Shulman's Inc. of Norfolk

National Labor Relations Board - Board Decisions

Jan 29, 1974

208 N.L.R.B. 772 (N.L.R.B. 1974)

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shulman's Inc. of Norfolk and Retail Store Employees
Union, Local 233, Retail Clerks International
Association , AFL-CIO. Cases 5-CA-5942,
5-CA-6009, and 5-RC-8365
January 29, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 23, 1973, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter,. Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in, response to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the.
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs' and finds merit in certain of the General
Counsel's exceptions as hereinafter set forth. Accord-
ingly,, the Board affirms the Administrative Law
Judge's rulings, findings, conclusions, and recom-
mendations only to the extent consistent herewith,
and adopts his recommended Order as modified
herein.
Counsel for the General Counsel excepted to the
Administrative Law Judge's finding that Respondent
did not violate Section 8(a)(1) by interviewing several
employees in the hotel room of W. H. ' Meir,
president of the Hart, Schaffner & Marx retail
division. The record indicates that on February 27,
1973, following Respondent's first campaign meeting
for employees, Meir and Respondent's president,
Curnutt, extended an invitation to any employees
who might wish to speak with them to visit Meir's
room on the afternoon of March 1. Meir testified
that employees were told that he and Curnutt would
be available and willing to discuss "any of the
problems" employees might have. This was the first
time any such meetings had been arranged.'
On March 1, five employees individually visited
Meir's room and spoke with Meir and Curnutt. At
I Although our dissenting colleague implies that this meeting, as well as
later meetings with employees , was prompted by employee complaints
about Mayo, the record indicates otherwise. Ia fact it wasMeir who
approached Curnutt and suggested the March 1 meeting with individual
employees and while at least one employee , Zimmerman, complained about
Mayo on March 1 , other employees complained about their fellow workers,
department managers, and Shulman's inventory and merchandising policies
in general . In any event it is difficult to see why Respondent's invitation to
employees to air their "problems" ceases to be an unlawful solicitation of
grievances merely because for certain employees Mayo may have himself
become such a "problem."
least two of these employees, Miller and Zimmer-
man, discussed pay raises and promotions that had
been promised them by Mayo, who had formerly
been in charge of Respondent's Military Circle store.
In addition, Miller testified that he had aired his
"gripes" with Meir concerning one of the managers
of the Military Circle store.
Meir testified that he was not specifically aware of
Mayo's promises to employees prior to his meeting
with these employees on March 1. He further
testified that his response to employees on that
occasion was that the Company "will do our utmost
to trace these problems and to sit down and discuss
these with you." He also recalled telling employees
that it was the Company's intention "never to make a
promise without keeping a promise." Finally, he
acknowledged that at a subsequent meeting with
employees on March 3 he had discussed the need to
communicate and told employees that "they could
form their own communication people [sic) and we
would be available for discussion at any time and
any place."
Contrary to the Administrative Law Judge, we find
that by the conduct described above Respondent
unlawfully solicted employee grievances and implied
that such grievances would be rectified in the future.
As we stated in Ring Metals Company, 198 NLRB
No. 143, "where . . . an employer who has not
previously had a practice of soliciting employee
complaints, institutes such a practice to coincide with
an organizational campaign, the employer has
engaged in improper interference with his employees'
freedom of choice in violation of Section 8(aXl)."
Although the Administrative Law Judge indicated
in his Decision that Respondent's conduct in
announcing and granting benefits immediately fol-
lowing the March 5 election could be relied upon as
one of the several grounds for setting aside that
election, we do not agree. Consequently, in deciding
to affirm the Administrative Law Judge's Decision,
we have considered Respondent's unlawful postelec-
tion conduct only with respect to whether or not the
atmosphere or holding a fair rerun election has been
destroyed so as to necessitate a bargaining order.
Like the Administrative Law Judge, we find that
Respondent's unfair labor practices have been so
pervasive as to make "the possibility of erasing the
We also disagree with our dissenting colleagues conclusion that
Respondent's conduct was not designed unlawfully to interfere with the
employees' freedom of choice. In choosing to view Mayo as the villain of
the piece and Respondent as (an) innocent bystander, our colleague ignores
or dismisses out of hand the ample record evidence of Respondent's
unlawful conduct and purpose. Contrary to our dissenting colleague's
characterization of Respondent's actions, the repeated solicitation of
grievances , the circulation of an artfully worded election day notice
insinuating that employee grievances will be rectified , and the preelection
grant of benefits to hourly paid employees are hardly indicative of a "very
cautious" attempt not to interfere with the employees' freedom of choice.
208 NLRB No. 117
SHULMAN'S INC. OF NORFOLK
effects of past practices and of ensuring a fair
election . . . by traditional remedies . . . slight."
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
614 (1969). We shall, therefore, adopt the Adminis-
trative Law Judge's recommended Order and require
Respondent to bargain with the majority representa-
tive of its employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Shulman's Inc. of Norfolk, Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 1(a) and
reletter subsequent paragraphs accordingly:
"(a) Soliciting employee grievances and implying
that such grievances will be rectified in the future to
induce employees to cease supporting a union, or not
to vote for the Union."
2. Insert the following as paragraph 2(c):
"(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
CHAIRMAN MILLER. dissenting in part:
This, in my view, is an unusual case, and one which
we ought to decide with a minimum of legal niceties
and a very heavy dose of commonsense.
Respondent here was confronted with a member of
management who apparently was primarily interest-
ed in his own political future and acted out of what
he perceived to be his own self-interest, rather than
as an authorized management agent. He first did his
best to attract employee support for the Union and
then, after the Union) failed to support his political
efforts with either a $2,500 contribution or with an
endorsement of his candidacy, his attitude changed
by 180 degrees and he engaged in a series of acts and
statements which unlawfully interfered with employ-
ees' freedom or' choice, this time in an effort to
destroy support for the Union which had, as he saw
it, let him down.
Throughout all of this, and possibly antedating any
of it, he appears to have performed as something less
than a fully responsible member of management, in
such ways, for example, as making promises to
employees which could not be and were not kept.
When some employees advised the top manage-
773
ment personnel of the confused and unhealthy state
of affairs of the stores here involved, top manage-
ment quite naturally attempted to restore some
degree of credibility and confidence by employees in
the management. Meetings were held with employ-
ees, which in another factual context I might well
agree might be construed as grievance solicitation of
a type and timing designed to interfere with
employees' self-organizational rights. But in the
factual context here, I do not believe this was the
impact or the effect of them. It is also apparent that
Respondent attempted to be very cautious not
unlawfully to interfere with the employees' right of
free choice. It did not make promises of benefit nor
did it install or even refer to the increased benefits
which, prior to the organizational campaign, it had
planned to effectuate.
To this there was one exception-a modification of
holiday practices which affected only 4 of 69
employees, and which was neither announced nor
even referred to during the campaign. I do not
believe that this minor adjustment was undertaken
for an improper purpose or that it tended to have any
meaningful impact on the election.
After the election, when Respondent quite properly
believed that the implementation of previously
decided upon changes could not be charged to have
had any effect upon an already held election, it
proceeded to implement them.
I cannot realistically find that Respondent violated
our Act in any of this. It is true, however, that Mayo,
who acted, I am confident, solely out of personal
considerations unrelated to any authority vested in
him by either management or the Union, neverthe-
less engaged in statutorily prohibited activity-all for
purely personal and political purposes. His vacillat-
ing and improper activity sufficiently tainted the
atmosphere in which the election was held that I
would run a fresh election.
But that is all I would do, and it is all that needs
doing, so far as I can see, to effectuate the policies of
our Act in this most unusual state of affairs.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we, Shulman's
of Norfolk, Inc., violated the National Labor
Relations Act, and ordered us to post this notice. We
will carry out the order of the Board, the judgment of
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any court enforcing the same, and comply with the
following:
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection and
To refrain from any or all of these things.
WE WILL NOT do anything to interfere with our
employees in the exercise of these rights.
WE WILL NOT solicit employee grievances and
imply that such will be rectified to induce them to
withdraw their support from a union.
WE WILL NOT coercively interrogate any em-
ployee.
WE WILL NOT tell employees that other employ-
ees will no longer support a union.
WE WILL NOT promise benefits to employees to
induce them to withdraw their support from a
union, or to vote against a union in a Board
election.
WE WILL NOT grant employees improvements
in their wages, hours and terms and conditions of
employment to induce them to withdraw their
support from a union, or as a reward for having
voted against a union in a Board election.
WE WILL, upon request, recognize and bargain
with Retail Store Employees Union, Local 233,
Retail Clerks International Association,AFL-CIO,
as the exclusive collective-bargaining repre-
sentative of our employees in an appropriate unit
of all employees at our stores in the Norfolk,
Virginia, area, excluding all store managers,
guards and supervisors as defined in the Act, and
if an understanding is reached embody the same
into a written signed agreement.
SHULMAN'S OF NORFOLK,
INC.
(Employer)
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: The
captioned proceedings tried before me at Norfolk, Virgini-
a, on May 16-18, and 29-31,1 involved two complaints
pursuant to Section 10(b) of the National Labor Relations
Act, as amended (herein the Act),2 which were consolidat-
ed for trial, and which allege in substance, that Shulman's
Inc. of Norfolk3 (herein Respondent or Company), in the
course of an organizing campaign by Retail Store Employ-
ees Union, Local 233, Retail Clerks International Associa-
tion, AFL-CIO (herein Union or Local 233), interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 rights; discharged Karl Askew because of
his concerted and union activity; and refused to bargain
with the Union as the designated majority representative of
its employees in an appropriate unit, thereby violating
Section 8(a)(1), (3), and (5) of the Act. Also consolidated
for trial with the unfair labor practice cases, were
objections filed by the Union to an election held in the
representation case.4 As hereafter more fully detailed, I
find and conclude that Respondent engaged in extensive
and substantial violations of Section 8(a)(l) of the Act
which were of such a pervasive character as to preclude the
holding of a fair election, and under N.L.R.B. v. Gissel
Packing Company, Inc., 395 U.S. 575 (1969), a bargaining
order is necessary and proper; that the representation
petition be dismissed and all proceeding pursuant thereto
vacated; and that the General Counsel has failed to
establish by a preponderance of the evidence that the
discharge of Karl Askew was violative of either Section
8(a)(1) or (3) of the Act, and that the allegations of the
complaint in that regard should be dismissed.
At the trial, full opportunity was afforded all parties to
introduce relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to submit briefs. Oral argument was waived. Briefs
submitted by the General Counsel and Respondent,
respectively, have been duly considered. Upon the plead-
ings, stipulations of counsel, the evidence, including my
observation of the demeanor of the witness while testifying,
and the entire record in the case, I make the following:
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Charles Center, Federal Building Room 1019,
Baltimore, Maryland 21201, Telephone
301-962-2822.
I Dates referred to in the months of January through May are 1973,
while those in the months of August through December are 1972 , unless
otherwise indicated
2 In Case 5-CA-5942, the complaint issued March 14, on a charge filed
January 24 and served January 26 In Case 5-CA-6009, the complaint
issued April 27, on a charge filed and served March 12, and amended
March 28
3 As amended at the trial to reflect the correct name of the Company.
a The critical events in the representation case are
January 2-Petition filed
February 2-Stipulation for consent election approved
March 5-Election held, 27 votes for the Union, and 33 against,
with 4 challenged ballots
March 12-Objections to election filed and served.
May 2-Regional Director's Report on Objections and Order
Consolidating Representation Case with unfair labor practice case for
hearing on the objections
SHULMAN 'S INC. OF NORFOLK 775
FINDINGS OF FACT5
A. Background
Respondent, a wholly owned subsidiary of Hart, Schaff-
ner & Marx, operates two retail clothing stores in the
Norfolk, Virginia area; one located in downtown Norfolk,
and a branch store located in what is known as Military
Circle Shopping Mall. To operate its business Respondent
employs sales people, tailoring employees , display person-
nel, porters , and the requisite elericals . On or about
December 20, 1972, the Union began a campaign to
organize the employees . of the Military Circle store,6 and
on December 26, wrote the Company that it represented a
majority of the employees in that store, and demanding
recognition for said employees . The parties stipulated that
this letter reached the Company on December 26.
Receiving. no reply, the Union filed a representation
petition on January 2, describing the unit as all employees
in the Military Circle store , with the usual exclusions.
Meanwhile , Union Agent Taylor received word that
possibly Company President Curnutt was willing to discuss
resolving the recognition question by a card check. The
parties met for that purpose at Mayo's home on or about
January 11, and at this meeting Taylor again claimed
majority status in the Military Circle store and requested a
card check . Company President Curnutt refused on the
ground that the unit was inappropriate, claiming that the
proper unit was both stores in the Norfolk area . In view of
Cumutt's position, the Union began an organizational
campaign among the employees of the main or downtown
store.
A hearing on the representation petition filed on January
2, was scheduled for February 1. When the parties met, the
Union amended its petition by fixing the unit as all
employees in both stores , with the usual exclusions. The
parties then executed a Stipulation for Certification Upon
Consent Electionj with the election to be held on March 5,
and a list of the names and addresses of those employees
eligible to vote in the election was made available by the
Company and the parties agreed upon it as the eligibility
list .8
It is the contention of the General Counsel and the
Charging Union that following the filing of the representa-
tion petition, Respondent engaged in conduct violative of
Section 8(a)(1) of the Act, and which affected the results of
the election conducted on March 5. The conduct so relied
upon will now be detailed.
B. Alleged Interference, Restraint, and Coercion
1. The complaint alleges that on or about January 1,
S No issue of commerce or labor organization is presented. The
complaint alleges and the answer admits facts which establish these
jurisdictional elements . I find those facts to be as pleaded.
6 The evidence leaves no room for doubt that Respondent was aware of
this campaign from its inception . Thus, the evidence shows that R. L. Mayo,
manager of the Military Circle store but who was then on sick leave,
telephoned Union Agent Taylor, before the union campaign began, telling
Taylor that the employees were dissatisfied and wished to contact a .union,
and suggested that Taylor communicate with employee Karl Askew, but
that he (Mayo) could take no part in matters of this nature . Also, it appears
that Wanda Whited and Robert Howell , both admitted supervisors , signed
union authorization on December 23 and December 29, 1972 , respectively.
Company President Curnutt instituted a policy of paid
holidays for salesmen in order to dissuade employees from
selecting union representation . Witnesses called by the
General Counsel testified that they were not told when
initially employed by Respondent about fringe benefits
such as vacation pay, funeral leave , sick leave, etc., nor did
they become aware of the existence of such benefits until
after the union cinpaign started .9 Based on this testimony
the General Counsel contends that Respondent 's state-
ments to assembled employees on several occasions in the
critical period, that the employees enjoyed the fringe
benefits above mentioned , violated Section 8(a)(1) of the
Act, because to the employees this was an announcement
of new benefits the employees did not theretofore enjoy. In
view of the testimony of Mary Fantone that such benefits
were paid well in advance of the advent of the Union, and
the fact that employees Askew, Harris, Bums, Miller, and
Zimmerman executed an employment check list at the time
of their hire , which make reference to such fringe benefits,
I find and conclude that the General Counsel 's witnesses,
above referred to, were mistaken when they testified that
they were unaware of the existence of such employee
benefits . Accordingly, I find that, prior to the advent of the
Union, Respondent's employees were entitled to and when
eligible received , inter alia, the following fringe benefits:
a. One week of paid vacation after one year of
service, and two weeks after two years or more of
service.
b. After six months of employment, 15 days of paid
sick leave to be used for illness during the year, but not
cumulative from one year to the next.
c. Paid holidays to all employees (except hourly
paid selling employees), after one year of employment.
d. Paid funeral leave in the event of a death in the
immediate family; duration dependent on the circum-
stances of the particular case.
2. The paychecks distributed to hourly paid sales
people on January 16 (about four in number), for work
during the period January 1- 15,10 contained holiday pay
for the preceding New Year's Day. As indicated above,
such holiday pay was not theretofore available to hourly
paid salespeople. A notice distributed with the paychecks
to the employees affected by the change stated that the
change was effective January 1. This was the first
information employees had that the change was contem-
plated. Company President Curnutt testified without
contradiction that a decision was made by management in
August 1972, to extend holiday pay to hourly paid sales
See G .C. Exh. 67 and 69. In the case of Howell, Model who had become
acting store manager when Mayo became ill in late October, observed the
signing of the card and asked for one that he might sign.
r Approved by the Regional Director on February 2.
9 The evidence with respect to the demand for recognition made at this
meeting will be discussed hereafter in connection with the alleged refusal to
bargain.
9 Askew, Miller, Clark, and Zimmerman . Burris testified that he did not
recall being told about employee benefits, but that he may have, been.
19 Respondent pays its employees on the 1st and 16th of each month
covering work performed during the proceeding half month.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel , and that the change should become effective
January 1, 1973.
3. Early in February, Mayo, who had then returned to
the store on a part-time basis , - asked employee William
Miller if the latter was aware that a union campaign was in
progress among the employees . Miller replied that he was,
and Mayo then asked what he (Miller) thought about the
Union. When Miller replied that he thought the Union was
a good idea, Mayo stated that employees Bell and Askew
were no longer interested in -the Union. Mayo also told
Miller that the latter was a bright young man who
probably had a future with, the Company; that the
Company was opening some . new stores; and that he and
employee Burris should have a chance to prove themselves.
Mayo concluded by saying, "you can trust me. Believe in
what I'm doing and everything will work out.... Have I
ever steered you wrong." 11
4. Also early in February Mayo talked with employee
Bums. Mayo opened the. conversation by saying that the
Military Circle store was in a "terrible mess," and that he
thought the Company should have the opportunity of
getting things straightened out without bringing in a union.
Mayo then stated that if Burris would let the Company
work out its own problems, he (Mayo) would see that
Burris got the job of assistant manager of the new store
Respondent then contemplated opening. Mayo also told
Bums that employees Miller, Askew, and another employ-
ee whose name Burris could not recall, were no longer
interested in the Union, and asked Bums how he felt about
the Union, and what other employees were still for it.12
5. Shortly following the aforementioned conversation
with Mayo, Burris was summoned to Curnutt's office
where the latter stated that he had received information
about the various promises Mayo had made to employees,
including the promise that Bums would be the assistant
manager of the new store Respondent then contemplated
opening. Curnutt told Burris that he (Curnutt) was not at
liberty to discuss at that time any promises Mayo may have
made to employees.13
6. About 2 weeks prior to the March 5 election, Mayo
talked with employee Zimmerman. He opened the conver-
sation by telling Zimmerman that he understood she
trusted him and would do anything he asked. When
11 Based on the credited testimony of employee William Miller. Mayo
admitted that he talked with Miller on the occasion referred to, and that on
one occasion he told Miller that if he worked hard he could "go places with
Shulman's." He denied ever asking Miller how the latter felt about the
Union, but claimed that it was Miller who volunteered that he wanted
nothing to do with the Union. Neither Mayo , nor his friend Roberts, who
allegedly heard the conversation, impressed me as reliable witnesses, and I
do not credit their testimony.
It Based on the credited testimony of Bums, as indicated, I do not credit
the contrary testimony of Mayo.
13 In this regard I credit the testimony of Curnutt that he uninformally
told employees he could make no commitment as to what action would be
taken with respect to future employee benefits.
14 Based on the credited testimony of Juanita Zimmerman . Although
Mayo admitted that be talked with Zimmerman on the same day that he
talked with Burris and Miller, he denied that the Union or her voting in the
upcoming election , was mentioned in their conversation . As indicated, I do
not credit Mayo in that regard.
15 The breakfast meetings of February 27, and the evening meeting on
March 3, were held at the downtown Holiday Inn, known as Holiday Inn
Scope . The morning meeting of March 2 was held in the downtown store,
and the morning meeting of March 3, in the Military Circle store, before
Zimmerman expressed agreement, Mayo asked if he
requested that she not vote for the Union, would she do as
he asked. Zimmerman then inquired "what about Karl"
Askew, at whose solicitation she had signed a union card.
Mayo replied, "Karl is happy." Zimmerman then asked if
Askew, who as hereafter discussed, was discharged on
January 16, would be returning to work. Mayo then said,
"you take my word for it. Karl's happy." Zimmerman then
asked, "Do you mean Kalil doesn't want a union in?" To
this Mayo replied, "Just believe what I tell you. Karl is
happy the way things are." Mayo then stated, "If I say that
I don't want a union in, would you not vote union?"
Zimmerman then told Mayo that she would vote against
the Union in the upcoming election.14
7. On February 27, the mornings of March 2 and 3, and
again during the evening of March 3, Company President
Curnutt and William Mier, President of the Retail . Division
of Hart, Schaffner & Marx, held meetings,15 with. employ-
ees, at which both Mier and Curnutt spoke. The evidence is
uncontradicted that Mier spoke basically about the history
of Hart, Schaffner & Marx, and the opportunities in the
field of retailing for young men willing to apply them-
selves. It is likewise undisputed that Curnutt spoke
primarily about the then existing benefits enjoyed by
employees, and that following Curnutt's remarks, there was
a question and answer period .during which some employ-
ees asked, in effect , what improvements in benefits
employees might expect the Company to institute, as
compared to what the Union represented it would obtain
by contract. On consideration of the entire record, I find
and conclude that Curnutt answered all such questions by
saying, in effect, that he could not discuss the subject at
that time.16
8. Following the breakfast the morning of February 27,
the employees of both stores were notified that Mier would
be available in. his hotel room during the afternoon of
March 1 to see any employee who might have anything to
discuss with management. Five employees went to Mier's
hotel room individually and talked with Mier and/or
Curnutt. These were Dwight Hams, Sonny Shore, Douglas
Bums, William Miller, and Juanita Zimmerman. Neither
Harris nor Shore testified. 17 Burris gave no testimony
concerning his conversation with Mier and Curnutt on this
opening for business.
16 Based on the credited testimony of Miller , Curnutt, and Mier. Bums,
a witness called by the General Counsel, testified that he attended the
March 3 meeting with employees at the Military Circle store and that
Curnutt answered the aforesaid question by saying that he could not tell
anyone how much better benefits would be after the election , Zimmerman,
also a General Counsel witness , testified that she attended the same meeting
and that Curnutt's reply to the question referred to was that employee
benefits would change for the better after the election . Miller, also a witness
called by the General Counsel, testified that he attended the same meeting
and that Curnutt's reply to the question was that he could not discuss the
subject at that time . Upon consideration of the entire record including the
fact that the General Counsel 's witnesses disagreed among themselves as to
just what Curnutt said I am convinced that Bums and Zimmerman either
misunderstood, or had an inaccurate recollection regarding what Curnutt in
fact said in this regard . Accordingly , I do not credit the contrary testimony
of Burris and Zimmerman.
17 The uncontradicted and credited testimony of Curnutt and Mier is
that Harris talked about men 's fashions, Respondent's plans for an
expansion program , and his desire for and the opportunities available in a
career in retailing. Shore spoke only of his vacation trip when he visited
Silverstone s. the Hart , Schaffner & Marx operation in Los Angeles. In
SHULMAN'S INC. OF NORFOLK 777
occasion, and neither Mier nor Curnutt mentioned the
subject during their testimony . Miller testified that he
discussed with Mier and Curnutt his difficulty in getting
along with Medas, the- then manager of the men's
furnishings department , and Kasov, a furnishing salesman,
whom he found it difficult to work with. Also in this
conversation Curnutt asked Miller if Maya had made any
promises to him , and Miller related the conversation,
above set forth, when Mayo told him that he was a bright
young man and should have a chance to prove himself.
According to Miller, neither the Union nor the upcoming
election was mentioned in this conversation.
Zimmerman's conversation at Mier 's hotel room was
much more extensive than that of the other employees who
came there. In giving her testimony Zimmerman appeared
at times confused , hesitant, incoherent, and most of the
time inaudible, it being necessary to continuously, but
unsuccessfully, remind her to speak louder. Because her
testimony is substantially in accord with that of Curnutt
with respect to the conversation on the occasion referred
to, I rely upon his testimony in that regard.
Zimmerman related to Cumutt and Mier,18 about what
she regarded as promises made to her and other employees
by Mayo which had not been honored; about Mayo's out-
of-store political.activity; 19 that through Askew, Mayo was
responsible for the union campaign to organize Respon-
dent's employees, and that he had done so because of a
promise made to him by the Union to contribute $2,500 to
his political campaign; that she had called Mayo for advice
as to whether she should sign a union card, and did so only
when Mayo told her it could do no harm; that upon
Mayo's return to the job after his illness, Mayo's attitude
about the Union changed and that he had just "walked
away" from Askew and left him "holding the bag" so far as
the union movement which Mayo had started and
promoted was concerned, and that he did this because the
Union had withdrawn its promised financial contribution;
that she was certain Curnutt and Mier were not aware of
these things , and she wanted them to know it; m that
Zimmerman was told that the alleged promises to her and
other employees, of which she spoke, were just coming to
their attention ; that the matter would be investigated and
after the facts were obtained the matter would be discussed
with the employees; that none of them were told that such
promises would be kept; and that no action in that regard
was taken prior to the election.
9. As above indicated, Respondent gave a dinner for its
employees on Saturday evening, March 3, at Holiday Inn
Scope, a downtown location most convenient to all its
employees . About 9 a.m., Saturday, Company Comptroller
Wilson went to the Holiday Inn to make final arrange-
ments for the dinner, and at the same time he made
arrangements for a cocktail party for the employees in
Suite 1200 of the Holiday Inn, beginning at 2 p.m., Sunday,
March 4, that being the day before the scheduled election.
Unknown to Wilson or Curnutt at the time was the fact
that on Thursday, March 1, the Union circulated a notice
neither the meeting with Harris nor Shore was the Union , or the upcoming
election , mentioned.
Is Zimmerman had called Curnutt at his home the preceding evening
and told him much of the same . When she came to the hotel the next day,
Curnutt asked her to repeat it for Mier's benefit.
stating that it would hold a meeting in a designated. room
on the mezzanine floor of Holiday Inn Scope on Sunday,
March 4, at 3 p.m., to discuss the upcoming election, and
proposals for inclusion in a contract with the Company.
The evidence is uncontradicted that this notice first came
to the attention of responsible officials of the Company
sometime during the afternoon of March 3. At the dinner
in the evening of-March 3, Respondent announced the
cocktail party on the following day, that all employees
were welcome and were urged to attend and participate,
giving assurance that the Union would not be discussed.
Mier and Curnutt arrived at the Holiday Inn on March
4, just before 2 p.m. After Curnutt made a teleph6ne call to
his wife who was to attend the party, he and Mier waited in
the lobby, and at a table in the coffee shop which was
visible to anyone passing the door. Between the coffee shop
and the lobby of the motel , Mier and Curnutt spent about
an hour . In this period several employees observed Mier
and Cumutt, but no conversation passed between them,
other than the usual "hello." A union representative did
approach Curnutt telling him that he' had no right to be
there and that he should leave. Curnutt replied that it was a
public place and he had every right to be there. After Mrs.
Curnutt arrived, Curnutt and Mier retired to their suite,
where they remained for the duration of the cocktail party.
10. Apparently . on the day of the election, and
admittedly in the critical period, Respondent distributed
among the employees, an undated notice signed by Mier
and Curnutt, reading:
Employees of Shulman's:
We are anxious to work more closely with you on a
person=to-person basis . We recognize the problems that
exist within our organization , we are making every
effort to correct them, and with your help we will!
We sincerely solicit your vote, and we ask that you
cast a "no" ballot today.
11. Following the election on March 5, which as
indicated the Union lost by a vote of 27 to 33, with 4
challenged ballots, Respondent admittedly made certain
changes in the wages, hours, and working conditions of the
unit employees which, the General Counsel.contends not
only violated Section 8(axl) of the Act, but constituted
ground for setting aside the election. These are:
(a) By memorandum , dated and distributed to all
employees on March 6, employees. were advised of a
change in vacation benefits, to be effective immediately.
The notice stated that instead of I week's vacation after I
year of service, and 2 weeks thereafter, employees would
thereafter receive 2 weeks vacation after 1 year of service, 3
weeks after 5 years of service, and 4 weeks after 15 years of
service.
(b) By memorandum dated and distributed to all
employees on March 7, employees were notified that the
is The evidence shows that Mayo was preparing to be a candidate for the
officer of treasurer of Norfolk, the election for which , both primary and
general , would be held during 1973.
20 The statements made by Zimmerman in this regard are, of course,
hearsay and incompetent to establish the truth of her statements.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allowance for supper money was increased from $1 to
$1.50, effective immediately.21
(c) Additionally, by a schedule dated March 9, selling
employees who theretofore worked either on an hourly rate
or on a drawing account against a commission which had
been 6 percent in clothing and 7 percent in furnishings,
were required to elect whether they wished to work on a $2
hourly rate plus a commission of 2 percent on sales, or a
drawing account against commissions which were in-
creased from 6 to 6-1/2 percent in clothing and from 7 to
7-1/2 percent on furnishings,22 effective April 1.
Curnutt testified without contradiction, that the afore-
mentioned changes in working conditions were not
discussed with any employee prior to the election; that the
decision to make these changes was reached in August
1972, to become effective February 1, 1973, when annual
wage and fringe adjustments were customarily made; that
he was prevented from making the adjustments at that time
by the pendency of the representation petition and the
Union's campaign, but that as soon as he felt relieved of
that restraint by the defeat of the Union in the election on
March 5, the changes were put into effect. Why Respon-
dent did not feel the same restraint with respect to the
change made effective on January 1, 1973, when the hourly
paid selling employees were granted holiday pay, Curnutt
did not explain.
(d) Also immediately following the election, Respondent
changed the work schedule of the tailoring employees in
the downtown store from a 40-hour week to be worked in
5-1/2 days, to a 40-hour week to be worked in 5 days. This
change affected about 10 employees, all in the downtown
store, but did not cause any change in their compensation.
According to Curnutt, this change was made simply
because some of the employees involved requested it.
C. The Discharge of Karl Askew
Askew began working for Respondent at its Military
Circle store in October 1971, having been hired by Mayo,
and from that date until January 16, worked in the clothing
department on commission against a drawing account 23
Respondent makes no contention that Askew's work was
other than satisfactory. The evidence leaves no room for
doubt that Askew was the spearhead of the organizational
campaign; he was the first employee to talk with Union
Agent Taylor, assisted the latter in setting up and
conducting meetings with the employees, distributed union
literature, openly discussed the Union in the store with
other employees and with supervisors, and personally
solicited and obtained signatures on the 29 of the 49
employee authorization cards in evidence (excluding his
own and the three signed by supervisors).
21 The qualification for supper money did not change , to qualify the
employee had to report before lunch and work through the dinner period
22 Whether it would be to the advantage of an employee to operate
under one plan or the other, would depend on the volume of sales enjoyed
by the particular employee Curnutt admittedly explained this to the
employees about March 12 or 13, although he conceded that he may have
shown the schedule to some employees as early as a day or two before the
schedule was distributed to employees on March 9
23 Askew was paid a weekly draw of $ 100 His commission on sales was 6
percent, offset against his draw . Employees are paid on the 1st and 16th of
There is virtually no material dispute concerning the
circumstances culminating in Askew's discharge on Janu-
ary 16, and my findings in that regard are based in the
main on Askew's testimony. That morning Askew placed a
telephone call to Hart, Schaffner & Marx's president,
Gore, but was finally connected with Dorf, an assistant to
Mier, president of the retail division of that Company.
After identifying himself, Askew admittedly told Dorf that
it was imperative that the Company immediately send
someone to Norfolk to straighten out Shulman's opera-
tions, because it had many problems, particularly two. The
first problem Askew mentioned was the bad employee
relations, but added that this was being taken care of by
the employees themselves, because they were organizing a
union. The second problem Askew referred to was the
gross incompetence and mismanagement of the stores by
Curnutt and the other high echelons of local management.
Askew referred specifically to bad merchandising and
buying policies; overbuying of some items and under
buying of others; bad display of merchandise; bad
advertising practices, saying that advertisements were run
or displays made to create demand for an item, but when
customers came and asked for the item there was little or
none available to sell; that the store did not have sufficient
stockclerks, making it necessary for the salesmen to work
stock, thus removing them from the salesfloor; that some
employees paid on a commission basis were required to
work overtime, but because the overtime pay for this work
was deducted from commission, they were in effect not
paid for their overtime work; that because of low-employee
morale, even if they got a union contract the store could
not survive; that the store was being operated like a cheap
restaurant, and that while he was once proud to say that he
worked for Shulman's, he was now ashamed to admit that
fact. Askew concluded his telephone conversation with
Dorf, which lasted about 25 minutes,24 by telling the latter
that while Curnutt was a fine man so far as "character,
morality and personality" was concerned, as chief manag-
ing officer of the Company, he was "ignorant, stupid,
inexperienced, dumb [and] didn't know how the store out
at Military Circle operated," and that either he [Askew] or
Curnutt, would have to go. Dorf, finally told Askew that he
was unaware of the matters he spoke of, but that he would
look into them and if need be, some action would be taken.
Askew replied, that this was imperative.
Immediately following the call from Askew, Dorf
telephoned Cumutt and told the latter the substance of the
charges Askew had made. According to the uncontradicted
and credited testimony of Dorf, he gave Curnutt no
instructions other than that he should make certain that
employees were in fact paid for all hours worked at proper
rate, because failure to do so would be a violation of the
Fair Labor Standards Act 25 During the early afternoon of
each month . If commissions exceed the draw , during that period , the excess
is then paid. At the end of the month, if the draw exceed the commissions,
such excess is forgiven , and the account starts anew the following month.
21 My observation of Askew while testifying convinces me that Dorf was
not exaggerating when he said that it was most difficult for him to terminate
the conversation without being rude
2' , According to Dorf, the practice of requiring commission salesmen to
work stock at overtime rates and deducting such earnings from commissions
is standard in the industry. There is no contradictory testimony.
SHULMAN'S INC. OF NORFOLK
January 16, Curnutt and Company Comptroller Wilson
went to the Military Circle store, where they asked Askew
to accompany them to a lunch counter for coffee. After
passing some pleasantries , Curnutt told Askew that the
latter had called the Company's Chicago office that
morning without going through established channels, and
asked that Askew give him a reason why he should not be
fired on the spot. Askew admitted that he had called
Chicago, and asked if Curnutt wanted to know why he had
done so. Receiving an affirmative reply, Askew admittedly
repeated substantially what he had told Dorf earlier that
day, and concluded by saying that he could not continue to
work for Shulman's unless the Company changed back to
the level of integrity it theretofore enjoyed; that either the
Company would have to change or he would have to seek
other employment. At this point Curnutt asked, "what is
keeping you," to which Askew replied, "I prefer to change
the company." Curnutt then stated that he would accept
Askew's resignation , but the latter refused, saying that he
was not ashamed of what he had done, and that while he
was ;not criticizing Curnutt, that as the chief executive
officer of the Company, he was very poor. At this point
Curnutt told Askew that it was then 4:55, and as of 5 p.m.,
he was fired, and that he should pick up his check with 2
weeks' vacation pay, and leave the premises. Askew did
so.26
Askew testified that, prior to calling Chicago the
morning of January 16, he had not discussed any of the
matters 'he mentioned to Dorf with any employee of
Shulman's. In fact, according to Askew, the idea of calling
Chicago first occurred to him that morning while he was
shaving ; he made the call before going to work ; and his
purpose in doing so was to, put Curnutt on the "hot seat" in
the eyes of the highest levels of management, and to
thereby benefit the Company, by convincing them of the
incompetence of local management. Askew admitted that
his call to Chicago had nothing to do with the Union, and
that his sole purpose in making that call was . to convince
the upper management of Hart, Schaffner & Marx that
local management was incompetent ! Askew also admitted
that in his discussion with Curnutt on January 16, the
Union was not mentioned by either of them, and that he
understood that the reason for his discharge on that day,
was his failure to go through prescribed channels.27
se In this conversation Curnutt accused Askew of, telling Dorf that he
(Curnutt) was a stupid S.O.B. or dumb bastard . Askew denied making such
a statement. I find it unnecessary to resolve that conflict.
sr The evidence shows Askew telephoned Dorf again on January 17,
telling the latter that Curnutt had fired him for calling Chicago without
going through proper channels . According to Askew, Dorf then stated that
Askew 's discharge was not because he failed to go through channels, but
because of his union activity. Dorf denied that he made any statement of
that nature, and I credit his denial . Although I am convinced that Askew
was honestly trying to give the facts as he understood them, I am equally
convinced that he was so imbued with the justice of his cause that he
experienced difficulty in distinguishing fact from fiction.
u Based on the credited testimony of Union Agents Taylor and
Dininger. Curnutt admitted that at least Taylor came to his office in late
January or early February and stated that he represented a majority at both
stores, but that Taylor only asked for a card check, not for recognition.
Curnutt admits that he told Taylor that as a hearing had been set for
D. Alleged 8(a)(5) Violation
779
1. Demand of recognition
As heretofore indicated, the Union made its initial
recognition demand on Respondent by its letter of
December 26. The General Counsel, however, does not
rely on this demand as the predicate for the alleged 8(aX5)
violation, because the unit for which ' the Union then
demanded recognitif was concededly inappropriate.
Rather, the General Counsel relies upon two oral conversa-
tions which union agents subsequently had with represent
atives of Respondent.
On or about January 29, Union Agents Taylor and
Dininger called on Company President Curnutt at the
latter's office. Taylor reminded Curnutt of their prior
meeting at Mayo's home, when Curnutt stated that he
regarded both stores as the only appropriate unit ; that the
Union now had a majority in both stores; and demanded
recognition based on a card check. Curnutt declines the
request, saying that he had been advised by his attorney
not to do so, and if Taylor had anything further to discuss,
he could see company eounsel.28
On February 1, the parties met pursuant to the Board's
notice of hearing in the representation case . Present, in
addition to representatives of the Board, were Curnutt,
Wilson and Attorney Fennell for the Company, Union
Agent Taylor, and Askew, who had by that date been
discharged, for the Union. At the outset the Union
amended its petition by providing that the unit would
consist of both stores. A consent election agreement was
executed and the parties then agreed on the list of those
eligible to vote in the upcoming election, and at this point
Taylor put a question to the Company representatives
generally, that they grant recognition based on a card
check. According to Taylor and Askew, Company Attor-
ney Fennell replied, "ok"; that he (Taylor) was so
astonished by the response that he put the question again,
and this time Fennell replied that he preferred to go to an
election, and would not agree to recognize the Union.
Although Respondent denied that such a conversation
occurred,29 I find it unnecessary to resolve the conflict 30
2. The Union's majority status
By its answer in Case 5-CA--6009, Respondent admitted
that the multistore unit pleaded in that complaint is
appropriate. At the trial the parties stipulated the correct-
February 1, anything further should be taken up with company counsel. To
the extent of the conflict, I credit Taylor and Dininger.
ze Curnutt merely testified that at this meeting he did not decline
recognition or a card check ; that Fennell was the spokesman and perhaps
he did.' Wilson, though called as a witness by Respondent, was not
examined on this subject . Fennell, of course, did not testify.
30 As hereafter set forth, I recommend a bargaining order in the instant
case under the standards of N.LR•B. v. Gisset Packing Company. Inc., 395
U.S. 575, 610, 614-615 ( 1969). because of the substantial employer unfair
labor practices which preclude the holding of a fair rerun election . In such
cases, if a majority in an appropriate unit is once shown , bargaining is
ordered to prevent the employer from reaping the benefits of his own
misconduct, and is granted even though a technical violation of Section
8(aX5) of the Act has not been established; i.e., a complete lack of any
demand for recognition or bargaining . See Adams Book Company, Inc., 203
NLRB No. 120, fn. 38 , and the cases there cited.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness of the eligibility list which . shows a total of 69
employees in the unit on January. 29. The General Counsel
introduced a total of 53 cards, 3 of which must be excluded
because they were . ,executed by admitted supervisors, and
were offered solely for the purpose of establishing
company knowledge 31 Thus the General Counsel's claim
of. majority rests on.50 cards. Of these 6 cards must be
excluded32 because they were signed after January 29. In
addition, I exclude the,card of Karl Askew because, as
hereafter found, his discharge on January W. was not
violative of either Section 8(axl) or (3) of the Act, and
therefore he was not in employee status on the demand
date. This reduces the number of viable cards to 43.
Aside from its general attack that most , if not all, of the
cards were coerced as a matter of law, the factual predicate
for which . is hereafter more fully discussed, Respondent
specifically challenges the validity of only those cards
signed by. Matilda F . Smith, Florence Crossling, Frances
Williams, Pauline W. Hunter, Vassiliki Kaltsouni, Alice J.
Perros, Nitsa Arghyris, and Lumsden Bennett . It argues
that these cards are invalid authorizations to the Union
because they were obtained on the representation that they
would bee used only - for the purpose of- obtaining an
election . The testimony with respect to these cards shows
the following:
(a) Florence Crossling testified that she signed the card
(G.C. Exh. 19), on the date it bears; that she obtained the
card from Union Agent Taylor; that she read the card
before signing and returning it to Taylor . According to
Crossling, Taylor told her that the card was to get enough
to have a discussion among the employees , and he made
some reference to voting, but that an election was not-
mentioned . The card signed by Crossling is unambiguous
on its face, as indeed are all the cards received in
evidence.33
(b) Frances Williams testified that she was given the card
she signed (G.C. Exh. 20), by her sister , who told her to
read it carefully before she signed it; there was no
discussion about the purpose of the card ; she read the card
and signed it on the date it bears; and she did so thinking
she would see what the Union had to offer.
(c) Matilda F . Smith testified that the card she signed
(G.C. Exh . 18), was given to her by fellow employee
Hoffenberger who stated that signing the card would be to
her benefit, and later the employees would meet to decide
whether they wanted the Union in the store ; Hoffenberger
did not explain the purpose of the card, nor was there any
discussion about an election ; she then read and signed the
card on the date it bears , but did not understand what it
meant.
(d) Pauline W. Hunter testified that Askew gave her the
card she signed (G.C. Exh. 21); Askew explained to her the
benefits of the Union and "probably" said something
about the card , but that she was listening with only "half
31 These are the cards of Wanda M . Whited, Robert E. Howell Jr., and
William Medas whose cards are dated December 22, but who became
supervisors on January 1.
sa The card of Matilda Smith was signed January 31; Patricia Domine
signed February 15 ; Clifton Cabarros on February 19; Mary F. Neeves on
February 20; Venessa Edwards on February 22 ; and Anna R . Johnson on
February 23.
an hear" and did not recall what he said , and without
reading the card she signed it on the date it bears.
(e) Lumsden Bennett testified that the card she signed
(G.C, Rxh. 27) was given :her by fellow employee Arghyris
who stated that Askew and another man from the Union
came to her home and gave her cards to distribute to get an
estimate if the number interested in the Union was
sufficient to warrant ail election ; she also talked to Askew
who stated that signing the card would impose no
obligation on her ; she read the card before signing it on the
date it bears; and she understood that by signing the card
she was authorizing the Union to represent her.
(f) Alice Perros testified that she was given the card she
signed (G.C. Exh. 25) by fellow employee Arghyris, who
made no statement to her concerning the purpose of the
card, nor did she discuss it with anyone else before -signing
it on the date it bears ; although of Greek extraction, she
does read English , and read the card before she signed it
and understood that it called for a meeting to be held
where the employees could vote whether they wanted a
union or not . As heretofore noted , the card says nothing
about a meeting or a vote.
(g) Vassiliki Kaltsouni testified that she signed the card
(G.C. Exh: 24), on the date it bears, after it was given to her
by fellow employee Arghyris, who told her the card was for
a union , but she said nothing else ; she was unable to read
English , but, from a conversation with fellow employee
Perros, she understood that the employees would be called
to a meeting to find out if they wanted the Union.
(h) Nitsa Arghyris testified that she signed the card (G.C.
Exh. 26), and thought she did so on the date it bears; the
card was given her by a union agent who, along with
Askew, called at her home; she reads English to 'some
extent, and tried to read the card , but did not understand
it; the union agent explained the card to her, but she did
not understand that too well ; that her understanding of it
was that the card would be used to get an election . Askew,
whose testimony in this regard I credit over that ' of
Arghyris, to the extent that there is a conflict , testified that
when he and the union agent called at her home, he
explained to her, in the presence of her husband, that the
card would be used to obtain recognition through a card
check, but if this was denied . by the employer, it would be
used to obtain a secret ballot election ; that in his presence
Arghyris read the card, filled it in , signed it, and then
returned the card to him.
In N.LR.B. v. Gissel Packing Co., 395 U.S. 575, 606-609,
the Supreme Court approved the Board's Cumberland Shoe
Corp., 144 NLRB 1268, 1269, rule, which it reaffirmed in
Levi Strauss & Co., 172 NLRB 732, 732-733, that an
unambiguous authorization card signed by an employee
should be counted in determining . the Union's majority,
even though an election was discussed, unless it appears
that the employee was told that the card would be used
solely to get an election, and for no other purpose.
33 The printed portion of all cards read as follows:
1, the undersigned employee of [Firm name and address I employed
as [job tide, home address and. telephone number] hereby authorize
Retail Clerks International Association , AFL-CIO, or its chartered
Local Union to represent me, for the purpose of collective bargaining,
respecting rates of wages, hours of employment orother conditions of
employment in accordance with applicable law.
SHULMAN'S INC. OF NORFOLK
Applying Cumberland Shoe and Levi Straws rule, I must
and do find and, conclude that each of the eight cards
discussed above constitute valid designations of the Union
as majority representative.. In the case of Crossling,
Williams, Smith, and Hunter, the credited evidence shows
that the subject of an election was not even mentioned, nor
is there any evidence of any kind of misrepresentation to
them . On the basis of the credited evidence no misrepre-
sentation of -any kind was made to Arghyris . Although
Bennet, Perros , and Kaltsouni referred to an election, or to
a meeting where employees could decide if they wanted the
Union, there is no evidence to establish that they signed
cards because of a representation that the sole purpose of
the card was to obtain an election.
Accordingly, having found all .eight of the cards above
discussed to be valid designations of the Union, I find and
conclude that on January 29, when the Union made
demand on Respondent for recognition, it had valid
designations signed by 43 employees in an appropriate unit
consisting of 69 employees, aclear majority.34
Respondent's general contention that all the cards relied
upon to establish the Union's majority were "tainted,".and
in legal contemplation "coerced" because of the conduct of
supervisors Mayo, Whited; Medas, and Howell, is predi-
cated upon the totality of the following:
3. Alleged coercion of cards
1. That it was Mayo who telephoned Union Agent
Taylor to inform the latter that the employees at Military
Circle store wished to organize , and that Taylor then
communicate with Askew and some other employees, for
that purpose . There is no evidence, however, that any
employee other than Askew knew of Mayo's call to Taylor.
2. That in managing the Military Circle store, Mayo
had instilled into the employees the idea that Curnutt as
president of the Company, had no control over them, could
not hire or fire them, or improve or diminish their wages,
hours, or working conditions ; that only Mayo had.the
authority. In this connection , Respondent points to the fact
that employee Juanita Zimmerman refused to sign a union
card until she first discussed it with Mayo, and did so only
after he explained to her that she had no job security, and
that while signing a card might not do any good , it would
certainly do no harm.
3. During Mayo's period of convalescence, particularly
in December 1972 and January 1973 , he kept his hold on
the employees by telephoning Zimmerman and Askew at
the store, having them telephone him, as well as by their
personal visits to his home; in many of these conversations,
the Union and its progress in the store was discussed.
There is no evidence , however, that other employees
participated in such discussion or that they were aware of
such discussion by Zimmerman and Askew.
4. For sometime Mayo has aspired to run for treasurer
of the city of Norfolk in the election to be held in 1973.
Respondent argues that Mayo and the Union entered into
a, conspiracy that in return for the Union 's obtaining
nominating petitions for Mayo, a public endorsement of
, 34 Even were Ito find that the cards of Bennett , Perros, and Kaltsouni
were, because of their references to an election , invalid designations of the
Union, that result would be academic . The only effect would be to reduce
781
his candidacy, and a campaign contribution of $2,500,
Mayo would see that a 'majotity of, the eniplo}Iees signed
cards, •1 .find no evidence to support this contention.
Although Mayo denied that `he; asked the Union for a
money contribution , I credit Askewv's testimony that Mayo
asked him to make a request of the Union for petitions, a
public endorsement , and a contribution of $2,500; that
Askew conveyed skis request to- ,the Union, but the Union
declined to comply therewith ; I further find a complete
lack of evidence to show that except for Zimmerman and
possibly Askew, Mayo discussed) signing a card with any
employee, nor is there any . evidence that any other
employee was aware that Mayo had arty interest in that
regard. Respondent additionally argues that its conclusion
that Mayo• influenced and coerced the employees into
signing cards is supported by' the inference it draws that
when Union Agent Taylor found himself unable to deliver
on his part of the bargain with Mayo, to retaliate against
the Union Mayo began urging employees not to continue
their support of the Union, and not to vote for it in the
upcoming election . I find such, inference inappropriate
because of the complete absence of evidence that except
for Zimmerman , Burris, and , Miller, Mayo urged any
employee to cease his support of the Union, or to vote
against the Union, nor is there any evidence that other
employees were aware of Mayo's conversations with
Zimmerman, Burris, or Miller.'
5. That " Wanda Whitted, manager of the women's
department at the Militat 'y Circle store, and an admitted
supervisor, signed a union card on December 23, 1972.
Respondent states in its brief (p. 9) that, "In the next few
weeks, all six employees under her (Whitted's) supervision
in the Women's Department signed union authorization
cards." On the basis of this assertion Respondent argues
that Whitted must have coerced the employees under her
supervision into signing cards . Not only do I find the
inference Respondent draws to be inappropriate under the
circumstances , but I find unsupporte&by the evidence the
premise upon which it is based . Although an eligibility list
was stipulated into evidence, and some cards indicate that
the signer worked in the ladies department, there is nothing
on the eligibility list, nor is there any other evidence to
show the number of employees working in the ladies'
department. Moreover , there is not one word of evidence
that Whitted ever spoke to any employee about signing or
not signing a union card, or that she attended any meeting
of employees where that subject was discussed.
6. Respondent makes the same argument with respect
to William Medas, manager of the men 's furnishings and
sportswear department. Urging the same inference it draws
in the case of Whitted, Respondent states in its brief (p.
10), "William Medas signed a union authorization card on
December 22, 1972, and, thereafter 11 of the employees of
the Furnishing and Sportswear Department , under his
supervision, comprising nearly all of his staff , signed union
authorization cards." Again there is no evidence from
which it may be determined how many employees worked
under Medal, who did not become a supervisor until
the number of valid cards the Union held from 43 to 40; still a clear
majority.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 1. Moreover, if any employee working under the
supervision of Medas signed a card after January 1, there is
no evidence to show that such employee was aware that
Medas had signed a union card, or that Medas took any
part, directly or indirectly, in causing employees to sign
cards.
7. The same argument is also made in the case of
Robert Howell, a supervisor in the men's clothing
department. Respondent's brief states, "On December 29,
Robert Howell, signed a union authorization card. Mr.
Askew, one of the salesmen in the Clothing Department
under Howell's supervision, had signed a union authoriza-
tion card on December 23, and Messrs. Grolman and
Harris signed authorization cards soon thereafter."35 In
this case also, there is a complete absence of evidence that
Howell ever discussed the Union, or the signing of a union
card, with any, employee other than Askew, or that any
employee other than Askew was aware that Howell had
signed a card.
The foregoing evidence, I find and conclude, is insuffi-
cient to establish that any of the 43 cards relied upon to
establish the Union's majority, was employer coerced. As
the Court of Appeals for the Fifth Circuit said in WRKG-
TV, Inc., 470 F.2d 1302, 1313 (1973):
Before the Board invalidates a card because of pro-
Union supervisory solicitation, there must be some
showing that the signing employee was subject to a
reasonable apprehension that his failure to sign could
have adverse consequences.
s s s s •
There must be a more substantial exhibition of
pressure than a passing remark or a statement of pro-
Union conviction. So long as nothing in the words,
deeds or atmosphere of the alleged " solicitation"
contains the seed of potential reprisal , punishment, or
intimidation, the involvement of the supervisors does
not rise to the level of supervisory "solicitation"
Contentions and Conclusions
Upon the credited evidence heretofore detailed, I find
and conclude that Respondent violated the Act as alleged
in the complaint, in the following particulars:
The 8(axl) Violations
1. The grant of holiday pay to the hourly paid
salespeople for holidays on and after New Year's Day
1973. If is true Curnutt testified (and there is no
contradictory evidence) that the decision to grant this
benefit was made the proceding August, before the advent
of the Union,. but he also testified that the benefit was not
sb The record shows thai Grolman signed on January 23; Harris on
December 20.
ss Respondent argues (Br. 17-18) that as Mayo initially used the Union's
campaign to further his own political ambitions, and turned against the
Union when the latter, in his view, breached its promise of political and
financial support (assumptions which I find unsupported by the record),
Mayo entrapped the Company into a status of having acted illegally, and
that for the purpose of imposing liability on Respondent, Mayo should not
be deemed to have been Respondent's agent when he engaged in the
to be made effective until February 1. Curnutt's decision to
accelerate the effective date of this benefit , when contrast-
ed with his decision to defer the effectiveness of other
benefits also allegedly to become effective on February 1,
until after the March 5 election, demonstrates, I find and
conclude, that Curnutt granted the holiday pay to hourly
paid sales personnel, in an effort to deter them from
supporting the Union 's campaign which Curnutt knew was
in progress . In that sense it constituted the interference
proscribed by Section 8(ax ])of the Act.
2. Mayo's interrogation of employees Miller and Burris
as to what they thought of the Union, as well as his
statements to Miller and Burris that certain employees
were no longer interested in the Union, made for the
obvious purpose of trying to convince them to cease
supporting the Union. This constituted interference with
the Section 7 rights of those employees.
3. Mayo's, statement to Burris that if the latter would
permit the Company to work out its problems without a
union, he (Mayo) would see that Bums got the job of
assistant manager of the new store Respondent then
contemplated opening. This was a clear promise of benefit
to deter Burris from continuing his support of the Union.
4. Mayo's statement to Miller that the latter was a
bright young man who had a future with the Company and
that he should have a chance to prove himself was under
all the circumstances an implied promise of benefit to
induce Miller to withdraw his support from the Union.
5. Mayo's statement to Zimmerman that Askew was
happy with the way things were. Under the circumstances
here , this was a clear representation that Askew had
withdrawn his support of the Union, and an appeal to
Zimmerman to do likewise . In this posture Mayo's request
that Zimmerman refrain from voting for the Union in the
then upcoming election, constituted interference with
Zimmerman's Section 7 rights.36
6. The undated notice distributed to unit employees
urging them to vote against the Union. Although an
employer may lawfully appeal to his employees not to vote
for a union in a scheduled election, he must refrain from
doing so in a manner which contains threat of reprisal or
promise of benefit. The notice here involved tells the
employees that Respondent wishes to deal with them "on a
person-to-person basis," that it recognizes that "problems"
do exist, and that "we are making every effort to correct
them," and that with the help of the employees "we will."
This was plainly a statement that the employees could
reasonably construe as a promise that Respondent would
correct the "problems" if the employees would but cast a
majority of "no" votes in the upcoming election. As the test
is a subjective one, it is sufficient if the notice could
reasonably be so construed by the employees, and it is
immaterial and unnecessary to consider whether Respon-
conduct herein found unlawful . This argument. however, looses sight of the
proposition that the Act is not concerned with private rights , nor with
technical concepts relating to an employer 's legal responsibility to third
parties for the acts of its servants , but with a policy to free the collective
bargaining process of all vestage of employer compulsion and influence.
Where the employees have just cause to regard a speaker as a spokesman for
management, the Board may appropriately require the employer to remedy
the unlawful conduct of such speaker . International Association ofMachin-
ista Tool and Die Makers Lodge No. 35 v. N.LR.B., 311 U.S. 72 , 86-87.
SHULMAN 'S INC. OF NORFOLK 783
dent - intended to make such a promise , or whether the
employees in fact so construed it.
7. By the increase in vacation benefits, supper allow-
ance, commissions, and improvements in the work sched-
ule of the tailor shop employees, all granted by Respondent
between March 6 and 9 . As stated by Mr. Justice Harlan,
speaking for the Supreme Court in N.LRB. v. Exchange
Parts Company, 375 U.S., 405, 409{1964):
We have no doubt that [Section 8(aXl) of the Act]
prohibits not only intrusive threats and promises but
also conduct immediately favorable to employees
which is undertaken with the express purpose of
infringing upon their freedom of choice for or against
unionization and is reasonably calculated to have that
effect. . . The danger inherent in well timed increases
in benefits is the suggestion of a fist inside the velvet
glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and which
may dry up if it is not obligated.
The situation here is no different. It was in effect a reward
to the . employees for having rejected the Union . It is true
that the election had been held when these improvements
were granted, but the 'election procedure had not been
completed . As the Board said in Ralph Printing &
Lithographing Co., 158 NLRB , 1353, 1354, fn. 3:
. An election under Board auspices to deter-
mine a majority bargaining representative does not
consist solely of the physical balloting of the employees
in the appropriate. unit. Necessarily , the vote of the
employees and the validity of the election itself must
await the Board 's post election investigation of objec-
tions properly filed with respect to the conduct of the
election . . . . In the instant case the Petitioner filed its
objections on January 12, 1965, in compliance with the
Board 's Rules and Regulations . At the time , therefore,
when the Employer announced that benefits would be
distributed to the employees , the election of January 6
was clearly subject to invalidation if the objections
were meritorious. We must therefore view the precipi-
tous haste of the Employer 's promise of improvements
to its employees immediately after a bare majority had
cast physical ballots against the Union as an attempt to
gain their support and to assure a continued majority
against the union representation in the event a second
37 The remaining independent 8(a)(I) allegations of the complaint I shall
recommend be dismissed . I have found that at the employee meetings on
February 27 and March 2 and 3, Curnutt did not announce new benefits or
promise such after the election ; that in the interviews with some employees
in Micr's hotel room on March 1 , Respondent did not solicit grievances or
interrogate employees concerning their. support of the Union ; and hence did
not violate Section 8(a)(I) of the Act in that regard . I am likewise convinced
and therefore find that the conduct of Mier and Curnutt at the Holiday Inn
Scope on March 4 constituted neither surveillance nor the impression of
surveillance . All the evidence shows here is that Respondent scheduled a
cocktail party at the Holiday Inn the same afternoon as the Union was
holding its "fish fowl" type meeting at that location , and without evidence
that Respondent's presence was not., for a legitimate purpose, or that it was
for the purpose of observing the union meeting, does not establish such a
violation . As the Board said in Atlanta Gas Light Company, 162 NLRB 436,
438, the mere presence of management officials at a public place where the
union happens to be meeting-
election was directed by the Board . . . . By such
conduct, we find, the employer violated Section 8(aXl)
of the Act and also thereby interfered: with the Board's
election pro edure and made a far election impossible.
[Emphasis added.]
Accordingly, I find and conclude that in the particulars
heretofore stated Respondent violated Section 8(aXl) of
the Act 37
The Alleged 8(aX3) and (1) Violations
Upon consideration of the entire record , I am convinced
and therefore find and conclude that in discharging Askew
on January 16, Respondent did not violate Section 8(a)(3)
or (1) of the Act. Treating first with the 8(aX3) allegations,
an essential element of the General Counsel's case was to
establish by a preponderance of the evidence that
Respondent terminated Askew to encourage or discourage
membership in a labor organization.38 As I have found,
based on Curnutt's credited evidence, that his sole reason
for discharging Askew on January 16 was that the latter
had gone over his head and communicated with the
Chicago office directly, I find no evidence to indicate that
Curnutt acted for any purpose proscribed by Section
8(a)(3). Hence, this aspect of the complaint must fail for
lack of essential proof.
The General Counsel 's contention that Askew's dis-
charge violated Section 8(a)(l) of the Act because his call
to the Chicago office was an exercise of his Section 7 rights
to engage in "concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion...," and for the exercise of which he may not
lawfully be discharged, I likewise find unsupported by the
evidence because , as I have found, in making his call to
Chicago, Askew was not engaging in protected concerted
activity within the meaning of the Act. Although when
talking with Dorf, Askew did mention that the employees
had-been required to work the Sunday before Christmas
Day, when the store was not open for business, and for
which were supposed to be paid at time and one-half, but
which in his case resulted in no compensation because his
commissions exceeded his draw and the compensation for
the Sundaywork ,39 the fair burden of his testimony is that
this was simply a passing remark made in the course of a
half-hoer conversation , during which Askew did virtually
all the talking. That his purpose in making that call was not
to coesplaass about wages, hours, and terms and conditions
. without more specific evidence that it was not for a
legitimate purpose, or that it was for the purpose of observing the
meeting, establishes neither surveillance of the meeting ... nor a
reasonable basis for an impression of surveillance in the minds of
employees attending the meeting.
To the same effect see Universal Packaging Corporation, 149 NLRB 262,
263. Moreover, even if I am in error in my conclusion that the conduct here
referred to was not a violation , the ultimate effect of the order to be entered
herein would be no different from the order I shall recommend, not will the
conclusions with respect to the validity of the election be in any way
affected.
38 Although such intent may. in an appropriate situation, be inferred
from the circumstances surrounding the discrimination (see Radio Officers'
Union of the Commercial Telegraphers Union , AFL 347 U.S. 17,41-46), the
facts here do not warrant such an inference.
ss Dorf testified that this arrangement was customary in retail clothing
industry . There is no contradictory testimony.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment, is made evident by Askew's testimony that
he told Dorf that employee-management problems were
being taken care-of by the formation of a union, and that
the real problem was the incompetency of management in
operating the store. Askew's real and only purpose in
making the call was, as Askew testified, to put Curnutt on
the "hot. seat" in the eyes of upper management 40
Additionally, when Askew and Curnutt talked later that
day, he made no complaint to the latter about wages,
hours, and terms and conditions of employment, discussing
only Curnutt's alleged incompetence as manager of the
stores. Moreover, there is no evidence that before calling
Chicago, Askew discussed with any other employee his
plan to call the Chicago office, or what complaints they, or
any of them, might have regarding their wages, hours, or
working conditions.
Because Askew's complaint to Chicago management was
not concerning wages, hours, and terms and conditions of
employment, but related only to matters in the realm of
management prerogatives, engaged in by Askew admitted-
Jy solely to cause trouble for Curnutt, a result. he regarded
not as ,in the interests of the employees, but as in the best
interests of the Company, I find and conclude that his
conduct was neither concerted nor protected, within. the
meaning of Section 8(axl.) of the Act, and hence that his
discharge under the circumstances Of this case, was not
violative of his Section 7 rights. Cf. Jefferson Standard
Broadcasting Company, 94 NLRB 1507, 1511-12.41 Dis-
missal of, the allegations of the complaint in that regard
will, therefore, be recommended.
The 8(aXS) Allegations
I have found, as above set forth, that the Union was the
duly designated majority representative of Respondent's
employees in an admittedly appropriate unit, when on
January 29 it made demand for and Respondent refused
recognition.. But it does not necessarily follow from such
findings that Respondent's refusal to -recognize and
bargain with the Union violated Section 8(aX5) of the Act.
For an employer enjoys the qualified right to refuse a
union's. demand for recognition and bargaining until such
time as the latter establishes its majority status in some
manner other than its bald assertion to that effect. Such
right, however, is not absolute, and will be regarded as
forfeited if it is established that the employer acted in a
manner which tended to undermine the Union's majority.
Accordingly, application of the aforementioned principles
make it necessary to determine whether Respondent's
refusal to bargain in the instant case took place in a
context of lawful, conduct, or in a context of unlawful
conduct which tended to undermine and destroy the
Union's majority. Tower, Enterprise Inc., 4/b/a Tower
Records, 182 NLRB 382, Atlantic Steamers Supply Co., Inc.,
189 NLRB 282; Kaiser Agricultural Chemicals, 187 NLRB
661, enfd. 473 F.2d 374 (C.A. 5). If, as the Supreme Court
held in N.LRB. v. Gissel Packing Co., 395 U.S. 575,
40 His testimony was:
ADt lNIsrRATIVE Lew JuDoE: Well, is it correct to say that what
you wanted to do {was 1 to put Mr. Curnutt on the hot seat in the eyes
of the management of the Company , is that what you were trying to
do?
610-614, Respondent's conduct falls in the latter category,
and is of a character that the effect thereof is not`likely to
be eradicated so as to insure a fair election , the prior card
designations may on balance be regarded as a more
reliable 'indicator -of the wishes of the employees than their
votes in the election, and a bargaining order may issue as
an appropriate remedy.
The extensive interference, restraint , and coercion
engaged in by Respondent in the preelection period,
coupled with the substantial improvements' in wages,
hours, and terms and conditions of employment granted
immediately following the election , which, as I have found,
were nothing short of a reward for rejectin the Union,
operated to make a fair rerun election vir tual y impossible.
In this posture Respondent must be held to haver efused to
bargain in a context of unlawful conduct tending to
undermine and destroy the majority which the Union
enjoyed when it demanded recognition and bargaining,
and hence violated Section 8(a)(5) and (1) of the Act. I so
find andconclude.
Upon the foregoing findings of fact, and the entire
record in the case , I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5)-of the Act.
3. By the conduct set forth above, Respondent inter-
fered with, restrained, and coerced its employees in the
exercise of rights guaranteed them by Section 7 of the Act,
and thereby engaged in, and is engaging , in, unfair labor
practices proscribed by Section 8(axl),of the Act.
4. On January 29, the Union was, and at all times since
has been, the duly designated collective-bargaining repre-
sentative in a unit of all Respondent's employees employed
at its Military Circle. Shopping Center store and its store at
244 Granby Street, Norfolk, Virginia, excluding all store
managers, guards and supervisors as defined in the Act, a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act
5. .On or about January 29, the Union demanded, and
at all times since has , continued to demand , that Respon-
dent recognize and bargain with it as the,duly designated
collective-bargaining representative of the employees in the
aforesaid appropriate unit.
6. By refusing on January 29, and at all times
thereafter, to recognize and bargain with the Union as the
collective-bargaining representative of the employees in the
aforesaid unit, Respondent engaged in, and is engaging in,
unfair labor practices proscribed by Section 8(aX5) and (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE WrrNEss: But justifiably so, your Honor.
ADMINISTRATIVE L.sw June : Justifiably or not is that what you
wanted to do.
THE Wrrmass: Yes sir.
4' The Board's order on this point was enforced , 346 U .S. 464.
SHULMAN'S INC . OF NORFOLK 785
8. Except to the extent herein specifically found, the
General Counsel has failed to establish by a preponder-
ance of the evidence that Respondent engaged in any
conduct violative of the Act, and all such allegations of the
complaint should be dismissed.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, it will be recommended
that it be required to cease and desist therefrom and to
take the affirmative action set forth below , designed and
found necessary to effectuate the policies of the Act.
Having found that Respondent interfered with , coerced,
and restrained its employees in the exercise of their
guaranteed Section 7 rights, and refused to bargain with
the Union, I conclude from the totality of that unlawful
conduct that , a broad order is appropriate , and that
Respondent should be required to cease and desist from in
any manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed them by
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4, 1941); California Lingerie, Inc., 129
NLRB 912,915.
Having also found that Respondent on January 29, and
at all times thereafter, failed and refused , in violation of
Section 8(a)(5) of the Act, to recognize and bargain with
the Union as the duly designated exclusive collective-
bargaining agent of its employees in the unit herein found
appropriate, and that independently of such violation, a
bargaining order is necessary to prevent Respondent from
profiting from its own unlawful conduct, it will be
recommended that Respondent , upon request , recognize
and bargain with the Union concerning the wages , hours,
and terms and conditions of employment of the employees
in the aforesaid unit , and, if an understanding is reached,
embody the same into a written signed agreement.
Upon the foregoing findings of fact , conclusions of law
and the entire record in the case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
them to withdraw their support from the Union, as a
reward for rejecting the Union.
(d) Telling employees that other employees had with-
drawn their support from the Union.
(e) Refusing, on request, to bargain collectively with the
Union as the exclusive collective-bargaining representation
of its employees in an appropriate unit , consisting of all
employees in its stores in the Norfolk, Virginia, area,
excluding all store managers , guards, and supervisors as
defined in the Act.
(f) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join , or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Retail Store
Employees Union, Local 233, Retail Clerks International
Association, AFL-CIO, as the exclusive representative of
its employees in the appropriate unit above set forth, and,
if an understanding is reached , embody the same into a
written signed agreement.
(b) Post at each of its Norfolk, Virginia stores , copies of
the notice attached hereto marked "Appendix."43 Copies
of said notice on forms to be furnished by the Regional
Director of Region 5 (Baltimore , Maryland), shall after
being signed by an authorized representative, be posted
immediately upon receipt thereof and maintained by it for
a period of sixty (60) consecutive days thereafter in
conspicious places , including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
IT IS FURTHER ORDERED , that except to the extent herein
specifically provided, all allegations of both complaints are
hereby dismissed.
Report on Objections Affecting the Results of the
Election
ORDER 42
Respondent , Shulman's , Inc. of Norfolk, Virginia, its
officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees with respect to
their sympathies for or assistance to any labor organiza-
tion.
(b) Promising benefits to employees to induce them to
cease supporting a union , or not to vote for the Union.
(c) Granting improvements to employees in their wages,
hours, and terms and conditions of employment to induce
42 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all pruposes.
43 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals , the words in each notice reading "Posted
Having found that by the conduct set forth and
embraced in Conclusion of Law 3, most of which occurred
in the critical period,44 Respondent violated Section 8(axl)
of the Act, it follows that the election herein must be set
aside, and I so recommend . Dal-Tex Optical Company, Inc.,
137 NLRB 1782; enfd. 418 F.2d I (C.A. 9, 1969), cert.
denied 397 U.S. 990 (1970); Kaiser Agricultural Chemicals
etc., 187 NLRB 661, enfd . 473 F.2d 374 (C.A. 5, 1973).
Under the authority of Ralph Lithographing Company, 158
NLRB 1353-54, In. 3, enfd. as modified 379 F.2d 687 (C.A.
8, 1967), I further find and conclude that by changes in
wages , hours, and terms and conditions of employment
by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.""
44 The Board regards as the critical period the time between the filing of
the representation petition and the date of the election . Ideal Electric
Company, 134 NLRB 1275, 1278. In the instant cast the petition was filed
January 2, and the election was conducted on March 5.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
announced and made effective by Respondent after the
election , Respondent also engaged in conduct requiring
that the election be set aside, and Respondent 's conduct in
that regard , being of such character as to preclude the
holding of a fair rerun election , calls for the imposition of a
bargaining order . Having recommended that the Board
order Respondent to recognize and bargain with the
Union, no purpose would be served by conducting a new
election. Accordingly, it is further recommended that the
Board dismiss the petition in Case 5-RC-8365, and vacate
all prior proceedings had in connection therewith.