J. A. Conley Co.Download PDFNational Labor Relations Board - Board DecisionsFeb 12, 1970181 N.L.R.B. 123 (N.L.R.B. 1970) Copy Citation J. A. CONLEY COMPANY 123 J. A. Conley Company and Retail Clerks International Association , Retail Clerks Union Local No. 31 , AFL-CIO. Cases 8-CA-5155, 8-CA-5191, and 8-CA-5286 February 12, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On June 13, 1969, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs,, and the entire record in this proceeding, and hereby adopts only those findings,' conclusions, and recommendations of the Trial Examiner which are consistent with the following: I 1. The Trial Examiner's finding that Respondent violated Section 8(a)(1) by its part in the campaign to revoke the employees' designations of the Union as their bargaining representative is based only on his finding that Respondent used Martin "to urge and assist the employees to recover their union cards and to sign a petition repudiating the union as their representative." The record reveals not only that (as found, by the Trial Examiner) Respondent authorized Martin as its agent in this effort, but also that Martin thereafter communicated to the employees her conversations with management representatives and the interest of the latter in the revocation campaign. Thus, Martin testified without contradiction that in her speech of August 27 urging employees to recover their union authorization cards, she informed them of her-- telephone conversation with Jason, vice president of Respondent. She told them that the Company did ' In the absence of exceptions , we adopt , pro forma, the Trial Examiner's findings that certain conduct alleged in the complaint and discussed by the Trial Examiner did not violate Sec 8 (axl) of the Act not want a union, that Jason was disappointed that some of them had signed union cards, and that it was important to get them back. Martin further testified that, in urging Debbie Dillon to recover her union card, "I told her about Mr. Jason's conversation on the phone, and I told her she must get the union card back." This latter conversation the Trial Examiner found to be an infringement of Dillon's rights and a violation of Section 8(a)(1). By urging Martin to undertake a campaign against the Union, Respondent must be considered to have authorized, and to be responsible for, her behavior. Since Martin, in assisting and encouraging employees to repudiate their union designations, identified herself to other employees as a spokesman for Respondent, as in fact she was, and, in that role', conveyed to those employees Respondent's keen displeasure about their union affiliation, we find that Respondent has, through the conduct of its agent, engaged in conduct violative of Section 8(a)(1). See N L R B. v. Birmingham Publishing Company, 262 F.2d 2 (C.A. 5). 2. The Trial Examiner found that Respondent's discharge of employees Judie Martin and Shirley McClellan on December 9, 1968, was violative of Section 8(a)(3) of the Act. He also found that, based on the record as a whole, Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Retail Clerks Union Local No. 31 on October 18, 1968. For the reasons stated below, we do not agree. Respondent operates several department stores in Ohio, one of which, in Mansfield, Ohio, opened on August 28, 1968. Even prior to the time the store actually opened, the Union was attempting to organize the employees. Judie Martin, an alleged discriminatee, became an active and vocal opponent of the Union. The Trial Examiner found that, on August 27, she volunteered her services to Respondent in a campaign to defeat the Union. Thereafter, with the knowledge and support of the Respondent, Martin made several speeches to the employees, urging them to recover any cards signed by them. Subsequently, Martin had a change of heart and began openly soliciting cards for the Union. About October 15, she was approached in the store by Assistant Store Manager Charles Church, who asked her how many cards she had obtained. She told him 35. Two similar incidents occurred between employee Shirley McClellan and Church around the same time. McClellan told Church that the union campaign was going along "fine." One day in late October, both Martin and McClellan parked their cars in the driveway area directly in front of the store, where parking was expressly forbidden, and refused to move them when requested to do so by store manager Lehman. At first, they refused to give any reason for their action, but Martin eventually told Lehman that they feared slashed tires and paint thrown on their cars. 181 NLRB No. 20 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent testimony was introduced to the effect that such threats had been made by employees because of Martin's and McClellan's prounion activity. The record reveals that at the time they were parked directly in front of the store, each of their cars had stickers pasted in the windows which urged union sympathizers not to shop at Conley's. As a result of their refusals to move their cars, Martin and McClellan were each suspended for a week by Respondent; the complaint does not allege that the suspensions were discriminatorily motivated. Thereafter, they returned to work and were employed without incident until December 9, 1968, when both were discharged in circumstances described below. On Friday, November 29, McClellan was absent from work all day and presented a doctor's statement upon her return. One week later, on Friday, December 6, McClellan was an hour late to work. She had a doctor's excuse for this absence also. On the preceding day, Thursday, December 5, McClellan approached Lehman to ask his permission to take the following Saturday off. Lehman, by that time, was apparently a district manager and no longer directly in charge of the store. Martin and Dillon were present during the conversation. According to McClellan, Lehman gave her permission. She then asked if it would be all right with him if she was not able to return for work on Monday. According to McClellan, Lehman answered yes. Lehman, on the other hand, testified that when McClellan approached him about taking Saturday off, he told her he could see no complications in it, but that she should ask Davis, the store manager, who was responsible for the work schedule. As discussed more fully below, McClellan never did contact Davis. Lehman also testified that he did not recall McClellan asking him about not working on Monday. Martin partially corroborated McClellan's testimony; according to her, Lehman told McClellan it was fine if she took Saturday off. When McClellan said she might be an hour late on Monday, Lehman said that that would be all right. Martin's testimony thus differs somewhat from McClellan's version of the discussion about her possible Monday absence. Dillon's version of the conversation was that Lehman "seemed to indicate that it was O.K...." if McClellan took Saturday off. However, she did not hear the end of the conversation. McClellan's testimony, therefore, was that Lehman gave her unconditional permission to take both Saturday and Monday off. This evidence conflicts with Lehman's testimony that he told McClellan to put the request to Store Manager Davis. The Trial Examiner does not definitively resolve this credibility problem. He states that "[w]hether or not [McClellan] was supposed to tell Davis after having spoken to both Lehman and Church is not clear . . . . Since neither Church nor Davis were called the situation rests there." Thereafter, however, the Trial Examiner concludes that McClellan had received "tentative" approval from Lehman for her absence on Saturday, and states, "I do not find her absence unauthorized." By use of the word "tentative," we take it that the Trial Examiner means "incomplete" or "conditional" approval. On the basis of the record, this could only mean clearing the matter with Davis. There is thus an inconsistency between these statements of the Trial Examiner. On the basis of the evidence set forth above, we conclude that the only reasonable inference is that Lehman was telling the truth insofar as he testified that McClellan was to clear her proposed day off with Davis. It would appear from McClellan's own testimony that she felt obligated to secure the approval of Davis on Friday, as Lehman testified that he had instructed her, because she instead, on that day, broached the matter to Church, the assistant store manager. Thus, McClellan says she told Church that Lehman had given her permission to take time off. According to McClellan, Church answered that as long as Lehman had given her permission, he saw no reason why McClellan had to talk to Davis.' As found by the Trial Examiner, McClellan never did see Davis on Friday, even though he came into the store later in the day while she admittedly was still there. In sum, McClellan had received the "tentative" approval of Lehman, but failed to follow it up by notifying Davis, as she had been instructed to do. We find that the evidence supports the conclusion that McClellan's Saturday absence was unauthorized.3 At 4 p.m. on December 9, McClellan called the store and was told by Davis that she was discharged for being absent on Saturday and for being tardy. In Martin's case, the next incident of insubordination after the October parking incident occurred on Friday, December 6. Martin, who was stocking a shipment of merchandise on the shelves, asked Davis for someone to assist her. When Davis declined this request, Martin left the area, telling Davis that the shipment would just "sit on the floor" until he sent her some help. Shortly thereafter, Davis sent another employee to do the stocking. Martin testified that she was not feeling 'Church 's answer to McClellan that, as long as Lehman had given her permission , she need not clear it further with Davis, assumes that Lehman had given unconditional permission to McClellan. From this answer of Church's, it appears that McClellan misrepresented to Church what Lehman had said , and therefore , assuming that McClellan gave an accurate version o. Church 's statement , Church 's approval of McClellan's course of conduct should not be considered binding on Respondent 'She was also absent all day the following Monday, even though she admittedly was only a half mile from Respondent 's store at 2 p.m Relying on Lehman 's sworn statement "We had pretty much made our minds up before Monday to fire her McClellan's absence on Monday only added fuel to the flame ," the Trial Examiner finds that McClellan's unauthorized absence Monday was immaterial to the issues raised by her discharge This seems to be a proper appraisal of the evidence J. A. CONLEY COMPANY 125 well that day and that she had told Davis so in making her request for help. On Monday, December 9, Martin was discharged on the asserted ground of insubordination, despite her apology and request for reconsideration of the decision. Although he noted that the evidence was "rather meager," the Trial Examiner found that the discharge of Martin and McClellan violated Section 8(a)(3) of the Act. In Martin's case, his decision was based on Martin's prominence in Union activity, Respondent's "well established" hostility to the Union, and the "essentially trivial" nature of the insubordination which had allegedly prompted the discharge. The record does not appear to bear out the Trial Examiner's assertion that Respondent had a proven hostility to the Union. For the most part, Respondent seems to have adopted a "hands off" attitude toward the Union. In April, as noted by the Trial Examiner, Respondent sent all its store managers a memorandum cautioning them against coercive activity. In September, Respondent wrote a letter to all employees advising them of their right to organize; thereafter, 10 to 12 employees wore one or more union buttons in the store. In October, Martin and McClellan freely, and without apparent fear, answered Church's questions about how the Union was doing. During the organizing period, a union agent was allowed to move around the store without hindrance. The only demonstration of true hostility is the October 17 statement, attributed to Lehman by McClellan, that if the Union got in, he would rule the store with an "iron hand." McClellan testified that she overheard Lehman make this statement to Martin.4 Furthermore, as to the "essentially trivial" nature of Martin's insubordination, we believe that her refusal to work in December must be considered against the background of her refusal to move her car in October. As for McClellan, we have found that she was absent without authorization on a Saturday, probably the busiest day in a discount store, and had also committed an act of insubordination in October. As the Trial Examiner noted, Respondent could have seized on the October car parking incidents of insubordination by these two employees if it had been seeking a pretext for discharging them. Instead, it merely suspended both employees for I week. Thereafter, the two employees were again guilty of breaches of work discipline. Taking these facts together with all fair inferences to be drawn from the record, we cannot say that the General Counsel has satisfied his burden of proving by a preponderance of the evidence that the discharges were unlawfully motivated. Martin and McClellan were employees of short tenure who had each engaged in unacceptable conduct on two occasions in their limited periods of employment. It seems clear that Respondent was aware of their efforts on behalf of the Union. It also is apparent that Respondent was opposed to unionization of its employees. We cannot, however, ignore the fact that, overall, Respondent's opposition to the Union was not expressed in such a fashion as to indicate that Respondent would engage in unlawful discrimination in order to thwart the Union, nor can we overlook the substantial nature of the derelictions of the employees. We shall accordingly dismiss the complaint insofar as it alleges that McClellan and Martin were discharged in violation of Section 8(a)(3) of the Act. 3. The Trial Examiner also found that Respondent violated Section 8(a)(5) by refusing to bargain with the Union on October 18, 1968, and he recommended the issuance of a bargaining order. In its decision in N L.R.B. v. Gissel Packing Co.,' the Supreme Court addressed itself to the question of the appropriateness of a bargaining order, where, as here, an employer has refused to bargain with a union holding cards from a majority of employees and has engaged in unfair labor practices which, though not "outrageous" and "pervasive," still might have the tendency to undermine majority strength and impede the election process. The Court stated: In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue.' With this standard in mind, we conclude that the few instances of misconduct by Respondent in violation of Section 8(a)(1) were not sufficiently flagrant to prevent the holding of a fair election, and, consequently, that a bargaining order is not required in order to remedy their effects.' We shall, accordingly, dismiss the complaint insofar as it alleges that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain upon request with the Union. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the 'While Martin herself did not corroborate the "iron hand" remark, the Trial Examiner credited McClellan's testimony. 395 U.S. 525 'Id at 614 'See Schrementt Bros. Inc. 179 NLRB No. 147 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recommended Order of the Trial Examiner, as herein modified, and orders that Respondent, J. A. Conley Company, Mansfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete the following paragraphs from the Trial Examiner's Recommended Order: 1(d); 1(e); 2(a); 2(b); 2(c). 2. Renumber paragraphs 2(d) and 2(e) to read, respectively, 2(a) and 2(b). 3. Modify the Appendix entitled "Notice To All Employees" by deleting the fourth, fifth, and sixth indented paragraphs, and by substituting the word "late" for the word "later" in the third indented paragraph. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner Upon charges filed in Case 8-CA-5155 on September 19, and October 24, 1968, in Case 8-CA-5191 on October 24, 1968, and in Case 8-CA-5286 on January 3, 1969, by Retail Clerks International Association, Retail Clerks Union, Local 31, AFL-CIO, the General Counsel issued complaints dated October 29, 1968, December 27, 1968, and February 11, 1969 The cases were consolidated by order of February 14, 1969, but the complaints were not. The complaint and amended complaint in Case 8-CA-5155 alleges violations of Section 8(a)(1) of the Act The complaint in Case 8-CA-5191 alleges violations of Section 8(a)(5) and (1) of the Act. The complaint in Case 8-CA-5286 alleges violations of Section 8(a)(1) and (3) of the Act. The answers of the Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard by me at Mansfield, Ohio, on April 15 and 16, 1968. At the conclusion of the hearing the parties were given leave to submit briefs and briefs were received on May 21, 1969.' Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation operating retail department stores throughout the State of Ohio. The store involved in this proceeding is located in Mansfield, Ohio. In the course of its operations of its stores , Respondent receives revenues in excess of $500 ,000 annually. Respondent receives at its stores materials from points outside the State of Ohio valued in excess of $50,000 annually. Respondent is engaged in commerce within the meaning of the Act. 'The transcript of the proceedings was not received by the Trial Examiner in Washington until May 9 which accounts in part for the delay in receipt of briefs and issuance of Decision II LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act III. THE UNFAIR LABOR PRACTICES A Violations of Section 8(a)(1) The complaints allege in substance that Respondent violated Section 8(a)(1) of the Act by: (a) Inducing its employees to withdraw from the Union (b) Interrogating employees with respect to their union activity. (c) Threatening its employees that the store would be run with an "iron hand" and that employees would be discharged if they were late for work more than three times if the Union was successful in organizing the store (d) Promulgated and maintained in effect an unlawful no-solicitation rule (e) Engaged in surveillance of employees' union activity or in acts designed to give the impression of such surveillance These will be discussed seriatim (a) Judie Martin testified that she was employed by Respondent from July 28, 1968, until December 9, 1968 3 On or about August 27 she became aware that union organizers were obtaining signatures of employees to union cards on the parking lot. On that same morning she had a conversation with John Lehman, district manager for Respondent, in the drug department. Lehman asked her if she knew of any union activity and when she told him she did he stated the Respondent would not like it and asked her is she had any ideas "on what we should do." He then told her they would get together in an hour and discuss it Later Lehman took her to his office and said she was wanted on the telephone. On the telephone was John M Jason, vice president of Respondent. Jason told her he had heard of union activity in the store, asked her if she knew how Respondent felt about it and told her they were counting on her help. She offered her help Later that day she had a conversation with Lehman in the stockroom in which he asked her if she had thought of anything and she told him a couple of employee meetings might help and asked if she could call one the next morning. He said that would be fine and gave her permission to circulate about the store "against the Union." Lehman also told her that if a majority of the employees had signed cards the Union would organize the store and asked her to have the employees get their union cards back. Martin held two meetings with the employees, the first about closing time on August 28 and the second shortly after the store opened on August 29. The meetings were held in a coffee area open to the public. At her first meeting Martin told the employees "how bad the Union was" and asked them to get their cards back.' At the meeting the next morning she repeated this speech. Martin testified that on the evening of August 28 she told an employee named Debbie Dillon to get her card back, that Dillon went to the parking lot and came back 'The Mansfield store opened on August 28, 1968 'Martin testified that Lehman was standing by the cash registers about 30 feet away during this speech In view of Lehman's testimony that he checked the registers for closing I attached no significance to her testimony on this point Management is not compelled to abdicate its functions because of pro or antiunion activity in Its stores J. A. CONLEY COMPANY and reported that the union representative had refused to return her card. On that same night three "boys" left the store to get their cards back and were refused.4 On the next day Martin had a conversation with Lehman in which she told him the Union was refusing to return the cards and suggested that a petition be circulated among the employees repudiating the Union After calling Respondent's attorney, Lehman, told her to go ahead. Martin then composed a petition, received permission to have it typed and typed it herself in the office in the presence of Lehman The petition (G C Exh. 2) was signed by 44 employees and reads: We, the undersigned employees of the J. A. Conley Store, 985, Ashland Road, Mansfield, Ohio, wish to inform you that we are not interested in a union in our store. We are quite satisfied with the managements attitude toward its employees, our salary, our fringe benefits, our raises, and our seniority rights. There is no discrimination in this store regardless of age, color, or sex or working experience. Everyone is treated as individuals. We do not need a union as shocking as it may seem to you. As for the many of us who signed cards we wish to have them returned in fact, we've asked for them and been refused, this letter will stand as a retraction for all who signed the cards. Not one of the employees signed below are interested or will be interested in a union. We also wish to inform you that we do not want to be bothered at work or in the parking lot or at home by your union men or the persistent calls we have been receiving at our homes. The management has no knowledge of this letter. This is our own idea and we are in firm and complete agreement of the above statements. Again we are all very happy with Conleys and we do not need a union or more important want a Union store. Martin had made four copies of the petition and after they had been signed, she reported to Lehman and, in the presence of Janet Pitzer, received permission to mail one copy to Jason and one to the Union The next day Martin met Jason at the store and was congratulated by him. Pitzer testified that she had a telephone conversation with Martin the night before the petition was circulated and that the conversation lasted for about 3 hours. In this conversation they discussed what the petition should contain. Martin mentioned in that conversation that she had talked to Jason and that "we decided what we could do." The next day Pitzer signed the petition by the timeclock and also observed other employees signing it. J. A. Conley, president of J. A. Conley Stores, testified that on or about April 10, he prepared and circulated to the district stores a memorandum (Resp. Exh. 1) regarding Respondent's position with respect to union organization of its stores. This memorandum read- If at any retail store outlets any person representing himself to be an agent of a labor union or organization approaches either a store manager, assistant manager or other employee, the following procedures should be followed: The union business agent should be taken into the private office, together with the assistant manager, district manager, store manager, supervisor or department head The business agent should be escorted into the office, treated courteously and asked what his business is. In the event he says he would like to discuss 'Lawrence Wilnitz, field representative for the Union , testified that the cards were not returned after request 127 the matter or organizing the store employees, your response should be "You are free to organize them so long as it is not on company time." Ask him for his business card, get his name, address and telephone number In the event the business agent states that he has 30 percent or better of the store employees who have signed cards authorizing the union to represent them, you should state that you have no authority to discuss the matter further but that you will immediately call the company's attorney and put him in touch with the company's attorney. You should make no further statements to the agent nor to the employees. Any statements should come through the attorney In the event the agent states that he has better than 50 percent of the employees signed up with union authorization cards, you should go through the same procedure as set forth above. Should the agent insist upon immediate union recognition, you must insist that he contact the company's attorney or that you will immediately put him in touch. In the event that the business agent says that he has better than 50 percent of the company's employees signed up and that he will call the employees off the job unless the company immediately recognizes the union advise him again that you have no authority for such type of recognition of the union Should the agent persist and insist that he will call the employees off the job and should he call the employees off the job, and should some, most or all of them leave, the store manager and supervisory help should attempt to keep the store open in order that the people shopping in the store could check their merchandise through the registers. An announcement over the public address system simply to the effect that all checkouts should be made through number 1, 2 or 3 register, whichever the case may be, and that the store is temporarily short of help. In the event it is impossible to staff the store on this basis, it would be necessary naturally to lock the doors. By all means make no statements concerning the union or any employees union activity after you have once received notice of a demand for recognition by the union. Do not promise employees anything different from what they have previously had in order to prevent the union from coming in. Do not engage in arguments or discussions with any employees or union representatives. Make no statements nor in any way indicate to any employees the use of threats or duress in order to prevent the employees from joining a union. All supervisory and management personnel should understand that employees do have the right to select an appropriate bargaining agent by way of a labor union if they so desire. They can require an election by the employees in order to determine whether or not that union. will represent the employees, whether another union or whether no union will represent the employees. Employees have the right to a free and secret election to decide whether or not they will have a union representative. A majority vote is required before such recognition can take effect. In the event an election is held and less than a majority vote is received by the union, there can be no more union activity or request for recognition for at least one year. Although the Mansfield store was not in operation at that time Conley testified that Lehman received a copy of this memorandum. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jason testified that he received Resp Exh. 1 and discussed it with all district managers and that he also discussed it with Lehman, prior to the opening of the Mansfield, store, and with Burns, Church and Gardner, identified as supervisors at the Mansfield store. About I week before the store opened, Jason became aware of union activity at the store when he received a copy of G. C. Exh. 2, the repudiation petition. (About one-half hour before this he received a telephone call from Lehman advising him that Lehman had received a copy of the petition). About 5 p.m. Mason called Mrs. Martin. (He had received calls from Lehman stating the employees were "bugging" about their union cards and Zink, his attorney, told him what to do.) Mason then called Martin and read the following statement to her: We understand there has been some union activity going on in our store and the Union is attempting to organize our employees You have had previous experience with this Union and we would appreciate your passing your experience on to your fellow employees. We don't think they can get a majority. Our doors are always open. During this conversation Martin asked Mason if she could have Janet [Pitzer] and Shirley [McClellan] work with her. Jason's answer does not appear in the record. Lehman testified that he had been general manager of the Mansfield store from its inception until January 1, 1969. In August, Martin came to him on several occasions and told him the Union was organizing the employees After telling her he could not discuss the situation with her and after receiving questions from other employees Lehman called Conley's office and asked for advice. He particularly mentioned Martin and her questions. Later Jason called the store and asked to speak to Martin. He later received from Martin a copy of G. C. Exh. 2. Lehman testified that he did not help her prepare it, did not know where or by whom it was typed and did not know it was being circulated. Relevant to this issue is the fact that Martin received a pay increase for the last week in September and the first week of October of 20 cents per hour. This made her the highest paid coordinator in the store. (b) Martin testified that in October she had a change of heart and became active on behalf of the Union, distributing union authorization cards to employees. On or about October 14 and 15• she obtained signatures openly in front of Charles Church, assistant store manager. Church came to her in the break area and asked her how many cards she had obtained and she told him 35. On August 27 Lehman told Martin that he had heard there was union activity going on in the store and she told him he was right. Later she had a conversation with Jason, supra, in which he told her there was union activity going on in the store and she agreed. He also told her she knew how, `,`we" felt about it On or about , October 15, McClellan testified that Church asked her how the union was doing and if she had signed up any more employees and she told him "yes." Again on October 17, Church asked her how the Union was going and she told him fine Martin's request to Debbie Dillon, supra, that she get her card back following her interrogation of Dillon, is also alleged as unlawful. (c) Martin testified that on October 17 she had a conversation with Lehman in which he asked her why she had changed her mind (this was after Martin had started soliciting on behalf of the Union) and told her that if she was late two times she would be fired. When,she asked him if he meant her he told her he meant a cashier (unidentified). McClellan testified that she overheard the-conversation and that Lehman told Martin that if the union got in he would rule the store with an iron hand and that anyone who was late three times would be fired. Lehman could not recall any mention of "iron hands" in any conversation with Martin and denied that he ever threatened her that any employee who came in late three times would be discharged. On further examination he denied making either statement. (d) On November 1 Respondent posted a sign at the only entrance to the store which read "No solicitation allowed." The General Counsel's own witnesses testified that this sign was directed to outside solicitors and had never been enforced against employees.' (e) The testimony to support this allegation is that of Wilnitz, who stated that on his visits to the store he would go to the coffee area and walk around the store and greet people During these visits a manager trainee named Burns photographed him or at least had a camera in his possession. This is the only evidence of "surveillance" offered by the General Counsel. B Conclusions as to 8(a)(1) (a) This allegation presents a difficult problem because, as I see it, there are inherent inplausibilities in the testimony of both the General Counsel's and Respondent's witnesses It seems improbable to me that Respondent would engage an employee of recent employment (as were the other employees) to promote an antiunion campaign within the store, particularly in view of Conley's instructions. These prescribed a careful course in the event of union organization. On the other hand, I find it equally difficult to believe that Martin would embark on such a course without the approval and encouragement of management. But the fact that the problem poses difficulty does not relieve it of the requirement of solution. I think that the evidence does establish that Martin volunteered her services to Lehman in a campaign to defeat the Union and that Respondent accepted the offer. I cannot accept Lehman's testimony that Martin continually came to him in August to tell him of union organization and that he told her he could not discuss the situation According to Martin's testimony, and I credit her on this, she first became aware of union activity on August 27 and had her first conversation with Lehman concerning it on that date and that on the same day she received a call from Jason.' Later she received permission from Lehman to call some meetings and two were held I find no evidence that she made any coercive statements to employees at either of these meetings.' Following the meetings, she conceived the idea of a petition revoking the 'Reference is made to the testimony of Judith Martin that the sign was directed to outside solicitors and was not directed to employees Pitzer testified that the employees asked that the sign be put up so that "they" could not bother the employees when the Respondent refused to answer any questions and the employees could not get any answers By "they" Pitzer testified she meant the union representatives `Crediting Jason 's statement as to what he told her on the telephone, upra , he encouraged her to dissuade her fellow -employees from union activity 'I do, however , rind that her direction to her fellow -employees that they should get back the authorization cards they had signed for the Union J. A. CONLEY COMPANY 129 authority of the Union. Again I cannot believe that Lehman and Jason did not have foreknowledge of the petition and I accept Martin's testimony that she told him a revocation petition should be prepared and that Lehman, after consulting an attorney, told her to go ahead I do not believe Lehman's testimony that he did not know she typed the petition in the store's office. Similarly, I find it impossible to believe, in view of the tense situation at the time, that Lehman did not know that it was circulated and signed within the store during working hours. While I do find that Respondent was entitled to constitute Martin its agent to make antiunion but noncoercive speeches to its employees I find that by also using Martin to urge and assist the employees to recover their union cards and to sign a petition repudiating the union as their representative, it exceeded the permissible limits of Section (c).8 I find the facts clearly distinguishable from Southern Tours, Inc , 167 NLRB No. 42, where the Board held Respondent had neither authorized nor had knowledge of the circulation of an antiunion petition. Here I find both authorization, at least to the extent of consent, and knowledge. By thus participating in the employees' revocation of the authority of their bargaining agent Respondent violated Section 8(a)(1) of the Act' (b) I do not find Church's interrogation of Martin as to how many union cards she had obtained unlawful. Martin testified that she had obtained signatures openly and in the presence of Church and replied without hesitation that she had 35 cards. It is difficult to imply coercion from such testimony. I do not find unlawful interrogation in Jason's telephone conversation with Martin on August 27. All that Jason told her was that he had heard there was union activity in the store and that Respondent was opposed to it. At this time Martin indicated her opposition to the Union and this was, in fact, the reason Jason asked to speak to her and ask for her assistance. McClellan's testimony as to interrogation by Church is similar to that of Martin's. McClellan's activity on behalf of the union was not secret and when Church asked her how the Union was going (on two separate occasions) she told him fine. Again a strained effort would have to be made to reach a finding of coercion and the policies of the Act may be effectuated without such straining The conversation between Martin and Dillon on August 28 leads to a different conclusion. It occurred on the evening of August 28 after Martin had made her antiunion speeches on company time and property, thus implying to the employees that she spoke as a representative of management. On her own testimony she asked Dillon if she had signed a union card and when Dillon told her she had, she told Dillon to get it back. I find this clear interference with Dillon's rights and a violation of Section 8(a)(1). Whether the violation lies in the interrogation or the direction to get her card back, or both, is not a matter of high import. (c) I credit the testimony of McClellan that in a conversation between Lehman and Martin he threatened Martin that if the Union got in he would rule the store constituted a violation of Sec. 8(aXi) This is more fully discussed, supra 'in making this finding I also find Respondent constituted Martin as its agent in both the antiunion speeches and in her urging employees to revoke their union designations and in signing the antiunion petition N L R B v American Casting Service. Inc, 365 F 2d 168 (C.A 7) 'Juvenile Mfg Co, 117 NLRB 1513, Marcus Bros. 123 NLRB 33, Holland Mfg Co, 129 NLRB 776 with an "iron hand" and that if anyone was late three times she would be fired. While Martin did not mention the use of the phrase "iron hand" and testified that someone would be fired for being late two times, I do not find these discrepancies sufficient to destroy the credibility of McClellan's testimony. I find these threats of more onerous working conditions and stricter discipline related, as they were, to union activities violated Section 8(a)(1) of the Act. (d) This allegation must be dismissed on the testimony of the General Counsel's own witnesses. The rule was directed to outside solicitors, was never enforced against employees and, according to Pitzer, was put up at their request to avoid the annoyance of outside solicitors. (e) I would recommend dismissal of the allegation of surveillance. The testimony to support it establishes only that Wilnitz was followed about the store on several occasions by Donald Burns, a management trainee, who had a camera in his possession. I do not understand how this constitutes unlawful surveillance of the union activities of its employees. It is recommended that this allegation be dismissed. C. Violations of Section 8(a)(3)• It is alleged that" Judie Martin and Shirley McClellan were discharged because of their union activity and in violation of Section 8(a)(3) of the Act. Both Martin and McClellan were, during the month of October, active in soliciting other employees to join the Union. (The reasons for Martin's change of heart respecting the Union are not divulged by the record except to the extent that she thought that if the employees wanted a union it should be their decision.) Neither Martin nor McClellan appear to have had any trouble with management until October In that month both she and McClellan refused to move their cars from the driveway in front of the store after being directed, to by Lehman The testimony with respect to this incident is confusing but I think it can safely be found that both Martin and McClellan parked in front of the store and refused to move their cars when so directed Both claimed that the reason they parked there was that they had heard rumors that their tires might be slashed In any event, each was suspended for I week, a suspension not alleged to be discriminatory. On December 6, Martin was stocking a shipment in her department and asked Store Manager Davis for help. When Davis refused she told him the shipment would just "sit on the floor" and left the area. About 10 minutes later Dillon was sent to help her. and the shipment was stacked. On Monday, December 9, Martin was called to the office Present were Lehman, Davis, and Church She was handed a letter1I and told she was fired for insubordination. Neither Davis nor Church were called by Respondent. Lehman testified that she was called to the office on December 9, at which time Davis handed her the letter and told her she was fired for insubordination on the previous Friday. He also testified that Martin apologized for the incident and asked for reconsideration which was refused. McClellan's discharge also occurred on December 9 McClellan testified that on Thursday, December 5, she asked Lehman if she could have Saturday off to go to "G C Exh 17 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennessee and that if she could not make it back by Monday would that be all right with him. According to McClellan, Lehman gave her permission for both days. On Friday she talked to Church before Davis came in and Church gave her permission to take off since it had been cleared with Lehman. Her plane from Tennessee was delayed on Monday but McClellan called the store and talked with Martin and asked her to tell management she would not be in. This was about 2 p.m." About 4 p.m. she called the store and talked to Davis who told her she was fired for being absent on Saturday and for being tardy (McClellan testified that she had been an hour late reporting for work on Friday, December 6, but had brought a doctor's excuse.) As in the case of Martin, the cause for discharge rested on narrow grounds. Lehman testified that McClellan spoke to him on Thursday, that he saw no objection to her absence on Saturday but did tell her to take it up with Davis who arranged the working schedules. On Saturday, Davis wanted to know why McClellan was not at work and Lehman then discovered that she had not seen Davis on Friday (Davis had not worked Thursday but had worked Friday although at what hours is not disclosed.) Lehman could not recall that McClellan had told him she might be late on Monday. D. Conclusions as to Violations of 8(a)(3) McClellan and Martin present the difficulties inherent in nearly all alleged violations of Section 8(a)(3) cases, i e , were the reasons given for discharge fictitious and for the purposes of concealing a discriminatory motive, or were they real Whether or not the Trial Examiner might consider them valid is not decisive for if unlawful motive was in part the reason the discharges are unlawful. On the rather meager evidence on which to rest decision I conclude that Martin and McClellan were discharged for their union activity in violation of Section 8(a)(3) of the Act. Martin was the most prominent in union activity among the employees in October as she had been the most prominent in antiunion activity in August. She had told Assistant Manager Church that she had obtained 35 cards. The hostility of Respondent to the Union at this store has been well established. Moreover, the incident which prompted Martin's discharge was essentially trivial. Her request for help appears to have been justified for she was given help some 10 minutes later. Her refusal to continue packing the shipment was perhaps unjustified but certainly understandable and it did not, as I read the testimony, result in any substantial disruption of Respondent' s business . Her apology and her request for reconsideration on the day she was notified of discharge received no response from management. Respondent's decision had already been made The precipitate discharge of an employee known to have been a leader in union activity under such circumstances gives reasonable support to an inference of discrimination. The case of McClellan is equally if not more difficult. There seems to have been an absence of communication as to her request for leave on Saturday. Whether or not she was supposed to tell Davis after having spoken to both Lehman and Church is not clear Lehman testified that he told her to speak to Davis on Friday, she admittedly did not but spoke to his assistant , Church. Since neither Church nor Davis were called the situation rests there. In "McClellan gave no adequate reason for not talking to any representative of management except that she was in a hurry any event she did not call in until 4 p.m. on Monday when she was notified that she was terminated for being absent on Saturday and for being tardy (Unless Davis was referring to her absence on Monday there is no evidence to support the charge of tardiness )' 2 Lehman, however, testified, "We had pretty much made up our minds before Monday to fire her " It thus appears that she was discharged for her absence on Saturday, an absence which had received the approval, however, tentative on Lehman's part, from Lehman and Church. I think it is a matter of common knowledge that Saturday is the busiest day in most discount houses and that unauthorized absence might seriously inconvenience management but I do not find her absence unauthorized. In the face of this finding I think it reasonable to infer that her discharge was motivated by her union activity and therefore violated Section 8(a)(3) of the Act. In making the above conclusions I have given weight to the suspensions of both Martin and McClellan in late October for insubordination. Both had refused to move their cars from their parked area, directly in front of the store's entrance The testimony that there were rumors that their cars might be damaged are untraceable although the evidence is sufficient to establish they had reasonable cause to believe such damage might occur In any event they did disregard Lehman's instructions Had Respondent desired to terminate them for their union activity this provided a ready excuse, although it would not have been free from taint of doubt Nevertheless, balancing all the factors and evidence, I adhere to the above conclusion. E. Violations of Section 8(a)(5) The complaint in Case 3-CA-5191 alleges that Respondent on October 14 and again on October 18 refused to bargain upon request with the Union which represented a majority of its employees in a unit described as follows. All employees working at the Employer's store located at 985 Ashland Road, Mansfield, Ohio, including office clerical employees, but excluding professional employees, guards and supervisors as defined in the Act. The answer of Respondent admitted that the unit was appropriate and I so find. It also admitted that a demand for bargaining had been made on October 14 and 18 and had been refused on the ground that Respondent had a good-faith doubt that the Union represented a majority of its employees in the designated unit." Despite the pleadings, the record indicates that the Union made its demand by telegram dated October 15 (G. C. Exh 56) reading: DEAR MR CONLEY. THIS IS TO ADVISE YOU THAT THE RETAIL CLERKS UNION LOCAL 31 SINCE THE DATE "Two other employees, Hopkins and Nagy, testified that they had been absent without notice and without being disciplined The Trial Examiner rejected an offer of similar proof from Larry Castle At the time Castle was examined the Trial Examiner did not know that tardiness was alleged as a reason for McClellan 's discharge "Respondent's answer referred to the fact that on August 29, 43 of Respondent 's 46 employees notified the Respondent that they did not want to be represented by the Union This presumably refers to G C. Exh 2, suppra , signed by 44 of Respondent ' s employees . Concededly the vast majority of Respondent's employees signed the petition revoking the authority of the Union at that time. J. A. CONLEY COMPANY OF AUGUST 29TH HAS HAD A MAJORITY OF YOUR EMPLOYEES SIGN AUTHORIZATION CARDS, AND FURTHER, SINCE OCTOBER 2ND, 1968, A SUBSTANTIAL MAJORITY OF YOUR EMPLOYEES WORKING AT THE MANSFIELD, OHIO STORE HAS AUTHORIZED THE UNION AS THEIR REPRESENTATIVE BY SIGNING REPRESENTATION CARDS. THEREFORE THE UNION DEMANDS IMMEDIATE RECOGNITION. THE UNION IS WILLING TO DEMONSTRATE THIS MAJORITY BY CROSS CHECK OF UNION REPRESENTATION CARDS AGAINST THE W4 FORMS SIGNED BY EMPLOYEES BY A DISINTERESTED THIRD PARTY. AT THIS TIME, WE WOULD RECOMMEND THAT THIS BE DONE BY ONE OF THE JUDGES OF THE COMMON PLEAS COURT OF RICHLAND COUNTY. WE REQUEST AN IMMEDIATE REPLY TO THIS TELEGRAM. ORIGINAL J A CONLEY COPY PHILLIP FUSCO, AND JOHY LAYMAN JAMES L BARNEY PRESIDENT RETAIL CLERKS UNION LOCAL 31 379 LEXINGTON AVE MANSFIELD OHIO On the same date the Union' s attorney sent a letter directed to James A. Conley, president of Conley Company (G. C. Exh. 57) referring to a demand for recognition made by the Union on August 29 and stating that that demand had been refused . It reiterated that demand for recognition and offered to submit the Union's cards for examination." Respondent ' s refusal was made by letter dated October 18 (G. C. Exh. 58) which read: October 18, 1968 Mr. James L Barney, President Retail Clerks Union Local 31 379 Lexington Avenue Mansfield, Ohio Dear Mr . Barney: We wish to advise you that the company has good reason to believe your union does not represent a majority of our employees As previously indicated to you and to our employees, the company believes that the only way the employees may express their free and independent choice is through a secret election conducted by the NLRB. The company has already taken action in this respect by filing a petition on September 6, 1968, with the NLRB requesting that an election be held. Only through a secret , governmental- supervised election will the employees be able to exercise their freedom of choice in the true democratic way. Very truly yours, J. A. CONLEY COMPANY J. A. Conley James A. Conley, President JAC: cm cc: "The record does not indicate the Union 's demand for recognition on August 29 nor Respondent 's refusal 131 Mr. Philip Fusco - NLRB Mr. John Lehman J A. Conley Co - Mansfield Prior to the request for bargaining on October, Respondent had, after the organizational efforts in August, filed a petition for an election in Case 8-RM-537. The date of filing was September 6.1 1 On September 10, Respondent wrote its employees a letter advising them of the filing of the petition.' 6 On the same day he wrote its employees another letter advising its employees that management could not discuss the election or unions with the employees." The issues squarely presented are whether the Union did, in the period October 14 through 18, represent a majority of Respondent's employees in the unit found appropriate and whether Respondent had a good-faith doubt of that majority. The parties stipulated that on the dates October 14 and 15, 51 employees were employed within the agreed upon unit. (G. C. Exh. 55 ) The General Counsel submitted authorization cards dated on various dates in October up to and including October 16 from 32 employees (the General Counsel claims from 33 but the discrepancy is immaterial) who were employed during that payroll period 11 The Union, on October 15, represented a clear majority of the employees in the appropriate unit. F. Conclusions as to Violations of Section 8(a)(5) The letter from Respondent to the Union dated October 18 gave the reason for its refusal to bargain. (G. C. Exh. 58.) In evaluating the good-faith doubt of the Respondent, I rule out any consideration of the employees' petition revoking the authority of the Union in August. Without holding that an employer may not have a good-faith doubt of a union's majority merely because he has committed other and unrelated unfair labor practices,19 I would not permit the defense where the evidence of good-faith doubt was obtained through his unfair labor practices and resulted directly from them. We come, then, to October It is to be noted that the letter of October 18 gives no reasons for Respondent's doubt nor states the evidence upon which it rests. It makes no response to the Union's request in its telegram for an independent card check supervised by judge of the Court of Common Pleas of Richmond County Without more I would find, in view of its prior frustration of the union's campaign by unfair labor practices, the refusal unlawful. But there is more. Lehman testified that on or about October 22 he removed from his card a placard or sticker printed in black on bright yellow paper (Resp. Exh. 5) reading: "Resp Exh 2 "Resp. Exh 3 "Resp Exh 4. "One card , that of Sue Niswander , was dated on October 16 but the inclusion or exclusion of her card is immaterial. "See Lane Drug Co v N L R B, 391 F 2d 812 (C A, 6), Peopler Service Drug Stores v NLRB , 375 F 2d 551 (C A. 6) 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DON'T SHOP CONLEY'S Conley Employees Don't Want A Union Store They Do Not Want To Be Bothered In The Store Or On The Parking Lot By Union People. Let's Keep Conley's People Happy By NOT Having Union People Shop Conley's Store. Retail Clerks Union Local No 31 AFL-CIO Lehman testified that he had seen similar placards on other cars in the Mansfield area as early as the latter part of September. Respondent also introduced a copy of a letter dated October 7 from the president of Local 710, IUE (Resp. Exh. 6) to the Conley Store, reading: October 7, 1968 IUE, Local 710 157 N. Mulberry St. Mansfield, Ohio J. A. Conley Store 985 Ashland Road Mansfield, Ohio Dear Sir, I have in my possession a copy of a letter from your employees to the Retail Clerks Union. The letter states that your employees are happy in every way, and also that they don't want to be bothered by any union people anytime. Your store has seen fit to locate in a area that strives on unionism. As long as you and your employees have this attitude towards unions your store will not strive as it should. Until your employees are represented by the Retail Clerks Union your store will not be a suitable place to shop. At my request I was instructed to write this letter by the membership of my Local Union "Until the existing situation changes I will continue to urge all union minded people (and anyone else who will listen or read) not to shop at Conley's." President of Local 710, IUE Larry G. Reedy A similar letter from Local 17, United Rubber, Cork, Linoleum and Plastics Workers of America (Resp. Exh 7) dated October 21, read: October 21, 1968 Mr. John Layman, Manager Conley's Department Store 985 Ashland Road Mansfield, Ohio Dear Sir: Local 17 United Rubber Workers, representing 1450 members, voted unanimously at our October Membership Meeting to support the Retail Clerks Union's Boycott by not shopping at Conley's. We hope that you and your employees can recognize the benefits of working together in a union store and reach an agreement in the near future so that we can inform our members the boycott has been lifted and encourage them to shop in your Union Store Hoping for your cooperation, I am - Very truly yours Harold 0 Boyce Harold O. Boyce, President LOCAL NUMBER 17 URCLPWA. HOB:McD opeiu 339 cc James Barney In reaching conclusions as to Respondent's state of mind on October 18 as to its reasons for refusal to bargain the letter dated October 21 and Lehman's own experience with the placard on or about October 22 must be disregarded since they occurred after the refusal. There is, on the other hand, Lehman's testimony that he observed these signs during September. There is no evidence that Lehman's knowledge of these placards was communicated to top management of the stores Conley signed the letter of October 18 and this letter, while expressing a doubt of the Union's majority, makes no mention of the placard It is therefore difficult for me to believe that the placard played any part in Respondent's decision not to recognize the Union. Nor is there any evidence that the letter of October 7 from Local 710, IUE, was communicated to Conley. Conley's own testimony makes no mention of the letter from Local 710 as influencing his decision.2° I therefore find that Respondent, by refusing to recognize the Union on October 18, violated Section 8(a)(5) and (1) of the Act IV. THE REMEDY Having found Respondent engaged in and is engaging in certain unfair labor practices I shall recommend that it cease and desist from same and take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent discharged Judie Martin and Shirley McClellan because of their union activity and for the purpose of discouraging membership in a labor organization, I shall recommend that Respondent offer them full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them. Backpay shall be computed in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: "Both the Union's telegram and the letter from its attorney were addressed to Conley at Canton, Ohio, its principal place of business Conley was a direct and forthright witness yet he was not interrogated as to his reasons for refusing to recognize the Union. His letter of October 18 is Respondent's only response J. A. CONLEY COMPANY 133 CONCLUSIONS OF LAW 1. By assisting and encouraging employees to revoke the authority granted by them to the Union to represent them ; by interrogating an employee as to her union activity and at the same time asking her to get her union card back and by threatening employees that discipline would be stricter if the Union got in , Respondent violated Section 8(a)(1) of the Act. 2. By discharging Judie Martin and Shirley McClellan because they engaged in union activity , thereby discriminating against them to discourage union membership , I find Respondent violated Section 8(3) and (1) of the Act. 3. By refusing to bargain in good faith with the Union as the designated bargaining representative of its employees in the unit found appropriate herein, Respondent has violated Section 8(a)(5) of the Act 4. The appropriate bargaining unit is: All employees working at the Employer ' s store located at 985 Ashland Road , Mansfield , Ohio, including office clerical employees , but excluding professional employees , guards and supervisors as defined in the Act 5. The aforesaid unfair labor practices are unfair labor practices as defined in Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is hereby ordered that J. A Conley Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Assisting or encouraging its employees to revoke the authority granted by them to the Union to represent them for the purposes of collective bargaining. (b) Interrogating any employee as to her union activity and at the same time asking her to get her union card back. (c) Threatening its employees that stricter discipline would be imposed if the Union got in. (d) Discouraging membership in the Retail Clerks Union Local 31, AFL-CIO, or any other labor organization by discriminatively discharging or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (e) Refusing to recognize and bargain in good faith with the above-named labor organization as the exclusive collective-bargaining agent of its employees in the unit found appropriate herein. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer full and immediate reinstatement to Judie Martin and Shirley McClellan to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make each of them whole for any loss of earnings or other monetary loss they may have suffered by reason of the discrimination practiced against them in the manner set forth in that part of this Decision entitled "The Remedy." (b) Upon request, bargain in good faith with the Union as the exclusive collective-bargaining representative of its employees in the unit found appropriate herein with respect to wages, hours, and other terms and conditions of employment and, if agreement is reached, embody the terms of such agreement in a written contract (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraph a. (d) Post at its store in Mansfield, Ohio, copies of notice marked "Appendix "21 Copies of said notice, on forms to be provided for the Regional Director for Region 8, after being duly signed by the Respondent's representative shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith.22 It is further recommended that the complaint as to all matters not specifically found to be in violation of the Act, be dismissed "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, the provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT assist or encourage our employees in getting their cards back from Retail Clerks Union, Local 31, AFL-CIO, or in getting them to sign any petition revoking the authority of said union to represent them. WE WILL NOT ask an employee if he or she has signed a card for said union and ask him or her to get the card back. WE WILL NOT tell any employee that the store will be run with an iron hand if the union gets in or that an employee will be fired if he or she is late three times if the union gets in. WE WILL NOT fire any employees because he or she has joined Retail Clerks Union , Local 31, AFL-CIO, or any other union , or because he or she has been active on behalf of the union. WE WILL offer Judie Martin and Shirley McClellan their old jobs back and pay them for any pay they may have lost because we fired them WE WILL , upon request , bargain collectively and in good faith with Retail Clerks Union Local 31, AFL-CIO , as the exclusive bargaining representative of our employees with respect to wages, hours, and other terms and conditions of employment and, if agreement is reached sign a written contract covering such 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement . The employees in the appropriate unit are: All employees working at the Employer ' s store located at 985 Ashland Road , Mansfield, Ohio, including office clerical employees , but excluding professional employees , guards , and supervisors as defined in the Act. All our employees are free to join or remain members of any union or not to join or remain members of any union , except to the extent that such right may be affected by a collective -bargaining agreement containing a lawful union security clause pursuant to Section 8(a)(3) of the Act. J A. CONLEY COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1695 Federal Office Building , 1240 East 9 Street, Cleveland, Ohio 44199, Telephone 216-522-3738. Copy with citationCopy as parenthetical citation