Peoples Service Drug Stores, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1516 (N.L.R.B. 1965)

1516 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner , interfere with the efforts of the
above-named Union to bargain collectively for the employees in the said unit.
KNIGHT NEWSPAPERS, INC., OWNER AND PUBLISHER OF
"THE DETROIT FREE PRESS,"
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.
Employees may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 963-9330,
if they have any questions concerning this notice or compliance with its provisions.
Peoples Service Drug Stores, Inc. and Retail Clerks International
Association , Local 698, AFL-CIO. Cases Nos. 8-CA-3528 and
8-CA-3538. September 24, 1965
DECISION AND ORDER
On April 2, 1965, Trial Examiner Ramey Donovan issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision and supporting briefs.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its pow-
ers in connection with this case to a three-member panel [Chairman
McCulloch and Members Jenkins and Zagoria].
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 reviewed the Trial Exam-
iner's Decision, the exceptions, the briefs, and the entire record in the
case,1 and hereby adopts the findings, conclusions,2 and recommenda-
tions of the Trial Examiner as modified herein.'
'The General Counsel moved before the Trial Examiner to correct the transcript In
a number of respects . Respondent opposed only item 7 of the motion . The Trial
Examiner made no disposition of the motion in his Decision . Accordingly, we shall grant
the General Counsel's motion except as to item 7 , as we believe that the transcript more
accurately reflects the testimony of the witness involved than does the change proposed
In that Item.
2 We note, but do not pass upon, the legality of the prehearing interrogation of em-
ployees by Respondent 's counsel , as described by the Trial Examiner , In the absence of any
allegation by the General Counsel with respect thereto or exceptions to the Trial Ex-
aminer's failure to find a violation therein.
8 The Trial Examiner omitted , apparently by Inadvertence , the cards of Glenna Williams
and Charles Henderson from his computation of the majority . The record shows that
Williams identified a card she signed on April 28 and that Henderson Identified a card
he signed on June 11. Accordingly , we shall count Williams' card as of both demand
dates, and Henderson 's card as of the second demand date. The Trial Examiner found
154 NLRB No. 118.
PEOPLES SERVICE DRUG STORES , INC. 1517
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 Recommended Order of the Trial Examiner, and orders
that Respondent, Peoples Service Drug Stores, Inc., Akron, Ohio, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
that Carol Holbrook made a valid designation of the Union when she signed the letter
on June 29, and that Raymond Pulliam designated the Union when he signed an au-
thorization card and the letter on June 25. The letter, although dated June 24, was not
actually mailed to Respondent until June 29 and received about June 30. Thus, June 30
is the critical date for determining the Union' s majority . The Trial Examiner, how-
ever, made a final computation of the Union's majority only as of June 24. In so doing,
he omitted the valid authorizations of Holbrook and Pullium, obtained after June 24 but
before June 30. We shall therefore count the designations of these two employees as of
the second demand date . The Trial Examiner counted Veda Bruce's card for both demand
dates. As Bruce's card was not received by the Union until June 8, after the first
demand date , we shall count her card only for the second demand date. As no exception
was taken to the Trial Examiner 's decision not to count Wright's card, we adopt this
decision pro forma. Accordingly, we find that, as of the first demand date, 70 em-
ployees had designated the Union as their bargaining agent and that, as of the second
demand date, 80 employees had likewise designated the Union, a majority of the em-
ployees in the unit in both instances.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Retail Clerks International Association, Local 698, AFL-CIO, herein called the
Union, filed three charges of unfair labor practices against Peoples Service Drug
Stores, Inc., herein called Respondent. The first charge, dated June 3, 1964, and
filed in the Board's Regional Office on June 4, 1964, alleged coercion and discrim-
ination against two employees, Clark and Nash, in violation of Section 8 (a) (1) and
(3) of the Act. The second charge, dated June 11 and filed June 12, 1964, alleged
discrimination against named employees and a refusal to bargain under Section
8(a)(1), (3), and (5) of the Act. An amended charge, dated June 11 and filed on
July 21, 1964, alleged a refusal to bargain and general interference , restraint, and
coercion under Section 8(a)(1) and (5) of the Act. The General Counsel of the
Board, acting through the Regional Director, issued a complaint, dated July 31,
1964, alleging violations of Section 8(a) (1) and (5) of the Act. Respondent, in its
answer, denied the commission of unfair labor practices. The case was tried before
Trial Examiner Ramey Donovan in Akron, Ohio, on October 6, 7, 8, 9, 20, 21, and
22, 1964.
Upon the entire record, and from observation and evaluation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONARY FINDINGS
1. JURISDICTION
Respondent is an Ohio corporation that operates retail stores for the sale of drugs
and sundry items in the Akron, Ohio, area, and in other cities in Ohio. In its business
operations in Ohio, Respondent's annual receipts from retail sales exceed $500,000.
Annually, in its business operations , Respondent receives goods valued in excess of
$50,000 shipped from points outside Ohio directly to its places of business in Ohio.
Respondent is engaged in interstate commerce and is subject to the Board's
jurisdiction.'
1 There are 12 stores in the Greater Akron area and they are under a district manager,
Weaver. It Is this Akron district that is involved In the instant proceeding. Evidence
in the record indicates that the headquarters of the chain are in Washington, D.C, e.g.,
there is central purchasing and warehousing of merchandise in Washington and Respond-
ent sends orders and requisitions to Washington. The vice president of store operations
has his office in Washington and, although not shown In the record, Washington is possi-
bly the location of the offices of other officers of the corporation.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
On April 24, 1964, the Union wrote a letter to all the pharmacists of Summit
County 2 inviting them to a meeting to discuss the advantages of the pharmacists
joining the Union 3 Pursuant to the union invitation a pharmacists' meeting was
held in the union hall on April 29 .4 Between April 23 and 29 a group of Respond-
ent's pharmacists met at the home of Schray, a pharmacist and assistant manager in
Respondent's store # 169 in the Akron district.5 This group decided not to join the
Union. No union representative was present at this meeting. At the April 29
meeting, attended by pharmacists from various stores, the vote was against joining
the Union. Hennigin, organizing director of Local 698 in Akron, the Union herein,
testified credibly that, on April 29, after the adverse vote of the pharmacists, he
decided to drop organizational activity among the pharmacists. The record indicates
that this decision was carried out.
Hennigin's testimony is that he decided to commence an organizing drive among
the rank-and-file employees of Respondent's Akron district stores on April 28, 1964.
Union authorization cards signed by employees are dated from April 28, through
May, and into June 1964.6
The union campaign among Respondent's employees was initiated by various
union organizers going into Respondent's stores and speaking to the employees about
joining the Union.7 District Manager Weaver had been aware of the prior effort
to organize the pharmacists, including the holding of pharmacists' meetings. Accord-
ing to Weaver, various of Respondent's pharmacists had discussed the matter of
pharmacist organization with him since he was a pharmacist and he was aware that
the county Pharmacists Association had came out in apposition to the union effort
prior to the last meeting of the pharmacists on April 29.8 Respondent was also
aware, because of the openness of the union organizers' advent into the stores to
speak to the employees, that the Union had commenced, on April 28, to organize
the rank-and-file employees, the clerks. Weaver, in fact, testified that he learned
on April 28 that the Union had turned its attention to the clerks when the union
people came into the stores passing out literature and authorization cards to the clerks.
On May 7, Weaver met with his store managers and made it clear to them that
Respondent was opposed to having its stores unionized. The managers were directed
to implement this policy of opposition to the Union by "selling" the employees in
their stores on the benefits of existing conditions and benefits and by highly critical
comments regarding unions. A written list of items was given to each of the man-
agers for their guidance in conducting the campaign against the Union. Under the
heading, "Remember these Important Don'ts," the brochure stated that employees
were not to be threatened with reprisals; promised benefits; questioned about union
activities; spied upon; or discriminated against. "Things you can use and do"
included, inter alia, "keep your assistant manager informed and on your team";
"be sure to talk to every employee in your store"; "stress company benefits"; "no
unions-no strikes"; "if you [the employees] join you give up all hope of individual
merit and promotion"; "why sign away your right to work"; "you can ask all the
questions you want now but you can't ask any questions after you join"; "why do
these strangers and outsiders profess an interest in you? For your dues, fines and
assessments." Under the title "General Items" were other comments along the fore-
9 The county embraces the Akron area.
8There are other drugstore operations in the county in addition to Respondent's.
* Apparently some kind of an initial pharmacists' meeting had been held about April 23.
5 With the exception of three pharmacists, all Respondent 's pharmacists are store man-
agers or assistant managers . The store manager and the assistant manager are super-
visory employees, being the top supervisors of the particular stores in which they are
employed . Weaver, as district manager , is the immediate supervisor of the store manager.
6 One employee signed a card on April 16. After the campaign commenced she signed
another card on April 29.
7 In addition to Hennigin , the union organizers who participated in the campaign
were principally Marcaletti and Knapp.
8 Weaver had come up through the ranks to become district manager. Among his jobs,
en route, had been that of pharmacist.
PEOPLES SERVICE DRUG STORES, INC. 1519
going lines that could be used in talking with employees in order to dissuade them
from union affiliation . Reference was also made to existing benefits such as insur-
ance , hospitalization , and so forth .9
Conduct in Violation of Section 8(a)( I) of the Act
Respondent's opposition to the union organizing drive among the employees had
been communicated to its employees by supervisors beginning around the end of
April 1964. Employee Davisson, a clerk in store #79, testified that from the end
of April to about the middle of May, Store Manager Simmermacher made statements
in the store regarding the Union. These statements in many instances were in the
form of a kind of monologue or exposition and although addressed to no particular
employee by name, the statements were openly made within the hearing of employees
and employees stood and listened to him. According to Davisson, Simmermacher
said that ". . . Peoples Drugs would sell out. They wouldn't have the Union. If they
didn't sell out, there would be a layoff and the clerks that were left would be on
part time." Simmermacher also remarked that when he worked for Standard Drug
an attempt was made to form a union and "two of the girls that pushed the union
are now out in the street." In the week before the first union meeting of May 7,
Simmerinacher repeatedly questioned Davisson as to whether she was going to attend
the meeting. She replied that she was and that the other employees were also going
to attend. Simmermacher then spoke in highly critical terms of the Union and of
its disadvantages from the standpoint of the employees.
Simmermacher testified that although he had made an effort to talk to all the
employees in his store about the Union and the Company, he had only gotten around
to talking to five or six employees. He testified that, in May, Davisson had asked
him what he thought about the Union. He replied that he had his own views about
the Union but did not wish to discuss them. The witness, in his testimony, then
added, "I might talk to myself a little bit but I don't particularly come right out
and discuss my feelings."
I credit Davisson's testimony and all the circumstances persuade me that Simmer-
macher's statements were not made exclusively for his own consumption but were
made audibly and clearly for the employees in the store. With the exception of
Simmermacher's criticism of the Union, it is found that his other remarks, in the
circumstances, constituted threats of economic reprisal and detriment as Respond-
ent's response to union organization among the employees. As such, a violation of
Section 8(a)(1) of the Act is found. In the coercive circumstances described, the
repeated questioning of Davisson as to whether she was going to attend the union
meeting also appears unjustified and illegal.
Employee Luplow applied for a clerk's job in store #79 on May 6, 1964. She
testified that on that occasion some of the employees and Simmermacher were dis-
cussing the Union. The gist of the conversation was such that Luplow said, "You
mean you don't want the union here?" Simmermacher said , "No, we don't."
Luplow signed a union card on May 14. Shortly after this, according to Luplow,
Simmermacher was speaking to a group of the clerks in the store. He said "that if
the union came in some of the girls would be fired or put on part time. That the
store would sell out or change its name or something to stop the union from coming."
Simmermacher, in his testimony, makes no reference to any of the foregoing. Luplow
is credited and Simmermacher's post-May 14 statements, described above, are found
to be violative of Section 8(a)(1) of the Act. The same conclusion is reached
regarding employee Bartram's testimony that shortly after the Union commenced
organizing the employees, she heard Simmermacher, who was speaking directly to
no one person, state, in the store, "If the Union got in that we might be without a
job or our hours would be cut." Simmermacher in his testimony makes no reference
to the foregoing other than his general assertion, above, that "I might talk to myself
a little bit but I don't particularly come right out and discuss my feelings."
Lemon is a clerk in store # 189. Jackson, the manager of the store is his brother-
in-law. Lemon testified that the day before the first union meeting, May 7, Jackson
brought up the subject of the Union. Jackson told Lemon that if the Union came
in there would be a strike and Lemon would have to picket. Jackson explained
"That the Company would not listen to the Union. That if the Union went through
[organized the stores], they would make certain demands and the Company would
0 The aforedescribed five page brochure was not circulated among the employees by
Respondent . Respondent ' s supervisors were to use the material as a guide line in speak-
ing to employees in an effort to defeat the Union . By some undisclosed means the Union
did secure a copy of the brochure.
:1520 DECISIONS OF NATIONAL LABOR,-RELATIONS BOARD
rather strike-than listen to the demands." The evening before the second union
meeting of May,28, Jackson again brought up the union subject. Jackson said to
Lemon "that you realize that if the Union goes through that I will have to be a mean
guy. All special privileges will have to be cut out. For instances, days off, days
off for weddings, switching days with employees...." Lemon testified that Respond-
ent had customarily granted time off for weddings and had been liberal in allowing
employees to switch working hours with each other.io The third occasion on which
'Jackson initiated the union matter was on June 8 when Lemon was at Jackson's
home where the latter was helping Lemon repair something. Jackson said, "That we
would definitely have a strike by mid-July . . . that the Company would not listen
-to demands of the Union. That when the Union brought their demand in front of
the Company, that it would not be accepted " When LemQn said that the employees
wanted the Union to help them, apparently to improve their wages, Jackson said that
"the Company paid 15 percent of the profits to the employees as wages. That if the
Union went through, there would be an increase in wages and that either the number
of employees working or the hours per employee would have to be cut down because
15 percent would stick." Jackson did not testify at the hearing. I credit Lemon's
foregoing testimony.
In our opinion all the quoted statements made by Jackson as set forth above are
violative of Section 8(a)(1) of the Act. First, the Company, Jackson said, would
not listen to the union demands, that is, the Company would not bargain with the
-Union even if the Union organized the stores and the Company would thereby force
a strike. Secondly, if the Union organized the stores, existing working conditions
would be changed by the Company to the employee's detriment. Thirdly, according
to Jackson, the Company had, in effect, an iron law of wages. The Company's policy
was that only 15 percent of net income or profits could or would go to wages. There
would be no collective bargaining on the subject and no matter how the matter was
approached there would be only 15 percent of the "pot." The law, at least, con-
templates collective bargaining on the subject between the bargaining agent and the
-employer and does not contemplate the closed mind which was the picture conveyed
by Jackson.
Glenna Williams, an employee of Respondent for 12 years, is a clerk in store
# 189. About the end of April or early in May 1964, according to Williams, the
following occurred in the store. One of the clerks had just purchased a car and was
-expressing concern about meeting her payments on the car. Jackson, the manager,
at that point, asked the clerk, "How is she going to make her payments when we
were out on strike." The women replied that she was not going out on strike. Jack-
-son replied, "You have to because Peoples Drug Stores will not accept the Union."
About a month later, in the store, Jackson told Williams, "That Peoples Drug would
not accept a Union, that he even heard rumors that they were going to sell out to
Grays Drug before they would accept it." Williams said that the Company could
not do so in the midst of the union drive. Jackson replied that "that was just a
technicality. There were ways of getting around that." 11
Early in May, around the time she signed a union card, employee Clark, a clerk
in store #235, was spoken to by Store Manager Havenhill. Havenhill asked Clark
what her complaints were and why she wanted a union. He said that things could
be worked out without a union. Around the end of May, Havenhill spoke to Clark
in the store and reprimanded her about standing idle and not occupying herself
with certain work tasks. He also said to Clark on this occasion, ". . . You got a job
now but if the Union comes in you might not have a job later." Havenhill admits
asking Clark what her complaints were and that the complaints could be taken care
of without a union. He states that he told clerks in his store that if they joined the
Union they might have to picket. Havenhill asserts that he admonished the girls
10 Switching hours was not uncommon . If one employee was scheduled to work cer-
tain hours on a particular day, he might , in order to attend to some personal business,
arrange for another employee to take his place and then taking the other employee's
work hours. Such arrangments were commonly approved by Respondent.
11 Weaver testified that for the past 15 years there had been at least six occasions when
rumors had occurred of selling Peoples to Grays Drug or to Standard Drug and vice
versa. Assuming such to be the fact, the pointed reference of Manager Jackson to one
of his employees and its timing , in the context of the statement that he had heard that
Respondent was going to sell out to Grays before it would accept a union, cannot be
brushed aside as a statement that would not have the substantial impact that was
obviously intended by the speaker. The balance of the conversation, above, indicates
that Williams took the statement seriously and Jackson , in response , lent emphasis to the
statement . Jackson did not testify.
PEOPLES SERVICE DRUG STORES, INC. 1521
that it could happen that their pay would be attached by the Union to pay for some-
body else's strike. I credit Clark's testimony, above, regarding remarks made to her
by Havenhill. The reference to possible loss of Clark's job if the Union came in
constituted a thinly veiled threat in violation of Section 8(a)(1) of the Act.
Sometime around the first few days in June 1964, employees Clark and Nash, while
at work, wore union buttons about the size of a nickel Havenhill directed them to
remove the buttons or go home. The two clerks did not remove the buttons and
left the store. They went to the union office and told their story to Hennigin. The
latter telephoned Havenhill and told him that he believed Havenhill was violating
the law. Hennigin suggested that Havenhill check with his superiors. Havenhill
replied that he knew the law and did not have to check and the girls could not
come back to work wearing buttons. Hennigin asked if the two girls could come
back without the buttons and Havenhill said yes. Hennigin then prepared and mailed
to the Board unfair labor practice charges against the Company. He instructed the
two clerks to go back to the store without the buttons They returned to the store
with Hennigin. Upon arrival at the store, the girls were informed by Havenhill,
who had spoken to Weaver in the interim, that they could wear the buttons and that
they would be paid for the time they had lost during their brief layoff (1 to 3 hours
approximately), the girls returned to work and lost no pay as a result of their
brief layoff.
Although there was a violation of the Act involved in the foregoing incident, the
circumstances are such that in my opinion it has little significance in itself. No
express finding of a violation therein appears to be necessary or appropriate.
Early in June 1964, employee Edgar was having lunch in the store with employee
O'Connor. Havenhill came over and said that he hoped that Edgar would not let
O'Connor sway her one way or the other regarding the Union. Edgar said that she
could make up her own mind and did not need anyone to sway her. Havenhill
replied, "Well, I hope not. If this thing gets in, it's going to be a terrible thing for
the employees." Havenhill also stated on that occasion that if the Union got in, the
employees would not be able to come to their managers and talk to them "about
anything" and that a union representative would always have to be called in on
such occasions.
As I view the foregoing incident, at least one apparent aspect was that the employ-
ees involved were being told that if the Union got in, an employee could not go to
the manager, as she bad in the past, and asked for a few hours' leave or something
of that nature. If an employee did so, the implication of Havenhill's remarks was
that the manager would not discuss the matter with her but only with a union repre-
sentative. If a union representative was not available, presumably the employee
would be completely frustrated. By his statement, stated not in terms of opinion
but as fact , and stated without reasonable qualification or explanation , Havenhill was
conveying a picture of a course of action, participated in actively by the Employer,
that involved a detriment to employees regarding working conditions if the store
was organized. Moreover, customarily and with few or no exceptions, contract
grievance procedures provide that the employee take up the matter with his immediate
supervisor as the first step in any potential grievance process and there is no general
ban on employees talking to their supervisors. It follows, of course, that such matters
as requests for time off and such are invariably initiated by the employee with his
supervisor in the first instance . Under all the circumstances , Havenhill 's statements
that if the Union came in "it's going to be a terrible thing for the employees" and
that the clerks could not talk to their supervisors "about anything" are found to
constitute interference in violation of Section 8(a)(1) of the Act.''
At some date in the latter part of May 1964, Havenhill spoke with Farmer, a
waitress at the store 's food counter . Havenhill said that there were some things that
he thought Farmer should know. During the conversation, Farmer asked about the
minimum wage law's applicability to the stores and Havenhill undertook to explain
Although his views were not asked for by Farmer on the subject, Havenhill said that
the Union was interested only in dues. He went on to say that the Company's insur-
ance plan for the employees was the best and "there are such things like vacation
plans , your discount , and so on .. ., all these things would be bargaining for if
we got a union in. This may take a period of time, and in the meantime you are
left without. It is something list." Havenhill testified that the only conversation
with Farmer that he recalled was to the effect that the food operations were not
covered by the minimum wage law.
12 In his testimony , Havenhill does not refer to the incident testified to by Edgar
206-446-66-vol. 154-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit Farmer's testimony and find Havenhill statement to be in violation of
Section 8 ( a)(1) of the Act . Havenhill said that , if the Union comes in, various
fringe benefits would cease , including the existing insurance program , employee
discount privileges in making purchases , and so forth . There would be a period
when everything would start from scratch and when employees would have lost all
existing beneficial conditions of employment . This state of loss might continue for
some time for, according to Havenhill , such fringe benefits would return in some
degree only after contract negotiations and agreement between the Company and
the Union . Logically projected , this position would mean also that existing wages
could or would revert back to scretch , e.g., the starting rate or the minimum rate
required by law Havenhill 's statement was, and was calculated to be, coercive
since, in our opinion , an employer may not abrogate legally existing conditions of
employment as soon as a union obtains bargaining rights in his establishment The
parties may and are obligated to bargain about such matters but there is no
automatic abrogation of existing conditions as portrayed by Havenhill.
In the latter part of June 1964, Havenhill spoke to O 'Connor, a regular part-time
employee at the store 's soda fountain Havenhill said that there was no truth to
the rumor that the Company had signed a contract with the Union . O'Connor said
that he had not heard any such rumor but it probably would happen that a contract
would be signed . Havenhill replied , "You better hope that it doesn 't, after all you
are only part time help." Havenhill does not refer to this incident in his testimony at
the hearing . I credit O'Connor and find that the cryptic statement carried, as its
most obvious implication , a warning that O'Connor, a part-time employee, would
lose his job if the Union came in or had other reasons, connected with his particular
job status , for being apprehensive over the possible advent of the Union. The
coercive import is clear and is violative of Section 8(a)(1) of the Act.
Employee Nunez of store #255 testified that Assistant Manager Worth , a super-
visor, spoke to her in May, shortly after the first union meeting . Worth told her
that "the Company would strike before they would have a union" and that with a
union the employees would have less freedom and flexibility with respect to being
on time since they would be required to punch a timeclock by the Company. Worth
testified that he had informed employees that existing benefits could be lost and
desired. Worth said that he had spoken along such lines to Nunez . A violation of
Section 8 ( a)(1) of the Act is found.
On May 8, the day after the first union meeting was held, Bertele , manager of
store # 152, spoke to Houston , a clerk in the store. He said that he wanted to talk
"about the meeting that the girls were at last night ." He asked Houston "if she
knew what the Union was all about" and whether she knew that the dues "would be
as high as $28 a month" and that the girls would never know how high the dues
would be; that there "would be no more contact between the employees and the
managers ; that Houston had four children at home and "if anything happened to
one of them ," he could not give Houston permission to go home because he would
have "to get the union man there first to see if it was all right if Houston went home
if something happened ." Bertele went on to say that there would be no more
Christmas bonus This talk by Bertele went on for 35 to 40 minutes in the store.
The testimony of Houston is not denied by Bertele in his testimony . Houston is
credited . The statement about no more contact between employees and their super-
visor ; the statements about lack of permission to go home in an emergency ; and the
statement about the abrogation of the bonus are found to be coercive and in violation
of Section 8 (a) (1) of the Act.
Early in July 1964 , a few minutes before Houston was leaving the store to go on
vacation , Bertele told her that he wanted to give her a few things to think about on
her vacation. He told her she was quite "union minded " but that if there was a
union she would not be getting an extra week's vacation 13 He also advised her that
if there was a union there would be no bonuses . This uncontraverted testimony is
also credited and found to be in violation of Section 8 (a) (1) of the Act.
About June 30, Bertele , who, with Weaver and the other managers, had received
a letter from the Union signed by employees, attesting to their choice of the Union
and requesting recognition of the Union , asked Burke , an employee in his store,
what she had against the Company . She said nothing . He asked why she had
signed up with the Union and Burke said , for job security. Bertele gave examples
of the existing employee insurance provisions and said that if the Union came in
she would lose her insurance . Bertele testified that he said to Burke that he saw her
name on the letter and asked what her objection was to the Company . She said,
none , but that she was from a union family . This was the extent of Bertele's testi-
's Upon request , the Company granted some employees an extra week of vacation with-
out pay.
PEOPLES SERVICE DRUG STORES, INC. 1523
mony regarding the incident. I believe that Burke was a credible witness and her
testimony is credited. The statement about the loss of insurance is found to be a
violation of Section 8(a) (1) of the Act.
Ligon, an employee in store # 169, testified that early in May 1964, she asked Store
Manager Burt what his opinion was of the Union. She told Burt that she was coming
to him as a friend and not in their employer-employee relation. In the past, Ligon
had gone to Burt for advice on some domestic problems she had had. On this
occasion in May, the only thing that Burt initially replied in response to Ligon' s ques-
tion was that "He was afraid that perhaps the Company would sell out to Grays."
Burt did not testify directly with respect to the foregoing. He did testify that in
his 32 years with the Company he had "heard once that Standard" was going to be
sold to Grays and also that Grays was going to buy Peoples but it was "just rumors."
There is no testimony by Burt or other evidence in the record that there was any
event or any factor that would legitimately lead anyone to say in 1964 that Grays
would or might buy Respondent at that time. The totally unsubstantiated rumor
of Respondent selling out was proclaimed, given respectability, and used by various
supervisors during the union campaign in speaking to employees.14 The obvious pur-
pose was to support Respondent's campaign against the Union.
Whether an employee such as Ligon regarded Burt as a friend, the fact remained
that he was still her supervisor. Indeed, when Ligon approached him as a friend
she was obviously requesting authentic and reliable information about the union
organizational attempt. The only response that Burt made was to express fear that
the Company might sell out to Grays if the Union came in. As mentioned, Burt
was well aware that this was an old and threadbare rumor, totally lacking in any
authenticity. Yet, in May 1964, Burt revived the rumor and lent an aura of
authenticity. The expressed fear of a sale of the Company in the event the Union
came in was being expressed by a store manager to one of his employees. The
impact was apparent since the information was coming not only from Ligon's super-
visor but from a supervisor who presumably was also speaking to her as a friend.
The fact that the employee initially requested Burt's opinion regarding the union
matter conferred no license to exceed the limits of Section 8(c) of the Act and to
utter a coercive statement. A violation of Section 8(a)(1) of the Act is found
herein.
Burgy is a clerk in store # 124. Some time in the first week in May 1964, she
was wearing a union badge about the size of a nickel. Store Manager Suter called
her over that evening and looked at the badge. He told her to take it off ; that he
was still boss of the store; and that Weaver would be quite mad if he saw her wearing
a union badge. Suter also said that if the Union got in the employee would no
longer be a free agent and that she would not be able to talk to him except in the
presence of the union representative Burgy removed the badge and returned to her
work. Early in the union campaign, in May, after a union organizer left the store,
Suter spoke to Burgy and another clerk After saying something about the Union,
Suter said, "Now, I am not threatening you but you can lose your vacation pay,
your sick pay, your hospitalization, your commissions will be lost." A few minutes
later Suter said, "Actually, the Company will fight the Union and they will fight
with whatever means they have to. They will fight the Union all the way."
Around June 14, Burgy again wore the union badge Suter said to her that if
she talked to customers about her union, religion , and such, she was not doing her
job. He said a few customers had complained that she was trying to force her
opinion on them. Burgy said she had never tried to force her opinion on anyone.
Suter then told her to remove the union badge. Burgy said that she did not have to
remove it but would.
Suter testified that when he saw Burgy wearing a union button he asked her what
it was and she told him. He asked her if she thought she should be wearing it,
that the store did not have a union, and she took it off Later, according to Suter,
Burgy resumed wearing the button. Suter states that he did talk to the employees
about the Union. He could not recall speaking to Burgy about discussing religion
and unionism with customers Other than the foregoing, Suter did not refer to the
matters testified to by Burgy. I believe Burgy was a credible witness and it is so
found. Suter's interference with Burgy's wearing a union button and his statement,
in context, that because of or in connection with the Union coming in, the employees
could lose vacation pay, sick pay, hospitalization, and commissions, constitute viola-
tions of Section 8 (a) (1) of the Act.
14 As far as appears , Respondent does not contend that it was a fact that it was going
to sell out to Grays if the Union came in or that any store manager had any basis for
so believing.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burgy testified that in May 1964, probably between May 7 and 28, she had several
brief conversations with Weaver when he was in the store. On one occasion, she
sat at a table with Weaver in the store's restaurant section. The conversation lasted
a few minutes. Burgy testified that she sat and talked to Weaver because Suter and
others had told her repeatedly that under a union or because of the Union she
"wouldn't be able to talk to her employer without a union representative" and "I
wanted to see if I could talk to him without a union representative." In the con-
versation, according to Burgy, Weaver said that "The Company would absolutely
not give anybody more than it wants to" and "the Company also . . . had a policy
in the past, any of the girls that went against policy of the drug store, would not be
tolerated. Also that the Company still had this policy and the girls would not be
tolerated in the future if they go against the policy of the drug store."
Although Weaver testified at the hearing, he did not refer to the aforedescribed
testimony of Burgy and it is therefore uncontroverted. I credit Burgy's testimony.
Considering oli the circumstances, the most compelling inference from Weaver's
remark, that the Company would not give anybody more than it wants to, is that
the brief conversation involved the topic of the Union. In any event, the most
apparent application of the remark during the union and antiunion campaign, par-
ticularly in a conversation with a known union adheient such as Burgy, was that what-
ever the union adherents believed. the Company would not give any person more
favorable conditions than it wanted to or agreed to in the exercise of its managerial
judgment In such a context, the rather cryptic reference in the same conversation
to the fact that it was the past and current policy of the Company not to tolerate
employees who went against the policy of the Company merits attention. The policy
of not tolerating certain employees is clear from the sentence itself. But the non-
tolerable employees were said to be those who opposed Peoples Drug Store policy.
To what Peoples Drug Store policy was Weaver referring and to what policy would
an employee such as Burgy, under the circumstances, reasonably believe he was
referring? It is, in my opinion, almost an inescapable inference that the policy
referred to, and the policy that the employee would know, was the openly proclaimed
policy of the Company to oppose and to fight the union organization of its employ-
ees The managers had been told to speak strongly against the Union to all their
employees and to "sell" them on the Company so that the employees would select
the Union. There was no secret made of this policy of Respondent and the evidence
is clear that it was repeatedly conveyed to employees by their supervisors in no
uncertain terms. In May 1964, when Weaver told Burgy, a known union adherent,
that it was company policy not to tolerate employees who opposed company policy,
he was uttering a rather clear warning and threat. In my opinion, it was a coercive
statement in violation of Section 8 (a) (1) of the Act.'
Respondent, in its brief, states that "there a few cases where the bounds of free
speech may have been exceeded" but suggests that "the incidents were more the
result of the pharmacists [the managers and assistant managers] preoccupation with
the efforts to organize themselves rather than being any evidence whatsoever of an
antagonistic attitude on behalf of the Respondent...."
The record indicates that the Union made a short stab at organizing the pharmacists
of the county in April 1964. Since the pharmacists were almost uniformly supervisory
employees, it was apparent that neither they nor the Union would have access to
Board processes and they would be outside the Act's protection. The Peoples'
pharmacists, several days before April 29, had decided against union affiliation. The
pharmacists from all the stores in the county took the same action on April 29. As
Hennigin testified, the Union dropped the project completely and there is no evidence
that any approach was made to the Peoples' pharmacists after they decided against
affiliation prior to April 29; nor is there any evidence that any organizing took place
on the pharmacist project anywhere in the county after April 29.
During the period before the Union abandoned the attempt to organize the
pharmacists, the latter did discuss the matter with each other It appears that a few
clerks did become aware of the Union's pharmacist effort, principally through over-
hearing portions of conversations in which the pharmacists engaged It is clear
that the pharmacists, the managers, and assistant managers did not discuss with the
clerks nor seek the advice of their subordinates, the clerks, about the pros and cons
of the pharmacists joining the Union. It is equally clear that the union effort to
organize the pharmacists and the effort to organize the clerks were separate projects
and that the compaign among Respondent's clerks was launched by the Union on
15 We have not undertaken to describe all conversations between various supervisors
and employees contained in this record Suffice it to say that the record reflects a gen-
eral campaign in opposition to employees supporting the Union.
PEOPLES SERVICE DRUG STORES, INC . 1525
April 28, a day or so after the Respondent's pharmacists had decided not to join the
Union. The clerks were never informed during the union campaign that the Union
was simultaneously organizing the supervisors. The latter effort had been abandoned
and was replaced by a union campaign among the clerks. In the period when the
pharmacist matter was alive, it was not the fact, and there was no pharmacist under-
standing that it was the fact, that the Union was organizing the pharmacists and
clerks jointly and in one unit. When the managers spoke to the clerks about the
Union, as described above in this Decision, they were not speaking as one employee
to another regarding a union campaign for both managers and clerks. The managers
spoke as managers, as supervisors, to their employees, to implement and to carry
out a company policy of opposition to the Union. Both the managers and the
employees were aware of the capacity in which the managers spoke. During the
union campaign among the clerks, the supervisors were waging a company campaign
against unionization of the clerks , not a pharmacist-manager campaign against orga-
nization of pharmacist-managers. We regard the cases where supervisors were mem-
bers of the same union and were in the same unit as rank-and-file employees and
therefore did not bind management because of their statements as inapposite to
the instant situation.
Union's Request for Recognition ; Respondent 's Response
On June 3, 1964, the Union wrote to District Manager Weaver. The letter stated
that a majority of Respondent 's employees in its stores in the Greater Akron area
had designated the Union as their collective -bargaining representative . The unit was
described and recognition as bargaining agent was requested . A meeting was pro-
posed for June 9. The letter also proposed that the two parties arrange for an
impartial person to check the Union's signed authorization cards against a company
payroll list.
Respondent replied to the Union by letter of June 5, 1964 . The crux of the letter
is as follows:
Please be advised that this company has a good-faith doubt that your union
represents the majority of its employees in any appropriate unit we must decline
recognition . We suggest that you take your claims to the N.L.R B in order
that it may hold a secret ballot election.
Card checks to determine majority status have always proven unreliable. They
can never be an alternative to the democratic process of a secret ballot election.
Therefore , we must decline your suggestion for a card check.
During this period, from the end of April through May and June, the union
organizing drive continued among Respondent 's employees . On June 24, 1964, the
Union presented a letter, addressed to Weaver, at a union meeting . The letter was
then signed by employees who were present at the meeting and, on succeeding days,
ending on June 29, additional copies of the letter were signed by other employees.
Weaver received all the signed letters about June 30 and additional copies of the
signed letters were also sent to Respondent's store managers . The aforementioned
letter said:
We the undersigned employees , members of Retail Clerks Union Local No.
698, are in receipt of your letter dated June 5, 1964, in which you state that you
have a good -faith doubt of our union 's majority status, and decline recognition
of same.
We the undersigned wish to make it known to you that we have freely signed
authorization cards of membership authorizing the Retail Clerks Union to be
our collective -bargaining repi esentative.
The union representatives have suggested that in seeking a contract with our
company we should use good judgment , and ask only for fair wages, fair hours,
fair working conditions .... We the undersigned subscribe to our union repre-
sentatives suggestions ... and hereby adopt them as our proposal of a contract.
We feel that our company 's refusal to recognize our union is based on fear,
mistrust, and misunderstanding that can only be relieved by a meeting between
our company representatives and our union representatives.
We ask that a meeting take place on July 15.... We believe that such meet-
ings can achieve an agreement that is at once both fair to the company and fair
to the employees.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent replied to the foregoing by letter from Attorney Iden of July 6, 1964.
It stated that since receipt of the letter,
. several of the signers have reported to us that the letter did not state their
true desires and that their signatures were placed thereon under the persuasion
of being in company with other employees who were making a similar gesture.
Therefore, we still are not satisfied that your organization represents the majority
of Peoples Service Drug Store, Inc.'s employees.
The letter suggested that the Union resort to the Board to have the issue resolved.
At some date in August 1964, Respondent wrote to all its employees. The sub-
stance of the letter was as follows:
In a recent letter from the Clerk's Union [this letter is not in evidence], you
were given quite an argument on "free" elections. You were given excuses about
why an election could not be held....
At no time has the union requested the NLRB to hold an election. . . .
Peoples has filed a petition on your behalf iequesting the Board to conduct an
election.
All we have ever wanted was an election . . How much longer will the
Union continue to block your right to vote? 16
Returning now to the Union's letter of June 3 and the Respondent's reply on
June 5, it is apparent that while Respondent stated that it had a good-faith doubt
that the Union represented a majority, its basic position was that union authorization
cards signed by employees were unreliable. Respondent was aware that the Union's
proposal that its majority status be verified by an impartial third party checking the
cards against the company payroll was an indication that the Union had secured
signatures of a majority of the employees on its cards. If Respondent entertained
any doubts that a majority had signed cards, the card check proposed by the Union
would have resolved that issue. In the event that the card check had disclosed no
majority, the matter would have been ended. However, if the contrary was shown,
i.e., that a majority had signed cards, Respondent would then have been in a posi-
tion to raise its real contention; namely, that signed cards did not constitute reliable
designations of the Union as bargaining agent.
In rejecting the proposed card check, Respondent used the language of good-faith
doubt of majority. But the asserted doubt, in our opinion, was not that a majority had
signed cards, since Respondent had no basis, and ceitainly no good-faith basis, to
know or to doubt whether or not a majority had signed cards.17 If such a doubt
existed the card check would have resolved it, one way or the other. We believe
that on June 5 and thereafter Respondent was, in effect, saying that, assuming the
Union has a majority of signed cards (an issue that Respondent did not wish to
resolve by the available method of a card check), Respondent will not recognize the
Union on the basis of cards because it is its position that cards are not a reliable
designation of a union as bargaining agent.
It is to be borne in mind with regard to the foregoing that we are speaking of
Respondent's position on June 5 and thereafter, until the end of June, when it
received the Union's letter of June 24. For, roughly, from the beginning of the
union campaign at the end of April, through May and into the first 3 weeks of June,
including June 5, the evidence reveals no persuasive evidence that during this period
Respondent had a basis for doubting that a majority of the unit employees had signed
union authorization cards. Again, speaking of the same period, there is also no
persuasive evidence that Respondent had any basis for believing that the cards had
been secured through force or misrepresentation.
Specifically, the evidence advanced by Respondent in support of its assertion of a
good-faith doubt, consists of the testimony of Weaver. When asked by Respondent's
counsel why, on June 5, he had written to the Union that he doubted the Union's
majority, Weaver replied that "First and Foremost . ," it was because in previous
elections in nine other stores or groups of stores in Respondent's chair, the Union
had asked for a card check. Respondent had refused a card check in each instance.
is The instant complaint was issued July 31, 1964. Respondent filed a petition for an
election on August 3, 1964. Since the above undated letter refers to the petition, the
letter was evidently written on or after August 3. The correct date, according to Re-
spondent 's counsel is August 5.
i7 As Respondent states in its brief, p. 7, "On June 4 Mr. Weaver had no way of
knowing how many had signed cards . . . .
PEOPLES SERVICE DRUG STORES, IN C. 1527
Weaver stated, then, "in the ensuing election afterwards the Union was defeated on
all nine occasions, which would indicate that the card checks as such are unreliable."
The foregoing bears out my conclusion that in the instant case Respondent did not
doubt and had no basis to doubt that the Union had a majority of signed cards.
Implicit in Weaver's testimony is the assumption that in nine prior elections the
Union, since it had proposed a card check, had a majority of signed cards. But
because the Union then lost in nine previous elections, Weaver asserts that it follows
that by signing a union authorization card an employee does not designate or select
a union as its bargaining agent.
Although the previous elections in other stores are not our concern herein and
although we do not know the circumstances of all the prior elections, it is apparent
that there are at least two reasons why employees, who have signed cards designating
a union, would thereafter vote against the Union in an election. One reason would be
that the employees had signed the cards through deception or coercion. The other
reason would be that after signing cards, the employees were subjected to legitimate
persuasion by the employer and were induced to change their minds, or the employ-
ees had been subjected to illegal restraint and coercion by the employer prior to the
election and had voted against the Union because they believed the threats about
losing their jobs or the employer going out of business or similar coercive statements.18
In the instant case, in my opinion, Respondent on June 5 and in succeeding weeks
did not have a good-faith doubt that the Union iepresented a majority. As pointed
out heretofore, Respondent had no basis to doubt that the Union had secured signed
authorization cards from a majority of the employees in the unit Indeed, Respondent
has never asserted that it doubted that the Union had a majority of such cards.
Nor does the evidence reveal that Respondent's professed doubt on June 5 and
based on knowledge or a belief that the union cards had been signed through coercion
or deception.'9
In his testimony, Weaver, after stating the "first and foremost" reason why, on
June 5, he had a good-faith doubt of the Union's majority, went on to give other
reasons. Weaver testified that in going around the stores he knew that some employ-
ees were prounion because,
They avoided speaking to me. If I did speak to them their face would fluster.
They had a sort of a, well, guilty feeling. The general attitude of the majority
of the people however was the same as it always had been, which would indicate
to me that the majority of them were good old Peoples people.
Weaver stated that although a majority of the employees in two or three stores wore
union buttons, he did not regard the wearing of buttons as a significant criterium
since he believed that some employees wore buttons simply for the "devil" of it.
Evidently Weaver chose to ignore the fact or the possibility that employees might
have designated the Union as bargaining agent although they did not wear buttons.
Indeed, in view of the coercive conduct of Respondent and its supeivisors, previously
described, it is surprising that any employee nad the hardihood to wear a button.
Weaver concluded that he felt that the majority of the employees "were still solidly
behind the Company" and opposed to the Union. Interestingly enough, Weaver
is The only one of the prior nine elections about which the record contains definite
information is an election in the Canton , Ohio, area which is a neighboring city to
Akron. The Canton election was apparently nearest in time to the instant organizational
effort and was within the jurisdiction of the same union headquarters that conducted the
Akron campaign. The evidence is uncontroverted that the Canton election was set aside
by the Regional Director of the Board because it was found that the Company's conduct
had made a fair election impossible
IU I regard the Union 's request for recognition on June 3 as a continuing demand and
it is clear that Respondent from the date of receipt of the letter and thereafter under-
stood that the demand was a continuing one. The Union continued its organizational
effort and Respondent continued to resist that effort and the Union's request for rec-
ognition. As late as the end of July and early August, Respondent made it clear that it
understood that the Union was continuing its demand for recognition. Equally clear is
the fact that the Union ' s demand throughout this period was based on the signed
authorization cards that it had secured before and after June 3. Thus, even the June 24
letter was no more than an affirmation that a majority of the employees had previously
signed authorization cards ("We the undersigned wish to make it known to you that we
have freely signed authorization cards of membership authorizing the Retail Clerks
Union to be our collective bargaining representative").
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through the aforedescribed process of divining "guilty feelings" in some employees
and "flustering of face" in others, and in perceiving devilment as the motivation for
the wearing of some union buttons, asserts that he was convinced that the majority
of employees were still "good old Peoples people," meaning nonunion. Weaver,
however, was at the same time opposed to having signed union cards checked against
a company payroll by a third party to determine the sentiments of employees because
he asserted that the method was an unreliable means of determining whether a
majority had or had not designated the Union as their representative.
After testifying, as described in the preceding paragraphs, regarding the reasons
for his doubt about the Union's claimed majority, Weaver went on to discuss con-
versations with Respondent's attorneys and the filing of a petition by the Company.
The witness was then asked by Respcr:dent's attorney:
Were there any voluntary statements made to you by any of the employees at
this time, June 4th or 5th, in that area, or prior to that time?
Up to this point, Weaver had completed the reasons, described above, why he had
doubted the Union's majority claim. He had said nothing about statements from
employees as being a factor in the asserted doubt. But, in response to counsel's
question, Weaver replied:
Well, yes. They were not made directly to me. They were made through
managers which of course we discussed. Several of them indicated that they
had signed the card to go along with the crowd and get the rest of the people
off their back that were bothering them....
No employees were named who had assertedly told the unnamed managers about
why they had signed a union card. Although many employees testified in this hearing,
immediately thereafter, had informed a supervisor that he or she had signed a
union card to go along with the crowd or to get people off their back. There is no
testimony by any of the managers or assistant managers that any employee informed
them that he or she had signed his or her union card to go along with the crowd
or to get people off their back or that any such report was given to Weaver by a
manager or assistant manager before the end of June.20
We have now reached the point where, in my view, it is manifest that Respondent's
asserted good-faith doubt was neither a doubt regarding the Union's claim that it
represented a majority and had the signed cards to prove it, nor was it a doubt
based on a belief that the signatures on the cards had been secured improperly
Respondent refused the Union's demand for recognition as a matter of policy.
Respondent required that the matter of majority be decided by an election and
refused recognition unless the Union won an election.
Although the Act provides that a union "designated or selected" for collective
bargaining by a majority of the employees in an appropriat unit "shall be the exclusive
representative of all employees in the unit" and that it is an unfair labor practice for
an employer to refuse to bargain with such representative,21 I would give careful
and sympathetic consideration to a situation where the only facts were that the union
claimed recognition on the basis of cards and the employer, engaging in no unfair
labor practices, and in good faith, regardless of the degree of doubt, took the position
that an election should be held to resolve the issue.22 But the instant case, in my
opinion, is far removed from a situation where an employer, with clean hands,
although conceding that a union may have a card majority, urges that the Board
and the courts as a matter of policy should give preference to elections as a method
of determining majority. In the case before us, the widespread coercion indulged
in by Respondent, in violation of Section 8(a) (1) of the Act, compels the conclusion
that Respondent's advocacy of an election was a device to gain time to undermine
the Union and that its expressed doubt as to majority was not made in good faith. It
is one thing to say that both sides should be permitted to campaign fairly with the
40 At the end of June, after receipt by Respondent of the Union's June 24 letter, cer-
tain employees did, as we shall see, advise some supervisors about their personal feelings
in having signed the June 24 letter.
a Section 9(a) ; Section 8(a) (5).
22 I do not propose to detail here my views regarding the question of good-faith doubt
and other factors that would have to be discussed in the supposititious case, including
decisions of the Board and the courts.
PEOPLES SERVICE DRUG STORES, INC. 1529
ultimate decision then resting in an election, and quite another thing to advocate an
election as a means to allow illegal coercion of employees and thus undermine the
designations previously secured by the union 23
As has been seen, there is no persuasive evidence that, in the period prior to, and
on and from, June 5, 1964, when it replied to the first letter from the Union, Respond-
ent had any reasonable or good-faith basis for doubting the Union's claim to majority
representation. I am also of the opinion that the Union, from June 3 onward, was
making a continuing demand for recognition upon Respondent and that Respondent
so understood and continued to refuse recognition from June 5 and thereafter. The
union letter of June 24, signed by employees, and received by Respondent at the end
of June or first of July, was simply a reiteration of the Union's original and con-
tinuing demand of June 3. As had the June 3 letter, the letter of June 24 asserted
the Union's majority and requested recognition. The June 3 letter sought to prove
the majority claim by having signed authorization checked by a third party. The
June 24 letter still sought recognition and endeavored to prove the majority claim
by affirming that the employees signing the letter had indeed signed the union authori-
zation cards.
Respondent's asserted good-faith doubt in its letter of June 5 and the continuation
of the position thereafter, and its reassertion of this position in its letter of July 6, is
effectively refuted by the illegal conduct of Respondent during this period. However,
aside from the refutation of good faith by reason of Respondent's course of illegal
coercion, I have previously described why on June 5 and thereafter Respondent had
no reasonable or good-faith basis for doubting the Union's claim to a majority. In
my view, Weaver's testimony regarding his discernment of union sentiments, pro or
con, by the observance of purported guilt feelings among some employees, or of
flushed faces and so forth, was unconvincing. I also propose to examine the informa-
tion that Respondent received after receipt of the June 24 letter since Respondent
points to such information as the reason why, on July 6, it continued to doubt the
Union's majority claim.
Weaver testified that after the June 24 letter was received by him and by the store
managers, about a dozen employees came to various store managers and reported
that they had only signed the letter because they were in a group of other employees
at the time of signing and had signed under group pressure. Weaver named nine
employees who, after the letter had been received by the managers and Weaver, had
talked to the store managers about their signing of the letter. This number was
reduced to eight, since Weaver later stated that one of those named, Wright, had not
signed the letter. Weaver states that one of the eight, Nervo, spoke to him directly
and told him that she had been told that by signing the letter she would be doing
Weaver a favor. The others, according to Weaver, informed their respective store
managers as follows: Willison told her manager that she was mad because she
thought that it was to be secret and she was unhappy that the letter and the signatures
were publicized; 24 Coger was unhappy because she allegedly claimed that she had
not fully made up her mind; Cowan allegedly said the letter did not represent her
"true wish" and actually she did not want to collaborate with the Union; Tubbs said
she was pressured into signing the letter; Trusley said the same. Weaver does not
say what Holbrook told her manager.
I believe that it is important to bear in mind the situation in the stores at the time
the June 24 letter, with the employee signatures thereon, was received by Weaver and
the managers. From the end of April, through May, and until the early part of
June, employees had signed union authorization cards and had attended union meet-
23 "But the Company may not now claim that it ,has a right to such an election after
having first attempted to defeat the Union by means of conduct violative of Section
8(a) (l) such a rule would encourage employers to commit unfair labor practices
rather than promote the freedom of employees to decide for or against a union in an
atmosphere free from restraint or coercion . . . N.L.R B. v. Overnite Transportation
Co., 308 F. 2d 279, 283 (C A. 4) ; N.L R.B. v. Trinifit of California, Inc., 211 F. 2d 206,
209-210 (C A. 9) ; Joy Silk Mills, Inc. v N.L.R B , 185 F. 2d 732, 743 (C A.D.C.), cert.
denied 341 U S. 914. See also United Mine Woikers v. Arkansas Oak Flooring Co., 351
U.S. 62, 71-72.
24 There is no doubt that the evidence clearly shows that the employees who signed
the letter knew that it was going to be sent to Weaver. At least some of them apparently
did not know that copies of the letter , including the signatures , were also going to be sent
to their respective store managers.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings They did this during a massive antiunion campaign by Respondent But with
respect to many, if not most, of these employees, their signing of cards and other
prounion expressions were not manifested to Respondent There were a few hardy
souls who were openly prounion but no employees had told Respondent that they,
personally, had signed union cards (Weaver testified, "Nobody had told me that
they had signed a card ") The receipt of the June 24 letter, with the signatures by
Weaver and the managers, removed the veil of secrecy and anonymity from many.
In view of the hostility toward the union effort, including threats of sale of the stores
and loss of jobs and benefits by the managers and by Respondent generally, it is not
surprising that some protective trimming of sails and hedging should have occurred
by some of these women when then names on the letter came to the direct attention
of their supervisors It is questionahie that Respondent should be heard to point to
wavering and doubt among certain employees regarding the Union, as a basis for
Respondent's asserted good-faith doubt regarding the union claim, when Respondent
itself created the atmosphere that would cause employees to be apprehensive about
having signed the letter that revealed to Respondent that they had aligned themselves
with the Union.
That the foregoing appraisal is based upon the record is borne out not only by my
observation of the witnesses but upon other evidence in the record.25 Thus, Beightol
was an employee called as a witness by Respondent She testified regarding the union
meeting at which the June 24 letter was signed by employees. Referring to the
hesitation of employee Tubbs to sign the letter, Beightol testified that, at the meeting,
she, Beightol, had said to employee Trusley, one of the people who subsequently
went to Respondent,
Look, Tubbs isn't signing She is the only one that's got any sense. If we
get fired she might as well join the bunch.
Q What did you understanding the danger in signing a letter like that ...
A. I felt that we would all get fired.
Store Manager Burt, another witness of Respondent, testified that after the June 24
letter was received by Weaver and the managers, certain employees, including Tubbs,
Trusley, and Beightol, approached him and he reported to Weaver "that there was a
change in some of them " [Emphasis supplied ] Manager Bertele testified that after
he received a copy of the June 24 letter, he said to one of his employees, "I see your
name is on this letter; what is your objection to People's Drug Stores9" Manager
Simmermacher testified that after he received the letter, he was reading it in the store.
Employee Coger asked him what he thought about it According to Simmermacher,
he said that he "couldn't understand" the employees signing the letter Simmer-
macher testified that employees Coger, Cowan, and Willison told him that "They
didn't realize that it [the letter] would be going to all the managers at the same time
they signed it" and they were concerned, according to Simmermacher, that the letter
indicated that they were members of the Union. In view of Simmermacher's oft-
expressed antiunionism, it is little wonder that employees in his store were concerned
when he saw their names on the letter 26
Unit Issue
It is found that the appropriate unit is- All full-time and regular part-time employ-
ees employed at Respondent's stores located in the Greater Akron, Ohio, area, exclud-
ing seasonal employees, store managers, assistant store managers, executive trainees,
confidential employees, all guards, professional employees, and supervisors as defined
in the Act.
25 All the employers referred to by Weaver, regarding events after receipt of the June 24
letter, testified at the hearing
ieAlthough employee Nervo was called as a witness by Respondent, she did not testify,
as Weaver had asserted, that she had told him that she signed the June 24 letter be-
cause she was told that she would be doing Weaver a favor thereby Nervo says nothing
about speaking to Weaver. She did testify that she had read the letter betore signing
it but understood that the letter was to get Weaver to bargain with the Union and also
to bargain about an election For reasons that will be discussed later, I do not believe
that Nervo was told that one of the purposes of the letter was to bargain about an elec-
tion For one thing the letter is clearly a demand for recognition and for contract
negotiations and nothing else Nervo also stated that, prior to the hearing, Respond-
ent's counsel had interviewed her on three occasions during which she told him that in
signing a card and the letter she understood that there would be an election This matter
of the interviews will also be discussed at a later point
PEOPLES SERVICE DRUG STORES, INC. 1531
In its answer, Respondent does not deny the appropriateness of the unit and the
unit was not an issue in Respondent's refusal to recognize and to bargain with the
Union. At the hearing, however, it developed that the General Counsel would exclude
two employees as supervisors and Respondent denied that they were supervisors.
The General Counsel would also exclude one part-time employee from the unit on
the ground that the employee did not have sufficient community of interest with the
other employees in the unit. Respondent would include this employee
At two of Respondent's stores in the Akron area there are food counters or restau-
rant facilities. The store manager, who is a pharmacist, and the assistant manager
are the two top supervisory employees in each store. Kunstek at store # 144 and Kelly
at store #235 have the payroll designation of food manager. About five or six
employees work at the food operation with Kunstek and about seven work with
Kelly The food managers receive about 10 to 20 cents more per hour than the
other food employees, and the food managers also participate in a monthly bonus
based on the gross volume of the food business. Weaver stated that the bonus is
approximately 2 percent and if the gross volume is $4,000 this would mean a $400-a-
month bonus 27
The food manager generally interviews the applicants for employment in the food
operation and makes recommendations to the store manager or assistant manager
regarding hiring Although the final word on hiring rests with the manager or his
assistant, the food manager's recommendation is generally followed. Employees
have been hired without any interview except that of the food manager and the latter
instructs the new employees as to the nature of her duties. The food managers work
in close proximity to the other food employees and do the same basic work although
the food manager is primarily the cook and sandwich maker and the other food
employees serve the food as waitresses The food manager assigns the other food
employees to their particular stations at the counter or otherwise. When a food
employee desires time off or such, she makes the request to the food manager The
latter may make the decision on the request or she may speak to the store manager
before doing so. When a food employee is not coming in to work for some reason,
she calls up the food manager and advises her of the situation. The food manager
makes up the weekly work schedule for each of the food employees. The schedules
varies week by week since an effoit is made to assign hours on an equitable basis.
The food managers discharge emplo} ees after discussion of the food manager's recom-
mendation with the store manager.
I find that Kelly and Kunstek are supervisors within the meaning of the Act with
respect to their food employees and they are, therefore, excluded from the unit.
Turner has been a regular part-time porter or janitor for about 4 years in store
# 119. He works on Saturdays between 6 and 10 p.m., 4 hours a week. He sweeps,
scrubs, washes windows, and empties trash. He is hourly paid Turner appears to
have no immediate supervisor other than the fact that the store manager is in charge
of the store An employee who works in store # 119 testified without contravention
that Turner also has another job with another employer. According to the witness,
Bittinger, Turner is allowed to leave when he completes his work in the store.
Although Turner's schedule is 6 to 10 p.m, he sometimes works from 7 to 10 p.m.
or 6 to 9 p.m , leaving upon completion of his work. Respondent deducts social
security and related taxes from Turner's pay.
Although in some respects Turner appears to have a minimum community of
interest with other employees, I find him to be a regular part-time employee sharing
a basic interest with other employees. We include Turner in the unit.
For the payroll period ending June 6, 1964, there were 123 employees in the
appropriate unit 28 On the payroll ending July 4, 1964, there were 129 employees in
the appropriate unit.29
in This is Weaver ' s testimony . I will assume an approximate bonus of $40 per month
without going into the computation
0 These 123 employees remained in Respondent ' s employ thereatter with the exception
of Judy McCall, who transferred out of the State on June 27, 1964, and Max Jones,
who resigned on July 13, 1964.
25 On both payrolls , I have excluded Food Managers Kunstek and Kelly because of their
supervisory status. Jerry Henderson appears on Respondent ' s June 6 payroll but not
on the July 4 payroll. Charles Henderson appears only on the July 4 payroll. I in-
clude Jerry Henderson in the unit for the June 6 period but not in the July 4 period
Charles Henderson is included only for the July 4 period Jerry Henderson was the
porter in store #235 until he became ill sometime in early June 1964 Apparently with
the acquiescence of the Employer , Jerry arranged for his brother, Charles , to take his
place until Jerry was able to return to work. Charles commenced work at store #235
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Majority Issue
The evidence persuades me that the union organizers made it clear to the employees
that they were seeking to organize them into a union and that the Union was a means
of obtaining better wages, working conditions, and various fringe benefits. The union
authorization card was presented to employees as the means by which an employee,
by signing the card, could signify that he or she was in favor of a union. The cards
themselves were plain enough on their face.30
The employees were predominantly female retail store clerks, possessed, in my
opinion, based upon observation of many of them as witnesses, of an average educa-
tion and intelligence. The male clerks and the few porters involved also appeared to
have had average education and intelligence. Some employees signed their cards in
the store in the presence of the organizers; many employees took their cards home,
signed and dated their respective cards, and mailed them to the Union; a few employ-
ees were visited at their homes by the organizers and signed cards at home; cards
were mailed to some employees at their homes and were signed and returned to the
Union by mail or in person; and some cards were signed at union meetings. The
evidence is clear regarding the authenticity of the cards introduced at the hearing;
i.e., that the signatures are authentic and that the dates thereon are accurate.
As mentioned, the cards were signed over a period commencing on April 28, 1964,
and on succeeding days through May and into June. During this period, the orga-
nizers, in addition to coming into the stores to distribute union literature and to obtain
signed authorization cards and visiting some employees at their homes, conducted
union meetings at the union headquarters in Akron The union meetings were held
in the evening after the stores had closed. The dates of the meetings were May 7
and 28 and June 24.
I am fully aware that on the matter of what was said by the union organizers to
employees at meetings and during the course of the campaign, the union organizers,
as witnesses, were interested parties. Other witnesses, also, in this area, were appraised
in the light of their objectivity, demeanor, and pertinent surrounding circumstances.
The record persuades us that the campaign by the Union was not conducted by
strong-arm methods or by threats. The general theme and approach was that,
through the Union, better wages, hours, and working conditions were attainable and
that if you wanted a union you should sign a union authorization card. Union cards
were signed, not in a vacuum or passive atmosphere, but in an atmosphere of strong
and massive opposition by the Employer and its supervisors. A substantial number
of employees never signed a card or letter or attended a union meeting. Presumably,
on June 7, 1964. Jerry had two jobs and at some point during his illness he decided
that he was physically unable to continue holding his job with Respondent in addition
to his other job. At some date after June 7, Jerry told Charles that the latter could
have the job permanently since Jerry had decided that he was unable to return to the
store. Charles then informed the store manager that Jerry would not return to work.
Since Charles continued to work at the store thereafter and appears on the July 4 payroll
without qualification (and Jerry' s name does not appear either as on leave or otherwise),
it appears that all concerned considered that Charles was the permanent replacement
for Jerry. Charles quit subsequently on September 12, 1964, because he was dissatisfied
with his earnings.
30 The card was legibly printed and read:
Retail Clerks International Association
(affiliated with the AFL-CIO)
Confidential
AUTHORIZATION FOR REPRESENTATION
Desiring to enjoy the rights and benefits of collective bargaining I, the under-
signed employee of the ----------------------------
(Firm name)
Employed as_____________________ Dept. or Store No.________________
Home Address-------------------- Phone --------------------------
City ---------------------------- Zone --------------- State -------
hereby authorize Retail Clerks International Association, AFL-CIO or its char-
tered Local Union to represent me for the purposes of collective bargaining, re-
specting rates of pay, wages, hours of employment, or other conditions of
employment, in accordance with applicable law.
------------------------ ------------------------
Date ( Signature of Employee)
PEOPLES SERVICE DRUG STORES , INC. 1533
these were people who did not want a union, or they did not wish to signify by any
overt signing of a card that they wanted a union, and they therefore did not sign a
card authorizing the Union to represent them for collective bargaining. Cards and
letters signed in the stores during working hours were, in a sense , signed in a citadel
of antiunion hostility and it was not difficult not to sign a union card or letter in
such an atmosphere, with the manager and assistant perpetually present in the back-
ground Cards that were taken home by employees and there perused, signed, and
mailed to the Union comprise a large number of the cards. In the same category
were cards mailed to the homes of employees and there signed and then mailed to
the Union or handed to a union representative the next day. The cards that were
signed at the homes of employees when organizers visited the home were signed at
the employee's personal locus. There was no requirement that organizers had to be
admitted into the home. Most of the employees were mature married women with
a husband or family members at hand. The employee was on home grounds and if
he or she did not wish to sign a union authorization card they were in excellent
position to refuse to sign. It is a fair inference that the employees who never signed
cards had been solicited at the store or at home, probably both, and because they
did not choose to sign a card, they did not sign and the Union has no authorizations
from such people. As to employees who signed cards or letters at union meetings,
it is to be noted that the meetings were held in the union hall after the stores had
closed and the closing time of the stores was 10 p.m. The fact that after a day's
work in the store, employees took themselves to a late evening union meeting, on
their own time, is in itself some indication of a definite interest in the Union. Employ-
ees who were opposed to the Union and did not want a union could easily pass up
such meetings and, unquestionably, did so. Employees who might have been urged
to attend by fellow employees could have found innumerable reasons why they could
not attend. They could, of course, say they were not interested in the Union or that
they were tired after working all day or that their husband or wife was expecting
them, or that their children were ill or waiting, or that they had another engagement
Even in a democratic society such as ours, there appears to be almost a built-in
resistance in people to give up free time to attend civic, labor, political, or religious
meetings. Although nonattendance at such meetings may be attributed to inertia
and not necessarily lack of interest, it can also be attributed to lack of interest. But
attendance, under the circumstances described, and in the case of these union meet-
ings, indicates little else but a definite interest in the Union. This is particularly true
in the instant case where the Employer's strong opposition to the Union was known 31
In view of all these considerations, the fact that some cards were signed at union
meetings in no way depreciates their significance.
Although the nature of this record is such that I deem it appropriate to consider
in detail the authentication of individual authorization cards and the signatures on
the June 24 letter, including the surrounding circumstances and the testimony
involved, the following findings are made initially, based on the credited testimony
of Union Representative Hennigin and various employee witnesses.
As mentioned previously, there were three union meetings , May 7 and 28 and
June 24, in the April-June period. At the two meetings in May, the union represent-
atives were apparently devoting much of their talks to the value of the Union for
the employees and making a general "sales pitch." Securing the support of as many
as possible of the employees was no doubt urged. I find that it was not said or
intimated that the signed cards did not mean anything or that the cards had as their
sole purpose the securing of an election by the Board. The standard procedure,
subsequently confirmed by the Union's June 3 letter to the employer, was explained.
The procedure was that when the Union had secured signed cards from a majority
of the employees, it would write to the employer, asserting that it represented a
majority, ask for recognition as collective-bargaining agent, and propose that an
impartial third party, such as a local minister or comparable person, check the union
cards against the names of the employer's payroll.32 The employees were also told
at the meetings aforementioned that if the employer refused to grant the Union recog-
°Aside from the general opposition to the Union previously described in this Decision,
there is convincing evidence regarding supervisors' attempts to discourage employees
employees from attending union meetings as well as interrogation as to attendance
as The Board's experience will show that the well-nigh universal approach b^ a union
to an employer in the first instance is that which was followed in the instant case.
There are sometimes minor variations. For instance, claim of majority, demand for
recognition ; employer express doubt of majority, union counters by offering to have cards
checked, usually by third party, occasionally by employer himself ; or , as here, the claim
and proposed card check are included in the initial letter.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nition , the Union could petition the Board for an election . Probably both the orga-
nizers and the employees deemed the prospect of recognition of the Union by Respond-
ent without an election as dim. An election was discussed . At the May meetings,
the foregoing was the status of the union situation It is apparent that what remained
and what had to be first accomplished was to secure a majority , then write to the
employer as described , and to await the employer 's reply. Except as indicated, the
possibility of an election was a future but real contingency that would not be reached
until the majority was secured , the claim made , and the answer received 33
By June 11 , 1964, following Respondent 's refusal to grant recognition or to agree
to a card check , the Union decided against petitioning for an election . The record
indicates that this decision was made because it was felt that , in view of Respondent's
unfair labor practices , a fair election was impossible and because the Union believed,
based on what it considered to be reliable past experience with this employer, that in
the period immediately preceding an election date the intensity of the antiunion cam-
paign would be "10 times " greater than what had already occurred . 34 A refusal-to-
bargain charge was filed with the Board against Respondent on June 11, 1964.
In view of this fact , it would seem highly unlikely that the Union was thereafter
telling employees that there would be an election or telling them that it was writing
to Weaver on June 24 to ask for an election.
The June 24 meeting of the Union was announced to be for members only. The
Union classified as members these employees who had previously signed cards
authorizing the Union to represent them for collective bargaining . Four or five
persons, including employees and possibly spouses of "members," came to the union
hall on June 24 but , since they did not come within the classification of members,
they were asked to, and did, wait in an adjoining room Hennigin presided at the
meeting and went over the entire picture of the campaign . He referred to the button
incident where the Union had filed, charges against Respondent for sending two
employees out of the store because they refused to remove union buttons. He read
from some campaign literature that the same employer had used in a campaign
involving the Washington , D.C., stores that the Union had sought to organize. He
read from the report of a Board hearing officer involving conduct of the employer
in another election situation , where the election was set aside. Hennigm said that
the same sort of things were happening in Akron and that it was impossible to have
a fair election. He mentioned that the Union had filed refusal -to-bargain charges
against the Akron employer . Hennigin announced that since Weaver had said that
he doubted that the Union represented a majority , the Union had prepared a letter
(the June 24 letter ) that the Union proposed to send to Weaver with the signatures
of employees thereon. This letter, with signatures , said Hennigin , was written to
remove Weaver 's doubts that the Union represented a majority. The letter was then
read by Hennigm . Those present were then asked to come to the front and sign the
letter to Weaver 35 There were apparently about 55 present and all except 1 came
forward and signed, seriatim , the copies of the letter on hand. Employee Tubbs, a
middle-aged woman, did not come forward to sign but remained in her seat . Hennigin
testified that he carried the letter to where Tubbs was seated and asked her if she
wanted to sign and she said , yes, and did so.36
"The record shows that the Union was well aware that it needed only a showing of
authorization cards from 30 percent of the employees to secure an election and it had
secured 30 percent early in May. It would seem that if the Union was campaigning
solely , or principally , on the theme of an election , it would have moved in that direction
as early as May. Instead , and in confirmation of the findings made above , nothing was
done about an election , and the letter of June 3 was sent.
84 In an election in the Canton area with this employer , the union ' s objections were
upheld and the election was set aside by the Board because of the employer ' s conduct
Speaking in the abstract and in general , the setting aside of an election can frequently
have no practical effect . If employees have been told by the employer before an election
that a plant will close if the union wins, the setting aside of the election simply means
that another election can be held Since the impact of the prior threats remain, even
if not reiterated , a second election may be futile.
Although the letter had been read aloud, some of the employees also read the letter
to themselves at the meeting before signing Evidently , some did not read the letter
after it was read aloud. All employees involved were sent copies of the letter in the
mail by the Union after the meeting No one came to the Union thereafter to disavow
his or her signature or to revoke it or to say that they had not known the contents of
the letter
36 The Tubbs aspect will be discussed later in greater detail
PEOPLES SERVICE DRUG STORES, INC. 1535
Before considering the testimony of individual employees with respect to their
designation of the Union as bargaining agent, I will discuss an important background
factor that I have taken into consideration in appraising the evidence as a whole and
in individual situations. There is no need to reiterate the general background of
Respondent's strong and outright opposition to the Union. This was always and
inevitably a factor that, in my opinion, was in the minds of employee witnesses at
the hearing. As was said by the Court of Appeals for the Fifth Circuit in another
connection, "No employee will want to risk forfeiting the goodwill of his superiors,
thereby lessening his job security and promotion opportunities." 37 This psycho-
logical atmosphere became more acute after the complaint issued and the case was
set for hearing. The issues were sharply drawn and the stakes were high. Individual
employees were to be called as witnesses and examined and cross-examined. In my
opinion, some of these witnesses hedged or qualified their testimony not because they
deliberately wished to be untruthful but because, perhaps only subconsciously, they
were unwilling to cast themselves adrift entirely from the goodwill of their employer.
That the foregoing is an accurate appraisal becomes even more apparent when we
consider the interrogation of potential employee witnesses by Respondent's counsel
prior to the hearing. I do not in the least question counsel's right to interview and
to question witnesses or potential witnesses or others in preparation for trial But
the relationship of employee to employer is, in many respects, special and unique
and counsel for the employer, in questioning employees, wears the mantle of the
employer in substantial degree. A delicate balance must be struck between the legiti-
mate interest and right of counsel to prepare his case for hearing and the interest of
the employee in being free from unwarranted pressure, suggestion, and interrogation.
This is particularly true where the employees are aware that counsel represents an
employer who has openly declared his strong opposition to the Union or to anything
that favors or helps the Union. In my opinion, counsel for Respondent in the instant
case has tapped the balance in an unwarranted degree and aside from the interference
with employees' rights under the Act I have considered this factor in appraising
the testimony of witnesses in this record.
Before undertaking to illustrate the basis for my opinion, I wish to state that from
my observation of counsel at the hearing, my view of the impropriety of much of
his questioning of employees is not based on any belief that counsel's manner or
social deportment in questioning witnesses was in any was objectionable. Counsel
identified himself; he was, I am sure, courteous and polite; he did not threaten anyone
or force anyone; he undoubtedly was at all times a gentlemen. I part company on
the area of the questions and on the score that the questions carried suggestive impli-
cations whether so intended or not. And, as in all walks of life, employees are each
different Some would be affected very little by such questions, while, in others, the
seeds of doubt and irresolution would be planted and take root in various degrees.
Employee Arnold testified that about a month before the commencement of the
instant hearing in October 1964, Respondent's attorney interviewed him and "wanted
to know `if I was still going to vote for the Union, why I signed; why I wanted the
Union ' Stuff like that." On cross-examination, Respondent's counsel, inter aba,
asked.
Q. And I asked you about this voting ; I was talking about what your opinion
was at the time of June 3d and at the end of June isn 't that right?
A. Yes.
The witness also stated that he likewise believed and understood that counsel, at the
time of the interview , had asked him his views regarding the Union at that time; i e.,
in September , when the interview occurred 38
Employee Webb testified that she was asked by Respondent's counsel, a few weeks
before the hearing, "if I had signed a card, whether I wanted to vote for the Union
. would I sign the card again if I had the privilege."
Employee Mattingly was interviewed twice by Respondent 's counsel, once around
the end of July and the second time about 3 weeks before the hearing. On the first
37Texas Industries, Inc, et al. v. N.L.R.B. , 330 F 2d 128 , 134 (C.A. 5).
38 The testimony of the various witnesses who referred to their prehearing interviews
by Respondent' s counsel is uncontroveited and, except for a few details, counsel' - ques-
tions on cross -examination , by their contents , tend to confirm the general nature of the
interviews as testified to.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion , she was asked if she had signed a card; when she said, yes, she was asked,
whether she would have voted for the Union; also when she signed the June 24 letter,
whether she would have voted the Union. Apparently, at the first interview, Mattingly
said that she had not made up her mind but when the same questions were asked at
the second interview she said, yes, on both counts, as to whether she would have
voted for the Union.
Employee Willison testified that Respondent's counsel interviewed her twice, once
"right after the letter was sent to Mr. Weaver [the June 24 letter]" and the other
time was after she had received a subpena from the General Counsel to testify at the
hearing. Counsel in these interviews said that "Evidently you signed the card" and
the girl said, yes. Counsel asked her, "If I [she] went to court, would I say for the
Union or against the Union-for the Union or for the Company." She told him
that she did not know, that she would just tell the truth. In the course of the inter-
views Willison said that she thought that the cards would be kept secret and she had
thought, although the union representative did not say so, that there would be an
election. She told counsel at that time that she favored a vote and that she should
not have to tell him whether she was voting for the Union or against.
I do not propose to describe all the instances in the record where employees were
questioned by counsel along the general lines already indicated and it seems a fair
inference that other employees who testified were similarly questioned although many
were not asked at the hearing if they had participated in such interviews. I will,
however, refer to the instance of employee Sylvester Sims, a porter in one of the
stores, who was called by the General Counsel to identify his signature and date on
his authorization card and his signature on the June 24 letter. Sims impressed me
as having average intelligence and education. Sims authenticated his card of
April 30, 1964, and his signature on the letter. On redirect examination, it came to
light that Sims had been twice interviewed by Respondent's counsel in the period
after the signing of the above instruments, the card and the letter, and before the
hearing. Sims testified that counsel asked him about the Union and said that it is
"up to you as far as the Union is concerned." Counsel also asked, "As far as an
election had of come up [if an election came about or did come about] what do you
feel about the matter now? Well I [Sims] told him. `As far as the Union is con-
cerned, I made up my mind not to particularly want the Union.' That is what I
told him."
In the light of the foregoing, and all the circumstances in this case, and the testi-
mony of the numerous employee witnesses that I heard and observed, I can under-
stand Sims' statement as an employee in the interview, that he had decided not to
particularly want the Union. But the issue is, did Sims, on April 30 when he signed
a card designate the Union as his bargaining agent and did he affirm that fact when
he signed the June 24 letter or did he sign because he was coerced or deceived.
Under the circumstances, as in the case of all witnesses, it was my function to
attempt to evaluate all of Sims' testimony. On cross-examination Sims was asked,
regarding the card:
Q. Did you understand what you were signing?
A. Yes. To sign for a union.
Also, on cross-examination, regarding the signing of the June 24 letter, Sims stated:
... They just read the letter, that this letter would be sent to Mr Weaver's office
and those who wanted the Union to sign the letter. So, therefore, I went along.
I signed the letter.
Q. At the time did you want the Union to bargain for you with the Company,
at the time you signed the letter.
A. Yes, at that time (as mentioned, after being interviewed by counsel, Sims
informed counsel that he, Sims, had decided not to particularly want the Union).
There is no doubt in my mind that Sims and a great many other employees signed
the card and the letter because they wanted a union and for no other reason. The
point of going into some detail regarding Sims is that notwithstanding the situation
on April 30 and June 24 when the card and letter were signed, the impact of the
subsequent interviews by Respondents counsel, the nature of the questions, and
Respondent's general antiunion campaign, prior to the hearing, was such that Sims
had decided, as he said, to tell counsel that he did not particularly want the Union.
It would not have been surprising if a less candid witness than Sims and other
employee witnesses, who were in much the same posture, had testified in October
PEOPLES SERVICE DRUG STORES, INC. 1537
with qualifications and ex post facto rationalizations regarding their actions in the
April-June period.39
We come now to the actual determination of the majority issue. The following
persons are employees within the unit and I make the determinations indicated as to
whether or not, and when, each did or did not select or designate the Union as
bargaining agent.
Hooper signed card 40 May 5 and signed the letter June 24, 1964.
Bartram signed card May 1 and signed letter June 24.
Coger signed card May 1 and signed letter June 24. Testified that she knew card
authorized Union to represent employees in dealing with Company. Also that letter
was read to employees at June 24 meeting and then she signed, later receiving copy
of letter in mail.
Cowan signed card May 7 and signed letter on June 29 in her home.
Davisson signed card May 7 and signed letter June 24.
Harkins signed card May 11 and signed letter June 24.
Keener signed card May 8 and signed letter June 25.
Luplow signed card May 14 and signed letter June 24.
Willison signed card May 1 and signed letter June 24. Testified that letter was
read at June 24 meeting and she signed. She received a copy later in the mail. No
one had told her she had to sign letter.
McCall, G, signed card May 2 and signed letter June 24.
Hunt signed card May 15 and signed letter June 24.
Mann signed card May 5 and signed letter June 24.
Petrie signed card May 18 and signed letter June 24.
Burgy signed card May 2 and signed letter June 24.
Nervo signed card April 30. Testified that organizers came to store and said they
were starting to organize the store and told her of higher wages and other benefits.
She read the card and signed it. She considered that she was joining the Union by
signing a card. She read the letter before signing it on June 26. Was interviewed on
three occasions by Respondent's counsel and told him that she had understood when
she signed card and letter that there would be an election. She also testified to this
effect in addition to her other testimony. Nervo made a valid designation of the
Union on April 30 and on June 26.
Brown signed card on May 2 in a restaurant where she was with fellow employees
Snyder and Beightol and Hennigin and Marcaletti, organizers. Henmgin mentioned
a card check and also an election. She testified that at the June 24 meeting, where
she signed the letter, the employees were told that the purpose of the letter was to
have the Company recognize the Union and this would obviate an election.
Beightol signed a card on May 2 in a restaurant where she was with employees
Brown and Snyder and two organizers. She also signed the letter on June 24. Later
she had two conversations with Respondent's counsel, the latter of which she appar-
39 Having gone into the Sims matter, it is well to give the complete picture. On cross-
examination by Respondent , Sims was also asked , since it is one of Respondent conten-
tions that employees signed cards because they were told that the cards were simply to
have an election,
Q. Did you understand when you signed that there was going to be an election
so you would have a choice whether you would have a union or not"
A. I didn ' t know it at that time, sir.
Under further cross-examination , with leading questions , Sims said that at the meeting
employees who had not signed cards were told that they should sign cards to have an
election and that that was the purpose of the meeting . I do not credit this testimony.
11 is the fact that the one meeting attended by Sims u as the June 24 meeting at which
the letter to Weaver was read and signed. Only employees who had previously signed
cards were admitted to that meeting since only they were considered "members " No
one signed a card at that meeting and no one was asked to and the Union had already,
on June 11 , filed a refusal-to-bargain charge that was the antithesis of an election or
any talk of an election . Sims had signed his card on April 30.
40 In this connection the term "card " is used to refer to the union authorization card
previously described . Unless stated otherwise , the employees named are considered to
have validly designated the Union on the date or dates referred to
206-446-66-vol. 154-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ently initiated after she had an argument with Hennigin . In what was apparently
the first conversation with Respondent's counsel , he told her that "we" had a right
to vote for or against the Union. Beightol told counsel that she did not want the
Union. The argument with Hennigin apparently arose after she said that she abso-
lutely would not testify against the Company and she indicated that if called as a
witness she would not talk. Hennigin said that she would have to talk if she was a
witness. At the hearing, the General Counsel did not call Beightol as a witness but
Respondent did. Beightol testified that she was told by the union organizers that the
card and the letter were for the purpose of having a vote and that is why she signed
the card and the letter. I believe that although in the early part of the campaign the
possibility of an election was mentioned, Beightol was not told that the card meant
nothing or that it was only to have a vote. According to Beightol, the matter of a
request to the Company for recognition on the basis of a card check also was men-
tioned, and at the May meetings this was explained to be what the Union would do.
I believe that the explanation of the letter at the June 24 meeting was clear and it had
nothing to do with an election Beightol testified that when Hennigin spoke to
Francis Brown and Beightol about signing a card, Brown said, "Well, I will sign
mine. I won't be chicken [won't be a coward]" and Beightol said, "I won't be either."
If the employees were told that the cards were merely for the purpose of securing an
election, why would they consider the signing so significant that it required some
bravery to sign one and thus demonstrate that they were not afraid. Again, at the
June 24 meeting, where she signed the letter, Beightol testified that she said, regard-
ing an employee, Tubbs, who was reluctant to sign, "Look, Tubbs isn't signing. She
is the only one that's got any sense. If we get fired she might as well join the
bunch." Employee Bartram, who was in the group with Beightol at the meeting,
testified that when Beightol went over to sign the letter, Beightol said, "Bartram,
here I go, J-C-, we've had it now. Wait until the boss sees this. We don't have
a job now. We won't have none." It is simply not credible that the foregoing
expressions about not being "chicken" regarding signing a card and the expressions
about signing the letter were evoked because Beightol had been told and believed
that the card and the letter were merely for having an election. The Company had
been stressing that it wanted an election and had so informed the Union. Beightol
and others were apprehensive because people who signed cards showed that they
wanted a union and people who signed the letter were telling their Employer that
they had signed cards and wanted a union and wanted the Employer to recognize the
Union. (People who did not want a union did not sign a card or the letter.) In
view of the Employer's antiunionism the apprehension of the signers is understand-
able 41 I find that, on May 2, when she signed a card, and, thereafter, including
June 24, when she signed the letter, Beightol manifested that she wanted a union
as her representative and designated the Union to represent her.
Mattingly signed a card on May 14 and signed the letter on June 24. Subsequently,
she was interviewed twice by Respondent's counsel who asked her whether she would
have voted for the Union when she signed the card and whether she would have
voted for the Union when she signed the letter.
Kennedy received a card, signed it on May 13, and mailed it to the Union on
May 13 or 14. She signed a copy of the letter on June 26 in the store where she
worked. Kennedy also solicited several other employees to sign cards. Kennedy
testified that she understood that there would be an election and she said that the
41 Since this matter of testimony by various witnesses that they signed cards (and, in
some cases , the letter) because they understood or were told that the cards meant
nothing except to serve the puipose of securing an election, it is to be noted that the
supervisors apparently were not unaware of the significance of the cards One supervisor
warned an employee that if she signed a union card she would be in the Union and could
not get out and she would have no say in what was done. Another supervisor warned
an employee that once the employees signed cards they would be unable to discuss things
with their supervisors Nowhere in the record did any employee say to a supervisor,
that the cards were only for the purpose of having an election, or, why are you so con-
cerned about the union campaign since employees are signing cards and attending meet-
ings only to have an election and not because they want a union and the Company says
that it, too, wants an election. It was after the receipt of the June 24 letter, where
the names of the card signers were revealed to management, that some employees began
saying to supervisors that they were mislead or that they only signed for an election and
so forth
PEOPLES SERVICE DRUG STORES, IN C. 1539
others had the same feeling . She said that an election was referred to at the first
union meeting. She was never told that an election was the only purpose of the
card. Before she signed the letter, Kennedy said she had read some of it but then
she said that she did not believe that she did. She does admit that the letter was
explained to her before she signed and that it was to be sent to Weaver to prove to
Weaver that the Union did represent the majority. Because of her interest in the
Union, Kennedy had been appointed a union committeewoman during the campaign.
I believe that Kennedy validly designated the Union on May 13 and on June 26 and
that initially she believed that to accomplish what she and others wanted, namely,
union representation, it would be necessary for the Union to go to an election and
win it This is a reasonable and factual description and is probably applicable
whenever a union commences organizing. This in no way invalidates the signing
of a card, clear on its face as to what it is, and in no way invalidates the significance
of signing the letter which is equally clear and which, I am satisfied, was understood
by Kennedy.
Reese signed a card on May 13 and signed the letter on June 25. He read the
letter before signing and testified that it was a letter "to show Mr. Weaver that you
wanted a Union...."
Johnson signed a card on April 29 and mailed it to the Union on April 30. She
signed the letter on June 24.
Laviska's card is dated April 30 and it is postmarked that date, being received in
the mail by the Union on May 1. Johnson had seen Laviska sign her card. Laviska
signed the letter on June 29 at her home.
Bittinger signed a card on April 30 and mailed it to the Union on that date.
Boltz signed a card April 29. She had to go home on the night of the June 24
meeting and did not sign the letter. No one asked her to sign the letter at a later date.
Burke signed a card on April 29 and signed the letter on June 24.
Houston signed two cards, one on April 16 and one on April 29. She signed the
letter on June 24.
Kopie signed two cards, one on April 28 and the other on April 29. She signed
the letter on June 24.
Rankin signed a card on April 29. She was called as a witness by Respondent.
Kopie, a fellow employee in the same store with Rankin, asked Rankin to sign a
card. Rankin testified that Kopie spoke "about having a union in the store and
asked me if I would sign the card." Kopie also said, according to Rankin, that
. . the cards were ... to form a union." Rankin states that she told Kopie that she
would sign if everyone else did and she signed. Kopie told her that if she signed
she would not have to pay any initiation fee and that there would be a vote. Kopie
told her the cards would be kept confidential. Rankin testified that she had not read
the card. She also testified that she had attended two of the three union meetings
but was unable to tell which meetings they were or what was said. According to
Rankin, she could not recall mention of either an election or of a card check at the
meetings. I believe that Rankin's attendance at two union meetings indicates con-
siderable interest in and awareness of the union organizing object I also believe
that Rankin was aware that signing a card was to help bring union organization into
the store and that she signed a card because she favored such organization. Rankin
may have expected that an election would be necessary but, in my view, she did not
sign a card simply to facilitate an election or because she would not have to pay an
initiation fee . Aside from the foregoing, consider it as highly unlikely that Rankin
did not read the brief legend on the card before she signed. I regard Rankin's card
as a valid designation of the Union.
Lawson signed a card on May 5 and mailed it to the Union on May 6. She signed
the letter on June 24. Lawson testified that she had read the card and that she was
aware that by signing she was authorizing the Union to represent her. It was her
"idea" that she was also giving the Union authority to petition for an election. No
union representative spoke to her about initiation fees but "one of the girls," unidenti-
fied, said that those who did not sign cards would have to pay an initiation fee if they
signed after the election or after recognition. A week before the hearing, Respond-
ent's counsel interviewed her and asked her "if I [she] would vote for the Union if
we had an election." On cross-examination, she also said that Respondent's counsel
had asked how she would have voted on June 3, and she had said that she had not
made up her mind. I find that Lawson had made a valid designation of the Union
as bargaining agent when she signed her card and the letter.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morgan signed a card on April 30 and she signed the letter on June 25.
Sims signed a card on April 30 and signed the letter on June 25 . Sims has been
discussed in same detail earlier in this Decision . He made a valid designation of the
Union as bargaining agent.
Staats signed a card on May 14. He had attended a union meeting prior to that
on May 7. Staats also, at the June 24 meeting , signed the letter to Weaver on
June 24.42 He admits that he had read the card before signing and he stated in an
affidavit that he realized that by signing the card he was authorizing the Union to
represent him. Respondent 's counsel had interviewed him twice before the hearing
and had asked , intei alia, why he had signed the card, and whether he had made up
his mind which way he would vote. Respondent called Staats as a witness at the
hearing and the witness testified that the union organizer had told him that the card
meant nothing and that a percentage of signed cards there would be an election.
Staats states that he signed a card so the other employees would have an opportunity
to vote. As to representing him, as it said on the card , Staats stated that he under-
stood that the Union would represent him in case he was laid off unfairly or something
like that. While I can understand that Staats might not have believed (perhaps
correctly) that he became a union member by signing a card, I believe that, in view
of all the circumstances , including the clear language on the card , that Staats under-
stood that he was designating the Union as his bargaining agent and that as bargain-
ing agent the Union would endeavor to secure recognition from the employer. One
of the obvious methods of securing recognition was by means of an election and
while I believe that it was said that cards were necessary to secure an election (and
that is one of the potential purposes of cards in all union organizing campaigns),
I am not persuaded that Staats was told that the cards meant nothing and that their
only purpose was to have an election . Moreover , the June 24 letter that Staats signed
quite clearly said nothing about an election but asserted that the signers had desig-
nated the Union as their bargaining agent and went on to request recognition and the
negotiation of a contract . I find that Staats made a valid designation of the Union
as bargaining agent on May 7 and on June 24.
Jones, M., signed a card on May 14. He was no longer in Respondent 's employ
at the time of the June 24 meeting and letter . Jones made a valid designation on
May 14 and it was effective until June 13 when he left the Company.
Slider had commenced working for Respondent in February 1964 . She attended
no union meetings and did not sign the June 24 letter . She was called as a witness
by Respondent . Slider stated that she was approached in the store by organizers on
several occasions to sign a card but she declined , saying that she did not understand
what it was all about. Hennigin and another organizer arranged to see her at her
home. She signed a card when the organizers visited her at her home . As a wit-
ness, she was asked by Respondent's counsel on direct examination,
Q. Now, would you tell us what he said to you and the circumstances under
which you signed the card?
A. My estimation was that he asked me to sign the card. As I said, I was a
new girl and I didn't know too much about the union . My opinion was that it
was to get it for an election to vote.
Q. Did he tell you that?
A. Yes.
Hennigin testified that he had talked to Slider in the store about signing a card but
she was reluctant to talk. He then arranged to see her at her home . On June 2, at
Slider 's home, he told her that the Union already had a majority signed up but
the more they had the stronger they would be in bargaining with the Company.
Slider said , "What do I have to do?" He said, "Read the card; it will authorize us
to represent you." She said , "What about dues, will I have to pay any money now?"
He replied that there would be no dues until after the contract was in effect for 30
days. She asked whether her store manager or Weaver would know . Hennigin
said the cards are signed in confidence . Slider replied that she was raising a family
and needed her job and she could not afford to be fired . Hennigin said, "No one
49 General Counsel's Exhibit No . 3, sixth signature in third column. Pages 3 and 4
of the June 24 letter ( General Counsel ' s Exhibit No. 3) were signed at the meeting.
Staats' signed card is General Counsel's Exhibit No. 3-66.
PEOPLES SERVICE DRUG STORES, INC. 1541
will know." She said, "All right, I will sign the card." Subsequently, after the
Company had sent out a letter saying that it wanted an election and that the Union
was afraid of an election, Hennigin saw Slider in the store. She said she had heard
that there would be an election. Hennigin said, "No, that, because of this company's
tactics, a fair election was impossible." Hennigin states that Slider's card was
signed on June 2. Slider testified that at her home, when she signed the card,
Hennigin "Just talked about the Union, what they do for us" and that "Well, my
•opinion was that that was just to get in for an election to vote." Although Slider
had said that she did not know what the Union was all about, she admitted that
when working for another employer, she had picketed on behalf of the instant
union. I credit Hennigin's testimony. I do not believe that Slider was told that the
only purpose of the card was to hold an election. I count her card as a valid
designation.
Rowlands was employed in one of the stores and was also a student attending
high school. He was solicited in the store by two union organizers, one of whom
was Henmgin. They asked him to sign an authorization card. Rowlands took
the card and carried it to the store manager. Rowlands asked the manager's advice
and was told to do what he thought was right. Rowlands decided to discuss the
matter with his parents and to have their advice before he signed the card. An
appointment was made for the organizers to come to his home and subsequently
they called at his home. Hennigin and another organizer were present with Row-
lands and the lattei's father. The father was employed in an unionized plant in
the Akron area. During the conversation, all of the four aforementioned persons
being present, the father told his son that their house, car, and all that they had was
due to the Union and he referred to the older employees in the store who would be
greatly helped by having union benefits. His father advised Rowlands to sign the
card. Rowlands read the card and signed it on June 7. He testified that the union
men told him that there would be no dues until the Union was recognized and got
in the store. Rowlands states that he does not remember exactly what was said
about an election but he understood that the Union wanted to have a majority so
that an election could be held. He testified that he remembeied something being
said that there could not be a fair election but he could not recall the reason or
the details. Hennigin states that an election was not discussed but that the principal
aspect was the father's praise of the advantages of a union. Hennigin said that,
after the father advised his son to sign, Hennigm asked the son how he felt and he
said that he would sign the card and he did so. As I view Rowlands' testimony, he
first sought the advice of his supervisor regarding the signing of the card. He then
sought the advice of his father. This was Rowlands' own idea The father was a
union man and he advised his son accordingly. Based on his own father's advice
and what was said to him by Hennigin, Rowlands read the card and signed it.
I count this as a valid designation.
Pullium had attended the May 28 union meeting. He spoke to his store manager
about signing a card. He states that he wanted to find out if signing a card would
do any good. The manager said that there would be an election and that the vote
would be the deciding factor. According to Pullium, ". . . the way he [the manager]
was talking there, the company was actually against it and was fighting it [and]
the Company thought that it would be best for the Employees not to be in the
Union." Pullium went to the June 24 meeting but, with others, waited in a sep-
arate room because he was not considered to be a "member." After talking the
matter over with the union representatives at the conclusion of the union meeting,
Pullium signed a card, dated June 25, and also signed the letter on that date.
Pullium testified that when he was given the card to sign that night he was also
given an initiation fee certificate which in effect certified that an initiation fee was
not required or was waived. Hennigin states that all those at the meeting that night
had received such certificates. I regard Pullium's card and his signature in the
letter as valid designations of the Union.
Brooks signed a card dated June 10. Employer Moyer testified with out con-
travention that she saw Brooks sign the card in the store. Brooks then gave the
card to Moyer who gave it to Hennigin. Knapp, a union organizer and another
organizer, Marcaletti, took the June 24 letter to Brooks' home on June 29. Her hus-
band said that she was taking a bath. While the organizers were waiting in her
home, the husband asked them to explain what the letter was all about. They did
so and the husband said that he would take the letter up to his wife. Knapp said,
"Ask her to read it and if she wants to, to sign it." The husband departed and
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned with Brooks' signature on the letter. I have compared the signature and
writing on Brooks' card of June 10 and the signature of June 29 on the letter and have
no doubt that they were written by the same person, Brooks. I regard the card and
the signature on the letter as valid union designations.43
Flatt signed a card on April 29 and signed the letter at the June 24 meeting. She
had worked for Respondent 13 years. Respondent's counsel had interviewed her
and asked "If I signed a card. If I would have voted for the Union then? If I
would have voted for them when I signed the paper? [the letter]." Counsel told her,
"Don't be afraid," and he asked her if she had a family and how many children
she had.
Holbrook signed a card in the store that is dated June 22. She testified that she
had read the card before signing. She testified that she then threw the card in the
trash Nervo, one of Respondent's witnesses, testified that she had talked to Holbrook
about the cards but they did not discuss what Holbrook wanted to do. Later, when
Nervo came to work she saw Holbrook's signed card on the cigar counter (Holbrook
was a cigar clerk). When an organizer came in, Nervo gave him Holbrook's card.
Nervo states that Holbrook never told her that she did not want to join the Union
and that when she saw the signed card she thought that Holbrook wanted to join
When Nervo informed Holbrook what she had done with the card, Holbrook said,
"Oh, you did? I didn't mean for you to." Holbrook made no attempt to recall the
card from the Union or to advise that she had not intended to sign or to turn in
the card. In the period after she signed, Holbrook admitted receiving literature and
communications from the Union wherein she was addressed as "Dear Member"
Holbrook stated that she had not discussed the card with anyone and that she did
not know who had turned it in At a later point, she admitted having discussed the
matter with Nervo. I believe that Nervo's account of the card incident is the more
accurate. Holbrook signed a copy of the letter in the store on June 29. She states
that an organizer brought it in and that she read part of it before signing. Holbrook
asserts that the letter was to bring about a meeting "whether it [the Union] was
coming in or not" and that she thought "the letter was to vote on whether the Union
got in or not " Organizer Marcaletti testified that he came to the store and showed
Holbrook the copies of the letter and the signatures that appeared thereon. He
handed her a copy of the letter, remarking that the employees could show the Com-
pany that they wished the Company to bargain with the Union. Holbrook took the
letter, read it, asked for a pen, and signed it. She said nothing about her card nor
did she say that, since the letter stated that the signatories had signed cards, she
could not sign because she had not signed a card for the Union I would under-
stand Holbrook's action if she did not sign the card, or if she signed it and tore
it up. The latter is the normal procedure with a letter or document that having
been written or signed, the writer then decides to nullify. Smce, however, there is
some ambiguity about the effectiveness of Holbrook's card signing, I incline not
to count the card. But, with respect to the letter, I regard Holbrook's signature
thereon as adequate designation and affirmation of the Union as bargaining agent.
Even the first six lines of the letter are clear enough and there was nothing about an
election therein and Holbrook does not claim that the organizer or anyone else
spoke about an election being the purpose of the letter.
u After the testimony in the record about Brooks, Weaver testified for Respondent He
stated that one of the things that led him to deny recognition to the Union after receipt
of the June 24 letter was that he had heard about the bathtub circumstances of Brooks'
signing the letter. Weaver does not say when or from whom he had acquired such in-
formation. There Is no evidence in the record that anyone except the organizers, Brooks,
and her husband knew about the incident and no evidence that any of these persons had
described the incident to anyone else, least of all to Weaver. It appears more likely that
Weaver first heard of the incident at the hearing. I think it is to be borne in mind that
in describing these various matters regarding the circumstances of signatures that there
is no evidence that on June 5 and in succeeding weeks Respondent was aware of such
circumstances As previously described, it was after receipt of the June 24 letter,
with the signatures, around the end of June or early July, that a few specific individuals
spoke to their managers about signing of the letter Even at that time, the reports were
decidedly limited in nature Aside from Weaver's testimony regarding his observation of
employees' demeanor as an indication of who was for and who was against the Union,
the more concrete bases for Respondent's "doubts" saw their development later In inter-
views by counsel with various employees Evidence that developed at the hearing and
shortly prior thereto cannot serve as a basis for a good-faith doubt on a nuns pro tune
or co post facto basis.
PEOPLES SERVICE DRUG STORES, INC. 1543
Stoltz signed a card on May 13 in the store. She testified that the employee who
asked her to sign said that it was for a vote. The next day, Stoltz asked the employee
to return her card, that she did not want to go through with it. Stoltz was told
that the card had already been given to the Union. Stoltz testified that she had
signed only to enable the others to vote. I do not believe that Stoltz was told that
the sole purpose of the card was to have an election or that she signed merely to
enable others to vote. If this were so, it seems highly unlikely that Stoltz would
have asked for the return of her card or would have said that she did not want to
go through with the innocuous request that there be an election so others could vote.
Her concern about the card and her revocation indicate awareness of the significance
of the card. However, since Stoltz manifested a prompt desire to revoke the card,
I do not count it as a valid designation. Stoltz attended no union meetings and did
not sign the letter.
Harper signed a card on April 29 and signed the letter on June 24.
Moyer signed a card on April 29 and signed the letter on June 24.
Snyder, N., signed a card on May 7 and signed the letter on June 24. She testified
that at the union meetings it was not said that there was going to be an election or
that the signatures on cards was for that purpose.
Wright signed a card dated May 13. She had attended the May 7 meeting. She
testified that she did not read the card although she filled out her home address,
city, State, unlisted telephone number, and signature. The printed language on the
card is relatively brief and quickly readable. In my opinion, it is not credible that
the witness, in filling out the card in detail, did not read it. Wright states that she
did not date the card. Other credible evidence establishes that Wright signed the
card on the same date as Reese, Holman, and Stoltz and their cards are all dated
May 13. Wright states that Kennedy, a fellow employee, said to her "To sign it
[the card]. There was going to be an election...." Wright signed. She testified
that on a prior occasion she had been solicited by an organizer to sign a card.
Wright states that she was under the impression that the card was for an election
and this had been her impression at the union meeting that she attended. The
witness testified that she did not talk to Weaver about this but she told Weaver that
she did not like the union people telephoning her home or coming into the store.
She said her husband objected to the telephone calls Wright, perhaps correctly,
did not consider that she had become a member of the Union by signing a card.
She apparently expected that there would be an election and was told by a fellow
employee that the card was for the purpose of a vote "only." She had, on a prior
occasion, refused to sign a card She later refused to sign the letter, saying that she
had not had an opportunity to vote for the Union. Overall, I do not count Wright's
card although the matter is not free from doubt
Webb signed a card on May 26. She signed the letter on June 24.
Snyder, D , signed a card on May 1, and signed the letter on June 24.
Dietrick signed a card May 7 and signed the letter on June 24.
Ligon told the organizers when they gave her a card that she wanted to read it
and do her own thinking about the matter. She subsequently signed on May 2 and
the card was mailed to the Union. She signed the letter June 24 after it was read
at the meeting and after she herself read it. She referred to the letter as "the one
that wanted the Union to represent us."
Rutherford signed a card on June 11 and it was mailed to the Union on June 11
or 12. She attended the June 24 meeting and testified that the majority of those
present had voted to sign the letter and send it to Weaver. Hennigin testified credibly
that the vote was unanimous. Rutherford said the letter was read at the meeting and
she read the letter herself. No one told her she had to sign. She signed at the
meeting. Rutherford had gone up to the front of the meeting with the others to
sign the letter. Employee Tubbs was the only one who remained at her seat.
Hennigin took the letter to Tubbs and asked her to sign. Rutherford states, on cross-
examination, that in view of the circumstances under which Tubbs signed, and in
view of the vote to sign, she felt that she had no choice but to sign Rutherford
also testified:
Q. [By Respondent.] Do you recall any statement made to you at -any of
the meetings by union organizers to the effect that those who signed cards
prior to bargaining with the company, would not have to pay the initiation fees,
but those who did not sign up to that time would have to pay initiation fees?
A. Yes.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Tubbs testified, in response to Respondent's questions, that "If there was
a card in, I wouldn't be required to pay the initiation fee."
Q. Did any of the union organizers at any time tell you that initiation fees
would be waived if you signed the card before the election?
A. In other words, if I signed the card, I wouldn't have to pay the initiation
fee.
Q. Yes?
A. Right.
Q. Did they tell you that those who did not sign the card until after the
election would have to pay initiation fees.
A. I believe so.
Q. Which organizer told you that?
A. I don't remember, sir.
Q. You don't remember which one?
A. (No response. Shaking head)
Q. Is it one of the men in the room here? [The organizers were in the hear-
ing room.]
A. I believe.
Q. Would you point out which one?
A. I am not sure which one it was, sir.
At the hearing, the General Counsel called employees as witnesses to identify
their cards and their signatures on the letter. These witnesses included Tubbs, Trus-
ley, Rutherford, and others. They were the General Counsel's witnesses since he
had called them to the stand. Some of the General Counsel witnesses can be classed
as friendly witnesses but others were no more friendly to the General Counsel than
to Respondent and, in my opinion, based on observation, there were some General
Counsel witnesses who were quite conscious that they were still employees of
Respondent. Throughout the hearing, one of the factors in credibility evaluation
was the responsiveness of witnesses to leading questions by either counsel, con-
sidering the particular circumstances of individual witness.
Based on the testimony of employees and union organizers, I find, as testified to
by Organizer Knapp, that the union policy is to waive initiation fees for all during
the first contract period in a newly organized establishment. I believe that in the
case of many employees the matter of initiation fees never arose in connection with
card signing. In other instances, I believe that employees were told that there would
be no initiation fees if they signed the card and the reasonable implication was that
those who did not sign a card and afterwards sought to join the Union, would have
to pay an initiation fee. The Union's card signing campaign had culminated prior
to the June 24 meeting and only those who had previously signed cards were admitted
to that meeting. Those present on June 24 received initiation fee certificates that,
in effect, testified that they did not have to pay initiation fees. Employee Pullium
who signed a card immediately after the meeting was told that he would not have
to pay initiation fees if he signed and he was shown the initiation fee certificate. I
believe that I can properly find that the implication was, in those instances where the
matter was discussed, that those who signed a card would not be required to pay
initiation fees and that those who did not sign but subsequently sought to join the
Union would or might have to pay the initiation fee. My basic inquiry, throughout,
has been, and is, did an employee, such as Rutherford and others, designate the
Union to represent her when she signed a card that said, "I . . . hereby authorize
Retail Clerks [Union] ... to represent me for the purposes of collective bargaining,
respecting rates of pay . in accordance with applicable law," or, did she sign
to avoid paying an initiation fee that she would never have to pay unless at some-
time in her subsequent employment she decided to apply for union membership 44
I cannot conclude that Rutherford signed a card for the last-mentioned reason.
Working for an employer, who was opposed to the Union, or for any employer, she
did not have to sign a union card at all and she could have avoided fees and dues,
present and subsequent. If a group is seeking to form a birdwatchers' club or a
mountain climbing club and passes out cards that state, "If you wish to designate one
of the foregoing clubs to represent you in securing county recognition for club
"There is not a word in this record that the Union or anyone else ever mentioned a
contract with a union-security clause requiring union membership Since the Employer
would have to first recognize the Union and then would have to agree to such a clause
before it could be included in the contract, it was, in April-July 1964, something that
was not even thought about. The Employer had made it very plain that the basic idea
of a union in its stores was something that it was strongly opposed to.
PEOPLES SERVICE DRUG STORES, INC. 1545
activities , sign this card which, with others, will be used in requesting the county to
allocate county property for the use of the clubs. In the event the county grants
our request, the original card signers will be entitled to join the club without payment
of initiation fees. All those who have not been one of the original signers of this
card and who subsequently apply for club membership, will pay a $10 initiation fee."
In my opinion, anyone who signed the foregoing card, did so because he or she was
a birdwatcher or mountain climber or wished to be one, and not because of the
saving of the initiation fee. People opposed to birdwatching and such, or those not
interested in these matters, did not sign the card. I count Rutherford's June 11 card
as a valid designation of the Union. As to her signing of the letter, it is evident that
she went to the June 24 meeting voluntarily. No one forced her to attend. The
meeting started at 10 p.m., after work. The letter was read aloud at the meeting.
Rutherford herself also read the letter. All present voted to sign the letter and send
it to Weaver. Rutherford left her seat and went up front to sign the letter. Employee
Tubbs remained at her seat. Hennigin took a copy of the letter to Tubbs and asked
her if she wanted to sign and she said, yes, and signed. Rutherford states that she
signed because of the Tubbs incident and that if it had been a matter of "whoever
wanted to get up ... and sign it, I would not have signed it." This is rather difficult
to follow since, after voluntarily going to the meeting, and after everything else had
occurred as aforedescribed, Rutherford had left her seat to go to the front to sign.
She was at the front when the Tubbs incident occurred. She states now that she felt
that she had no choice but to sign. Although I regard much of Rutherford's testimony
as not reflecting her situation on June 24, I think it better not to count her signature
on the letter.
Tubbs had attended all three union meetings. She signed a card on June 22,
evidently at home with her husband; gave the card to her husband to mail, and he
mailed it to the Union. She testified that she "was under the impression that I was
going to have the right to vote and I wouldn't have to pay my initiation fee." She
"believed" that she had heard at a meeting that "If there was a card in, I wouldn't
be required to pay the initiation fee." At the June 24 meeting, she testified, all the
others went to the front to sign the letter. Hennigin brought the letter to her and
asked her to sign. He handed her the letter or placed it in her lap. He did not
tell her she had to sign or threaten her. She signed the letter. She knew the letter
was going to Weaver but states that it was going to Weaver so the employees could
vote. The witness also states that she "would not sign that letter to Mr. Weaver."
If the letter, in Tubbs' mind, was for the purpose of an election, it is difficult to
understand why she did not wish to sign since Weaver was in favor of an election
and Tubbs had elsewhere testified that she signed a card because she understood that
there would be an election. Tubbs states that she was embarrassed or forced to
sign the letter.
After the letter, including Tubbs signature, was received by her supervisor, Burt,
and by Weaver, Tubbs went to Buit and told him that she had not voluntarily signed
the letter. This was about the end of June 1964. In short, as soon as the letter was
received by her store manager, which was June 30 or July 1, Tubbs and a few others
had hastened to disavow their signing of the letters to the manager. Tubbs and
others had signed the letter on June 24 and they knew that it was going to Weaver.
Tubbs made no disavowal to Weaver or anyone else until June 30 or July 1, the
day that Store Manager Burt received the letter. Burt testified that "the same day"
that he received the letter, the employees in the store started telling him about their
signing of the letter and he believed that Tubbs and Trusley were "the first two"
who spoke to him. Although I am convinced, from my observation of Tubbs and
from the evidence, that what alarmed Tubbs about the letter was that it revealed
to management, particularly her own store manager, that she had signed a union
card, I will not count her signature on the letter since I believe that basically she
did not wish to sign it. I do count Tubbs' card as a valid designation.45
Trusley has worked 20 years for Respondent She testified that an organizer gave
her a card in the store and she took it home. She signed it on May 28 and mailed
it to the Union on May 29. She signed the letter at the meeting on June 24 and,
4 It scarcely needs repeating that all the cards are clear and unambiguous. As the
court emphasized in Joy Silk Mills, Inc. v, NLRB., 185 F. 2d 732, 743 (C.A.D C.), cert.
denied 341 U.S. 914, it has long been held that: "An employee's thoughts (or after-
thoughts) as to why he signed a union card and what he thought the card meant, cannot
negative the overt action of having signed a card designating a union as bargaining agent."
Moreover , this record persuades me that the employees ' afterthoughts were indeed after-
thoughts and that they occurred in a situation where the witnesses were acutely aware
of their employer 's hostility toward the Union.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the end of June, on the day that Store Manager Burt received a copy of the letter
and the signatures thereon, Trusley informed Burt that the letter did not represent
her wishes. Trusley states that she also told Burt about her signing of the card but
Burt testified only that Trusley spoke regarding the letter.46
Trusley testified that she had signed the card because an organizer, unidentified,
had told her that the card was to have an election. She states that she was also
told that initiation fees would be waived. 47 also testified that she was told
by the organizer, when he was soliciting her to sign a card, that an election was not
the only purpose of the card and that there were other possibilities for its use.
When the witness' attention was called to an affidavit of hers, dated July 8, wherein
she stated, "I understood the card was a membership card and I became a member
by signing it," she finally acknowledged the fact, saying "Okay. I still thought that
was what it meant. That they were going to have a secret vote." 48
Regarding the letter, Trusley states that she "was about the very last one to sign
it." Tubbs, however, and many other witnesses in this case, all agree that, at the
meeting, the only one who remained seated and did not go to the front to sign the
letter was Tubbs. But, although Trusley apparently got up and went forward to
sign, she states that three other girls who worked with her had urged her to sign and
that her signing was involuntary. There is no claim that any of these girls or anyone
else threatened Trusley. Although Trusley signed the letter on June 24, she made
no effort to repudiate the letter until June 30 or July 1 when she went to her super-
visor, Burt, as soon as he had received the letter. I consider Trusley's card as a valid
designation and I believe that the signing of the letter was a voluntary act and that
it also was a valid designation of the Union.
Bruce signed a card on June 4 and signed the letter on June 24.
Walters signed a card on May 14 and signed the letter on June 25.
Richmond signed a card on June 2 and mailed it to the Union on or about June 2.
He signed the letter on June 24.
Carr signed a card on April 28 and signed the letter on June 24.
Pifel signed a card on June 18 and signed the letter on June 29 while he was in the
store.
Crooks signed a card on June 13 and mailed it to the Union She states that noth-
ing was said to her about initiation fees or about signing to have an election. She
signed the letter on June 24.
Sidell signed a card on April 28 and signed the letter on June 24.
Jones, D., signed a card in the store on May 1. His signature was witnessed by
Glenna Williams. Jones signed the letter on June 25 in the store. His signature
was witnessed by Knapp.
Lemon signed a card on May 7 and signed the letter on June 25. He testified that
at a union meeting it had been mentioned that the cards would principally enable the
Union to have an election to get into the store. The witness was asked, "Is that the
reason you signed the card to have a union election? A. In order to have a Union."
The witness states that he also had been told thereafter that the cards would be used
to get the Union in without an election. He had likewise been told that the letter
was "to show Mr. Weaver that there was a majority behind the Union" and "to try
to bargain with the Company."
McElroy signed a card on April 28 and the letter on June 24.
McCall, J. The Union received a card in the mail dated May 9 with the name
"Judy Marie McCall" in longhand. This signature was not identified at the hearing.
40 Burt testified that, prior to his receipt of the letter at the end of June when Trusley,
Tubbs, and others came to him, he had not previously discussed the employees' union
attitudes with Weaver.
47
"Q. (By RESroNDENT) At the time you signed the card or at the time you received
the card from one of the union organizers, were you told by the Organizers that the
purpose of the card was to have an election?
A. Yes, sir "
+8 The affidavit states "I signed a union authorization card for the Retail. Clerke Union
on May 28, 1964 I don't recall who gave me the card I lead the card before I signed
it. I understood the card was a membership card and I became a member by signing
it. I was not told the only reason for the card was for an election I mailed the card
in after I signed it."
PEOPLES SERVICE DRUG STORES, INC. 1547
There were four employees at store #78, one of whom was Judy M. McCall. Hooper
is an employee in store #78 and she states that she saw Judy McCall sign the letter
on June 24. The only McCall signature on the letter is Sally A. McCall and there is
no Sally McCall on the June 6 payroll. Sally McCall appears on the July 4 payroll
in store #78 in place of Judy McCall. The Judy McCall card will not be counted.
McCall, S. Sally McCall is the sister of Judy McCall. Sally started work in store
#78 on June 9. She signed a card on June 10 and signed the letter on June 24. A
few weeks before the hearing Respondent's counsel identified himself to McCall and
asked if she had signed a card and asked her opinion as to how she would vote when
she signed. He also asked her, as of June 24 when she signed the letter, how she
would have voted in an election if an election had been held. She told counsel that
she would vote for the Union.
Moorhead signed a card on April 28 and the letter on June 24.
Perrine signed a card on May 28 and the letter on June 24.
Pringle signed a card on April 28 and the letter on June 24.
Sonneberger signed a card on April 28 and the letter on June 24.
Westfall was on leave of absence for pregnancy from February 2, 1962, to July 27,
1964. On July 26 or 27 she advised the Company that she was not returning. She
signed a card on May 5 and the letter on June 25. At the time of signing both
documents she had made no decision not to return to work and had not advised
the Company that she would not return. Her mother, Sonneberger, who was also an
employee in the store, told Westfall when she brought her the card that it would help
"us" start a union at People's. Westfall's card and letter signature are counted.
Dunn signed a card on April 28 and signed the letter on June 29. The witness
was a porter. Without being led, he was asked,
Q. Were you ever asked to sign anything else besides the union card you
identified?
A. A letter that we signed. It was my understanding that this was supposed
to be sent to Mr. Weaver, that the employees did want the Union.
Clark signed a card on May 1 and the letter on June 24. She testified that "We
signed a letter that was to go to Mr. Weaver stating-Well, the names that went
down, to show that we had a majority to get a union in."
Farmer signed a card on May 29 and mailed it to the Union on June 2. She signed
the letter June 24.
Lowe signed a card on May 14 and the letter on June 24
0 Connor signed a card on June 2 and the letter on June 24.
Dodd signed a card on May 8 and the letter on June 25.
Edgar signed a card on May 13 and the letter on June 24.
Nash signed a card on May 1 and the letter on June 24.
Nunez signed a card on May 7 and the letter on tune 24.
Henderson, J., signed a card on May 17 and the letter on June 25.
Halman signed a card on May 13 and the letter on June 25.
Hoge signed a card on May 7 and the letter on June 24.
Steensen signed a card on May 26.
Arnold signed a card on June 9 and signed the letter on June 24.
Christmas signed a card on May 7 and signed the letter on June 24.
I find that, on June 3, 1964, when the Union claimed to represent a majority of
the employees in an appropriate unit and requested recognition as collective-
bargaining agent, and, on June 5, 1964, when the employer refused such recognition,
the Union represented a majority in the appropriate unit.49 For the reasons set forth
in this Decision, I find that Respondent on June 5, 1964, did not have a good-faith
doubt regarding the Union's majority and that its refusal to bargain constituted a
violation of Section 8(a)(5) and (1) of the Act.
The Union's claim that it represented a majority and that it was requesting recog-
nition was at no time withdrawn and was a continuing claim and a continuing request
in the period from June 3, 1964, throughout June, and thereafter. Respondent was
aware that the claim and request continued after June 5, 1964. In a letter sent by
Weaver to all employees in the middle of June, it undertook to remind the Union
that the Board had an election procedure and asked "Why doesn't the Clerks' Union
40 As of June 3 and 5, 1964, the Union had 72 valid designations of itself as bargain-
ing agent . As of June 9, the number was 73, 75 on June 10; 76 on June 11 ; and 78 as
of June 24 . A majority consisted of 62.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use it [the procedure]." Clearly such matters and such a question had relevancy
only because Respondent was acknowledging that the Union's claim and request
were continuing and outstanding.50
Since the Union's claim of a majority and request for recognition continued after
June 3 and 25, 1964, the valid card designations that the Union obtained, in the
period June 5 through 24 supplement and increase the majority that existed on
June 3, 1964, and the Respondent's refusal to bargain and its lack of good faith con-
tinued unabated.
Having found an appropriate claim by the Union on June 3, continuing thereafter,
and an illegal refusal to bargain by Respondent on June 5 and thereafter, I find it
unnecessary to treat the June 24 letter of the Union and the July 6 response of the
employer as distinct incidents. The Union was still making the same claim and the
same request that it had been making since June 3 and Respondent was still refusing
to bargain. The Union was still trying to convince Respondent that it represented a
majority and still requesting recognition but instead of a proposed cardcheck, it was
seeking to prove the cards by having the card signers sign a letter stating that they
had indeed signed cards designating the Union to represent them for collective bar-
gaining. It was a situation little different in reality from one, where, instead of send-
ing the letter and signatures to Respondent, the Union had sent the cards themselves
to Respondent. Quite clearly the effect or lack of effect on Respondent would have
been the same in both cases and the effect on some of the employees was precisely
the same as if the Union had sent the cards to the employer. The employees' names
stood naked and exposed to their supervisors who had repeatedly made it unmistak-
ably clear that the Company was strongly opposed to the Union. The letter said no
more than that the signers had designated the Union to represent them in collective
bargaining and requested recognition of their representative by the employer. Days,
weeks, and more than a month before, the cards had been signed making the same
designation and the Union had filed a refusal-to-bargain charge on June 11. But the
letter placed the individual employees in a strong, bright spotlight. The employees
were quite aware of the position in which their signing of the letter placed them As
employee Beightol, one of Respondent's witnesses, said, as she signed the letter at
the June 24 meeting when the letter was initially signed,
... here I go ... [to sign the letter] .... J- C- we've had it now. Wait
until the Boss sees this. We don't have a job now. We won't have none.
On the same occasion, Beightol said to employee Trusley,
Looks, Tubbs isn't signing. She is the only one that's got any sense. If we get
fired she might as well join the bunch.
Thereafter, as has been seen, when the store managers received the letter and signa-
tures on June 30 or July 1, Tubbs and Trusley and about five other employees who
had signed the letter, hastened to assure their manager that, in effect, they really did
not mean to sign the letter.
Since the foregoing is asserted to be the basis of Respondent's good-faith doubt
as expressed in its letter of July 6, it is a doubt built and generated on the sand of
the Respondent's pronounced coercive conduct in violation of Section 8 (a) (1) of the
Act. There is nothing incomprehensible in the alarm felt by some middle-aged ladies
like Tubbs and Trusley about their signing of the letter and it is somewhat surprising
that so many employees signed in the first place, considering the circumstances, and
that so few thereafter testified that they did not understand what they were signing.
Further, since the grounds for this "doubt" did not come to Respondent's attention
until June 30 or July 1, it has no ex post facto effect and has no bearing on the refusal
to bargain that commenced on June 5 and continued thereafter.51
"Further confirmation that the Respondent was aware that the claim and request
continued is to be found in the fact that the Respondent, on August 3, 1964, filed a peti-
tion for an election with the 'Board. The Act provides that the necessary condition for
such a petition by an employer is an allegation by the employer, in the petition, "that
one or more individuals or labor organizations have presented to him a claim to be
recognized as the representative defined in Section 9(a)." Section 9(c) (1) (B). Sec-
tion 9(a), of course, provides that a representative designated or selected by a majority
in an appropriate unit is the exclusive collective-bargaining representative Also, in a
letter to the employees on August 5, 1964, Respondent expressed its desire for a Board
election to resolve the Union's claim of a majority and request for recognition.
"As a matter of statistics, I find 71 valid signatures on the June 24-29 letter.
PEOPLES SERVICE DRUG STORES , INC. 1549
IV. THE REMEDY
The customary remedial action for the types of violations found will be recom-
mended. This will include a cessation of the unfair labor practices and, upon
request, recognizing and bargaining with the Union as the collective-bargaining agent
of its employees in the appropriate unit.
CONCLUSIONS OF LAW
1. Respondent , by the acts and conduct described hereinabove, has threatened,
restrained , and coerced its employees in violation of Section 8 (a) (1) of the Act.
2. Respondent, since June 5, 1964, has failed and refused to recognize and to bar-
gain with the Union as the representative of the majority of its employees in the
apropriate unit, all in violation of Section 8(a) (5) and (1) of the Act.
RECOMMENDED ORDER
Upon the findings of fact, conclusions of law, and the entire record in this case,
and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
it is recommended that the Respondent, Peoples Service Drug Stores, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act, either by coercive interrogation or by
threats of economic detriment, including the loss of existing tenure or existing con-
ditions of employment, or in any other manner of illegal interference with the statu-
tory rights of its employees.
(b) Refusing to recognize and to bargain collectively with Retail Clerks Interna-
tional Association, Local 698, AFL-CIO, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All full-time and regular part-time employees employed at the Employer's stores
located in the Greater Akron, Ohio, area, excluding seasonal employees, store man-
agers, assistant store managers, executive trainees, confidential employees, all guards.
professional employees, and supervisors as defined in the Act.
2. Take the following affirmative action to effectuate the policies of the Act.
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of employees in the aforementioned appropriate unit and, if an
understanding is reached, embody such understanding in a signed agreement.
(b) Post at its stores in the Greater Akron area, the attached notice marked
"Appendix." 52 Copies of said notice, to be furnished by the Regional Director for
Region 8, shall, after being duly signed by an authorized representative of Respond-
ent, be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by
other material.
(c) Notify the Regional Director for Region 8, in writing, within 20 days from
receipt of this Decision, what steps it has taken to comply therewith.53
ca In the event that this Recommended Order is adopted by the Board, the words "as
ordered by" shall be substituted for the words "as Recommended by a Trial Examiner
of" in the notice. In the further event that the Board's Order be 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 of" shall be substituted for the words "as ordered by".
531n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 8, In writing, within
10 days from the date of the receipt of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed to them in
the National Labor Relations Act, as amended, and to conform to the policies and
requirements of the aforementioned law.
WE WILL bargain collectively, upon request, with Retail Clerks International
Association, Local 698, AFL-CIO, as the exclusive representative of all employ-
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the bargaining unit described below, with respect to wages, hours of
employment, and other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed contract. The bargaining
unit is:
All full-time and regular part-time employees employed at the Employ-
er's stores located in the Greater Akron, Ohio, area, excluding seasonal
employees, store managers, assistant store managers, executive trainees,
confidential employees, all guards, professional employees, and supervisors
as defined in the law.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed to them under the National Labor Relations Act, as
amended, including the right to join the Retail Clerks Union aforementioned
and the right to be represented by the said Union for the purposes of collective
bargaining, as well as the right of employees to refrain from joining a union
or to refrain from union activity, except as the last-mentioned rights might be
affected by a mutually agreed-upon contract between the Company and the
Union.
PEOPLES SERVICE DRUG STORES, INC.,
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.
Employees may communicate directly with the Board's Regional Office, 720 Bulk-
ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if
they have any questions concerning this notice or compliance with its provisions.
McCormick Steel Co., Division of Ducommon Metals & Supply Co.
and United Steelworkers of America , AFL-CIO. Case No. 03-
CA-1964. September 24, 1965
DECISION AND ORDER
On July 19, 1965, Trial Examiner George J. Bott issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Decision, and a sup-
porting brief, and the General Counsel 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 [Chairman McCulloch and Members Brown and Zagorial.
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
154 NLRB No. 122.