The J. L. Hudson Co.

National Labor Relations Board - Board Decisions

May 15, 1946

67 N.L.R.B. 1403 (N.L.R.B. 1946)

In the Matter Of THE J. L. HI:DSON COMPANY and UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA,
CIO
Case No. 7-C-12418.-Decided May 1.5, 1946
DECISION
AND
ORDER
On January 29, 1946, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the 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 copy of the Intermediate Report
attached hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.
The Trial Examiner found that the respondent's no-solicitation
rule was violative of the Act because "the prohibition applied .. .
to the employees' free time _on the respondent's premises" and be-
cause of its "applicability only to elevator operators." We do not
agree, and the Trial Examiner's finding in this respect is hereby
reversed.
The respondent operates a retail department store and, as we have
previously held, could, therefore, properly, prohibit union activity
at all times on the selling floors, where customers are normally
present? That the prohibition was unlawfully extended, as the Trial
Examiner found, to cover union discussion off the selling floor during
non-working hours is not established by the record. The Trial Ex-
aminer found the rule in question to be ambiguous on its face, but
nevertheless concluded, from Superintendent Hall's oral interpreta-
tion, that the rule was too broad in scope. However, the testimony
1 Matter of May Department Stores Company , etc, 59 N. L. R. B. 976.
(7 N. L. R. B., No. 191.
1403
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relating to Hall's interpretation fails to convince us that the respond-
ent intended to restrict such union activity in the lunch and rest rooms
or that the employees reasonably so understood the prohibition esp--
cially since no attempt was made by the respondent to enforce the
rule in those places. Nor do we believe that the fact that the rule
was directed against the elevator operators exclusively is, of itself,
sufficient to warrant finding discrimination in the, promulgation of
the rule.
ORDER
Upon 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, The J. L. Hudson Company,
Detroit, Michigan, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging concerted activities and membership in United
Retail, Wholesale and Department Store Employees of America, affili-
ated with the Congress of Industrial Organizations, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire and tenure of employment or any term or condi-
tion of their employment;
(b) Refusing to bargain collectively with United Retail, Wholesale
and Department Store Employees of America, affiliated with the Con-
gress of Industrial Organizations, as the exclusive representative of
all the passenger elevator operators and starters at the respondent's
retail department store on Woodward Avenue, Detroit, Michigan, ex-
cluding freight elevator operators and all supervisory employees with
the authority to hire, promote, discharge, discipline or otherwise effect
changes in the status of employees, or effectively recommend such
action, with respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(c) In any other manner interfering with, restraining, and coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Retail, Wholesale and De-
partment Store Employees of America, affiliated with the Congress of
Industrial Organizations, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Retail, Whole-
sale and Department Store Employees of America, affiliated with the
THE J. L. HUDSON COMPANY 1405
Congress of Industrial Organizations, as the exclusive representative
of all the passenger elevator operators and starters at the respondent's
retail department store on Woodward Avenue, Detroit, Michigan,
excluding freight elevator operators and all supervisory employees
with the authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action, as to rates of pay, wages, hours of employment, and other
conditions of employment;
(b) Offer to Annette Moore immediate and full reinstatement to
her former or a substantially equivalent position, without prejudice
to her seniority and other rights and privileges ;
(c) Make whole Annette Moore for any loss of earnings she may
have suffered by reason of the respondent's discrimination against her,
by payment to her of a sum of money equal to the amount which she
normally would have earned as wages during the period from March
25, 1943, the date on which she was discriminatorily discharged, to
the date of the respondent's offer of reinstatement, less her net earn-
ings during said period;
(d) Post at its Woodward Avenue retail department store, Detroit,
Michigan, copies of the notice attached hereto marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director for the
Seventh 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 there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced or
covered by any other material;
(e) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply therewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist United Retail,
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wholesale and Department Store Employees of America, affili-
ated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining or other mutual aid or
protection.
We will offer to Annette Moore immediate and full reinstate-
ment to her former or a substantially equivalent positicn without
prejudice to any seniority or other rights and privileges previously
enjoyed, and make her whole for any loss of pay suffered as a
result of the discrimination.
We will bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to 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 the passenger elevator operators and starters at our
retail department store on Woodward Avenue, Detroit,
Michigan, excluding freight elevator operators and all super-
visory employees with the authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the status
of employees or effectively recommend such action.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization.
THE J. L. HUDSON COMPANY.
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.
INTERMEDIATE REPORT
Mr. Meyer D. Stein, for the Board.
Beaumont, Smith and Harris , by Messrs . Albert E . Meder and Charles Wt tght,
111, of Detroit, Michigan , for the respondent.
Mr. Robert Fawkes, of Detroit , Michigan , for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on December 17, 1945, by United Retail,
Wholesale and Department Store Employees of America , affiliated with the
THE J. L. HUDSON COMPANY 1407
Congress of Industrial Organizations, herein called the Union,' the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Seventh Region (Detroit, Michigan), issued its complaint dated December 18,
1945, against The J. L Hudson Company, Detroit, Michigan, herein called the
respondent, alleging that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and the second amended charge, together with
notice of hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that on or about March 25, 1943, the respondent discharged Annette Moore,
and thereafter refused to reinstate her, because she had engaged in concerted
activities with her fellow employees for the purpose of collective bargaining and
other mutual aid and protection and in order to discourage such concerted activi-
ties and to discourage membership in the Union; (2) that the respondent, for
the purpose of discouraging self-organization of its employees, promulgated and
published a rule on or about April 22, 1943, prohibiting upon the respondent's
premises (a) solicitation of membership in any labor organization, (b) conver-
sation or discussion concerning any labor organization, and (c) distribution of
any union literature; (3) that since June 19, 1944, the respondent has refused to
bargain collectively with the Union as the exclusive representative of its em-
ployees in an appropriate unit, although the Union had been designated as their
representative by a majority of such employees and had been certified by the
Board as their exclusive representative; and (4) by these acts and conduct the
respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
On December 28, 1945, the respondent duly filed an answer admitting certain
allegations of the complaint concerning its business activities but denying the
alleged unfair labor practices
Pursuant to notice, a hearing was held in Detroit, Michigan, on January 8 and
9, 1946, before the undersigned, Howard Myers, the Trial Examiner duly desig-
Bated by the Chief Trial Examiner The Board and the ,respondent were repre-
sented by counsel, the Union by a representative All participated in the hearing
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded the parties. At the close
of the Board's case, counsel for the Board moved to conform the pleadings to the
proof. The motion was granted without objection. At the conclusion of the
taking of the evidence, oral argument, in which counsel for the Board and the
respondent participated, was had and is part of the record. The parties were
then advised that they might file briefs with the undersigned on or before
January 15, 1946 A brief has been received from the respondent's counsel.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENr
The J. L. Hudson Company, a Michigan corporation, having its principal offices
and place of business in Detroit, Michigan, is engaged in the purchase and resale
1 Actually, this charge was filed on behalf of the Union by Detroit Joint Board-United
Retail, Wholesale and Department Store Employees of America-CIO The charge and
the first amended charge were filed by the Union on November 10, 1943, and July 31, 1945,
respectively.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of various types of goods and commodities at a retail department store in Detroit,
Michigan . During the year ending January 31, 1942, the respondent purchased
goods at a cost of approximately $43,000,000, more than 80 percent of which was
shipped into the State of Michigan from points outside that State. During the
same period, the total sales of the respondent were in excess of $71,000,000, 1.6
percent of which was shipped to customers outside the State of Michigan. Dur-
ing the same period, the respondent's sales through its Mail Order Department
were in excess of $5,000,000, approximately 15 percent of which was shipped to
customers outside the State of Michigan. During the same period, the respondent
advertised its business and merchandise through newspapers, radio, and other
mediums at a cost in excess of $1,500,000. Several of the newspapers and period-
icals carrying respondent's advertisements are published outside the State of
Michigan, and each of the said radio stations had a coverage of and carried the
said advertisements to several States other than the State of Michigan. The
business operations of the respondent are somewhat higher at the present time
than they were for the aforesaid period ending January 31, 1942, but the relative
percentages are about the same.
II. THE ORaANIzATION INVOLVED
United Retail, Wholesale and Department Store Employees of America, affiliated
with the Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion ; the discriminatory discharge of Annette
Moore
On October 20; 1942, Annette Moore was hired by the respondent to operate a
passenger elevator in its department store at a salary of $17.00 per week. On or
about January 20, 1943, Moore received a $1 automatic raise in salary.
In the early part of March 1943, Moore and several other passenger elevator
operators discussed among themselves their respective dissatisfactions with their
wages and about the best method to be used to secure higher wages. Moore was
then selected to take the matter up with "the boss".
According to the credible and uncontradicted testimony of Moore,' on or about
March 3 or 4, 1943, William Hall, supervisor of elevator operators and depart-
mental maids, informed her that she should accompany him to Assistant Super-
intendent Murphy's office because Murphy wanted to speak to her; that upon
entering Murphy's office, Hall said to Murphy "Here she is. I understand she is
the head of the girls that want to ask for a raise" ; that Murphy then said to her
that she did not have to work for the respondent if she did not care to ; that she
replied that she was aware of that fact ; that she then told Murphy that the
passenger elevator operators had selected her to seek a wage increase for them ;
that she then called to Murphy's attention the fact that the operators had to wear
their own shoes and stockings while at work ; that Murphy asked Hall if the
operators had to supply their own work shoes and stockings ; that Hall answered
in the affirmative ; and that the interview ended with Murphy saying to her, "I
admire your spunk I am, glad you came in to see me. There is nothing to be
afraid of. You get the names of the girls, and tell them Mr. Murphy will do all
he can to help you." The following day, Moore informed the other operators what
2 The respondent called no witnesses It rested its case at the conclusion of the Board's_
THE J. L. HUDSON COMPANY 1409'
transpired in Murphy's office and, with the aid of another elevator operator,
secured the names of all the elevator operators who were desirous of a wage
increase. These names, however, were never turned over to any official of the
respondent.
On March 19, a notice was posted on the door of the dressing room used by the
elevator operators stating that the respondent would give each elevator operator
an additional $2.20 a month "as an allotment for shoes and hose." Evidently the
operators were dissatisfied with the "allotment" and with the respondent's failure
to grant increases in wages, for the operators planned that evening to strike at
12 noon the following day.
Moore, whose starting hour was 9 a. in., reported for work several hours late
on March 20. The fact that Moore was not on duty at 9 o'clock was made known
to Hall when he received the inspection report from one of his assistants at
about 9: 30 that morning. Hall thereupon called Murphy on the house telephone-
and told him," according to the credible testimony of Geraldine Sypret, a former
office assistant of Hall, that Moore had not reported for work; that she was
the "ringleader"; and that as soon as Moore reported for work he would call
Murphy again. When Moore reported for work she went to Hall's office and
told him that she was late because the other operators kept her from getting her
proper sleep by telephoning her until late in the night. Hall then asked her if
the elevator operators planned to strike that day. When she replied in the
affirmative, Hall said, "Well, you're grown;'you know what you want to do, go
ahead and strike." Shortly after Moore left Hall's office and while she was
operating her elevator, she was requested to report to Murphy's office. Upon
arriving there, Murphy said, "I heard you girls are going to strike at twelve
o'clock . . . Stop those girls [from striking] and stop them at once." Where-
upon Moore went to the operators and asked them not to strike. The operators,
did as Moore requested.
That evening, March 20, after working hours, Murphy called the elevator oper-
ators together and delivered a speech. According to Sypret's credible testimony,
Murphy in his opening remarks stated, "Girls, I want to tell you that The J. L.
Hudson Company doesn't need anyone else-any outsider to assist them in run-
ning this little house. We have done it for.years and I am sure we are capable
of doing it from now on."' Sypret further testified, and the undersigned finds,
that Murphy then proceeded to inform the employees, among other things, that
pursua>ttto President Roosevelt's order the elevator operators would have to
work a 458-hour week instead of the usual 44-hour week ; that by lengthening the
work week and shortening the relief periods the operators would earn more
money ; that the respondent always had the interest of its employees "at heart" ;
that "those that are dissatisfied, I think I know who they are, but after the war
some of our old girls will be back and we'll be rid of some of those that are dis-
satisfied now" ; and that the respondent had applied to the National War Labor
Board for permission to raise wages. Murphy, after the conclusion of his
speech, asked the operators if any one had any questions to ask. Some did ask
him questions and he answered them, but not always to the satisfaction of the
questioner. When Moore started to answer a question put to her by Murphy, he
cut her off, according to Moore's credible testimony, by saying, "No, never mind,
I have talked to you."
3 Murphy was not positively identified as the party on the telephone, but from the tenor
of Hall's remarks it is apparent that he was reporting to a superior.
4 Earlier that day, the Reverend Charles Hill, in response to Moore's request for advice,
came to the store, talked to Moore, and consented to the use of his church for the holding
of a union meeting on March 24.
692148-46-vol 67-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oscar Webber, the respondent's vice-president and general manager for approx-
imately the past 30 years, testified that shortly after the middle of March 1943,
J. B. Webber, his nephew and respondent' s assistant general manager , informed
him that Moore had expressed her general dissatisfaction with her wages, her
.shifts, and her working conditions ; that he suggested to his nephew that lie
"try and get her straightened out" ; that on March 24, his nephew informed him
that Moore "had again been up and had contact with Mr. Murphy and that he
hadn't succeeded in getting her satisfied" ; that his nephew also told him that
day that on each of the 2 occasions that Moore saw Murphy, she tendered to him
her resignation but each time withdrew her resignation toward the end of each
interview ; and that after hearing, on March 24, that Moore was still dissatisfied
with her working conditions and her wages he instructed his nephew to discharge
Moore. As Moore was leaving the store at quitting time that evening, Hall told
her that Employment Superintendent Brady wanted to see her. In reply to
Moore's question as to what Brady wanted of her, Hall replied he did not know.
Moore then said to Hall, "I'm on my way home and I'll see Mr. Brady in the
morning."
That evening, March 24, Moore and about 80 of the then approximate 100
passenger elevator operators in respondent's employ attended the Union' s meet-
ing at Reverend Hill's Church. Most of those attending signed the Union's
membership application cards. A committee was selected and Moore was ap-
pointed its chairman.
When Moore reported for work on March 25, she went to Brady's office.
There, Brady told her to take from her locker everything that belonged to her.
When Moore did so, she returned to Brady who discharged her.
In the light of the entire record, the undersigned is convinced, and finds, that
Moore's activities in concert with her fellow employees and her leadership in
seeking higher wages and other advantages for the elevator operators led the
respondent to rid itself of Moore. Contrary to the respondent's contention, the
undersigned finds that the record clearly indicates the respondent's hostility
toward self-organization by its employees. Oscar Webber's testimony that
Moore's concerted activities played no part in his determination to discharge
Moore but that his decision was motivated solely by his policy of not keeping
any dissatisfied person in his employ is not credited by the undersigned. Nor
does the undersigned credit Oscar Webber's testimony that he had no knowledge
of any organizational or concerted activity among the respondent's employees
or of Moore's part therein. As shown above, both Hall and Murphy, subordi-
nates of Oscar Webber, were fully aware that Moore was the spokesman and
"ringleader" of the passenger elevator operators who had gone so far in their
dissatisfaction over wages and working conditions as to plan to strike. That the
dissatisfaction of this group of employees should not have been reported to
Oscar Webber but only that of one employee, to wit, Moore, is most unreal-
istic. It would, in fact, seem highly unlikely that the subordinates of Oscar
Webber should consider the grumbling of an $18 a week elevator operator
of sufficient concern to be brought to the attention of the vice president and
general manager of an establishment employing 8 or 9 thousand employees.
However this may be, it would appear equally unlikely that they would have
brought such matter to the attention of said executive without at the same time
making known to him the complaint of the entire group of elevator operators, of
which the complaint of Moore, speaking for herself and the others even to the
extent of threatening to strike, was merely a part.
Upon the basis of the entire record, the undersigned is convinced and finds,
that the motivating factor for Moore's discharge was her concerted activities and
THE J. L. HUDSON COMPANY 1411
not merely her dissatisfaction as an individual . The undersigned finds that by
the discharge of Moore the respondent discriminated in regard to her hire and
tenure of employment thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
B The non-solicitation )ale
The complaint alleged that on or about April 22, 1943, the respondent promul-
gated and published a certain rule which interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
The answer denied this allegation.
The record discloses that on or about April 22, 1943, Oscar Webber promul-
gated the following rule which Hall read to the passenger elevator operators
on or about that date :
It has come to the attention of the manageipent of The J. L Hudson
Company that there has been conducted on Company time and on the Com-
pany premises cou,iderable activity and discussion concerning organization
It is the established Company policy, as you all well know, that the activi-
ties of employees off the premises and not on Company time are of no
concern to The J L Hudson Company.
Likewise, as you all well know, the Company cannot tolerate any such
activity or discussion on Company premises and daring Company time. This,
naturally, applies to any such activity either for or against a particular cause.
Therefore, this will serve as proper and sufficient additional notice to each
and every one of you that a further violation of the above stated policy will
be good and sufficient cause for dismissal The Company knows that this
warning will be sufficient to all of you
Following the reading, according to Sypret's credible testimony, Hall was asked
by one of the elevator operators if that meant they could not have discussions
even during their rest periods and he replied, "I read this letter. I believe that
is sufficient . That means no more talk of the type you have been carrying on
in the restrooins, in the lunchroom and everywhere in J L. Hudson's " Ac-
cording to the undenied and credited testimony of Board witnesses, discussions
about wages and other working conditions had not previously taken place on the
selling floors or around the elevators but had been confined to the employees'
own rooms and on their free time. Furthermore, the announcement was made
only to the elevator operators, the only employees among the 8 or 9 thousand
employed by the respondent who were shown to be organizing at the time. In
view of these facts, there would appear to be no reason for announcing such a
rule except for the purpose of discouraging organization . Thus the announce-
ment itself, whatever the intended scope of the rule, was designed to interfere
with, restrain, and coerge the employees in the exercise of rights guaranteed
in Section 7 of the Act, and the undersigned so finds 6 Moreover, because of
the following phrases in the respondent's rule: "on Company time and on the
Company premises", 6 "off the premises and not on Company time", on "Company
premises and during Company time", its meaning was ambiguous and was sus-
ceptible of the interpretation that discussions were prohibited in the employees'
restrooms and lunchroom on their idle time. The respondent resolved this
ambiguity by making clear that the prohibition applied as well to the employees'
See Tomlinson of IIe h Point, Inc , 58 N L R. B 982, 985
6 The additional "and" tends to separate ` premises" and "time" and make two separate
piohibitions
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
free time on the respondent's premises. Under these circumstances, the under-
signed finds that the rule as announced to the employees was too broad in its
scope and constitutes an unreasonable impediment to self-organization in viola-
tion of Section 8 (1) of the Act. In a recent decision involving a similar rule
the Board stated:'
We have in many prior decisions made clear our position that working
time is for work, and that the Act does not prevent an employer from pro-
mulgating and enforcing reasonable rules governing the conduct of employees
during working hours. We have made it equally clear, however, that in the
absence of special circumstances, a prohibition against union solicitation on
the employer's premises outside of working time, such as "before and after
work and during the luncheon and rest periods," does not bear reasonable
relation to the efficient operation of the employer's business, and therefore
constitutes an unwarranted interference with the employees' rights under the
Act. The respondent urges that, while the foregoing principles may be sound
as applied to industrial plants, they should not be invoked in cases involving
retail department stores because of the unique manner in which the latter
type of enterprise conducts its operations. We perceive no reasonable basis
for distinguishing between the two types of enterprises so far as concerns
a general prohibition against union solicitation by employees during non-
working hours at all places on the respondent's premises. The respondent
has adduced no convincing evidence that such a blanket injunction bears
reasonable relation to the efficient operation of its business. However, we
do see reasonable ground for prohibiting union solicitation at all times on
the selling floor. Even though both the solicitor and the person being solicited
are on their lunch hour, for example, the solicitation, if carried on on the
selling floor, where customers are normally present, might conceivably be
disruptive of the respondent's business. We therefore find that the respond-
ent's rule is invalid, and violative of the Act, only insofar as it prohibits
union solicitation off the selling floor during nonworking hours (such as
luncheon and rest periods) 8
The undersigned finds that by the timing of said rule in its applicability only
to the elevator operators and in its scope, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in.
Section 7 of the Act.
0. The refusal to bargain collectively with the Union
The complaint alleged, as the Board found in its Decision and Direction of
Election, dated May 9, 1944,8 that all passenger elevator operators and starters
at the respondent's retail department store on Woodward Avenue, Detroit,
Michigan, excluding freight elevator operators, and all supervisory employees
with the authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action, consti-
7 Matter of May Department Stores Company , etc, 59 N. L. It. B. 976, 980.
8 Cf. Matter of Marshall Field & Company , 34 N. L . R. B. 1. See Republic Aviation
Corp. v. N L. R . B, 324 U. S. 793 LeTourneau Company of Georgia v. N. L. R. B, 324
U. S 793 ; N L. R B. v. Peyton Packing Co , 142 F. ( 2d) 1009 (C. C A. 5), enf'g 49
N. L. R B. 828, Bert denied 323 U. S. 730, Matter of The Denver Tent & Awning Co., 47
N L R B 586, 588 , enf'd 138 F (2d) 410 (C. C. A. 10) ; Matter of United States Car-
trtdge Company, 47 N. L R. B. 896 , 897-898.
9 56 N. L. It. B. 406.
THE J . L. HUDSON COMPANY 1413
tuted a unit appropriate for the purposes of collective bargaining.10 In its answer
the respondent denied that such unit was appropriate but introduced no new
evidence in the instant proceeding tending to show that the said unit was
inappropriate.
The undersigned finds that all passenger elevator operators and starters at the
respondent's retail department store on Woodward Avenue, Detroit, Michigan,
excluding freight elevator operators, and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, at all times material herein
constituted, and now constitutes, a unit appropriate for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that the said unit insures to the employees of
the respondent the full benefit of their right to self-organization and collective
bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
At a secret ballot election conducted by the Board on June 5, 1944, pursuant
to the Decision and Direction of Election mentioned above, the Union was
designated by a majority of the employees in the appropriate unit as their
representative for the purposes of collective bargaining. Accordingly, on June
19, 1944, the Board certified the Union as the exclusive representative of the
respondent's employees in the appropriate unit. The respondent contends, how-
ever, that the Union lost its majority status for the reason that only 57 of the
111 employees found by the Board to be eligible to vote at the election of June
5, 1944, are now in the respondent's employ. The undersigned finds no merit in
this contention 11
Accordingly, the undersigned finds that on June 5, 1944, and at all times
thereafter, the Union was, and now is, the duly designated representative of
a majority of the employees in the appropriate unit and that, pursuant to
Section 9 (a) of the Act, the Union was, and now is, the exclusive representa-
tive of the employees in the said unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other conditions
of employment.
3. The refusal to bargain
As hereinabove found, upon an amended petition duly filed by the Union
the Board issued on May 9, 1944, its Decision and Direction of Election in which
it found that all the passenger elevator operators and starters employed in the
respondent's store constituted an appropriate unit, and directed an election.
The Union won the election conducted on June 5, 1944;12 and, no objections
having been filed, the Board certified the Union on June 19, 1944.
Under date of June 29, 1944, the Union notified the respondent that the
Union had been certified by the Board as the exclusive representative of the
respondent's passenger elevator operators and starters and requested the re-
spondent to fix an early date for the purpose of commencing collective bargain-
ing negotiations. By letter dated July 8, 1944, the respondent's attorney wrote
the Union that "the Company's position is that the unit is not proper under the
10 In the representation case the Board rejected the respondent's contention that the
starters should not be included in the appropriate unit.
n See Franks Bros Company v. N. L. R. B., 321 U. S. 702 ; N. L. R. B. v. Appalachian
Electric Power Co., 140 F. (2d) 217, 220-222 (C. C. A. 4) ; N. L. it. B. v. Botany Worsted
Mills, 133 F. (2d) 876, 881-882 (C. C. A 3)
12 With 111 employees on the eligibility list and 85 votes cast and counted, the Union
received 68 votes , 17 votes were cast against it.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Act. We must therefore refuse to comply with your
request until there is a final determination of that issue." On several occasions
thereafter the Union attempted to secure a date to commence negotiations, but
each attempt was of no avail Finally on July 23, 1945, Oscar Webber wrote
the Union that the responent's position had not changed, and "consequently
we are not at this time prepared to enter into negotiations for a working agree-
ment in connection with elevator operators." It is clear from the respondent's
attorney's letter of July 8, 1944, from the respondent's letter of July 23, 1945,
and from the admissions contained in the answer filed by the respondent herein,
that at all times since July 8, 1944, the respondent has not receded from its
position as outlined in its attorney's letter of July 8, 1944 At the hearing
herein, moreover, the respondent's counsel admitted that the respondent has
refused to bargain collectively with the Union as the statutory representative of
the respondent's passenger elevator operators and starters The undersigned
accordingly finds that the respondent on July 8, 1944, and at all times thereafter,
has refused to bargain collectively with the Union as the exclusive representa-
tive of its employees in the appropriate unit, and thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 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 such of them as have been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that 'the respondent has engaged in unfair labor
practices it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in an appropriate
unit it will be recommended that the respondent, upon request, bargain 'collec-
tively with the Union.
Since it has been found that the respondent discriminated i11 regard to the hire
and tenure of employment of Annette Moore by discharging and refusing to rein-
state her because of her concerted activities, and whether such discharge be
deemed a violation of Section 8 (1) or (3) of the Act,18 the undersigned will
recommend, in order to effectuate the policies of the Act, that the respondent offer
to her immediate and full reinstatement to her former or substantially equivalent
position without prejudice to her rights and privileges and that the respondent
make her whole for any loss of pay she may have suffered by reason of the
respondent's discrimination against her by payment to her of a sum of money
equal to the amount which she would normally have earned as wages from March
13 See the Board's rationale in the following cases where it held that a discharge for
concerted activities not only violated Section 8 (1) of the Act, but also discourages
membership in a labor organization in violation of Section 8 (3) : Matter of Rockingham
Poultry Marketing Cooperative, Inc, 59 N L . R. B. 486, Matter of the Sandy Hill Iron &
Brass Works , 55 N L R B. 1 ; Matter of Ever Ready Label Corporation , 54 N. L R B.
551 Matter of Texas Textile Mills, 58 N . L. R. B. 352. See also Fort Wayne Paper Co. V.
N. L. R. 8., 111 F. (2d) 869, 870-871 (C. C. A. 7).
THE J. L. HUDSON COMPANY 1415
25, 1943, the date of her discharge, to the date of the respondent's offer of rein-
statement less her net earnings 14 during said period.
The undersigned will also recommend that the respondent rescind or clarify-
the rule it promulgated on April 22, 1943, insofar as it indicates prohibition of
union activity off the selling floor during nonworking hours."
Since it has been found that the respondent independently violated Section 8
(1), (3) and (5) of the Act and since there appears to be an underlying attitude
of opposition on the part of the respondent to the purposes of the Act to protect
the rights of employees generally n the undersigned will recommend that the
respondent cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of the Act.1a
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 United Retail, Wholesale and Department Store Employees of America,
affiliated with the Congress of Industrial Organizations, is a labor organization
within the meaning of Section 2 (5) of the Act'
2. All the passenger elevator operators and starters at the respondent's retail
department store on Woodward Avenue, Detroit, Michigan, excluding freight
elevator operators, and all supervisory employees with the authority to hire, pro-
mote, discharge, discipline or otherwise effect changes in the status of employees,
or effectively recommend such action, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act.
3 United Retail, Wholesale and Department Store Employees of America,
affiliated with the Congress of Industrial Organizations, was on June 5, 1944, and
at all times thereafter, the exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing on July 8, 1944, and at all times thereafter, to bargain collec-
tively with United Retail, Wholesale and Department Store Employees of America,
affiliated with the Congress of Industrial Organizations, as exclusive representa-
tive of all its employees in the appropriate unit, the respondent has engaged in,
and is engaging in, unfair labor practices within the meaning of Section 8 (5)
of the Act.
5. By discriminating in regard to hire and tenure of employment of Annette
Moore, thereby discouraging membership in the United Retail, Wholesale and
14 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings See Republic Steel Corporation v N L R B , 311 U. S. 7
15 See Matter of May Department Stores Company, etc., 59 N L R B 976
15 See May Department Stores Company, etc., v N L R B , 323 U S. 376
14 The undersigned also adopts in justification of a broad cease and desist order the
reasons stated by the Board in such decisions as Matter of Washington National Insurance
Co, 64 N L. R. B. 929, Matter of C. D Beck & Company, 63 N. L. It. B. 1426; Matter of
Caroline Mills, Inc, 64 N L. R B 200 In this connection the undersigned has also
taken cognizance of N. L It. B v. J. L Hudson Co., 135 F (2d) 380 (C C. A. 6), cert
denied 320 U S. 740, wherein the Court sustained the Board's finding of violations of Sec-
tion 8 (1) and (3) of the Act; N L R. B. v J. L. Hudson, (not officially reported) decided
by 6th Circuit on October 18, 1944, 15 L. R It. 321, wherein the Court sustained the
Board's finding of violations of Sec. 8 (1) and (5) of the Act
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Department Store Employees of America , affiliated with the Congress of Indus-
trial Organizations , the respondent has engaged in and is engaging in unfair labor
-practices within the meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act the respondent has engaged in,
and is engaging in, unfair labor practices within the meaning of Section 8 (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the under-
signed recommends that the respondent, The J. L. Hudson Company, Detroit,
Michigan, its officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) Discouraging concerted activities and membership in United Retail, Whole-
sale and Department Store Employees of America, affiliated with the Congress
of Industrial Organizations, or any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees or in any other
manner discriminating in regard to their hire and tenure of employment or any
term or condition of employment ;
(b) Refusing to bargain collectively with United Retail, Wholesale and De-
partment Store Employees of America, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all the passenger elevator opera-
tors and starters at the respondent's retail department store on Woodward Ave-
nue, Detroit, Michigan, excluding freight elevator operators and all supervisory
employees with the authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recommend such action ;
(c) In any other manner interfering with, restraining, and coercing its em-
ployees in the exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist United Retail, Wholesale and Department Store Employees
of America, affiliated with the Congress of Industrial Organizations, or any
other labor organization, to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with United Retail, Wholesale and De-
partment Store Employees of America, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of all the passenger elevator op-
erators and starters at the respondent's retail department store on Woodward
Avenue, Detroit, Michigan, excluding freight elevator operators and all super-
visory employees with the authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees or effectively recommend
-such action ; and if an understanding is reached, embody such understanding
in a signed agreement ;
(b)' Offer to Annette Moore immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority and other
rights and privileges in the manner set forth in "The remedy" ;
(c) Make whole in the manner set forth in "The remedy" Annette Moore for
.any loss of earnings she may have suffered by reason of the respondent's dis-
THE J. L. HUDSON COMPANY 1417
crimination against her from the date of the respondent's discrimination against
her to the date of the respondent 's offer of reinstatement ;
(d) Post at its Woodward Avenue retail department store, Detroit, Michigan,
copies of the notice attached hereto marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by respondent's representative, be posted by respondent
immediately upon receipt thereof, and maintained by it for sixty (60) consecu-
tive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. _Reasonable steps shall be taken by re-
pondent to insure that said notices are not altered, defaced or covered by any
other material;
(e) Rescind or clarify immediately its rule against union activity insofar as
it prohibits such activity during non-working hours off the selling floors and
at places in the store where the public is normally admitted.
Notify the Regional Director for the Seventh Region in writing within ten
(10) days from the receipt of this Intermediate Report, what steps the respondent
has taken to comply herewith.
It is further recommended that unless, on or before ten (10) days from the-
date of the receipt of this Intermediate Report, the respondent notifies the
said Regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II, of said Rules and Regulations file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including ruling upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire to argue orally before the Board, request therefor must
be made in writing within ten (10) days from the date of the order trans-
ferring the case to the Board.
HOWARD MYERS,
Trial Examiner.
Dated January 29, 1946.
APPENDIX A
NmiCE 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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations , to join or assist United Retail, Wholesale and Department Store-
Employees of America, affiliated with the Congress of Industrial Organiza-
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
We will permit our employees to engage in union discussion or solicitation
during non-working hours so long as the same is not done on the selling
floors or in other parts of the store where the public normally is admitted.
Any rule to the contrary is hereby rescinded.
We will offer to Annette Moore immediate and full reinstatement to her
former or substantially equivalent position without prejudice to any se-
niority or other rights and privileges previously enjoyed, and make her whole
for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment or other conditions
of employment, and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is :
All the passenger elevator operators and starters at our retail de-
partment store on Woodward Avenue, )jetroit, Michigan, excluding
freight elevator operators and all supervisory employees with the au-
thority to hire, promote, discharge, discipline or otherwise effect
changes in the status of employees or effectively recommend such action.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
THE J. L. HUDSON COMPANY.
Dated ------------------------ By -------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
he altered, defaced, or covered by any other material.
•