J. A. Conley Co.

National Labor Relations Board - Board Decisions

Feb 12, 1970

181 N.L.R.B. 123 (N.L.R.B. 1970)

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.