Gem of St. Paul

National Labor Relations Board - Board Decisions

Jun 16, 1965

152 N.L.R.B. 1639 (N.L.R.B. 1965)

GEM OF ST. PAUL, AND ROGER CLOTHING CO., ETC. 1639
4. The respective Dispatch Hall will furnish each such required competent work-
men entered on its list to the Contractor by use of a written referral and will furnish
such workmen from its listings in the following manner of preference. Selection of
applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be
based on, or in any way affected by, union membership, by-laws, rules, regulations,
constitutional provisions, or any other aspect or obligation of union membership,
policies or requirements.
5. When ordering workmen, the Contractor will give notice to the Dispatch Hall
not later than 2:30 P.M. of the day prior (Monday through Friday), or, in any event,
not less than 17 and one-half hours before required reporting time; and in the event
that, 48 hours after such notice, the Dispatch Hall shall not furnish such workmen,
the Contractor may procure workmen from any other source or sources. If men are
so employed, the Contractor will immediately report to the Dispatch Hall serving the
area in which the workmen are employed, each such workman by name.
6. Workmen employed by the Contractors for a period of eight days, continuously
or accumulatively, within the multiple-employer unit and procured in accordance
with paragraph B, this Article, or procured from other sources eight days after the
effective date of this Agreement , whichever is later, shall become members of the
Union upon terms and qualifications not more burdensome than those applicable at
such times to other applicants to the Union and shall remain members as a condition
of employment.
* * * * * * *
8. Subject to this understanding, the Contractor shall have entire freedom of selec-
tivity in hiring and the Contractor retains the right to reject any job applicant referred
by the Union. The Contractor may discharge any employee for any cause which he
may deem sufficient, provided there shall be no discrimination on the part of the
Contractor against any employee, nor shall any such employee be discharged by rea-
son of any union activity not interfering with the proper performance of his work.
Any dispute under this section may be processed under the grievance procedure.
Gem of St. Paul, and Roger Clothing Co . of St. Paul and Retail
Clerks Union Local 789, AFL-CIO , affiliated with Retail Clerks
International Association , AFL-CIO . Case No. 18-Cf1-1905.
June 16,1965
DECISION AND ORDER
On March 24, 1965, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended that those allegations be dismissed. There-
after, the Respondents filed exceptions to the Decision and a supporting
brief, and the Charging Union filed an answering brief in opposition
to the Respondents' exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
152 NLRB No. 156.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, the briefs, and the entire record in the case, and hereby
adopts the findings, conclusions,' and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondents Gem of St. Paul and Rogers Cloth-
ing Co. of St. Paul, St. Paul, Minnesota, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified :
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2 (b) and those subsequent
thereto being consecutively relettered.
"(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
2. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision.
NOTE.-We will notify the above-named employee if serving
in the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Serv-
ice Act, and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
'In the absence of exceptions, we adopt pro forma the Trial Examiner' s dismissal of
those allegations of the complaint which relate to independent violations of Section 8(a) (1).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed August 14, 1964, and an amended charge filed October 6, 1964,
by Retail Clerks Union Local 789, AFL-CIO, herein the Retail Clerks or the Union,
against Gem of St. Paul 1 and Roger Clothing Co. of St. Paul, herein called Gem,
Roger, and collectively as the Respondents, the General Counsel issued a complaint
alleging Respondents violated Section 8(a)(1) and (3) of the Act.
The answer denied the commission of unfair labor practices.
This proceeding, with all parties represented, was heard by Trial Examiner John
F. Funke at Minneapolis, Minnesota, on December 7, 1964. At the conclusion of
the hearing the parties were given leave to file briefs and briefs were received on
January 21, 1965.2
1 The name appears as amended at the hearing.
9 All motions on which decision was reserved at the hearing are disposed of in accord-
ance with this Decision.
GEM OF ST. PAUL, AND ROGER CLOTHING CO., ETC. 1641
From my observation of the witnesses and upon the entire record , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
The answer admits that Gem operates retail department stores throughout the
United States and that the sales of the St. Paul store are in excess of $500,000 annu-
ally. It also admits that Roger is engaged in the operation of retail clothing stores
throughout the United States, including the store leased from Gem at St. Paul and
that this store purchases merchandise valued in excess of $50,000 annually from
points outside the State of Minnesota. The complaint was amended at the hearing
to allege that the total sales of Roger exceed $500,000 annually and the answer was
amended to admit the allegation.
I find the Respondents are engaged in commerce within the meaning of the Act.
The answer, as amended, also admitted and I find Gem and Roger are joint
employers within the meaning of the Act.
H. LABOR ORGANIZATION INVOLVED
Retail Clerks is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
Sometime in late May 1964,3 the Retail Clerks initiated an organizing campaign
at the Gem store in St. Paul. According to Jerome Richgels, secretary-treasurer, and
Jerome Urban, business agent for the Retail Clerks (their testimony is substantially
identical), the employees were handbilled as they entered and left the store and were
also given authorization cards to sign. (General Counsel's Exhibits Nos. 2 and 3.)
Richgels and Urban obtained membership cards for use at Gem (Gem sells only to
"members") and so gained admittance to the store. On the second visit to the store
the fact that the cards had been issued to them in error was discovered 4 and from
that date until July 30 they were barred admittance to the store. On July 30 the
International issued them stockholders cards which entitled them to admittance and
they were thereafter undisturbed. After July 30 Richgels, Urban, and other orga-
nizers entered the store and visited with employees at the snackbar in efforts to orga-
nize them.
Timothy Dowd was employed by Roger as a salesman in men's clothing from
August 1963 until August 10, 1964. On May 25 he signed an authorization card
with the Retail Clerks and thereafter attempted to sign up other employees. There
is nothing in the record to indicate that his activity was conspicuous except for the
fact that Richgels and Urban testified that when they visited the snackbar after July 30,
Dowd sat with them more frequently and was more open in his discussions with them
than other employees. Urban testified that on one occasion Dowd entered the bar
and sat with them despite the fact that John Hendley, general manager of Gem, and
Math M. Steiner, assistant manager in men's clothing, were seated nearby.5 There
is also testimony that Rose Margolis, department manager for Ross, could have
observed Dowd talking with union organizers on other occasions but this testimony
is far from specific.
Dowd testified that he had had 14 years' experience in the men's clothing business
before coming to work for Gem, that he enjoyed selling men's clothing and that he
had no trouble until the day of his discharge.6 After he signed an authorization card
he attempted to induce other employees to sign. One day during this period (the
time is not fixed) he had returned from the snackbar and Rose Margolis called him
to the cash register. According to Dowd, "she asked me in a nice way just how I
figured that a union would benefit me or any other employee throughout the store."
5 Unless otherwise noted all dates are 1964.
'The error was committed by a clerical employee of Gem who issued the cards to
Richgels and Urban in the mistaken notion that their International Union cai ds were
cards of International Harvester Co, whose employees were eligible for membership
In Gem.
5 The identity of the union organizers was known to Headley who had met them
several times.
6 There was testimony from his coworkers that be was a good salesman and easy to work
with. There was no adverse testimony from his coworkers.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dowd told her he thought there would be better conditions and admitted he was for
the Union.
On August 10 he reported to work and went first to the snackbar as was his custom.
(He started work at noon.) While he was there Mrs. Margolis told him she wanted
to see him before he started work. When he went to her office she took a shopper's
report and asked him to read it.7 (A shopper is a person employed rather generally
in the department store industry. Unidentified, the shopper will pass about the store
observing the work of employees and making reports on what she observes. It is a
form of industrial espionage peculiar to retail stores.) After he read it he handed
it back to Margolis who then told him Mr. Hendley felt he was not very happy with
his work there and that he would be happier elsewhere and that she could not oppose
Gem. She said she would give him excellent references, told him he had always been
reliable and did not drink on the job but that she would have to let him go at that
time This was the only reason given Dowd for his discharge.
Rose Margolis testified that for some time prior to the date of discharge she had
not been satisfied with Dowd's work. Her complaint was that he spent too much
time "in the corner" 8 instead of in the center of the floor. No fault, however, was
found with his sales record. On Monday, August 10, she asked him to see her before
he started work. She gave him the shopper's report as a matter of "formality" and
then told him he did not seem happy with his work. According to Margolis, Dowd
admitted he was not happy and he was told he had better seek other employment .9
Margolis and Dowd had coffee together and Dowd left the store. It was Margolis'
opinion that the termination was by mutual consent,10 an opinion which finds no
confirmation in the testimony of Dowd. Margolis criticized Dowd for ordering
alterations for customers of suits which had to be corrected later (an allegation not
supported by any records or the testimony of the tailor) and stated that other
employees had told her Dowd had expressed an intention of quitting.'1 Since she
did not want to be caught short-handed when the fall buying started she had hired
a replacement for Dowd about August 1 so the decision could not have been a sud-
den one.
Hendley supported the testimony of Margolis that Dowd spent too much time in
the corner of the floor and stated that he expressed this opinion to Margolis. Hendley
did not, however, participate in the decision to discharge Dowd.
Apart from the issue with respect to the discharge of Dowd the General Counsel
alleges that Respondents violated the Act by interrogating witnesses regarding their
union sympathies and activities. Three instances are cited, one of them being the
questioning of Dowd by Margolis referred to above. In addition Math Steiner testi-
fied that Margolis once approached him in the stockroom in the presence of another
employee and asked him if he knew what the union pay was and that he told her he
did not know. She then asked why everybody was so concerned about the union
and he again told her he did not know. Another employee, Virginia Froetschel,
testified that Margolis also asked her what the union scale was and told her it was
funny that the employees wanted a union but did not know what the scale of pay
was or what the union stood for. There are no other allegations of independent vio-
lation of Section 8(a) (1).
B. Conclusions
While Margolis admitted that she knew of union activity in the store shortly after
the Union started its campaign, she denied that Dowd was more active than the other
7 General Counsel's Exhibit No 4 There was almost interminable testimony taken
with respect to this report although it was subsequently established that neither Hendley
nor Margolis considered the report as grounds for discharge. Headley, in fact, stated
that if he discharged employees on the basis of such a report he would have no one work-
ing for him.
8The men's clothing department (suits and overcoats) had been placed in a corner
of the store and there is an inference that Dowd stayed there because he preferred to
sell suits and coats Dowd was not on commission, however, so his earnings would not
be affected by the sale of higher priced goods.
e Margolis testified, "Well, it is better if you find a place you are happy, because you
can't do a good job unless you are happy in your surroundings."
10 This testimony is refuted by that of Math Steiner, assistant manager in men's cloth-
ing, who testified that Margolis told him on August 10 that she had to let Dowd go,
referring to it as a "terrible thing." I credit Steiner.
"Margolis asked Dowd if he intended to quit and stated he did not deny it.
GEM OF ST. PAUL, AND ROGER CLOTHING CO., ETC. 1643
employees. Based on the testimony of the union organizers, which I credit, Dowd
showed less restraint than the other employees in greeting them and talking with
them. I find that of all the employees he was the most readily identified union
adherent.
A primary difficulty with the General Counsel's case is the fact that nowhere can
there be established an animosity on the part of the Respondents toward the Union.
Hendley's speech to the employees shortly after union activity became known was
not only free from coercion, it was neutral. Nevertheless we are confronted with
the fact that Dowd, an experienced clothing salesman without any fault in his record,
was discharged shortly after the union campaign was activated by the admission of
the union organizers to the store and after he had become known as an open advo-
cate. The alleged ground of discharge-that he stayed "in the corner" too much-
is so nebulous as to be insusceptible of proof or disproof. Granting that the case is
wafer-thin, I think the inference that Dowd was discharged because of his open sym-
pathy for the Union finds sufficient support in the record. I credit the testimony of
his fellow-workers that he was a capable salesman (a fact Respondents do not dis-
pute). I credit his own testimony that he received no personal reprimand at any
time. I have also considered the fact that he was discharged without warning or
notice on a Monday morning. While accepting the fact that the Respondents were
obligated to give neither, this is an unusual personnel practice, particularly in a com-
pany of such size. In such organizations personnel practices tend to become formal-
ized and to follow routines and among the formalities generally followed is that of
notice of impending termination. In a case where the evidence and testimony on
both sides is so scant no decision can be free from doubt. Nevertheless I find that
the General Counsel has sustained his burden of proof and that the discharge of
Timothy Dowd was in violation of Section 8 (a) (3) of the Act.12
As to the alleged independent violations of Section 8 (a)( I) it would be little short
of juridical absurdity to hold the three instances of interrogation herein to be coercive.
In each instance the inquiry was free from expressed hostility toward unions, it was
not directed to the employee's membership in or sympathy for the Union and indi-
cated no more than a curiosity on the part of Margolis as to the reasons the employees
might want a union and the benefits it might offer In Bourne v. N.L R.B , 332 F. 2d
47, the court, reversing the Board on this point, suggested the factors which should be
considered in evaluating the coercive nature of interrogation and in so doing has
brought clarification and commonsense to an issue clouded by conflicting and uncer-
tain decisions. Since interrogation is among the most common of all forms of
alleged coercion the Board might do well to adopt the language of the court and
give specific guidelines to its Regional Offices for framing complaints. We have
reached the point where any mention of a union by any supervisor, however minor
and whatever the circumstances, to any employee is incorporated in the complaint
as a violation of Section 8 (a) (1). A substantial part of the workload of the Board
is due to the failure of Regional Directors to distinguish between conversations which
are coercive and those which are not and to throw in, as the saying goes, "the kitchen
sink." 13
The interrogation herein fails to meet four of the five criteria set forth in Bourne.
There was (a) no background of hostility toward the Union; (b) the information
sought was not for the purpose of taking action against any employee but was
general in nature; (c) the interrogation did not take place in an atmosphere of
"unusual formality"; the replies were not untruthful nor indicative of fear.14 Under
13 In reaching this conclusion I have given great weight to the demeanor of Dowd on
the stand. He testified candidly and intelligently and gave the impression of being an
employee with whom an employer would not quickly part. (Dowd's testimony that he
had been told by Hendley that he had been nominated for the "Employee of the Month
Award" shortly before his discharge was uncontradicted.) To make such an appraisal
from a witness ' brief appearance is to invite error but it is by such intangibles that
decisions under Section 8(a) (3) of the Act are influenced. An employer seldom admits
that the discharge was unlawfully motivated and the employee seldom admits that there
was good cause for the discharge.
13 The theory seems to prevail that if the evidence in support of the 8(a)(3) allega-
tions is weak, it will find support by testimony of coercion however weak and uncon-
vincing that testimony, too, may be. The reverse, of course, is true and unfounded
allegations of coercion serve only to cast doubt on the entire case.
14 Steiner and Froetschel both replied that they did not know what the union scale
was when interrogated by Margolis. There is nothing to indicate that these replies were
not truthful nor to show that either was embarrassed by the question.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these circumstances those allegations of the complaint which allege violation of Sec-
tion 8 (a) (1) independent of the discharge of Dowd must be dismissed.
IV. THE REMEDY
Having found that Respondents engaged in and are engaging in a certain unfair
labor practice, it will be recommended that they cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
Having found that Respondents discharged Timothy Dowd in violation of Section
8(a)(3) of the Act, I shall recommend that he be offered full and immediate rein-
statement to his former or substantially equivalent position without prejudice to his
seniority or other rights and privileges. I shall also recommend that Respondents
make him whole for any loss of pay he may have suffered by reason of said discrimi-
nation in accordance with the formula set forth in F. W. Woolworth Company, 90,
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the meaning of the Act.
2. Local 789 is a labor organization within the meaning of the Act.
3. By discharging Timothy Dowd to discourage membership in a labor organiza-
tion, Respondents violated Section 8 (a) (3) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce within the meaning of
the Act.
5. Respondents have not engaged in other conduct in violation of Section 8 (a) (1)
of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondents Gem of St. Paul and
Roger Clothing Co. of St. Paul, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any employee in regard to his hire or other term and
condition of employment to discourage membership in the Retail Clerks or any
other labor organization.
(b) In any like or related manner interfering with, restraining, or coercing their
employees in the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer full and immediate reinstatement to Timothy Dowd to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights and
privileges and make him whole for any loss of earnings he may have suffered by
reason of said discrimination in the manner set forth in that section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the National Labor Relations
Board or its agents all records necessary for the computation of backpay which may
become due under this Recommended Order.
(c) Post at their St. Paul, Minnesota, store copies of the attached notice marked
"Appendix." 15 Copies of said notice to be furnished by the Regional Director of
Region 18 shall, after being signed by representatives of the Respondents, be posted
immediately upon receipt thereof, and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employees are customarily
posted. Respondents shall take reasonable steps to insure that said notices are not
altered, defaced, or covered by other material.
(d) Notify the Regional Director for Region 18, in writing, within 20 days from
the receipt of this Decision and Recommended Order, what steps Respondents have
taken to comply herewith.16
"If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court
of Appeals, the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals, Enforcing an Order" for the words "a
Decision and Order."
16 If this Recommended Order is adopted by the Board, this provision shall he modified
to read: "Notify the Regional Director for Region 18, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
CAMPBELL SOUP COMPANY 1645
It is further recommended that all allegations of the complaint not specifically
found to be violations of the Act be dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES OF GEM OF ST. PAUL AND OF
ROGER CLOTHING CO. OF ST. PAUL
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT fire any employee to discourage membership in Retail Clerks
Union Local 789, AFL-CIO, or any other union.
WE WILL offer Timothy Dowd his job back and pay him for any wages he lost
since he was fired.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
any of our employees in the exercise of their right to self-organization, to form,
join, or assist Retail Clerks Union Local 789, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activity for their mutual aid and protection
as guaranteed by Section 7 of the Act, or to refrain from any and all activity,
except to the extent such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized by
Section 8(a)(3) of the Act as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
All of our employees are free to become, remain, or refrain from becoming or
remaining , members of any labor organization.
GEM OF ST. PAUL and ROGER CLOTHING CO. OF ST. PAUL,
Employers.
Dated------------------- By-------------------------------------------
(Representative of Gem of St. Paul)
Dated------------------- By-------------------------------------------
(Representative of Roger Clothing Co. of St. Paul)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 316
Federal Building, 110 South 4th Street, Minneapolis, Minnesota, Telephone No. 334-
2611, if they have any question concerning this notice or compliance with its
provisions.
Campbell Soup Company and Madeline Ritchey
Butchers Union Local No. 127, Amalgamated Meat Cutters and
Butcher Workmen of North America (AFL-CIO ) and Madeline
Ritchey. Cases Nos. 0O-CA-2780 and 920--CB-1116. June 16,
1965
DECISION AND ORDER
On September 3, 1964, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, recommending dismissal of
the complaint on the grounds that the evidence established that the
charges of Madeline Ritchey were settled by the General Counsel and
counsel for the Union and the Company by informal settlement agree-
ments prior to the issuance of the complaint herein and that further
proceedings in these companion cases would not effectuate the pur-
poses of the National Labor Relations Act, as amended. The Trial
152 NLRB No. 165.