National Shoes, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1953

103 N.L.R.B. 438 (N.L.R.B. 1953)

438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blank decertification forms from a UCW representative. Even after
the filing of the instant petition, the UCW contacted the Employer
and claimed the right to negotiate with the Employer on issues in-
volving the latter's employees. On July 11, 1952, the UCW's regional
office apparently typed a letter for Hodges to the Employer's manager.
In denying that he received assistance from the UCW in the execution
of the petition, Hodges was an evasive and unreliable witness, his
testimony a web of contradictions and confusions.
While no one of the above facts standing alone constitutes clear
proof that the Petitioner is "fronting" for the UCW, I believe that
in the aggregate they give rise to a strong inference of "fronting."
At the very least, the evidence plainly was sufficient to shift to the
Petitioner the burden of going forward with additional evidence to
rebut such inference and to establish the fact that the Petitioner was
acting independently of the UCW.10 This failure to proceed in this
respect may be taken as indicative of an inability to do so. Ac-
cordingly, I find from the record as a whole that the Petitioner is
acting as a "front" for the UCW, and agree with my colleagues that
the petition herein be dismissed.1'
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
10 R. J. Reynolds Tobacco Co ., 83 NLRB 348.
n See Knife River Coal Mining Co ., 91 NLRB 176 ; Hammond Bag & Paper Co ., 94 NLRB
905; Wood Parts, Inc., 101 NLRB 445; N. L. R. B. v. Happ Bros. Co., Inc., 196 F. 2d
195 (C. A. 5).
NATIONAL SHOES, INC., AND NATIONAL SYRACUSE CORPORATION and
UNITED WHOLESALE , RETAIL AND DEPARTMENT STORE UNION OF
AMERICA , CIO, LOCAL 586. Case No . 3-CA-562. March 11, 1953
Decision and Order
On November 25, 1952, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
'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 [ Chairman Herzog and
Members Murdock and Peterson].
103 NLRB No. 58.
NATIONAL SHOES, INC. 439
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, National Shoes,
Inc., and National Syracuse Corporation, Syracuse, New York, their
officers, agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Refusing to bargain collectively with United Wholesale, Retail
and Department Store Union of America, CIO, Local 586, as the
exclusive representative of all employees of Respondents' Syracuse,
New York, retail store, exclusive of the store manager and all super-
visors as defined in the Act.
(b) Taking any unilateral action in derogation of the aforesaid
Union's right to act as the exclusive representative of such employees,
with respect to rates of pay, wages, hours of employment, and other
terms or conditions of employment.
(c) In any other manner interfering with the efforts of the afore-
said Union to bargain collectively with it on behalf of the employees in
the appropriate unit, as their 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 United Wholesale, Re-
tail and Department Store Union of America, CIO, Local 586, as the
exclusive bargaining representative of the employees in the bargaining
unit, with respect to rates of pay, wages, hours of employment, and
other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at their retail store in Syracuse, New York, copies of the
notice attached to the Intermediate Report marked "Appendix C." 2
Copies of such notice, to be furnished by the Regional Director for
the Third Region, shall, after being duly signed by the Respondents'
representative, be posted by the Respondents immediately upon re-
ceipt thereof and maintained by them for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
This notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order ." In the event 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 "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order."
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be taken by the Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, as to what steps the
Respondents have taken to comply herewith.
Intermediate Report
STATEMENT OF THE CASE
The questions for determination herein are :
(1) Is the relationship between National Shoes, Inc., and National Syracuse
Corporation' such that they constitute a single employer within the meaning
of the National Labor Relations Act, as amended, herein called the Act?'
(2) If these firms do not constitute a single enterprise, may jurisdiction be
asserted over National Syracuse Corporation?
(3) Do the facts reveal a refusal to bargain within the meaning of the
Act?
Jurisdiction-Employer
National Shoes, Inc., is a New York corporation engaged in the purchase, dis-
tribution, and sale of shoes and related products. It maintains its principal
place of business in Bronx, New York, and in its own name, operates retail stores
in New York and other States of the United States-25 retail outlets in New
York and 55 in States other than New York. In addition, it distributes shoes
and related products through retail outlets operating under names other than
National Shoes, Inc., one of these being National Syracuse Corporation. In the
course and conduct of its business it uses the trade name "National Shoes."
During the calendar year 1951 National Shoes, Inc., purchased quantities of
shoes, related items, and other materials valued in excess of $2,000,000, of
which in excess of 90 percent was purchased and transported in interstate com-
merce from States of the United States other than the State of New York. All
purchases of National Shoes, Inc., were delivered to its warehouse in the City
of New York and thereafter, as required, deliveries were made by National
Shoes, Inc., from this warehouse to its retail stores and to retail stores of affiliated
companies, including National Syracuse Corporation.
National Syracuse Corporation is a New York corporation having its principal
place of business in Syracuse, New York. It maintains and operates a retail
store in Syracuse, New York, where it engages in the sale and distribution of
shoes and related products under the trade name "National Shoes." Substan-
tially all of the products sold and distributed by this corporation are purchased
by said corporation from National Shoes, Inc., and are delivered to the Syracuse
store from the New York City warehouse of National Shoes, Inc. National
Syracuse Corporation does not receive any deliveries directly from manufac-
turers outside the State of New York. All sales by National Syracuse Corpora-
tion are made within the State of New York.
1 The names of the Employers are hereby amended to conform to the complaint as
amended at the hearing before the undersigned on October 20, 1952.
2 Section 2 (2) of the Act states: "When used in this Act (1 ) The term `person' Includes
one or more individuals . . . corporations , legal representatives , ... (2) The term
`employer ' includes any person acting as an agent of an employer , directly or indi-
rectly, ..."
NATIONAL SHOES, INC. 441
The president and the secretary-treasurer of National Shoes, Inc., organized
National Syracuse Corporation, are its only officers-they hold corresponding
positions in each corporation-and are its only stockholders.
The directors of National Shoes, Inc., and of National Syracuse Corporation
consist of Louis Fried (preside at of both firms), Mac Siegel (secretary-treasurer
of both firms), Irvin Siegel (vice president of National Shoes, Inc.), and Fred
Siegel (vice president of National Shoes, Inc.).'
The labor policy of National Shoes, Inc., is determined by its officers (Louis
Fried, Mac Siegel, Irvin Siegel, and Fred Siegel). The labor policy of sub-
sidiary and affiliated stores, including National Syracuse Corporation, is de-
termined by Mac Siegel.` In addition, a supervisor for both firms (Mr. Brenner),
with Mac Siegel, participates as employer representative in bargaining confer-
ences with the Union concerning employees of the National Syracuse Cor-
poration.
Management of National Syracuse Corporation is in the hands of Mac Siegel
and his assistants-Mr. Jacobs, Mr. Steinberg, and Mr. Brenner. These assist-
ants are paid by National Shoes, Inc., and their headquarters are located in New
York City.
Counsel for the General Counsel contends that the two firms are so integrated
that they constitute a single employer within the meaning of the Act and that
since it is clear that National Shoes, Inc., is engaged in commerce within the
meaning of the Act, this Board has jurisdiction over both corporations. Re-
spondents contend these firms must be treated as separate enterprises, that the
employer involved herein is National Syracuse Corporation, and that it is not
subject to this Board's jurisdiction.
Decisions of the Supreme Court and of the courts of appeals establish that
where the operations of 2 corporations are closely integrated under common
control, and particularly where this integration and control are manifest in
their labor policy, the 2 corporations will be considered a single "joint employer"
for the purposes of the Act. See N. L. R. B. v. Stowe Spinning Co., 336 U. S.
226, 227, N. 2; N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261, 263,
enforcing 1 NLRB 1, 43-44; N. L. R. B. v. Wentworth Bus Lines, 191 F. 2d 849
(C. A. 1), enforcing 92 NLRB 1356; N. L. B. B. v. Somerset Classics , 193 F. 2d 613,
615 (C. A. 2) ; N. L. R. B. v. 1)on Juan, Inc., 178 F. 2d 625, 627-628 (C. A. 2),
enforcing 79 NLRB 154, 155; N. L. R. B. v. Condenser Corp., 128 F. 2d 67, 71-72
(C. A. 3) ; N. L. R. B. v. Federal Engineering Co., 153 F. 2d 233, 234 (C. A. 6) ;
N. L. R. B. v. Swift & Co., 127 F. 2d 30, 32 (C. A. 6). See also Hutchinson & Co.,
et al., 101 NLRB 90. Tested by the principles established in these cases it
appears, and the undersigned finds, that Respondents, National Shoes, Inc., and
National Syracuse Corporation, constitute a joint employer for the purposes
of the Act.
Since the two corporations may properly be considered as a single employer
for the purposes of this proceeding, it follows that the facts establishing that
National Shoes, Inc., is engaged in commerce within the meaning of the Act
establishes the jurisdiction of this Board over both corporations.'
6 Mac, Irvin, and Fred Siegel are brothers.
4 As hereinafter sometimes noted ( but more fully evidenced in the record ), the labor
policy concerning National Syracuse Corporation is handled in such a fashion that the
name of this organization and that of National Shoes, Inc., is used interchangeably.
6In view of the foregoing, no determination is made herein as to whether National
Syracuse Corporation operations , when viewed separately , fall within the orbit of the
Board 's authority , which extends to "the full reach of the constitutional power of Con-
gress." Polish National Alliance v. N. L. R. B., 322 U . S. 643 , 647-648.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chronology Merits 6
By letter dated July 6, 1951, the Union requested Respondents to bargain
collectively in respect to the rates of pay, wages, hours of employment, and other
conditions of employment of employees in the aforementioned unit.
On July 18, 1951, the Union filed a petition for certification in Case No.
3-RC-796.
On or about August 9 or 10, 1951, John J. Maurillo, regional director of the
CIO, conferred in the office of Conrad and Smith in New York City with Jacob
1. Smith, Respondents' attorney, and with Mac Siegel. At this meeting Respond-
ents' representatives agreed to recognize the Union and discussed various terms
and conditions of employment concerning employees in the unit involved herein.
Maurillo sought a contract similar to the contract then in existence between the
Union and one of Respondents' competitors in Syracuse, New York (A. S. Beck
Shoe Company). The parties, without benefit of a copy of this contract, then
discussed various terms of this contract as it would affect the Syracuse store
of Respondents. It was agreed that, in general, the terms of the A. S. Peck
contract and especially the terms concerning holidays, vacations, union security,
grievance procedure, sick leave , and pensions would be made applicable to the
Syracuse store of Respondents . The parties also discussed wages and reached
a tentative agreement with respect to a wage scale ($49 per week for shoe sales-
men, $33 per week for the salesgirl, and $30 per week for the porter). In the
contract being discussed the parties anticipated referring to two types of work-
ers-verified full-time workers and extra workers-and contemplated attaching
to the contract as an appendix a list of the verified full-time workers. At this
conference it was agreed that further consideration would be given to naming
the persons who were to be listed as verified full-time workers. This meeting
ended with an agreement that the same individuals would meet again at the
same place on August 28, 1951, and that meanwhile Maurillo would send Smith
a copy of the A. S. Beck contract.
On or about August 10, 1951, a jurisdictional dispute arose between United
Wholesale, Retail and Department Store Union of America, CIO, Local 305 and
the local involved herein concerning the employees in Respondents ' Syracuse
store . On or about August 24, 1951, this dispute was resolved in favor of the
local involved herein, and Maurillo , Smith , and Seigel again met in the office
of Conrad and Smith in New York City on August 28,195V
At the August 28 , 1951 , meeting the parties discussed, inter alia, hours of work
and agreed upon a 40-hour workweek and time and one-half for work in excess
of 40 hours. The parties also agreed, after discussion, that verified full-time
workers would be given preference in the assignment of overtime work. The
parties again tentatively agreed upon a wage scale (same as set forth above)
which was to be incorporated into the contract when drawn unless Respondents
indicated opposition thereto prior to the drawing of the contract. The parties
also agreed on vacation pay of basic wage plus $12.50 per week for shoe salesmen,
$7.50 per week for the salesgirl, and no additional salary for the porter. An
6 There Is no issue herein concerning and the evidence reveals and the undersigned finds :
(1) All employees of Respondents employed at the Syracuse, New York, retail store, exclu-
sive of the store manager and all supervisors as defined in Section 2 ( 11) of the Act,
constitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 of the Act ; and (2 ) at all times material herein the United Wholesale , Retail
and Department Store Union of America, CIO, Local 586, herein called the Union, repre-
sented a majority of the employees in the aforementioned unit.
7 By letter dated August 23, 1951, Smith wrote Maurillo confirming a postponement of
the August 28, 1951, meeting pending resolution of the jurisdictional dispute and cap-
tioned this letter "Re: National Shoes, Inc."
NATIONAL SHOES, INC. 443
agreement was also reached concerning holidays, the establishment of a pension
fund, a grievance procedure, and sick leave. At the conclusion of this meeting
the parties were in complete agreement concerning the terms to be incorporated
in a written instrument, with the exception noted above with respect to the wage
scale and with the exception of the specific individuals to be listed as verified
full-time workers." This meeting (the meeting of August 28, 1951) ended with an
agreement that Smith would reduce the agreements reached to writing and mail
the contract to Maurillo within the next few days.
By letter dated August 29, 1951, Maurillo advised Smith :
Dear Mr. Smith :
In checking over the A. S. Beck contract, the only change from the copy
I have already given you is indicated in the attached copy.
This will complete the total contract. I have not heard from you this
morning so I assume that the wage question you talked over with Mr. Seigel
has been settled satisfactorily. It will be two dollars over the wages now
being paid in Gloversville and Troy areas, which is $49.00.
Please advise.
No response to this letter was received by the Union until September 17, 1951.
On that date Smith telephoned Maurillo and advised that drafting of the agree-
ment had been delayed by pressure of other work and by his (Smith's) vacation
but that it would be forthcoming. Smith told Maurillo the wage scale ($49 per
week for shoe salesmen) and other terms were all right. On the same date (Sep-
tember 17, 1951) Maurillo wrote the National Labor Relations Board "enclosing
withdrawal request of our petition [Case No. 3-RC-796] as the company met and
negotiated a contract with our union."
By letter dated October 5, 1951, Maurillo wrote Smith :
Dear Mr. Smith :
I am still awaiting to hear from you and receive the contract, as has
already been agreed.
I can appreciate that you are busy, but I must insist that you give this
matter your immediate attention, as some problems are arising among the
employees in the store and the receipt of the contract would clear up my
problems.
Please let me hear from you.
"A day or two after October 5th" Maurillo telephoned Smith and was advised
by Smith that "the only reason why I [Maurillo] hadn't the contract was because
he [Smith] couldn't find the time to prepare one and send it to me." Smith also
indicated "there was some questions coming up now" and when asked, "What are
the questions?" stated, "Well, nothing important. I will get in touch with you."
Maurillo said, "Why don't you send me the contract? If there are some things
you want to change, write me. Do something. I can't even get a letter from
you." Smith replied : "You know how it is, we are just busy down here and that
is the reason."
On or about November 29, 1951, the Union filed with the National Labor
Relations Board a charge attacking Respondents' refusal to bargain [Case
No. 3-CA-494].
During the latter part of November or the first part of December 1951 Respond-
ents unilaterally (without consulting or advising the Union) raised the wages
of the employees in the unit here involved (of the shoe salesmen to $50 per week).
8 It was agreed that a contract, without the appendix listing the verified full-time
workers, would be drawn and executed within the next few days and that at a subsequent
date (approximately 3 months hence ) this appendix would be worked out and incorpo-
rated into the contract.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Through the efforts of the National Labor Relations Board the parties (Mau-
rillo, Smith, and Mac Siegel) again met in New York City on or about February
7, 1952. At this conference Maurillo stated that the prior agreement regarding
the wage scale was not now satisfactory since, in the interim, Respondents had
raised wages (to $50 per week for shoe salesmen) so that the present wage scale
was higher than that previously negotiated ($49 per week). The parties nego-
tiated a new wage scale ($54 per week, plus 1 percent commission for shoe sales-
men and $33 per week for the salesgirl for the first 6 months and $35 per week
thereafter). The parties also confirmed all previous agreements and arrived at
an understanding that their agreements would be made effective as of a date no
later than March 1, 1952, regardless of when the contract was reduced to writing
and signed. Maurillo requested something in writing indicating Respondents
were recognizing the Union and would make the terms of their agreement effec-
tive no later than March 1, 1952. He (Maurillo) was given a letter dated Feb-
ruary 7, 1952, stating :
DEAR MR. MAURILLO : This will confirm our conversation of today as follows :
1. We recognize Local 586, Retail, Wholesale and Department Store Work-
ers Union, CIO, as the exclusive bargaining agent for the employees of our
Syracuse Store, except the manager.
2. We will mutually endeavor to negotiate an agreement with respect to
wages, hours and conditions of employment at the store, with the under-
standing that negotiations will be carried on in Syracuse at the earliest pos-
sible mutually convenient date, and that any understanding arrived at will
be made effective as of a date no later than March 1, 1952.
Very truly yours,
NATIONAL SYRACUSE CORP.,
By Mac Spiegel.
This meeting (the meeting on February 7, 1952) ended with an understanding
that another meeting would be held "the following week or within a few days"
in Syracuse, New York, at which a representative of Respondents (Mr. Stein-
berg) would be available to review the negotiations with union representatives
from the Syracuse store and that prior thereto Smith would reduce to writing
the agreements reached and mail the contract to Maurillo.
Because of the failure of Respondents to take action, Maurillo by letter dated
February 22, 1952, advised Smith :
DEAR MR. SMITH : It has now been two weeks since I saw you last, and
you were going to mail me a copy of the agreement within a few days. As a
matter of fact Mr. Steinberg was to be in Syracuse last week to start nego-
tiations on the contract officially. None of these things have been done.
The men in the store are again questioning the sincerity of the company
and in spite of the fact that I assure them there may be good reasons for it,
there is still a lot of room for doubt. I feel that it is time you kept your
commitments made to these people.
I therefore want you to advise me the date I can expect someone here
for negotiations and at the same time send me a copy of the proposed agree-
ment for study.
Despite Respondents' failures to take affirmative action, Maurillo expected
a written contract from them and, accordingly, on February 22, 1952, wrote the
National Labor Relations Board a letter withdrawing the charge in Case No.
3-CA-494.
NATIONAL SHOES, INC. 445
Within a few days after February 22, 1952, Smith telephoned Maurillo and
advised him Mr. Brenner was available for a discussion in Syracuse and a
meeting was scheduled for March 11, 1952.
On March 11, 1952, Brenner, Maurillo, and Harry Ball, an employee from
the Syracuse store, met and conferred in Maurillo's Syracuse office. They dis-
cussed the agreements reached in New York City and Brenner affirmed the
various commitments by Respondents. The meeting ended with a suggestion
from Brenner that Maurillo prepare the contract and mail it to Smith because
Smith seemed to be very busy and couldn't find time to draft it, and an assurance
from Brenner that Respondents would execute the contract and return it.
Within a few days after the March 11, 1952, meeting Maurillo drafted a
contract and on March 17, 1952, sent four copies thereof to Smith with a
request that they be executed and returned.
On April 18, 1952, Smith telephoned Maurillo and discussed the contract
which Maurillo had mailed to him. It was a long conversation and at Maurillo's
request Smith wrote a letter of confirmation. This letter, on stationery of
National Shoes, Inc., was dated April 18, 1952, and stated :
DEAR MR. MAURILLO : As per our telephone conversation, kindly correct the
following items in the contract submitted to us:
Article 7.-The 1 percent of sales does not apply to cashiers or female
sales people.
Selling Assistant Manager's salary is not to be identified in the contract
as we maintain a $4 differential between assistant and regular!
Article 20.-"Overtime"--We are not in accord with your idea of first
preference as we feel other employees have the same right for employ-
ment 10
Article 9.-Referring to "additional vacation pay," the upstate area stores
have an arrangement whereby the salesmen are granted $5 per week and
salesgirls $3 a week during their vacation period. This only applies to the
salespeople."
• Article VII of the contract stated :
(a) All regular verified shoe salesmen shall receive fifty-four (54) dollars per
week. All steady extra salesmen working twenty (20) hours per week or more, shall
be paid at the rate of fifty-four ($54.00) dollars per week. Cashier and salesgirl,
first six ( 6) months shall receive thirty -three (33) dollars per week; after the first
six (6) months, thirty-five ($35.00) dollars per week. Stock boy and porter shall
receive seventy-five (75¢) cents per hour. Extra part time salesmen shall receive
eight (8) dollars per day. Night part time extras shall receive four (4) dollars per
day. Extra salesgirls shall receive seventy-five (75¢) per hour. In addition to the
above salaries , salespeople shall receive one (1 ) per cent commission on all sales,
plus P. M.'s, etc. Selling assistant Manager shall receive sixty-five ($65.00) dollars
per week, plus (1%) one per cent commission.
(b) The minimum wage scales as herein fixed and the present wages of any worker
earning in excess of such minimum wage scale shall not be reduced during the life
of this agreement, except as otherwise expressly provided.
(c) No salesman or saleswoman shall be required to pay for stock shortages. All
workers handling cash shall be responsible for cash shortages.
10 Article XX of the contract stated :
At such times as when the store shall be opened at hours over and above the
regularly scheduled normal work day, or work week, the verified employees shall have
first preference to over-time work before new employees are hired.
u The pertinent portions of article IX of the contract stated :
(c) Shoe salesmen are entitled to vacations under provisions of sub -division (a)
of article IX, to such vacation to which he is entitled , an amount equal to his base
pay, plus twelve dollars and fifty cents ($12.50).
(d) All selling employees other than shoe salesmen entitled to vacations under
subdivision "(a)" of this article "I%" shall receive for each week of vacation to
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We would like to call your attention to the fact that the word "shoe sales-
women" should be deleted as it does not apply to our type of operation at this
time. [Article 2 refers to "shoe saleswomen."]
Article 6, para. A.-This doesn't constitute our understanding. The 40
hour week is the basis of the work week and any time worked beyond the
first 8 hours in any one week would then be paid at time and a half. This
type of arrangement is actually beneficial as it encourages the supervisor
to employ those people that are presently employed for any extra time if it
becomes necessary. Otherwise, the supervisor would employ outside help
at straight time. Our intention, therefore, is to give our own employees
the maximum of work to increase their income."
Article 17.-This was not discussed and should be held in abeyance. We
have no intention of instituting any pension fund since you, in your union,
have no such pension fund set-up.'n
I am going through these matters rather quickly as we know you are
anxious to get it cleaned up. If you will be good enough to conform the
contract to these suggestions, we see no reason for the matter not to be
concluded immediately.
Kind personal regards.
Yours very truly,
NATIONAL SHOES, INC.,
MAC SIEOEL, Secy.
In the telephone conversation with Smith on April 18, 1952, Maurillo told
Smith the 1 percent of sales for all salespeople, in article 7, was an error and
could be deleted. Maurillo reminded Smith that the parties had agreed that the
selling assistant manager was to receive $65 per week and stated that this was
the first time Respondents had raised "the question of a $4 differential between
regular selling employees and the Assistant Manager." Smith's reply is not
reflected in this record. Concerning article 20-overtime-Smith stated that if
an agreement could be reached on the other changes suggested this article-
which such employees may be entitled an amount equivalent to their weekly base pay,
plus Seven and 50 /100 ($7 .50) Dollars.
(e) All non-selling employees who shall be entitled to vacations under subdivision
"(a)" shall receive for each week of vacation to which such non-selling employee may
be entitled an amount equivalent to their then weekly base pay plus Six ($6.00)
Dollars.
Article VI paragraph (a) of the contract stated:
(a) Forty (40) hours per week shall constitute a regular work week. A day's
work shall constitute eight (8) hours except that the employer shall have the right
to divide a week's work into a six day week and work the employees less than eight
(8) hours per day, and in this case, all employees who work beyond their regularly
scheduled hours in each day or in any week in excess of forty (40) hours, shall receive
time and one-half.
18 Although the letter refers to article 17, the paragraph of the contract dealing with
"Pension fund payments" is numbered XVIII and states :
The regular full time verified employees covered by this agreement shall be entitled
as of March 1, 1952 to payments at the rate of Eight ($8.00) Dollars per month,
into a pension fund to be established by the Union, it being expressly agreed, how-
ever, that there shall be no obligation on the part of the Employer to make any con-
tribution to such pension fund unless the same or the agreement covering the same
will be approved by the Bureau of Internal Revenue under the terms of which the
payments to be made by the Employer will be deductible as an expense of the Em-
ployer for tax purposes, in the year in which same is paid or accrued, and provided
that such payments are not violative of any statutes, rules and regulations governing
wage and salary stabilization.
NATIONAL SHOES, INC. 447
article 20-as written would be acceptable . On the question of vacation pay-
article 9-Smith said "he couldn 't remember what the agreement was" ; that
he wanted "an opportunity to talk to Mr. Siegel about that again." Smith
and Maurillo agreed to delete the words "shoe saleswomen" since none was em-
ployed in the Syracuse store . Smith indicated that during April 1952 the retail
stores in Syracuse changed their hours so that they now worked Monday and
Friday evenings instead of just Monday evenings , and that because of the cost
involved he was insisting that article 6 of the contract be revised [as indicated
in Siegel's letter] . Smith denied that an agreement had been reached concerning
a pension fund and stated that "since the local union had no set-up for a
pension" Respondents would not agree to provisions similar to those in article 17
of the contract . Maurillo insisted the contract reflected the agreement of the
parties. They were not able to reconcile their differences.
By letter dated April 21, 1952 , Maurillo wrote Mac Siegel , " Secretary National
Shoes, Inc.," requesting the Respondents to delete from article 7 the reference to
1 percent sales for employees other than salesmen and as thus revised to execute
and return the contract previously submitted and failing that, to confer "no
later than April 29, at 10 a. in." in Syracuse. Copy of this letter is attached
hereto as Appendix A.
On April 29 , 1952 , Smith telephoned Maurillo and stated that the following
day he ( Smith ) and Siegel would call him (Maurillo ) to discuss the contract
submitted by Maurillo and the items listed in Siegel 's letter of April 18, 1052.
The following day (April 30) the parties , via telephone , discussed these matters
but did not come to an agreement concerning them.
On May 5, 1952 , the Union , through Maurillo , filed the charge involved herein.
Through the efforts of a representative of the National Labor Relations Board,
the parties ( Smith and Siegel for Respondents and Maurillo and Ball for the
Union ) met in Syracuse on July 23, 1952. At this meeting the parties discussed
the subjects raised in Siegel 's letter of April 18, 1952. They agreed to delete
the erroneous reference to the 1 percent sales commission ; agreed upon a $4
differential between assistant and regular sales managers ' salaries ; agreed to
leave the overtime provisions as set forth in the contract submitted by the
Union ; agreed to the vacation pay provisions of the Union 's contract ; agreed to
delete the reference to "shoe saleswomen" ; agreed upon a workweek (a com-
promise and agreement upon a 40-hour workweek with an additional 4 hours at
regular pay) ; and agreed to delete all reference to a pension program and
consider this matter ( pension fund ) the following year . At the conclusion of
this meeting Smith said he would draft a contract incorporating their under-
standings and send it to Maurillo for signature.
In August 1952 Respondents unilaterally ( without consulting or advising the
Union ) raised the wages of Bernard Friedman , a salesman , from $50 to $55
per week.
On or about September 17, 1952, Smith sent Maurillo three copies of a proposed
contract together with a covering letter . The letter is attached hereto as Ap-
pendix B. Upon receipt of these documents Maurillo called upon Smith in New
York City. At this conference , on September 22, 1952, Smith for the first time
raised a question concerning the "starting wage for new employees" and sought
a $40 per week wage scale instead of the $54 provided for in the Union's draft of
the agreements . ( The contract drafted by Smith states the wage scale shall be
as set forth in an appendix . This appendix was not sent to Maurillo . See Ap-
pendix B.) Maurillo indicated he would agree that new employees could be
paid a starting wage of $40 or $45 per week for 60 days and thereafter the
regular rate This information was telephoned to Siegel but Siegel insisted
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the starting rate for "at least a year." Maurillo refused to accept these
terms and accused Respondents of raising this issue at this late date merely
for the purpose of disrupting the agreements already reached. The contract
submitted by the Respondents did not contain provisions making it retroactive
to March 1, 1952," and when Maurillo raised this point Smith insisted that such
retroactive provisions be not applied to the wages of employees whose services
had been terminated after March 1, 1952. Maurillo refused such a revision and
sought, unsuccessfully, the terms previously agreed upon (see, inter alia, the let-
ter dated February 7, 1952, given to Maurillo on that date). At this confer-
ence Smith also sought a revision of the union-security provisions of the con-
tracts so as to provide for recruitment of employees through the Union. Iaurillo
protested such revisions contending that they amounted to closed-shop provisions
with a hiring hall and were illegal. Upon Smith's insistence that these revisions
be made, Maurillo stated he was "getting nowhere fast" and left the meeting,
with a comment that he was going "to tell the Board to proceed with the charge"
(filed May 5, 1952).
On September 23, 1952, Maurillo telephoned Smith and asked him whether
Respondents had changed their "thinking" about the matter "we had discussed
the previous day" and Smith said, "No."
On September 24, 1952, the complaint herein was issued together with a notice
of hearing scheduling this matter for hearing on October 20, 1952. The hearing
was held as scheduled.
Conclusions as to Bargaining
A careful review of the record convinces the undersigned that Respondents'
participation in the bargaining negotiations with the Union lacked the element
of good faith which is the essence of the collective-bargaining obligation.
Although on and after August 8 or 9, 1951, Respondents met with the Union
on several occasions and considered the Union's contract proposals and sub-
mitted counterproposals of their own, Respondents did not enter into the discus-
sions with an open and fair mind and with a sincere purpose to find a basis of
agreement touching upon wages, hours, and conditions of employment 11 It is not
enough to fulfill the obligation to bargain that an employer meet and negotiate
with a union. The Act requires that bargaining shall be conducted in complete
good faith-"with an open mind and a sincere desire to reach an agreement in
a spirit of amity and cooperation." (See N. L. R. B. v. Reed and Prince Mfg. Co.,
118 F. 2d 874, 885, cert. den. 313 U. S. 595.) Although the Act does not compel
agreement, it does require the parties to enter into the negotiations with a sincere
desire to reach and sign an agreement. It is believed that the facts outlined
above reveal a purpose to defeat and obstruct bargaining and that Respondents'
"efforts at bargaining were not real efforts but were shadow boxing to a draw."
See Stonewall Cotton Mills v. N. L. R. B., 129 F. 2d 629, 631 cert. den. 317 U. S.
667, and N. L. R. B. v. Whittier Mills Co., 111 F. 2d 474, 478.
The general tenor of the evidence is that Respondents went through some of
the motions of collective bargaining without any intention to facilitate an early
and successful completion of the negotiations, but merely to preserve the appear-
14 It states : "Article XX . Terms of Agreement . This agreement shall be effective as
of and shall terminate at the close of business on .11
11 It is believed that the activities of Respondents ( outlined above ) occurring on and
after November 7, 1951, i. e, those activities falling within 6 months of May 7, 1952,
when the charge was served on Respondents , by themselves , as well as when viewed
against the background of events occurring before November 7, 1951, establish that
Respondents refused to bargain within the meaning of the Act.
NATIONAL SHOES, INC. 449
ante of bargaining and at the same time avoid making a contract. Respondents'
lack of good faith is evidenced by their vacillation concerning their commitments
and by their repudiation of prior agreements. It is apparent from the facts out-
lined above that the parties near the beginning of their negotiations reached
mutually satisfactory understandings, and that thereafter Respondents wavered
with respect to some of their commitments, injected additional, though not new,
problems with respect to some, and repudiated others. Respondents' unreasonable
delays in attempting to meet their commitments-in scheduling conferences and
in drafting the contract-is the antithesis of a good-faith endeavor to facilitate
an early and successful completion of the negotiations. Respondent's failure and
refusal to incorporate in a contract terms which they knew the Union considered
vital and which the parties had agreed upon (the retroactive clause) is the nega-
tion of good-faith bargaining.
The statutory bargaining obligation not only imposes the affirmative duty to
bargain collectively upon request, but in a negative sense requires the employer
to abstain from undercutting the designated bargaining representative by direct
dealing with individual employees and unilaterally changing terms and condi-
tions of employment. Respondents' unilateral action in increasing the pay of
employees constituted a denial of effective participation by the bargaining repre-
sentative in wage determinations and constituted, per se, a violation of Respond-
ents' duty to bargain (see Medo Photo Supply/ Corp. v. N. L. R. B., 321 U. S. 678,
and N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U. S. 217).
In view of the foregoing, and upon consideration of the record as a whole, it
is found that on and after November 7, 1951, Respondents refused to bargain
collectively with the Union and thereby interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (a) (5) and (1) of the Act. It is further found that these
unfair labor practices, occurring in connection with the operations of Respond-
ents, 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.
The Remedy
Since it has been found that Respondents have engaged in unfair labor prac-
tices, in order to effectuate the policies of the Act, it is recommended that Respond-
ents take the action hereinafter specified.
[Recommendations omitted from publication in this volume.]
Appendix A
April 21, 195.
MR. MAX SIEGEL, Seoretary
National Shoes, Inc.
595 Gerard Ave., Bronx 51, New York
DEAR MR. SIEGEL : In answer to your communication of April 18, I wish to
state that it is my understanding since my first meeting with you, and since the
second conference held in Syracuse, between Mr. Brenner and myself, together
with one of the members of the committee, that we had come to a full under-
standing on all provisions of our contract. That understanding has been re-
duced to writing and has been submitted at your request, in the form of a contract,
to you.
Outside of the clerical error in Article 7, dealing with the 1%%o of sales in ref-
erence to cashiers and female sales people, all other items in the contract are
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as already previously agreed to. I therefore, request you delete from Article
7, the part dealing with 1% sales for female sales people and cashiers and
sign the contract as submitted, return it to this office.
If you find that you cannot do so, and wish to discuss this further, I suggest
that, no later than April 29, at 10 A. M., that we meet here in Syracuse, and
hold a conference between the negotiating committee and yourself. I urge that
you attend this conference yourself and that you do not again send any other
person to do this job.
A meeting was held here this morning, and I need not tell you the result of
this meeting, as the boys in the store are very upset over the changes that you
are making, and requesting, over their previous agreement and they will not
hear of any changes.
Hoping you see your way clear to sign this contract and settle this, I am,
Yours truly,
JOHN J. MAURII.Lo
010 Regional Director
Appendix B
September 17th,, 1952.
Mr. JOHN J. MAURILLO,
010 Regional Director, United Wholesale, Retail and Department Store
Union of America, CIO, Local #586, 414 Empire Building, Syracuse 2,
New York
Re : National Syracuse
Dear John,
I enclose herewith proposed National Syracuse contract.
I have not attached the schedule of verified workers as I understand that
there have been considerable changes since the last list I had. Please get up
such a schedule.
I have not attached Schedule "B" (wages) because I mislaid my memorandum
and I did not want to make an inadvertent mistake. As I understand it, the
only difference was as to the assistant manager, as to which it was agreed that
the wage differential over the certified regular shoe salesmen is $4.00 per week,
subject, of course, to the second sentence of Article "VII". Please get up a
schedule from your notes.
You will also find blanks in Articles "XVIII" and "XXI" which you should
be able to clear up with Mac Siegel over the telephone in very short order.
After these details are concluded, we will arrange for signature and exchange
of the signed copies.
Sincerely yours,
JIS:RSF
Enes.
CC: WILLIAM MAIMARK, ESQ.
National Labor Relations Board,
350 Ellicott Square Building,
Buffalo, New York.
Appendix C
NOTICE To ALL EMPLOYEES
JACOB I. SMITH.
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 :
NEUHOFF BROS., PACKERS 451
WE WILL, upon request, bargain with UNITED WHOLESALE , RETAIL AND
DEPARTMENT STORE UNION OF AMERICA , CIO, LOCAL 586, as the exclusive rep-
resentative of all employees in the bargaining unit described below with
respect to wages, rates of pay, hours of employment , and other conditions of
employment, and if an understanding is reached , embody such understanding
in a signed agreement . The bargaining unit is :
All employees of the Syracuse , New York, retail store, excluding the
store manager and all supervisors as defined in the National Labor
Relations Act.
WE WILL NOT take any unilateral action in derogation of the above-named
union's right to act as the exclusive representative of our employees in the
above-described unit, with respect to any matter properly subject to the col-
lective-bargaining process.
WE WILL NOT interfere , in any other manner, with the efforts of the union
to bargain collectively with us in regard to the above-mentioned matters, as
the exclusive representative of our employees in the appropriate unit de-
scribed above.
All of our employees are free to become, remain , or refrain from becoming
members of the above-named union or any other labor organization , except to
the extent that their right to refrain may be affected by a lawful agreement which
requires membership in a labor organization as a condition of employment.
NATIONAL SHOES, INC., AND NATIONAL
SYRACUSE CORPORATION,
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.
NEUHOFF BROS., PACKERS and AMALGAMATED MEAT CUTTERS AND
BUTCHER WORKMEN OF NORTH AMERICA, AFL. Case No. 16-CA-431.
March 11, 1953
Decision and Order
On December 31, 1952, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
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 [ Chairman Herzog and
Members Styles and Peterson].
103 NLRB No. 45.