Jefferson Stores, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1973

201 N.L.R.B. 672 (N.L.R.B. 1973)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jefferson Stores, Inc. and Retail Clerks Union Local
1625 AFL-CIO, chartered by Retail Clerks Inter-
national Association . Cases 12-CA-5405 and
12-RC-3936
February 6, 1973
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On July 18, 1972, Administrative Law Judge'
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent Employer and
the General Counsel filed exceptions, and Respon-
dent filed a reply 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.
1. The Administrative Law Judge ordered dis-
missal of the complaint in Case 12-CA-5405 because
the General Counsel, though ordered to do so by the
Administrative Law Judge, failed and refused to file
a brief in support of his position. He also viewed the
General Counsel's persistent refusal to file a brief, or
respond to Respondent's motion to dismiss and the
Administrative Law Judge's order to show cause why
the complaint should not be dismissed for failure to
file a brief, as an acquiescence by the General
Counsel in the dismissal of the case and a tacit
abandonment by him of the prosecution of the case.
We are in total disagreement with the dismissal of
the complaint insofar as it is based on these
considerations.
Contrary to the Administrative Law Judge, we do
not find support for his asserted authority to dismiss
this complaint in Section 102.35 of the Board's Rules
and Regulations which deals with the duties and
powers of an Administrative Law Judge. Authority is
granted in subsection (1) "To request the parties at
any time during the hearing to state their respective
positions concerning any issue in the case or theory
in support thereof." But, at the hearing, the General
Counsel did orally argue his position in the case and
cited cases in support thereof. If, for some reason, the
Administrative Law Judge was not satisfied with this
presentation , subsection ( 1) does not sanction an
I The title of "Trial Examiner" was changed to "Administrative Law
Judge " effective August 19, 1972.
order by him to the General Counsel to file a written
brief or suffer dismissal of the complaint. Nor do we
believe that authority for such an order and penalty
is expressly or implicitly provided for in any other
provision of Section 102.35, and we are not persuad-
ed that it should necessarily be vested in the
Administrative Law Judge by the nature of the
administrative process.2
As for the Administrative Law Judge's further
finding that the General Counsel's refusal to file a
brief constitutes a tacit abandonment of the prosecu-
tion of this case, we think that to be an unwarranted
assumption, particularly in view of the General
Counsel's communication to the Administrative Law
Judge wherein he sought to explain that he was not
filing a brief because "nothing further could be
gained thereby."
2. Notwithstanding his disposition of the unfair
labor practice charges on the grounds noted above,
the Administrative Law Judge proceeded to consider
the 8(a)(1) allegations involved on their merits and
found that Respondent did not engage in any activity
which was coercive or offensive to the Section 7
rights of employees. We accept the dismissal of the
8(a)(1) allegations on this basis. The General Counsel
challenges credibility resolutions of the Administra-
tive Law Judge in this connection, but on careful
examination of the record, we are not persuaded by a
clear preponderance of the evidence that the Admin-
istrative Law Judge's resolutions were incorrect.
There is therefore no basis for reversing these
findings. Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3).
3. Although finding that Respondent's conduct
herein was not violative of the Act, the Administra-
tive Law Judge found that the identical conduct
interfered with the election conducted in the repre-
sentation case on November 15, 1971, which the
union lost by a vote of 143 to 61. We recognize, of
course, that the criteria applied in a representation
case to determine whether certain alleged miscon-
duct interfered with an election need not necessarily
be identical to those employed in testing whether an
unfair labor practice was committed. Thus, in the
former situation, the issue is whether conduct of the
type involved interfered with the employees' freedom
of choice in the election, whereas the latter presents
the question of whether such conduct interfered with
employees in the exercise of rights guaranteed in
Section 7. But, we are no more convinced that
Respondent's conduct interfered with the election
than we are that it interfered with the Section 7 rights
of the employees.
7 Thus the Administrative Law Judge is without the authority which he
finds is vested in Federal judges by virtue of the Federal Rules of Civil
Procedure and the Federal Rules of Appellate Procedure
201 NLRB No. 101
JEFFERSON STORES, INC. 673
The Administrative Law Judge found that, on two
occasions, each involving a single employee, Respon-
dent engaged in private audiences with employees in
the "locus of managerial authority"3 and thereby
deprived the employees of a free and untrammeled
choice in the election. We do not agree. In the first
place, we are not convinced that the area in question
was a "locus of managerial authority." Although
there were desks used by the department managers in
the back room, the room was also used for customer
layaways and provided the only means of access to
the display windows. Employees therefore used the
area as a "regular place of work." 4 Under all the
circumstances, we do not believe that the conduct
complained about here was such as to have had a
coercive effect on employees under the General Shoe
doctrine .5
The Administrative Law Judge also found that,
even though the distribution of the "Vote No" cards
by Respondent was not violative of Section 8(a)(1), it
constituted interference with the election. We disa-
gree. The cards were distributed at the doors of the
plant. They had no pins with which they could be
attached to clothing, and employees obviously were
under no compulsion to wear them. Indeed, when
some employees started wearing the cards, they were
asked to remove them. Where, as here, the distribut-
ed material and the manner in which it is distributed,
unaccompanied by threats or promises of benefits, is
not coercive, there is no interference with the
election.
The Administrative Law Judge found that the use
of the "Mod Squad" while not violative of Section
8(a)(1) also interfered with the election. Again, we
are unable to agree. The Union was permitted to
wage a massive campaign, without restriction. Thus
it had four-five union representatives in the store at
all hours and in virtually every area. On at least one
occasion, there were as many as 300 union sympa-
thizers in the store. Thus, Respondent allowed the
Union free reign of its store, even in the selling areas.
To counteract the Union's campaign, the Respon-
dent used the "Mod Squad" for the purpose of
ascertaining the sympathies of the employees by
observation and noncoercive discussion as an aid to
lawful antiunion solicitation and to disseminate its
own position to the employees. In the context of the
massive union organizational drive in the store
permitted by the Respondent, Respondent's own
campaign efforts as described cannot be found to
have interfered with the election .6
Finally, the Administrative Law Judge found that
Supervisor Bell's prediction to employee Hedges
"that if the Union got in Alexander's [a prospective
purchaser] would not come in and the employees
would lose benefits," was not violative of Section
8(a)(I) but did interfere with the election . We find
that this single comment to one employee about a
matter as to which Respondent had no control was
insufficient to affect the results of the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified and hereby orders that the complaint issued
against the Respondent , Jefferson Stores, Inc., be
and it hereby is, dismissed.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Retail Clerks Union
Local 1625, AFL-CIO, chartered by Retail Clerks
International Association , and that said labor organi-
zation is not the exclusive representative of the
employees in the unit found appropriate within the
meaning of Section 9(a) of the National Labor
Relations Act, as amended.
7 See General Shoe Corp., 97 NLRB 499.
4 Three Oaks, Inc., 178 NLRB 534.
5 Pennsylvania Power & Light Co., 124 NLRB 470; Mead-Atlanta Paper
Co., 120 NLRB 832.
6 In dismissing the 8(axl) allegation , the Administrative Law Judge
himself found that "there is no basis for an inference that the information
reported by the ... [Mod Squad ] was intended for reprisals or that it could
have been so construed by the employees."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH , Trial Examiner : Pursuant to Deci-
sion and Direction of Election issued by the Regional
Director for Region 12 on October 19, 1971, an election by
secret ballot was conducted on November 15, 1971, under
the direction and supervision of the Regional Director
among certain employees of Jefferson Stores, Inc., herein
referred to as the Respondent , in the unit found appropri-
ate t to determine whether or not these employees desired
to be represented for collective-bargaining purposes by
Retail Clerks Union Local 1625, AFL-CIO, chartered by
Retail Clerks International Association , herein referred to
as the Petitioner or the Union. Out of approximately 210
eligible voters, 61 cast ballots in favor of the Union. On
November 22, 1971, the Union filed timely objections to
conduct affecting the results of the election. Thereafter on
November 30, 1971, the Union filed a charge in Case
12-CA-5405, against the Jefferson Stores, Inc., the
Respondent herein, which was duly served on the Respon-
1 The unit found appropriate was "all full-time and regular part-time
employees, including employees in leased departments employed at
Employer's Jefferson Super Store located at 1500 Biscayne Boulevard,
Miami, Florida, but excluding confidential employees, guards, and
supervisors as defined in the Act."
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent by registered mail on or about December 1, 1971.On
February 4, 1972, a complaint and notice of hearing was
issued in which it was alleged that the Respondent had
violated Section 8(a)(1) of the Act by unlawful interroga-
tions , by creating impressions of surveillance , by unlawful
threats, by unlawfully organizing a "Mod Squad," and by
instructing the members thereof to contact specifically
listed employees, ascertain their union sympathy, and
report back to the Respondent, and by unlawfully
distributing "vote no" cards to employees.
On February 8, 1972, the Regional Director for Region
12 issued a Supplemental Decision in Case 12-RC-3936
and an order consolidating cases for hearing in Cases
12-RC-3936 and 12-CA-5405 in which among other
things the Regional Director ordered that a hearing be held
to resolve the issues raised by Objections 1, 2, and 6, which
had been filed by the Union2 and that such hearing be
consolidated with the unfair labor practice hearing before
a Trial Examiner in Case 12-CA-5405 for the purpose of
hearing, ruling, and issuance of a decision by the Trial
Examiner.
The Respondent filed timely answer denying that it had
engaged in or was engaging in any of the unfair labor
practices alleged.
The consolidated cases came on for hearing on March
28, 29, and 30, and April 4, 5, and 6,3 1972, at Miami,
Florida. Each party was afforded a full opportunity to be
heard , to call , examine , and cross -examine witnesses, to
argue orally on the record, to submit proposed findings of
fact and conclusions , and to file briefs.
Helpful and well reasoned briefs were filed by the
Respondent4 and the Union .5 The counsel for the General
Counsel failed to file a briefs The Trial Examiner has
carefully considered the briefs of the Respondent and the
Union and has reviewed the transcript of the counsel for
the General Counsel 's oral argument in the light of these
briefs.
Upon the whole record and in conformity with the
Administrative Procedure Act, the National Labor Rela-
tions Act, as amended , and the Rules and Regulations of
the Board , the Trial Examiner makes the following: T
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation operating
retail stores in the State of Florida. In addition to its store,
referred to as the "Super Store No. 4" located in Miami,
Florida, it operates six other promotional department
stores in Florida, two in Miami, two in Fort Lauderdale,
one in Hollywood, and one in West Palm Beach . Its main
office warehouse is located at Sunshine State Park , Miami,
Florida. During the past 12 months Respondent had a
gross volume of sales in excess of $1 million and purchased
and received goods valued in excess of $50,000 directly
from points outside the State of Florida.
The Respondent is now and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11, THE LABOR ORGANIZATION INVOLVED
The Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
2 The objections were as follows ( 1) Employees were interrogated by
employer representatives and supervisors concerning their union activities,
and questioned as to their voting intentions ; (2) employees were forced by
employer representatives and supervisors to wear "vote no" badges, (6)
employer representatives and supervisors informed employees that the
prospective purchaser of the business , Alexander's Inc, would not complete
the purchase in the event the Union won the election
3 On April 6, 1972, the Respondent moved for a continuance for the
purpose of presenting the testimony of Supervisor Herman Davalos who
was out of the country Ruling on such motion was reserved until the time
for filing briefs would have expired at which time the motion for
continuance was to be considered in the light of information then available
as to Davalos' whereabouts . The hearing was not closed . In the meantime,
the parties by stipulation concluded the presentation of evidence and the
hearing is hereby closed
The Respondent 's brief contained 70 pages
5 The Union's brief contained 25 pages.
6 The counsel for the General Counsel disregarding the Trial Examinees
request for a brief (which the Trial Examiner stated was in the nature of an
order) offered a "Dear Mr Goerlich" letter of a few paragraphs pointing
out
It being long recognized that Trial Examiners have the responsibility,
inter alia, to make factual findings in any case where that resolution
depends on the determination of credibility of witnesses as shown by
their demeanor or conduct at the hearing , Universal Camera Corp v
N L R B, 340 U.S. 474 (1951), it is felt that nothing further could be
gained by a repetitive statement for each witness called by the General
Counsel stating why that testimony should be believed.
The Trial Examiner concluded that counsel for the General Counsel's
spurious letter did not comply with the Trial Examiner's request as
delineated in Sec. 102.35( l), Board's Rules and Regulations, and after
reviewing the briefs filed by the Respondent and the Union the Trial
Examiner on June 9, 1972, issued an order, ordering the counsel for the
General Counsel to file a brief , reciting "the Trial Examiner is of the
opinion that a brief from counsel for the General Counsel is essential in
order that the Trial Examiner can fulfill his obligations under the law to
draw findings of fact , conclusions and reasons therefor and to recommend a
remedy and an appropriate order , if any , in Case No. 12-CA-5405." In the
same order the Trial Examiner ordered "that by June 20, 1972, the parties,
in writing, show cause why the Trial Examiner, in light of the counsel for
the General Counsel 's refusal to file a brief within the time allowed (May
29, 1972), should not recommend that Case No 12-CA-5405 be severed
from Case No. 12-RC-3936 and Case No 12-CA-5405 ordered dismissed."
On June 12, 1972, the Trial Examiner received a motion to dismiss the
complaint and objections to the election filed by the Respondent. One
ground for dismissal relied on was the "General Counsel's intentional
disregard of [the Trial Examiner's ] order to file a trial brief "
The Union and the Respondent responded to the Trial Examiner 's order
to show cause. The Trial Examiner has neither received a response to the
Trial Examiner 's Order To Show Cause from the counsel for the General
Counsel nor a brief as ordered , nor a brief in opposition to the Respondent's
motion to dismiss. The contrast between the counsel for the General
Counsel 's summary glossing over of the facts and issues in his oral argument
and the lengthy and meticulous consideration by the Respondent and the
Union in their briefs suggests that there exists here either a lack of
understanding of the importance of the issues involved, a failure to fulfill
the responsibilities of a lawyer-like presentation , or a deliberate protest
against Sec . 102.35( 1) of the Board 's Rules and Regulations which
authorizes the Trial Examiner "To request the parties at anytime during the
hearing to state their respective positions concerning any issue in the case or
theory in support thereof "
r In fulfilling his responsibilities as Trial Examiner , the Trial Examiner
would have obviously been aided by a carefully prepared and well thought-
out statement of the position of the General Counsel , together with citations
of authority in support thereof, whereas, in many aspects , the position of the
General Counsel remains unclear and tenuous in the record.
JEFFERSON STORES , INC. 675
111. THE UNFAIR LABOR PRACTICES the record as the "Mod Squad," in order to counteract the
A. The Setting
The Union commenced organizing the Respondent's
Super Store No. 4 in May 1971. The Respondent learned of
this campaign in July 1971. In early August, some time
prior to the representation hearing in Case 12-RC-3936,
Paul Hershman, manager of Super Store No. 4, read a
speech to assembled employees on the Super Store No. 4
premises .8 About the same time Gerald Nathanson, 35-
year-old vice president and member of the executive
committee, was assigned to run the Respondent's cam-
paign. Nathanson was the merchandise manager in hard
lines and handled all of the Employer's public relations.
Nathanson explained that he was chosen to head the
campaign because "I have a lot of experience ... I have a
strong affinity with the employees." Hershman testified
that "Nathanson was calling the shots."
After the representation hearing Nathanson spent full
time at Super Store No. 4; it was his aim to be the first
person there in the morning and last person there at night.
He characterized the Respondent's campaign as a "man-
to-man method." During the process of the campaign he
spoke personally to each employee at least once .9
The Union also campaigned. The evening after the
decision directing the election was announced eight union
organizers appeared at the Respondent's premises and
commenced canvassing the store. When this occurred
Nathanson called the Respondent's attorney, W. Reynolds
Allen, who immediately appeared at the store. After he
talked to Union Representative Wallace E. Miller "things
calmed down." Respondent then adopted a policy which
was expressed by Nathanson as follows: "We would permit
these union people to be in the store as often as they came,
as many as they wanted and that we would do our best to
keep the business going and not interfere with the union
people unless we felt sincerely that they were interfering
with our employees where the employee was working."
During the period between October 19 and November 15
the number of organizers and union partisans in the store
ranged from 4 or 5 to as high as 300. On several Saturdays
before the election union partisans were en masse in the
Company's store with their families . The Respondent
raised no objections to the nature of the union campaign-
ing.
In addition to the solicitations on the store premises by
union representatives, employees and other union-minded
people, the Union passed out a substantial number of
handbills at the doors of the Company's store.10
Nathanson, believing that the "odds were unfair,"
assembled a group of supervisors, who are referred to in
8 Among other things , Hershman said : "Jefferson Stores will not
discharge anyone because of union activities however, no one is going to be
afforded particular protection from discharge because of his activity with
the Union . In short, the Union mess is a neutral factor."
9 Nathanson described his campaign tactics as follows:
I believe strongly in a man -to-man campaign. When I knew that we
were going to be involved in an election after the decision on the
appropriateness of the unit I studied the facts , which were simply, that
we had about 210 people in the store, roughly 210 people.
I made it a point to learn the names of every person in the store. I
Union's massive campaign activities. Members of the Mod
Squad were Ruth Bell, buyer of foundation and swim
goods for the Respondent's seven stores, Hector Diaz,
fashion coordinator for the seven stores, Inita Hoyos, who
was employed in co-op advertising at the main office, and
Gladys Puig. All these employees are admitted supervisors.
These, as well as other supervisors, were advised in respect
to their campaign activities. They were told by Nathanson
and attorney Allen that "they shouldn't dare make any
promises, by no means threaten anybody at all, never
speak to an employee in an enclosed area or an office or in
any place that wasn't public . . . never ask any questions."
Nathanson instructed Mod Squad member Hoyos "to go
to the store, get acquainted with the people, talk to them
and see their reaction" and then come "back to him and
tell him [her] educated opinion." Hoyos was given a list of
30 names. During the campaign she spent every day in the
store. Additionally, all supervisors were given extensive
written material by Respondent's counsel detailing the
rights, obligations, and limitations of supervisors under
organizing and election conditions.
All members of the Mod Squad reported to Nathanson
every day at which time the union sympathies of each of
the employees in the unit were canvassed. When there was
a consensus of opinion as to how any employee would vote
the employee was given a plus if it were for the Company
and a minus if it were for the Union. Those for whom there
was no consensus were given minuses. Occasionally other
supervisors met with the Mod Squad and shared in the
composition of the consensus. These meetings were secret.
Each member of the Mod Squad was given a list of
names, almost daily, upon which to concentrate. It was
explained by Nathanson, "I handed out a list of names
almost daily. Each day. Originally I handed out a list of
about 30 names or so and then each day I would cross and
recross the files each night and then I would come in with a
list of five or six people for each person." Hard core union
partisans were not contacted.
B. Case 12-CA-5405
1. Interrogations
Claimed coercive interrogations involved incidents in
which six supervisors (Inita Hoyos, Hector Diaz, Ruth Bell,
Harvey Hirsch, Victor Glaser, and Herman Davalos) were
alleged to have asked questions as to how employees felt
about the Union and as to how employees were going to
vote. Such coercive interrogations were denied by the
had time to do that and I started to categorize everybody in groups,
how many women , how many men, how many between the ages of 16
and 25, etc."
50 The union organizers ' usual practice upon entering the store was to
meet in the coffeeshop and thereafter fan out through the various floors of
the establishment . There was one union organizer who approached
Nathanson while he was speaking to an employee and said , "Don't you
believe one word this guy says." Except for this individual the relationship
between the Respondent and the union organizers was friendly throughout
the campaign.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's witness except for Davalos whose testimony
was unobtainable.11 Thus credibility issues are drawn.
Inita Hoyos, who was charged with a coercive interroga-
tion, appeared both as a witness for the General Counsel
and the Respondent. During the counsel for the General
Counsel's oral argument, the Trial Examiner asked the
General Counsel why he maintained that Hoyos told the
truth when she testified for the General Counsel and lied
when she testified for the Respondent. The counsel for the
General Counsel's answer was not persuasive and he has
added nothing by way of brief although specifically
requested by the Trial Examiner to discuss this topic.12
Having examined the record as a whole the Trial Examiner
is persuaded that Hoyos was a truthful witness both for the
General Counsel and the Respondent. From the demeanor
standpoint there was no discernible difference between her
appearance and deportment in either category.
As to the other witnesses involved in the alleged
incidents of coercive interrogation the counsel for the
General Counsel, in his oral argument, asserted that the
"eye ball test" was "very difficult to apply" for which
reason he was relying on "probabilities." The Trial
Examiner has examined the record as a whole, including
the demeanor of the witnesses , and like counsel for the
General Counsel, as to these particular witnesses and these
particular incidents, he finds the "eye ball test" difficult to
apply for which reason he looks to the probabilities. The
counsel for the General Counsel in oral argument
maintained that coercive questions were asked as related
by the General Counsel's witness because "in a situation
like that a supervisor is so anxious to please his boss that he
will get the information"; he is "eager to please his boss";
he is an "eager beaver"; and he will "[c]ome back with the
goods." On the other hand, it is the contention of the
Respondent that the "fact that each of the supervisors was
painstakingly trained as to what he could and could not
say or do during a union campaign tends to credit their
testimony that they did not make statements in violation of
law." Which of these probabilities is entitled to the greater
probative weight is illusory, for a supervisor bent on
pleasing his boss might be eager to keep him out of trouble
and thus abide assiduously to his instructions. With this
likelihood the Trial Examiner cannot find that the counsel
for the General Counsel's theory ought to be favored.
Accordingly, the Trial Examiner finds that the General
Counsel has not proved coercive interrogation by a
preponderance of evidence.
2. "Vote No and Stay Free" card distribution
During the election campaign the Respondent used
various campaign literature which Nathanson selected
from "Mr. Allen's choice book." 13 Among other things
11 In that the Respondent made reasonable efforts to subpena Davalos,
no adverse inference against the Respondent is drawn by reason of his
absence as a witness for it
12 The counsel for the General Counsel in his "Dear Mr Goerlich"
letter, maintaining his incompliant stance , "felt that nothing further could
be gained by stating why testimony should be believed " Thus, as to
credibility, as well as other matters, the Trial Examiner is confined to
General Counsel 's oral argument in which to search for his position
13 Nathanson described the choice hook as follows. "Well, Mr
Allen's-he has like an album. I would say As you turn the pages he has got
Nathanson chose a "Vote No and Stay Free" card from
Allen's choice book. Shortly before the election these cards
were delivered to Hershman's office, Nathanson's instruc-
tions were that these cards "were to be used at the door like
in a political campaign." 14
Hershman gave a card to the switchboard operator and
10 or 12 cards to employees in the credit department and
,.some people [clerks on the floor] came up from
downstairs and asked for some cards." He also gave about
50 cards to Assistant Manager Hirsch. The cards were
distributed "with no conversation" and without any sort of
device that could be used for attaching them to the person.
Nevertheless, the switchboard operator attached a card to
her dress as did some of the girls in the credit department.
Hershman had not instructed the girls to wear the cards.
Upon Attorney Allen's advice employees were asked "to
please remove the cards, if they would" and were told that
they could not be forced to remove the cards but that the
Respondent would appreciate it if they would not wear the
cards. No more cards were distributed. Employees were
also observed wearing union buttons to which the
Respondent did not object.
To support a finding that the "Vote No" card distribu-
tion constituted an unfair labor practice the counsel for the
General Counsel, in oral argument, cited Murray Ohio
Manufacturing Company, 156 NLRB 840, and Automotive
Controls Corp., 165 NLRB 450. Murray Ohio Manufactur-
ing Co., supra, may be distinguished from the instant case
in that in the Murray Ohio case the supervisors took no
action to discourage the wearing of the "Vote No" signs; a
supervisor pinned a "Vote No" sign on an employee;
employees were directed by a supervisor where to obtain
the signs; for a period of 10 days an employee distributed
the signs at employee work stations in the presence of a
supervisor; and supervisors urged employees to wear the
signs and gave the signs to employees for surreptitious
distribution. None of these things occurred in the instant
case. In the Automotive Controls case, supra, a supervisor
asked employees whether they would like to have "Vote
No" signs to place on the bumper of their cars. Such
activity was viewed by the Trial Examiner as an implicit
threat "that if they did not accept the signs they would
possibly be visited with reprisals" and "constituted a form
of interrogation, the purpose of which was to discover the
employees' pro-union or anti-union sympathies." In the
instant case employees were not requested to take the
"Vote No" cards. Moreover, the distribution was of a
limited nature and the few employees who adorned
themselves with cards were told by the Respondent that
the Respondent would appreciate their not wearing the
cards.
Additional cases were relied on by the Charging Party,
one of which was Beiser Aviation Corporation, 135 NLRB
all kinds of campaign literature , most of which I thought was far too harsh
to use, and I just picked either what I thought was amusing or what I
thought was relevant "
14 Nathanson explained "Very often, when a candidate will shake your
hands as you leave the factory or something-they shake your hand and
they give you a card I thought that this would be a nice touch " Nathanson
said that he visualized Hirsch and Hershman standing at the door, as the
employees were leaving and saying to them as they were handed a card,
"We hope you will vote for the company."
JEFFERSON STORES , INC. 677
399. In such case the cards were distributed "for wear"
which the Board reasoned placed the "employee in a
position where he must declare himself as either for or
against Local 249." Such was not the situation in the
instant case. Here the distribution was no different than
had the Respondent passed out a handbill with the same
verbiage at the Employer's entrances or in the store which
would have been permissible conduct. The Respondent's
cards were not intended for wear nor were they equipped
for such purpose. In Kawneer Company, 164 NLRB 983,
and Chas. V. Weise Co., 133 NLRB 765, also cited by the
Charging Party, the fact that the wearing of the "Vote No"
button or badge was involved determined the coercive
character of the distribution.
Factors which persuade the Trial Examiner that the
Respondent's distribution of the "Vote No" cards was not
coercive and did not offend the employees' Section 7 rights
are: (a) the cards were not, as are badges and buttons,
intended or equipped for adornment; (b) the distribution
of the cards was made without comment; (c) when
employees adorned themselves with the cards, the Respon-
dent asked them not to wear them; (d) the distribution of
the cards was of a limited nature; and (e) the Respondent
discontinued distribution of the cards when it observed
employees wearing them.
3. Supervisor Herman Davalos and the "Vote
No" cards
paragraphs 5(a)(5) and (6) of the complaint by a prepon-
derance of the evidence.
4. The Mod Squad
In respect to the Mod Squad the question is whether it is
a violation of Section 8(a)(1) of the Act during a union
election campaign in which union organizers have the free
run of a retail establishment for supervisors to report to
their superior their ideas of the union sympathies of
employees gained through observation of and noncoercive
discussions with the employees while on the store premises
during working hours. The Act does not bar an employer's
participation in a union election campaign. In this regard
the Supreme Court has said that an employer may engage
in noncoercive antiunion solicitation, a right which "is
protected by the so-called `employer free speech' provision
of Section 8(c) of the Act," N.L.R.B. v. United Steel
Workers of America, CIO [Nutone, Inc.], 357 U.S. 357, 362.
See also N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575.
Under the circumstances of this case, and in view of the
massive union campaign waged on the Respondent's
premises, the utilization of the Mod Squad for ascertaining
union sympathy through observation of and noncoercive
discussion with employees as an aid to lawful antiunion
solicitation was not coercive in character,16 and violated
none of the employees' rights under Section 7 of the Act.17
In his complaint the General Counsel claims that
Supervisor Herman Davalos gave two employees "Vote
No" cards and told them that they would get into trouble if
they did not take them and that he attempted to pin a
"Vote No and Stay Free" badge on an employee telling
him he had better wear it if he didn't want to get into
trouble.
In respect to the first incident the General Counsel
offered the testimony of Maria Rodon which is of such a
vacillating and variable nature that it lacked the definite-
ness upon which a finding can be based.15
In respect to the latter incident it is planted on the
testimony of employee Hernando Couto and Magala
Trujillo. Couto was a known strong union partisan and
Trujillo was one of the organizers of the Union and was
very active in the election campaign. Davalos knew that
Trujillo was "strong for the Union." Under these circum-
stances, it stretches credulity too far to believe that
Davalos attempted to pin a "Vote No" card on Couto in
front of Trujillo. It is of further significance that supervi-
sors had been advised not to contact strong union
partisans. Moreover, there is no credible proof that
Davalos had access to the "Vote No" cards but the
inference is he was given no cards. Accordingly, the
General Counsel has not proved the allegations of
15 Rodon gave six different versions of what happened.
16 Whether the use of the Mod Squad interfered with the election will be
considered infra.
17 The Trial Examiner has considered Cannon Electric Company, 151
NLRB 1465, cited by the counsel for the General Counsel in oral argument.
Such case may be distinguished from the instant case in that the proscribed
activity there did not occur during a union election campaign in which the
union was allowed free run of the employers ' premises . Moreover, in the
5. Other 8(a)(1) violations
In regard to the remaining alleged 8(a)(1) violations, as
in the case of the alleged coercive interrogations, the
probabilities do not support a finding that a preponder-
ance of the evidence supports these allegations in the
General Counsel's complaint except in the case of the
claim that Supervisor Ruth Bell told an employee "that if
the union got in, Alexander's [a prospective purchaser]
would not come in and the employees would lose benefits."
Bell, according to employee Leanne Sales Hedges, said to
her that if the Union won the election, "it would mean that
Alexander's would not come in and we would lose in the
long run because Alexander's would bring in benefits and
higher wages and that we would be paid just the same as
the company in New York." The probabilities are that Bell
made such statement because not only had she been an
employee of Alexander's with some prior knowledge of its
operations but there is no credible evidence that she had
been advised not to speak on the subject. However, the
Trial Examiner does not consider such statement to have
been in violation of the Act. N.L.R.B. v. Gissel Packing Co.,
supra. 18
instant case there is no basis for an inference that the information reported
by the supervisors was intended for reprisals against employees or that it
could have been so construed by the employees.
18 In the Gissel case the Supreme Court said, p. 618, that an employer "is
free to tell `what he reasonably believes will be the likely economic
consequences of unionization that are outside his control ' . . . ." There is
no credible proof that Bell's prediction does not meet the Gissel test.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The Respondent 's motion to dismiss
the complaint
The Respondent moved to dismiss the complaint on the
grounds that "the General Counsel has directly and
intentionally disobeyed the Trial Examiner's order to file a
brief" and that the "complaint should be dismissed in its
entirety since the record does not establish by a preponder-
ance of the evidence therein, including the evidence most
favorable to Employer and Respondent, that Employer
and Respondent in any manner violated the Act."
The Trial Examiner, under the authority vested by
Section 102.35(1) of the Board's Rules and Regulations,
did request the counsel for the General Counsel to state his
position concerning the issues in the case and his theories
in support thereof by way of brief indicating that counsel
for the General Counsel's oral argument was wanting in
this respect. The request was incorporated in an order.
Such authority stems from the same rule which vests
authority in the Trial Examiner "To regulate the course of
the hearing and, if appropriate or necessary, to exclude
persons or counsel from the hearing for contemptuous
conduct and to strike all related testimony of witnesses
refusing to answer any proper question" and "to dismiss
complaints or portions thereof."
The Federal Rules of Civil Procedure (to which we are
referred for guidance, see Sec. 10(b) of the Act), Rule
41(b), provides in part, "For failure of the plaintiff . . . to
comply with these rules or any order of the court, a
defendant may move for dismissal of an action or any
claim against him."
The Rules of Appellate Procedure, Rule 31(c), provides,
"If an appellant fails to file his brief within the time
provided by this rule, or within the time as extended, an
appellant may move for dismissal of the appeal." Thus had
counsel for the General Counsel's disobedience of the rule
occurred in the district court or the court of appeals his
cause would have been vulnerable to dismissal.
The Court of Appeals for the Fifth Circuit in the case of
Hawke v. McKee, Administrator, Federal Aviation Agency,
391 F.2d 262, dismissed a cause for failure to file a brief. In
the case of Birmingham Fire Ins. Co., of Pennsylvania v.
Knight, 195 F.2d 178, the same court in dismissing a cause
for failure to file brief said: "It is equally clear, however,
unless the briefing rule is to be regarded as a nullity, that it
should be enforced here, where it has been completely and
persistently ignored . . . and it does not appear that the
appeal is, or may be, meritonous." The Trial Examiner is
faced with the same circumstance and for the same reasons
which persuaded the Fifth Circuit grants the Respondent's
motion to dismiss and the complaint is hereby dismissed.19
Furthermore, the failure of counsel for the General
Counsel to respond to the Respondent's motion to dismiss
or to the Order To Show Cause why the complaint should
not be dismissed for refusal to file a brief are under the
circumstances of this case a tacit abandonment of the
prosecution of this cause.
Nevertheless the Charging Party appears to contend that
19 The counsel for the General Counsel after briefs were due was given
another opportunity to file a brief. Not only did he decline to file a brief but
ignored the Trial Examiner's Order To Show Cause why the complaint
it ought not be penalized by the dismissal of the complaint
because the counsel for the General Counsel has refused to
prosecute the cause further. The Trial Examiner is in
sympathy with that position, but the Board recently has
said in GTE Automatic Electric, Inc., 196 NLRB No. 134,
"Section 3(d) of the Act very clearly gives the General
Counsel 'final authority' over the 'investigation of charges
and issuances of complaints under Section 10 .... "
Thus, the Board held that a charging party had no standing
to amend a complaint unless sought or consented to by the
General Counsel. Applying this reasoning, a charging party
has no standing to litigate a complaint if the General
Counsel chooses to dismiss it or allows the complaint to be
dismissed by his failure or refusal to comply with that
which would avoid its dismissal . In this case the counsel for
the General Counsel, by his refusal to file a brief, by his
refusal to respond to the show cause order, and by his
refusal to respond to Respondent's motion to dismiss for
failure to file a brief (thereby tacitly abandoning the
further prosecution of the complaint), has acquiesced in
the dismissal of the complaint and by his choice has
effected the dismissal of the complaint as surely as if he
had withdrawn it.
IV. THE OBJECTIONS TO THE ELECTION
The Union contends that "even if the Trial Examiner
finds and concludes that Employer 's conduct did not
violate Section 8(axl) of the Act . . . such conduct
affected the results of the election."
In N. L. R. B. v. Clearfield Cheese Co., 322 F .2d 89, 92
(C.A. 3), the court said : " . . . in the appraisal by the
Board of the bases for refusing to certify an election
deemed contaminated , it is not required to rely only on
conduct which would qualify as an unfair labor practice
under Section 158 of the Act . Cf. Foreman & Clark, Inc. v.
N. L. R. B., 215 F.2d 397, 409-410 (9 Cir. 1954), cert . denied
348 U.S. 887 , 75 S.Ct. 207, 99 L.Ed. 697."
The Board has viewed its "statutory authority and
obligation to conduct elections in circumstances and
under conditions which will insure employees a free
and untrammeled choice ." Peerless Plywood Company,
107 NLRB 427, 429. In the same case the Board
struck down the employer's use of captive aud-
iences, although noncoercive in character, conducted
within the 24-hour period before an election because
audiences of such character "tend to destroy freedom of
choice and establish an atmosphere in which a free election
cannot be held ." Likewise the Board has struck down an
employer's campaign tactics even though noncoercive in
character, which utilized the locus of managerial authority
for the dissemination of antiunion or procompany propa-
ganda. General Shoe Corporation, 97 NLRB 494; Veeder-
Root, Incorporate4 120 NLRB 967; Jasper Wood Products
Co., Inc., 123 NLRB 28; and Plochman and Harrison-
Cherry Lane Foods, Inc., 140 NLRB 130. In the latter case
at p. 134 the Board said : "When individual employees are
taken from their workplaces and subjected to antiunion
should not be dismissed for failure to file a brief. Nor did he respond to the
Respondent's motion to dismiss.
JEFFERSON STORES, INC. 679
propaganda at the hands of a supervisor in the privacy of
the company office or in an isolated area away from other
employees, there is a likelihood that outright fear or
uneasiness tinged with fear as to the consequences of
unionism will be created in the mind of the employee thus
singled out for special attention."
On two occasions the Employer in the instant case
admittedly engaged in private audiences with employees,
the result of which was to offend the General Shoe
Corporation rule supra, and deprive the employees of a free
and untrammeled choice for bargaining representative.
A few days before the election Supervisor Hector Diaz
approached Vivian Martinez, an employee under his
supervision, and indicated that he wanted to talk to her
privately. He escorted her to an office which was used by
the men's department manager. At the time there was no
one present in the office. After the door was closed Diaz
commenced talking about the Union.20
The second occasion involved employee Leanne Sales
Hedges and Supervisor Victor Glaser. About a week before
the election, Hedges conversed with Glaser in his office,
where she had gone to sharpen a pencil and to ask him
about some of the merchandise. Prior to this occasion,
according to Glaser, he had approached Hedges on the
selling floor and said to her, " . . . with the business that is
now going on with the union I would like to give you some
of my views as a company man of what I think the Union
has or does not have to offer, my personal view." During
the conversation he commented, "You go ahead, Leanne,
and think about this thing, but you should understand that
the union can't do anything for you unless the company
agrees."
While Hedges was in Glaser's office, the matter of the
Union again came up. Glaser testified, "I then started to
expound on the fact-about the union-that I had come
from England and I didn't feel that the country was any
better off now, basically because of what had happened
with the union . . . I just told her that whatever she would
decide that was her own affair." According to Glaser
another employee was present. Glaser was sitting at his
desk.
These two incidents above provide a sufficient basis for
setting aside the election.
While the Trial Examiner found that the distribution of
the "Vote No" cards was noncoercive in character their
distribution contributed to a "highly-charged election
atmosphere" and interfered with the laboratory condi-
tions21 required for Board-conducted elections and consti-
tuted interference with the election. See Henry I. Siegel Co.,
Inc., 148 NLRB 1192.
While the Trial Examiner has also found that the
20 Diaz testified that after observing that Martinez was angry he said to
her " 'You seem angry . Have I done anything to you?' She answered, 'No.'
But, she kept , you know, the same way ." So Diaz said, '[C ]an I talk to you
for a minute?' " They went into the office of the men's department where
Diaz said . "I want to talk to you a little about the Union." During the
conversation he told Martinez that he knew Maggie Trujillo, a pusher for
the Union , was "just looking out for herself ." He asked Martinez , "Do you
think that I have been unfair to you in any way. because it seems like most
of the people in the department are ones who are starting this whole thing."
She answered , "No, you haven' t " He added , "I am a young man and I have
been with this company seven years and I got where I am today and I never
needed a union or anybody to do this for me . I think you are young
activities of the Mod Squad under the particular facts of
this case were of a noncoercive character it is the Trial
Examiner's opinion that its operations tended to destroy
freedom of choice and contributed in a high degree to the
establishment of an ambience in which a free election
could not be held. The constant exposure of employees to
observation and sophisticated conversation, the purpose of
which was to detect their union affections, had a tendency
to cause fear and apprehension which negated an assur-
ance that employees were exercising a free and untram-
meled choice for bargaining representative . Indeed there
seems little doubt that the moils and inhibitions created by
the Mod Squad caused a debilitation of the employees'
freedom of will and tended "to destroy freedom of choice
and establish[ed] an atmosphere in which a free election
[could] not be held." Peerless Plywood Company, supra.
Bell's prediction to Hedges that, if the Union prevailed,
Alexander's would be deterred and the employees "would
lose in the long run because Alexander's would [have
brought] in benefits and high wages" is the type of election
propaganda which intrinsically causes employees to be-
come apprehensive and discourages uninhibited employee
expression. While there is no direct evidence that Bell's
statement was a subreption, a representation of this
character ought not be uttered during an election cam-
paign unless the hearer has some means of ascertaining its
truthfulness or there is convincing proof of its accuracy.
Furthermore, because of the inherent contaminative and
highly speculative character of the representation the
burden of proof of its truthfulness must lie with the utterer.
Where, as in the instant case, the hearer had no available
means of ascertaining the truth and neither the narrator
nor the employer has offered convincing proof of the truth
of the representation (other than the unsupported and
uncorroborated prediction of the narrator), Bell's state-
ment, as it affected the hearer, must stand as unsubstanti-
ated and as interference with the election.
While an informed electorate is a commendable objec-
tive,22 if the high purposes of the Act are to be achieved,
both prounion and antiunion desires of employees must be
allowed to propagate freely in an atmosphere which neither
the employer, the union nor the public has rendered
incompatible to an employee 's free and untrammeled
choice for or against a bargaining agent.
In the instant case by reason of the Respondent's
campaign tactics the election results did not represent the
free and untrammeled choice of the Respondent's employ-
ees. Thus the Trial Examiner finds that the Respondent
interfered with the election held on November 15, 1971,
and that such election should be set aside and held for
nought and a new election ordered.
too. I don't feel that you need any union to do that for you either" He
added that it was "her choice."
21 "In election proceedings , it is the Board 's function to provide a
laboratory in which an experiment may be conducted , under conditions as
nearly ideal as possible, to determine the uninhibited desires of the
employees. It is our duty to establish those conditions; it is also our duty to
determine whether they have been fulfilled." General Shoe Corporation, 77
NLRB 124, 127.
22 The Board has said in Excelsior Underwear Inc., 156 NLRB 1236,
1240, ..... an employee who has an effective opportunity to hear the
arguments concerning representation is in a better position to make a more
fully informed and reasonable choice."
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is recommended that Case 12-RC-3936 Director for Region 12 deems appropriate. It is recom-
be severed from Case 12-CA-5405 and that the election mended that the Regional Director shall direct and
conducted on November 15, 1971, be vacated and set aside supervise the election, subject to the National Labor
and a second election by secret ballot be conducted in the Relations Board Rules and Regulations. It is ordered that
unit found appropriate at such time as the Regional the complaint in Case 12-CA-5405 be dismissed.