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National Labor Relations Board v. S.E. Nichols Co.

decided: June 21, 1967.


Waterman, Friendly and Feinberg, Circuit Judges.

Author: Friendly


S. E. Nichols Company through its subsidiary Nichols Discount City operates a retail store in Elmira, N. Y. Four departments are leased to licensees; while the licenses provide that each licensee shall hire its employees at its own expense, they contain provisions for Nichols' control of wages, fringe benefits and other matters as well as a right to dismiss any employee and to intervene in any of the licensees' labor disputes. This, along with evidence that all employees were treated as a single group, justified the Board in finding that Nichols, Discount City and the licensees were joint employers and all store employees were a single unit.

Local 1687, Retail Clerks International Association, AFL-CIO ("the Union") began to organize the employees in November, 1964. Its efforts came to the attention of Bambrick, the store manager, early in December. He held a meeting on December 12 at which he told the employees that he did not think they needed a union; that their existing benefits were as much as the Union could get for them; that if he found any Union organizer in the store talking to an employee, he would eject both; and that he knew who the employee was who would run to the telephone and tell the Union what he had said. On December 18 the Union sent Bambrick a telegram reciting that it represented a majority in a described unit, requesting that its authorization cards be submitted to an impartial and disinterested person on December 22 for the purpose of verifying its majority status, and demanding that consequent on such verification the company begin negotiations on December 31. Receiving no answer the Union's business agent telephoned Bambrick on December 21 and asked, "Can we sit down and talk?" Bambrick answered, "I do not have the power or the authority to talk to you," and added that the matter "is in the hands of our attorney," whom he named.

The next day, Brecker, Nichols' vice-president and personnel manager from New York City, appeared at the store. At meetings on that and the following day he asked whether the employees had any complaints. They did. One employee had not received the automatic pay raise due him under the terms of the store's Employee Handbook; two others had not been compensated for unused sick leave as the Handbook provided; still others complained of the condition of the toilets and the employees' room. Brecker advised that the complaints would be satisfied, encouraged the employees to bring their grievances to the attention of management, offered in response to an inquiry to ask Blue Cross to contact the employees about group medical insurance although at their own expense, and said the company would see to it that there would be an election to determine their desires to have a union. On January 2, 1965, Bambrick conducted another meeting. He stated that the new smocks and the new furniture for the employees' room requested by the workers would be provided, that raises would be paid those entitled to them, and, again, that a representative of Blue Cross would be in touch with them although still on the basis of a plan financed solely by the employees. Some employees asked for a ten-minute "break" in their five-hour Saturday night shift; this was granted, with the admonition, "Don't misuse it, because if you do, I will take it away from you." Brecker was back for more meetings on January 7, some also attended by Keller, a general supervisor from New York City. Further assurance about the smocks was extended. The employees were told they had a right to have a union but the company wanted an election by secret ballot to determine their desires. Brecker said that the employees had a right to sign affidavits for the Union and the company would not hold their signing against them; also that he knew of Union meetings at the Eagle Club at which the union organizers had had their ears pinned back. The General Counsel established that 11 employees were compensated for unused sick leave at the end of December and a substantial number received small wage increases which were neither automatic nor required by the New York Minimum Wage Act, but which Nichols says were necessary to maintain wage differentials after the increase in the state minimum wage.

Section 8(a) (1).

The trial examiner found and the Board agreed that this record warranted findings of a plan "which was reasonably calculated to influence employees in the exercise of their statutory rights through the granting or promising of economic benefits, and to undermine the Union in violation of Section 8(a) (1) of the Act"; that Bambrick's statements that he knew the identity of the employees who would telephone the Union and Brecker's about the meetings at the Eagle Club "created an impression which was conveyed to the employees that their union activities were being kept under surveillance" in violation of § 8(a) (1); that Bambrick's statement that he would eject from the store any employee who was found talking to a union organizer, not being limited to selling areas or working hours, was a further violation; and so was Brecker's request that employees bring their grievances directly to the attention of management, "especially since at that time, as appears infra, the Union represented a majority of the employees at the Store, and had requested recognition and bargaining."

We suppose the Board was warranted in finding that the provision of increased economic benefits violated § 8(a) (1) under NLRB v. Exchange Parts Co., 375 U.S. 405, 11 L. Ed. 2d 435, 84 S. Ct. 457 (1964), although in contrast to the examiner's portentous description the violation to our minds comes close to being de minimis. See Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv. L. Rev. 38, 112-16 (1964). We likewise sustain the finding as to the ejection threat, which is carried into the order only in a prohibition of threatening economic reprisals against employees found talking to union organizers during non-working hours and in non-selling areas. The two incidents relied upon to prove that Nichols created an impression of unlawful surveillance show little more than that it had some source of information about union activities; there was nothing to indicate it had stimulated the making of such reports, as in Edward Fields, Inc. v. NLRB, 325 F.2d 754, 759 (2 Cir. 1963), and NLRB v. S. & H. Grossinger's, Inc., 372 F.2d 26, 28 (2 Cir. 1967), or that the employees would have had any reason to think it had. However, since Nichols' brief has not raised the issue whether this is enough to support the order as to creating an impression of surveillance, we find it unnecessary to decide what the result would have been if it had, and grant enforcement. On the other hand, the portion of the order prohibiting respondents from "dealing directly with their employees with respect to their grievances or conditions of employment," because it was predicated on the finding of majority status, must fall along with that, as to which see infra.

Section 8(a) (5).

We do not read the Trial Examiner's report, which the Board adopted, as basing the bargaining order on the § 8(a) (1) violations and, with these of so low an order of magnitude, we would not uphold it if in fact it proceeded on that ground. NLRB v. Flomatic Corporation, 347 F.2d 74, 77 (2 Cir. 1965). The finding rather was that the Union had achieved majority status and that Nichols violated § 8(a) (5) by failing to recognize it and dealing directly with the employees. We might well agree that if a majority had been obtained, the evidence sufficiently negated the existence of good faith doubt within the teaching of the case law;*fn1 Nichols made no inquiry as to the validity of the Union's representations,*fn2 did not dispute its assertion of majority status, and acted as if this had never been advanced. On the other hand, lack of good faith doubt is immaterial if in fact no majority existed.

It was stipulated that the bargaining unit consisted of 93 employees. The authorization cards were in a form reproduced in the margin.*fn3 General Counsel submitted 50 signed cards, but the Board eliminated one as obtained by a misrepresentation that 75 percent of the employees had signed and another on the basis that the employee had sought its return before any misconduct by respondents and the Union's demand for recognition. This left 48, giving the Union a majority of two.

The Board makes much of the supposed clarity of the cards used by the Union in this case,*fn4 in contrast to the deceptive or ambiguous ones in other instances where it nevertheless upheld the union, e. g., Lenz Co., 153 NLRB 1399 (1965); Winn-Dixie Stores, Inc., 143 NLRB 848, 851 n. 9 (1963), enforced, 341 F.2d 750 (6 Cir.), cert. denied, 382 U.S. 830, 86 S. Ct. 69, 15 L. Ed. 2d 74 (1965); and S.N.C. Mfg. Co., 147 NLRB 809 (1964), enforced, 122 U.S. App. D.C. 145, 352 F.2d 361, cert. denied 382 U.S. 902, 86 S. Ct. 235, 15 L. Ed. 2d 155 (1965). But while clarity should constitute the beginning of any effort to show a majority on the basis of authorization cards, it is not the end; the clearest written words can be perverted by oral misrepresentations, especially to ordinary working people unversed in the "witty diversities" of labor law. It is all too easy for the Board or a reviewing court to fall into the error of thinking that language clear to them was equally clear to employees previously unexposed to labor relations matters; to treat authorization cards, which union organizers present for filling out and signing and then immediately take away, as if they were wills or contracts carefully explained by a lawyer to his client is to substitute form for reality. The very argument by which the Board has upheld unions even when the cards were deceptively worded, namely, of placing "more emphasis upon the representations made to the employees at the time the cards were signed than upon the language set forth in the cards," NLRB v. Winn-Dixie Stores, Inc., supra, 341 F.2d at 754, works against it here. In our view the evidence demands a conclusion that at least three of the signers were induced to affix their signatures by statements causing them to believe that the union would not achieve representative status without an election.

Elaine Morgan testified the union representative had informed her that there would have to be an election and if she wanted to change her mind, she could. Cross-examination by the General Counsel and the Union's lawyer failed to shake her, and the Union representative, Gilbert, confessed inability to give an accurate account of this interview. At the argument before us Board counsel in effect conceded that Mrs. Morgan's card should not be counted.

Virginia Marks swore that Ripley, the organizer who approached her, said he was soliciting cards "for the purpose of representing the union, to petition the NLRB in Washington as representative of the employees at Nichols to investigate the labor conditions in the store, and that if I signed the card I would not be joining the union." Also that "in order to get the union in the store an election would have to be held in the store." On cross-examination she denied that Ripley told her that on obtaining cards from more than 51% of the employees the union would demand that the company sign a contract; indeed counsel suffered the blow not infrequently experienced by cross-examiners when Mrs. Marks expanded on her direct testimony by saying that To have an investigation of the labor conditions, that obligated me neither way, one way nor the other, to the union, that it was just a means that they used to have the store investigated and labor conditions and so forth investigated. And it was the only way there could be an election held in the store." The best that further cross-examination could elicit was an admission that something was said about asking the company to bargain if the union got a majority but she couldn't remember what. Ripley conceded that when he handed the card to Mrs. Marks, she asked if it was for an election; he claimed he told her it was "not necessarily for an election, that it could be for an election if we couldn't reach a majority status to make our demand for recognition upon the company." This discourse was a long way from making plain to Mrs. Marks that if a majority was achieved, the Union might assert it had become the employees' exclusive ...

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