was to
build support and gain support among the additional
people on the list.
Q. Why do you say it wasn’t necessary?
A. Because we had filed the petition already, we had
the necessary cards to have an election. Now it was a
matter of winning the election.
. . . .
[I]f somebody wanted to sign additional cards they
could, but our main thrust or main push was to identify
all the people and then to win the support of those in
the leased departments.
. . . .
Q. Did you ever tell John Madgwick that if 65 per-
cent of the employees didn’t sign cards that you would
delay the election?
A. No.
When the members of the organizing committee sought
out and talked to employees in the leased departments, the
Union received their ‘‘overwhelming support’’ (Tr. 255). In
the May 12, 1990 election, the Union received 274 of the
461 valid votes counted—a majority of 59.4 percent (C.P.
Exh. 11).
2. Madgwick’s fabricated testimony
a. His motivation
Furniture ‘‘sales consultant’’ John Madgwick played a
prominent role in the organizing campaign. He attended the
first organizing meeting in January 1990 at the home of em-
ployee Mary Grab and he and Grab were informally selected
by the employees to be cochairmen of the organizing com-
mittee (Tr. 27–28, 60, 199, 201–202, 226). At the March 4,
1990 union meeting, where 161 of the employees in attend-
ance signed authorization cards, he volunteered to use vaca-
tion time early that week to collect cards from employees
who did not attend the meeting (Tr. 19, 68).
Madgwick collected cards at the Coney Island (a restaurant
located in the mall near the store) on Monday and Tuesday,
March 5 and 6. Grab relieved him after her store hours both
those days and also on Wednesday, her day off. (Tr. 19, 37,
68–70, 243.) Madgwick turned the signed cards in to Assist-
ant Director Westfall (Tr. 37, 264–265, 269–270, 283–284).
As found, Director King decided on Thursday, March 8, to
authorize the filing of the petition, and the following Mon-
day, March 12, Assistant Director Westfall filed it with 268
cards. Also as found, Madgwick turned in to Westfall the
few signed cards that Westfall received between that time
and the election.
After the Union won the election on May 11, 1990, the
Union chartered a separate local for the Westland mall store
employees. To avoid ‘‘bad feelings’’ between Madgwick and
Grab, the Union set up the local to divide the top leadership
in the local between two elective offices, a president and a
chairman of the bargaining committee. The members elected
Grab to be president and Madgwick to be the chairman. (Tr.
88–89, 218.)
During the following months there were various occur-
rences or expressed attitudes that may have influenced
Madgwick in deciding to turn against the Union, to campaign
against it at the Company’s Fairlane mall store, and to give
fabricated testimony in an obvious effort to overturn the
Union’s election victory at the Westland mall store.
Madgwick opposed Grab as president being involved in
negotiations with the Company. Although being assured that
as committee chairman he would be lead spokesman, he
‘‘was not happy with that.’’ As Director King further
credibly testified, Grab as president had a role in going out
to other locals and Madgwick ‘‘did not seem to appreciate
her getting that recognition.’’ Madgwick thought that one
person should be clearly in charge of the local union and
should handle the responsibilities of both president and bar-
gaining committee chairman. (Tr. 218–219.)
About September 1990, in the parking lot after a union
meeting, Madgwick told Fairlane mall store employee Leon-
ard Militello and other employee organizers that ‘‘we have
to get off the women’s issues’’ and have the ‘‘big-ticket’’
employees (the higher-paid commissioned sales consultants
in furniture, carpets, etc.) control this union. (Tr. 54–55,
301.)
Later, in March 1991, Madgwick attended a union meeting
at the Fairlane mall store during the Union’s organizing cam-
paign there. After the meeting Madgwick told Militello his
opposition to ‘‘the idea of seniority rights, people having a
right to bump into his department that had more seniority
than him.’’ He also expressed his opposition to the local
union president’s having ‘‘the right to be at the bargaining
table and to have input at the bargaining table.’’ He said
‘‘we are losing control of the [organizing] campaign’’ and
complained that ‘‘women’s rights were becoming more and
more prevalent and he did not want women to be involved
in this thing. He wanted big-ticket to control this.’’ (Tr. 301–
304, 307.)
I discredit Madgwick’s claim (Tr. 89) that ‘‘I don’t know
why I would be unhappy about’’ the local union president
being able to sit in on bargaining sessions and that ‘‘I don’t
799DAYTON HUDSON CORP.
recall saying anything like that.’’ I also discredit his claim
(Tr. 90) that ‘‘No,’’ he did not make statements to other em-
ployees that he wanted the big-ticket employees to control
the local.
On April 27, 1991, as stipulated (Tr. 320–321), the Com-
pany erased a $8,055.79 deficit in Madgwick’s commission
account, along with larger and smaller deficits in the ac-
counts of other commissioned sales consultants in the Com-
pany’s stores. Because of the deteriorating economy, as Ben-
efits and Compensation Coordinator Owen Oakley credibly
testified (Tr. 162–168), these employees had been drawing
more money than their monthly commissions, and the accu-
mulated deficits prevented them from earning more than their
draw in high-sales months. I discredit Madgwick’s claim (Tr.
58, 94) that this 1991 deficit was not erased until 1993—
long after he turned against the Union.
About April or May 1991 Jacquelyn Garner, a design as-
sistant in the furniture department, observed ‘‘company peo-
ple’’ going to Madgwick’s desk and talking to him on a
daily basis. While relieving the furniture receptionist during
lunch, she was receiving phone calls from ‘‘company people
asking to talk to John Madgwick.’’ Two of the calls were
from Company President Dennis Toffolo. (Tr. 288–290.) I
discredit Madgwick’s claim (Tr. 53) that Toffolo had not
called him at work.
Meanwhile, Director King and Assistant Director Westfall
were seeking a meeting with Madgwick and he was asking
for a meeting with them (Tr. 41, 51–53). As King credibly
testified, ‘‘We had heard some concern from employees that
he was meeting with management’’ and, in particular, that he
had met with President Toffolo (who became the head of the
department store division after the Union’s election victory
at the Westland mall store). King credibly explained: ‘‘We
had experience where Dennis Toffolo had met with people
from the Pontiac store and had convinced them not to sup-
port the UAW.’’ (Tr. 56, 216, 220.)
In Madgwick’s meeting with King and Westfall at the
Bakers Square Restaurant near the Westland mall store,
Madgwick again expressed his overall concern about his and
President Grab’s roles in the local and repeated his conten-
tion that one person should be clearly in charge of the local
union and handle the responsibilities of both president and
chairman of the bargaining committee (Tr. 215–219).
Madgwick acknowledged in the meeting that he had met
with President Toffolo (evidently referring to his meeting on
May 10, 1991, with Toffolo and the attorney). It was in the
meeting with King and Westfall that he made the claim
about forging authorization cards. As King credibly testified,
there had never been any statement by anybody of ‘‘even the
possibility’’ of forged cards and ‘‘I really questioned what
was the motivation for him saying that.’’ (Tr. 219–222.)
In Madgwick’s June 6, 1991 affidavit (G.C. Exh. 2, first
identified as C.P. Exh. 1), given in another proceeding, he
swore that this meeting was held on Tuesday, May 21, 1991
(16 days before he gave the affidavit). At the January 18,
1994 hearing, however, he claimed (Tr. 41, 51–52) that ‘‘ac-
tually’’ it was the end of April, ‘‘April 21st [emphasis
added], I believe.’’ In view of his acknowledgment to King
and Westfall that he had already met with Toffolo (evidently
on May 10), I infer that May 21, 1991, is the correct date.
On May 31, 1991, Madgwick distributed a memo to the
Westland mall store employees (C.P. Exh. 8), announcing
that ‘‘I feel I must sever my association with the UAW.’’
He acknowledged (Tr. 91) that after meeting with Toffolo,
he went into the Fairlane mall store to campaign against the
Union and ‘‘talked to employees and attempted to gain the
employees’ support against the UAW.’’
b. Purported forgeries
(1) False premise
As found, Madgwick first claimed that he had forged
union authorization cards after the Company erased a
$8,055.79 deficit in his commission account and after Com-
pany President Toffolo telephoned him on the job (contrary
to Madgwick’s denial).
Madgwick made the claim in a written statement to
Toffolo and the attorney in a meeting on May 10, 1991 (a
year after the Union’s election victory at the Westland mall
store). At the hearing he gave conflicting versions of the cir-
cumstances of that meeting (Tr. 107–109):
Q. Did you have [the statement] written out when
you went to the meeting?
A. No.
Q. No. You wrote it up during the meeting?
A. During the talk.
Q. You wrote it up after you had talked to attorney
Tim Carroll and Dennis Toffolo?
A. Actually I think I did it before I talked to either
of them. I am not sure, but I think I wrote it up first
before I talked to them at the meeting. I think—
Q. You had the meeting and you don’t talk about
anything and you sit there and are writing out this state-
ment and then you talk?
A. Yes, I think that is how it happened. I am not
positive, but I believe that is how it happened.
. . . .
Q. And you just start writing?
A. They asked me to make a statement and I started
writing the statement.
Q. They didn’t know what it was going to be about?
A. No.
Q. No discussion with them before you started writ-
ing?
A. Not to my knowledge.
From his demeanor on the stand, Madgwick did not im-
press me as being a candid witness. I infer that in giving this
conflicting testimony, he was attempting to conceal his prior
arrangement with President Toffolo that the attorney would
be present to witness the statement concerning his claim that
he forged authorization cards.
On reviewing the May 10, 1991 statement (R. Exh. 3),
Madgwick’s June 6, 1991 affidavit (G.C. Exh. 2), and his
lengthy testimony at the remand hearing on January 18,
1994, I find it apparent that his various versions of the de-
tails of the purported forgeries are based on a false premise.
The false premise—belied by a stipulation of the parties
at the remand hearing—is that the March 12, 1990 petition
was supported by ‘‘only 1/3 of the voting unit’’ (the number
that the Company represented to the Board and the court was
the number of ‘‘uncoerced cards’’ when the forging of cards
began). The parties stipulated (Tr. 190) that Region 7 was in
possession of 268 cards, ‘‘all stamped on March 12, 1990.’’
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These 268 cards, submitted as the Union’s showing of inter-
est on that date, constitute 61.8 percent of the alleged 433
bargaining unit employees.
(2) Madgwick’s conflicting versions
(a) Number of signed cards
As found, Madgwick claimed in his May 10, 1991 written
statement (R. Exh. 3) that at the time he forged cards, ‘‘we
had about 165 cards signed.’’
At the remand hearing, Madgwick first testified (Tr. 31)
that the March 12, 1990 petition was supported by ‘‘30 per-
cent plus a few extras.’’ He later testified (Tr. 70) that when
the petition was filed, the Union had ‘‘Better than 30 per-
cent’’ or ‘‘about 130, 140, in-between there.’’ When shown
his June 6, 1991 affidavit (G.C. Exh. 2 at 5), stating that
‘‘Within 3 days of the start of distributing cards, we received
162 cards,’’ he claimed (Tr. 72–73) that was the correct
number of cards submitted with the petition.
That claimed number of 162 cards would be 37.4 percent
of the alleged 433 employees in the bargaining unit. In fact,
as found, instead of 162 cards being received within 3 days
after the authorization cards were released for signature at
the March 4, 1990 union meeting, there were 161 cards
signed at that union meeting. I discredit Madgwick’s so-
called ‘‘guess’’ (Tr. 18, 67) that there were only 50 employ-
ees at the meeting (instead of 175 to 200, as found).
As further found, the only signed cards that the Union re-
ceived after it filed 268 cards with the March 12 petition
were 16 cards Assistant Director Westfall received from
Madgwick, 1 undated and 15 dated from March 10 to April
25, 1990.
There is no claim that any of these 16 cards was forged
(Tr. 320).
(b) The 65-percent requirement
As found, Director King followed a policy of obtaining the
support of 65 percent of the employees before releasing au-
thorization cards for signature and before filing a petition. In
one of Madgwick’s versions of the facts he recognized this
policy, but elsewhere he distorted it, obviously to support his
claim that cards were still being solicited after the petition
was filed.
In his affidavit (G.C. Exh. 2 at 3) Madgwick gave his
version of a telephone call he received from cochairman
Grab, evidently during the week of March 4, 1990, when
they were collecting cards at the Coney Island before the
Union filed the petition on March 12. In Madgwick’s words,
‘‘Grab said that Bob King would not file a petition [emphasis
added] until at least 65% of the proposed unit signed cards.’’
(This telephone call is discussed later.)
At the hearing, however, when claiming that the solicita-
tion of cards continue after the petition was filed, he gave
a different version of King’s policy. He claimed (Tr. 19–20,
31–32):
[W]e had to have 65 percent or better cards signed by
employees before Bob King would hold an election for
us.
. . . .
A. Bob King told us this.
. . . .
A. The petition was 30 percent plus a few extras.
Again, Mr. King would not hold an election at
Westland until we maintained or we got to 65-plus per-
cent cards.
Q. This was even after the official petition had been
filed?
A. Yes.
. . . .
A. He said he would delay it until we reached 65.
[Emphasis added.]
I discredit this testimony as a fabrication. As found, King
credibly denied that he ever told Madgwick he would delay
the election if 65 percent of the employees did not sign
cards.
(c) Number of purportedly forged cards
In Madgwick’s May 10, 1991 written statement to Presi-
dent Toffolo and the attorney (R. Exh. 3), Madgwick denied
knowing how many cards he forged, stating ‘‘Just how many
I do not remember.’’
In his June 6, 1991 affidavit (G.C. Exh. 2 at 3–4), he
twice stated that he forged ‘‘10 to 20’’ union cards. He also
claimed (at 5) that the total number of cards turned over to
the Union before the election was ‘‘Approximately 274.’’ At
the hearing he claimed again (Tr. 30) that he forged between
10 and 20 cards.
I note that the court, in remanding the case (987 F.2d at
366–367), observed that ‘‘as developed both in the briefs and
during oral argument,’’ the cards had not been shown to em-
ployees. In Madgwick’s June 6, 1991 affidavit (G.C. Exh. 2
at 4), Madgwick swore, ‘‘I did not show the forged cards to
other employees.’’ Yet, at the remand hearing, he claimed
that he had shown forged cards to employees (Tr. 107):
A. I told [employees] a lot more people are starting
to sign, so they all started signing again, yes.
. . . .
Q. Did a lot more people sign cards?
A. After I forged the cards, then showed them the
cards and a lot more people started signing cards, yes.
Q. What is a lot?
A. Fifty, I can’t give a number, just a lot more peo-
ple were signing cards.
Q. [Than the number of] Cards you forged?
A. Yes. [Emphasis added.]
I discredit, as a fabrication, this belated claim that he
showed employees forged cards.
I find that this testimony is fabricated for another reason.
It is stipulated that the number of cards stamped March 12,
1990 (showing that they were submitted with the petition)
was 268. If Madgwick had turned in to Westfall 10 to 20
forged cards in addition to the 268 cards, and if employees
‘‘all started signing again’’ and he also turned in those valid
cards as well, the total number of cards turned in to Westfall
would be far larger than the ‘‘Approximately 274’’ cards that
Madgwick claimed was the total number.
As found, Westfall credibly testified that the only cards he
received after he filed the March 12 petition were the
‘‘dozen or so’’ kept in his safe—referring to 1 undated card,
1 duplicate card, and 14 others, none of which was forged.
801DAYTON HUDSON CORP.
(d) When purported forgeries occurred
Madgwick repeatedly testified that he did not forge any of
the cards submitted with the March 12, 1990 petition (Tr.
73–74).
At the hearing, he first claimed that he forged cards
‘‘When it slowed down,’’ about ‘‘Two weeks, a week later’’
after the petition was filed. He denied recalling when it was,
claiming that it might have been ‘‘the next week, the fol-
lowing week.’’ (Tr. 75.) If true, this would have been the
third or fourth week in March. In his affidavit (G.C. Exh. 2
at 3) he claimed that he forged union cards ‘‘from about late
March 1990 to about early April 1990.’’ Yet, he gave incon-
sistent testimony at the hearing, claiming (as discussed
below) that he took names from the Excelsior list, which was
dated April 11, 1990.
Although the Union had already made a 61.8-percent ma-
jority showing of interest, submitting 268 cards with the
March 12 petition, Madgwick claimed that ‘‘when we got
between 40 and 50 [percent] is when [the cardsigning] really
slowed down’’ (Tr. 76, emphasis added). Previously, in his
June 6, 1991 affidavit (G.C. Exh. 2 at 5), Madgwick swore:
‘‘Thirty percent [emphasis added] of the employees had
signed union cards before the decision was made to forge
union cards.’’
(e) Names used in purported forgeries
Madgwick also gave conflicting testimony about the
names he forged. He insisted that he could not recall any of
them. He first claimed, in his May 10, 1991 statement to the
Company (R. Exh. 3), that ‘‘I used some employees names
and just anyones [emphasis added].’’
In his June 6, 1991 affidavit (G.C. Exh. 2 at 4), he swore:
I forged the names of those employees who had stated
they were interested in the UAW, but had not signed
cards. I also forged the names of employees who stated
that they were not interested in the UAW. I cannot re-
call the names of those signatures I actually forged.
[Emphasis added.]
At the hearing he gave various versions of the names he
used. He first testified (Tr. 30–31):
A. Most of them were off the Excelsior list, yes.
Q. Were there any other names?
A. Yes.
Q. Approximately how many other such names?
A. A few. I have no idea how many names were on
the Excelsior list. No.
Q. Were these just names you make up or some-
thing.
A. Names of acquaintances I had known.
Q. Do you remember any of the names that you
filled in?
A. No. [Emphasis added.]
Later that same day he testified (Tr. 77–79):
Q. For the nonemployees, did you use names of peo-
ple you knew?
A. No, just out of the hat, maybe somebody I met,
I just put a name down. Maybe even a customer, I
don’t know. I couldn’t tell you the names, I really
can’t.
Q. Did you make up the names or were they real
names of people you knew?
A. More than likely real names, but I am—
Q. More than likely?
A. Yes.
. . . .
Q. For the names that you made up, did you write
in a job title?
A. Yes.
Q. You just made those up, too?
A. Salesman, yes. [Emphasis added.]
Madgwick next claimed that the names he took from the
Excelsior list were not employees he knew, that he ‘‘just
took them off at random’’ (Tr. 82):
Q. You would put in the signature for the person?
A. Yes.
Q. First and last name?
A. Yes. [Emphasis added.]
I find that this last answer is obviously fabricated. As the
Union points out in its brief (Br. 17), ‘‘the Excelsior list does
not contain first names, although Madgwick claimed he cop-
ied both first and last names off this list’’ (C.P. Exh. 7).
(f) Purported knowledge of Union
As the Union also points out in its brief (Br. 14),
Madgwick’s May 10, 1991 written statement to the Company
(R. Exh. 3) ‘‘does not accuse the Union of suggesting, par-
ticipating in, condoning, or even knowing about his alleged
forgeries.’’
In Madgwick’s June 6, 1991 affidavit (G.C. Exh. 2 at 4,
6), he swore:
In or around late March 1990 or early April 1990 I
gave the cards I forged to Ray Westfall. I did not tell
him that the cards were forged. . . .
. . . .
I do not know if either Ray Westfall or any other
union representatives knew that I forged union cards. I
did not discuss the card forging with the UAW. . . .
The UAW did not ask me to forge union cards.
I never told Westfall or any other UAW representa-
tive that I forged union cards until after the election in
May 1990.
Contrary to these unequivocal sworn assertions, Madgwick
claimed at the hearing that he did inform Westfall about
forged cards before the election (Tr. 40):
Q. What did you tell him or what did he tell you at
that time?
A. We were sitting at the table [at Coney Island]
when I turned them in and I reached across and said,
here are some of the forged cards. I handed them to
him.
Q. What did Mr. Westfall respond, if anything?
A. I didn’t hear that. [Emphasis added.]
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On cross-examination, Madgwick claimed that he was
lying in the affidavit (Tr. 95–96):
Q. In other words, you lied?
A. I did.
Q. You knew you were under oath at the time you
lied?
A. Yes.
. . . .
Q. Is it your testimony that you lied, but you thought
you had good reason to lie?
A. Yes.
As a justification for changing his testimony, Madgwick
claimed (Tr. 87) that when he gave the affidavit he had ‘‘a
very strong relationship with Ray Westfall and I didn’t want
Ray Westfall involved in this.’’
I credit Westfall’s denials and his testimony (Tr. 266–268,
271) that the first he learned about any allegation of forged
cards was a year later when Madgwick told Director King
and him at Bakers Square that Madgwick had forged cards.
I discredit, as a fabrication, Madgwick’s repudiation of the
earlier sworn assertions.
I also discredit, as a complete fabrication, Madgwick’s fol-
lowing claim (Tr. 22)—contrary to Westfall’s specific denials
(Tr. 267–268):
Q. What, if anything, did you do in response to this
difficulty you encountered in getting more and more
cards for Bob King?
A. I asked Ray Westfall one time when we were
walking towards Coney Island, we were having a slow
time getting cards signed, if I signed cards, what hap-
pens to the cards that we turn in to him or to Bob
King. Ray Westfall said, the cards will go down to
[the] UAW safe, they will not leave there and no one
will see them, no one will get them. You do what you
had to do, but if you are going to forge cards don’t tell
Bob King. [Emphasis added.]
This conversation undoubtedly would not have occurred
during the week before the petition was filed, when a large
majority of the employees were signing cards. Neither would
it have occurred after the petition was filed because, as
found, Director King never told Madgwick that he would
delay the election if 65 percent of the employees did not sign
cards.
I also discredit Madgwick’s testimony about forging cards
to get more employees committed and ‘‘on the band wagon,
to get the thing rolling again because it had slowed down’’
and his testimony about how he would turn in cards, includ-
ing forged cards, to Westfall at the Coney Island after
Westfall filed the petition. He claimed ‘‘we would show how
many cards we have and say eight more today, ten more
today. We were very boisterous at Coney Island about sign-
ing cards.’’ (Tr. 37–39, 49.)
I infer that Madgwick fabricated this testimony to support
the Company’s position on ‘‘the use of forged authorization
cards to create a false picture of the extent of Union sup-
port.’’ Westfall credibly testified (Tr. 269) that Madgwick
delivered cards to him at the Coney Island only when
Madgwick was there on Monday and Tuesday, March 5 and
6 (after cards were released at the March 4 union meeting).
Moreover, cards were not turned in 8 or 10 at a time after
Westfall filed the petition. As found, Westfall credibly testi-
fied that he received only about ‘‘a dozen or so’’ after that.
(3) Grab’s telephone call
Madgwick testified about a telephone call that he claims
was the cause of his forging authorization cards. I find, how-
ever, that although there was a telephone call, it was placed
before the March 12, 1990 petition was filed—not afterward
when Madgwick claimed he forged cards and not his version
of the call.
In Madgwick’s June 6, 1991 affidavit, he gave his version
of the telephone call that he received from Mary Grab, co-
chairman of the organizing committee. Because of his state-
ment in the affidavit (as quoted below) that Director King
would not ‘‘file a petition’’ until they reached 65 percent, I
infer that he received the call from Grab on Wednesday,
March 7, 1990. That, as found, was Grab’s day off when she
relieved Madgwick at Coney Island where, on Monday and
Tuesday following the Sunday, March 4 union meeting, he
had been collecting signed authorization cards from employ-
ees. At that time, they were short a few cards of reaching
65 percent of the estimated 433 employees in the bargaining
unit. (The 65 percent would be 282 cards, 14 more than the
268 cards submitted with the March 12 petition.)
Madgwick asserted in the affidavit (G.C. Exh. 2 at 3–4):
I forged the union cards because Mary Grab called me
at home and told me that we could not get anymore
cards signed. Grab said that Bob King would not file a
petition until at least 65% of the proposed unit signed
union cards. Grab told me that, ‘‘Paul [Grab’s husband]
is going to sign some cards. My daughter is here with
her girlfriend and they said they would sign some
cards. Why don’t you sign some cards and your wife.
And if you have neighbors, why don’t you have them
sign some?’’ I agreed, but I did not ask my wife or
anyone else to forge cards. Grab did not tell me how
many cards she actually forged or if she in fact forged
any union cards. This was the first and only discussion
I had with Mary Grab about forging cards. [Emphasis
added.]
I find the evidence to be clear that such a telephone call
could not have caused Madgwick to forge authorization
cards. The next day, March 8, Director King authorized the
filing of the petition. Madgwick concedes that he did not
forge any cards that week, before the petition was filed on
March 12. After the petition was filed, there was no need to
obtaining additional cards to enable King, under the 65-per-
cent policy, to ‘‘file a petition.’’
At the hearing, Madgwick completely omitted any ref-
erence to King’s not being willing to ‘‘file a petition’’ until
65 percent of the employees signed cards. He instead implied
(Tr. 22–23, 29–30) that he received Grab’s telephone call
after the petition was filed, by claiming (falsely, as found)
that he had already discussed forging cards with Assistant
Director Westfall.
Grab acknowledged that she placed such a call to John
Madgwick, calling him (Tr. 248) ‘‘just to touch base.’’ She
credibly testified (Tr. 246, 248, 252):
803DAYTON HUDSON CORP.
A. I called John at home one day and it was a flip-
pant, stupid remark and I just said, hey, I can sign
cards and Paul can sign cards and my daughter and her
friend can sign cards, and it was a stupid remark made
to lighten the situation. It was a very intense [time], and
we had never been through an election or situation like
this before and it was just to kind of relieve tension.
I said it and then it was done and forgotten.
. . . .
A. I don’t recall him saying anything. . . .
. . . .
A. [I]t was just something to break the ice, some-
thing to laugh about briefly. It was a very stupid thing
to do. Therein lies my guilt.
. . . .
Q. Other than signing your own card, did you sign
anybody else’s card?
A. No.
I infer that Madgwick was aware at that time that Grab
was not serious. But even if not, he later realized that she
was not serious about forging cards, because she never men-
tioned the subject again and never gave him any forged cards
to turn in to Westfall.
I find that Madgwick was a most untrustworthy witness.
3. Other purported forgeries
After Madgwick conceded that he did not forge any of the
(268) authorization cards that were submitted to support the
March 12, 1990 petition, the Company called four other wit-
nesses to testify about alleged forgeries.
One of them, former employee Winifred Wiacek, an-
swered ‘‘65 percent’’ to a leading question about the number
of cards required before ‘‘proceeding to an election’’ (Tr.
152):
Q. Was there any goal or directive set by the UAW
in terms of the number of cards it would insist upon
before proceeding to an election?
A. Yes, the 65 percent was accurate and it was to
make sure that we won the election. [Emphasis added.]
She then explained, ‘‘I argued that . . . 30 percent was
enough to file for an election [emphasis added], but to win
an election you needed more than 30 percent.’’ I infer that
she equated ‘‘proceeding to an election’’ in the leading ques-
tion with ‘‘filing for an election.’’ She next testified (Tr.
154):
I felt no need to go forward [after the first two days
of cardsigning] and get more cards, especially after we
filed the petition to have an election. I thought to keep
people on board and talk to them and make sure they
are still with us, but to sign more cards, to me, at that
time seemed rather fruitless.
Q. In your personal effort did you stop attempting to
have cards signed approximately at that time?
A. My role wasn’t so much getting cards signed, but
to make sure people who signed, to keep them on board
or that management didn’t intimidate them.
Thus, this company witness confirmed that the Union did
not require a 65-percent showing of interest before it would
proceed to an election.
Another witness, Christine Amos, who was on the orga-
nizing committee but who did not solicit any cards, claimed
that Director King said ‘‘He wanted 65 percent of the Excel-
sior list [emphasis added] in signed cards,’’ because ‘‘if an
employee signed an authorization card that made them feel
more of a commitment to vote yes.’’ She claimed that he
said this ‘‘At least a dozen times’’ at union meetings that
were held ‘‘Almost every Sunday’’ before the election. (Tr.
170–173.) I note there were only four Sundays between the
April 11 date of the Excelsior list and the May 12 date of
the election. I also note that she was a social friend of
Madgwick, seeing ‘‘each other socially outside of the work-
site’’ (Tr. 175).
Although, as found, there were only 16 cards turned in to
the Union after the March 12 petition, Amos claimed (Tr.
173–174) that she saw people handing in cards during that
time ‘‘At least a dozen times or more, multiple cards . . .
sometimes individual.’’ I discredit these claims, as fabricated
to support the Company’s cause.
The evidence establishes that the two other witnesses,
Rosemary Minni and Suzann Roberts, did engage in forgery,
but both did so before the March 12 petition was filed.
Employee Rosemary Minni credibly testified that she
signed the name of employee Nancy Sellar, with whom she
had talked about the Union, but who was absent because of
a mother with cancer. I discredit Minni’s claim that although
she signed her own card within the first 3 days after the
March 4 meeting, she signed Sellar’s card ‘‘maybe within
the next two weeks’’ (that is, after the petition was filed).
As discussed below, the card was 1 of the 268 cards sub-
mitted with the March 12 petition. (Tr. 118–122.)
I also discredit Minni’s claim, contrary to Westfall’s cred-
ited testimony, that shortly before the election she overheard
Madgwick and Westfall discussing forged cards and Westfall
saying, ‘‘I did not hear that’’—although she could remember
virtually nothing else about the conversation (Tr. 111–118).
She impressed me by her demeanor as not being a candid
witness.
Employee Suzann Roberts credibly testified (Tr. 138–139):
Q. Did you sign any cards for other people with per-
mission?
A. Yes.
Q. Those are situations in which the other person for
some reason was unavailable to sign?
A. Yes.
An examination of the cards revealed that, besides Sellar’s
forged card, there were only 3 other forged cards, dated
March 5, 1990, among the 268 cards submitted with the
March 12 petition (Tr. 320). To preserve the confidentiality
of the cards, as the Company revealed in its brief (Br. 21–
22): ‘‘During the final 2 days of the hearing, Judge Ladwig
supervised the examination of authorization cards by experts
retained by [the Company and Union], respectively.’’ I infer
that the three forged cards, dated March 5, were the cards
signed by Roberts with permission.
I do not credit her testimony concerning when she forged
these cards. According to her (Tr. 137–138), she had no dif-
ficulty soliciting signatures the ‘‘first couple of days’’
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(March 5 and 6, 1990), but ‘‘After the first two or three days
it dried up.’’ She claimed she heard ‘‘Over and over’’ from
King and Westfall that they had to get 65 percent before
‘‘we would have a vote.’’ She further claimed that when she
‘‘reached this period where the cards dried up,’’ she worked
‘‘even harder’’ to get more cards and then signed cards for
absent employees who gave their permission. To the con-
trary, the three forged cards are dated March 5, the first day
after the cards were released for signature at the Sunday
evening, March 4 union meeting.
I discredit as well Roberts’ claim that she also forged ‘‘I
would say a few cards, approximately three or five,’’ using
names of nonemployees. She denied having ‘‘any specific
recollection of when you turned these in or what was said
or what was done when you turned them in, who you gave
the cards to’’ or any ‘‘specific information about that par-
ticular occasion.’’ (Tr. 140, 144.) Like Minni, she did not
impress me as being a candid witness.
I consider it obvious that the 4 forged cards (3 with spe-
cific permission) that were included in the 268 cards sub-
mitted with the petition could not have influenced the out-
come of the election in any way.
4. Contentions of the parties
Apparently referring in large part to the massive conflicts
in Madgwick’s versions of what happened, the Company
contends in its brief (Br. 7) that ‘‘Not surprisingly, almost
four years after the occurrence of the events being described,
the testimony on the forged cards issue was at times con-
flicting and at other times simply confusing.’’ To the con-
trary, I find that Madgwick deliberately fabricated testimony
to help the Company’s cause.
The Company ignores Madgwick’s recognition—in his
June 6, 1991 affidavit—of Director King’s 65-percent policy
for when to file a petition. It contends in its brief (Br. 30)
that a ‘‘critical fact,’’ which ‘‘cannot be disputed,’’ is that
King ‘‘insisted upon a 65% threshold of signed authorization
cards, as evidence of support from the bargaining unit, before
he would proceed with an election [emphasis added].’’ To
the contrary, as found, King’s policy was to obtain the sup-
port of 65 percent of the employees before he would release
cards for them to sign and before he would file a petition.
Disputing the credited evidence to the contrary, the Com-
pany contends (Br. 33) that ‘‘It is inconceivable that only 15
or 16 cards were collected during that two-month’’ period
between the filing of the March 12, 1990 petition and the
holding of the May 11, 1990 election. It insists, ‘‘Where are
the rest?’’ disputing Assistant Director Westfall’s credited
testimony that those few cards were the only ones he re-
ceived after he filed the petition.
The Company concludes (Br. 40): ‘‘Finally, the Board
failed to advise [the Company] of its error in returning the
cards to the UAW until the second day of the hearing, thus
depriving [it] of a meaningful opportunity to investigate the
events of that two-week period or the UAW’s handling of
the cards.’’ This refers to the Region’s inadvertent return of
the Westland mall store cards (instead of Fairlane mall store
cards) on November 9, 1992, to the Union which, when its
counsel discovered the error, hand-delivered them back to the
Region 7 on November 23, 1992. (Tr. 185–188.)
The Company has not sought a continuance to investigate
the matter. All 268 of the cards bear the Region’s March 12,
1990 stamp (Tr. 190). The Company has made no suggestion
of any motive for someone’s tampering with the stamped
cards, or how any tampering could have affected the out-
come of this case.
The General Counsel contends in its brief (Br. 3) that
Madgwick’s testimony is ‘‘inherently unreliable.’’ He con-
cludes (Br. 4–5) that ‘‘with no evidence of an organized
union campaign of forging cards, no credible evidence of
widespread forgery, and a record demonstrating that a max-
imum of less than two percent of all cards may have been
signed by someone other than the employees named . . . in
circumstances that may or may not have involved forgery, it
is clear that the Sixth Circuit’s Van Dorn standard of ‘perva-
sive misrepresentation’ has not been met’’ by the Company.
The Union contends in its brief (Br. 5–7) that there were
no forged cards and that the evidence totally discredits the
Company’s principal witness (Madgwick) and ‘‘clearly and
dispositively shows that forged cards played absolutely no
role’’ in the organizing campaign:
[T]he evidence of forged cards and their use was a total
fabrication by an employee who became disgruntled by
his inability to control the course of the organizing
campaign. . . . [The Company] used his patently and
obviously false testimony to delay the bargaining rights
of its employees who voted for UAW representation by
an almost 100 vote margin four long years ago. The
paucity of evidence offered to support [the Company’s]
claims suggests that the [Company] frivolously initiated
its motion to reopen the record in a conscious, delib-
erate attempt to hinder the bargaining process at the
Westland mall store and the organizing efforts at its
other area stores.
The Union also contends (Br. 25) that Madgwick took ad-
vantage of a joke made by Mary Grab to weave a fairy tale
about forging cards and using them to induce employees to
join the union cause.
5. Concluding findings
1. Credible evidence at the remand hearing establishes that
no authorization cards were forged by John Madgwick or
anyone else after the Union filed the petition on March 12,
1990, contrary to the Company’s representations to the Court
of Appeals for the Sixth Circuit.
2. Four authorization cards, signed during the week of
March 4, 1990, and included in the 268 cards submitted with
the March 12, 1990 petition, were forged without the knowl-
edge of the Union.
3. These four cards (three of them signed with specific
permission of absent employees) did not influence the out-
come of the election in any way.
In direct response to the court’s questions concerning the
issue of forged authorization cards, I find as follows:
Regarding ‘‘how many authorization cards were forged’’:
four.
Regarding ‘‘the actual use to which those cards were put’’:
They were submitted by the Union, without knowledge of
the forgery, with its March 12, 1990 petition as part of its
showing of interest, which consisted of 268 cards signed in
the first week after the cards were released for signature at
a union meeting on March 4, 1990.
805DAYTON HUDSON CORP.
Regarding ‘‘when these incidents occurred’’: Three of the
forged cards were signed and dated March 5, 1990, with the
specific permission of absent employees and the fourth card
was signed that same week, before the March 12, 1990 peti-
tion was filed.
Regarding ‘‘whether and in what context any misrepresen-
tations concerning the cards occurred’’: none.
C. Campaign Letter Reevaluated
1. Prior rulings
About May 8, 1990 (3 days before the May 11 election),
as the evidence in Case 7–RC–19227 shows, the Union
mailed in UAW Region 1A envelopes from the region’s of-
fice (Tr. 28, 30–32, vol. I) a letter to bargaining unit employ-
ees with the greeting, ‘‘Dear Fellow Hudson’s Employee.’’
The long letter (E. Exh. 3, vol. 2) contains arguments critical
of the Company and its so-called antiunion ‘‘scare tactics.’’
It concludes with an appeal for a yes vote and bears the
printed signature of the Union’s organizing committee, as
follows:
By our joining the UAW, we guarantee ourselves a
voice in our future. On May 11 vote to give yourself
a meaningful voice in decisions that impact your life—
VOTE YES FOR THE UAW. [Emphasis in original.]
Your Fellow Workers
The Westland Employees
Organizing Committee [Emphasis added.]
The letter contains a gross misrepresentation of the Com-
pany’s profits. In the fifth of nine paragraphs, the letter states
that the Company is ‘‘So profitable that they . . . (3)
claimed a profit of OVER 60 MILLION DOLLARS in our
Westland Hudson’s store alone last year’’ (emphasis in origi-
nal). In fact, the total sales in 1989 were $52.5 million and
the profits were only $1.4 million. The letter contains a num-
ber of references to ‘‘we’’ and ‘‘us,’’ although it was pre-
pared by a paid union representative.
On June 6, 1990, the Company was afforded a hearing on
its objections before a hearing officer, who found that al-
though the statement about $60 million in profits was false,
it was ‘‘made openly’’ in a document that the voters were
able to recognize as campaign propaganda. The hearing offi-
cer rejected the Company’s contention that the document was
a forgery because it was signed by the ‘‘employee com-
mittee,’’ but was actually prepared by an agent of the UAW.
‘‘I do not believe the document rises to that level of decep-
tion because the employees would not reasonably be inclined
to assume that the material . . . originated exclusively from
fellow employees and had no input from the UAW.’’
In the hearing, the Company offered no evidence that any
member of the organizing committee objected to the May 8,
1990 letter being issued in the committee’s name, or that any
employee was misled into believing that the prounion state-
ments in the letter were not obviously campaign propaganda,
but instead were solely opinions of individual committee
members. It offered no evidence that any employee had any
reason to believe that the organizing committee members had
any special knowledge of company profits, or were a more
authoritative source than the Union on that subject.
On December 26, 1990, the Board issued its Decision and
Certification of Representative, adopting the hearing officer’s
recommendation to overrule this and other company objec-
tions and his finding that the May 8, 1990 letter was not a
forgery within the meaning of Midland National Life Insur-
ance Co., 263 NLRB 127 (1982).
In Midland National the Board had held, 263 NLRB at
133, footnotes omitted:
[W]e rule today that we will no longer probe into the
truth or falsity of the parties’ campaign statements, and
that we will not set elections aside on the basis of mis-
leading campaign statements. We will, however, inter-
vene in cases where a party has used forged documents
which render the voters unable to recognize propa-
ganda for what it is. Thus, we will set an election aside
not because of the substance of the representation, but
because of the deceptive manner in which it was made,
a manner which renders employees unable to evaluate
the forgery for what it is. [Emphasis added.]
In its opinion, remanding this case to the Board, 987 F.2d
at 365, the court cited its earlier opinion in Van Dorn Plastic
Machinery Co. v. NLRB, above, 736 F.2d at 348. In Van
Dorn the court had indicated its ‘‘reluctance to be bound’’
by the Midland National rule in every case, holding:
There may be cases where no forgery can be proved,
but where the misrepresentation is so pervasive and the
deception so artful that employees will be unable to
separate truth from untruth and where their right to a
free and fair choice will be affected. We agree with the
Board that it should not set aside an election on the
basis of the substance of representation alone, but only
on the deceptive manner in which representations are
made. [Emphasis added.]
Then in its opinion, remanding this case, the court ruled,
987 F.2d at 365:
We continue to adhere to Van Dorn as representing a
narrow but appropriate limitation on the expansive rule
announced in Midland National Life—namely, that
where the pervasiveness of misrepresentation or the
artfulness of deception during an election campaign
renders employees so unable to separate truth from un-
truth that their free and fair choice is affected, an elec-
tion must be set aside even in the absence of proof that
forgery has occurred. [Emphasis added.]
Thus, under the Board’s standards in Midland National,
the misrepresentation must be made in such a ‘‘deceptive
manner’’ to render employees ‘‘unable to recognize propa-
ganda for what it is’’ and ‘‘unable to evaluate forgery for
what it is.’’
Under the court’s standards in Van Dorn, the misrepresen-
tation (whether or not a forgery) must be ‘‘so pervasive’’ and
the ‘‘deception so artful’’ that employees are rendered ‘‘un-
able to separate truth from untruth,’’ affecting their right to
a ‘‘free and fair choice.’’
The court remanded this case ‘‘to enable the Board to re-
evaluate, in light of our reaffirmation here of Van Dorn,
whether the May 8, 1990 letter, even if not a proven forgery,
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nonetheless contains misrepresentation and deception perva-
sive and artful enough to interfere with employees’ fair and
free choice to such an extent as to require a new election.’’
2. Contentions of the parties
The Company, in contending that the May 8, 1990 letter
was not campaign propaganda, represents that it was signed
‘‘Fellow Employees.’’ By doing so, it ignores the fact that
the letter was signed by the Union’s organizing committee:
‘‘Your Fellow Workers The Westland Employees Organizing
Committee’’ (emphasis added).
The Company contends in its brief (Br. 7) that ‘‘the entire
document was a fraud—a forgery’’ and further contends (Br.
28–30):
The May 8 letter was both ‘‘pervasive’’ and ‘‘artful.’’
The pervasiveness of the letter is obvious as it was
mailed to all potential voting employees. Furthermore,
the letter, which grossly misrepresented Westland’s
profits, was admittedly drafted by the UAW. However,
this letter was not signed by the UAW or its agent, but
fraudulently signed, ‘‘Fellow Employees.’’ This ‘‘art-
ful’’ deception impaired the Hudson employees’ ability
to separate fact from fiction, thus affecting their right
to free choice.
Because the letter was signed by the Hudson’s em-
ployees’ ‘‘Fellow Employees,’’ the letter was not rec-
ognizable as propaganda conjured up by the UAW to
persuade the Hudson’s employees to vote in favor of
the UAW. . . . Clearly, the signatures on the letter did
not indicate that it was partisan nor was it propaganda
recognizable as such.
The misrepresentation was presented as true fact, and
the format in no way indicated that it was an expression
of opinion or campaign propaganda. Such a gross mis-
representation was so material that it undermined the
employees’ right to free choice, and requires that the
election be set aside. [Emphasis added.]
The General Counsel contends in its brief (Br. 6) that ‘‘the
disputed letter appears to be typical election campaign propa-
ganda.’’ It was ‘‘signed by the Union’s organizing com-
mittee,’’ it ‘‘encouraged employees to vote Yes in the elec-
tion,’’ and ‘‘the employees would reasonably have recog-
nized the letter as campaign propaganda.’’ The General
Counsel adds (at 6–7):
The letter contained no altered financial reports or mis-
quoted newspaper stories nor any other device to lend
credence to its assertion in respect to the [Company’s]
profits. The fact that the letter was signed by the
Union’s organizing committee and urged employees to
vote Yes, not only establishes that the document was
not a Midland National Life forgery, but also dem-
onstrates that there was no artfulness to the misrepre-
sentation. A truly artful misrepresentation in the sense
of Van Dorn would not have made it patently obvious
to the reader that the document originated with a group
that wanted the Union to win the election.
The Union contends in its brief (Br. 26–27) that the ‘‘Or-
ganizing Committee’’ of coworkers that signed the letter
‘‘did not attribute this information to any authoritative source
with any special knowledge of these facts and did not claim
any special expertise about financial issues.’’ It further con-
tends (Br. 28, 31, 33):
The May 8, 1990 letter is typical campaign propa-
ganda and was unambiguously identified as partisan
union literature. It was signed by the ‘‘organizing com-
mittee’’ which was made up of Westland employees
known to be prounion. . . . The misrepresentation in
the May 8 letter of the [Company’s] profit figures was
inadvertent and was proffered by employees with no
special knowledge of such profit figures. The letter con-
tained no other inaccurate information. That it was
crafted by UAW organizers and signed by the ‘‘Orga-
nizing Committee’’ does not render it a forgery or a
‘‘deception pervasive and artful enough to interfere
with the employees’ fair and free choice to such an ex-
tent as to require a new election.’’
. . . .
Nor was there trickery or deception involved in the
identity of the letter’s source. The May 8 letter falls
precisely within the category of campaign propaganda
as it is fully capable of being recognized as such.
. . . .
Here, although the text was drafted by a UAW orga-
nizer, the prounion sentiments expressed in the letter
are known to be those of the employees of the Orga-
nizing Committee. Such surrogate authorship is akin to
a management attorney drafting a letter for the Com-
pany president to send to all employees urging a ‘‘No’’
vote. The letter is not a deception because the attorney,
a hired, outside consultant with no employment rela-
tionship, drafts the letter for the Company representa-
tive to sign.
The Union concluded (Br. 34) that because ‘‘its message
was entirely consistent with the sentiments of the ‘Orga-
nizing Committee,’ its distribution immediately preceded the
election, and it urged employees to ‘VOTE YES,’ the letter
is easily recognizable as propaganda.’’
3. Concluding findings
a. Under the Board’s standards
It appears clear that under the Board’s standards (that the
misrepresentation must be made in such a ‘‘deceptive man-
ner’’ to render employees ‘‘unable to recognize propaganda
for what it is’’ and ‘‘unable to evaluate forgery for what it
is’’), the misrepresentation in the May 8, 1990 letter of a $60
million profit was not made in such a deceptive manner.
When the Board decided in Midland National that ‘‘we
will not set elections aside on the basis of misleading cam-
paign statements,’’ but will ‘‘intervene in cases where a
party has used forged documents which render the voters un-
able to recognize propaganda for what it is,’’ 263 NLRB at
133, the Board stated some major considerations.
One was to ensure ‘‘the certainty and finality of election
results, and minimize unwarranted and dilatory claims attack-
ing those results.’’ A second was that ‘‘As long as the cam-
paign material is what it purports to be, i.e., mere propa-
ganda of a particular party, the Board would leave the task
807DAYTON HUDSON CORP.
of evaluating its contents solely to the employees.’’ 263
NLRB at 131. A third is that the Board has ‘‘long viewed
employees as aware that parties to a campaign are seeking
to achieve certain results and to promote their own goals.
Employees, knowing these interests, could not help but greet
the various claims made during a campaign with natural
skepticism.’’ 263 NLRB at 132.
In the present case, shortly before the May 11, 1990 elec-
tion, each bargaining unit employee received a letter through
the mail in an envelope with the UAW Region 1A return ad-
dress. The letter, dated March 8, 1990, contains arguments
against the Company and urges a yes vote for the Union. It
bears the printed signature of the Union’s organizing com-
mittee at the Westland mall store, ‘‘Your Fellow Workers.’’
The letter, as found, contains a gross misrepresentation. It
states that the Company ‘‘claimed a profit of OVER 60 MIL-
LION DOLLARS in our Westland Hudson’s store alone last
year’’ (emphasis in original), whereas the total sales in 1989
were $52.5 million and the profits were only $1.4 million.
In agreement with the General Counsel and the Union, I
find that an employee reasonably could be expected to recog-
nize the letter as union campaign propaganda. It was re-
ceived from the UAW Region 1A, it bore the printed signa-
ture of the Union’s organizing committee, it was critical of
the Company and its antiunion ‘‘scare tactics,’’ it was re-
ceived shortly before the election, and it concluded: ‘‘VOTE
YES FOR THE UAW.’’
As the Board specifically held in Midland National, as
quoted above, ‘‘[W]e rule today that we will no longer probe
into the truth or falsity of the parties’ campaign statements,
and that we will not set elections aside on the basis of mis-
leading campaign statements.’’
The only basis for setting aside the election on the basis
of the May 8, 1990 letter would be to probe the authorship
of the letter, which culminated the organizing committee’s 4-
month campaign in the store for the Union (since January
1990).
Such a probe would undercut one of the Board’s major
considerations in adopting the Midland National rule, to en-
sure ‘‘the certainty and finality of election results, and mini-
mize unwarranted and dilatory claims attacking those re-
sults,’’ as quoted above.
In the printed signature on the letter, the Union’s orga-
nizing committee was described as ‘‘The Westland Employ-
ees Organizing Committee.’’ If such a probe of authorship
were made, should the Board require the drafting or approval
of the letter by all members of the committee, or by only one
or two of the committee leaders? Or, if Director King, As-
sistant Director Westfall, or another paid member of the staff
who assisted in the union campaign prepared the letter,
should the Board require expressed and not merely tacit ap-
proval, and if so, by some or all of the committee members?
I note that it is only the Company, not any member of the
committee, that has challenged the campaign letter as decep-
tive.
The Board would probably consider such a probe of the
authorship of campaign literature—distributed with at least
the tacit approval of the person or group whose signature ap-
pears on it—would be setting a bad precedent. For example,
it would seem most unwise, in the absence of any indication
of deception, to probe the authorship of a campaign letter
issued in the name of a busy company president or store
manager, to determine whether he granted his approval of the
wording if the letter were prepared by a personnel manager,
attorney, or outside consultant.
b. Under the court’s standards
I find that similarly under the court’s standards in Van
Dorn (that the misrepresentation —whether or not a for-
gery—was ‘‘so pervasive’’ and the ‘‘deception so artful’’
that employees are rendered ‘‘unable to separate truth from
untruth,’’ affecting their right to a ‘‘free and fair choice’’),
the misrepresentation of company profits in the May 8, 1990
letter was not made in such a deceptive manner.
Although the misrepresentation was gross, the court in Van
Dorn, as quoted above, specifically held that ‘‘We agree with
the Board that it should not set aside an election on the basis
of the substance of representation alone, but only on the de-
ceptive manner in which representations are made.’’
In the present case, in the absence of any indication that
the Union’s organizing committee did not give at least its
tacit approval for the May 8, 1990 letter being issued in its
name, I find that the authorship of the letter by a paid union
representative who was assisting in the campaign at the
Westland mall store did not constitute misrepresentation ‘‘so
pervasive’’ and the ‘‘deception so artful’’ that employees
were rendered ‘‘unable to separate truth from untruth.’’
Although given the opportunity in the hearing before the
hearing officer, the Company offered no evidence that the
prounion message in the May 8, 1990 letter was not consist-
ent with the sentiments of the Union’s organizing committee
(which had been campaigning in the store for the Union for
4 months), that the employees were misled into believing
that the prounion statements in the letter were not obviously
campaign propaganda, or that the employees would have any
reason to believe that the organizing committee members
would have any special knowledge of company profits.
The Company offered no evidence that the Union’s prepa-
ration of the letter for the organizing committee in any way
rendered the employees unable to separate truth from untruth.
Even if employees believed that the Union would not be as-
sisting the organizing committee by preparing campaign lit-
erature for it and believed that the committee members them-
selves composed and reproduced the long letter unassisted—
although the letter was mailed to the employees in envelopes
bearing the return address of the Union’s regional office—
there was nothing in the letter that would cause the employ-
ees to believe that the committee members would be more
knowledgeable about the Company’s profits than the Union.
Moreover, among all the campaign propaganda, this was
one false statement in one long letter. It was neither a ‘‘per-
vasive’’ nor an ‘‘artful’’ deception.
I therefore find, on reevaluating the May 8, 1990 letter in
light of the court’s reaffirmation of Van Dorn, that the letter
did not contain ‘‘misrepresentation and deception pervasive
and artful enough to interfere with employees’ fair and free
choice to such an extent as to require a new election.’’
CONCLUSIONS OF LAW
1. Because employee organizer John Madgwick’s belated
claim that he forged authorization cards is a ‘‘total fabrica-
tion,’’ as found, there is no basis for setting aside the May
11, 1990 election on the Company’s allegation that the
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Union forged authorization cards to create a false picture of
the extent of union support.
2. A reevaluation, in light of the court’s reaffirmation of
Van Dorn, reveals that the misrepresentation of company
profits in the May 8, 1990 letter was not ‘‘so pervasive’’ nor
‘‘deception so artful’’ that the employees were rendered
‘‘unable to separate truth from untruth,’’ and did not inter-
fere with the employees’ fair and free choice to such an ex-
tent as to require a new election.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The National Labor Relations Board reaffirms its May 15,
1991 bargaining order.