Associated Dry Goods Corp.

National Labor Relations Board - Board DecisionsMar 4, 1953

103 N.L.R.B. 271 (N.L.R.B. 1953)

ASSOCIATED DRY GOODS CORPORATION 271 requiring membership in a labor organization as a condition of employment .as authorized in Section 8 (a) (3) of the Act. GAGNON PLATING AND MAiNUFACTJRING COMPANY, Employer. Dated ------------------------ By --------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced , or covered by other material. ASSOCIATED DRY GOODS CORPORATION (LORD & TAYLOR DIVISION), FORMERLY LORD & TAYLOR and UNITED DEPARTMENT STORE WORKERS ,OF AMERICA, CIO. Case No. O-CA-2029. March 4,1953 Decision and Order On November 28, 1952, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the 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 copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations of the complaint be dismissed. Thereafter, the Respond- ent and the Union filed exceptions and supporting briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the ,case , and, hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifications : 1. At the close of the hearing, the Trial Examiner dismissed the allegation of the complaint which alleged that the Respondent had violated the Act by threatening its employees with the loss of benefits in the event they became unionized. The Union excepts to this dis- missal and we find merit in its exceptions. According to the credited and uncontradieted testimony of Irwin Weiner, one of the Respon- dent's shoe salesmen, he and his supervisor, Section Manager Roy Stohldrier, had a discussion about unions in the store sometime in 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. 103 NLRB No. 28. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 1951. Stohldrier stated that he had worked for another store where they had had a union, and that if there were a union at Re- spondent's store the spirit would be gone, and that most likely the employees would lose some of the benefits they had and that, for instance, Respondent might install a time clock. We believe that this statement constitutes a threat of loss of benefits if the employees become unionized. We find that by such threat, Respondent inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed them by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act 2 2. We agree with the Trial Examiner's finding that Respondent's interrogation of employee Wiszuk was in violation of Section 8 (a) (1) of the Act. This interrogation was not, as Respondent contends, noncoercive or isolated. From the end of June through September 1951, Wiszuk, a known union adherent,3 was questioned on 4 occasions by 4 different supervisors as to why he favored the Union. We find, as the Board has previously held, that questions of this type are co- ercive in nature even if the person to whom the questions are addressed is a known union adherent .4 We further find that, particularly when viewed in conjunction with the threat addressed to Weiner, these in- cidents of interrogation are sufficient to support a finding of violation of Section 8 (a) (1) and an order enjoining like or similar violations.b 3. For the reasons set forth fully in the Intermediate Report, we agree with the Trial Examiner that the Respondent did not violate the Act by its conduct in depriving nonemployee organizers of access to the nonpublic areas of the store. This case differs in material aspects from the Marshall Field case 6 relied on by the Union. For example, the Union here did not establish that it could not contact the employees outside the store without undue difficulty.7 Moreover, the Respondent here had agreed early in the organizing campaign to permit undisturbed solicitation by nonemployee organizers on the selling floors, if the organizers would agree not to enter the nonpublic areas of the store. Therefore, as the record here, unlike the record in the Marshall Field case, fails to establish that the denial of access of nonemployee organizers to the nonpublic areas of the store made organizing the employees a practical impossibility, we find that Re- spondent did not violate the Act by excluding nonemployee organizers from the nonpublic areas. 2 Dixie Mercerizing Company, 86 NLRB 285, enfd. 188 F. 2d 366 (C. A. 6). 8 Wiszuk's name appeared as a member of the Union's organizing committee on a flyer distributed by the Union during the end of June 4 Hawley Broadcasting Company, 100 NLRB 791. 6 Syracuse Color Press, Inc., 103 NLRB 377. s Marshall Field t Company, 98 NLRB 88, enforced as modified 200 F. 2d 375 (C. A. 7). 7 All employees entered the store by two employee entrances which a majority also used as exits while rush-hour traffic made leaflet distribution at the end of the working day exceedingly difficult, no such difficulty was experienced at the beginning of the working day, when the Union did distribute leaflets to employees entering the store. ASSOCIATED DRY GOODS CORPORATION 273 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Associated Dry Goods Corpora- tion (Lord & Taylor Division), formerly Lord & Taylor, New York City, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Department Store Workers of America, CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, by : (1) Threatening its employees with loss of benefits in the event the store becomes unionized; (2) interrogating its employees as to the reasons for their union interest. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which we find will effectu- ate the policies of the Act : (a) Post in conspicuous places in its offices and place of business at New York City, including all places where notices to employees are customarily posted, copies of the notice attached hereto as an appendix.8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Decision and Order what steps Respondent has taken to comply therewith. IT Is FURTHER ORDERED that the complaint be dismissed except inso- far as it alleges threat of the loss of benefits and interrogation in violation of Section 8 (a) (1) of the Act. 8In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Natiomal.Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees as to the reasons for their union interest. WE WILL NOT threaten our employees with the loss of benefits in the event the store becomes unionized. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist UNITED DEPARTMENT STORE WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing or to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. ASSOCIATED DRY GOODS CORPORATION (LORD & TAYLOR DIVISION), Employer. Dated -------------- By -------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed by United Department Store Workers of America, CIO, herein called the Union, the General Counsel by the Regional Director for the Second Region (New York City), of the National Labor Relations Board, herein called the Board, issued his complaint dated May 22, 1952, against Associated Dry Goods Corporation (Lord & Taylor Division), formerly Lord & Taylor, herein called the Respondent,' alleging that the Respondent had engaged in and I The original complaint named Lord & Taylor only as the Respondent . The com- plaint was amended at the hearing as shown above. Until August 24, 1951, the business was conducted by Lord & Taylor , a New York corporation, and although independently managed was controlled through ownership of securities by Associated Dry Goods Corporation , a , Virginia corporation . On that date Lord & Taylor and other compan4es were consolidated into Associated Dry Goods Corporation . Thereafter the business formerly conducted by Lord & Taylor continued to be operated as ' a division ,- of the Associated Dry Goods Corporation with substantially the same employees , management, and policies . It is conceded that Associated Dry Goods Corporation is responsible for the conduct of Lord & Taylor. ASSOCIATED DRY GOODS CORPORATION 275 was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136. herein called the Act. Copies of the complaint and the charge together with notice of the hearing were duly served upon the parties. With respect to unfair labor practices the complaint alleges that the Respondent beginning May 1951 has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent's answer denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held on September 8 and 10, 1952, at New York City before the undersigned, the Trial Examiner designated by the Chief Trial Examiner. The General Counsel, the charging party, and the Respondent were represented by counsel. Full opportunity to be heard, to examine and cross- examine the witnesses, and to introduce evidence bearing on the issues, was afforded the parties. The parties did not present oral argument at the close of the testimony. The Respondent has, but the General Counsel and the Union have not, filed a brief with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent maintains an office and place of business in New York City at 38th Street and Fifth Avenue, the only operation involved in this proceeding, where it is engaged in retail merchandising as a department store. During 1951, the Respondent in the conduct of its business operations caused to be purchased, transferred, and delivered to the store involved, merchandise and other materials valued in'excess of one million dollars, of which approximately 33 percent was transported to this store from States of the United States other than the State of New York. During the same period, the Respondent sold at the store in- volved merchandise valued in excess of one million dollars, of which approxi- mately 25 percent was transported from the store to States of the United States other than the State of New York. The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Department Store Workers of America, CIO, is a labor organization admitting to membership employees of the Respondent. M. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The issues This proceeding arose in connection with the Union's attempted organization at the Respondent's store beginning in May 1951, and continuing until about the end of the year. During the course of the Union's campaign the Respondent engaged in certain acts and conduct which the General Counsel alleges are vio- lations of the Act. Specifically, the General Counsel complains that the Re- spondent has from May 1951, interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by the Act by the following conduct: (a) Questioning its employees in regard to their membership in, sympathy for, and activities on behalf of the Union. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Engaging in discussions with its employees concerning the activities of the Union among its employees, on the selling floor, during working hours, although the Respondent imposed limitations and restrictions upon the Union's activities among the employees at the same time and place. (c) Prohibiting and preventing representatives of the Union from enter- ing the employees' cafeteria and other employee recreation areas and meet- ing and discussing union and concerted activities with the employees present. (d) Following, trailing, and engaging in surveillance of representatives of the Union. (e) Threatening employees with the withdrawal of benefits and privi- leges and the imposition of working rules upon employees, if the employees selected the Union as their bargaining representative? (f) Imposing and enforcing a rule prohibiting solicitation of its employees by representatives of the Union in the employees' restrooms and waiting rooms. 2. The events As already noted beginning in May 1951, the Union sought to organize the Respondent's employees. The Union had the aid of three nonemployee organ- izers. As a matter of daily routine when these organizers would enter the store to carry on their organizing efforts and walk through the selling areas, they would be followed by the regular plainclothes members of the Respondent's protection department staff whom the salespeople ordinarily rely upon for such matters as shoplifting. There were numerous occasions when the organizers appeared at nouselling areas where employees congregate on their free time and which areas are not open to the public such as the 11th floor which houses the employee cafeteria, lounge, and recreation area. On these occasions the organizers were excluded. For example, on one occasion when three organizers were present on the 11th floor at the invitation of an employee discussing union matters with this and other employees, the protection people appeared and escorted the organizers to the elevators of that floor explaining that they had to leave and that it did not matter that the organizers had been invited by an employee. It appears that the Respondent also enforced a practice of pro- hibiting solicitation of its employees by nonemployee organizers in employee restrooms and waiting rooms. Early in the organizational efforts at the suggestion of the head of the protec- tion department he and the union organizers held a conference in his offices The protection department head stated to the organizers that they were violating the law and he did not want to have them arrested if they did not know what they were doing. He stated further that he wanted them to know that they were not permitted on the 11th floor and in the nonselling areas such as wrap- ping desks, restrooms, waiting rooms, stockrooms, lounge, and the nonselling space immediately off the selling area or selling floor such as the small foyers entering the stockrooms in the shoe department, and that they had made nui- sances of themselves by entering these areas. The union people inquired why they had been followed by protection employees on the selling floor. The protection department head explained that that was what he wanted to get straightened out and proposed that if the union people would undertake not to return to the nonselling areas he had mentioned, he would not have them followed on the selling floors. The union people declined the proposal and thereafter continued their activities. The Respondent also continued its activities and when the union 2 The undersigned granted the Respondent's motion at the close of the General Counsel's case to dismiss this allegation for insufficiency of proof. ASSOCIATED DRY GOODS CORPORATION 277 organizers appeared on the selling floors they were followed by the protection people and when the union organizers entered nonselling areas such as the 11th floor they were escorted out of the area. The organizers' appearance at the store was a daily matter during the course of the campaign. During the course of the organizing campaign the Respondent's supervisors expressed interest in their employees' views concerning the Union and voiced arguments against unionization. After a circular had been distributed on be- half of the Union naming Walter Wiszuk, a salesperson, as a member of the organizing committee, he was questioned by several supervisors. Buyer Oscar Carroll asked Wiszuk why he wanted a union and what benefits he could thus obtain. Newman Hamlet, assistant operating manager, in a conversation in his office, also inquired of Wiszuk why he favored a union at the Respondent's place of business. Mrs. Donnelly, director of training, also spoke to this employee in her office. She queried him as to why he wanted a union at the Respondent's store and what benefits he expected to obtain. Donnelly suggested to Wiszuk that he make an appointment with the first vice president, Van B. Simms, as he would be better able to give Wiszuk additional information as to the benefits the Respondent granted. On another occasion Wiszuk was questioned by buyer Wallace Smith. Wiszuk was called to Smith's office and Smith ques- tioned Wiszuk as to union activities, why he was interested in the Union, and what Wiszuk expected to gain by having a union. The subject of the Union arose between the Respondent's supervisors and another salesman, Irwin Weiner. He and his service or section manager, Roy Stohldrier, bad a discussion in the shoe department during working hours about unions, comparing conditions of employment with and without a union. Stohl- drier stated that he had worked at another store where they had a union and he believed that if they had a union at the Respondent's store the spirit would be gone and most likely they might lose some of the benefits they had such as by having a time clock installed. There were also general discussions held on the selling floor during working hours during this period. Buyer Edward Schwartz engaged in a general dis- cussion concerning union matters on the selling floor with a group of the sales- people during working time for a period of about 15 minutes. The discussion was carried on as some of the sales personnel engaged in their duties. A salesperson would leave the group when necessary to perform his duties and reenter the discussion when he returned to the group. A similar general dis- cussion as to why some of the employees wanted a union was held with the salespeople in about the center of the selling floor of the shoe department during working time. Involved were Vice-President and General Merchandise Man- ager Dawley who explained the things the Respondent did for the employees without a union. This discussion lasted for about an hour and was carried on in the same manner as the Schwartz discussion with employees leaving as nec- essary to perform their sales duties and then reentering the discussion when the sale was completed. The record shows that although the Union found that because of the congestea conditions at the close of business it was impractical to distribute literature at the entrances of the Respondent's premises which are at 38th Street and Fifth Avenue, New York City, at that time, the Union has been able to distribute lit- erature at the beginning of the working day. On November 21, 1951, sometime after the charge was filed in the instant proceedings, the Respondent wrote the Regional Office as follows : This is in response to your request for a statement as to our policy with reference to personal solicitations of members of our company. As I told 257965-54-vol. 108-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you, we have not had a written or formal policy but our practice, as gen- erally set forth below, has been consistently followed. Except for a limited number of annual fund-raising campaigns, such as the Red Cross and Greater New York Fund, we have not sanctioned per- sonal solicitations on store premises of any member of the company by an- other member, when either is on duty, or by an outsider at any time. Of course, we have not objected to nonbusiness contacts of a casual nature and short duration between members, even when one or both of them may be on duty, or between a member and on outsider, when such a contact is made in an area where both persons are entitled to be and when it does not interfere with the job performance of the member or members involved or any other member. We have not sanctioned solicitations of any kind at any time in the por- tion of our 11th floor which is set apart for the benefit, comfort and relaxation of members of the company.' Members may occasionally invite members of their families and personal friends to accompany them to this area but, as the cafeteria there is maintained for the benefit of company members and, in fact, is run at a loss, and the other facilities are dedicated to the comfort and relaxation of all company members, abuse or too fre- quent use of this privilege is not permitted and, obviously, all guests are expected to conduct themselves as such. I trust that this is sufficient for your needs but, if not, I will attempt to answer any questions that you may wish to ask. 3. Conclusions Under the practice in the operation of its store, the Respondent has divided its facilities into two parts, (1) the selling and public areas where solicitation of employees for funds is prohibited, but nonbusiness contacts among fellow employees, between employees and nonemployees of a casual nature, and of a short duration while the employees are on duty, is permitted provided there is no interference with the employees' duties, and (2) the nonselling nonpublic areas such as the 11th floor cafeteria where nonemployees are permitted upon the invitation of any employee if not engaged in too frequently. It appears that the Respondent's store is not very crowded and from the incidents during which the supervisors were on the selling floor discussing unionization from their point of view with salespeople, it is concluded that the salespeople are not at all times engaged with customers and time remains for other matters. The Act does not require access to employees for organizational purposes in any particular manner . The Respondent's practice, providing as it does for reason- able access to the employees by union organizers and by fellow employees, satis- fies the requirements of the statute. It follows then that the Respondent had a right by reasonable means to insist upon the Union's observance of its practice. Early in the organizational campaign at a meeting held at the suggestion of the protection department head, he informed the union organizers that he would withdraw the protection people who were trailing the organizers on the selling floor if they would undertake not to enter the other areas from which they had been repeatedly excluded. The Respondent, in enforcing its practice of pro- hibiting nonemployees in the areas other than the selling floors, such as the 3 Counsel for the Respondent stated that fund-raising activities on behalf of the Amer- ican Red Cross is usually arranged for in the 11th floor cafeteria and is conducted by its own employees. ASSOCIATED DRY GOODS CORPORATION 279 small foyers immediately off the selling floors leading to the various stockrooms, had the choice of either posting protection people at these various locations throughout its premises or merely trailing the three organizers involved and then excluding them when they entered a prohibited area. It is found that the Respondent adopted a reasonable means calculated to achieve a proper end. Had the Union been willing to accept the Respondent's practice, it would have obtained access to the employees on the selling floor without having the negativing presence of the Respondent's protection people. The Union would have thus had an opportunity of persuading employees to its views-an opportunity under the practice which the Respondent utilized on the selling floor to persuade employees to its views. In accordance with these findings it will be recommended that the corresponding allegations of the complaint be dismissed. There remains for consideration the interrogation allegation. As has been found, after Wiszuk's name had been published as a member of the Union's organizing committee he was questioned on 4 different occasions by 4 different officials of the Respondent as to why he wanted a union at the Respondent's place of business. For the reasons stated by the Board in Standard-Coosa- Thatcher Company,4 the undersigned finds that the Respondent violated Section 8 (a) (1) of the Act by interrogating Wiszuk as to why he wanted a union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation 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 Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned shall recommend that it cease and desist therefrom and from any like or related conduct and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Department Store Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interrogating as to the reasons for union interest and thus interfering with, restraining, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1). 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in any other violation of Section 8 (a) (1) of the Act as alleged. [Recommendations omitted from publication in this volume.] 4 85 NLRB 1358, 1358-1863.