Allied Stores of Michigan, Inc., 1109 (1968)

HARDY-HERPOLSHEIMER, ALLIED STORES Hardy-Herpolsheimer Division of Allied Stores of Michigan, Inc.; Francis Van Riper d/b/a Francis Van Riper Jewelry and Watch Repair; Almo Millinery, Division of Allied Purchasing Corporation ; Wohl Shoe Co. and Retail Store Employees Union, Local No. 20, Retail Clerks International Association, AFL-CIO. Cases 7-CA-5927 and 7-RC-7718

December 4, 1968

DECISION, ORDER, AND DIRECTION OF SECOND ELECTION

By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA

On May 6, 1968, Trial Examiner James T. Barker issued his Decision I in the above-entitled proceeding, finding that Respondents 2 had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision.

The Trial Examiner further found that Respondents had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. The Trial Examiner also found merit in certain objections to the election of February 10, 1967, and recommended that the election be set aside and another election conducted. Thereafter,

Respondents and the General Counsel filed exceptions to the Trial Examiner's Decision and briefs in support of their exceptions.

Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases 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, as corrected, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.

1. We do not adopt the Trial Examiner's conclusion that Respondent's statements concerning the income received by Union Secretary-Treasurer Nolan from the Union violated Section 8(a)(1) of the Act.

Accepting the Trial Examiner's finding that the statements contained misstatements of fact and inaccuracies as to the amount and source of such 1 On May 8, 1968, the Trial Examiner issued an errata correcting his Decision in certain respects 2 Sometimes referred to herein as Respondent 1109 income, it is apparent that the Union possessed specialized and intimate knowledge of such matters and that it had ample opportunity to correct the erroneous impression created by the Respondent's remarks. In these circumstances, we find that the statements did not amount to objectionable conduct providing a ground for setting aside the election 3 nor, a fortiori for a finding that Respondent thereby violated Section 8(a)(1) of the Act. Accordingly, we hereby dismiss this allegation of the complaint.

2. We adopt the Trial Examiner's conclusion that Respondent did not violate Section 8(a)(5) of the Act when it refused to accede to the Union's demand for recognition as the bargaining representative of Respondent's employees. The record shows that Respondent rejected the Union's bargaining demand on the ground, inter aka, that 'we have reason to believe that . . . your Union has solicited authorization and membership cards for the purpose of obtaining an NLRB election, and we believe that some of our employees have signed solely for that purpose.' The Trial Examiner has thoroughly reviewed the evidence concerning the circumstances in which the authorization cards were signed. He has, in our judgment, generally applied appropriate legal principles in assessing the reliability of the cards as evidence of the signers' desire to be represented by the Union. In finding that the Union did not have a majority on September 15, 1966, when it demanded recognition, and did not obtain a majority until October 5, 1966, the Trial Examiner refused to count 22 cards because solicitors effectively represented the cards' purpose as being solely to obtain a Board election. Although the factual issues concerning the representations made to some of these 22 card signers are close, we are satisfied that, in the main, the Trial Examiner resolved those issues correctly. The record thus demonstrates that Respondent's belief that some of its employees had signed cards solely to obtain an election corresponded to the facts of the matter. The record further reveals that Respondent did not undertake its campaign against the Union until well after the Union's demand for recognition. Though that campaign, in instances involving four employees, trenched upon employee rights guaranteed by the Act, the violations were neither so flagrant nor so widespread as to be inconsistent with Respondent's asserted doubt of the Union's majority status.4

Evaluating these facts and circumstances, we find that the General Counsel has not sustained the burden of establishing that Respondent was not acting in good faith in declining to recognize the Union because of its asserted doubt of the Union's majority status.

3. We sustain certain 8(a)(1) findings which were 3 See Hollywood Ceramics Company, Inc, 140 NLRB 221

4 See, e g , Hammond & Irving, Incorporated, 154 NLRB 1071

173 NLRB No. 165 also urged as grounds for setting aside the election.

Though these unfair labor practices directly involved only four employees in a relatively large unit, we find, in view of the closeness of the election, that they, in all likelihood, exerted a substantial impact on the election.' Accordingly, we shall set aside the election and direct that a second election be conducted.

ORDER

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 hereby orders that Respondents, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified.

Delete the modifications to the Recommended Order issued on May 6, 1968, which modifications are contained in the errata issued by the Trial Examiner on May 8, 1966.

IT IS FURTHER ORDERED that the election held on February 10, 1967, among Respondent's employees, be, and it hereby is, set aside, and that Case 7-RC-7718 be, and it hereby is, severed and remanded to the Regional Director for Region 7 for the purpose of conducting a new election among the employees in the unit found appropriate in his Decision and Direction of Election dated January 11, 1967, at such time as he deems that the circumstances permit the free choice of a bargaining representative.

[Direction of Second Election6 omitted from publication. ] 5 Standard Knitting Mills, Inc, 172 NLRB No. 114

6 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 7 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwearlnc, 156 NLRB 1236

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

JAMES T BARKER , Trial Examiner. Upon a charge filed on February 17, 1967, by Retail Store Employees Union, Local No 20 , Retail Clerks International Association , AFL-CIO, hereinafter called the Charging Party or the Union, the Regional Director of the National Labor Relations Board for Region 7 on August 31, 1967 , issued a complaint alleging violations of Section 8(a)(1) and (5 ) of the National Labor Relations Act, hereinafter called the Act and a second supplemental decision on objections The issues raised by the objections and the unfair labor practice complaint were consolidated for hearing.

Pursuant to notice a hearing was held before me at Muskegon, Michigan, at various dates commencing on November 7, 1967, and concluding on November 30, 1967. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce relevant evidence, and to file briefs with me. The parties timely filed briefs with me.

Upon consideration of the entire record and briefs of the parties, and upon my observation of the witnesses, I make the following FINDINGS OF FACT

I THE BUSINESS OF THE RESPONDENT

Respondent Hardy-Herpolsheimer is, and has been at all times material herein, a Michigan corporation maintaining an office and place of business in Muskegon, Michigan.

Almo Millinery, Division of Allied Purchasing Corporation, a New York Corporation, Wohl Shoe Co , a New York Corporation and a wholly-owned subsidiary of Brown Shoe Company,

Inc , and Francis Van Riper d/b/a Francis Van Riper Jewelry and Watch Repair, an individual proprietor, together with the Respondent Hardy-Herpolsheimer, are and at all times material herein have been a single integrated enterprise engaged in the business of a department store, all conducting their respective operations at Respondent Hardy-Herpolsheimer's Muskegon store without distinctive signs or other indications of separate identity from Hardy-Herpolsheimer, with common advertising and credit facilities, and with personnel and labor relations policies being established by Respondent Hardy-Herpolsheimer and applicable to all the employees of each of the aforesaid companies, who work under similar working conditions, including hours and employee benefits Respondent Hardy Herpolsheimer and the other aforesaid Respondents are and have been at all times material herein jointly engaged in the sale and distribution of general department store merchandise...

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