Louis Pizitz Dry Goods Co.

National Labor Relations Board - Board Decisions

Dec 1, 1944

59 N.L.R.B. 719 (N.L.R.B. 1944)

In the Matter of LOUIS PIZITZ DRY GOODS COMPANY and INTERNA-
TIONAL LADIES' GARMENT WORKERS' UNION, A. F. OF L.
Case No. 10-R-1119
SECOND SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
December 1, 1944
On August 16, 1944, pursuant to a Supplemental Decision and Di-
rection issued by the Board on August 8, 1944,1 an agent of the Board
issued a Revised Tally of Ballots, copies of which were duly fur-
nished the parties.
The Revised Tally indicated that, of approximately 39 eligibles in
the voting group, 36 cast valid votes, of which 20 were cast for Inter-
national Ladies' Garment Workers' Union, affiliated with the Ameri-
can Federation of Labor, herein called the Union, and 16 were cast
against said organization 2
On June 29, 1944, prior to the issuance of the Supplemental Deci-
sion, the Union filed Objections to the election, alleging, inter alia,
that "on Saturday, prior to the election, the owners of [the] Com-
pany made speeches in each department, seeking to interfere with
and persuade the alteration workers in the various departments from
voting for the Union," and that "during the week prior to the .. .
election the owners of the store called various employees into the
office and tried to have them withdraw from membership in the
Union ..."
On July 6, the Company filed an "Answer to Objection to Elec-
tion," denying that it made the speech referred to in the Union's
Objections "seeking to interfere with or persuade alteration workers
in voting in [the] election," but admitting that it addressed its em-
ployees as a group prior to the election in the exercise of its rights,
1 57 N. L. R. B. 1174.
2 During the election , the ballots of eight employees were challenged . However, in its
Supplemental Decision , the Board overruled the challenges to the ballots of six employees
and sustained the challenges to the ballots of two employees The Revised Tally designates
the latter ballots as "Unopened Challenged Ballots."
59 N. L. R. B., No. 145.
719
618683-45-vol. 59-47
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telling its employees that the Company "would make no discrimina-
tion should a person desire to join the Union . . ." In addition to
specifically denying all other allegations contained in the Objections,
it asserted, in effect, that (a) a representative of the Union entered
its premises during working hours and threatened employees in at-
tempts to coerce them into joining the Union, (b) employee members,
of the Union threatened other employees with the loss of their posi-
tions if they did not join the Union prior to the election, and (c)
the Union engaged in illegal electioneering in contravention of the in-
structions of the Board agent conducting the election.
On August 17, 1944, subsequent to the furnishing of the Revised
Tally of Ballots, the Company filed an "Objection and Protest of
Election,"alleging therein substantially the same matters it set forth
in its Answer, and requesting that the Board vacate the election.
On August 30, 1944, the Regional Director, having investigated the
matters contained in the Company's Objections, issued and duly served
upon the parties a Report on Objections, finding that (a) the state-
ments made by the union representative to employees on the Com-
pany's premises were "persuasive arguments addressed to [their]
self-interest," (b) the statements of a supervisory employee to sub-
ordinates in an effort to persuade them to join the Union were negated
by the Company's admitted statement of policy, (c) there was no
evidence which indicated that employees desiring union representation
engaged in coercion or threats or other improper action, and (d) the
actions of the union representative in conversing with employees
going to the polls and in standing in front of the polls were not
sufficient to impair the proper conduct of the election. He recom-
mended that the Company's Objections be overruled and the Union
certified.
On September 5,1944, the Company filed Exceptions to the Regional
Director's Report on Objections contending, in effect, that, (a) a
full investigation of the matters contained in its Objections had not
been made, (b) the conclusions of the Regional Director were not
substantiated'by the facts ascertained by hint to be true, and (c) said
conclusions are contrary to law.
On September 15, 1944, the Union filed a Reply to the Company's
Exceptions contending, in effect, that (a) the Exceptions contained
no matters which had not been investigated by the Regional Director,
and (b) said Exceptions did not indicate wherein the Regional
Director erred either as to the law or the facts. In addition, the
Union, in its Reply, renewed "its Exceptions to the ruling heretofore
made with respect to the unit . . ." 3
9 See footnote 1, supra The Union filed no exceptions as such to the Regional Director's
Report on Objections.
LOUIS PIZITZ DRY GOODS COMPANY 721
On September 14,1944,_the Board issued an order directing that
a hearing be held on the Company's Objections and Exceptions.
Thereafter, on October 5, a hearing was held at Birmingham, Ala-
bama, upon due notice before Louis Plost, Trial Examiner. The
Board, the Company, and the Union, appeared, participated; and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues..
'The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board.
Upon the Objections of the Company, the Regional Director's
Report thereon, the Company's Exceptions thereto, and the entire
record in the case, the Board makes the following:
SUPPLEMENTAL FINDINGS OF FACT
The Objections and Exceptions of the Company are premised upon
the_ following incidents :
Cemmie Russell testified that, about a week before the election, a
,representative of the Union "called [her] out" from her place of
work when she was on her lunch hour, and spoke with her in an
areaway. According to Russell's testimony, the union representa-
tive, after being informed that Russell was not interested in the Union,.
told her that "the only way that the working people was going to get
any place was by joining the Union" and when Russell repeated that
she would not join, the union representative said, "Well, you may be
sorry-you will be sorry." Russell further, testified that the union
representative told her that if the Union "got control of the place"
she would lose her job. Mrs. Irvin, the union representative, testified
that she had someone call Russell out while Russell was on her lunch
hour and asked her to join the Union, but denied making statements
to the effect that Russell "would be sorry if she didn't join," and,
that Russell would lose her job if the Union "got control." Irwin
admitted stating to employees that "if they had a union shop in the
store they would have to belong to the Union,"
Matilda James testified that, on the Saturday preceding the election,
an unidentified person 4 approached her while she was entering the
workroom on the Company's premises, and, after a short conversation,
said to her, "I know you are going to vote for the Union and not
against the Union."
We find that the above instances of solicitation do not constitute
such interference as would warrant invalidation of the election. Even.
4 The Regional Director found, without exception being taken , that this person was Mrs_
Irwin
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if it be assumed that the statements were_made to Russell by Irwin,
as Russell testified, the coercive effect of "threats" 5 of this character
must have been dispelled by the subsequent assurances to the em-
ployees made by the management which are hereinafter discussed.
James, Ollie Spencer, Eloise Bailey Mitchell, and Otis Brown testi-
fied that, on the day of the election, while they were standing across
the street from the hotel in which the election was being held, an
unidentified woman crossed the street and said to them, "I know you
are going to vote for the Union, I know you are not going to let us
down." The four witnesses differed somewhat as to the exact language
used by this person but all testified either that she did not identify
'herself as being connected-with the Union, or that they could not iden-
tify her as being so connected. Three of these witnesses, James,
Mitchell, and Brown, testified that, after they had gone to the polling
place, but before they had voted, another person spoke to James in
it similar vein. Apart from the question,of identification, we are of
the opinion that the nature of the conversations clearly indicates that-
there was no impediment to a fair election.
Mrs. B. B. Toney testified that about a day or two before the election,
Alma Parrish, found by the Board to be a supervisory employee,o spoke
to her on the sidewalk; that Parrish asked her to join the Union; and,
upon her refusal, said to her, "Well, you'll be sorry." She further
testified that no one else spoke to her about the Union at any time.
Parrish denied stating to Toney, "you will be sorry." '
Spencer, in addition to testifying with respect to the election day
occurrence, also testified that "quite a while" before the election, while
she was going to lunch, Parrish, her superior, and another lady, who
she believed was the union representative, approached her in the
workroom and asked her to join the Union. She further testified that,
upon her refusal to do so, they did not insist, and that, thereafter, no
one spoke to her about the Union.
Russell also testified that, shortly before the election, a managing
official of the Company' summoned the employees of the Fur Storage
Department to his office and told them "... he was not opposed
to the Union. If we wanted to join, that was all right with him.
... It was up to us." She further testified that he spoke from
a typewritten document, and that this was the first time employees
were called to the office "in that fashion." Parrish confirmed Russell's
testimony, identifying the official as Isadore Pizitz. Spencer testi-
fied that "Mr., Pizitz" read a letter to the employees in the Altera-
tion Department a short time prior to the election, but could not
recall what he said. We believe it evident from the entire record that
5 Cf. 11f. L. R. B. v. Dadourian Export Co ., 138 F. ( 2d) 891 (C. C. A. 2, 1943).
e See footnote 1, Bupra.
' Russell could not remember ' whether it was Louis or Isadore 'Pizitz.i
LOUIS PIZITZ DRY GOODS COMPANY 723
the Company did, in fact, communicate with its employees prior to
the election , and clearly indicated that the employees could vote as
they wished without fear of any discrimination.8
Assuming Toney's version of her conversation with Parrish to be
true, we find that the statements and actions of Parrish were nullified
by the Company's declaration of policy .9
Kenneth Perrine, attorney for the Company , and other witnesses,
testified that, during the balloting , Irwin stood on the sidewalk out-
side the hotel in which the election was being held and talked to a
group of women . He further testified that this conduct was contrary
to the instructions given Irwin and himself by the Board agent in
charge of the election . He admitted that he did not tell Irwin to re-
move herself , and that he himself was in the hotel for at least 6 minutes
after the balloting had commenced . We conclude , under all the cir-
cumstances , that Irwin's conduct on this occasion is insufficient reason
to set aside the election.10 .
We hereby overrule the Company 's Objections and Exceptions, and
we shall certify the Union.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 3, as amended -
IT Is HEREBY CERTIFIED that International Ladies' Garment Work-
ers' Union, affiliated with the American Federation of Labor, has been
designated and selected by a majority of all employees of Louis Pizitz
Dry Goods Company, Birmingham, Alabama, engaged as sewers, fit-
ters , cutters, pressers, and alteration employees in all the sewing and
alteration rooms attached to the merchandising departments in the
Company's department store, excluding all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action , as their representative for the purposes of collective bargain-
ing, and that, pursuant to Section 9 (a) of the Act, the aforesaid
organization is the exclusive representative of all such employees for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, or other conditions of employment.
11 In addition, we note that, in its Answer, the Company admitted that it had spoken to its
employees as a group prior to the election, and had informed them "that [it] would make
no discrimination should a person, desire to join the Union, and that it was the privilege
of each person to do as he sees fit."
9 Cf. Matter of Houston Shipbuilding Corporation, 56 N. L. R. B. 302.
10 See Matter of The National Sugar Refining Company of New Jersey, 4 N. L. R. B. 276.