Foreman and Clark, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1953

105 N.L.R.B. 333 (N.L.R.B. 1953)

FOREMAN & CLARK, INC. 333
FOREMAN AND CLARK, INC. and AMALGAMATED CLOTH-
ING WORKERS OF AMERICA, C.I.O., LOCAL 297. Case
No. 21-CA-1621. June 3, 1953
DECISION AND ORDER
Upon a charge filed on February 26, 1953, by Amalgamated
Clothing Workers of America, C.I.O., Local 297, herein called
the Union, the General Counsel of the National Labor Relations
Board, herein called, respectively, the General Counsel and
the Board, by the Regional Director for the Twenty-first
Region (Los Angeles, California), issued his complaint on
March 23, 1953, against Foreman & Clark, Inc., 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 (a) (1) and (5) and Section 2
(6) and (7) of the National Labor Relations Act, as amended,
herein called the Act. Copies of the complaint and charge,
accompanied by notices of hearing thereon, were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint
alleged, in substance, that: (1) All employees in the men's and
women's alteration departments at the Respondent's Los
Angeles, Long Beach, Hollywood, Huntington Park, San Diego,
Pomona, Burbank, and San Bernadino, California, retail es-
tablishments, including tailors, bushelmen -fitters, finishers,
operators, rippers, and pressers, excluding all supervisors
within the meaning of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act; (2) since on or about January 19,
1953, the Union has been and now is the exclusive bargaining
representative of all employees in the above-described ap-
propriate unit; (3) from on or about February 25, 1953, to the
date of the complaint, the Respondent has refused upon request
of the Union to bargain collectively with the Union as the ex-
clusive representative of the employees in the aforesaid ap-
propriate unit; and (4) by the foregoing conduct, the Respondent
has engaged in and is engaging in unfair labor practices
violative of Section 8 (a) (1) and (5) of the Act.
The Respondent filed its answer , in substance, denying all
allegations of unfair labor practices and asserting certain
affirmative defenses.
Pursuant to notice, a hearing was held at Los Angeles,
California, on April 6 and 7, 1953, before William E. Spencer,
the Trial Examiner duly designated by the Associate Chief
Trial Examiner. The General Counsel, the Respondent, andthe
Union were represented by counsel, who participated in the
hearing and were afforded full opportunity to be heard, to
examine and cross-examine witne sses , and to introduce
evidence bearing upon the issues . The Board' has reviewed
1 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 Murdock, Styles, and Peter-
son].
105 NLRB No. 43.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rulings made by the Trial Examiner at the hearing and
finds that no prejudicial error was committed. The rulings
are hereby affirmed.
On April 7, 1953, the Trial Examiner issued his Intermedi-
ate Report, copies of which were duly served upon the parties. Z
He found that the Respondent had engaged in and was engaging
in the unfair labor practices alleged in the complaint and
recommended that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate
Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has considered the Intermediate Report, the ex-
ceptions and brief, and the entire record in the case. Because
of the nature of the Intermediate Report, we make our own
findings, conclusions, and order, as follows:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent, Foreman & Clark, Inc., a Delaware corpora-
tion engaged in the retail sale of men's and women's clothing,
hats, shoes and furnishings, accessories and related com-
modities, operates 12 retail stores within the State of Califor-
nia, 1 in the State of Washington, and 1 in the State of Missouri.
The Respondent annually purchases for resale in all its stores
commodities valued in excess of $4,000,000, of which com-
modities valued in excess of $3,000,000 are purchased for the
retail business of the Respondent's stores within the State of
California. Approximately 75 percent of the purchases of
commodities for resale in California are direct purchases
made by the Respondent outside the State of California. The
Respondent's annual sales are in excess of $6,000,000, of
which approximately 85 percent is made within the State of
California.
The Respondent admits, and we find, that "the Respondent
is and, at all times material herein, has been engaged in com-
merce within the meaning of the Act."
IL THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, C.I.O., Local
297, is a labor organization within the meaning of the Act.
It admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the representation proceeding
The sole issue in the instant case is whether the Respondent
has refused to bargain collectively with the Union and has
Y The Trial Examiner read his intermediate Report into the transcript of the hearing, The
General Counsel and the Respondent stipulated that "the reading of the report here by the
Trial Examiner shall also be deemed to be a service of the report upon the company and all
parties ,.. " The Union made no objection to this procedure.
FOREMAN & CLARK, INC. 335
thereby violated Section 8 (a) (1) and (5) of the Act. On
January 19, 1953, in Foreman and Clark, Inc., Case No. 21 -
RC-1836, a prior representation proceeding, the Board, pur-
suant to Section 9 (a) of the Act, certified the Union as the
exclusive representative of all employees in the unit described
in the complaint herein as appropriate, for the purposes of
collective bargaining with the Respondent with respect to rates
of pay, wages, hours of employment, and other conditions of
employment. The Respondent admits in its answer that, on or
about February 25, 1953, it refused to bargain collectively
with the Union. In substance, the Respondent raises two
contentions as a defense to its refusal to bargain: (1) The unit
alleged to be appropriate is inappropriate; and (2) the Board's
certification was invalid and of no force or effect, and thus
the Union was not the duly designated representative of the
employees. In support of these contentions, the Respondent
relies on grounds previously asserted by it in the representa-
tion case and which were rejected by the Board as without
merit. In the instant case, the Respondent offered no evidence
in defense not introduced in the representation case and raised
no contention not previously considered by the Board in that
proceeding.' The Board has examined the record in the repre-
sentation proceeding, Case No. 21 -RC-1836, and finds no merit
in the Respondent ' s defenses to its refusal to bargain. We
hereby affirm our rulings, findings, conclusions, determina-
tions, orders , and certification made in the representation
case, and hold that our "Certification of Representatives"
therein was not invalid.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges, the Board found in Case No. 21 -RC-
1836, and we now find for the reasons indicated in our Supple-
mental Decision and Direction of Election in that case,4 that
all employees in the men's and women's alteration depart-
ments at the Respondent's Los Angeles, Long Beach, Hollywood,
Huntington Park, San Diego, Pomona, Burbank, and San
Bernardino, California, retail establishments, including tailors,
bushelmen-fitters, finishers, operators, rippers, andpressers,
excluding all supervisors within the meaning of the Act, con-
stitute an appropriate unit for the purposes of collective
bargaining within the meaning of the Act.
3In the representation case, referred to above, theBoard set aside an election conducted on
April 4, 1952. We hereby affirm this order. As that election was invalid for the reasons set
forth in the Board's Supplemental Decision, Order, and Second Direction of Election, 101
NLRB 40, we find no merit in the Respondent's contention that Section 9 (c) (3) precluded the
Board from directing, on October 21, 1952, the second election which underlies the certifica-
tion in this case. See, for example, NAPA New York Warehouse, Inc., 76 NLRB 840; Central
Swallow Coach Lines, Inc., 82 NLRB 487.
4Foreman & Clark, Inc., 97 NLRB 1080.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the representation case, the Board found "thatthe altera-
tion employees constitute a basically highly skilled , distinct,
and homogeneous departmental group which , in the absence of
any past or present representation on a broader basis, con-
stitutes a unit appropriate for the purposes of collective
bargaining ." Contrary to the Respondent ' s contention , our unit
finding in the representation case was not , and is not now, based
on extent of employee self-organization . By the words , "in the
absence of any past or present representation on a broader
basis ," mentioned above, we referred then, as we refer now,
to the fact indicated in our decision in the representation case,
namely, that the Respondent has never bargained collectively
with respect to the alteration employees on a basis broader
than the unit found to be appropriate.
2. Representation by the Union of a majority
in the appropriate unit
The Union won the second election on January 9, 1953. As
stated above , the Union was certified by the Board on January
19, 1953, as the exclusive representative of all employees in
the above -described appropriate unit for the purposes of
collective bargaining . We have, above , rejected the Respondent's
defense that the Board ' s certification was void and of no force
or effect.
Accordingly , we find that , on and after January 19 , 1953, the
Union was the duly designated bargaining representative of the
employees in the aforesaid appropriate unit and , pursuant to
Section 9 ( a) of the Act , the Union was on January 19, 1953,
and still is, the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages , hours of em-
ployment, and other conditions of employment.
3. The refusal to bargain
As indicated above, the Respondent admits that, on or about
February 25, 1953, it refused the request of the Union to bargain
collectively with the Union. We have, above , rejected the
Respondent ' s defenses that the Union was never the duly
designated collective - bargaining representative of its em-
ployees and that the Board ' s certification in the representation
proceeding was invalid and of no force or effect.
Accordingly , we find that , on February 25, 1953, and at all
times thereafter , the Respondent has refused and is refusing
to bargain collectively with the Union as the exclusive rep-
resentative of its employees in an appropriate unit, in viola-
tion of Section 8 (a) (5) of the Act, and has thereby interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act , in violation
of Section 8 (a) (1) thereof.
FOREMAN & CLARK, INC. 337
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 I, above, have a close, inti-
mate, 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 practices , we shall order that the Respondent cease
and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. Having also
found that the Union represented and now represents a majority
of the employees in an appropriate unit and that the Respondent
has refused to bargain collectively with the Union , we shall
order that the Respondent , upon request , bargain collectively
with the Union.
Upon the foregoing findings of fact and upon the entire record
in the case , the Board makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America , C.I.O.,
Local 297, is a labor organization within the meaning of
Section 2 ( 5) of the Act.
--2. All employees in the men's and women's alteration
departments at the Respondent ' s Los Angeles, Long Beach,
Hollywood , Huntington Park , San Diego , Pomona, Burbank, and
San Bernardino , California , retail establishments , including
tailors, bushelmen -fitters, finishers , operators , rippers, and
pressers , excluding all supervisors within the meaning of the
Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act.
3. Amalgamated Clothing Workers of America, C.I.O.,
Local 297, was on January 19 , 1953, and all times thereafter
has been, and is, the exclusive representative of all employees
in the aforesaid appropriate unit for the purposes of collective
bargaining , within the meaning of Section 9 ( a) of the Act.
4. By refusing on February 25, 1953, and at all times there -
after, to bargain collectively with Amalgamated Clothing
Workers of America, C.I . O., Local 297 , as the exclusive repre-
sentative of its employees in the aforesaid appropriate unit,
the Respondent has engaged in and is engaging in unfair labor
practices , within the meaning of Section 8 ( a) (5) of the Act.
5. By the aforesaid refusal to bargain , the Respondent has
interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (a) (1) of the Act.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. 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 foregoing findings of fact and conclu-
sions of law, and pursuant to Section 10 (c) of the National
Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Foreman & Clark,
Inc., and its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated Cloth-
ing Workers of America, C.I.O., Local 297, as the exclusive
representative of all employees in the men's and women's
alteration departments at the Respondent's Los Angeles,
Long Beach, Hollywood, Huntington Park, San Diego, Pomona,
Burbank, and San Bernardino, California, retail establish-
ments, including tailors, bushelmen-fitters, finishers, oper-
ators, rippers, and pressers, excluding all supervisors within
the meaning of the Act.
(b) In any manner interfering with the efforts of Amal-
garnated Clothing Workers of America, C.I.O., Local 297, to
bargain collectively with it in behalf of the employees in the
aforesaid appropriate unit.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Amalgamated
Clothing Workers of America, C.I.O., Local 297, as the ex-
clusive representative of all employees in the aforesaid ap-
propriate unit with respect to wages, rates of pay, hours of
employment, or other conditions of employment, and if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at each of its retail establishments in Los Angeles,
Long Beach, Hollywood, Huntington Park, San Diego, Pomona,
Burbank, and San Bernardino, California, copies of the notice
attached hereto and marked "Appendix A."6 Copies of said
notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being signed by the Re-
spondent's representative, be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for 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.
s In 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 "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 339
APPENDIX A
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
National Labor Relations Act, as amended , we hereby notify
our employees that:
WE WILL bargain collectively upon request with Amal-
gamated Clothing Workers of America ., C.I.O., Local 297, as
the exclusive representative of all employees in the bar-
gaining unit described below with respect to wages, rates
of pay, hours of employment , or other terms or conditions
of employment and, if an understanding is reached , embody
such understanding in a signed agreement . The bargaining
unit is:
All employees in the men's and women's alteration
departments at the Respondent ' s Los Angeles, Long
Beach, Hollywood , Huntington Park, San Diego,
Pomona, Burbank, and San Bernardino , California,
retail establishments , including tailors, bushelmen-
fitters, finishers , operators , rippers, and pressers,
excluding all supervisors within the meaning of the
Act.
WE WILL NOT in any manner interfere with the efforts
of the above - named union to bargain collectively with us,
or refuse to bargain with said union as the exclusive repre-
sentative of the employees in the bargaining unit set forth
above.
FOREMAN & CLARK, INC.,
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.
LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILER-
MAKERS , IRON SHIP BUILDERS , AND HELPERS OF
AMERICA, AFL : AND JOHN KENNEDY , Its Business Agent
and FRANK H. DONLON, Jr . and THE BABCOCK & WILCOX
CO. Case No . 4-CB-129. June 4, 1953
DECISION AND ORDER
On January 15, 1953, Trial Examiner James A. Shaw
issued his Intermediate Report in the above-entitled pro-
105 NLRB No. 31.