W.T. Grant Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 469 (N.L.R.B. 1969)

W. T. GRANT COMPANY
W.T. Grant Company and Retail Store Employees
Union Local 954, Retail Clerks International
Association , AFL-CIO. Case 8-CA-5176
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On April 7, 1969, Trial Examiner Boyd Leedom
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not
engaged in certain other alleged unfair labor
practices and recommended dismissal of such
allegations. Thereafter, the General Counsel, the
Charging Party, and Respondent filed exceptions to
the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations , as modified herein.
We agree with the Trial Examiner that
Respondent's pay increases of 5 to 10 cents an hour
to 6 of its 9 employees on April 19, 1968, did not
constitute a violation of Section 8(a)(1) of the Act.
However, in doing so, we do not adopt as a
supporting reason the Trial Examiner's holding that
the "rather meager amount" of the increases "could
not . . . have been any real inducement to oppose
the Union" in the election held on May 1, 1968.
We also agree with the Trial Examiner that
Respondent did not violate Section 8(a)(5) of the
Act. Although the Trial Examiner set forth three
grounds for his conclusion, we rely only on his
finding that Respondent's interrogation of Mary
Lou O' Brien and Carolyn Young, while unlawful,
was "not of the kind that will support a bargaining
order".' Accordingly, we deem it unnecessary to
pass or rely on the Trial Examiner's other reasons
for recommending dismissal of the allegations of
Respondent' s unlawful refusal to bargain.
'See Hammond & Irving , Inc., 154 NLRB 1071, 1073 . Cf. N.L.R.B. v.
Gisell Packing Co., Inc., 395 U .S. 575 , Sinclair Company v. N.L R B,
395 U S. 575.
ORDER
469
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
orders that Respondent , W. T. Grant Company,
Bellevue , Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner 's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: This case was tried in
Bellevue, Ohio, on January 23, 1969, pursuant to a charge
filed October 10, and a complaint issued thereon
November 19, in 1968.
Respondent is a small retail variety store, part of a
national chain . The unit involved in the Charging Party's
organizational effort consisted of nine named employees
as stipulated by the parties. A representation election was
held May 1, 1968, and was lost by the Union 7 to 1. The
Union filed objections to conduct affecting the results of
the election, a hearing officer found certain of the
objections valid and recommended that the election be set
aside and a new one held. On October 8, 1968, the
Regional Director of the National Labor Relations Board,
for Region 8, adopted the recommendations of the hearing
officer and entered an order setting aside the May 1
election and directing that a second election be held. No
action, however, has been taken under this order of the
Regional Director inasmuch as on October 10, 1968, 2
days after the entry of the order for the second election,
the Union filed the charge hereinbefore mentioned alleging
that the Respondent-Employer had given economic
benefits, had made promises of benefits and engaged in
other acts of interference to defeat the Union, in violation
of Section 8(a)(1) of the National Labor Management
Relations Act, as amended; also that the Union
represented a majority of the employees in the unit, had
made a demand on the employer to bargain collectively,
that the employer ' s continuing refusal to recognize the
Union, and its conduct in undermining the Union's
majority , violated Section 8(a)(5) of the Act.
On the basis of the complete record of evidence, the
demeanor of the witnesses as I observed them as they
testified, and on the briefs filed in behalf of the General
Counsel, Respondent and the Charging Party, I have
determined that Respondent did violate the Act pursuant
to certain of the allegations of violation of Section 8(a)(1),
and recommend that as to the other allegations of
violations of Section 8(a)(1) and as to the allegation of
violation of Section 8(a)(5), the complaint be dismissed,
for all the reasons hereafter appearing.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
Jurisdiction
I find and conclude that the allegations of the
complaint as to the nature and extent of the business
carried on by Respondent , are true , and conclude
therefrom that the Respondent is an employer engaged in
177 NLRB No. 61
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning of the Act.
I also find and conclude that the Charging Party is a
labor organization within the meaning of the Act; and this
proceeding is therefore within the jurisdiction of the
National Labor Relations Board.
There is no dispute in the case respecting these matters.
If. THE UNFAIR LABOR PRACTICES
A. The 8(a)(1) Allegations
1. Interrogation
The only evidence adduced in support of any claimed
interference with employee rights , by Respondent , through
unlawful interrogation , within the 10(b) period of the Act,
as conceded in the brief filed in behalf of the General
Counsel , relates to conversations between management
personnel and three employees.
Cappizzi
The first of these was between a part-time student
employee, Sam Cappizzi and Lester Margareten of
Respondent's management. The boy Cappizzi testified
that Margareten approached him in front of the store as
he was sweeping the sidewalk and asked if the Union had
contacted him, and if he had been asked to sign a card. I
credit Cappizzi ' s testimony as to what was said. It is
undisputed and I find that substantially such a
conversation took place.
It is also undisputed that another conversation with
Cappizzi took place about a month earlier with the store
manager . On the earlier occasion I find that the manager
asked the boy about "a union coming into the store" and
told him he might be asked to sign a card and if he was,
to use his best judgment . It is not claimed that this
conversation , with the store manager, was within the 10(b)
period.
While the brief of the General Counsel deals with
evidence adduced to reveal other unlawful conduct on the
part of Respondent under a caption "Respondent's
Unlawful Actions Outside the 10(b) Period" it treats the
Cappizzi-Margareten conversation set out above, under
another section of the brief, entitled "Respondent's
Interference, Restraint, and Coercion Within the 10(b)
Period." The only evidence, however, on which the
General Counsel can rely to show the conversation was
actually within the 10(b) period is Cappizzi's testimony on
direct examination that he thought "it was a week or 2
weeks before the election." This testimony would fix the
conversation about the middle of April 1968 or a week
later. The election was on May 1. This however is not all
of Cappizzi ' s testimony as to the time the conversation
took place. On cross-examination he acknowledged that in
the earlier representation proceeding , that is the hearing
on objections , he testified that the Margareten
conversation occurred the day that Margareten made his
first talk at an employee meeting . This meeting was held
on February 22. The charge having been filed October 10,
1968, the 10(b) period began to run 6 months earlier, on
or about April 10. Thus the date of the first meeting,
February 22, as conceded by General Counsel, was outside
the 10(b) period , and evidence of events occurring that
early is not competent support of a finding of an unfair
labor practice.
Inasmuch as Cappizzi ' s testimony that Margareten
talked to him on the day of his first meeting with the
employees is more positive and specific than his testimony
that the conversation took place about a week or two
before the election, I cannot say there is substantial
evidence in the record that the Margareten conversation
occurred within the 10(b) period. The indications are
otherwise, for in support of Cappizzi's more persuasive
testimony that the conversation took place at the time of
Margareten ' s first meeting with the employees, is the
reasonable inference that Margareten sought out Cappizzi,
who did not attend the employee's meeting, to make
known to him his opposition to the Union as he had done
with the other employees at the meeting.
While I do not imply that the Margareten conversation
as well as that of the store manager with Cappizzi would
not constitute violations of the Act, if within the 10(b)
period, it appears that these conversations would be about
as innocuous as any unlawful interrogation could be.
Because I cannot find that either conversation took place
within the 10(b) period (and only the latter one is claimed
to have been). I hereby recommend that the allegations
respecting the Cappizzi conversations be dismissed.
Mary Lou O'Brien and Carolyn Young
The evidence reveals and I find that following an
employee's meeting in which Margareten expressed the
Company's opposition to the Union, he talked to
employee Mary Lou O'Brien in the stockroom, asked her
why the employees thought they needed a union, if there
were problems concerning their boss , the store manager,
or other problems such as wages. He also asked if she
knew how she was going to vote.
On May 1, 1968, the day of the election, in the
morning, while the employee Carolyn Young was marking
merchandise, Margareten asked her what the trouble was
and why the employees wanted an outsider in the store.
Young understood the outsider to be the Union and told
Margareten that the employees were interested in wages.
He asked her to talk to District Manager Stallings.
Young testified and I find that she then approached
Stallings and he too asked her why it was that the
employees wanted a union . When she answered "wages"
he engaged her in a conversation respecting company
policy on salary reviews twice a year.
These two conversations took place within the 10(b)
period. Respondent argues at length in the brief, and cites
numerous cases, in an effort to establish that these
interrogations did not constitute violations of the Act. I
conclude, however, that none of the authorities cited
control the instant case. These conversations cannot be
considered in isolation because of the background of
Respondent' s persistent opposition to the Union, and
other interrogation which it engaged in during the 10(b)
period, and which is properly considered as background
for other conduct within 10(b). I think it quite clear that
Stallings' reference to wages was intended as and
constituted a kind of assurance that there would be
benefits granted without the Union, and therefore coercive
conduct . It is also my opinion that Margareten's
persistent inquiries regarding the Union with both
employees O'Brien and Young are of the kind, when not
in isolation , that the Board has repeatedly found violative.
I therefore shall recommend, that these interrogations be
found to be in violation of Section 8(a)(1).
The brief of the Charging Party makes no mention of
the 10(b) period ; neither does it deal in any substantial
way whatever with the allegations of unlawful
interrogation. Noting that the most important issue in the
W. T. GRANT COMPANY 471
case is the refusal to bargain charge and merely stating
that there are also allegations of violation of Section
8(a)(1) "which should be readily sustained" the argument
is confined to "unfair labor practices of a beneficent
variety." This reference is to three separate allegations: (1)
Unlawful wage increases timed to influence employees in
the representation election; (2) an allowance of pay not
previously made, but in compliance with Company policy,
for time spent in store meetings; and (3) an allowance of
break periods.
The reason the limitations of Section 10(b) of the Act
have application in this case as to alleged violations of
Section 8(a)(l) as hereinbefore appears, and also to the
allegations of violation of Section 8(a)(5), as hereafter
appears, is because of the time spent by the Charging
Party in hopeful pursuit of a different remedy than here
sought, to its conclusion, that is the hearing on the
objections filed respecting Respondent's conduct affecting
the election. While the Charging Party sought and
obtained from the Regional Director an order setting
aside the first election and granting a second one, time
was running out on the opportunity to establish
Respondent's conduct, forming the basis of the objections
to the election, as unfair labor practices. In the brief, the
Charging Party acknowledges that this complaint case is
based primarily upon the same conduct that was involved
in the objections procedding. Presumably the investigation
made on the objections filed, revealed the character of the
conduct engaged in by Respondent, that was considerably
later alleged to constitute unfair labor practices.
While the proliferation of the Board ' s processes
apparent in this case is not likely new, and may be within
the confines of the Bernel Foam doctrine, probably the
more typical handling of situations such as the one
presented here, is for the Charging Party to file the charge
of unfair labor practices at the time of the filing of the
objections to the election, or soon thereafter; then the
Regional Director consolidates the two proceedings into
one, giving one official of the Board, the Administrative
Trial Judge, the responsibility of deciding not only
whether unfair labor practices have been committed but
also whether the first election should be set aside and a
second one ordered. Such procedure has at least two
advantages: (1) the acts alleged to constitute unfair labor
practices, do not become stale and subject to the
limitations of Section 10(b); and (2) avoidance of the
possibility of two officials of one agency entering
essentially conflicting orders.
All who have any familiarity with Berne! Foam will
agree that the history of the doctrine is replete with
administrative and other difficulties. The case presented
here seems to open the door to more problems. The basic
objection to the doctrine, when it existed earlier in the
history of the Board, and as it was revived by Bernel
Foam Products Co., Inc., 146 NLRB 1277, is that it gave
the Union, in the jargon of our profession, "two bites at
the apple." Thus the Union was relieved of the necessity
of making an election between the two remedies available,
when it gained knowlege of conduct probably amounting
to an unfair labor practice, that could also be used to
obtain a new election. The choice imposed before Bernel
Foam was between the objections case and the complaint
case. This basic objection to the Berne! Foam doctrine
was of course held invalid in the case cited above. The
instant proceeding , however has aspects of "three bites."
Thus the Union first had the original election; second it
utilized, to final conclusion, the processes of the Board in
an objection ' s case that now guarantees it a second
election regardless of the outcome of this complaint case;
and third it has invoked this proceeding in an effort, to
obtain a bargaining order. The evil in this three pronged
approach, if there is an evil, is that it calls for the three
full proceedings instead of two - two made possible in
early filing of the charge, and consolidation, as stated.
This proliferation of proceedings led to serious
consideration of dismissal of the 8(a)(5) allegations, purely
on the ground that orderly and effective use of the Board's
processes in a Bernel Foam situation requires the filing of
a charge of unfair labor practices within time to enable
the Regional Director to consolidate the representation
proceeding with the unfair labor practice case. Such
action, however, would be a new limitation, more
reasonably imposed by the Board. It was therefore
deemed adequate treatment here merely to bring the
problem within focus, perhaps for the first time. Such a
limitation should benefit all concerned. Unions and
employees would be relieved of unnecessary imposition of
the provisions of 10(b) on Section 7 rights; the Board
would be relieved of one proceeding, that is a separate
objections case; and Respondents would be relieved of one
unnecessary defense.
2. The "break" periods
The evidence reveals that Respondent's employees had
enjoyed wholly unsystemitized "break" periods over the
years, long before the election on May 1. Clearly as a
result of meetings management held with the employees,
with full knowledge that an organization drive was
underway, a change was made respecting "breaks." At the
first or second meeting that Management Representative
Margareten held with the employees (thus not later than
March 14) an employee mentioned that no set breaks,
between the beginning of work and the close of day, were
provided. Very soon thereafter a 10-minute break schedule
was provided with a requirement that employees "clock
in" and "clock out." The evidence is clear 'that no
substantial use was ever made of the new method of
getting breaks. Possibly one or two employees checked in
and checked out once; or on 2 days at the most.
Everybody then reverted to the old system of taking a
break when necessary. Thus the action of Respondent
cannot be classified as between a benefit granted or a
detriment imposed. For all practical purposes it was a
nullity. While the effectiveness of any device designed and
used by an employer to influence his employees
unlawfully, against a Union is never measured, still the
action cannot be considered completely apart from the
likelihood of its affect on the employees. So considered
Respondent took no action. Moreover the evidence
tending to establish the time that the new schedule
prevailed, if it ever did, places it two weeks, or more,
outside the 10(b) period. From the highly unsatisfactory
evidence as to time, I find and conclude that this
"change," which turned out to be no change, occurred
outside the 10(b) period. Evidence of it cannot be used to
support a finding of an unfair labor practice. I therefore
recommend that the allegations respecting the new break
schedule be dismissed.
3. Pay for time spent in meetings
At the same meeting Margareten held with the
employees in which the question of a new break schedule
was raised , an employee mentioned that pay was not
allowed for the time the employees spent in meetings
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before working hours . Margareten advised that this was
contrary to Company policy and immediately the practice
was instituted of paying for such time . This happened
outside the 10(b) period and I therefore recommend that
the allegations respecting this action be dismissed.
4. The wage increases
Allegations respecting pay increases admittedly granted
six of the employees constitutes by far the most
substantial allegations of violation of Section 8(a)(1) of
the Act. Resolution of the issue whether these increases
were made pursuant to an established pattern of merit
increases following wage surveys, at regular intervals, is in
my opinion a close question . On all the evidence , however,
somewhat confusing in part, I find that the increases
granted would have been granted if no representation
election had been pending and conclude therefore that
Respondent , thus increasing the employees' pay, did not
violate the act, for the reasons hereinafter set forth.
I think it fair to say that the totality of the evidence,
bearing on the practice of Respondent regarding regular
wage increases , clearly establishes a company policy of
annual surveys and increases where warranted; and I so
find . I think it is less clear that a semiannual policy
prevailed in this store ; but notwithstanding a lack of
precision in the testimony of the store manager and
Margareten as to exact dates involved , with the resultant
confusion hereinbefore mentioned , I find that the present
store manager had installed the semiannual survey long
prior to knowledge of any union interest in the store.
The persuasive evidence in support of this finding is
Respondent ' s Exhibit 2, a table showing the merit
increases granted the employees within the store for a
3-year period immediately preceding the election on May
1, 1968. While it too discloses some variation from an
exact pattern it reveals a consistency in granting increases
every six months during a period of over a year just prior
to May 1, involving three such pay increases including the
one in dispute . The store manager had testified that he
had instituted this policy of 6 months review and pay
raises if merited , 6 or 7 months after he came to the store.
The increases shown in Respondent ' s Exhibit 2 in March
of 1967, September of 1967 and April of 1968
substantially bear out his testimony.
Stress is laid in the briefs of the General Counsel and
the Charging Party that the April 1968 increases, made
just prior to the election , could have been postponed until
after the election . This circumstance is pointless respecting
a violation if in fact the increases were pursuant to an
established schedule . The evidence reveals that early in
March of 1966 four of nine employees got increases, three
10 cents per hour and one 5 cents; that a year later early
in March of 1967, soon after the present manager took
charge, six of the nine employees had their wages raised
to 10 cents an hour . Then on September 15, 1967, as the
manager initiated the 6 months review system , six of eight
employees were given increases, four receiving 10 cents
per hour and two 15 cents per hour. About the middle of
April 1968, just over 6 months after the September 15,
1967 increases, six of the employees received the increases
in dispute , one receiving 10 cents an hour and five getting
only 5 cents.
The briefs in support of the violation , make much over
the fact that these latter increases came in April rather
than in March . There is undisputed testimony of both
Margareten and the store manager that in the year 1968
the questionnaire on wages sent out from headquarters
called for a return not later than May 1, rather than April
1 as in previous years . The argument implies that if in
fact there was any such questionnaire at all it might have
been contrived as to the later date for the purpose of
establishing a reason for the 1 month variance from the 6
months pattern previously set. The testimony of these two
witnesses however is not in contradiction and I find that,
for a reason not appearing in the evidence , return on the
company' s wage analysis questionnaires was called for one
month later in 1968 than in previous years . This finding is
dictated in part by the entirely reasonable conclusion that
the variation from the March to April does not bear on
the issue . Increases in March would have served
Respondent 's evil motivation, if it had one, in influencing
the employees against the Union, as well as in April. In
fact having the money in hand 2 or 3 weeks earlier, it can
be argued , would have been better persuasion than the
anticipation of cash in checks yet to be delivered.
Furthermore there is nothing in the record to refute the
store manager ' s testimony that he was hesitant about
granting the increases due under the established pattern,
because of the organization campaign underway in the
store until he had conferred with the labor relations
manager and Margareten . He made the increases only
after he was advised that under the circumstances the
increases would be proper. The record is clear that the
store manager made the two earlier 6-month periodic
increases at his own discretion . No bad intention should
be imputed to Respondent on the ground that the store
manager sought advice of counsel under these
circumstances.
Another factor in the determination of this issue is the
rather meager amount by which the wages were increased.
The April 1968 increases are small even by comparison
with the increases granted in each of the two previous
6-month raises . Thus in the increases of September 15,
1967 (the wage raise immediately preceding the one in
dispute) four employees received 10 cents and two received
15 cents; and 6 months earlier, in March 1967, six
employees received 10 cents an hour. The increases in
dispute allowed 10 cents to only one of the employees and
5 cents to each of the others. The employees in this store
had good reason to believe , under this manager, that if
they merited it they were entitled to increases as of about
the time they got them . The law does not require an
employer to invite ill will by denying a pay increase due
his employees any more than it gives him the right to buy
good will with increases not due.
Apart from the arguments that can now be made in
retrospect , in the effort to get a bargaining order, there is
nothing in the record to indicate that the employees, who
were very wage conscious, would not have received the
increases they got in April 1968. Those that they received,
could not under the circumstances , have been any real
inducement to oppose the Union , and cannot , therefore be
regarded as having been made for this purpose. The
contrary would be true if the increases had been
considerably more generous, exceeding in some or all of
the cases the, 10-cent increase allowed most in previous
years, and denied them at the time of this increase. There
are inevitably two lines of Board cases on this issue, one
holding that the increases are unlawful because not made
pursuant to established pattern ; and the other line that
they are lawful because pursuant to an established pattern
of increases . I find this case controlled by the latter line of
cases . Cf. Post Houses, Inc., 161 NLRB 1159; also
Aircraft Engineering Corporation & Western , Inc., 172
NLRB No. 218. Of interest in this connection is the
W. T. GRANT COMPANY
decision of Administrative Judge David London, affirmed
by the Board , involving this same Respondent at a
different store, in the case of W. T. Grant Company, 174
NLRB No. 144. In the cited case the store policy also
involved merit increases granted every 6 months. The
Board found no violation in the grant of increases made
during an organizational campaign . I recommend that the
allegations of the complaint as to the wage increases in
dispute be dismissed.
B. The Refusal-To-Bargain Issue
I recommend that the allegations of the complaint that
Respondent violated Section 8(a)(5) of the Act be
dismissed on three separate grounds. First, in its totality,
the testimony of Eldon T. Leedy, Executive Secretary of
the Local Union, does not establish that he made a clear
request for bargaining. The fact that he did not, is further
supported by the testimony of Respondent ' s witnesses. On
the issue of a request for recognition and bargaining the
demeanor of Leedy on the stand made his testimony
unconvincing and revealed a disinclination to meet the
issue head-on. The request sought to be proven rests on a
telephone conversation . Leedy was vague in his testimony,
tending to lead to the conclusion that his knowledge as to
the details of the case may also have been vague. Thus
when asked on direct examination to give the substance of
the telephone call, he answered "Well, I would only have
one reason to call Mr. Brown in a case like that, that
would be to assert." I cannot escape the impression from
this answer that if he had been permitted to pursue that
line, his testimony would not be so much a statement of
his actual recollection as a statement of what the
conversation should have been to show a demand for
recognition and bargaining . On objection that his answer
was not responsive to the question the witness was advised
to try to state what he said and what Brown said. He then
stated categorically but with some undue formality that he
had asserted that the Union had signed up a majority of
the people and asked for recognition . He continued,
however , with somewhat irrelevant matter that tended to
detract from the positiveness of his first assertion. In this
answer he indicated that from previous experience in two
elections with Respondent he knew that the Company
would grant recognition only through an election and
stated that he then went into a conversation as to whether
or not a consent election would be worked out. This
unpersuasive testimony given on direct examination was
weakened further on cross-examination . There, on the
direct question, "Did you say you had a majority of the
people signed up in those words?" Leedy answered,
"Normally I would say we have a majority." Then to the
question "Did you say we want to be recognized , we want
to negotiate?" The witness stated, "Nothing to that
effect."
On the other hand Brown , in charge of labor relations
for Respondent and the other party in the long distance
telephone conversation , gave quite persuasive testimony as
to many details of the conversation dealing first with what
seems to be very plausible pleasantries , then details about
an election . He categorically denied that Leedy ever asked
that he recognize the Union ; or that there was any request
of Respondent to submit to proof of majority. Brown
testified that he did not say the Company would not
recognize the Union because there had been no request for
recognition . While I recognize that Brown is a
professional in the field of labor relations and therefore
something of an expert as to what good testimony should
473
be in such a situation, he is probably no more of an expert
than Leedy in the same field; and there is nothing
whatever in his demeanor or otherwise to lead me to
conclude that his testimony was any other than his best
recollection of what actually was said. Furthermore,
because of the weakness of the Leedy testimony as
hereinbefore set forth, there is no sharp conflict between
Brown's testimony and Leedy's. Absent a valid request for
recognition there is no basis for finding a refusal to
bargain.
The second reason for the dismissal of the refusal to
bargain charge is that the unfair labor practices herein
determined to have been committed by Respondent are
not of the kind that will support a bargaining order in this
kind of situation. Cf. Hammond & Irving, Inc., 154
NLRB 1071.
The third ground for dismissal of the 8(a)(5), is that the
evidence of a majority of employees within the
appropriate unit involves action outside the 10(b) period.
The majority established by the cards was one, - the
Union had cards of five employees in a unit of nine.
In the case of Goodyear Tire & Rubber Company, 174
NLRB No. 167, the Board, apparently for the first time,
applied the provisions of Section 10(b) of the Act to proof
of majority by authorization cards. Insofar as the
guidelines for application of 10(b) appear in Goodyear,
that case seems to control this litigation. Thus in both
Goodyear and the instant case the majority proven was by
one card only; the cards, also, were all signed outside the
10(b) period. In addition "there has been some turnover in
the unit" here as there, with one of the five employees
who signed cards outside the 10(b) period, not an
employee at the time of the trial. With this affirmative
indication of a loss of one card there are no "cognizable
facts which would obviate a showing of a majority status"
at this time. Under the authority of the Goodyear case in
which the Board could not find competent evidence to
support a majority finding, I find and conclude that there
is no competent evidence on which I can make a finding
of majority within the critical period. Thus the 8(a)(5)
allegations are unsupported.
III. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing
Findings of Fact and Conclusions of Law, I recommend
that W. T. Grant Company, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees in regard to
their union membership, activities , and sympathies.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Retail Store Employees Union Local 954,
Retail Clerks International Association , AFL-CIO, or any
labor organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain
from engaging in such activities except to the extent that
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post in its store in Bellevue, Ohio , copies of the
attached notice marked "Appendix ."' Copies of said
notice , to be furnished by the Regional Drictor for Region
8, after being duly signed by Respondent , shall be posted
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered,
defaced , or covered by any material.
(b) Notify the Regional Director for Region 8, in
writing within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith.'
In the event that this Recommended Order is adopted by the Board the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order," shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board this
provision shall be modified to read - "Notify said Regional Director in
writing within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their right to self-organization, to form labor
organization , to join or assist Retail Store Employees
Union , Local 954, Retail Clerks International
Association , AFL-CIO, or any labor organization, to
bargain collectively through representatives of their own
choosing and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection or to refrain from engaging in such
activities except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized by Section 8(a)(3) of the Act.
The law gives all our employees these rights:
To organize themselves;
To form , join, or help Unions;
To bargain as a group through a representative
they choose;
To act together for collective bargaining or other
mutual aid or protection; and
To refuse to do any or all of these things.
We assure you that we will not interfere with you in the
exercise of these rights.
Dated By
W. T. GRANT COMPANY
(Employer)
(Representative ) (Title)
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT coercively interrogate employees
regarding their Union membership, activities, or
sympathies.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or' covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office , 1695 Federal
Office Building 1240 East 9th Street , Cleveland, Ohio
44199, Telephone 522-3715.