Singer Sewing Machine Co.

National Labor Relations Board - Board Decisions

Jan 27, 1965

150 N.L.R.B. 1319 (N.L.R.B. 1965)

SINGER SEWING MACHINE COMPANY 1319
In view of the nature of the unfair labor practices committed , it is recommended
that the Respondent be ordered to cease and desist from in any manner infringing
upon rights guaranteed to its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Alton-Arlan's Dept . Store, Inc., is an employer engaged in commerce within the
meaning of the Act.
2. Retail Clerks Local 149, Retail Clerks International Association , AFL-CIO,
is a labor organization within the meaning of the Act.
3. All regular full-time and regular part-time employees of Alton-Arlan's Dept.
Store, Inc., located at 613 St. Louis Avenue, East Alton, Illinois, including leased
department employees , but excluding the store manager , the assistant store manager,
office manager, assistant office manager , head cashiers, head receiver , head hard-line
receiver , head soft -line receiver, leased department managers , guards, professional
employees , and supervisors as defined in the Act constitute, and at all times material
herein, constituted , a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Retail Clerks Local 149, Retail Clerks International Association , AFL-CIO,
was, on December 4_1963, and at all times thereafter has been and now is the exclu-
sive representative of all the employees in the above-described unit for the purposes
of collective bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally subcontracting its janitorial work without bargaining with the
above-named Union as the exclusive representative of the employees in the appropri-
ate unit over its decision to do so, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) of the Act.
6. By discharging Ervin R. Hancock , Harold G. Mayhall, David L. Roberts, and
William T. Stalp on December 4, 1963, thereby discouraging membership in the
Union , the Respondent has engaged in and is engaging in unfair labor practices pro-
scribed by Section 8 (a) (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Singer Sewing Machine Company and Retail , Wholesale, and
Department Store Union , Local 101 , AFL-CIO. Case No.
6-CA-2569. January 27, 1965
SUPPLEMENTAL DECISION AND ORDER
On August 14, 1964,- Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled matter, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, both General Counsel and Respondent filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 150 NLRB No. 137.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified herein.'
At the start of the hearing, the Trial Examiner permitted Re-
spondent to amend its answer to allege that the unit found appropri-
ate in the representation hearing had been dissolved by the closing
of four of the eight stores involved, and he admitted evidence regard-
ing that issue. At the conclusion of the hearing, General Counsel
moved to amend the complaint to allege a new violation of Section
8(a) (5) and (1) on the ground that the additional evidence intro-
duced by Respondent disclosed a failure to bargain regarding the
closing of the four stores. The Trial Examiner allowed the amend-
ment and subsequently found the additional violation.
The only evidence in the record with regard to the closing referred
to in the amended complaint was that introduced by Respondent and
received by the Trial Examiner for the purpose of providing a cur-
rent background for the formulation of any remedy which might
have been required 2 No other evidence regarding the circumstances
surrounding the closings was introduced by either litigant. In this
posture, we find, contrary to the Trial Examiner, that, without pass-
ing on Respondent's exceptions attacking the propriety of the amend-
ment of the complaint, this issue was not sufficiently litigated or so
fully developed in the course of the hearing as to provide the Board
with a sufficient basis upon which to make a determination on the
merits. A decision on this issue, under these circumstances, would
not serve to further the objectives of the Act. We shall, therefore,
reverse the Trial Examiner's Decision insofar as it finds that Re-
spondent committed any additional violation of Section 8(a) (5) and
(1) following the initial refusal to bargain found in the original
Decision in this matter 3
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 Order recommended by the Trial Examiner and orders
I The Board does not adopt the Trial Examiner ' s gratuitous personal observation in
which he characterizes "compliance proceedings " as a "polite euphemism for a con-
tempt action "
2 Thus, as noted In the Trial Examiner ' s Decision , this matter did not go to the issue
of whether an unfair labor practice was committed but applied rather to the "question
what remedy , if any, should be applied in the light of circumstances occurring after
the unfair labor practice "
a In the light of our disposition of this Issue, we do not find it necessary to consider
Respondent ' s motion to reopen the record to Introduce certain additional evidence by way
of defense to the added charges
SINGER SEWING MACHINE COMPANY 1321
that the Respondent Employer, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order with the following modifications :
1. Delete paragraphs 1(b), 2(b), and 2(c) and renumber the sub-
sequent paragraphs in sections 1 and 2 accordingly.
2. Delete the second paragraph and the last paragraph of the text
of the Appendix so that the notice will read in conformity with the
modified Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE '
This proceeding was reopened pursuant to a remand ordered by the United States
Court of Appeals for the Fourth Circuit, and the hearing was held before Trial
Examiner Frederick O. Reel at Pittsburgh, Pennsylvania , on June 16, 1964 . Perti-
nent events prior thereto are summarized at 140 NLRB 1061 and 329 F. 2d 200, and
will not be restated at length. Briefly summarized , on June 11, 1962, the Charging
Party was certified as the collective -bargaining representative of the Respondent's
employees in the stores comprising Respondent 's Pittsburgh city district . The Com-
pany refused to bargain with the Union, and in the ensuing unfair labor practice
proceeding challenged the validity of the certification , contending that the unit (Pitts-
burgh city district ) was not appropriate , and that in finding this unit the Regional
Director, in contravention of Section 9(c)(5), gave controlling force to the extent
to which the employees had organized . At the previous hearing in the unfair labor
practice case, Respondent was prevented from adducing evidence which it offered for
the purpose of establishing that the unit finding was dictated by the forbidden con-
sideration . The court of appeals remanded the case for the purpose of receiving the
evidence Respondent had previously sought to present.
At the reopened hearing, Respondent moved to amend its answer to allege as a
further defense to the complaint that the Pittsburgh city district had been dissolved.
I granted this motion over the opposition of General Counsel . At the conclusion of
the hearing, General Counsel moved to amend the complaint to allege that the
Respondent was guilty of a. further refusal to bargain insofar as it closed stores or
transferred employees who were in the bargaining unit without prior notice to or
bargaining with the Union. I granted this motion over the opposition of Respondent.
The grounds for these procedural rulings are developed below.
Upon the entire record,l including my observation of the witnesses , and after due
consideration of the briefs filed by Respondent and the General Counsel, I make the
following supplemental .2
FINDINGS OF FACT
A. The issue remanded by the court of appeals: Was the unit determination
controlled by extent of organization?
At the reopened hearing the Company introduced testimony which establishes that
in the latter part of July 1961 , after the hearing in the representation proceeding, and
while the issue as to what unit would be found appropriate was pending in the
Regional Office , some person in authority in that office directed Field Examiner Con-
nerton to ascertain the names of the employees in three stores in the Pittsburgh
Metropolitan area not included in the Pittsburgh city district . Although Connerton
was not certain which of his office superiors directed him to obtain this evidence, the
record is clear that it was not Regional Director Shore, who was then absent on
vacation . About the same time the Union made some effort , largely unsuccessful, to
organize the three stores in question , apparently in the belief that the Regional Office
' After the close of the hearing, General Counsel filed a motion to correct certain
typographical errors in the . transcript No response was filed. I hereby grant that
motion except that as to page 71, line 2, the motion is denied , as to page 90, line 3, the
correct word is "concede," and the corrected lines on pages 70, 113 and 219, are 10, 7,
and 22, rather than 11, 8 , and 23, respectively.
2 The facts heretofore found under sections I, II, and III , A, of the Intermediate
Report, are hereby reaffirmed except as expressly modified, snfra.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was interested in including these stores in the bargaining unit. Meanwhile, Regional
Office personnel were preparing a draft of a decision which, had it issued, would
have found as an appropriate unit all the stores in Allegheny County (the stores in
the Pittsburgh city district plus the three discussed above) rather than the units urged
by the Company or the Union. A draft decision to that effect was submitted to
Acting Regional Director Sherman for his approval. But before he had time to
examine it, Regional Director Shore returned from his vacation on August 7, and the
matter was turned over to him.
According to Shore's testimony, he carefully considered the entire case and came
to the conclusion that his subordinates, who had prepared the draft decision, were in
error, and that the Pittsburgh city district constituted an appropriate unit. He dis-
cussed the matter with them, and directed that a new decision be drafted, reflecting
his view. After this was done, he further edited the draft, and eventually issued it
as his decision. According,to Shore's testimony, he was unaware at that time of
Connerton's efforts to ascertain the names of the employees in the three stores dis-
cussed above, or of the Union's efforts to organize them. Shore explained that he
gave the case unusually careful personal attention because it was one of the first in
his region after the Board delegated certain decisional powers in representation cases
to Regional Directors. Finally, Shore testified in categorical terms that he was not
influenced in any degree, and did not take into consideration the extent to which the
employees had organized.
The Company argues that the Region's decision to include the three extra stores in
the unit was final prior to Shore's return from vacation, and that he overturned it
because of the Union's failure to organize the additional stores and to "cover up" what
the Company alleges were irregularities in the activities of Shore's subordinates. The
record is clear, however, that Shore's deputy, Sherman, had never approved, let alone
issued, the draft decision prepared by the staff. Manifestly neither the Regional
Director nor, the Acting Regional Director were compelled to rubberstamp positions
proposed by their subordinates in the office. The difference between Shore's view and
that of his subordinates was that he believed, and they did not, that the manager of the
Pittsburgh city district had sufficient autonomy or authority to warrant finding that
district an appropriate unit. This difference of view, rather than the abortive attempt
to organize the three additional stores, accounts for the difference between the pro-
posed and the ultimate decision.3
I credit the testimony of Shore that he gave no weight in his unit determination to
the extent of organization. As the court of appeals has already indicated that the unit
was otherwise appropriate, it follows that the Company violated Section 8(a) (5) and
(1) of the Act by its refusal to bargain with the Union in August 1962 after the
certification.
B. The new issues raised at the June 1964 hearing
1. The Company's motion to amend its answer
When the hearing reopened in June 1964 pursuant to the remand, the Company
moved to amend its answer to allege as a further defense that as the consequence of
"economic factors" the unit found appropriate in the representation proceeding has
been dissolved. General Counsel opposed the amendment on two grounds: first, that
it raised issues outside the scope of the hearing which was limited to the questions
remanded, and second, that even apart from the "remand" aspect of this case, an
employer could not in an unfair labor practice case introduce evidence of dissolution
of the unit which had been found appropriate in the underlying representation case.
According to General Counsel, evidence of dissolution of the unit must be left to
"compliance" proceedings.
I regard General Counsel's position on both points as untenable. Upon his theory,
the Trial Examiner, the Board, and the court would be required to issue an order
directing the Company to bargain, and then in "compliance proceedings" (a polite
euphemism for a contempt action) the Company would be permitted to present
evidence that during the entire period of litigation through the Board and the court,
the subject matter of the case, the bargaining unit, was nonexistent. Commonsense
and legal precedent reject such an approach. See, e g., N.L.R.B. v. Grace Company,
184 F. 2d 126 (C.A. 8), and 189 F. 2d 258 (C.A. 8). The settled rule against
relitigating unit questions in unfair labor practice cases admits of a well-recognized
exception for hitherto unavailable material evidence. And the general admissibility of
3 Respondent points out that only a few weeks later in another case Regional Director
Shore found a countywide unit of retail stores appropriate. But in that case the Com-
pany involved did not have a city division, which is the basis for Shore's decision here.
SINGER SEWING MACHINE COMPANY 1323
such evidence is not affected by the fact that the case is now on remand from the
court of appeals on a different issue: See Sprague v. Ticonic National Bank, 307 U.S.
161, 168, In re Sanford Fork & Tool Co., 160 U.S. 247, Thornton v. Carter, 109 F. 2d
316, 320 (C.A. 8); Illinois Bell Tel. Co. v. Slattery, 98 F. 2d 930, 932; 102 F. 2d 58,
63-64 (C.A. 7). As stated in Sprague, supra, at 168: "While a mandate is controlling
as to matters within its compass, on the remand a lower court is free as to other issues."
2. Evidence introduced pursuant to the amendment of the answer
The evidence adduced by the Company in support of this amended defense estab-
lished the following: 4
In June 1962 when the Union was certified as the bargaining representative for the
employees in the Pittsburgh city district, that district comprised eight stores: South
Side, North Side, Homestead, East End, Wilkinsburg, Oakland, Gaufmann's (Pitts-
burgh), and Kaufmann's (Monroeville). Of these, two (Monroeville and Homestead)
were outside the Pittsburgh city limits. Since the certification was issued the Company
closed the following stores at the following dates:
South Side______________________________ June 1962
Oakland_________________________________ October 1962
North Side______________________________ December 1962
Homestead______________________________ August or September 1963
Of the four remaining stores, the Company contemplates closing the Wilkinsburg
store at the end of 1964. Meanwhile, the Company has opened two new stores just
outside the city limits of Pittsburgh, Northway Mall in 1962 and Pleasant Hills in 1963.
At the time of the certification, the Pittsburgh city district was one of six districts
in the larger administrative area known as the Pittsburgh Agency. In October 1963,
Arthur Koller, who was in charge of that Agency, recommended elimination of the
Pittsburgh city district. His recommendation was adopted, and the remaining stores
were realigned. The Wilkinsburg and East End stores were moved to the Penn Central
district, which also included, inter alia , the new store at Pleasant Hills; the new North-
way Mall store was in the West Penn district. The two Kaufmann stores were not put
in any district, and instead of.reporting to a district manager, they now report directly
to Koller.
Of the 30 employees in the 8-store bargaining unit at the time of the certification, 5
or 6 are still employed in the 4 remaining shops which were, in the original unit of 8,
while some are employed at other company stores, some were promoted to managers,
some designed, and some were laid off. The 4 remaining`. stores now have 16
employees.- The 4 closed stores had 10 employees.
As noted above, the South Side store was closed in late June 1962, after the certifi-
cation of the Union, but a few days prior to the Union's initial bargaining request.
The other store closings and the elimination of the Pittsburgh city district as an
administrative unit occurred after the refusal to bargain, and indeed after the issuance
of the complaint in this case. Prior to that time the Company had advised the Union
that the Company "does not intend to recognize [the Union] as the bargaining agent
for its employees" because in the Company's "opinion . . . the unit of employees
which the Union seeks to represent is not a unit appropriate for the purposes of col-
lective bargaining." Consistent with this position, the Company did not advise, notify,
consult with, or bargain with the Union concerning the closing of any of the stores
or the transfer or termination of any of the employees, or any other aspects attendant
on the changes in, and eventual elimination of, the Pittsburgh city district. The Union
made no request to bargain after the Company's refusal, quoted above, and the
issuance of the complaint herein.
3. General Counsel's motion to amend the complaint
In the light of the foregoing evidence, General Counsel moved at the conclusion of
the hearing to amend the complaint to allege that the Company violated Section
8(a) (5) and (1) of the Act by failing and refusing to bargain with the Union regard-
ing the decision to close certain stores in the Pittsburgh city district and regarding the
effect of such closing on the employees. The original complaint alleged that the
Company had violated-those sections in that "Since July 3, 1962, and at all times
thereafter, the Respondent has failed and refused to bargain in good faith with the
4 The facts set forth in the following paragraphs amend the original finding in para-'
graph III, A, of the Intermediate Report insofar as that finding recites: "One of these
districts, known as the Pittsburgh City District, comprises, eight stores." In^ all other
respects the findings in that paragraph are reaffirmed.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union as the duly certified exclusive collective-bargaining representative . by
refusing to recognize the Union as such and by failing and refusing to meet with the
Union for the purpose of collective bargaining concerning ... terms and conditions of
employment .... " '
The Company objected to the amendment, on the ground that it should have 10 days
to answer, that the amendment was "unrelated to the cause of action stated in the
complaint, and that the 6-month period of limitations had run since the events com-
plained of." I permitted the amendment over these objections. The matter seems to
be encompassed by the holdings on National Licorice Company v. N.L.R.B., 309 U.S.
350, 369, and N.L.R.B. v. Fant Milling Company, 360 U.S. 301, 306-309. Indeed, as
I view the matter, the amendment was unnecessary as the original complaint was
sufficiently broad to embrace the further refusals to bargain alleged in the amendment,
all but one which (the closing of the South Side store) followed the issuance of the
complaint. Finally, I see no prejudice to the Company either in permitting the amend-
ment or in ruling on all the issues raised by the evidence which the Company itself
introduced. The facts are undisputed and were fully developed. See Fort Wayne
Corrugated Paper Company v. N.L.R.B., 111 F. 2d 869, 873 (C.A. 7).
4. Concluding findings on the issues raised by the amended pleadings
As noted above, the Company's refusal to bargain with the Union in the summer of
1962 when the Pittsburgh city district was in existence violated Section 8(a)(5) and
(1) of the Act. The alleged subsequent dissolution of the unit goes, therefore, not to
the question whether an unfair labor practice was committed but rather to the question
what remedy, if any, should be prescribed in the light of circumstances occurring after
the unfair labor practice. Of course, insofar as the changed circumstances reflect
merely a turnover of employees in the unit, or some accretion to or diminution of the
unit in terms of adding to, or subtracting from some of its components, the law is
settled that the duty to bargain is unimpaired. • But the Company's position is that the
unit has been totally dissolved. Admitting that 4 of the original 8 stores still exist,
employing 16 persons, the Company argues that the unit as such has disappeared
because the sole factor which gave rise to its existence as a separate unit was the
separateness inherent in the Company's administrative organization, and it is precisely
this factor, including the element of control by a particular district manager, which has
vanished.
Complicating the picture is the General Counsel's countercontention that the
changes in the unit, culminating in the Company's decision to dispense with that
district administratively, were unfair labor practices because, even though economi-
cally motivated, they were all made without notice to, or bargaining with, the statutory
bargaining representative. The General Counsel's position is squarely supported by
East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-
CIO (Fibreboard Paper Products Corp.) v. N.L.R.B., 322 F. 2d 411 (C.A.D.C.), cert.
granted, 375 U.S. 963. To be sure, this unilateral action violative of Section 8(a) (5)
and (1) was a necessary byproduct of the Company's determination to refuse to recog-
nize the Union, a determination which arose out of the Company's belief that the unit
found was inappropriate and that the only appropriate unit was the Pittsburgh Agency,
covering all stores in an area of some 27,400 square miles. But the fact that the
Company was in good faith in litigating its position does not change the character of
its acts, committed in pursuance of its legal position, as unfair labor practices. Cf.
Old King Cole, Inc. v. N.L.R.B., 260 F. 2d 530, 532 (C.A. 6).
I find, therefore, that the Company committed further refusals to bargain, violative
of Section 8 (a) (5) and (1) of the Act when, following certification of the Union, the
Company closed various stores in the unit and as a result transferred or laid off various
employees in the unit, without notice to or bargaining with the Union. As stated
above, the issue raised by the Company's claim of dissolution of the unit goes not to
the question of whether unfair labor practices were committed but to the appropriate
remedy therefore, and hence is further treated in the section of this Decision entitled
"The Remedy."
THE REMEDY
The conventional remedy for an unlawful refusal to bargain is that prescribed, ,in
the earlier Board Decision in this proceeding. The question now is to what extent
that remedy is inappropriate because of the administrative dissolution of the Pittsburgh
city district, and to what extent that remedy is inadequate because of the Fibreboard
aspects of the Company's refusal to bargain developed at the recent hearing.
The purpose of the remedy is to restore, as nearly as possible, the status quo ante.
On the other hand a remedy cannot require the doing of the impossible. Clearly,
the remedy must not be punitive. Equally clearly, it should not permit a wrongdoer to
SINGER SEWING MACHINE COMPANY 1325
benefit from his wrong, or withhold from innocent parties benefits and rights conferred
on them by statute. Within these occasionally conflicting generalizations, the Board
must do equity and so effectuate the policies of the Act.
The Company's contention that no order should issue because of the administrative
dissolution of the unit goes too far. That very dissolution was itself the culmination of
a series of unfair labor practices, committed in a good-faith but erroneous view that
the only appropriate bargaining unit was the 27,400-square-mile Pittsburgh Agency
rather than the certified unit. To issue no bargaining order would not only permit
the violation to go unremedied, but would permit it because of further violations,
leaving the Company to profit by its wrong, and leaving the employees who selected
the Union deprived of the very bargaining rights, which-had the Company not
violated them-might have protected the employees from the economic consequences
which befell them. Moreover, although the administrative district has been dissolved,
4 of the stores, with 16 employees, are still operating. These employees (or their
predecessors in a normal turnover of employment) were among those for whom the
Union would have been bargaining but for the unfair labor practices.
It is arguably within the Board's power, in restoring the status quo ante, to order
reemployment of persons discharged, reopening of closed departments, and reopening
of closed stores. But I am disinclined to recommend such drastic relief for unfair
labor practices which, so far as this record shows, were not committed for the purpose
of defeating statutory rights, but out of a good-faith belief that no such rights were
involved. To require the Company to reconstitute its Pittsburgh city district would
also be within the Board's remedial powers (the Company would then be free, of
course, to bargain with the Union over discontinuance of the district), but in the light
of the Company's claimed economies through the elimination of that district, I see no
useful purpose to be served in resurrecting it. So far as the bargaining order is con-
cerned, I deem it sufficiently restores the status quo ante to require the Company to
bargain with the Union as the representative of the employees in the four remaining
stores (East End, Wilkinsburg, and the two Kaufmann stores) which survive from
the erstwhile Pittsburgh city district. To the extent that this requires the Company to
bargain with the Union for two stores which are now part of another district, the
unit thus created differs from that found appropriate in the earlier proceeding. The
adjustment, however, seems to me more equitable to the Company than requiring it to
reconstitute its old administrative district, and more equitable to the employees and
the Union than to enable the Company to profit by its cumulative failures and refusals
to bargain by issuing no order at all. The unit of four stores embraces all the stores
now operating within the city limits of Pittsburgh plus the Kaufmann Monroeville
store, which belongs in the group because that "store" located in Kaufmann's suburban
department store is an adjunct of the "store" located in Kaufmann's downtown
Pittsburgh store.
Finally, the question arises as to what relief, if any, should be given the employees
who lost their jobs in connection with the closing of the stores. Under the Fibreboard
line of cases, the Board could order their reinstatement with backpay, for the economic
consequences they suffered might well have been prevented, or mitigated, had the
Company observed its statutory bargaining obligation. On the other hand, their dis-
charges were not motivated by union animus, and the Company's position in this
matter was inextricably tied to its good-faith belief that the only appropriate unit was
the Pittsburgh Agency. The Company cannot maintain that position in the light of .
subsequent events, including the Fourth Circuit's rejection of the Company's conten-
tion in the court's decision, but this was handed down February 17, 1964, after the
administrative dissolution of the Pittsburgh city district. To be sure the Company's
good faith is no defense to the unfair labor practice, but it is a circumstance to be
weighed in framing the remedy.5 In my judgment it will best effectuate the policies of
the Act if the Company now remedies the unfair labor practice inherent in the uni-
lateral action which led to the termination of these employees by placing them on a
preferential hiring list at its stores within the Pittsburgh Metropolitan area. (I note
that some of the employees formerly employed within the bargaining unit are now
employed at other stores in the Pittsburgh area.) Although as an equitable matter, I
am not recommending any backpay to the terminated employees, I shall recommend
that if they are not placed on a preferential hiring list, and so notified, within 10 days
from the date of this Decision, backpay should start to run henceforward, to be com-
puted under the formulas approved in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. To be sure, the Company is free to
5In Wynn-Dixie Stores, Inc., 147 NLRB 788, on which General Counsel relies in urging
a backpay remedy, the company was guilty of "opposition to the policies of the Act"
as evidenced by "interrogation, threats, interference, and coercion."
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue litigating this matter, and Fibreboard itself is now pending in the Supreme
Court. But one who litigates may do so at his own risk. My backpay in futuro
recommendation is not intended as an in terrorem order. The Company may place
these employees on a preferential list now, without any other liability to itself, and still
maintain its legal position before the Board and the courts. If it chooses to give them
preferential listing and wins, it suffers no loss. If it chooses not to give them prefer-
ential listing and loses (i.e., the findings of violations here made are sustained), the
employees already disadvantaged by the Company's invasion of their statutory rights
will have suffered continued and greater harm. For those reasons, I am recommend-
ing preferential listing at this time, together with backpay henceforward to protect the
employees if preferential listing is denied.
CONCLUSIONS OF LAW
1. At the time of the Union's certification and of the Respondent's initial refusal to
bargain with the Union, all the employees employed in Respondent's retail shops
within the Pittsburgh city district, including assistant store managers, but excluding
clerical employees of the Central Agency, guards, professional employees, store
managers, district manager, and all other supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining.
2. The Union, at the date of its certification, June 11, 1962, was the exclusive
representative of all employees in the aforesaid appropriate unit for purposes of col-
lective bargaining, and continued to be such exclusive representative at the time the
Pittsburgh city district was discontinued.
3. By refusing, on August 10, 1962, to bargain collectively with the Union as the
representative of the above employees, Respondent engaged in an unfair labor practice
affecting commerce within the meaning of Section 8(a) (5) and (1) and Section 2(6)
and (7) of the Act.
4. By taking action directly affecting the terms and conditions of employees in the
aforesaid bargaining unit including the closing of certain of the stores therein and the
attendant transfer or termination of some employees, without notifying or bargaining
with the Union, Respondent engaged in a further unfair labor practice affecting com-
merce within the meaning of Section 8(a)(5)and (1) and Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
Accordingly, on the basis of the foregoing findings and conclusions and on the entire
record, I recommend, pursuant to Section 10(c) of the Act, that the Respondent,
Singer Sewing Machine Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning rates of pay, wages,
hours of employment, or other conditions of employment with Retail, Wholesale, and
Department Store Union, Local 101, AFL-CIO, as the exclusive representative of the
employees of the following stores in the Pittsburgh, Pennsylvania, Metropolitan area:
Wilkinsburg, East End, Kaufmann's (Pittsburgh), and Kaufmann's (Monroeville),
including assistant store manager, but excluding clerical employees of the central
agency, guards, professional employees, store managers, district manager, and all
other supervisors as defined in the Act.
(b) Closing any of the stores in the above bargaining unit without giving the above-
named Union notice thereof and an opportunity to bargain with respect thereto.
(c) In any manner interfering with the efforts of the above-named Union to bargain
collectively on behalf of the employees in the above unit.
2. Take the following affirmative action necessary to effectuate the policies of the .
Act.
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of the employees in the above-described unit, and embody in a
signed agreement any understanding reached.
(b) Within 10 days of the date of the Trial Examiner's Decision herein, notify in
writing each employee who lost employment as a result of the closing of the South
Side, Oakland, North Side, or Homestead stores that such employees will be given
preference in the filling of any vacancies which may occur in any stores in the Pitts-
burgh Metropolitan area, and maintain such a preferential list until each affected
employee shall have been reemployed or shall have refused reemployment.
(c) Make whole any employees not notified as provided in the foregoing para-
graph in accordance with the formula prescribed in the section of the Trial Exam-
iner's Decision entitled "The Remedy."
SINGER SEWING MACHINE COMPANY 1327
(d) Post at each of the four stores in the above-described unit, copies of the
attached notice marked "Appendix." 6 Copies of such notice, to be furnished by the
Regional Director for Region 6, shall, after being signed by an authorized representa-
tive of the Respondent, be posted immediately upon the receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date of
this Decision, what steps the Respondent has taken to comply herewith?
In the event that this Recommended Order be 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. In the further event that the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order " ' '
7In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX •
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Retail, Wholesale and
Department Store Union, Local 101, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described below.
WE WILL NOT close any of the stores in that bargaining unit without notifying
said Union of our intention to do so and affording said Union an opportunity
to bargain with respect thereto.
WE WILL NOT in any manner interfere with the efforts of Retail, Wholesale
and Department Store Union, Local 101, AFL-CIO, to bargain collectively as
the exclusive representative of the employees in the bargaining unit described
below.
WE WILL, upon request , bargain with Retail , Wholesale and Department Store
Union, Local 101, AFL-CIO, as the exclusive representative of all the employees
in the bargaining unit described below with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and, if an
understanding is reached , embody, such an understanding in a signed agreement.
The bargaining unit is:
All the employees in our retail shops in Wilkinsburg, East End, Kaufmann's
(Pittsburgh ), and Kaufmann 's (Monroeville ), including assistant store
managers, but excluding clerical employees of the central agency, guards,
professional employees , store managers , district manager, and all other
supervisors as defined in the Act.
We have notified persons whose employment was terminated by the closing of our
South Side, Oakland, North Side, or Homestead stores that they will be given prefer-
ence in the filling of vacancies which may occur at any of our stores in the Pittsburgh
Metropolitan area.
SINGER SEWING MACHINE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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, 2107 Clark
Building, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have any
question concerning this notice or compliance with its provisions.
775-692-65-vol. 150-85