Ludwig Baumann Co.

National Labor Relations Board - Board Decisions

Aug 20, 1953

106 N.L.R.B. 812 (N.L.R.B. 1953)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of the
right to present grievances and to engage in concerted activities for mutual aid or pro-
tection.
WE WILL NOT in any other manner interfere with, restrain , or coerce our employees
in the exercise of the right to self-organization , to form , join, or assist labor organiza-
tions, to bargain collectively through representatives oftheirown choosmg ,, and to engage
in concerted activities for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all of such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer the employees named below immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their seniority or other
rights and privileges previously enjoyed and make them whole for any loss of pay
suffered as a result of the discrimination against them.
Thomas P. Howard
Frank Castagna
C. Edwin Elkins
George Grader
James S. Hogan
Joseph Pedersen
Orvin Tjostolvson
George Peterson
Ernest P. Cagle
James Dreis
Clayton H. Ellis
Harold J. Himmelsbach
Phillip M. O'Neill
W. Stanley Riddle, Jr.
George Weber
WE WILL make whole Orval Dean for any loss of pay suffered as a result of the dis-
crimination against him
All our employees are free to become , remain, or refrain from becoming or remaining mem-
bers of any labor organization
COWLES PUBLISHING COMPANY,
Employer.
Dated.... ...... By. ........ .......... ...........
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
LUDWIG BAUMANN COMPANY and LOCAL 804, DELIVERY
AND WAREHOUSE EMPLOYEES UNION, AFL. Case No.
2-CA-2856. August 20, 1953
DECISION AND ORDER
On May 25, 1953, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices within the meaning of Section 8 (a) (1)
and (5) of the Act and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate
Report and the charging Union filed a brief in reply thereto
and in support of the Intermediate Report.
106 NLRB No. 135.
LUDWIG BAUMANN COMPANY 813
The Board t has reviewed the rulings made by 'the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial
Examiner with the following additions and modification S.2
Local 804, which was certified by the Board as bargaining
agent on November 13, 1952, charges that the Respondent
thereafter refused to bargain with it on demand and thereby
violated Section 8 (a) (5) of the Act. The record shows clearly,
as the Trial Examiner reported, that the Union made the
demand and that the Respondent rejected it. Concededly, the
Respondent refused to honor Local 804's certification be-
cause of the rival claim for recognition by Local 138, which,
to enforce its demand, threatened a widespread strike at
other locations of the Respondent, as well as of other em-
ployers in the industry. The Respondent does not, nor could
it, contend that this rival claim, in the face of the proven
majority status of Local 804, could excuse its conduct. It
argues instead that upon its refusal to accord bargaining
rights to Local 804, that union agreed to withhold its demand
until such time as its jurisdictional disagreement with Local
138 was settled by the executive board of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, the parent organization of the two
locals.
We agree with the Trial Examiner's finding that the record
does not support the Respondent's assertion of a waiver by
Local 804, even for a temporary period, of its bargaining
rights. Our conclusion on this point would be no different
even were it assumed, as the Respondent offered to prove at
the hearing, that at the behest of Local 804 the Respondent
requested the Teamsters International to expedite resolution
of the jurisdictional dispute. Local 804's desire to settle the
disagreement with its sister local and its willingness, in the
interim, to withhold strike action to enforce its own certifica-
tion rights are not inconsistent with the concomitant demand
for current bargaining.
Accordingly, our conclusion here that the Respondent violated
Section 8 (a) (5) is based entirely on the fact that the Union
requested the Respondent to bargain with it, and that the Re-
spondent refused to do so. Our decision is not to be construed
as implying that if Local 804 had in fact agreed tentatively to
await a ruling from its parent organization, the Respondent's
obligation, under the Act, to bargain with the certified repre-
sentative of its employees would be suspended thereby. No
IPursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three-member panel [Members Houston, Murdock, and
Peterson].
Z The Respondent's request for oral argument is hereby denied inasmuch as the record,
including the exceptions and brief, adequately presents the issues and positions of the parties.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question as to the legal consequences, if any, arising from
such waiver is presented in this case.
ORDER
U on the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Ludwig
Baumann Company, New York, New York, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Local 804, Delivery and Ware-
house Employees Union, AFL, as the exclusive representative
of all finishers, cabinetmakers, upholsterers, apprentice up-
holsterers, carpetlayers and stockmen, packers, craters,
porters, and maintenance men employed by it at its Pearson
Street and 38th Street warehouses, Long Island City, New
York, and heretofore represented by Local 32K, Building
Service Employees Union, excluding all other employees and
supervisors as defined in the Act.
(b) Engaging in any other acts in any manner interfering
with the efforts of Local 804, Delivery and Warehouse Em-
ployees Union, AFL, to negotiate for or represent the employees
in the aforesaid unit as exclusive bargaining agent.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request bargain collectively with Local 804, Delivery
and Warehouse Employees Union, AFL, as the exclusive
bargaining representative of all employees in the bargaining
unit described herein 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 its Long Island City plants, copies of the notice
attached to the Intermediate Report and marked "Appendix A." s
Copies of said notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and maintained by it for
sixty (60) consecutive days thereafter in conspicuous places
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered
by any other material.
3This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof the words "A Decision and Order." In the event that
this Order is enforced by a decree of a United States Court of Appeals, the notice shall be
further amended by substituting for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
LUDWIG BAUMANN COMPANY 815
(c) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Decision
and Order, what steps it has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed by Local 804, Delivery and Warehouse Employees Union, AFL,
herein referred to as the Union, the General Counsel of the National Labor Relations Board,
by the Regional Director for the Second Region (New York, New York), issued a complaint
dated February 12, 1953, against Ludwig Baumann Company, hereinafter called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor practices af-
fecting 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, 61 Stat. 136, 29 U. S. C., sub. 1, sec. 141 et
LS., hereinafter referred to as the Act.
With respect to the unfair labor practices the complaint alleged in substance that the
Respondent on or about November 13, 1952, and thereafter, refused to bargain collectively
with the Union as the exclusive bargaining representative of the Respondent's employees
within an appropriate bargaining unit, although a majority of the employees m such unit, in
a secret election conducted under the supervision of the Board on August 25, 1952, had
designated or selected the Union as their representative for the purposes of collective bar-
gaining, thereby interfering with, restraining, and coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
The Respondent's answer duly filed admitted certain allegations of the complaint but denied
the commission of any unfair labor practices.
Pursuant to notice a hearing was held at New York, New York, on April 9, 1953, before the
undersigned Trial Examiner. The General Counsel, the Respondent, and the Union were
represented at the hearing andallpartieswereafforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues. The parties
were given the opportunity to present oral argument before the Trial Examiner and to file
briefs, proposed findings of fact, and conclusions of law. Upon the entire record in the case
and from his observation of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ludwig Baumann Company is a New York corporation with its principal office and place of
business at 500 Eighth Avenue in the City, County, and State of New York. The Respondent
maintains and operates a chain of retail stores in the City of New York as well as a retail
store in the State of New Jersey and a warehouse in Long Island City, New York, herein
called the Long Island City plant. At said plant it has been continuously engaged in the repair,
storage, sale, and distribution of household furniture equipment and appliances, clothing,
and related products. During the year ending December 31, 1952, the Respondent in the
course and conduct of its business operations caused to be purchased, transferred, and de-
livered to its Long Island City plant, household furniture, equipment, and appliances, clothing,
and other products valued in excess of $1,000,000, of which approximately 50 percent was
transported to said Long Island City plant in interstate commerce from States of the United
States other than the State of New York. During the same year the Respondent in the course
and conduct of its business operations caused to be repaired, warehoused, sold, and dis-
tributed at and from its Long Island City plant, products valued in excess of $1,000,000, of
which approximately 5 percent was transported from the Long Island City plant in interstate
commerce to States of the United States other than the State of New York. The Respondent
admits and it is hereby found that it is engaged in commerce within the meaning of the Act.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Local 804, Delivery and Warehouse Employees Union , AFL, is a labor organization ad-
mitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit ; representation by the Union of a majority therein
On July 30, 1952, after the usual proceedings, the Board issued a Decision and Direction of
Election, i in which it found that "all finishers, cabinetmakers, upholsterers, apprentice up-
holsterers, carpetlayers and stockmen, packers, craters, porters, and maintenance men em-
ployed by the Respondent at its Pearson Street and 38th Street warehouses, Long Island City,
New York (Long Island City plant), and heretofore represented by Local 32K, Building Service
Employees Union excluding all other employees and supervisors as defined in the Act," con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act. An election pursuant to said direction was held on August 25, 1952.
Of the 64 employees who participated therein, 61 cast votes for the Union, 2 cast votes for
Local 32K. Building Service Employees International Union, AFL, herein called Local 32K, and
1 ballot was challenged. 2 On August 26, 1952, by direction of the Board, the Acting Associate
Executive Secretary issued an order denying a petition to reopen hearing to present its unit
position filed by Local 32K on the grounds that said Local 32K had an opportunity to present
its position at the hearing on the representation petition but voluntarily withdrew from the
proceeding without stating its position. On August 25, 1952, Local 32K sent the following tele-
gram to the Regional Director: "Re Case No. 2-RC-4405 strenuously object to the conduction
[sic] of the election today and prior to Board's action on intervenor's petition to reopen hearing
heretofore filed with the Board." By letter dated August 26 the Acting Regional Director
acknowledged receipt of the above-noted telegram and stated further: "In addition, please
be advised that you must furnish the Field Examiner handling this matter evidence substan-
tiating your objections within 3 days after receipt of this letter; otherwise the objections may
be deemed to be lacking in merit." On August 29, Local 32K sent the Acting Regional Director
the following telegram: "Re Case No. 2-RC-4405 supplementing our telegram of August 25,
1952, request an extension of time until September 9, 1952, in which to file detailed objections
to the election." This latter request was denied by telegram on August 29, 1952. In spite of
the aforesaid denial Local 32K on September 5, 1952, mailed to the Board in Washington,
to the Regional Director of the Board in New York, and to all other parties interested in the
representation proceedings, a document entitled "Clarification of Objections to Election."
The Regional Director on September 9, 1952, issued his report on objections recommending
that the objections be overruled and that a certification of representatives issue. On Novem-
ber 13, 1952, the Board issued an order overruling objections and certification of representa-
tives, s and certified the Union as the representative of a majority of the employees of the
Respondent in the unit theretofore found by the Board to be appropriate.
The Examiner therefore finds that all finishers, cabinetmakers, upholsterers, apprentice
upholsterers, carpetlayers and stockmen, packers, craters, porters, and maintenance men
employed by the Respondent at its Long Island City plant and heretofore represented by Local
32K, Building Service Employees Union, excluding all other employees and supervisors as
defined in the Act constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act. It is further found that on and at all times after
November 13, 1952, the Union was and now is the duly designated bargaining representative
of all of the employees in the appropriate bargaining unit for the purposes of collective bar-
gaining with respect to rates of pay, wages , hours of employment, and other conditions of
employment.
'Not reported in printed volumes of Board decisions
Z Following issuance of the Board's Decision and Direction of Election, Teamsters Union
Local 138 requested that its name not appear on the ballot, which request was granted by
the Regional Director. -
3 Not reported in printed volumes of Board decisions.
LUDWIG BAUMANN COMPANY 817
2. The refusal to bargain
It was stipulated at the hearing that Respondent is a member of the Furniture Employers
Group, an association consisting of 14 major retail furniture dealers in the City of New York;
that the Furniture Employers Group, its officers, and its counsel, Nathan Math, are empowered
to and act on behalf of its members in all matters of collective bargaining.
The parties further stipulated that on or about November 13, 1952 , following the certification
of representatives by the Board in Case No. 2-RC-4405 , Leonard Geiger, president of the
Union, requested Math on behalf of the Respondent to meet and bargain and that Math stated
he was unable to because he was confronted with a demand for bargaining by Teamsters Union,
Local 138 , and if he sat down to bargain with the Union , the Respondent would be faced with a
strike in its other stores.
The record reveals that the Furniture Employers Grouphas had collective -bargaining agree-
ments covering all of its members with Teamsters Union , Local 138 , for more than 10 or 12
years.
On December 12, 1952, representatives of the Respondent and the Union were requested to
attend a meeting called by the New York State Mediation Board . Paul Tilles, vice chairman
of the Furniture Employers Group, admitted that the purpose of this meeting was to " iron out"
a strike situation imminent at the Respondent 's store.
It appears that the Union was threatening a strike because of the Respondent 's refusal to
bargain with it and that Local 138 was also threatening a strike against members of the
Furniture Employers Group if Respondent bargained with the Union.4
Titles testified that during the course of the meeting at the State mediation board he ad-
vised the union representatives that Respondent would grant to its employees whatever rate
of pay was finally arrived at as a result of bargaining retroactive to June 1952 (the date of
the expiration of the previous contract between Local 32K and the Respondent ). Tilles testi-
fied further that he was asked whether Respondent would recognize employee Zaccarelli as
shop steward of the Union to represent the employees on grievances pending the final out-
come of the "situation ." Tilles replied that Respondent would not recognize Zaccarelli of-
ficially as a representative of the Union but would recognize any employee in the appropriate
unit including Zaccarelli as one who could bring to management 's attention any grievances
that might arise . Titles stated also that his commitments on behalf of the Respondent regard-
ing retroactive pay and the handling of grievances were to continue pending the determination
of the question of jurisdiction between the Union and Local 138 by the Teamsters Interna-
tional.5
It is the Respondent ' s contention that the Union waived its right to bargain temporarily to
await the outcome of the dispute between Local 138 and the Union which was being handled
by the Teamsters International.
While corroborating Tilles ' testimony regarding retroactive pay and the handling of griev-
ances in an unofficial manner, Geiger denied that the Union at any point in the meeting at the
State mediation board came to an understanding with the Respondent that it would not pursue
its right as the certified bargaining representative to bargain until a determination of the
conflict between Local 138 and the Union was made by the Teamsters International. This
testimony was corroborated by Louis Sonschem , organizer and business agent of the Union. I
credit Geiger 's testimony herein.
In January and February 1953 the Union met with Tilles and Math and again requested them
to bargain regarding wages , hours , and working conditions of Respondent's employees which
Respondent refused to do. Tilles admittedly did not attend these meetings for the purpose of
negotiating a collective-bargaining contract with the Union . According to Tilles, the parties
jointly decided that in view of the continuing threatened strike by Local 138 the proper
strategy was to appeal to the Teamsters International to expedite its proceedings.
While it may well be that the parties agreed to contact the Teamsters International as
Tilles testified , nothing was said by Respondent challenging the Union 's right as the certified
4 This finding is based upon a reconciliation of the testimony of Geiger and Tilles.
5 The record in the hearing on the petition for representation reveals that Local 138 applied
to the Joint Council of the Teamsters Union in New York for a determination of the alleged
jurisdictional issue in this matter between Local 138 and Local 804 . The Joint Council re-
fused to pass on the question. Local 138 through its counsel stated it would seek review by
the Teamsters International . There is no showing in the record that the Teamsters Interna-
tional decided the issue up to the time of the hearing herein.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative or in any other manner diminishing the Union's right to
immediate bargaining with the Respondent. The strategy was developed to assist the Respond-
ent outofa dilemma with a view toward avoiding the threatened strike by Local 138.
As found hereinabove, at the State mediation board meeting the Union did not waive its
bargaining rights even for a temporary period. Nor can it be said that any reasonable con-
struction of the above-noted agreement reveals "a clear and unmistakable showing" that
the Union agreed to waive its statutory right as the certified collective-bargaining repre-
sentative. In any event, the Board is the proper forum for adjudicating the issue of waiver of
statutory bargaining rights.
Furthermore, as the Board had occasion to observe in a number of recent decisions,6 "We
are reluctant to deprive employees of any of the rights guaranteed them by the Act in the ab-
sence of a clear and unmistakable showing of a waiver of such rights." The contention that
the Union waived its right to bargain is without merit.
It appears clear that what we are faced with in the instant matter is a situation where the
Respondent feared that if it bargained with the certified collective-bargaining representative,
it would face trouble from Local 138. It is well settled that fear of adverse consequences af-
fords no justification for a violation of the Act.7
Upon the foregoing and the record as a whole, it is found that the Respondent on November
13, 1952, and at all times thereafter, has refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec-
tion 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, occurring 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
Having found that the Respondent has engaged in unfair labor practices, it will be recom-
mended that Respondent cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. For that purpose, it will be recommended that
the Respondent cease and desist from the unfair labor practices found and from any other
acts in any manner interfering with the efforts of the Union to negotiate for or represent the
employees as exclusive bargaining agent in the unit herein found appropriate.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Local 804, Delivery and Warehouse Employees Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The following employees constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act: All finishers, cabinetmakers, up-
holsterers, apprentice upholsterers, carpetlayers and stockmen, packers, craters, porters,
and maintenance men employed by Respondent at its Pearson Street and 38th Street ware-
houses, Long Island City, New York, and heretofore represented by Local 32K, Building
Service Employees Union, excluding all other employees and supervisors as defined in the
Act.
3. Local 804, Delivery and Warehouse Employees Union, AFL, was on November 13,
1952, and at all times thereafter has been, the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
6 Standard Oil Company, 92 NLRB 227; Tide Water Associated Oil Company, 85 NLRB 1096;
Inland Steel Company, 77 NLRB 1, enfd. 170 F. 2d 247 (C. A 7). cert. denied 336 U S. 960.
IN. L. R. B. v. Star Publishing Company, 97 F. 2d 465 (C. A. 9); N L. R. B. v Hudson
Motor Car Company, 128 F. 2d 528 (C. A. 6)
NATIONAL GAS COMPANY 819
4. By refusing on November 13, 1952, and at all times thereafter, to bargain collectively
with Local 804, Delivery and Warehouse Employees Union, AFL, as the exclusive representa-
tive of all its employees in the aforesaid 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 said acts, 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 engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, we hereby notify
our employees that:
WE WILL NOT engage in any acts in any manner interfering with the effects of
Local 804, Delivery and Warehouse Employees Union, AFL, nor negotiate for or rep-
resent the employees in the bargaining unit described below.
WE . WILL bargain collectively upon request with the above - named union as the ex-
clusive representative of all employees in the bargaining unit described below with re-
spect 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. The
bargaining unit is:
All finishers , cabinetmakers , upholsterers , apprentice upholsterers , carpetlayers
and stockmen , packers , craters , porters , and maintenance men employed at the
Pearson Street and 38th Street warehouses , Long Island City , New York, and here-
tofore represented by Local 32K, Building Service Employees Union, excluding all
other employees and supervisors as defined in the Act.
LUDWIG BAUMANN COMPANY,
Employer.
Dated . ............... By..............................................................................................
(Representative ) (Title)
The notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
NATIONAL GAS COMPANY and UNITED GAS, COKE AND
CHEMICAL WORKERS, CIO, Case No. 14-CA-480. August 20,
1953
SUPPLEMENTAL DECISION
On May 27, 1952, the Board issued a Decision and Order in
this case,' finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and directing the
Respondent, among other things, upon request, to bargain col-
lectively with United Gas, Coke and Chemical Workers, CIO,
199 NLRB 273.
106 NLRB No. 136.
322615 0 - 54 - 53