Stanley M. Fell, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1980

250 N.L.R.B. 1154 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stanley M. Fell, Inc. and International Ladies' Gar-
ment Workers' Union and International Ladies'
Garment Workers' Union, AFL-CIO, Local No.
52. Cases 8-CA-11966 and 8-CA-12214
July 28, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 12, 1979, Administrative Law
Judge Jerry B. Stone issued the attached Decision
in this proceeding. Thereafter, the General Coun-
sel, Respondent, and the Union filed exceptions and
supporting briefs, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge as herein modified and to adopt his recom-
mended Order.
1. At a March 292 meeting of the warehouse em-
ployees, Respondent's president, Paul Marcus, gave
a speech in which he emphasized Respondent's op-
position to the Union, stated that the employees
had no need for a union, and discussed benefits
currently enjoyed by the employees. The Adminis-
trative Law Judge found that, on March 31, Super-
visor Ed Bolek asked employee Thelma Love what
she thought of Marcus' speech. Contrary to the
Administrative Law Judge, we find that this in-
quiry violated Section 8(a)(1) of the Act. Because
Marcus' speech discussed Respondent's opposition
to the Union, Bolek's question necessarily constitut-
ed an attempt to ascertain Love's feelings about the
Union. The question had a coercive tendency, par-
ticularly since Bolek had unlawfully interrogated
Love on a previous occasion.
We find the facts herein analogous to those in
Enterplastics Industries, Inc., 217 NLRB 742 (1975),
where the respondent asked employees what they
thought of two antiunion letters written by the re-
spondent's president and plant manager. The Board
I Respondent and the Union have excepted to certain credibility find-
ings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings,
2 Unless otherwise specified, all dates herein refer to 1978.
250 NLRB No. 143
adopted the Administrative Law Judge's finding
that the inquiry violated Section 8(a)(1), since it
was designed to induce the employees to reveal
their views regarding the union. Accordingly, we
find that here Respondent violated Section 8(a)(l)
when Bolek questioned Love.
2. For the reasons set forth below, we agree
with the Administrative Law Judge that a bargain-
ing order is warranted in this case.
We note initially that Respondent's unlawful
course of conduct began almost immediately after
the onset of union activity. In late February, Su-
pervisor Bolek questioned employee Love as to
how she felt about the Union, and on March 31
Bolek interrogated Love again regarding her reac-
tion to Marcus' speech. Supervisor Nimmons subse-
quently asked employee Patricia Curry what she
thought of the Union and whether she would vote
for it. On May 22, Respondent unlawfully granted
new hospitalization benefits to its employees, and,
at the August 17 meeting, Supervisor Nimmons
stated that, if the warehouse became unionized, em-
ployees would not be able to take time off from
work unless the Union granted permission.
We find that these unfair labor practices have a
"tendency to undermine majority strength and
impede the election processes." 3 We note in partic-
ular that the granting of the hospitalization benefits
can be expected to have an especially strong
impact on the employees. By committing such an
unfair labor practice, an employer succeeds in pro-
viding employees with much, if not all, of what
they hoped to gain through union representation.
In K & K Gourmet Meats, Inc., 245 NLRB No. 173
(1979), the Board cited with approval the following
language from Tower Enterprises, Inc., d/b/a Tower
Records, 182 NLRB 382, 387 (1970), which is par-
ticularly relevant to the instant case:
It is difficult to conceive of conduct more
likely to convince employees that with an im-
portant part of what they were seeking in
hand, union representation might no longer be
needed. An employer may have the right to
persuade employees that representation is not
in their best interests, but it does not have the
right to threaten them or confer benefits on
them which are designed to influence the em-
ployees against choosing a representative.
When, as here, an employer does so, free
choice in a subsequent election becomes a
matter of speculation, so long as the effects of
the interference remain unremedied. 4
N L.R.B, v. Gissel Packing Co.. Inc., 395 U.S. 575, 614 (1969).
4See also Honolulu Sporting Goods Co., Lid., a subsidiary of Zale Cor-
poration. 239 NLRB 1277 (1979) Naotional Care 4 Convalescent Industries,
Continued
1154
STANLEY M. FEIL, INC
It should be noted that in the K & K case the
Board found that a bargaining order was warranted
where the employer had unlawfully promised a
wage increase and improved benefits. In the instant
case the improvements were actually granted, and
the need for a remedial bargaining order is even
more compelling. Accordingly, we conclude that,
on balance, employee sentiment as expressed
through the authorization cards would be better
protected by the issuance of a bargaining order. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Stanley M.
Feil, Inc., Cleveland, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
Inc. d/b/a Elmwood Nursing Home, 218 NLRB 346 (1978): Crago Gear d
Machine Worls. 236 NLRB 539 (1978).
a In granting the bargaining order, Member Penello does not rely on K
d K Gourmet Meats, Inc.. supra, in which he did not participate Suffice it
that in this case there was an actual grant of substantial benefits, hospital-
ization, unlike K & K which involved a mere promise of benefit.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on January 15, 16, 17, and February 6, 7, and 8, 1979, at
Cleveland, Ohio.
The charge in Case 8-CA-11966 was filed on May 22,
1978. The original charge in Case 8-CA-12214 was filed
on August 23, 1978. The amended charge in Case 8-CA-
12214 was filed on September 27, 1978. The complaint in
Case 8-CA-11966 was issued on June 30, 1978. The
order consolidating Cases 8-CA-11966 and 8-CA-12214
and the complaint in Case 8-CA-12214 were issued on
September 29, 1978.
The issues in this case concern whether Respondent
has engaged in conduct violative of Section 8(aX5), (3),
and (1) of the Act. The 8(a)(5) issues include questions of
whether "warehouse" employees constitute a separate
appropriate bargaining unit instead of belonging in a
larger P&M-type unit, whether certain individual em-
ployees belong in such unit, whether the Union has been
designated as bargaining representative by a majority of
employees in the contested unit, or whether the cards
used for such designation purpose are tainted by virtue
of alleged statements by solicitors that cards were
"solely" or "only" for election use. The 8(a)(3) issue
concerns the discharge and/or termination of Thelma
Love on April 8, 1978, because of her union or protected
concerted activity. The 8(a)(1) issues concern whether
the Respondent engaged in acts of interrogation, threats,
promises, granting benefits, surveillance, and/or creation
of impression of surveillance, and related acts, as inter-
ference with or coercion of employees in the exercise of
their rights to self-organization or to join or assist the
Union.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by all par-
ties and have been considered.
Upon the entire record' in the case and from my ob-
servation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and admis-
sions therein and the record as a whole.
Stanley M. Feil, Respondent, is now, and has been at
all times material herein, a corporation duly organized
under, and existing by virtue of, the laws of the State of
Ohio. It is engaged in the business of manufacturing and
distributing ladies' garments. Annually, in the course and
conduct of its business operations, Respondent receives
goods and products valued in excess of $50,000 at Cleve-
land, Ohio, directly from points located outside the State
of Ohio.
As conceded by Respondent and based on the forego-
ing, it is concluded and found that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED 2
International Ladies' Garment Workers' Union and In-
ternational Ladies' Garment Workers' Union, AFL-CIO,
and Local No. 52, each is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR I ABOR PRACTICES
A. Preliminary Issues
Supervisory Status3
At all times material herein, the following individuals
have occupied the positions set forth below and have
been, and are now, agents of Respondent, acting in its
behalf, and are supervisors within the meaning of Section
2(11) of the Act: Paul Marcus, president; Jeff Sidney,
vice president; Neil Marcus, vice president; Ginnie Wlos-
zek, supervisor; Ed Bolek, supervisor; Victor Nimmons,
supervisor.
B. Setting
Stanley M. Feil, Inc., Respondent, is a manufacturer
and distributor of ladies' sportswear. Respondent has
] G.C Exh 37 relating to wage increases since January I. 1976., and
Resp. Exhs. 17 and 18 relating to wage rates and dates of hiring of fac-
tory employees and of wage rates of office personnel have been received
into the record
a The facts are based on the pleadings and admissions therein
3 The facts are based on the pleadings and admissions therein
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been in business for approximately 60 years. Until about
1970, Respondent's business location was approximately
one block away from its present location, and all of its
operations were housed in one building. About 1970, Re-
spondent moved its operations to the present location of
its factory and office. It continued to base its operations
in one building. As of 1965, Respondent's operations may
be described as follows: Respondent's production was
produced by 60 percent of its factory employees; 40 per-
cent of Respondent's production was produced by an
outside contractor. At such time Respondent had ap-
proximately 75 production employees and 4 warehouse
employees. Between 1965 and the present time, Respond-
ent has expanded its operations. As of early 1979, Re-
spondent's production employees have performed 25 per-
cent of the work production, and 75 percent of the work
production has been performed by five outside contrac-
tors. As of 1978 and 1979, Respondent had approximate-
ly 125 production employees and approximately 25 ware-
house employees.
As a result of Respondent's expansion as set out above,
in or around 1974, Respondent found it necessary to
either expand its facilities, to move, or to acquire new
space. Respondent ascertained that it was not feasible to
expand its present warehouse facilities, that there were
detriments to an immediate moving of its operations
caused by a depressed real estate market, and that the
best alternative was to acquire some new nearby facilities
and to move part of its operations, the warehouse por-
tion, to such new facilities.
Because of the foregoing, Respondent in 1974 moved
its warehouse facilities and employees to a new location
approximately I to 1-1/2 blocks from its production
facilities. Since that time Respondent has continued its
operations with its production facilities at one location
and its warehouse facilities at the location I to 1-1/2
blocks from its production facilities. The facts reveal that
Respondent is desirous of having all of its operations at
one facility but has been unable to solve the problems
connected with disposal of its real estate holdings at the
factory site and the obtaining of a new location.
In the last 15 to 20 years, the Union has engaged in
some activity or organizational efforts at Respondent's
place of operations on about six occasions. It appears
that on one of the occasions the organizational activity
resulted in a "vote," and that on another occasion a
"vote" was scheduled but was called off. On the other
occasions, it appears that the organizational activity or
distribution of literature simply ceased.
In or around early February 1978, the Union com-
menced organizational activity and the distribution of lit-
erature directed at the organizing of Respondent's fac-
tory and warehouse employees. Around this time, Re-
spondent learned of such organizational efforts. Shortly
thereafter, Respondent held a meeting for management
and supervisory personnel wherein their retained attor-
ney advised and gave written material on the "Do's and
Don'ts" for employers in union campaign matters. In late
March, a Respondent official gave talks to employees to
let employees know of Respondent's opposition to the
unionization of its employees. In issue in this case is
whether certain supervisors in February, March, and
April, 1978 engaged in unlawful interrogation of employ-
ees concerning their union activities and desires.
On February 16 and March 1, 1978, the Union held
meetings for Stanley Feil employees. Some Stanley Fell
factory employees attended such meetings. In early
March 1978, Patricia Rains left some union cards at the
Feil warehouse. Thelma Love took one of the cards,
signed and sent the same to the Union. Rains then con-
tacted Love and encouraged her to get other warehouse
employees to attend a union meeting on March 23, 1978.
Said meeting was also advertised by the distribution of a
flyer. In the meantime, in early March, several ware-
house employees had signed union authorization cards.
On March 23, 1978, a significant number of warehouse
employees attended a union meeting and signed union
authorization cards. There were also some factory em-
ployees in attendance at the March 23, 1978, meeting.
Some of the employees received union buttons, and on
March 24 and thereafter some six or seven employees
wore union buttons while at work in the warehouse.
There were union meetings for Fell employees on March
29 and April 5, 1978. Said meetings were advertised by
the distribution of handbills and flyers to Feil employees.
On April 7, 1978, Respondent conducted purse and
bag checks of employees at the warehouse at noon and
at the completion of the day when employees left the
warehouse. Respondent has an established rule relating
to such searches and has in the past conducted such
searches, at times twice in the same day. Thelma Love,
an active union adherent who openly wore a union
button, resisted but ultimately "complied" with the noon
search of her bag. That afternoon, Respondent's supervi-
sors and officials talked to Love about the rule and the
question of searches and gave her a letter concerning
suspension if she continued to refuse to be searched. At
the close of day, Love refused to be searched. The next
day Love was terminated from employment either by a
suspension followed by her quitting her job or by an out-
right discharging of Love. In issue in this case is whether
Respondent, by the April 7, 1978, searching of bags, en-
gaged in unlawful surveillance or created the impression
of surveillance of employees' protected or union activi-
ties. In issue also is whether Respondent has violated
Section 8(a)(3) and (1) of the Act by discriminatorily dis-
charging Love on April 8, 1978.
Following the discharge of Love, overt union activity,
excepting for the wearing of union buttons, ceased for a
while. There was, however, a union meeting held on
April 26, 1978. During the time of the union activity pre-
viously discussed, some employees had expressed interest
in increased hospitalization-type benefits. On May 22,
1978, Respondent announced increased hospitalization
coverage. In the announcement Respondent indicated
that its decision to grant such benefits had been kept
back because of the pending union campaign, but that it
was being effected because the union campaign "appar-
ently" was over. In issue in this case is whether such
May 22 grant of benefits constituted interference with
and restraint and coercion of employees in the exercise
of their Section 7 rights.
1156
STANLEY M. FEIL, INC
On May 22, 1978, the Union filed charges (Case 8-
CA-11966) alleging Respondent's conduct violative of
Section 8(a)(1) and (3) of the Act. The 8(a)(3) allegations
did not refer to the termination of Love. The allegations
as a whole did not specifically relate to the May 22 grant
of benefits. Apparently, such charges were filed prior to
knowledge of the May 22 granting of benefits.
Union meetings for Feil employees were held on June
1, 8, and 23, 1978. On June 22, 1978, the Union filed a
representation petition in Case 8-RC-11402. The unit of
employees for which representation was sought was a
unit of warehouse employees.
On June 30, 1978, the General Counsel issued a com-
plaint in Case 8-CA-11966, alleging violations of Section
8(a)(1) of the Act by promises of benefits and the grant-
ing of benefits on May 22, 1978. On July 14, 1978, a rep-
resentation hearing in Case 8-RC-11402 was held, and
the parties litigated whether the appropriate unit should
be limited to a unit of warehouse employees as contend-
ed for by the Union or should consist of all Feil employ-
ees (factory and warehouse) as contended for by the Em-
ployer. Later, on July 31, 1978, the Regional Director
issued a decision in Case 8-RC-11402, finding in effect
that the unit sought by the Union, the warehouse unit,
was the appropriate bargaining unit.
Following the above, the Employer made request to
the Board for review of the Regional Director's decision
in Case 8-RC-11402 on August 11, 1978. While decision
by the Board on such review request was pending and
while an election in Case 8-RC-11402 was scheduled for
late in August 1978, Respondent had several meetings
with employees at the warehouse. In issue in this pro-
ceeding is whether certain of Respondent's officials and
supervisors made threats or promises of benefits designed
to interfere with employee rights in violation of Section
8(a)(1) of the Act. On August 25, 1978, the Board grant-
ed the Employer's request for review of the Regional
Director's decision in Case 8-RC-11402. Thereafter, on
September 29, 1978, the General Counsel issued an order
consolidating Cases 8-CA- 11966 and 8-CA- 12214, and a
complaint in Case 8-CA-12214. In such complaint the
General Counsel alleged violations of Section 8(a)(l), (3),
and (5). Because of the Board's policy of not proceeding
with representation cases when there are pending 8(a)(5)
charges, the Board caused the representation case to be
dismissed. Such was done by order of the Regional Di-
rector on October 18, 1978.
C. Interrogation
In issue in this proceeding is (1) whether Respondent,
by Supervisor Ed Bolek, toward the end of February
1978, and around March 31, 1978, interrogated Thelma
Love concerning her union activity or beliefs, and (2)
whether Respondent, by Supervisor Victor Nimmons, on
a date between March 24 and April 6, 1978, and on a
date between April 7 and 20, 1978, interrogated Patricia
Curry concerning her union activity or beliefs.
Love and Bolek testified concerning the events in issue
as regards the alleged interrogation of Love. Essentially,
the resolution of the issues depends on credibility deter-
minations. Love testified to details concerning the inter-
rogation in February which, if believed, establishes con-
duct violative of Section 8(a)(1) of the Act. Bolek testi-
fied in denial that his conversation with Love in Febru-
ary involved interrogation of her about the Union. The
Respondent presented evidence relating to instruction by
counsel to Bolek and others of the "Do's and Don'ts" in
union campaigns. Respondent also presented evidence
that both Bolek and Love had worked for "Bobbie
Brooks," 4 a company that had a collective-bargaining re-
lationship.
Considering the testimonial demeanor of the witnesses
and the overall facts, I am persuaded that Love's version
of what occurred in the February conversation between
her and Bolek is more credible than Bolek's version. I
have considered the factors contended by Respondent
concerning instructions to supervisors as regards the
"Do's" and "Don'ts" and the prior employee employ-
ment at Bobbie Brooks. Such factors are not entitled to
great weight. Thus, many persons do not comply fully or
even partly with instructions. Nor does the fact that an
employee has worked in a union shop necessarily reveal
that the employee is a union adherent when employed
elsewhere. Ultimately, the matter is a question of persua-
sive believability. Love on this issue appeared a credible,
forthright, and believable witness. Bolek did not appear
to be a poor witness. In sum, however, I found Love to
appear a more believable witness on this issue. I find the
credited facts to be revealed by the following credited
excerpts from Love's testimony:
Q. What was the conversation between you and
he at that time, to the best of your recollection?
A. At the time, Mr. Bolek told me that the Union
was going to try to organize the plant and that they
had tried once before and it didn't go through
And he said that Mr. Marcus, the owner of Stan-
ley Feil, did not want a union, and he said that we
didn't need a union, that the union was no good.
He also told me that he knew I knew about the
Union from my former employ at Bobbie Brooks
where Mr. Bolek used to work also, and he asked
me how did I feel about the Union, and I didn't
make no comments about it.
He went on to tell me that the Company was-
had benefits to offer and said if Mr. Marcus made
money, the employees made money, and that we
didn't need a union.
The Union was okay if we hadn't asked the su-
pervisors-we had good supervisors, and if the
Union got in, it would make his work and Mr.
Bolek and Mr. Nimmons' work harder.
Considering the foregoing, I conclude and find that
the Respondent, by Bolek, toward the end of February
1978, unlawfully interrogated Love concerning her union
beliefs. Thus, I note that no legitimate need existed for
such interrogation and no assurances of nonreprisal were
given Love. It is clear therefore that such interrogation
constituted interference with and restraint and coercion
of an employee's exercise of Section 7 rights.
4 Referred t1 ait unicts ll Ihe reiord is haolh tlohhl. IIhook'." .r1al1
"Hohh! lBrleoks"
1157
DiECISIONS OF NATIO()NAL LABOR RELATIONS BOARD
l3olek and Love both testified with respect to a con-
versation between Bolek and Love on or about March
31, 1978. At such time, Love had been openly wearing a
union button in the plant for several days. Further, on
March 29, 1978, Paul Marcus had had a meeting with
warehouse employees wherein he had presented a mes-
sage concerning the Employer's opposition to the Union
and had spoken of existing benefits and the lack of need
for a union.
Love's testimony was to the effect that on March 31,
1978, Bolek questioned her as to what she thought of
Marcus' speech and what she thought about the Union.
Bolek's testimony was substantially to similar effect ex-
cepting that he denied that he questioned Love as to
what she thought about the Union.
Considering the testimony of the witnesses, the manner
of presentation of the testimony, and the overall facts, I
find Bolek's version of facts more credible than Love's.
Thus, Love's union sentiments had already been revealed
by the wearing of a union button. Essentially, no need
existed to question her about union sentiments. Love in
the manner of presentation of her testimony reveals that
her testimony concerning questioning about the Union
constituted rationalized conclusions.
Considering all of the foregoing, I conclude and find
that Bolek did not on or about March 31, 1978, question
Love as to her union activities, sympathies, or beliefs in
violation of Section 8(a)(1) of the Act.
In issue in this proceeding is whether Respondent, by
Victor Nimmons on one occasion between March 24 and
April 6, 1978, and on another occasion between April 7
and 20, 1978, engaged in unlawful interrogation of Patri-
cia Curry concerning her union activities, beliefs, or de-
sires. Curry testified to two incidents wherein Nimmons
questioned her, or attempted to question her, about her
union beliefs. Nimmons testified in denial that such inci-
dents occurred. Nimmons also testified concerning re-
ceipt of the "do's" and "don'ts" instructions concerning
union campaigns. Nimmons also testified to having fur-
nished Curry rides to work on occasions. Respondent
argues that Nimmons' credibility is bolstered by such
factors of having received the "do's" and "don'ts"
instructions and the lack of probability of questioning her
when such could be done as she was riding to work with
Nimmons. I have considered the testimony and demea-
nor of the witnesses and all factors relating thereto. I am
persuaded that Curry's testimonial appearance as a wit-
ness on such issues is more persuasive of truthfulness
than Nimmons' testimonial denial. The facts as to what
occurred on the occasions that occurred between March
24 and April 6, 1978, are as revealed by the following
credited excerpts from Curry's testimony:
Q. Now, I would like to direct your attention to
the approximately two week period of time after
you filled out this card. At any time during this
period did you have a conversation with Victor
Nimmons?
A. Yes, I did.
· * · * ·
Q. Do you recall where this conversation took
place?
A. Yes.
Q. Where was that?
A. In the cafeteria.
He asked me what did I think about the Union
and would I vote for it.
Q. What did you say to him, to the best of your
recollection?
A. I did like this (indicating).
I said well, it wouldn't matter to me one way or
the other.
So he told me that by me working part-time at
that time, maybe my vote wouldn't even be count-
ed.
Considering the foregoing, I conclude and find that
Respondent, by Nimmons, interrogated Curry about her
union beliefs and desires in violation of Section 8(a)(1) of
the Act. The facts do not reveal a legitimate need for
such interrogation and do not reveal that assurances of
nonreprisal were given to the employees. Under the cir-
cumstances, therefore, such interrogation was coercive in
nature.
Curry also testified to the effect that Nimmons spoke
to her again concerning the Union during the 2-week
period of April 7 through 20, 1978. Curry's testimony
was to the effect that Nimmons started to ask her what
she felt about the Union, then stopped and told her that
he should not ask such questions and told her that he did
not want her to answer. Curry's other testimony makes it
unclear whether Nimmons actually asked her what she
felt about the Union and then stopped and stated that he
should not ask such questions and told her that he did
not want her to answer, or whether Nimmons started to
say something but then stated that he should not be
asking her about the Union and that he did not want her
to answer the unspoken question.
Considering the foregoing, it is clear that Respondent,
by Nimmons, did not unlawfully interrogate Curry about
her union activities or beliefs. If Nimmons did in fact ask
Curry as to what she felt about the Union, further state-
ments by Nimmons eliminated any possible coercive
effect of such questioning. Similarly, if the total conver-
sation revealed an interrupted idea of questioning by
Nimmons, it is clear that the total effect of Nimmons'
conversation rendered the event to be noncoercive. The
question of coerciveness of interrogation is the inquiry,
implied or real, into the employee's beliefs and the im-
plied request for reply. It is clear that the facts do not
reveal that Nimmons on an occasion between April 7
and 20, 1978, interrogated Curry in violation of Section
8(a)(1) of the Act.
1158
* * * A
STANLEY M FF.L, INC
D. Surveillance or Creation of Impression of
Surveillance
The General Counsel alleges and contends and Re-
spondent denies that "on or about April 7, 1978, Re-
spondent did engage in surveillance and/or create the
impression thereof in an effort designed to discover
union activists among its employees by commencing a
search of the pocketbooks, purses, bags, and/or personal
belongings of its employees as they exited from Respond-
ent's facility during lunch break."
The facts are not in great dispute. There appears
minor dispute as to whether Respondent had a rule relat-
ing to searches of employees' bags and as to how many
times a day Respondent had engaged in searches of em-
ployees' belongings in the past. The overall facts, includ-
ing testimony of employee witnesses, reveals the follow-
ing.
Prior to the early 1978 union organizing efforts and
during the 1978 union organizing drive, Respondent had
a rule relating to searches of employee belongings. Such
rule was as follows: "All packages, handbags or tote
bags brought in or carried from the premises are subject
to inspection. Any employee who refuses to submit to an
inspection upon request is subject to discipline up to and
including discharge."
As previously indicated, union organizational efforts
directed toward Respondent's warehouse and factory
employees commenced in early 1978. Between that time
and April 7, 1978, there was some leafletting at Respond-
ent's facilities; also there were some announcements of
union meetings and some union meetings held. The last
union meeting held before April 7, 1978, was held on
April 5, 1978. Prior to this meeting there had been a
union meeting held on March 29, 1978, which had been
announced by a distributed leaflet. Subsequent to a
speech by Paul Marcus held on March 29, 1978, the
Union had distributed several leaflets concerning the sub-
stance of such speech.
Thelma Love and a number of warehouse employees
had commenced wearing union buttons at work in the
warehouse shortly after a union meeting held on March
23, 1978.
On or about April 7, 1978, President Paul Marcus
spoke on one or more occasions to Vice President
Sidney and Supervisors Bolek and Nimmons concerning
a "check" of employees' baggage pursuant to company
rules. In such conversation, Marcus indicated that the
landlord, who leased warehouse space to Respondent,
had told him in effect that employees were taking mer-
chandise out of the warehouse. Marcus told Supervisors
Nimmons and Bolek to conduct baggage searches on
April 7, 1978. On April 7, 1978, Respondent's supervi-
sors, Nimmons and Bolek, conducted searches or inspec-
tion of employees' purses and bags and belongings when
they left the warehouse at lunchtime and at night. An in-
cidence of resistance by Love occurred at noon. As indi-
cated later, Sidney spoke to Love that afternoon about
the searching of bags and the rule in effect. Love refused
to allow her bag (apparently purse, hand, or tote bag) to
be searched and ultimately was terminated on April 8,
1978.
There is some dispute as to whether men were
searched on April 7, 1978. Suffice it to say, I credit the
testimony of Nimmons and Bolek and employee witness
Jordan to the effect that the men were subjected to in-
spection during the searches on April 7, 1978.
The evidence does not reveal that Respondent's offi-
cials or supervisors made any statements to employees to
suggest that the searches were made to pry into their
union activities or beliefs. Nor does the evidence reveal
any testimony by Respondent's witnesses that supports a
finding that the searches were made as a matter of sur-
veillance or to create an impression of surveillance of
employee union activity or beliefs.
The General Counsel and the Charging Party appar-
ently contend that an inference should be drawn that Re-
spondent's conduct of searching bags and purses was for
surveillance or creation of an impression of surveillance
because of the timing of events in connection with em-
ployee union activity.
In such regard, attempt was made to establish that Re-
spondent had not engaged in two searches of bags on the
same day in the past. The credited testimony of Jordan.
however, reveals that there had been twice-a-day bag-
gage checks made in the past. Further, argument has
been made concerning the sporadic nature of past
checks. In this regard, all witnesses, Respondent's and
the General Counsel's, appeared to overstate the frequen-
cy or lack of frequency of searches.
The sum of the evidence reveals that Respondent has a
legitimate basis for a rule requiring searches in order to
minimize the taking of merchandise from the warehouse.
The sum of evidence reveals that, for searches to accom-
plish desired results and eliminate merchandise improper-
ly leaving the facilities, such searches could not be made
according to a timetable.
One can easily believe that a search of bags or purses
pursuant to the Employer's rule could be used as a pre-
text to ascertain whether employees had union literature
in their purses or bags. One can also easily believe that a
search of bags or purses pursuant to the Employer's rule
could also be used as a pretext to discourage employees'
having union literature or cards in their purses or bags.
To establish that such searches pursuant to the Employ-
er's rule is pretextuous, however, requires more proof
than speculative inference in a situation where there is an
existing legitimate rule based on legitimate reason. In
sum, the evidence in this case is insufficient to reveal that
the Respondent's searches of bags and purses on April 7,
1978, constituted surveillance of employees' union or
protected activities or constituted the creation of impres-
sion of surveillance of employees' union or protected
concerted activities.
E. The Discharge of Love; Events of April 7 and 8.
1978
Thelma Love was initially employed by the Respond-
ent on January 16, 1978. On March 7, 1978, Love signed
a union authorization card. Thereafter Love was active
in attempting to help organize a union at Respondent's
warehouse facility. Love attended a number of union
meetings and again signed a union authorization card on
11 54
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 23, 1978. On or about March 24, 1978, Love and
several other employees commenced wearing union but-
tons at work.
Love had worked at Bobbie Brooks, an employer who
had a collective-bargaining relationship with the Union.
Supervisor Bolek had worked at Bobbie Brooks at a time
when Love also worked there.
In early February, Bolek had interrogated Love as to
her union beliefs or desires. After Paul Marcus' March
29, 1978, speech revealing company opposition to the
Union and relating various benefits the employees of Re-
spondent enjoyed, Bolek questioned Love as to what she
thought of Marcus' speech. There is no question and it is
clear that Respondent on April 7, 1978, knew Love was
a union supporter.
On April 7, 1978, at lunchtime, Respondent conducted
an inspection of employees' purses, bags, and belongings
when employees left the warehouse for lunch. What oc-
curred is revealed essentially by the following credited
excerpts from Love's testimony:
On April the 7th, 1978, as I was getting ready to
leave out the building, it was at lunchtime, to go
and cash my check, Mr. Nimmons was standing in
the doorway in the front exit and he announced
that he was checking purses before we could leave
the building.
So as I approached the door, Mr. Nimmons said
that he was checking my purse. I told Mr. Nim-
mons I didn't think it was right for supervisors to
check employees' purses.
Mr. Nimmons said he had to check my purse
before I could leave the building. I told him I still
didn't feel that it was right for supervisors to search
employees, that if they wanted to search employees,
I felt that they should have a guard at the door to
search employees, not supervisors to search.
So I told Mr. Nimmons that I would open my
bag and let him see that I didn't have anything in
there, and I was carrying Union literature and au-
thorization cards at the time. I told Mr. Nimmons
that I didn't steal, I had never stolen anything, and
there wasn't anything in the warehouse that I
wanted bad enough to steal.
So I opened my bag and let Mr. Nimmons look,
and I left for lunch.
As indicated, the event of the lunchtime inspection of
Love's purse is essentially revealed by the above-re-
ferred-to credited excerpts from Love's testimony. There
is dispute, however, as to whether Love opened her
purse in such a manner as to allow inspection or opened
and closed said purse so fast that Nimmons could not
really see inside the purse so as to determine whether
merchandise of the Employer might be in said purse.
Nimmons and Bolek both testified to the effect that Love
quickly opened and closed her purse. Nimmons' testimo-
ny was to the further effect that Love opened and closed
her purse so quickly that he could not see into her purse.
Love's testimony to the effect that she opened her purse
so that Nimmons could look into the purse was corrobo-
rated by the testimony of McWaine.
In addition to the facts previously set forth, Jordan
testified to the effect that as Love was leaving, after
having opened and closed her purse, Nimmons stated in
effect that he had not touched Love.
Specific details as to the size of the purse or handbag
that Love had at work on April 7, 1978, are not revealed
by the evidence. Nor does the evidence reveal specific
details as to the size of apparel or merchandise of Re-
spondent that might be within the purview of concern
for inspection. If the type of apparel were reasonably
large and the purse or handbag small, as an example, it
would not appear that the handbag or purse would have
to remain open a long time for an inspection of contents.
Under such circumstances, a brief opening of the purse
or handbag would appear adequate to allow a reasonable
inspection of such purse or handbag. On the other hand,
if the purse or bag were large and the Respondent's mer-
chandise or apparel were small, a quick opening and
closing of the purse or handbag might not be sufficient
for an inspection look. Love's testimony was to the
effect that she had in her purse union literature and per-
sonal possessions. Whether such personal possessions
were limited to items such as cards, papers, moneys, lip-
stick, compact, medication, etc., or included items that
might be described as apparel is not clear. 5
After lunch, Nimmons spoke to Love about his right
to check purses. What occurred is revealed by the fol-
lowing credited excerpts from Love's testimony:
When I returned from lunch and I punched in,
Mr. Nimmons stopped me and he told me that he
had a right to check purses. I told him that I felt
still supervisors shouldn't search employees, and
that I had been working there almost three months,
and I had never been searched before.
So he said that he had to search the purse, and I
told him that I would not open my purse again for
him to search, because I didn't think supervisors
should search employees.
Later, Supervisor Nimmons went to Vice President
Sidney and complained that Love had not allowed him
to check her purse at lunchtime. Around this time,
Sidney drew up a statement to give Love concerning
suspension if she refused to go along with a check of her
bag. Later Sidney went to the warehouse and had Nim-
mons bring Love to the lunchroom.
Nimmons went to Love's work station to get her to go
to see Vice President Sidney. What occurred is revealed
by the following excerpts from her testimony.
Q. What happened next, to the best of your rec-
ollection?
Cnsidering the fact that Nimmonis stopped Love after lunch to
speak to her about his right to check purses and that he then complained
to Vice President Sidney that Love had not let him check her purse, I
am persuaded and conclude and filnd that Nimmons was not able to
check Love's purse to his satisfaction. The evidence in this case concern-
ing the size of the purse and the size of company merchandise is insuffi-
cient to reveal whether Nimmons' dissatisfaction arose from the inability
to see whether or not ihere was merchandise in the purse
1160
STANLEY M. FEIL, INC.
A. It was in the afternoon. Mr. Nimmons came
to the working area where I was working.
Q. Do you recall approximately what time of day
this was?
A. Between 2:30, 2:45.
Q. Okay. Continue.
A. And he asked me to follow him. I followed
Mr. Nimmons to the lunchroom. There he intro-
duced me to a Mr. Sidney.
What occurred when Love went to the lunchroom to
see Sidney is revealed by the following credited excerpts
from Sidney's and Love's testimony.
Love's testimony:
Q. So what happened then, to the best of your
recollection?
A. Mr. Sidney said that Victor had told him that
I refused to open my purse to be searched. I told
Mr. Sidney that I did not refuse to open my purse,
that I had let Victor look in my bag but I would
not open it again because I felt that employees
shouldn't be searched by supervisors, and I told him
that I didn't steal and there was nothing in the
warehouse I wanted bad enough to steal.
I told him I had been working there almost three
months and had never been searched before, and I
told him that the female employees was searched
and the male was not.
So Mr. Sidney said that I was no better than
anyone else, that Victor was going to check bags
again at the end of the work shift, and if I refused, I
would be suspended.
Mr. Sidney said that he had been searched in
May Company, going in and out of May Company.
I told him I had been in May Company an awful lot
and I had never been searched in that company.
Q. What did he say about the letter?
A. He said if I refused to let Victor search my
purse at the end of the work shift, for me not to
report to work on Monday, and said I'm giving you
a letter to state the fact.
Sidney's testimony:
Q. Did you ever go over to the warehouse to
talk to her?
A. Yes. Then I went over to the warehouse and
Victor brought Thelma into the lunchroom. We sat
down and I tried to explain to her why we had
such a rule.
I told her that it was a longstanding practice of
the Company but that we had recently become
aware of the fact that it was a possibility that there
was merchandise leaving the premises and that the
only way that we had to protect ourselves from this
situation was to have bag checks. This was the
reason for them.
· · ·*
I said, "Do you understand why we have to have
these checks?" She said, "Yes, I understand that."
She said, "But you have to have a uniformed secu-
rity guard to perform the checks."
I said, "Thelma, I have checked this out as best I
can. I am going under the assumption that you are
wrong in this case. Victor and Ed Bolek are super-
visors and are responsible for, among other things,
the security of the Company in that facility, and
they have the right to ask you to open your bag."
I asked her if she would comply. She said she
wouldn't. I said, "Then, Thelma, if you don't
comply with this rule, why should anybody else,
and if nobody else complies, we have no security in
this situation whatsoever."
I have to tell you at this point I was totally frus-
trated by her response to the whole situation. I gave
her the slip that I had prepared.
I told her that there would be another bag check
at the end of the day. I didn't feel that I was going
to be intimidated by this situation.
The statement given to Love by Sidney was as fol-
lows:
April 7, 1978
Miss Thelma Love
Dear Miss Love:
Continuing failure to comply with our company
rules about inspecting bags and purses will result in
your immediate suspension.
Sincerely,
STANLEY M. FEIL, INC.
Jeff Sidney
What occurred at the end of the workday is as re-
vealed by the following credited excerpts from Love's
testimony:
Q. Now, I interrupted you. You indicated at the
end of the work shift on April 7th something hap-
pened. Would you please indicate what?
A. Yes. Victor was standing at the back exit at
the end of the work shift, and he announced that he
was checking purses as we were leaving the build-
ing.
So as I was getting ready to leave the building,
Victor asked me to open my purse and I said no.
Q. Okay. Then what happened?
A. I left and went home.
Love reported to work around 7:55 a.m. on Saturday,
April 8, 1978, and was terminated by around 8:45 a.m.
What occurred from the time Love reported to work
until her termination is in dispute. I find the facts as fol-
lows except as modified by a finding that Love reported
to work before 7:55 a.m. and punched her timecard in at
7:55 a.m.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What essentially occurred when Love reported to
work is revealed by the following credited excerpts from
Love's testimony: 6
I reported to work at 8:00 o'clock that morning.
When I gets to work I looked in the time card rack
looking for my time card and I didn't have one.
So I went in the office and I told Mr. Bolek that
I didn't have a time card. He said it's in the rack. I
told him no, it wasn't. He asked me to look again.
So I went back to the time card to check and I
checked, and my card wasn't there. I went back
into the office and I told Mr. Bolek that the card
wasn't there, and I asked him had I been fired, and
he said he didn't know anything about it.
About that time Mr. Nimmons came in. Mr.
Bolek asked Mr. Nimmons if he had the time card
and he said yes, he had it. Mr. Bolek asked Mr.
Nimmons to give me the card-
So I could go to work. He gave me the card and
just as I went to punch in, Mr. Nimmons said no,
don't punch, said have a seat in the office.
While I was sitting there, Mr. Nimmons made a
phone call, and he was talking to someone on the
phone. I heard him mention Mr. Sidney's name, and
he talked whosoever he was talking to, and for a
few minutes.
Then he came back and he told me when he fin-
ished his conversation on the phone that I could go
to work.
Love went to work. What then occurred is revealed
by the following credited excerpts from Love's testimo-
ny.'
Love's testimony was as set out Bolek's and Nimmons' testimony
differed from Love's and was to the effect that Bolek noticed Love outl-
side and told Nimmons that Nimmons told Love that according to
Sidney, if she did not go along with the check that she would have to be
suspended, that there followed conversations between Sidney and Nim-
mons, Nimmons and Love. Sidney and Love. I note that L.ove as to some
questions answered questions with questions before giving responsive an-
swers. I have also considered whether Love, as a matter of union advo-
cacy, tried to get discharged. I note, however, that this does not appear
to be the case A charge on her behalf was not filed until August 23.
1978. Nimmons revealed himself to be an evasive witness on cross-exami-
nation. Bolek's appearance as a witness was good but, considering the
total context of facts, was not persuasive of total truthfulness. Sidney's
testimony was to the effect that there was more than one telephone call.
Considering all of this, I am persuaded that Love's testimony was more
truthful and reliable than testimony of the other witnesses. Thus, I am
persuaded that Love's testimony relating to the sequence of telephone
calls reveals what actually happened. In such determination, the evidence
reveals that Respondent had received instructions of "Do's and Don'ts"
and to contact their attorneys before any discharge. Considering all of
this, I am persuaded that Nimmons on April 8, 1978, as a result of the
events on April 7, 1978, realized that he should contact higher-ups. I am
persuaded that Sidney did not want to take action relating to Love until
he contacted his attorneys and advised Nimmons to let Love work, that
Sidney contacted Respondent's attorney and then terminated Love. I dis-
credit Bolek's, Sidney's, and Nimmons' testimony inconsistent with the
testimony of Love as the basis of the facts herein.
7 Considering all of the facts and testimony of witnesses. I credit
Love's testimony to the effect that she was told she was fired and was
not told that she was suspended I discredit the testimony of Nimmons,
Bolek, and Sidney to the contrary effect
Q. What, if anything, happened then?
A. I went to work and I worked for a few min-
utes, maybe 30 or 45 minutes, and I was paged to
come to the office.
Q. What happened then, to the best of your rec-
ollection?
A. When I get in the office I was told that I had
a phone call. I answered the phone. Mr. Sidney was
on the line. Mr. Sidney told me that I was fired.
He said, "Didn't I give you a letter stating a fact
on yesterday?" I told him no, he didn't, that the
letter that he gave me did not tell me not to report
to work today, which was a Saturday. I said the
letter said I would be suspended and not to report
to work on Monday.
So he said well, I told you you was fired on yes-
terday, say why did you come in. I told him he did
not tell me I was fired because if he had of told me
I was fired, I wouldn't have got out of my bed and
report to work.
Then he asked me why did I refuse to let Victor
search me, my bag. I told him that I had been
working there three months, and I had never been
searched before, and I still feel and I still do feel
that supervisors do not have a right to search em-
ployees, and I told him that I would open my bag
on entering and leaving the building if there was a
security guard at the door.
Mr. Sidney said, "Oh, no, you haven't been
working here three months," say, "and the time that
you have been working, you have caused enough
trouble already," and asked me to leave the build-
ing, said I was fired.
So I told Mr. Sidney if I was fired, I would like
to have my pay and I would leave the building. Mr.
Sidney said he couldn't pay me because it was on a
Saturday and the office was closed on Saturday.
So I say to Mr. Sidney, "All I asked you for is
my pay and I will leave." Mr. Sidney say there was
no way he could pay me and if I didn't leave the
building, he would have Victor Nimmons call the
police and put me out.
So I told him I would leave his building when I
received my pay. So he said, "May I speak to
Victor?" I gave the phone to Victor.
The facts are clear that Nimmons and Sidney knew
that Love wanted her money at that time. Nimmons and
Sidney discussed on the telephone how the pay of Love
could be accomplished. What occurred is essentially re-
vealed by the following credited excerpts from Nim-
mons' testimony:
Mr. Sidney was still on the phone. I told Mr.
Sidney, I says, "Mr. Sidney, the payroll clerk isn't
in. There is no way that we could pay her today."
He says, "I'll come down and give her a personal
check."
I says, "Well, I have some petty cash and some
money of my own. Maybe we can figure out her
time and pay her off then."
1162
STANILEY M FEI., INC
And I gave the card to Ed Bolek, I remember,
and he figured out the time.
Yes, we gave her cash money and she signed a
receipt for it. We figured out her time.
Prior to the paying off of Love, Nimmons asked
Thelma Love why she was doing this and told her that
this was a small thing to lose your job about.8
The looseness of the pleadings-"discharge and/or ter-
minate"-relating to the termination of Love, created
confused contention that Respondent's answer in admit-
tance of such pleadings constituted an admittance that
Love had been discharged. Respondent contended at the
hearing that Love had been suspended, had quit, and
therefore termination followed as a result of the quitting
by Love. As has been indicated, I discredit Bolek's, Nim-
mons', and Sidney's testimony to the effect that Love
was told that she was being suspended. I reject any con-
tention that Love "quit" and was not discharged.
Cross-examination of Sidney aimed at the credibility
aspects of testimony concerning whether Love was told
she was being discharged or being suspended. Thus,
Sidney was asked about Love's ability as an employee
and whether Respondent would now consider her for re-
instatement or reemployment. Although such questioning
may be proper for credibility purposes under the circum-
stances, such questioning became very similar to settle-
ment negotiations of the alleged unfair labor practices.
Sidney's testimonial reply was to the effect that if Love
agreed to the inspection of her bag and if Respondent
did not have to pay backpay, she could come back to
work.
Later, not in the courtroom and not as part of the pro-
ceeding, Love spoke to Sidney. What occurred is re-
vealed by the following credited excerpts from her testi-
mony.
Q. After his testimony. Where did you talk to
him?
A. In the conference room.
I asked Mr. Sidney if I could have my job back if
I comply with the Company rules.
· a * * ·
Mr. Sidney said he would have to talk to Mr.
Marcus and Mr. Bolek and Mr. Nimmons, that he
would let me know.
He didn't see no reason why not, and he asked
me why didn't I comply with the Company rules
when I was there.
To the extent that this testimony of Nimmons was to the effect that
he was speaking to Love impliedly about her "quitting," such testimony
is discredited It is, however, credited, as referring to her refusal to allows
her purse or handbag to be checked. It is clear, under all of the facts,
that Respondent had reason to believe that Love did not intend to have
her purse or handbag checked by anyone other than a security guard
I told him I didn't know about the Company
rules. If I had known, I would have complied. And
he asked me why I didn't comply when he gave me
the letter.
· * * * ·
I asked Mr. Sidney if I could have my job back if
I complied with the Company rules. Mr. Sidney
asked why I didn't comply with the Company rules
when I was there.
I told him I didn't know about them, the Compa-
ny rules, and I told him that I told him in the meet-
ing that I had allowed Victor to look in my bag,
and he asked me why I didn't let Victor look at
4:30 after he gave me the letter.
I told Mr. Sidney I didn't know who he were.
MR. Mt YER: I would ask for clarification as to
who "he" is that she is referring to.
THt: WITNESS: Mr. Sidney.
I told him I didn't know who he were. I told Mr.
Sidney that I didn't know who he were when he
gave me the letter and he say that I did know who
he were. I told him I didn't know who he were.
So he told me he was the manager. I told him I
didn't know that. I asked him, I said, "Did you tell
me you was the manager?" He said, "No," I said,
"Did Ed or Victor tell me? He said, "No."
I said, "Well, I didn't know you was the man-
ager.
He said, "Well, who did you thought I was?" I
told him I didn't know because he hadn't told me,
Ed or Victor hadn't told me, no one had told me he
was the manager.
I told him that after I was fired I was talking to
Gertrude Jarrett on the phone. She told me he was
Mr. Marcus' son-in-law, and I told him and he said,
"No, I'm not Mr. Marcus' son-in-law. I'm the man-
ager. If you are going to sit here and intimidate me
and make me look like a fool, no, you can't come to
work for me."
He said he had nothing else to say and left out of
the room. He said I intimidated him, made him look
like a fool.
The General Counsel alleges and contends in effect
that Respondent, on April 8, 1978, discharged and/or
terminated Love because of her union or protected con-
certed activity. Respondent in effect admits that it termi-
nated Love, contends that the termination was because
Love quit her employment after being told that she was
being suspended, and contends that the termination of
Love was not because of her union or protected concert-
ed activity.
Considering all of the facts, I conclude and find that
the evidence is insufficient to establish that the discharge
of Love was because of her union or concerted activity.
That Respondent knew that Love was a union adherent
is clear. The facts are, however, clear that Respondent
had a rule relating to the inspection of employee purses
and bags when leaving the warehouse, that past inspec-
tions had been held, that Love resisted such inspection at
H1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lunchtime, that Love was warned of suspension if she
continued to refuse to allow her handbag to be inspect-
ed, and that Love refused to allow her handbag to be in-
spected at the end of the day when leaving the ware-
house on April 7, 1978. Although the facts reveal that
Love only resisted the baggage inspection at lunchtime
on April 7, 1978, the facts reveal that Sidney, when he
gave her the warning letter, had reason to believe that
she had in fact refused to allow her handbag to be in-
spected. The facts further reveal that Love's conversa-
tion on April 8, 1978, revealed a continued insistence
upon a right to refuse handbag inspection unless by a se-
curity guard. Although Respondent discharged rather
than suspended Love on April 8, 1978, such continued
insistence negates that weight should be accorded such
divergence to establish discriminatory intent. Nor does
the questioning of Sidney as to whether he would now
employ Love and the subsequent conversation between
Love and Sidney establish that there was discriminatory
motivation in the discharge of Love. Rather, the subse-
quent conversation and Sidney's testimony merely indi-
cate that Sidney, without advice of attorney, was amena-
ble to settlement of the disputed discharge of Love. Fur-
ther, Love's testimony indicates Sidney's amenability to
reemployment at first and then a change, apparently be-
cause of a feeling of insult felt directed to his position in
the Company. In sum, the facts do not reveal that the
discharge of Love on April 8, 1978, was discriminatory
or violative of Section 8(a)(3) and (1) of the Act.
F. The Grant of Benefits-May 22, 1978
The General Counsel alleges and the Respondent
denies that "on or about May 22, 1978, Respondent
granted to its employees fully paid hospitalization cover-
age in order to induce its employees from becoming or
remaining members of the Union, or giving assistance or
support to it."
Between April 8 and May 22, 1978, a few of Respond-
ent's employees continued to wear union buttons at
work. There apparently was little overt union activity
otherwise excepting a union meeting held on April 26,
1978. There is no evidence that Respondent was aware
of the union meeting held on April 26, 1978.
The totality of the facts reveals that up to this point
the Union's organizational activity had been directed
toward the organizing of both Respondent's factory and
warehouse employees.
On May 22, 1978, Respondent announced the granting
of new hospitalization benefits to all employees, factory
and warehouse. Such announcement was as follows:
Dear Employee:
As many of you are aware, the Company has
been considering providing all of you with hospital-
ization coverage for several months. Unfortunately,
because federal law prohibits a Company from
granting new benefits to its employees during a
union organizing campaign, we had to postpone any
decision about providing hospitalization. Now that
the Union campaign is apparently over and, after
consulting with our attorneys, we are pleased to an-
nounce that we have reached the decision to fully
pay the cost of single member Blue Cross coverage
for all our employees. All those who wish to take
advantage of this new benefit must obtain applica-
tions from the office and return them completely
filled out. Once again, we are happy to be able to
add this important coverage to our long list of other
fringe benefits, such as vacations, holidays, and fully
paid pension.
Employees with (90) ninety days or more of serv-
ice will become eligible for Blue Cross Semi-Private
coverage effective on the 6th of the month 60 days
from date of completion of enrollment card.
President Paul Marcus testified to the effect that there
had been past union campaigns which in effect just faded
away. Marcus testified in effect that the hospitalization
benefits were granted because he considered that he was
free to grant such benefits because he believed that the
union campaign was over. In the management-union
campaign area, sometimes considering technical and legal
problems, thought processes become entangled and result
in rationalized reasoning. Considering the fact that some
employees were still wearing union buttons and the very
words used in Respondent's May 22, 1978, announce-
ment, I am persuaded that Marcus' testimony to such
effect must be discredited. Thus, the May 22, 1978, an-
nouncement sets forth "Now that the union campaign is
apparently over, and after consulting with our attorneys,
we are pleased to announce that we have reached the de-
cision to pay the cost of single member Blue Cross cov-
erage for all employees." As the facts reveal, upon re-
ceipt of knowledge of union activity, Respondent sought
legal advice and received "Do's and Don'ts" instruc-
tions. Included in such instructions was advice that "It is
imperative before instituting any change in working con-
ditions such as wage increases . . . that an employer
consult with an attorney to determine what legal impact
such changes or discipline will have on the employer's
chances of prevailing over the union."
Considering all of the foregoing, including especially
the facts that the union campaign had been directed to
all employees, that Respondent's counter-campaign had
been directed to all employees, that some employees
were still wearing union buttons, and that Respondent's
announcement referred to the fact that the union cam-
paign was apparently over and not to an assertion that
the campaign was over, I am persuaded that the grant of
hospitalization benefits was for the purpose of interfering
with all of its employees' right to engage in union and
protected concerted rights and to dissuade them there-
from. Accordingly, it is concluded and found that Re-
spondent violated Section 8(a)(1) of the Act by the
granting of hospitalization benefits on May 22, 1978.
G. Promise of Benefits: Institution of Benefits
The General Counsel alleges and contends and Re-
spondent denies that "on or about August 9, 1978, Re-
spondent by its supervisor and agent, Paul Marcus,
during a meeting of Respondent's employees on Re-
1164
STANLEY M. FEIL, INC
spondent's premises did promise benefits to its employees
and subsequently instituted certain of these promises."
The facts are clear that Respondent held a meeting for
its warehouse employees on August 7 or 9, 1978. The
following Respondent officials, President Paul Marcus,
Vice President Neil Marcus, Vice President Jeffrey
Sidney, Supervisor Ed Bolek, and Supervisor Victor
Nimmons, were present at such meeting. As indicated,
the warehouse employees were also present. Presented as
witnesses for the General Counsel as to a speech made
by Paul Marcus at this meeting were warehouse employ-
ees Patricia Curry and Geraldine Harris. Presented as
witnesses by Respondent as witnesses to the speech by
Paul Marcus were all of the above-referred-to officials
and supervisors.
The facts are clear that President Paul Marcus read a
prepared speech wherein he outlined the benefits that the
Company had been giving the employees. Following the
reading of the prepared speech, Marcus opened the floor
for discussion and asked if the employees had any ques-
tions. One of the employees asked Marcus about wage
increases and was told that he could not give a wage in-
crease because his hands were tied.
The facts are clear that employees complained about
the lighting, about the desire for a soda machine, and the
desire for a candy (food) vending machine. If Curry's
and Harris' conclusionary testimony is considered, there
is some dispute as to whether President Marcus promised
to get the employees better lights, a soda machine, and a
snack vending machine. Marcus and other Respondent
witnesses denied that Marcus promised such benefits to
the employees. Marcus and other Respondent witnesses
testified in effect that Marcus merely told the employees
that he would look into the matter. The cross-examina-
tion of Harris revealed testimony corroborative of the
testimony of Respondent's witnesses. Such is revealed by
the following credited excerpts from Harris' testimony.
Q. Now, with respect to a candy machine, did
Mr. Marcus say that he would give you a candy
machine?
A. It wasn't a candy. It was a snack machine
with candy and potato chips and stuff.
Q. Candy wasn't mentioned at that meeting?
A. It was a snack machine. Candy and potato
chips both would be in it.
Q. Did Mr. Marcus say he would look into it?
A. But we didn't receive one.
Q. But he said he would look into it?
A. But we didn't get it yet.
The facts further reveal that prior to these events Re-
spondent had been working on improvement of the loca-
tion and installation of lights, had in the past had soda in
a refrigerator for purchase at cost but as of recent time
neglected to keep soda in such refrigerator. Respondent
had not had any snack vending machines. After the
meeting, Respondent did improve its lighting, and did
resume, until December 1978, keeping soda in a refrig-
erator. Respondent purchased, and the employees were
aware that it had but did not put in use, a soda vending
machine. Respondent did not obtain or furnish at any
time a candy (food) vending machine.
President Marcus testified credibly to the effect that
Respondent resumed furnishing soda pop for sale because
it was a benefit essentially already in effect, and that it
improved its lighting because it was already doing the
same consistent with past practice.
Considering the testimony of the witnesses and all of
the facts, I am persuaded that Curry's and Harris' testi-
mony that promises were made by Marcus constituted
conclusionary and rationalized testimony. I credit Presi-
dent Marcus and other Respondent witnesses to the
effect that he merely told the employees that he would
look into the matter of their complaints. Considering the
fact that soda had been available in the past, but not in
recent weeks before the events, that work for proper
lighting for working conditions was underway, and the
related type complaint concerning a snack vending ma-
chine, the facts do not reveal an implied promise of
benefit by a statement that the requests would be looked
into.
Considering the facts that soda had been furnished for
sale to employees in the past, although not in recent
weeks before the August 9, 1978, meeting, the renewal of
furnishing of soda for sale to employees does not consti-
tute the granting of a benefit reasonably to be construed
as being a benefit designed to or having the effect of in-
terfering with the employees' exercise of Section 7 rights
Nor does the fact that Respondent obtained a soda vend-
ing machine, which was not used but known to be avail-
able to employees, constitute the granting of a benefit or
the implied promise of a future benefit. I find it hard to
believe that anyone would really care, or if so, in a sig-
nificant way, whether a purchase of soda resulted from
getting the soda from a refrigerator or from a vending
machine. Considering the fact that Respondent was al-
ready working on improvement of its lighting in the
warehouse, the further improvement as to lights is not
revealed as a benefit designed to or having the effect of
interfering with employees' exercise of their Section 7
rights.
Considering all of the foregoing, I conclude and find
that the facts do not reveal that on or about August 9,
1978, and thereafter that Respondent, by Paul Marcus, as
alleged, promised employees benefits and implemented
such promises in a manner that interfered with employ-
ees' exercise of Section 7 rights in violation of Section
8(a)(1) of the Act.
H. Events of August 17
The General Counsel alleges and contends and Re-
spondent denies that on or about August 17, 1978, Re-
spondent, by its supervisors and agents, Paul Marcus
and/or Neil Marcus, during a meeting of Respondent's
employees on Respondent's premises did (1) threaten em-
ployees with discharge and/or other reprisals by advis-
ing them that if they were not satisfied working for Re-
spondent they should seek employment at a union shop;
(2) threaten employees with reprisal and/or did promise
benefits and/or did interfere with, restrain, and coerce its
employees by stating that Respondent "would do any-
thing to get their vote" and by other statements; (3)
create the impression that Respondent would bargain
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union in a manner to insure a strike to the det-
riment of its employees by stating that if the Union were
to be chosen as the collective-bargaining representative
of Respondent's employees, the wages of Respondent's
employees would be "frozen" and that negotiations be-
tween Respondent would last "for several weeks, several
months and sometimes years."
The General Counsel also alleges and contends and
Respondent denies that Respondent by Victor Nimmons,
on or about August 17, during a meeting of Respondent's
employees and on Respondent's premises did threaten
the employees with reprisals.
The General Counsel also alleges and Respondent
denies that "on or about August 19, 1978, Respondent,
by its supervisor and agent, Neil Marcus, at Respond-
ent's warehouse, did interrogate employees concerning
their union activities, sympathies and/or desires and/or
protected concerted activities." The facts as litigated
reveal that the issue concerns whether such interrogation
occurred on August 17, 1978.
The facts are clear that Respondent held a meeting
with its warehouse employees on August 17, 1978. Pres-
ent at such meeting for Respondent were President Paul
Marcus, Vice President Neil Marcus, and Supervisors Ed
Bolek and Victor Nimmons. Present also were the ware-
house employees. The only employees presented as wit-
nesses to the events of August 17, 1978, were Patricia
Curry, Betty McWaine, and Geraldine Harris. Respond-
ent presented witnesses Paul Marcus, Neil Marcus, Ed
Bolek, and Victor Nimmons with respect to the issues
concerning the events of August 17, 1978.
The facts are clear that Paul Marcus gave a short in-
troductory speech, that Neil Marcus followed with the
reading of a prepared speech, and that Victor Nimmons
and Ed Bolek made statements also.
Considering the testimonial demeanor of the witnesses
and the logical consistency of facts, I am persuaded that
the composite of the testimony of Paul Marcus, Neil
Marcus, Ed Bolek, and Victor Nimmons is more reliable
and truthful than the testimony of Patricia Curry, Betty
McWaine, and Geraldine Harris.9 I am persuaded that
Geraldine Harris' testimony consisted of a very confused
and conclusionary interpretation of what occurred on
August 17, 1978. 1 am also persuaded that most of the
testimony of Curry and McWaine consisted of a con-
fused and conclusionary interpretation of the written
speech read by Neil Marcus. It is obvious, however, that
Neil Marcus made statements not reflected in his speech.
Further, statements by Paul Marcus, Nimmons, and
Bolek were not from prepared texts.
Both Curry and McWaine testified to the effect that
President Paul Marcus stated in effect that he wanted the
employees' vote and would do anything to get such
vote. Paul Marcus, Neil Marcus, Bolek, and Nimmons
testified in denial that Paul Marcus made statements to
the effect that he wanted the employees' vote and would
do anything to get such vote.
Although it appears possible that Paul Marcus, in
opening the meeting and introducing Neil Marcus, would
refer to the upcoming election or voting, the overall
9 Excepted, however, is the aspects of Curry's teslimrnony relating to
what Nimmons said as is set out later herein
facts would reveal that statements by Marcus in the
nature of a promise or threat relating to obtaining a fa-
vorable vote would be inconsistent with other statements
made by him. The testimony of Curry and McWaine
with respect to statements by Neil Marcus in his speech
appears to be conclusionary and a rationalization of what
had been said. Considering this, I credit the testimony of
Paul and Neil Marcus, of Bolek, and of Nimmons that
Paul Marcus did not tell the employees that he would do
anything to get their vote. I discredit the testimony of
Curry and McWaine to the effect that Paul Marcus told
the employees that he would do anything to get their
vote.
Curry testified to the effect that Neil Marcus in his
speech spoke about negotiations and strikes and wages
being frozen at such time. It is unnecessary to go into
precise details as to Curry's testimony. It is sufficient to
say that I am persuaded that what Neil Marcus said con-
cerning strikes, negotiations, and frozen wages is reflect-
ed in the written prepared speech in evidence and that
Curry's testimony does not accurately reflect what was
said. It is further sufficient to say that Neil Marcus' total
speech does not constitute conduct violative of Section
8(a)(1) of the Act.
Curry's further testimony was to the effect that Neil
Marcus stated in effect that, if the employees did not like
their jobs, they could find another job. Harris' testimony
was to the same effect except she attributed such state-
ments to Paul Marcus. Paul Marcus and Ed Bolek testi-
fied in denial that either Paul or Neil Marcus made state-
ments to the employees to the effect that, if they were
dissatisfied with their jobs, they should seek jobs else-
where. Paul Marcus testified that he did suggest to em-
ployees to talk to employees who had worked in union
shops. I note that Neil Marcus' and Nimmons' testimony
did not reveal a specific denial that Paul or Neil Marcus
made such statements. The versions of Neil Marcus' and
Nimmons' testimony considered as an overall version of
the incidents might, however, be construed as a denial
that statements were made that employees, if dissatisfied
with their jobs, should seek jobs elsewhere. Considering
all of the testimony of the witnesses in the context of all
of the facts, I am persuaded that Curry and Harris have
confused and interpreted Paul Marcus' statements that
they should speak to employees about their jobs in union
shops with their interpretation of the overall effect of
Neil Marcus' speech. I discredit their testimony to the
effect that either Paul Marcus or Neil Marcus told em-
ployees that if they were dissatisfied with their jobs, they
should seek jobs elsewhere.
McWaine testified to the effect that, after Neil Marcus
concluded his speech, he asked employees who were for
the Union to stand and raise their hands, that he wanted
them to tell him why they were for the Union, that he
wanted to know. Geraldine Harris testified to the effect
that Paul Marcus read a speech and then asked if the em-
ployees had any questions or "why" they wanted the
Union. The overall facts make it clear that Neil Marcus
was the one who read a prepared speech and that after
the conclusion of such speech asked the employees if
there were any questions or comments. I am persuaded
1166
STANLEY M. FEIL, INC
that McWaine and Harris have confused and interpreted
such remarks in their testimony.' ° I credit Neil Marcus'
and Bolek's testimonial denial that employees were asked
to stand up and to raise hands, or to tell why they
wanted a union. "
There was also testimony concerning whether Paul
Marcus at the end of the meeting promised the employ-
ees a victory celebration. I credit Paul Marcus' testimony
on this point as revealed by the following credited ex-
cerpts from Paul Marcus' testimony:' 2
Yes. As the meeting was breaking up, I believe it
was Carole asked me how come I don't take them
out for a Lordburger like the Union people do.
So I said we weren't allowed to do that, but after
the election, hopefully, we would have a victory
celebration.
Curry testified to the effect that Supervisor Nimmons
made statements concerning what would happen if the
Union came in as is revealed by the following excerpts
from Curry's testimony:
Yes. Victor Nimmons told us that if we got the
Union in, we wouldn't be able to take off work like
we do, we wouldn't be able to do a lot of the things
that we do at work now, because when you have a
union let's see, the Company would have to write a
letter, send it to the Union, to some effect like this,
the Company would have to write a letter and send
it to the Union-
He said if we were to have a union come in, we
wouldn't be able to do the things like we do now,
like taking off from work.
The Company would have to write a letter up,
send it to the Union, and get permission from the
Union to take off.
Respondent engaged in cross-examination of Curry as
to much of the matters covered in her direct examination
as a witness. Respondent did not cross-examine Curry as
to the statements made by Nimmons as referred to in her
testimony set out in excerpts above.
io Harris' testimony on this point in general effect supports Neil
Marcus' and Bolek's testimony McWaine's testimony on cross-examina-
tion is similar or supportive of Bolek's and Neil Marcus' testimony
" Again, it is noted that the testimony of the witnesses must be
viewed in the context of all the facts and the presentation of the cases
Thus. it is noted that the complaint originally attributed unfair labor
practice conduct to Paul Marcus as regards the events on August 17, was
amended to allege other conduct by Nimmons, was amended at the hear.
ing because of witness attribution of some conduct on August 17 to Neil
Marcus to allege that all conduct alleged to have been engaged in by
Paul Marcus was "and/or" engaged in by Neil Marcus Paul Marcus' and
Nimmons' testimony, relating to this particular allegation of misconduct,
does not specifically deny such statements Their overall version of
events may, however, be construed as tantamount to a denial Especially
is this true considering the pleadings and amendments and presentation of
the General Counsel's case
12 Testimony of witnesses to the extent inconsistent with the findings is
discredited
Nimmons' testimony as to the comments he made on
August 17 are as revealed by the following excerpts
from his testimony:
Q. Tell the Judge what you said, to the best of
your recollection.
A. Yes. I made the statement that I had been
working for this Company for a long time and that
I had got benefits and they had always been very
fair and very nice to me, and all the people over the
years that I thought had been very fair and that I
had sent two kids through college through working
through here, and whatever I said was along those
lines.
Q. Did you say what would happen if the Union
were chosen to represent the employees?
A. No, I didn't.
Bolek and Paul Marcus testified in effect that Nim-
mons made comments about the good things that had
happened to him at the Company and that Nimmons did
not make any statements as to what would happen if the
Union came in.
Interestingly, Respondent in its brief alludes to Curry's
testimony as to what would happen concerning sick
leave policy. I find nothing in Curry's testimony to clear-
ly reveal that the remarks she alluded to related to "sick-
leave" policy. Whether Respondent's contention is based
on knowledge of what actually was said, on something
that was in Curry's pretrial affidavit which was not es-
tablished at the hearing, or on conjecture that questions
of having time off related to questions of sick leave is not
clear.
Considering all of the testimony and facts relating to
the events of August 17, 1978, 1 am persuaded that
Curry's testimony as to what Nimmons said does not
constitute a confused interpretation of what occurred or
what Nimmons said. I am persuaded that her testimony
is truthful that Nimmons did make statements as to what
would happen concerning the ability to take off from
work. I discredit the testimony of Respondent's witnesses
to the effect that Nimmons did not make statements as to
what would occur if the Union came in.
Considering all of the foregoing and the facts relating
to the events of August 17, 1978, I conclude and find
that Respondent, by the statements of Nimmons on
August 17, 1978, violated Section 8(a)(1) of the Act.
Thus, Nimmons set forth that employees would have a
more difficult time in taking time off if the Union came
in, that the Company would have to write a letter to the
Union and get permission from the Union for Employer
to grant the employee time off. This simply is not cor-
rect. Unless an employer and a union negotiate a differ-
ent procedure for the granting of time off, an employer
is not required to change and make its policy more re-
strictive by the fact that a union becomes exclusive col-
lective-bargaining representative.
Considering all of the facts, except with respect to the
above-referred-to conduct of Nimmons, the facts do not
reveal that Respondent, as alleged, violated Section
8(a)(l) of the Act by conduct on August 17, 1978. 1 find
it only necessary to discuss such conduct specifically as
I 1 67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the issue concerning Paul Marcus' remarks concerning
a "victory celebration."
The General Counsel contends in effect that Marcus'
remarks concerning having a victory celebration consti-
tuted 8(a)(1) conduct. I do not agree. Such remarks do
not reveal the promise of a significant benefit that would
have more than minimal impact upon an employee's ex-
ercise of Section 7 rights.`
I. Alleged Threat of Reprisals-Augusl 22, 1978
The General Counsel alleges and Respondent denies
that on or about August 22, 1978, Respondent, by its su-
pervisor and agent, Neil Marcus, on Respondent's prem-
ises, did threaten an employee with reprisals by telling
her that if the Union were to be chosen as the collective-
bargaining representative of Respondent's employees, she
would not be permitted to work part time after her re-
tirement.
The two witnesses presented with respect to this issue
were Murray and Neil Marcus.
Murray's testimony as to what occurred is revealed by
the following excerpts from her testimony:
Q. What was said between you and Mr. Neil
Marcus on that occasion, to the best of your recol-
lection?
A. Well, I had been on vacation the week before
and he told me he wanted to go over a few things
that had been discussed during a meeting. I wasn't
there.
He started talking about different things. If the
Union got in, well, different benefits would have
been like we had a ten minute coffee break in the
morning and we had coffee free, which he wasn't
aware of, and if the Union got in, well, some bene-
fits we wouldn't have.
Then he also told me to talk to Gertrude Jarrett
if I had any questions about anything, because I
could go with her.
Q. If you had any questions about what?
A. Anything discussed at the meeting, talk with
Gertrude Jarrett that worked in the office.
Then we also had a conversation about retire-
ment, and he asked me how old I was. I told him 51
and he said at the present time, the Company, if
you retired, you could work part-time, or, you
know, as it is, but if the Union got in maybe we
wouldn't.
Q. If the Union got in what?
A. If the Union got in, we wouldn't be able to do
that.
Q. Be able to do what?
A. To work part-time after retirement.
Q. Continue.
A. Then if the Union got in, in case of a strike,
we could be replaced or there wouldn't be no com-
pensation from the Company.
* * . * *
'1 See Rupp Forge Company. Inc., 201 NLRB 393. 400 (1973)
He said if the Union got in, retirement would be-
you wouldn't be able to work after retirement.
Q. Did he tell you what the Company policy was
at that time?
A. At the present, he said the Company had
people that were retired that were still working
part-time, but if the Union got in-
Q. He said he didn't know what would happen?
A. Yes.
Q. Did he say if the Union got in he didn't know
what the Company policy would be?
A. He said the Union wouldn't be-we wouldn't
be able to work part-time.
Neil Marcus' testimony as to what occurred is re-
vealed by the following excerpts from his testimony:
Q. Would you tell us what was said during that
conversation.
A. Well, I basically tried to summarize for Ruth
the speech that I had given going into what I had
said in the speech, also talking about the benefits
that our Company has and that I explained that I
had talked about in the speech there is a give-and-
take negotiation process that would take place be-
tween the Company and the Union if the Union
won the election that was scheduled for the next
week.
I told her that we presently have a pension plan,
that our employees are welcome back to work after
they have officially retired and drawing their pen-
sion, but many of them chose to come back part
time.
And I explained to Ruth that I didn't know for
sure, but in this give-and-take process that takes
place, that it's something she should check into,
whether or not that would be the case if, you know,
if the present situation changed.
Considering all of the foregoing, I conclude and find
that Respondent did not by Neil Marcus, as alleged,
threaten an employee with reprisals. Thus, Murray's tes-
timony in part reveals that the question of not working
part time after retirement if the Union got in was
"maybe we wouldn't." I credit Neil Marcus' testimony
as to what occurred and am persuaded that the state-
ments made were to the effect that the employee should
consider the fact that the Union might negotiate restric-
tions on the right to employ retired employees. Accord-
ingly, I conclude and find that Respondent, by Neil
Marcus' statements to employee Murray on August 22,
1978, did not violate Section 8(a)(1) of the Act.
J. January 1979 Wage Increases
The General Counsel alleges and Respondent denies
that on or about an unknown date in January 1979 Re-
spondent granted wage increases to its employees to dis-
courage their membership in, activities on behalf of, and/
1168
STANLEY M. FEIL, INC.
or support for the Union and/or to discourage their par-
ticipation in other protected concerted activities. 4
The facts are clear that Respondent granted wage in-
creases on January 6, 1979, to all employees including
the warehouse employees. It is also clear thdt the wage
increases were granted at a time when the Union was
continuing to seek bargaining rights concerning the
warehouse employees by virtue of the charges in the in-
stant cases and the instant unfair labor practice proceed-
ing. At the time of the January 6, 1979, wage increases,
the instant proceeding was scheduled for hearing com-
mencement on January 15, 1979.
Although Respondent granted all of its employees
wage increases on January 6, 1979, the wage increases
for indc'.idual employees varied. The evidence in this
case as to wage increase data concerns wage increases
given warehouse employees during the years 1976, 1977,
1978, and early 1979, and wage rates of certain factory
employees as of certain dates in 1976, 1977, 1978, and
1979. Certain other data as to dates of hire or of termina-
tion of employees is also included in the exhibit evi-
dence.
The General Counsel's Exhibit 37 relating to "Wage
increases since January 1, 1976, and certain other infor-
mation regarding warehouse employees of Stanley M.
Feil, Inc.," contained data as shown by the following ex-
cerpt therefrom:
Korbas -hired 11/10/75; 2/14/76-3.3175 to 3.46;
3/5/77-3.46 to 3.60; 2/4/78-3.60 to 3.75; 1/6/
79-3.75 to 3.95
An initial examination of such exhibit would appear to
indicate, as an example, that Korbas received a wage in-
crease from $3.3175 to $3.46 on February 14, 1978. Re-
spondent's brief asserts that the General Counsel's exhibit
is not based on data reflecting the exact date of wage in-
crease but reflects the date of the ending of the payroll
period. In any event it is clear that the evidence of wage
increases as regards warehouse employees is sufficient to
reveal that there were wage increases on or about the
dates indicated in the evidence exhibit pertaining thereto.
Respondent's exhibit revealing wage rates of factory em-
ployees on certain dates, including the date of 12/31/78
and 1/2/79, reveals the increases in wages that were
granted at sometime in the period between 1/2/76 and
1/2/78, between 1/2/78 and 12/31/78, and between 12/
31/78 and 1/2/79.
An examination of the data relating to wage increases
for warehouse employees reveals the following. In 1976,
Respondent granted substantially all of its warehouse em-
ployees wage increases in February. It is undisputed that
most of the wage increases were on February 21 or
during the payroll period of which February 21 was the
ending date. It is also undisputed that the other wage in-
creases were on February 14 or during the payroll
period of which February 14 was the ending date. In
a' The record at p. 563, 1 6. inadvertently sets forth the year as 1978
It is herewith corrected to 1979 My recollection of the amendment is to
the clear effect that it related to 1979. The litigation of the issue. testirlo-
ny and exhibits, and arguments and briefs clearly reveal the issue to con-
cern the January 1979 wage increases
practical effect these wage increases appear to be related.
The wage increases, however, varied as regards the indi-
vidual employees. In 1976 there were some employees
hired who received wage increases about 3 months after
the initial hire date. There were other employees hired in
1976 who received wage increases approximately 6
months after their hiring. In general, however, other
than the February wage increases, Respondent gave
wage increases in August to a group of employees and in
October to a group of employees. Since the total effect
of the August and October wage increases applied to
substantially all of the employees, it appears that such
wage increases were related. The wage increases varied
as to individuals and appear to have been an adjustment
of wages for said employees in line of the overall wage
structure.
Similarly, in 1977, Respondent granted wage increases
to virtually all of its employees. It is undisputed that
most of the wage increases were granted on March 5 or
on a date in the payroll period having an ending date on
March 5. The wage increases for individual employees
varied. Respondent did not have another general wage
increase in 1977. There were, however, certain wage in-
creases given to individual employees in the fall of 1977.
In 1978, there were several employees who received
wage increases to the Federal minimum wage rate in
early January. Thereafter, Respondent granted to sub-
stantially all of its warehouse employees wage increases
on February 4 or on a date in the payroll period ending
on February 4. The wage increases to individual employ-
ees varied. There were no wage increases granted in
1978 after the above-referred-to wage increases. As pre-
viously indicated, union activity commenced and became
apparent to Respondent after the time of the February
wage increases. Union activity and/or the processing of
a representation petition in Case 8-RC-11402 continued
until October 18, 1978, when the petition in such case
was dismissed because of the issuance of a complaint in
Case 8-CA-12214 wherein a bargaining remedy was and
is being sought.
An examination of the data concerning hirings, termi-
nations, wages, and wage increases of the warehouse em-
ployees in 1976, 1977, and 1978 indicates that the wage
adjustments apparently took into consideration existence
of the Federal minimum wage laws and the need to
adjust other employees' wages to maintain a comparative
structure. Further, the facts reveal that Respondent in
1978 was losing a number of employees hired at or close
to the minimum wage rates and that such employees
were being employed only for a short period of time. It
also appears that Respondent commenced hiring employ-
ees at a $3 wage rate in the fall of 1978. Such wage rate
was 10 cents above the Federal minimum wage rates to
be in effect in January 1979.
The General Counsel's cross-examination of Respond-
ent's witnesses was directed to showing that there had
not been wage increases customarily given in January of
each year. I note that President Paul Marcus, in response
to the General Counsel's questions, did indicate that the
January 1979 wage increases were granted in part be-
cause of realization of the upcoming change in the Fed-
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral minimum wage rates and that his testimony indicat-
ed that there had been similar wage increases in January
1978. The General Counsel further probed the exactness
of Respondent's information leading to its evaluation of
inflation in determining the January 1979 wage increases.
Considering all of the facts concerning the January
1979 wage increases, I am persuaded that the evidence is
insufficient to reveal that the wage increases were given
to interfere with employee exercise of Section 7 rights or
inherently interfered with employee exercise of Section 7
rights.
The question of wage increases granted by an employ-
er to employees during the pendency of union organiza-
tional efforts often presents difficult questions to the
Board in the determination of whether such wage in-
creases interfered with employee exercise of Section 7
rights. Consistent with the Act, the employer is obligated
to continue and take such actions with respect to the
granting of wages during the pendency of union organi-
zational activity as he would if there had not been any
union organizational activities. One factor which is nor-
mally considered in determination of whether or not the
employer's granting of wage increases is violative of the
Act is the consistency of his conduct with past conduct
in the granting of wage increases. Evidence of motiva-
tion otherwise is, however, relevant.
Comparison of consistency in the granting of wage in-
creases is clearer when the practice of wage increases
has been on a regular basis as to a set time or has been
announced and set in the past. Consistency or lack of
consistency is not, however, limited to such precise situa-
tions. The facts in the instant case reveal a relative con-
sistency with Respondent's past practice of granting
wage increases. Thus, it is clear that around February
1976 Respondent granted wage increases to virtually all
of its employees, similarly granted wage increases around
early March 1977, and similarly granted wage increases
around early February 1978. The wage increases in such
years were not on the same date or during the same pay-
roll periods. There was approximately 13 months be-
tween the February 1976 and March 1977 wage in-
creases. However, there were wage increases approxi-
mately in the mid-point of such 1976-77 wage increases.
There was approximately II months between the 1977
and the around February 1978 wage increases. The sum
of such facts would reveal that the granting of wage in-
creases in 1979, approximately II months after the
around February 1978 wage increase was reasonably
consistent with past practice and not so inconsistent as to
constitute evidence of inherent interference or an intent
to interfere with employees' exercise of Section 7 rights.
I have considered Paul Marcus' testimony concerning
the 1978 increases as being given in January 1978 in con-
nection with the increase in Federal minimum rates at
that time. The facts do not support this testimony as re-
gards the timing of the wage increases. The overall facts
do, however, support that Respondent's wage increases
are consistent with adjustment of wages because of
impact of the Federal minimum wage rates and changes
in the law.
The most significant question concerning the 1979
wage increases is whether the amounts of such wage in-
creases reveal that the wage increases were given to in-
terfere with employees' exercise of their Section 7 rights.
At first blush, the wage increases given around January
6, 1979, appear substantially higher than wage increases
given in the past. It would appear that there were
changed circumstances created by the problem of "infla-
tion." The General Counsel in his questioning of Marcus
seems to attack Respondent's failure to obtain figures
with mathematical certitude concerning the amount of
prevailing inflation. Marcus' testimony was to the effect
that the Company utilized a figure of around 10 percent
and based the same in effect upon what he heard on
radio, TV, or in the newspaper. Inflation concern is a
matter of common knowledge. I credit Marcus' testimo-
ny to such effect and find his rough cut evaluation to
appear a reasonable exercise of judgment. Further, and
more controlling, all of Respondent's past wage increases
have varied as to individual employees. Considering the
past wage increases as totaled for individual employees
during a period of time from 11 to 13 months, such wage
increases as granted in 1979 are not out of line in
amount. Considering the totality of wage increases that
employees received between on and around February 21,
1976, and March 5, 1977, the following employees re-
ceived wage increases for such approximate 13-month
period as follows: Korbas-30 cents; Jarrett-80 cents;
Mainor-35 cents, Kirkland-40 cents; V. Nimmons-20
cents; Jewell-50 cents; Thomas-45 cents; and Wat-
kins-30 cents. Such wage increases during an approxi-
mate 13-month period reveal the 1979 wage increases,
following an 11-month period without wage increases
and with consideration of the inflation factor, to be con-
sistent with past practice.
The General Counsel in the examination of Paul
Marcus appeared to be trying to establish that Respond-
ent's hiring of employees in 1978 at a starting pay of $3
revealed an attempt to interfere with employee organiza-
tional rights. In effect Marcus testified that Respondent
had not tried to hire new employees in mid or late 1978
at the minimum wage rate. Despite this type of examina-
tion and response thereto, the General Counsel neither
alleged nor sought to amend to allege that such hiring of
employees at $3 per hour was violative of the Act. Con-
sidering Marcus' total testimony to the effect that such
wage rate of $3 was what was thought to be necessary
to get at least some of the new employees, the evidence
revealing that a number of employees hired at low start-
ing rates in 1977 and 1978 left Respondent's employ after
only a short time of employment, I am persuaded that
the facts reveal that the general usage of $3 as a starting
wage rate, and that the general adjustment, with minor
exception, to a wage rate of $3 in January 1979 for such
employees was economically motivated and did not in-
herently interfere with employee organizational rights.
Although the General Counsel does not directly con-
tend that the wage increases were granted on January 6,
1979, so as to have an effect on employee testimony at
the unfair labor practice hearing scheduled to begin on
January 15, 1979 (the instant proceeding), Respondent
raises such question in the arguments in its brief. I have
considered the evidence relating to wage increases,
1170
STANLEY M FEIL, INC.
whether employees testified at the representation hear-
ing, whether employees were interviewed by or gave
statements to Respondent in the investigation for defense
of the unfair labor practice charges. I do not find the
evidence to be of such a nature as to reveal that Re-
spondent's wage increases were given for the purpose of
affecting the employees' testimony in the instant pro-
ceeding.
Considering all of the foregoing, I am persuaded and
conclude and find that Respondent's granting of wage in-
creases on or about January 6, 1979, was not violative of
Section 8(a)(l) of the Act.
K. The Refusal-To-Bargain Issue
1. The appropriate bargaining unit
The General Counsel alleges and Respondent denies
that an appropriate bargaining unit of Respondent's em-
ployees consists of "All warehouse employees at the Em-
ployer's facilities located at 626 Huron Avenue in Cleve-
land, Ohio, excluding all office clerical employees and
professional employees, guards and supervisors as de-
fined in the Act, and all other employees."
The facts concerning the bargaining unit question are
not in great dispute. The meaning of the facts is in great
dispute. Thus, the General Counsel 5 contends that a
unit limited to warehouse employees is appropriate be-
cause such employees have a community of interest with
each other but not with Respondent's factory employees.
The General Counsel contends that the job location of
warehouse employees is distinctive and apart from the
factory employees and that such warehouse employees
have separate and distinctive supervision from the fac-
tory employees. The General Counsel contends that the
warehouse employees have lower wages and skills as
compared to the factory employees. Respondent con-
tends in effect that all employees, factory and ware-
house, enjoy a community of interest, that the difference
of supervision is merely a departmental type question,
and that the separation of the job functions is one of
present necessity which is hoped to be changed in the
future.
As background, it is noted that the issue of whether
the bargaining unit consisted of factory and warehouse
employees or merely warehouse employees was litigated
in Case 8-RC-11402, that the Regional Director found
the warehouse unit appropriate, that Respondent sought
special permission to appeal to the Board such finding,
that the Board granted such special permission to appeal
such finding but did not pass thereon because of the
pending refusal-to-bargain charges. The parties stipulated
the record of Case 8-RC-11402 into the instant record.
The General Counsel in brief in effect tenders the Re-
gional Director's decision as proposed findings of fact.
I have considered all of the evidence presented with
respect to the bargaining unit question. The Regional Di-
rector's decision, not being a final adjudication, can be
viewed in this case only in the nature of proposed find-
ings by the General Counsel. I am persuaded, however,
'" The Charging I'arty)s totlel.ntion, ;ire sinlar Ilo Ihe (ientral C(ount-
1\ C's colntinlons
that the logic of said decision and correctness of facts as
set forth therein is supported by the record and adopt
the same as my findings of fact and conclusions as ampli-
fied herein. The uniqueness of the facts in the instant
case concerns the fact that the evidence reveals that the
separation of the warehouse employees from the factory
employees is one dictated by present necessity and one
which Respondent hopes to eliminate at some unknown
time in the future. The facts are clear in my opinion, ex-
cluding the uncertainty of whether Respondent will
unify its operations in the future, that the warehouse em-
ployees have a separate community of interest from the
factory employees and constitute a separate appropriate
unit. Respondent's future plans to unify its operations
raise a policy consideration as to whether the warehouse
employees should be denied the right of separate repre-
sentation at this time or as to whether the purposes of
effective collective representation of all employees
would be adversely affected at a future date if the fac-
tory and warehouse operations were unified. In view of
the distinctive community of interest of the warehouse
employees even if the question of separate locations were
ignored, I am persuaded that the policy of effective col-
lective representation is best served by a finding that the
warehouse unit of employees is an appropriate bargain-
ing unit in and of itself.
Virtually all of the reasons why the warehouse unit of
employees is an appropriate collective-bargaining unit
has been set forth in the Regional Director's Decision
and Direction of Election. As indicated, I adopt the find-
ings and conclusions therein as my own. Although all
factory and warehouse employees enjoy essentially the
same fringe benefits, warehouse employees are less
skilled and are paid essentially less wages than the fac-
tory employees. The factory employees are either highly
skilled employees receiving high wages or employees of
higher skills who are paid on piece rates. Although the
apparent guaranteed hourly wage rate of factory piece
rate workers compares to warehouse employees, the
piece rate method of pay makes a difference in their re-
spective community of interest. Although the top man-
agement supervision of all (factory and warehouse) em-
ployees is the same, day-by-day supervision is clearly
separate and distinct. Factory employees work in an air-
conditioned workplace, while warehouse employees do
not. At present, the location of the factory and ware-
house is approximately I to 1-1/2 blocks (or 100 to 150
yards) apart. Although some factory employees are
transferred to or work in the warehouse at times, be-
cause of the difference in skills, general warehouse em-
ployees are not transferred to or work in the factory.
The sum of the facts reveals, in my opinion, that the
warehouse employees have a distinctive community of
interest from the factory employees. Accordingly, I con-
clude and find that the bargaining unit of warehouse em-
ployees, as spelled out in detail in the introduction
hereof, is an appropriate collective-bargaining unit. 16
There is dispute as to whether truckdriver Dickenson
and clericals Jarrett, Korbas, and Swec should be in or
"I S Set Roh and C( r. ( 5 NI R h 78 (l97g)
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the appropriate bargaining unit. I agree with the
General Counsel that Dickenson does not share a com-
munity of interest with the warehouse employees. Thus,
Dickenson is salaried as compared to warehouse employ-
ees being hourly paid, does not punch a timeclock as
warehouse employees do, receives different medical
benefits from warehouse employees, is in the warehouse
only around 5 hours a week, and normally does not per-
form duties other than driving. ' As to Jarrett, Korbas,
and Swec, the facts reveal that they perform in effect
counterpart duties to the admitted office clericals. Al-
though they do on occasion perform regular warehouse
work, the evidence reveals, in my opinion, that they are
in effect office clericals.Bs Accordingly, I conclude and
find that Dickenson, the truckdriver, should be excluded
from the unit, and that Jarrett, Korbas, and Swec should
be excluded from the unit as office clericals.
2. The majority status
The issue presented herein is whether the Union had
majority status on or about June 9, 1978, the date the
Union demanded that Respondent recognize it and bar-
gain with it as authorized representative of the employ-
ees in the warehouse bargaining unit. The parties were in
agreement as to the employees in the warehouse bargain-
ing unit excepting as to Love, Dickenson, Korbas, Jar-
rett, and Swec. The allegation that Love had been discri-
minatorily discharged has been recommended to be dis-
missed. It has been found that truckdriver Dickenson and
office clericals Jarrett, Korbas, and Swec should not be
included in the warehouse bargaining unit. It is clear
therefore that the employees included in the warehouse
bargaining unit on or about June 9, 1978, are: A. Kirk-
land; L. Ware; P. Curry; L. Dickenson; V. L. Nimmons,
Jr.; M. Watts; C. Hattery; A. Nimmons; B. McWaine; W.
Warren; M. Jewell; P. Johnson; R. Wright; R. Murray;
A. Young; G. Harris; A. Hall; T. Harris; B. Scales; E.
Jordan; D. Gray; and M. Smith. There were thus 22 em-
ployees in the warehouse bargaining unit as of the time
of the June 9, 1978, bargaining demand by the Union.
The General Counsel presented evidence that 16 of the
employees in the aforesaid warehouse bargaining unit
had signed union authorization cards. Some of the said
16 employees signed union authorization cards on more
than one occasion. Thus, the facts reveal that the follow-
ing employees signed union authorization cards on the
dates indicated: Betty McWaine-3-23-78, 4-13-78;
Willie Warren-3-23-78; Dora Gray-3-15-78, 3-23-78;
Geraldine Harris-3-23-78; Pamela Johnson 3-23-78;
Mira Watts-4-13-78; Earma Lee Jordan-3-23-78;
Ruth Murray-3-23-78; Toni Harris-3-23-78; Carole
Hattery-3-29-78; Annie Hall-3-10-78; Barbara
Scales-3-23-78; Mercedes Smith-4-15-78; Lori Dick-
enson-3-23-78; Robert Nathan Wright-3-23-78; and
Patricia Curry-3-23-78.
The critical issue as to whether the Union had proper
authorization cards from employees concerns the cards
signed at a union meeting on March 23, 1978. Excluding
the March 23, 1978, union authorization cards, the evi-
l? See C & TManufacuring Companty. 233 NLRB 1430(1977)
'" See Sears, Roebuck and Co.. supra.
dence reveals only six union authorization cards from
employees in the appropriate warehouse bargaining unit.
The testimony of various General Counsel witnesses,
on direct examination, clearly established a prima facie
case that the authorization cards as signed constituted a
clear and proper authorization by the employees that the
Union be their exclusive collective-bargaining representa-
tive. Thus, the cards were in the form as follows:
International Ladies' Garment Workers' Union
Affiliated With The A.F.L.-C.I.O.
AUTHORIZATION CARD
I, of my own free will, hereby authorize the IN-
TERNATIONAL LADIES' GARMENT WORK-
ERS' UNION, its affiliates and its representatives,
to act exclusively as my agent and representative
for the purpose of collective bargaining.
Print Name … ....
Address -----
(Street and Number)
City--- State---
Employed by-----
Employer's Address--
Signature--- Date---
And there was nothing in the employees' direct testimo-
ny to reveal that there was any improper solicitation or
inducement connected with the signing of such cards.
On cross-examination, Respondent elicited testimony
from Annie Hall as regards the circumstances of the
signing of an authorization card on March 10, 1978,
which reveals that the card was signed at a time when
the person who gave her the card told her that the card
would only be used to get an election, that the sole pur-
pose of the card was to get an election. Because of the
circumstances surrounding the signing of the March 10,
1978, authorization card by Annie Hall, I conclude and
find that such card is not to be counted as a card toward
the establishment of majority status for the Union on or
about June 9, 1978.19
On cross-examination of various other witnesses as re-
gards the signing of union authorization cards on March
23, 1978, at a union meeting, Respondent attempted to
establish that said cards were solicited with statements
that the cards were for the sole or only purpose of
having an election. The only testimony or evidence that
approaches the establishment of facts relating to such
type statements consists of some testimony of witness
Dickenson. As later set out, such testimony is not evalu-
ated as being reliable on such point.
There is no evidence indicating that the cards signed
by McWaine on April 13, 1978, by Watts on April 13,
1978, by Hattery on March 29, 1978, or by Smith on
April 5, 1978, were solicited on the basis of statements
that the sole or only purpose of the cards was for an
'°C 'umberland Shoe Corp., 144 NL. RH 1268 1963).
1172
STANLEY M. FEIL, INC.
election. Thus, it is clear and I conclude and find that
the cards signed by Watts, Hattery, and by Smith, on
such dates, are proper cards for counting in the determi-
nation of whether the Union was authorized by a major-
ity of employees in the appropriate bargaining unit to be
their exclusive collective-bargaining representative. As
regards the authorization card signed by McWaine on
April 13, 1978, it is noted that McWaine had signed a
similar card at the union meeting on March 23, 1978. As-
suming that statements had been made to McWaine on
March 23 to the effect that the sole or only purpose of
the card was for an election, there might be a continuing
taint upon the card as signed by McWaine on April 13,
1978. The credited facts, as set forth and discussed in
more detail later herein, do not reveal that statements
were made to the effect that the sole or only purpose of
the union cards was for the obtaining of an election at
the times that the cards were solicited. Therefore, I find
it proper to count either the card that McWaine signed
on March 23 or the one signed on April 13, 1978, in de-
termining whether the Union was designated by a major-
ity of the employees in the appropriate collective-bar-
gaining unit. Dora Gray signed a union authorization
card on March 15, 1978. The facts are clear that this
card is one properly to be counted in the determination
of the majority status unless it is assumed that statements
that the cards were for the sole and only purpose of ob-
taining an election at the time that she again signed a
union organizational card on March 23 at the union
meeting. If such statements are assumed to have been
made on March 23, 1978, it could be argued that the
effect of signing a new card under such circumstances
destroyed the continuing vitality of the earlier card. As
indicated, I do not find that statements were made on
March 23, 1978, that the cards were for the sole or only
purpose of obtaining an election. Therefore, it is proper
to count either the card signed by Gray on March 15 or
the one signed on March 23, 1978, in determining the
question of the Union's majority status.
As has been indicated, the various witnesses presented
with respect to the signing of the union authorization
cards gave testimony which established a prima facie
case that the cards signed on March 23 and other dates
are proper authorization cards to be counted in determi-
nation of the Union's majority status. The card of Annie
Hall which was signed on March 10, 1978, was signed
under circumstances destroying its value as a card to be
counted in determining the Union's majority status. Con-
sidering the fact that Hall signed a card on March 23,
1978, at a time when union officials were present and
when no statements were made that the cards were for
the sole or only purpose of having an election, I find
such card signed by Hall on March 23, 1978, to be prop-
erly counted in determining the Union's majority
status.2 0
As has been indicated, Respondent attempted through
cross-examination of witnesses to establish that employ-
ees on March 23 and other dates were told that the sole
and only purpose of the authorization cards was to
20 1 find it clear that any taint on Hall's March 10. 1978. card did rot
continue when she signed a card at a union meeting presided o.er h.
union officials
obtain an election. With the exception of statements
made to Hall on March 10, 1978, and some aspects of the
testimony of Dickenson, no substantive testimony was
adduced to support Respondent's attempt. It has previ-
ously been found that the statements made to Hall on
March 10, 1978, destroyed the validity of the card signed
on that date with respect to being counted for purposes
of majority status determination. The testimony of Dick-
enson as to statements made at the union meeting re-
quires evaluation and consideration.
In Respondent's cross-examination of various General
Counsel's witnesses, Respondent questioned a number of
such witnesses with respect to statements made by such
witnesses to Respondent's counsel prior to the hearing.
Some of the statements that the witnesses were asked
about were written statements, signed by the witnesses,
and sworn to before Respondent's counsel acting as a
notary and as Respondent's counsel. Some of the state-
ments were in effect oral statements purportedly written
down by counsel, not signed by the witnesses although
requested to do so, notarized by Respondent's counsel
acting as a notary and as Respondent's counsel, and con-
taining, as an attesting witness, the signature of Vice
President Neil Marcus. The evidence reveals such signed
statements from witnesses Gray, Geraldine Harris,
Jordan, Toni Harris, and Carole Hattery. Both Lori
Dickenson and Ruth Murray made oral statements to
Respondent's counsel but refused to sign such statements.
Dickenson's testimony at the hearing, however, estab-
lished that the unsigned document, notarized by Re-
spondent's counsel as reflecting her statement, was cor-
rect. Respondent was unable, however, to establish that a
similar document, purportedly the statement of Murray
as written by Respondent's counsel, was correct with re-
spect to the portions of such document allegedly reflect-
ing statements made concerning the purpose of the union
cards signed on March 23, 1978. Respondent attempted
to authenticate said document (purportedly a written
statement of what Murray told Respondent's counsel) by
testimony of Vice President Neil Marcus, who had
signed as a witness on such document. Proffer of such
document on the basis of such attempted authentication
was rejected. Respondent's counsel was advised, howev-
er, that witness testimony as to what statements Murray
had made would be allowed. Respondent did not avail
itself of this opportunity to present testimony by Marcus
as to what Murray had said to Respondent's counsel.
Nor did Respondent's counsel present himself as a wit-
ness and testify as to the statements made by Murray.
As indicated, the proffer of the document contended
to be an unsigned statement of Murray was rejected. Re-
spondent's counsel was requested to furnish, in his brief,
case citation or legal authorities supporting his conten-
tion that such document was admissible as evidence.
Such case citations or legal authorities supporting such
contentions have not been furnished. I am unaware of
any case law or legal authority revealing that such docu-
ment is self-authenticated and admissible as evidence of
impeachment. Assuming that a notary can notarize an
oral statement as being sworn to, the circumstances sur-
rounding the writing of such purported statement ex
1173
I)EICISI()NS ()F NATIONAL LABOR RELAIIONS BO()ARD
parte and not by authorized deposition, persuades that
such purported document is not admissible as evidence.
Triers of fact have the responsibilities under law and the
Federal Rules to construe the Federal Rules and Agency
rules in a manner to ensure fairness and the obtainment
of truth. Such being the case, the circumstances of the
preparation of the document in question raises too many
questions of reliability. In this proceeding, the witness
Murray denies the accuracy of the contended statements
concerning the signing of cards. Respondent's counsel's
notarization of such purported statement must be viewed
in the context that he represents a party to the proceed-
ing. Such notarization by Respondent's counsel amounts
to no more than a written statement by himself under
seal that the purported statement was sworn to. A writ-
ten affidavit by Respondent's counsel as to what oc-
curred in his conversation with Murray would not be ad-
missible as evidence. Rather, Respondent's counsel's tes-
timony on such matter would be required which would
be subject to cross-examination.2l It is even stronger that
Respondent's counsel's notarization that a statement had
been sworn to is not admissible as evidence. Similarly,
the fact that Vice President Neil Marcus signed as a wit-
ness on such document amounts to no more than a writ-
ten statement by Marcus that he was a witness. A writ-
ten affidavit by Neil Marcus as to the conversation be-
tween Murray and Respondent's counsel would not be
admissible as evidence. Rather, witness testimony subject
to cross-examination would be required.2 2
As to the question whether various General Counsel
witnesses' testimony relating to the signing of union
cards on March 23, 1978, should be credited, I find it
proper to set forth the following. As indicated, such wit-
nesses, on direct examination, testified and established a
prima facie case that such cards were proper for count-
ing in determining the majority status of the Union. As
to a number of such witnesses, the Respondent estab-
lished that they had sworn to statements that union rep-
resentatives had told them that the sole or only purpose
of the authorization cards was for the purpose of getting
an election. Such is evidence of an impeaching nature.
To determine whether the witnesses' affirmative testimo-
ny is not to be believed, and whether or not the opposite
should be believed, requires an evaluation of the back-
ground and circumstances of the impeaching statement.
The evaluation of witness testimony as to whether em-
ployees have been told that the sole or only purpose of
authorization cards has been considered by the Board on
many occasions. In the ascertainment of the truth in such
a matter it has been found that the reliability of answers
to questions is enhanced when the questions are nonlead-
ing and simply put to the witness so as to elicit exactly
what was said. Such has resulted in procedural require-
ments that witnesses be questioned in a nonleading
manner, even on cross-examination, before leading ques-
tions can be used.2 3
Such handling at formal hearings reveals even more so
the careful look to be given to impeaching type state-
ments on such issue taken ex parte. The facts in the in-
21 Abellen stipulation or agreemenl.
22 Ahsent stipulaiion or agreement
2za See Bryant Chucking Grnnd'r Company. I60 NLRH 126 (1966)
stant proceeding reveal that the cards in question were
signed on March 23, 1978, that in late March 1978, Presi-
dent Marcus made a speech which contained the follow-
ing statement:
We have heard a rumor that the union and its or-
ganizers have been asking everybody to sign up on
a little union card or application. Now this little
card doesn't look like it's important but, unfortu-
nately, that little card is very important and for that
reason we certainly hope that you won't sign with-
out giving it a great deal of careful thought. You
see-if the union can get enough of those little
cards signed, they can then try to use these cards to
unionize all of you without having a secret ballot
election, and without any of you even having a
chance to vote. Many an employee has signed one
of those cards believing that it was solely for the
purpose of getting an election, only to find out soon
thereafter that the union had used those cards to
compel the company to sign a contract which could
lead to all the kinds of problems employees face in
union shops.
The facts in the instant proceeding reveal that in Janu-
ary 1979, in apparent preparation for the hearing, Re-
spondent's counsel with Vice President Marcus met with
certain employees individually, that Respondent's coun-
sel questioned such employees, prepared statements, had
such employees swear to such statements, and had most
of the employees sign such statements. As to some, as
has been noted, the employees refused to sign but were
sworn and Respondent's counsel notarized such docu-
ments and Vice President Marcus signed as a witness on
such documents. It appears not in dispute that Respond-
ent's counsel advised the employees that their participa-
tion was voluntary and that no reprisals would be taken
against them. The General Counsel made it clear at the
hearing that there was no contention that Respondent
violated the Act in the referred-to interviews.
Regardless of the lack of contention that Respondent's
conduct in the interviews was violative of the Act, the
circumstances of the interviews must be considered in
evaluating the weight to be accorded any impeaching
type statements. Thus, Dickenson, at first, indicated to
Respondent that she did not wish to participate in the in-
terviews. Dickenson, one of Respondent's lowest paid
employees, then changed her mind and indicated that she
would participate. However, at the end of the interview,
Dickenson did not wish to sign the statement for Re-
spondent. Despite this, Respondent's counsel had Dick-
enson swear to the unsigned statement, advising her in
effect that Vice President Neil Marcus would sign as a
witness. Although employee Murray did not resist the in-
terview, Murray declined to sign the statement and Re-
spondent's counsel followed the same procedure with
Murray as regards the statement as had been followed
with Dickenson. Murray's and Dickenson's refusal to
sign such statements strongly indicates that their involve-
ment in the entire procedure insofar as Respondent's no-
tarization of the referred-to documents was not volun-
tary.
1174
STANLEY M. FFII. INC.
An examination of the affidavits from employees pre-
sented by Respondent into evidence as impeaching evi-
dence reveals the statements to be essentially conclusion-
ary. 1 he details set forth therein do not indicate a simple
revelation of witness recall of what had actually tran-
spired. Considering all of this, I am not persuaded that
significant weight should be given to such statements for
impeachment purposes.
As has been indicated, the General Counsel's witnesses
as to cards signed on March 23, 1978, established a prima
facie case as to the validity of such cards. Respondent's
impeaching type of evidence indicates that a man from
the Union made the statements relating to the sole or
only use of the cards being for an election. The evidence
reveals that the union representative conducting the
March 23, 1978, meeting, when the cards were signed,
was Freeland. Freeland testified to the effect that he did
not make such statements, that he did not mention an
election at the meeting.
I have considered all of the foregoing and the follow-
ing in the credibility determinations in this case. A
number of employees testified concerning the statements
given to Respondent's counsel and appeared to fight the
issue of whether such statements had been given. I do
not credit such witnesses in their denial of the statement
which they had signed. I note also that many of the wit-
nesses, although not testifying that the word "election"
was used or that they had been told that the "sole" or
"only purpose" of the cards was for an election, indicat-
ed that such could have been said. Dickenson's testimony
revealed, in my opinion, that "election" was mentioned
at the March 23, 1978, union meeting. I credit her testi-
mony on such point and discredit Freeland's testimony
to the contrary effect. I also note that there was evi-
dence purporting to corroborate the fact that the union
representative did not make statements that the card was
for the "sole" or "only purpose" of having an election.
Such evidence consisted of a document that the Union
distributed concerning the NLRB's demand for proof.
Such document is of no persuasive weight and would be
equally consistent with the obtaining of cards for the sole
purpose of an election, or for a card-based demand for
bargaining.
The only affirmative type of evidence in the record
that supports Respondent's contention that the union
cards on March 23, 1978, were solicited with statements
that the cards were for the sole or only purpose of ob-
taining an election consists of some testimony of Dicken-
son. Dickenson's testimony on direct examination in re-
sponse to a nonleading question was that the union rep-
resentative had said that the purpose of the card was for
better wages and better working conditions. On cross-ex-
amination, Dickenson was not questioned as to what was
said to her at the time of the signing of the union card
excepting as to a question as to whether the statements
that were made to her were made in the presence of cer-
tain other employees. Rather, Respondent on cross-exam-
ination questioned Dickenson as to statements made by
Dickenson to Respondent's counsel in the pretrial inter-
views already discussed. Such examination and questions
therefrom do not reveal affirmative evidence as to what
was said to Dickenson and others on March 23, 1978,
concerning the union cards. The one question and
answer concerning statements made to Dickenson in the
presence of other employees does not go to the sub-
stance of such statements.
In answers to questions on redirect examination, Dick-
enson testified as is revealed by the following excerpts
from Dickenson's testimony:
Q. Now, I would like to show you the statement
that is Respondent Exhibit I and ask you to look at
that.
Is that your handwriting?
A. No.
Q. You didn't fill out the statement; is that cor-
rect?
A. No, I didn't.
Q. Do you know who wrote out the statement?
A. He did.
Q. Who?
A. Andy.
Q. The Company attorney?
A. Yes.
Q. Was there anyone else present while he took
this statement other than the Company attorney?
A. Neil Marcus.
Q. Neil Marcus? Did the Company attorney indi-
cate anything to you as to why Neil Marcus was
present?
A. So he could witness it if I hadn't signed it.
Q. Pardon?
A. So he could witness it if I didn't sign it.
Q. If you did not sign it?
A. Yes.
Q. Was he present throughout the entire inter-
view, Neil Marcus?
A. Yes.
Q. What did the Company attorney indicate or
say to you regarding the Union card?
A. He had asked me when I signed it.
Q. Yes.
A. The reasons why.
Q. Pardon?
A. Reasons why.
Q. Did he ask you as to what was said to you re-
garding the purpose of the card?
A. Yes, he did.
Q. What did he say regarding that?
A. What was the purpose of the card, why had I
signed it.
Q. And what did you tell him?
A. It was to get a meeting.
Q. To get a meeting?
A. Yes, but the facts leading up to it was they
told me I could have-we would get a wage in-
crease and better working conditions.
* . . . S
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNEss: The facts leading up to it were
the Union official informed us that we could get a
wage increase and better working conditions if we
could get a union in. If we could get a vote, if we
would get an election, the Union would come in.
Q. Now, did you tell that to the Company attor-
ney?
A. No.
Q. Pardon?
A. No. He just asked if I signed the card to get
an election.
Q. Yes. That is the only thing he asked you re-
garding this?
A. Yes.
Q. Did the Company attorney write down the
statement as you were talking to him?
A. Yes, he did.
Q. He did. Did you read that statement before
you signed it?
A. Yes. I had him read it to me.
Because of the seriousness of the issue concerning
what was said at the time of the signing of cards on
March 23, 1978, and the testimony of the witness, I ques-
tioned the witness concerning what was said about the
cards on March 23, 1978. The following excerpts from
the record reveals the following questions and answers:
Q. What did lie say about the card?
A. He said that-
Q. Now, as best as you can, as close as you can,
what he said.
A. He said how the Union could help us and if
we joined we could get, had enough people to join,
we could get an election and the card was so we
could get an election to get higher wages, better
working conditions.
That's what the election was for. That's what I
understood.
Q. Well, I want you to think very carefully on
this. I know you have testified that he told you
some other things beside that, but I think the criti-
cal question is what he said with reference to an
election and the card.
Did he say that it was to be solely for the pur-
pose of an election?
A. Yes. Yes.
Q. I didn't quite hear you, the last. What did you
say?
A. I think so.
Q. Now, this is what is really important. I really
need to know exactly as best as you can. Now, after
you have thought about it, tell me as best as you
can what he said.
A. It was for an election.
Q. Well now, you testified, and I am not trying
to put words in your mouth or take words out of
your mouth, the question is: Did you use the word
"solely" or did he say words of that type?
That is what we are trying to-
A. He said words of that type.
Q. What did he say then as best as you can?
A. It would help us get an election more than
anything else. That was what we would-have an
election before anything else could happen.
Considering all of the testimony of the witness, I am
persuaded that much of her testimony is her conclusion
of what was said rather than a precise recall of what was
said. Excepting where the question presented precisely
whether the word "solely" was used, the witness' testi-
mony did not speak in such terms. When the question
was whether the word "solely" was used or whether
"words of that type" were used, the witness responded
that the union representative used "words of that type."
In sum, I am persuaded that Dickenson's testimony that
the union representative told her in effect that the cards
were for the sole or only purpose of getting an election
constitutes her conclusion of what was said rather than
what was said.
Considering the totality of all of the testimony of wit-
nesses concerning the signing of union cards on March
23, 1978, I am persuaded that the sworn testimony of
such witnesses at the hearing and subject to cross-exami-
nation is reliable and to be credited to the effect that the
solicitation of such cards on March 23, 1978, was not ac-
companied by statements to the effect that the cards
were for the sole or only purpose of obtaining an elec-
tion. 24
Considering the evidence relating to the appropriate
bargaining unit, the employees in said unit, and the em-
ployees who had signed union authorization cards before
June 9, 1978, I conclude and find that 16 employees in
said unit had signed proper union authorization cards
and that thereby the Union was the properly designated
exclusive collective-bargaining agent of such employees
in such unit.2 5
3. The bargaining demand; the refusal to bargain
Based on the pleadings and the evidence, it is conclud-
ed and found that the Union made appropriate demand
for recognition and bargaining, as regards the bargaining
unit found appropriate herein, on or about June 9, 1978,
and that Respondent, from on or about June 9, 1978, has
refused to bargain with said Union (International Ladies'
Garment Workers' Union, AFL-CIO) as regards the em-
ployees in said appropriate unit.
The Union's letter of demand for bargaining was as
follows:
June 9, 1978
Victor Nimmons
Stanley M. Feil, Inc.-
Distribution Center
24 Many of the witnesses who testified as to the authorization cards are
still employed by Respondent This factor tends to add weight to the
crediting of their testimony. Federal Stain/les Sink Divr of Unarco Indus-
trie.. Inc.. 197 NLRB 489. 491 (1972).
2 The size of the unit was 22 employees Therefore, the authorization
cards of 16 employees reveal a clear and overwhelming majority designa-
tion for the Union.
1176
STANLEY M. FEIL, INC.
Hurou Avenue
Cleveland, Ohio 44115
Dear Mr. Nimmons:
This is to advise that the International Ladies'
Garment Workers' Union is the duly authorized
representative of the majority of your employees in
an appropriate unit consisting of all warehouse em-
ployees, and excluding all other employees, office
clericals, guards and supervisors as defined in the
Act.
In light of our majority status, I am hereby re-
questing recognition and a prompt meeting to begin
contract negotiations. Should you claim any doubt
as to our majority status, I hereby offer to submit
the authorization cards signed by the unit employ-
ees to an impartial person for verification. Our re-
quest for recognition and offer of card check are
continuing.
Very truly yours,
IRA H. WEINSTOCK
Attorney for ILGWU
The Respondent's letter in response to the bargaining
demand was as follows:
June 14, 1978
Ira H. Weinstock, Esq.
Handler, Gerber and Weinstock
Suite 500 - 301 Market Street
Harrisburg, Pennsylvania 17101
Dear Mr. Weinstock:
We are general labor counsel for Stanley M. Feil,
Inc., and your letter of June 9 requesting recogni-
tion on behalf of the International Ladies' Garment
Workers' Union has been referred to our office for
response.
It has been our experience that signed authoriza-
tion cards are an unreliable method of determining
majority status. Accordingly, we want to advise
you that the Company has a serious good faith
doubt that the Union represents a valid majority of
the employees in an appropriate unit. Since in our
opinion the best way of making such a determina-
tion is by a secret ballot election conducted by the
National Labor Relations Board, the Company is
unwilling to recognize the Union or commence col-
lective bargaining negotiations at this time.
Very truly yours,
Andrew C. Meyer
4. The bargaining order question
The facts are clear that the Union represented a major-
ity of the employees in the appropriate bargaining unit
and made proper demand for bargaining, and that the
Respondent has refused to bargain with the Union as to
such unit since on or about June 9, 1978. The question is
whether Respondent's unfair labor practices as found
herein are of such a nature as to require a bargaining
order within the meaning of N.L.R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969).
Respondent's unfair labor practices as found consist of
an instance of unlawful interrogation as to union beliefs
in February 1978 by Supervisor Bolek, an instance of un-
lawful interrogation as to union beliefs (March 24-April
6, 1978) by Supervisor Nimmons, a threat of reprisal-
changed working conditions-by Supervisor Nimmons in
August 1978, and a grant of fully paid (cost of single-
member coverage under Blue Cross) benefits granted to
all employees on May 22, 1978.
As the Board said in Philadelphia Ambulance Service,
Inc., 238 NLRB 1070 (1978):
In N.L.R.B. v. Gissel Packing Co., Inc., the Su-
preme Court, in approving the Board's use of a bar-
gaining order in the cases before it, depicted two
situations in which such orders could appropriately
be given. The first involves "exceptional cases"
marked by unfair labor practices which are so "out-
rageous" and "pervasive" that traditional remedies
cannot erase their coercive effects with the result
that a fair election is rendered impossible. The
second situation involves "less extraordinary cases
. . .which nonetheless still have the tendency to
undermine majority strength and impede the elec-
tion processes." In the latter situation, the Court
stated a bargaining order should issue where the
Board finds that "the possibility of erasing the ef-
fects of past practices and of ensuring a fair election
..by the use of traditional remedies, though pres-
ent, is slight, and that employee sentiment once ex-
pressed through cards would, on balance, be better
protected by a bargaining order."
In Gissel, the Supreme Court, in referring to a third
category of cases, stated (395 U.S. at 615):
We emphasize that under the Board's remedial
power there is still a third category of minor or less
extensive unfair labor practices, which, because of
their minimal impact on the election machinery,
will not sustain a bargaining order. There is, the
Board says, no per se rule that the commission of
any unfair practice will automatically result in a §
8(a)(5) violation and the issuance of an order to bar-
gain. See Aaron Brothers, supra.
In my opinion, the sum of Respondent's unfair labor
practices do not reveal conduct of an "outrageous" or
"pervasive" nature, and therefore the question of applica-
tion of the Board's remedial power concerning the impo-
sition of a bargaining order to remedy such unfair labor
practices within the meaning of the first category of
cases discussed in Gissel does not come into play. Nor
are the unfair labor practices, if unremedied, of the type
that can be said not to have more than minimum effect
upon the election machinery or processes of the Board.
Thus, the question is narrowed to whether a bargaining
order is required or warranted by the second category of
cases discussed in Gissel.
1177
DI'ECISIONS ()1 NATIONAL LABOR RELATIONS BOARD
Considering Respondent's unfair labor practices within
the confines of the doctrine of the second category of
Gissel, I am persuaded that a bargaining order is required
to remedy the said unfair labor practices. The grant of
the May 22 benefits (fully paid single-member cover-
age-Blue Cross) to all employees, warehouse and fac-
tory employees, constituted a significant benefit with sig-
nificant impact upon all Respondent's employees includ-
ing the warehouse bargaining unit. The Board has had
difficulty in devising a truly effective remedy for illegal
grants of benefits. If the benefits were ordered to be re-
scinded, the union instead of the wrongdoer would in all
probability receive in practical effect displeasure or
blame from the employees. Thus, the unlawful effect of
the grant of benefits would be compounded. Thus, the
Board has traditionally utilized only a cease-and-desist
type of remedy to remedy such unfair labor practices. It
is clear that the effects of the unfair labor practices are
not completely eliminated by such remedy. The instant
case reveals clear union animus by Respondent. Employ-
ees, despite a remedial order and notice involving a
cease-and-desist remedy, are reasonably likely to believe,
as regards a future election, that Respondent, because of
the May 22, 1978, grant of benefits, would reward them
for voting against the Union by the granting of future
benefits. in my opinion, the foregoing warrants a conclu-
sion that the possibility of erasing the effect of the past
unfair labor practices and of ensuring a fair election by
the use of traditional remedies are slight and that em-
ployee sentiment, as expressed by the authorization cards
in this proceeding, is best protected by a bargaining
order. Accordingly, Respondent's refusal to bargain with
the Union in connection with the found unfair labor
practices reveals that Respondent has violated Section
8(aX5) and (1) of the Act. It is so concluded and found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices, it will be recommended that Re-
spondent cease and desist therefrom and take certain af-
firmative action to effectuate the policies of the Act.
It having been found that the Respondent has refused
to bargain with the Union (International Ladies' Gar-
ment Workers' Union, AFL-CIO), as regards the appro-
priate bargaining unit employees as a result of its refusal
to bargain and accompanying unfair labor practices, it
will be recommended that Respondent be ordered to bar-
gain with the Union (International Ladies' Garment
Workers' Union, AFL-CIO), as the exclusive bargaining
representative of its employees in the unit found appro-
priate and, upon request, embody in a signed agreement
any understanding reached.2 6
The type of unfair labor practices herein, involving in
part a grant of benefits to all employees, in the factory
and in the warehouse unit, is of the type which has
broad impact upon employees and requires a broad
cease-and-desist order type remedy. Such remedy will be
recommended.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
I. Stanley M. Feil, Inc., Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Ladies' Garment Workers' Union,
AFL-CIO, and its Local No. 52, each is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. By granting employees benefits on May 22, 1978, to
dissuade their support of the Union, by interrogation of
employees as to their union beliefs, and by threatening
employees with more restrictive working conditions if
they selected a union, Respondent has violated Section
8(a)(l) of the Act.
4. In the context of the foregoing conduct and by re-
fusing to recognize or bargain with International Ladies'
Garment Workers' Union, AFL-CIO, as the exclusive
collective-bargaining representative of the employees in
the below-described appropriate bargaining unit as re-
gards wages, terms, and conditions of employment, the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 7
The Respondent, Stanley M. Feil, Inc., Cleveland,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their or other em-
ployees' union beliefs, desires, or activities in a manner
constituting interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act.
(b) Threatening employees that their working condi-
tions will be more restrictive if they select the Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, its
Local No. 52, or any other union.
"' I have considered whether the bargaining order should be dated
from May 22, 1978, the date of the overriding unfair labor practices Al-
though the Union may have had majority status at such time, the size of
the unit and consequently the majority status as orf that date cannot be
said to have been litigated.
' In the event no exceptions are filed as provided by Sec. 102.46 of
Ihc Rules and Regulations of the National Labor Relations Board. the
findings. conclusions. and recomnlended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations. he adopted by the Board and
become ils findings, clnclusionls and ()rder. and ;ill ibje tions thereto
shall bh deemed waived for all purposes
1178
STANLEY M. FEIL. INC.
(c) Granting employees benefits to dissuade their sup-
port of the Union, International Ladies' Garment Work-
ers' Union, AFL-CIO, its Local No. 52, or any other
union.
(d) Refusing to recognize and bargain with Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, as
the exclusive collective-bargaining representative of its
employees in the following appropriate bargaining unit:
All warehouse employees at Respondent's facility
located at 626 Huron Avenue in Cleveland, Ohio,
excluding all office clerical employees and profes-
sional employees, guards and supervisors as defined
in the Act, and all other employees.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, recognize and bargain with Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, as
the exclusive collective-bargaining representative of its
employees in the bargaining unit set forth before, with
respect to wages, hours, and other terms and conditions
of employment; and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at Respondent's factory and warehouse at
Cleveland, Ohio, copies of the attached notice marked
"Appendix." 28 Copies of said notice, on forms provided
by the Regional Director for Region 8, after being duly
signed by Respondent's representatives, shall be posted
by it immediately upon receipt thereof, and be main-
tained by Respondent 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 any other materi-
al.
(c) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
2: In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
IT IS FURTHER RECOMMENDED that the allegations of
unlawful conduct not specifically found to be violative
herein be dismissed.
APPENDIX
NOTICE To EMPIOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
WE WIL. NOT refuse to recognize and bargain
with the International Ladies' Garment Workers'
Union. AFL-CIO, as the exclusive collective-bar-
gaining representative of our employees in the fol-
lowing appropriate collective-bargaining unit:
All warehouse employees at our facility located
at 626 Huron Avenue in Cleveland, Ohio, exclud-
ing all office clerical employees and professional
employees, guards and supervisors as defined in
the Act, and all other employees.
WE WILL NOT interrogate our employees about
their or other employees' union benefits, desires, or
activities in a manner constituting interference, re-
straint, and coercion within the meaning of Section
8(a)(l) of the Act.
WE WILL NOT threaten our employees that their
working conditions will be more restrictive if they
select the International Ladies' Garment Workers'
Union, its Local No. 52, or any union as their bar-
gaining representative.
WE WILL NOT grant our employees benefits to
dissuade their support of the International Ladies'
Garment Workers' Union, its Local No. 52, or any
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act
except to the extent that such rights may be affect-
ed by lawful agreement in accord with Section
8(a)(3) of the Act.
WE WILL, upon request, recognize and bargain
with International Ladies' Garment Workers'
Union, AFL-CIO, as the exclusive collective-bar-
gaining representative of our employees in the bar-
gaining unit set forth above, with respect to wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
STANLEY M. FEIL, INC.
1179