Ellis-Klatscher & Co.

National Labor Relations Board - Board Decisions

Apr 30, 1942

40 N.L.R.B. 1037 (N.L.R.B. 1942)

In the Matter of ELLIs-KLATSCHER & Co., and GENERAL WAREHOUSE-
MEN, LOCAL 598, OF THE INTERNATIONAL BROTHERHOOD OF, TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L.
Case No. C-2008.-Decided April 30, 1942
Jurisdiction : wholesale merchandising industry.
Unfair Labor Practices
Company-Dominated Union: formation of, encouraged and participated in by
employe'r's chairman of board of directors and warehouse superintendent-
administration dominated and interfered with, by membership of superintend-
ent on executive committee of ; employer support by recognition, bargaining,
concessions, payment for luncheons of bargaining committee at regular luncheon
meetings of Committee and employer, and by permitting employees to discuss
results of bargaining conferences during working hours, without loss of pay.
Collective Bargaining: union's majority established by cross-check of application
cards against pay roll, pursuant to formal cross-check agreement ; defections
,arising as a result of employer's unfair labor practices held not to affect
majority-refusal to bargain collectively by: undermining union's majority
status during. bargaining negotiations; by dealing with dominated organiza-
tion established during negotiations; by refusing to make counterproposals
on request and by refusing to meet with union for purposes of collective bar-
gaining during pendency of instant proceeding.
Remedial Orders : dominated organization disestablished; employer ordered to
bargain collectively with the union.
Unit Appropriate for Collective Bargaining : warehouse employees, including
department heads, but excluding supervisory and clerical employees-based
on unit agreed upon in formal cross-check agreement.
Mr. Charles M. Ryan, for the Board.
Mr. Willis Sargent, of Los Angeles, Calif., for the respondent.
Mr. George'E. Mocle, of Los Angeles, Calif., for the Union.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on January 16, 1941, by General Ware-
housemen, Local 598, of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, A. F. L., herein
called the Union, thetNational Labor Relations Board, herein Called
the Board, by the Regional Director for the Twenty-first Region
40 N. L. R. B., No. 181
1037
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Los Angeles, California), issued its complaint dated July 9, 1941,
against Ellis-Klatscher & Co., Los Angeles, California, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), and (5) and Section 2..(6) and (7)
of the National-Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing thereon were
duly served upon the respondent, 'the Union, and The Committee
Representing the Boys, herein called the Committee, an organization
alleged in the complaint to' be dominated by the respondent.
,,-With respect to the unfair labor practices, the complaint alleged
in substance: (1) that the respondent on or about December 16,,1940,
and at all times thereafter, refused to bargain collectively with the
Union, which was on and after December 16, 1940, the duly designated
exclusive representative of employees of the respondent in an ap-
propriate unit; (2) that the respondent on or about December 23,
1940, caused the Committee to be formed among its employees and
thereafter dominated and interfered with its administration and con-
tributed financial and other support to it; and (3) that the respondent
by such acts interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. On
July 23, 1941, the respondent filed its answer, denying that it had
committed any unfair labor practices, and making certain affirmative
allegations.
Pursuant to notice, a hearing was held in Los Angeles, California,,
on July 23, 1941, and from August 11 to 18, 1941, inclusive, before
Josef L. Hektoen, the Trial Examiner duly designated by the Acting
Chief Trial Examiner. The Board, the respondent, and the Union
were represented and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence' bearing on the issues was afforded all parties. At the close
of the hearing counsel for the Board moved to'conform the complaint
to the proof with respect to, the-, spelling of names and dates; the
motion was granted without objection.` Counsel for the respondent
moved to dismiss the complaint for lack of proof. The Trial Exam-
iner reserved ruling on this motion;at?the hearing, and subsequently
denied it in his Intermediate Report. Various rulings were made
by the Trial Examiner ' during -the i course of the hearing on other
motions and on objections to .the admission -ofevidence. The Board
has reviewed these rulings and finds that no,prejudicial -errors were
committed.l.- The rulings are hereby-affirmed.
!,,On, November ;13,, 194i ; , the Trial -Examiner filed an Intermediate
Report; copies pf, whichrwere duly served upon= the parties, in which
' Certain rulings of the Trial Examiner are hereinafter more specifically discussed.
See Section• III-A-2, below.
ELLIS-KLATSCHER & CO. 1039
he found that the respondent had engaged in and was engaging in
unfair labor -practices affecting commerce, within the meaning of
Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act.
He recommended that the respondent cease and desist therefrom and
take certain specified affirmative action deemed necessary to effectuate
the policies of the Act. Thereafter the respondent filed exceptions
to the Intermediate Report. None of the parties filed briefs or re-
quested the privilege of oral argument before the Board. Insofar
as the exceptions are inconsistent with the findings, conclusions, and
order set forth below, the Board finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Ellis-Klatscher & Co., a California corporation
having its office and place of business in Los Angeles, California, is
engaged in selling variety store merchandise at wholesale. During
1940, it, expended $1,000,000 in purchasing lingerie, sweaters; baby
goods, stationery and school supplies, cosmetics, kitchen tools, light
hardware, electrical goods, hosiery, glassware, and enamelware. More
than 65 percent of these products was shipped to the respondent from
points outside the State of California. During the same period the
respondent received approximately $1,737,000 from the sales-of such
goods; approximately $50,000 of this amount was received from the
sales of goods shipped to points outside the State of California. The
respondent employs approximately 110 persons.
II. THE ORGANIZATIONS INVOLVED
General Warehousemen, Local 598, of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization affiliated with the American Federa-
tion of Labor, admitting to membership employees of the respondent.
The Committee Representing the Boys is an unaffiliated labor
organization.
' III. THE UNFAIR LABOR PRACTICES^2
A. The refusal to bargain collectively
/`
1. ^ The appropriate unit
On December 10, 1940, George E. Mock, then secretary-treasurer
of, the-Union, and, Ralph ' oolpert, a representative of the Union,
J
2 Except as noted below , the findings of fact hereinafter made are based , upon testimony
and exhibits which were not controverted by the respondent at the hearing . The exhibits
include minutes of meetings transcribed by a stenographer in the respondent 's employ
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called on William Klatscher , chairman of the respondent's board of
directors . They claimed that the Union represented a' majority of
the respondent 's warehouse employees and requested that the respond-
ent recognize and bargain with the 'Union. They also presented
Klatscher with a proposed contract to serve as the basis of negotia-
tions. Klatscher expressed doubt concerning the claimed representa-
tion, and the parties agreed that the Regional Office of the Board
should conduct a cross-check of union authorization cards against
the- respondent 's pay roll.
On the same day the Union filed with the Board a petition for an
investigation and certification of representatives , alleging that "all
employees engaged in the warehouse , including ' truck drivers and
excluding supervisory and clerical employees ," constituted a unit
appropriate for the purposes of collective bargaining . The same
unit is alleged in the complaint to be appropriate.
On December 12, Mock and Woo]pert met at the Board's Regional
Office with a Field Examiner of the Board and Roy Shackelford,
superintendent of the respondent 's warehouse . Shackelford brought
with him a pay-roll list of employees which the respondent 's, head
bookkeeper had prepared pursuant to Klatscher 's instructions. At
this meeting, the respondent , the Union, and the Regional Director
of the Board entered into a formal "Cross -check Agreement," pro-
viding as follows :
The parties hereinabove identified , having come to an agree-
ment as to the method of certifying an agency of collective
bargaining, hereby agree that :
1. They will severally abide by the finding of the Director in
this matter , who shall check the signatures on the authorizations
(Sec. 4) against the signatures attached to the pay roll. (Sec. 3.)
2. The unit in question shall comprise :
All employees engaged in the warehouse, including truck
drivers but excluding supervisory and clerical employees.
3. The pay roll to be used shall include those employees who
were on the Company's pay roll as of the close of business on
December 2, 1940.
4. The Union will present to the Director on or before Decem-
ber 12, 1940 , bona fide applications for membership or petitions
or other evidence of membership with the written signatures of
the signatories , indicating the desire of the signatories thereto,
to be represented by the Union for the purposes of collective
bargaining.
5. The Union will certify that these cards presented represent
members in good standing in the ' Union as of the date of the
cross-check.
ELLIS-KLATSCHER & CO. 1041
6. If the results of the Director 's check indicates that the
Union represents a majority of the employees in the above unit
(Sec. 2) the Company will recognize the Union as the exclusive
representative of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages , hours
of employment and other conditions of employment.
After the parties signed the foregoing agreement,3 Shackelford pro-
duced the respondent 's pay roll of December 1, 1940, and the names
of employees appearing thereon were read while Shackelford supplied
information as to their duties . Discussion was had regarding the
inclusion or exclusion of certain employees in or from the unit, and
the Field Examiner , representing the Regional Director , ruled upon
the contentions of the Union and the respondent respecting such
inclusion or exclusion . A unit comprising 57 employees was thus
determined upon and the Field Examiner, in Shackelford's presence,
then checked union membership application cards against the.
pay-roll list of employees in the unit. On the same day the Re-
gional Director issued a "Notice ," which was duly served upon the
-parties, certifying that "of the 57 eligible employees . . . 32 are
members of the [Union ]." Thereafter , as noted below , negotiations
between the respondent and the Union took place over a period of
about a month.
The respondent now attacks the validity of the Regional Director's
"certification" on several grounds. However, as hereinafter shown,'
it did not refuse on these grounds to deal with the Union as majority
representative during the period of the negotiations. Indeed, at a
conference between the Union and the respondent on December 17, 5
days after the cross -check was made, Klatscher was asked by a union
representative if he disputed "the bargaining rights of the Union"
and he answered , "No." The respondent 's contentions regarding the
invalidity of the Regional Director 's certificate were advanced for
the first time after the negotiations between the Union and the re-
spondent had broken down in January 1941 , following the respond-
ent's establishment of a rival organization , the Committee ,, and after
the Union had-filed charges with the Board on January 16, 1941.
The respondent contends that it signed the cross-check agreement
only as a result of pressure by the Union and the Board and was not
fully informed of its rights in signing the agreement . Since the
3 Shackelford requested delay because of Klatscher 's illness The latter , however, reached
by telephone , instructed Shackelford to sign the agreement.
•' See Section III-A-3 and 5, infra
455771-42-vol 40-66
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent produced no evidence in support of this contention, we
find it to be without merit.
The respondent contends that the pay-roll list it supplied was
incorrect, since certain persons who were not warehouse employees
were included in the list while other employees whose work related
to the warehouse were not listed. Respecting the former category
of employees, the respondent, it appears, has reference to salesmen
and office employees who were listed on the pay roll. These em-
ployees were excluded from the unit used in the cross-check, and
their exclusion was and is clearly proper. With respect to the
employees who were omitted from the pay roll, Shackelford testified
that at the time the cross-check was made he suggested that since
certain "inventory clerks" were to be included in the unit, other
clerical employees 5 whose work related to the warehouse should also
be included. His suggestion was overruled by the Field Examiner.
At the hearing he named these employees and described their duties.6
'In view of the functions and duties of these employees, we find that,
as clerical employees, they were properly excluded from the unit.
The respondent contends that department heads were improperly
included in the unit over Superintendent Shackelford's objection.
While the evidence shows that these employees have supervisory,
duties, they were eligible to membership in, and. some were members,
of, the Union, .which desired their inclusion. Under all the circum-
stances we find that the department heads` were properly included in
the unit.
In view ofthe formal cross-check agreement, the unit determination
made pursuant thereto, the respondent's acquiescence in such unit
determination as evidenced by its subsequent negotiations with the
Union, and upon, all the evidence in the record, we find that all
employees of the respondent engaged in its warehouse, including de=
partment heads, but excluding. supervisory and clerical employees,
at all times material herein constituted, and that they now constitute,
a unit appropriate for the purposes of collective bargaining and that
said unit insures to employees of the respondent the full benefit of
These are the employees not listed on the pay roll
One is a catalog clerk in the warehouse ( Mrs Sanders ) who makes up the re-
spondent ' s catalog ; one, is an employee in, the receiving department' ( Mrs. Roberts), who
is 'engaged ' mainly in checking incoming invoices, and who also checks shortages and
damage , to merchandise , and makes claims therefor . The others include Mrs . Wackholz, an
assistant to Mrs Roberts "about half the, time ," and two other women who assist Mrs.
Wackholz or take her place at various times; Miss Fowler , a sample woman ;-who-marks
and selects samples, marks prices thereon ,; and delivers them to salesmen ; Irving Walter,
who receives merchandise returned -by salesmen and 'customers , checks such merchandise;
issues credit memoranda therefor , and takes care of shortage claims , and an assistant- to
Walter
_ 1' ELLIS-KLATSCHER &Co. , 1043
their right to self-organization and to collective, bargaining and other-
wise effectuates the policies of the Act.'
2. Representation by the Union of a majority in the- appropriate unit
As noted above, on December 12 the parties entered into -a formal
"Cross-check Agreement"; the cross-check was made pursuant to such
agreement , and the Regional Director certified that "of the 57 eligible
employees . . . 32 are members of the [Union]."
The respondent now contests the validity of the Regional Director's
"certification" on the ground that the Union did not certify, as pro-
vided in the cross-check agreement, that the application cards used
represented members in good standing in the Union. Shackelford
made no issue of the Union's failure in this regard at the time of the
cross-check, and the respondent thereafter during negotiations with
the Union raised no objection in this respect. While it appears that a
majority of the applicants for membership - in the Union paid no
initiation fees or other sums to the Union, the evidence shows that
the mere signing of an application card entitled an applicant to certain
"membership rights," such as the right to representation by the Union
iii collective bargaining, the right to attend and participate in organ=
izational meetings , and the right to strike benefits from the Union.
Moreover, a signed application for membership in a labor organiza-
tion is sufficient designation of such labor organization as the repre-
sentative of the signer for purposes of collective bargaining." Under
all the circumstances, we find that the Union's failure to certify that
the "cards . . . represented members in good standing in the Union"
was not such a substantial deviation from the terms of the cross-
check agreement as to invalidate the results of the cross-check:
The respondent alleges in its answer that its employees were induced
to designate.the Union "under duress and undue influence." At the
hearing counsel for the respondent sought to question Mock, president
of the Union,-regarding statements allegedly made by union repre-
sentatives to employees while soliciting, them "that unless they joined
up, they wouldn't have a job after the union got iii,", and regarding the
7 Amon.- those included in the unit are the following • pacliei s, stockmen , checkers,
order fillers , receiving employees, shipping employees , inventory employees, shipping
clerk, assistant shipping clerks, stock assembly employee ,' elevator employee ; delivery boy.
and janitor.- Among those excluded from the unit are salesmen, host on floor , office
employees, and the employees discussed in footnote 6 While the cross-check agreement
provided for ' the inclusion of truck drivers , the respondent_ does `not employ any' truck
drivers , and no finding is therefore made respecting such employees ' At the time of
the cross -check , dispute arose as to , the inclusion of Anthony ' Jordan ,' then receiving
department lead Jordan was included in the ''unit over ' the Union ' s objection , 'along with
other department - heads. While Jordan was designated assistant superintendent at the
time of the cross ' c7ieck , in addition to being department lieads ' no evidence ' was introduced
ate the hearing regarding his status and duties as assistant superintendent . We find that
he was properly included in the unit as a department head'
IN. L R B v Louisville Refining Co, 102 F (2d) 678 (C C A 6), cert den 308
U. S. 568, N L R B. v Chicago Apparatus Co, 116 F ( 2d) 753 (C C A 7).
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use of "pressure or coercion" by union representatives upon employees
while soliciting them. The Trial Examiner sustained objections to
these questions.° We are of the opinion that these rulings of the Trial
Exiiuiner should be affirmed. There is no showing that the respond-
ent was unaware of the alleged "pressure," if -any,.at the time of the
cross-check, and the respondent thereafter did not refuse to negotiate
with the Union as majority representative on this ground. Moreover,
the evidence offered at the hearing, as indicated by the questions to
which objection was sustained, was not specifically directed toward
showing such intimidation or fraud as would destroy the free will of
the respondent's employees in applying for membership in the Union:
Nor did the respondent otherwise at the hearing or in its exceptions
offer any specific proof of such intimidation or fraud. The Second
Circuit Court of Appeals has stated in a case where evidence was
offered similar to that called for by the first question herein, to which
objection was sustained : "The Board was clearly correct in holding the
statements of union organizers unavailable as a defense to respondent.
These `threats' were persuasive arguments addressed to the employees'
self-interest. We do not doubt their effectiveness, but union organizers
are quite free to explain the -legitimate consequences of joining or
remaining aloof. Had the threats been of physical violence, the case
would be different ..." 10 We find that the rulings in question were
not prejudicial.
On the basis of the formal cross-check agreement,' the check made
pursuant thereto, the Regional Director's Certificate based thereon,
and the entire record, we find that on December 12, 1940, and at all
times thereafter,ll the Union was and now is the duly designated rep-
The precise questions to which ob)ections were sustained are as follows :
(a) Q. When you were soliciting membership down there, did you or any of your
associates, to your knowledge , ever say to any of the boys down there at
Ellis-Klatscher & Co. that unless- they joined up, they wouldn' t have a,
job after the Union, got in?
(b) Q Mr. Mock, in soliciting members of Ellis-Klatscher & Co. employees , is it the
position of the Union that at no time did anyone soliciting such mem-
bership ever use any pressure or coercion upon any of those who were
sought as members?
(c) Q. Did you , Mr. Mock, ever exercise any pressure upon any of the people who
signed application blanks for membership in the Union , who were em-
ployees of Ellis -Klatscher & Co ? -
1sN. L R B V. Dahlstrom Metallic Door Co., 112 F. (2d) 756 (C. C A. 2) enforcing 11
N L R B. 408 See also Matter of Texas Mining d Smelting Company and International
Union of Mine, ]hill d Smelter Workers, Local No. 412, 13 N I. R B 1162 , 1167-8, enf as
mod in . N L R B v Tea;as 3fining and Smelting Co , 117 F ( 2d) 86 (C C A 5) ; Matter
of Delaware-New Jersey Ferry Company and United Marine Division, Local No. 333,
Affiliated with the A F of L and the I L A, 30 N L R B 820
11 As noted below, on December 20, 1940, 3 employees , and on December 26, 1940, 27
employees resigned from the Union . As found hereinafter, however , these resignations were
induced by the respondent 's unfair labor practices, and therefore did not impair the Union's
status as majority representatii e N L. R B. v. Bradford Dyeing Assn, 310 U. S. 318,
iev'g and rem 'g 106 F . (2d) 119 (C C A. 1 ) vacating in part , 4 N L R B 604
ELLIS-KLATSCHER & CO. 1045
resentative of a majority of the employees in the appropriate unit.
Pursuant to Section 9 (a) of the Act, the Union was and is, therefore,
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3: Attempts of the Union to bargain with the respondent
The Union began organizational activity at the respondent's plant
during the first week in December 1940. One or two meetings of the
employees took' place, and many employees signed applications for
membership.. As noted above, on December 10, Mock and Woolpert,
representing the Union, sought to bargain with the respondent, and
presented Klatscher with a proposed contract. Since the respondent
questioned the Union's claim of majority representation, the Union,
on December 12, established its status as majority representative of
the respondent's employees in the unit hereinbefore found to be
appropriate.
On December 16, Mock and Woolpert again met with Klatscher,
who had meanwhile considered the proposed contract. Tlie proposed
contract provided, among other things, for salary increases and a
"union shop." At the outset Klatscher stated that he had prepared
a few remarks which would enable the parties to bring the discus-
sions to a "more speedy conclusion." He then proceeded to inform
those present regarding the difficulties of the business in which the
respondent was engaged, the smallness of its profits, and the fact
that prohibitive salaries would "hasten the day of [the respondent's]
retirement" from business. With regard to the Union's request for
salary increases, Klatscher stated that the respondent was unable
to increase wages beyond a new schedule already determined upon
and to become effective January 1, 1941. As to the request for a
"union shop," Klatscher stated that he was definitely 'opposed to a
"closed shop" since it was "against.our principles." Thereafter there
was brief discussion concerning the matters of salary increases and a
"union shop." Klatscher pleaded illness in bringing the meeting to
a close.
On December 17 the same parties, with the addition of Arthur C.
Fortey, a union representative, and Superintendent Shackelford, met
again. Mock opened the meeting by suggesting the desirability of
counterproposals by the respondent in regard to the various pro-
visions of the proposed contract. A general discussion ensued about
the matters of wage increases and union shop. Klatscher made no
counterproposals, but stated that the respondent found it impossible
to grant any of the Union's demands, including those for salary in-
creases and 2 weeks' vacation with pay. Klatscher repeatedly em-
1046 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
phasized that the granting' of the Union's demands would cause the
respondent to go out of business and indicated that the respondent
'was unable to make any concessions to the Union. Toward the close
of the meeting, Mock again requested the respondent to submit
counterproposals or to go through the proposed contract paragraph
by paragraph so as to define the.areas of disagreement,. Mock then
receded from the Union's demand for 2 weeks' vacation with pay,
and agreed.to a provision for 1 week's vacation, which the respond-
ent's employees were already, receiving. Klatscher turned the dis-
cussion to the matter of the Union's organizing the remainder of the
industry. The parties also talked about competitive conditions in
the industry and the desirability of a standard contract for the
industry. The meeting closed with Klatscher's promise to consider
the matters which they had discussed with an association of whole-
salers of which the respondent was a member.
4. Formation of the Committee-undermining of the Union's
majority
On the evening of December 19, a number of employees who had
signed applications for membership in the Union visited Mock at
the office of the Union and signed a document pledging their soli-
darity with the Union. Among those signing were department heads
Sam Bua, John La Frano, Al Isaacs, George Davis, and Frank
Chiel1a. '
About December 20, Klatscher called department heads Bua and
La Frano to his office and announced that to his regret he was com-
pelled "under the circumstances" to cancel a previously announced
Christmas party sponsored by the respondent for that evening and
instructed them to inform the employees accordingly. According to
Bua's testimony, "he [Klatscher] told myself and Johnny [La Frano]
to tell the boys that since there was the differences between the em-
ployees and the employers that it [the Christmas party] should be
called off." Klatscher testified that he told Bua and La Frano that
the party was cancelled because'of the possibility of conflict between
employees opposed to the Union and those in favor of, it. In view
of the incredibility of 'Klatscher's testimony in other respects,12 we
credit the foregoing testimony of Bua. We find that by' Klatscher's
action in cancelling the Christmas party for the reason given t6 Bua
and La Frano, the respondent expressed its opposition to the Union.
Moreover, the respondent had previously expressed such opposition
by questioning employees about the Union. Thus, on December 9;
shortly after the Union, had begun to organize the employees,
12 See , for example , .footnote 13,;infra.
ELLIS-KLATSCHER & CO. 1047
Klatscher and Shackelford called Ed Messinio, an employee, " to
Klatscher's office. They warned him. against soliciting for the Union
on the respondent's time and premises. Messinio denied having en-
gaged in such conduct. Klatscher also asked him : "Have you ' any
idea how many members they [the Union] have?" Messinio replied
that he did not and denied knowledge of a meeting of the Union
held on the previous Saturday.13 Messinio was discharged on the
same day, December 9, because he did not, according to Klatscher,
heed the latter's warning against soliciting for the Union on the
respondent's time and premises. '
About December 15, Superintendent Shackelford called employee
Al Isaacs from his work and inquired whether he had heard of the
Union's campaign. He also asked him if he had joined the Com-
mittee for Industrial Organization in 1937 14 and then told Isaacs
that he had been employed by the respondent long enough "to know
just what side [he] wanted to take on it [the Union] ..."
On December 20, three employees of the respondent signed a'letter
which was thereafter mailed to the Union, requesting the withdrawal
of their applications for membership in the Union.
On December 23,- about 14 employees met on the fourth floor of
the plant at noon. Among those present were department heads Bua,
Isaacs, La Frano, and Chiella, Gilbert Palmer, a "general ... utility
man" who worked in whatever capacity was required of him, includ-
ing that of department head, and Fred Modersitzki, assistant head
of the receiving department. Department heads sometimes'had lunch,
on the fourth floor, but no explanation as to the size of and occasion
for this meeting was elicited from those named, all of whom, with
the exception of La Frano, testified. Palmer, a' leader in the social
activity of the employees, testified that the' department heads named
"were the boys that were going to look out for the other fellows,"
that "they were the leaders." He also testified that "there was a
lot of talk" at this meeting "mostly against the union, that they'
didn't want it." - He explained that those present were opposed to
the Union because "They knew that negotiations [with the respond-,
ent] had been going on, by _previous meetings at union halls, and
they didn't seem to be getting to'.first base." Department head
Isaacs, who' did most of the talking at the meeting, suggested that
"we was better off" to call a meeting with Klatscher. La Frano,
Bua, and Chiella stated that they were "through" with the Union.
"These findings are based upon an `admittedly correct transcription of the minutes of
this meeting In view of these minutes, Klatscher's testimony that , he never ' inquired
of employees about activities of the Union is clearly incredible
1' It appears that an affiliate of the Committee for Industrial Organization, now
known as the Congress of Industrial ; Organizations, sought, to organize the respondent's
employees in 1937.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter the department heads- talked to the men under them,
explained that they "could get certain things from Mr. Klatscher
without having a union represent them," and arranged for a general
meeting- of the employees to be addressed by Klatscher. Isaacs
thereafter obtained Klatscher's permission to hold a meeting of the
employees in the basement of the plant during working hours- on
December 26.
As noted previously, Klatscher cancelled the Christmas party sched-
uled for December 20 because of "differences between the employees
and the employers." However, following the development of the
movement described above, Bua and La Frano obtained permission
from Klatscher to hold a Christmas party on the fourth floor of the
plant and a party was held during the afternoon of December 24.-
All the employees of the respondent were invited to attend.
The basement meeting, which had been arranged with Klatscher's
permission, took "place at about 1: 30 p. m. on December 26. It was
attended by substantially all the employees in the plant, and lasted
more than an hour. During the entire meeting, the respondent's
operations were at a standstill and those attending were paid for
their time. Isaacs, who took charge of the meeting, testified that
its purpose was to explain to the employees what they "could get with-
out a union." He stated at the opening of the meeting that if the
employees would discuss matters with Klatscher, the latter would
"iron out . . . this business of organizing," and that "we were going
to `get Mr. Klatscher down to 'the meeting." Some of those present
indicated their desire to hear from Klatscher, and, expressed fear of
discrimination for having affiliated with the Union. Thereupon
Isaacs requested Klatscher to come to the meeting and told him that
the employees "wanted everything put in the open and everything
above board."
Klatscher then appeared before the employees. In response to
questions, he assured those present that there would be no discrimina-
tion by the respondent against any employee for having applied for
membership in the Union. After some discussion about rest periods,
Klatscher agreed to institute 15-minute morning and afternoon smok-
ing or rest periods in the plant. Finally, an employee inquired of
Klatscher whether "there could be a little committee to meet with
[Klatscher] to discuss various problems of the business." Klatscher,
according to his own testimony, replied that "that was perfectly all
right, in fact, [he] favored it . . ." He withdrew from the meeting
at the request of La Frano after he had been present for half an
hour to an hour.
La Frano thereupon produced a' document typed by an office girl
of the respondent, dated December 26, addressed to the Union, and
headed:
ELLIS-KLATSCHER & Co. 1049
- The undersigned' hereby tender their resignation' as a= member
of your Union, effective immediately.
Palmer, Bua, La Frano, and Isaacs addressed the meeting, urging
that the Union be abandoned. The document was then signed by 27
employees who had applied for membership in the Union.15 There-
after, at the suggestion of La Frano, Bua and Palmer took the docu-
ment to the Board office. There they interviewed James A. Cobey,
an attorney for the Board, and received his opinion, based on their
cursory explanation of the situation, that the employees who signed
the document had withdrawn from the Union. On the same day,
Palmer sent copies of the document to the Union, the respondent,
and the Regional Office of the Board.10
At about noon on December 27, a self-appointed committee con-
sisting of Palmer, Bua, La Frano, Chiella, Modersitzki, Isaacs, and
Superintendent Shackelford, met with Klatscher in the latter's offices'
The record does not disclose what arrangements, if any, had been
made for the meeting. A transcript of the proceedings, taken by
Klatscher's secretary, shows that Klatscher opened the meeting by
stating that he understood the committee represented approximately
55 warehouse employees and "I take it _for granted that since these
discussions are to be with you instead of with the A. F. of L. repre-
sentatives, that you have resigned from the,Union." A number of
those present said that they were "through" with the Union. Mini-
mum salaries were discussed and Klatscher stated that the minimum
salary scale in the future would be $70 per month, which represented
an increase of $5 per month. The smoking periods agreed -to at
the basement meeting were made official. A New Year's party "on
the firm" was planned at Palmer's suggestion; the time-sheet system
which "seems to cause everyone grief" was discontinued by Klatscher
"for a trial period"; and 'various other working conditions were dis-
cussed and specific suggestions for improvements advanced. Klat-
scher remarked at this meeting that "I shall be glad to have you take
such matters up with me through your committee and I shall see
that they are corrected." He expressed the opinion that "company
unions" were not permitted, "However I have heard of employees
forming a Club." According to the minutes of the meeting, "it
15 Including the three who had previously sent withdrawals to the Union , and depart-
ment heads Bua, Cbiella, La Frano, Isaacs , Davis, and John Lima
16 The respondent 's address was given as the return address on the envelope in which
the copy received by the Union was enclosed.
17 Palmer explained that "you couldn ' t have a meeting with 60 or 70 employees talking
all at once, because you would never get anything accomplished , you couldn 't really do
anything , so there was only one thing to do, and that seemed to be the proper thing
to do , and the department heads always speak for their men , so it only became a
natural course" that the department heads should be on the committee . No vote was
taken among the employees as to whether they desired to be represented by those on
the coinmittee.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was definitely decided that department heads form the committee
representing the boys," 18 that the Committee meet at luncheon with
Klatscher on the first Tuesday of each month, and that its first meet-
ing be held on December 31. Further, according to the minutes,
"Mr. Jordan [head of, receiving department], Mr. Shackelford and
Fred Modersitzki [Jordan's assistant], are to decide whether Jordan
or Fred should represent their department." 19
5. Further attempts of the Union, to bargain with the respondent
During the latter part of December, after the Union had received
resignations from the Union, and the formation of the Committee
had begun, Mock and Charles West, a representative of the Union,
met with Klatscher and complained that the respondent had coerced
its employees to withdraw from the Union. Klatscher denied this
accusation and spoke of the hardships union organization would bring
'to the industry. While stating that he was willing to meet further
with the Union, Klatscher asserted that he saw no reason to continue
negotiations since the employees had withdrawn from the Union
and were forming their own committee to deal with the respondent.
During the first part of January 1941, representatives of the Union
met with Klatscher on two occasions. At these meetings the diffi-
culties of the industry were again discussed, and Klatscher indicated
that he would not sign a contract even if the Union succeeded in
organizing part or all of the industry. During the course of these
meetings, Klatscher, while expressing willingness to meet further
with the Union, questioned its status as majority representative of
the employees in view of the resignations and the formation of the
Committee. He also refused to submit counterproposals upon re-
quest, reiterated his opposition to a "closed shop," particularly since
the Union,' according, to him, no longer represented a majority of
the employees, and in general indicated the futility of further meet=
ings with the Union.
About July 15, 1941, after issuance of the complaint and notice of
hearing in this case, Mock telephoned Klatscher and asked that the
respondent negotiate with the Union. Klatscher communicated with
the respondent's counsel , then Paul Watkins, who thought "it was
rather late in the day to attempt anything like that ..." Klatscher
thereafter so informed Mock.
16 The Committee thereafter became known as The ' Committee Representing the Boys.
19 It appears that Modersitzki became a member of the' Committee , although Jordan
took his place ' at 'two or three meetings . Palmer 'represented the ' respondent ' s salesmen
'on the Committee . Two other employees , Meyer, apparently a buyer , arid John Espinoza,
a salesman , were appointed ' to, the Committee at this ' meeting: ' Meyer represented the
buyers on the Committee . ' ' ' '
ELLIS-KLATSCHER & Co. 1051
6. -Conclusions regarding the respondent's refusal to bargain
collectively
Immediately after the Union had began to organize its employees,
the respondent exhibited its opposition to the Union by questioning
employees about the Union and then by canceling a previously an-
nounced Christmas party because of the efforts of its employees to
bargain collectively through the Union. Within a short time after
the Union had opened negotiations with the respondent and had
unsuccessfully sought to obtain concessions on its various demands,
the respondent. sponsored and encouraged the formation of a rival
organization. Thus, in the latter part of December, Klatscher gave
a group of employees permission to hold a meeting in the plant during
working hours, the purpose of which was to crystallize sentiment
against the Union. Such permission was an act of support which
was in marked contrast to Klatscher's treatment of Messinio for
allegedly soliciting in behalf of the Union in the plant during working
hours.' At this meeting on December 26, Klatscher expressly en-
couraged the formation of the Committee. On the following day,
Klatscher assisted in the formal establishment of the Committee,
immediately according it recognition and dealing with it as bar-
gaining representative of the employees.
The negotiations between the respondent and the Union, both
before and after the formation of the Committee, must be viewed in
the light of the respondent's expressed opposition to the Union and
its activity respecting the Committee. Against this background, it
is clear that while the respondent met with the Union on various
occasions between December 16, 1940, and January 16, 1941, and
discussed the Union's proposals, it at no time during this period
negotiated in good faith in a sincere endeavor to reach an agreement.
Instead, during the course of negotiations the respondent, engaged
in the conduct already described, which was designed to undermine
the Union's status as majority representative. The withdrawals from
the Union on December 20 and 26 are attributable to such conduct.
After inducing defections from the Union and establishing the Com-
mittee, the 'respondent questioned the Union's majority on the basis
of the defections caused by it, and indicated the futility. of further
meetings with the Union. As noted below, the respondent continued
to deal with the Committee as the representative of its employees,
and to dominate, and support the Committee. The concessions which
.the respondent made to the Committee in the course.;of dealing with
it .stand in sharp contrast to the respondent's adamant attitude in
'dealing with the Union, to.whom it repeatedly refused to make count
terproposals upon request. Finally, , in.-July •1941; . the, respondent
refused to meet with the Union for the purposes of collective bar-
1052 DECISIONS OF NATIONAL' LABOR- RELATIONS BOARD
gaining. '' The pendency of the instaht' pro6eeding.:does not,excuse
this refusal.20 .'
We find that on December 16, 1940, and at all times thereafter, the
respondent refused to bargain collectively with the Union as the
exclusive representative of the respondent's employees in the ap-
propriate unit, thereby interfering with, restraining, and coercing its
.employees in the exercise of the rights guaranteed in Section 7 of the
Act.21
B. Interference with, dort.ination, and support of the. Committee
As already noted above, Klatscher encouraged and assisted in the
formation of the Committee. By such conduct the respondent has
dominated and interfered with the formation of the Committee. The
evidence also shows that the respondent dominated and interfered with
the administration of the Committee and contributed support to it.
The next meeting of the Committee and Klatscher following the
Committee's formation was held at the Manhattan Restaurant in Los
Angeles, on December 31. Those present had lunch at the respondent's
expense. At the meeting, the respondent agreed to institute weekly
pay days; salaries, promotions, and working conditions were discussed;
the benefits enjoyed by the employees were enumerated; and "The
point was brought out that Mr. Ellis, Mr. Klatscher and Mr. Cohen 22
have taken drastic salary reductions so that this firm can survive."
Minutes of the meeting, prepared by Isaacs, La Frano, and Palmer,
were run off the same afternoon on the respondent's mimeograph
machine and handed out by Palmer to the employees as they left work
that afternoon. Copies were also posted on bulletin boards at the
plant. The minutes included the following message :
A LITTLE MESSAGE FROM THE, Boys ON THE COMMITTEE
This is a NEW YEAR ! Let's put our shoulders to the wheel and
all push together ! We are going to represent yogi for the coming
20Matter of Sheba Ana Frocks, Inc and International ladies Garment Workers Union
of America, Locals 121'and 204, 5 N L. R B 12; West Oregon Lumber Co and Lumber
and Sawmill Workers Local Union No 3, International Wood Workers of America, 20
N L. R. B. 1 ; Matter of Lebanon Steel Foundry and Steel Workers Organizing Committee,
Affiliated with the C I O, 33 N L R B 233
n Cf. N L R. B v. Bradford Dyeing Ass'n, 310 U S 318; Matter of Lebanon News
Publishing Company and Local Union #107 of International Stereotypers and Electrotypers,
affiliated with the American h'ederatmn of Laboi, 37 N L R B 649, Matter of The
Colorado Fuel and Iron Corporation and International Union of Aline, Milt, and Smelter
Workers, Local 442 et at, 22 N L R B. 184, 244, enforced in N L. R B v Colorado Fuel
& Iron Corp, 121 F. (2d) 165 (C. C. A 10) ; Matter of Lennon Furnace Co. Inc. and
Syracuse Federation of Labor, 20 N L R. B 962; Matter of Leyse Aluminum Company and
Aluminum Workers Federal Labor Union No 22403 (A F. L ), 37 N. L. R. B 839; and
Globe Cotton Malls v. N L. R B, 103 F (2d) 91, 94 (C. C A. 5).
22 Mr. Cohen's position with the respondent, is_not:ahsclosed;by the record.
ELLIS-KLATSCHER & CO. 1053
year and assure you we shall do everything humanly possible to
make better working conditions and create harmony throughout
this institution.
That'night Klatscher gave a New Year's Eve party for the employees
at his home.
Meetings between the Committee and Klatscher have taken place
monthly since January 1941. So far as appears, the Committee has
held no meetings apart from those with Klatscher, which have been
luncheon meetings. Klatscher has paid for the lunches. As noted
above, following discussions between Klatscher and the Committee, the
respondent increased the minimum salary scale, provided smoking
periods, and made other improvements in working conditions. Since
January 1941 no minutes of the meetings between the respondent and
the Committee have been kept. The employees have been informed
by the department heads of decisions made at the meetings. Depart-
ment head Isaacs, a member of the Committee, testified that, after
meetings with Klatscher, he would call together the employees in his
department during working hours and discuss the events of the meet-
ing with them. Employees were paid for the time they lost during
these discussions.
Vacancies on the Committee have been automatically filled by
appointment of succeeding department heads to the places vacated by
their. predecessors. Bua, who became assistant to Shackelford in July
1941, is admittedly still a member of the Committee. Modersitzki,
who was made head of the receiving department, also remains a mem-
ber. Superintendent Shackelford likewise continues as a member of
the Committee. Evidently he is the management's representative on
the Committee, since, according to the testimony of Isaacs, while
Shackelford was a member of the Committee, he did not "represent the
boys" but was "in with the management of the house."
In summary, the respondent, through Klatscher, the chairman of its
board of directors, and Superintendent Shackelford, who had the
authority to hire and discharge employees in the respondent's ware-
house, encouraged and participated in the organization of_ the Com-
mittee, thus dominating and interfering with its formation. The
respondent dominated and interfered with its administration by the
membership of Superintendent Shackelford on the Committee.23 The
za Furthermore. the respondent dominated and interfered with the formation and adminis-
tration of the Committee by the activities of its department heads on the Committee
The record shows that the depaitment heads had charge of the work and the employees in
th-ir respective departments, that they reported on the work of employees to Superintendent
Shackelford, and made recommendations to him regarding the hiring and discharge of
employees It is true that some of the department heads had been active in the Union.
Their activity on the Committee however, followed the ie5pondent's expressions of opposition
to-the Union, and was in behalf of a, labor organization, otherwise shown to have been
sponsored, approved, and supported by the respondent Under these circumstances it is
0
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent gave substantial support to the Committee by recognizing
and dealing with it as collective bargaining representative of the
employees, and by granting concessions to it, while refusing to make
any concessions to the Union. The respondent contributed further
support by payment for the luncheons at the regular meetings between,
the Committee and the respondent and by permitting the employees
to discuss the results of these meetings during working hours without
loss of pay. The evidence shows a complete lack of freedom of choice
of representatives by the employees, who had their department heads
thrust upon them as self-perpetuating representatives, and were there-
after informed by such representatives of the decisions reached by the
Committee and the respondent.24
We find that the respondent has dominated and interfered with the
formation and administration of the Committee and has contributed
support to it, and has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
- The activities of the respondent set forth in Section III above, occur-
ring in connection with the operations of the respondent described, in
Section I 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
Since we have found that the respondent has engaged*in certain
unfair labor practices, we shall order the respondent to cease and desist
therefrom and to take certain affirmative action designed to effectuate`
the policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Committee and contributed
clear that the department heads became active on the Committee pursuant to the desire and
in behalf of the respondent, and their conduct in this-regard must have been regarded by
the employees as being in the respondent's behalf See International Association of Machin-
ists, etc. v. N. L. R B , 311 U S 72; Abinante and Nola Packing Co, et al, and Warehouse.
man's Union. Local 1-6, I L W U, 26 N L It B 1288; Matter of Iowa Electric Light
and Power Company and International Union of Operating Engineers, Local 2'i5, affiliated
with th A. F of L, 38 N L R B 1124
24 In its Exceptions to the Intermediate Report the respondent advances the argument
that "Mr. Palmer's remark in footnote No. 22 [Intermediate Report] would certainly appear
to corroborate the view that the Committee to be set up consisting of members of the
management, the so-called' `department heads" and others of the employees, could not be
deemed to be a labor union or labor organization of the employees themselves, not alone'
because of the representation of the management on the Committee, but also because of the'
fact that there was no provision for election of the representatives of the employees by
them." - ' '
0
ELLIS-KLATSCHER & CO. 1055
support thereto. We shall order the respondent to withdraw all rec-
ognition from the Committee as the representative of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, -or other
conditions of employment and completely to disestablish it as sucli
representative."
We have found that the respondent has refused to bargain collec-
tively with the Union as the exclusive representative of the employees
in an appropriate unit. We shall order the respondent to bargain
collectively with the Union upon request.
•The respondent's unlawful course of conduct discloses a purpose to
defeat self-organization and its objects. Because of such conduct and
its underlying purpose, we find that the unfair labor practices in which
the respondent has engaged, are persuasively related to the other
unfair labor practices proscribed by the Act and that danger of their
commission in the future is to be anticipated from the course of the
respondent's conduct in the past.-' The preventive purpose of the Act
will be thwarted unless our order is coextensive with the threat. In
order, therefore, to make effective the interdependent guarantees of
Section 7, and thus to effectuate the purposes of the Act, we shall order
the respondent to cease and desist from in any manner infringing
rights guaranteed in Section 7 of the Act.
• Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. General Warehousemen, Local 598, of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, A. F. L., and The Committee Representing the Boys, are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of The Commitee Representing the Boys, and by contributing
support thereto, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the Act.
3. All employees of the respondent engaged in its warehouse, includ-
ing department heads, but excluding supervisory and clerical
employees, at all times material herein constituted and now constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
4. General Warehousemen, Local 598, of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, A. F. L., was on December 12, 1940, and at all times there-
25S ee N. L R B. v Empress Publishing Company, 312 U S 426
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after has been, the exclusive representative of all employees in such
unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
5. By refusing on December 16, 1940, and at all times thereafter, to
bargain collectively with General Warehousemen, Local 598, of the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, A. F. L., as the exclusive representative of its
employees in the appropriate unit, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8
(5) of the At.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Ellis=Klatscher & Co., its officers, agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Dominating or interfering with the administration of The
Committee Representing the Boys or with the formation and adminis-
tration of any other labor organization of its employees and from
contributing support to the Committee or to any other labor organiza-
tion of its employees;
(b) Refusing to bargain collectively with General Warehousemen,
Local 598, of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, A. F. L., as the exclusive
representative of all its employees engaged in its warehouse, including
department heads, but excluding supervisory and clerical employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, and assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Immediately withdraw all recognition from The Committee
Representing the Boys as the representative of its employees for the
ELLIS-KLATSCHEIR & CO.' 1057
purpose of dealing with the respondent concerning grievances, labor
disputes , wages, rates of pay, hours of employment , or other conditions
of employment , and completely disestablish said Committee Repre-_
senting the Boys as such representative;
(b) Upon request bargain collectively with General Warehousemen,
Local 598 , of the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , A. F. L'., as the exclusive
representative of all its employees engaged in its warehouse , including
department heads, but excluding supervisory and clerical employees,
in respect to rates of pay, wages , hours of employment , or other , condi-
tions of employment;
(c) Post immediately in conspicuous places in its plant and main-
tain for a period of at least sixty ( 60) consecutive days from the date
of posting , notices to its employees stating that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a), (b), and ( c) of this Order; and that the respond-
ent will take the affirmative action set forth in paragraphs 2 (a) and
(b) of this Order;
(d) Notify the Regional Director of the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
15i771-42--vi. 40-67