The May Co.

National Labor Relations Board - Board Decisions

Feb 13, 1942

38 N.L.R.B. 1154 (N.L.R.B. 1942)

In the Matter of THE MAY COMPANY and WAREHOUSE EMPLOYEES'
UNION LOCAL 197 (A. F. OF L.)
Case No. C-1999.-Decided February 13, 194.
Jurisdiction : department store retailing industry,
Unfair Labor Practices
Company-Dominated Union: employer dominated and interfered with formation
of an organization by: calling a meeting of all employees at the time an
outside union made its appearance, at which supervisory employees made
derogatory, coercive and partizan statements against outside union and then
"suggested" that employees vote on question of outside or inside union; calling
of a further meeting of employees by employer at which a vote was taken
on the form of organization ; use of employer's office facilities to prepare
membership petitions ; activities of warehouse superintendent in stating pri-
vately to large number of employees his opposition to outside union; par-
ticipation by supervisory employees in leadership of newly-formed "inside"
union-support: signing contract with illegally formed organization; question-
ing members concerning their membership in the Association, and indications
by supervisory employees of preferences for it; holding of meetings and
conduct of an election on company time and property ; collection of funds
for meeting-hall by supervisory employee who offered inducement of pro-
motion to an employee who contributed to such fund.
Remedial Orders : employer ordered to disestablish dominated organization and
to cease giving effect to contract with it.
Practice and Procedure : denial of third-continuance before beginning of hearing
held not prejudicial where respondent had been granted two prior con-
tinuances, and the hearing was adjourned after close of Board's case so
that respondent might confer with a witness who had been unavailable be-
cause of illness.
Mr. Harry L. Lodis'h and Mr. Ramey Donovan, for the Board.
Stanley and Smoyer, by Mr. Welles K. Stanley and Mr. Eugene B.
Schwartz, of Cleveland, Ohio, for the respondent.
Mr. Join Lendzian, of Cleveland, Ohio, for the Union.
Mr. S. B. Weiss, of Cleveland, Ohio, for the Association.
Mary M. Persinger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Warehouse Em-
ployees' Union Local 197 (A. F. of L.), herein called the Union, the
38 N. L. R. B, No. 211.
1154
THE MAY COMPANY 1155
National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint dated April 22, 1941, against The May Company, Cleve-
land, Ohio, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (2) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by
notice of hearing thereon, were duly served upon the respondent,
the Union, and May Company Warehouse Employees Association,
herein called the Association.
With respect to the unfair labor practices, the complaint as
amended alleged in substance (1) that the respondent, while operat-
ing its department store and warehouse at Cleveland, Ohio, initiated,
formed, interfered with, dominated, and contributed financial and
other support to the Association, and entered into certain contracts
with the Association at various stated dates; and (2) that by the
foregoing acts and conduct, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. On June 5, 1941, the respondent
filed an answer, denying that it was engaged in commerce within
the meaning of the Act or that it had engaged in the unfair labor
practices alleged in the complaint.
After three separate postponements of the hearing were ordered
by the Regional Director,' and pursuant to notice, a hearing was held
at Cleveland, Ohio, on July 14, 15, 16, 17, 18, 21, 22, 23, 24 and
September 8, 9, 10, 11, and 12, 1941, before William B. Barton, the
Trial Examiner duly designated by the Acting Chief Trial Ex-
aminer. At the beginning of the hearing the Association filed a
motion to intervene, which was granted. The Board, the respondent,
and the Association were represented by counsel, and the Union by a
representative; all participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties.
Prior to the hearing, the respondent had filed with the Regional
Director an application for a further postponement of the hearing,
because of the illness of Paul E. Baker, the respondent's store super-
intendent. The application was denied by the Regional Director.
The respondent thereafter appealed to the Board from the Regional
Director's denial of its application. The Board issued an order
affirming the Regional Director's ruling. At the opening of the
hearing, the respondent submitted to the Trial Examiner a renewal
1 To of these postponements were at the request of the respondent and the third was
at the instance of Board representatives in the Eighth Regional Office.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its request for a postponement of the hearing. The motion was
denied at that time, but at the close of the Board's case, the hearing
was adjourned, pursuant to the respondent's motion, from July 24
to September 8, 1941. The respondent contends that the denial of
a further continuance before the hearing prejudiced its case. We
cannot agree with this contention. Before the hearing was con-
vened, the respondent had been granted two continuances, totaling
some 7 weeks-the first being granted for the personal convenience
of the respondent's counsel, and the second because of the illness
of Paul E. Baker, who, the respondent contended, was indispensable
to the preparation and presentation of its case. Thereafter, although
the respondent's request for a third postponement of the hearing
was denied, the hearing was adjourned, as stated above, at the close
of the Board's case, from July 24 to September 8, 1941, so that the
respondent might confer with Baker. The respondent participated
fully in the examination or cross-examination of all witnesses, and
Baker was present and testified for the respondent after the hearing
reconvened on September 8. Under these circumstances and upon
the entire record, we find that the denial of a further continuance
before the hearing was not improper and that the respondent's cause
was not prejudiced thereby.
Prior to the hearing, the respondent had also filed with the Re-
gional Director a motion for a bill of particulars. The Regional
Director made no ruling on the motion and the respondent renewed
it during the hearing. The motion was granted with respect to
that portion of the complaint which alleged that the respondent had
engaged in unfair labor practices by "other" acts and conduct. It
was denied in all other respects. With the consent of counsel for the
Board, the allegation concerning "other" acts and conduct was
stricken from the complaint. At the close of the hearing, counsel
for the Board moved that the complaint be amended to conform to
the proof. No objection was made and the motion was granted.
During the course of the hearing, the Trial Examiner made rulings
on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. Counsel for the Board filed a brief with the Trial
Examiner.
On November 6, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all the parties. He
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the Act, and recom-
THE MAY COMPANY 1157
mended that the respondent cease and desist from such unfair labor
practices and take certain affirmative action in order to effectuate
the policies of the Act. Thereafter, the respondent duly filed with
the Board exceptions to the Intermediate Report, and a brief in sup-
port of such exceptions. None of the parties requested permission
to argue orally before the Board. The Board has considered the
exceptions and briefs filed, and, to the extent that the exceptions are
inconsistent with the findings of fact, conclusions of law, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, an Ohio corporation, is a wholly owned subsidiary
of May Department Stores Company, a New York corporation which
has its principal office at St. Louis, Missouri, and operates department
stores in Los Angeles, California, and St. Louis, Missouri. The
respondent operates a department store situated in the downtown
district of Cleveland, Ohio, and a warehouse about 2 miles from the
store. It has approximately 3,500 employees, of whom approximately
185 are employed in the warehouse. A principal function of the
warehouse is to fill orders which come to it from the store. Pursuant
to such orders, goods are taken from the stock stored in the ware-
house and are turned over to the respondent's delivery department
for delivery to customers.
More than 65 percent of the merchandise received by the respond-
ent's store and warehouse in 1940 came from outside the State of Ohio.
By dollar value approximately 82 percent of such merchandise is
delivered to the store, and approximately 18 percent to the ware-
house. The merchandise sold by the respondent in 1940 was valued
at approximately $29,000,000. $232,000 worth of this merchandise
was shipped to States other than the State of Ohio; and of the mer-
chandise sent to other States approximately $1,800 worth was shipped
from the warehouse.
H. THE ORGANIZATIONS INVOLVED
Warehouse Employees' Union, Local 197, is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership employees in the respondent's warehouse. Federal Local
19499, herein called Local 19499, was a labor organization affiliated
with the American Federation of Labor. It admitted to membership
employees in the respondent's warehouse.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May Company Warehouse Employees Association 2 is an un-
affiliated labor organization which limits its membership to employees
in the respondent's warehouse.
III. THE UNFAIR LABOR PRACTICES
A. Formation of the Association
In April 1936, Local 19499 began an organizational drive among the
respondent's warehouse employees. During the month of June 1936
this labor organization held several meetings for the warehouse, em-
ployees. Thereafter, early in July, Walter J. Crease, organizer for
Local 19499 met with Robert Gries, the respondent's store manager,
and Paul E. Baker, the respondent's general superintendent.3 Crease
presented a proposed contract between the respondent and Local 19499.
Gries asked for time in which to study the proposal.
On July 21, 1936, Gries summoned to his office Ivan Kay, the re-
spondent's service superintendent, and Paul Schaeffel, superintendent
of the warehouse, who had been called back from his vacation for the
conference. Gries testified that he arranged this conference because
of reports which he had received that discussions among the warehouse
employees about outside and inside unions were interfering with their
work. Kay also testified that he had received such reports. Neither
Gries nor Kay, however, was able to identify for the record any person
who had given him this alleged information. Moreover, although the
record discloses that there was union activity on behalf of Local 19499,
at this time, there is no evidence that prior to July 21 there was any
activity on behalf of an "inside" union. Indeed, Elmer Barrett, a
supervisory employee 4 who, as will appear hereinafter, was the fore-
most figure in the Association, testified substantially, that up to the
time that the respondent began to suggest to its employees that they
consider whether to form an inside or an outside union, he had never
thought about having any union; that he had never heard any em-
'The organization , at its formation, was known as May Company Warehouse Employees'
Representative Association, but the word " Representative" was dropped from its name early
in 1941
3 Supervision over employees in the warehouse resides ultimately in certain of the re-
spondent ' s executives who also have supervision over employees in the store. The super-
intendent of the warehouse is responsible to the respondent 's service superintendent, Ivan
Kay, this executive to the respondent 's general superintendent , Paul Baker , the general
superintendent to the store manager , Robert Gries , and the store manager to the general
manager , N L Dauby moreover, warehouse personnel is employed through the office
of the respondent 's employment director , an executive who performs the same function for
store personnel , and whose office is located in the store
4 Barrett was head of a group of stock departments , with supervision over from one to
six employees Although department heads in the warehouse do not have power to hire or
discharge employees , 'they direct the work of their subordinates and make recommendations
to the management when they find an employee 's work deficient ; and they are directly
answerable to the assistant superintendent of the warehouse Upon the entire record, we
find that department heads at the warehouse are supervisory employees.
THE MAY COMPANY 1159
ployee speak about an inside union ; and that, so far as he knew, there
was no evidence of any desire on the part of the employees to have a
union. For these reasons, and upon the entire record, we reject, as
did the Trial Examiner, the testimony of Gries and Kay that they had
received reports concerning competing organizational drives, and the
testimony of Gries that he had summoned Kay and Schaeffel to a con-
ference for this reason.
Schaeffel testified, and it is evident from subsequent events, that the
purpose of the conference in Gries' office was to combat the organ-
izational drive of Local 19499. At this conference Gries and Kay
gave Schaeffel the names of about 12 warehouse employees who were
"agitating for an outside union," and the 3 officials agreed that Schaeffel
and Kay would address the warehouse employees.s
Kay and Schaeffel then proceeded to the warehouse. Schaeffel
instructed the department heads to notify the employees in their
respective departments to assemble for a meeting. The meeting took
place in the warehouse during usual working hours. Schaeffel ad-
dressed the meeting. He stated that he had the names of certain
employees who intended to join an outside organization, and that he
was "very much surprised." Schaeffel then read aloud some of these
names reciting instances in which he had assisted these employees.
He further stated to the employees that he did not understand why
they "should rebel against the management" which had treated them
"as fairly as possible" and that they were "all wrong in hooking up
with an outside organization." Schaeffel then suggested that they
should vote among themselves on the question of forming an "inside"
or an "outside" organization.6 As noted above Barrett testified, and
we find, that this was the first time the subject of an "inside" union
had been broached to the warehouse employees.
Kay then spoke to the group. He referred to Local 19499 as a "wild
cat organization," and stated that "the people at the head of it were
not stable . . . that they were not capable of handling their affairs,
and that they were not connected with the International Organiza-
tion . . ." Schaeffel testified, and we find, that Kay also referred
to the union organizers as "a bunch of bums." 'Kay admitted at the
6 Although Gries testified that he was very hesitant about permitting Schaeffel to address
the warehouse employees because of Schaeffel 's violent opposition to an y form of labor
organization , these alleged misgivings of Gries should be contrasted with the fact that
Gries deliberately called Schaeffel back from his %acation for the meeting in Gries' office
These findings are based upon the testimony of Schaeffel , n hich was substantially _un-
contradicted except that Kay testified that he did not believe that Schaeffel had mentioned
names . The respondent sought to discredit Schaeffel by shoeing that he entertained ani-
mosity against the respondent because he had been discharged from his position as ware-
house superintendent in January 1941. The Trial Examiner , however, who had an opportu-
nity to observe the demeanor of the witnesses , found Schaeffel to be a credible witness
Moreover , his testimony was not only substantially uncontradicted , but was in a large
measure corroborated by the testimony of Barrett , and by that of Kay who was called
by the respondent For these reasons we credit testimony of Schaeffel
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing that it was "quite possible" that he had done so. At the close
of the meeting Schaeffel stated to the employees : "Now I move that
you people talk this over among yourselves for the balance of the day,
and we will have another meeting tomorrow morning to find out what
you have decided to do."
Although there is no evidence that the employees engaged in fur-
ther discussion concerning the comparative merits of outside and in-
side union, or that they in any manner evinced a desire to put the
question to a vote, Schaeffel nevertheless, on the following day, July
22, again summoned the warehouse employees to a meeting. At this
meeting, Kay asked the assembled employees whether they were ready
to choose between an outside or an inside organization. Upon re-
ceiving an affirmative answer, Kay said that he would leave the em-
ployees to vote. He and Schaeffel then retired to Schaeffel's office,
and the employees proceeded to vote on the form of organization they
were to have. After a short period, Kay and Schaeffel were told that
the vote had been taken and they returned to the meeting. Of a total
of approximately 160 employees in the warehouse, about 59 had voted.
Forty-four had voted in favor of an inside organization; 15 had
voted for an outside organization. Schaeffel then informed the em-
ployees that it would be necessary for them to "select some repre-
sentative to go and notify the head office" that they wished "to form
an organization." 7
Two or three employees obtained permission from Kay to use the
typewriter in Schaeffel's office. They prepared a document which re-
cited that "The undersigned employees of the May Company Ware-
house wish to inform the May Company that they desire to form an
organization of their own for the purpose of collective bargaining."
Approximately 90 of the warehouse employees signed this document
at the warehouse within the next few days. Caroline Sipan, a clerical
employee in the furniture department, testified without contradic-
tion that Hubert Ashdown, head of the "extra help" department at
the warehouse," solicited her to sign the petition. On July 22, the
employees also selected a committee to meet with the respondent.
This committee met with Gries, Schaeffel, and Baker the next day.
The members of the committee introduced themselves as temporary
representatives, but were told by the respondent's representatives that
"there should be official representatives for that purpose." Store
7 These findings are based upon the substantially uncontradicted testimony of Schaeffel.
Kay, in his testimony, insisted that there was only one meeting. However, in a memo-
randum prepared at about this time Kay stated that there were two meetings A memo-
randum drawn up by Schaeffel similarly recited two meetings For these reasons, we credit,
as did the Trial Examiner , the testimony of Schaeffel and find as stated in the text above.
9 The respondent 's general superintendent described Ashdown as a "foreman " He became
assistant superintendent of the warehouse in November 1936.
PHFs MAY COMPANY 1161
Manager Gries gave the following version of this meeting with the
committee :
A. [Gries] I think they (the committee) brought a paper of
two papers with the signatures of the majority of the warehouse
showing that they wished to form an organization and that they
had been the elected representatives.
Q. What did you tell them?
A. That we would form one.
Q. I beg your pardon?
A. That we would permit them to form one, or that we would
work with them or something like that. (Emphasis supplied.)
On July 24, the warehouse employees convened for a meeting in the
warehouse, and elected the members of the temporary committee as
a permanent committee, hereinafter referred to as the Committee.
Between the time the Committee was selected and the time it signed
a contract with the respondent, referred to below, Schaeffel spoke
"privately" to about 50 employees in the warehouse, and in each
instance expressed opposition to outside unions. He stated to Sam
Ferrazza that he disapproved of Ferrazza's having put "himself on the
side of an outside union"; that he had given Ferrazza a job and "now
as thanks from you [Ferrazza] I [Schaeffel] get your participation
in a group which wants to create trouble in the warehouse." Schaeffel
also reminded an employee named Winters that he, Schaeffel, had
hired Winters' son, and stated that Winters' son had become "one
of the leaders of the boys who want to join an outside union." Schaeffel
reproached two employees, brothers named Ebner, reminding them
that he had kept them employed during the depression, and stating
to one of them "You and your brother are the last two I would have
thought would join this union." Schaeffel also told a girl employee
that he had given her husband work, at her request, and that "Now
he is among the fellows that attends outside union meetings and helps
to create trouble."
The day after the selection of the Committee, the committee men
went to Baker's office where they discussed with Baker, Gries, Kay,
and Schaeffel the matter of a contract. Schaeffel testified without
contradiction that when the Committee was about to select certain
of its members as a subcommittee to go over proposed changes in wage
rates with the respondent, Gries stated : "Now why don't you take
Johnny (Weihl) ? He has got the most people under his supervision
and he could be of most help in arriving,at a decision, so far as changes
in wages?"' After some discussion between the parties, the respond-
ent's attorney drafted a proposed contract. Although disagreeing
6 Weihl , a member of the Committee , was head of the furniture department , with super-
vision over about 25 persons.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among themselves, the members of the Committee voted to and did
sign the contract. Three members of the Committee, Dan Shadoin, Sr.,
L. Shadoin, and Ferrazza, continued to express opposition on the
ground that the contract had not been presented to the employees gen-
erally for approval. The contract, dated July 25, 1936, and providing
for a 1-year term and automatic renewal, covered wages, hours, work-
ing conditions, and a grievance procedure. It also provided that other
warehouse employees who had not chosen the Committee to represent
them might come within the provisions of the contract by "signing a
memorandum between The May Company and themselves, agreeing
to abide by the terms of this agreement." Parties to the contract were
the respondent and the seven members of the Committee who signed
for "The Employees."
At about the time the contract was signed, Crease, the union organ-
izer, again called on the respondent. He met with Gries and one or
two other officials of the respondent. Gries on this occasion stated
that the respondent could not bargain with Local 19499, since it already
had a contract with another labor organization.b0
On August 10, 1936, employees 11 of the warehouse assembled at the
warehouse and, among other matters, voted to adopt a constitution
and bylaws.12 The constitution named the organization "Employees
Representative Association of the May Company Warehouse," herein
called the Association, and provided for the offices of president, vice
president, and secretary. It also provided for a "Representative
Committee" of seven members. By a provision of the constitution
this committee' was to be the bargaining agent of the Association.
The duties of the Representative Committee also included the handling
of grievances. The Committee, mentioned above, which had been
elected on July 22, proceeded to act as the Representative Committee
without a new election after adoption of the constitution. The first
officers of the Association consisted of Albert C. Couture, president,
Edward A. Gribben, vice president, and L. Abraham, secretary.
Couture and Gribben were supervisory employees and Abraham was
Schaeffel's "office girl." Of the seven employees on the Representative
Committee three, Elmer Barrett, John Weihl, and N. Bonnelli, were
supervisory employees 13
1° Gries denied that he made this statement to Crease However , he did not deny that
the meeting had occurred, nor did he give any independent version of what had transpired
The Trial Examiner credited Crease's testimony on this point, and we agree.
11 The evidence does not disclose how many employees attended this meeting.
13 The Association ' s minutes indicate that the constitution was prepared some time before
August 10 . By whom it was prepared does not appear . Dan Shadoin, Louis Abiaham,
and P . Loeser apparently prepared the bylaws of the organization
13 Couture , Gribben , Barrett, weihl , and Bonnelli were stock-department heads For the
duties of such department heads see footnote 4, supra
THE MAY COMPANY 1163
At the same meeting at which the constitution was adopted, Shadoin,
Sr. "reported that the contract was signed despite the fact that the
Association had not authorized the Committee to do so."
B. Subsequent events
On August 18 at an Association meeting three members of the Repre-
sentative Committee, the Shadoins and Sam Ferrazza, resigned. One
reason given by them for resigning was that the Committee had signed
the contract with the respondent without authorization and that the
contract was therefore invalid. They also asserted that the respondent
had breached a clause in the contract regarding payment for overtime.
After the resignations, Shadoin, Sr., told Schaeffel that he had resigned
"because he had been forced to sign a contract that he didn't want to
sign, and because he thought that the committee was dominated by
the May Company." He also said that "the kind of organization we
should have here is the kind we had when I was with the railroad
company." Schaeffel stated to Shadoin, Sr., during the course of this
conversation, that he "never could see any reason why anyone of the
employees wanted to join an outside union."
Barrett also spoke at the meeting of August 18. He informed the
employees that he was empowered to make the statement that, "in the
event of trouble the May Company would back its loyal employees to
the full and protect them in every way." He further said, "The May
Company is going to stick to the contract and will not recognize the
outside union." After Barrett's speech and the resignations, new
members were elected at this meeting to fill the three vacancies on the
Representative Committee. Ashdown, foreman of the "extra help
force," and Philip Loeser, a department head, were among those elected
to fill the vacancies. Barrett became chairman of the Representative
Committee. Thereafter Barrett was a member of the Representative
Committee at the signing of annual contracts in 1937, 1939, and 1940
described below. He was active in the Association until July 1941.
During much of this time, he was chairman of the Representative
Committee.
After -the resignation of the three committee members, Superin-
tendent Baker instructed the respondent's counsel to, and he did,
prepare a document as follows:
AUGUST 19, 1936.
We, the undersigned employees of The May Company, in its
Warehouse, recognize our obligations under our contract with
The May Company, dated July 25th, 1936, and understand that
the following seven employees have been duly elected by us to
represent us-viz. H. J. Ashdown, D. Bonnelli, J. Fehr, E.
Barrett, J. Weihl, P. Loeser and W. Nehls.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We hereby express our desire that the seven (7) representa-
tives, who are now serving for us, continue to represent us in
carrying out the terms of the contract.
The respondent then gave several copies of this paper to members
of the Representative Committee, and they proceeded to solicit sig-
natures to these documents, at the warehouse during working hours.
About 74 employees signed the papers on or about August 19, 1936.
They were then returned to the respondent.
In November 1936, Local 19499 threatened to call a strike of the
warehouse employees. Because of this threat, Gries told Schaeffel
to call the warehouse employees together. Baker, Gries, Schaeffel,
and Sam M. Gross, former superintendent of the respondent, ap-
peared at this meeting of employees in the warehouse. Gross and
Baker spoke to the employees on this occasion. Gross told the
group in substance that he was glad to be at the warehouse again
and to "see so many of the old time employees there." He further
stated that the warehouse employees had been loyal and that "he
was sorry that there was any difficulty." Baker assured the em-
ployees that the respondent would abide by its contract with the
Association. Schaeffel testified that, in the course of Baker's re-
marks, Baker asked that the employees present who were in favor
of an outside union raise their hands.14 Baker denied that he called
for such a vote. Gries and Gross, who both testified with regard
to this meeting, did not deny that Baker called for such a vote.
Schaeffel's testimony regarding this incident is further supported by
the other evidence in the record and recited herein indicating the
respondent's and Baker's hostility to Local 19499 and their support
to the Association. For these reasons, we find, as did the Trial
Examiner, that Baker called for the show of hands, as testified to
by Schaeffel.
A few days after the meeting at which Gross and Baker spoke,
about 38 employees in the warehouse went on strike at the instance
of Local 19499. Soon after January 1, 1937, there was a settlement
of the strike. The respondent reinstated all the strikers in the ware-
house, with the exception of 4 or 5 whom it reinstated in the store
because the Representative Committee of the Association, summoned
to the store by the respondent to confer about the reinstatement of the
strikers, objected to their return to the warehouse. The Represent-
ative Committee based its objection on the alleged activities of these
14 Schaeffel , in first testifying about this incident , placed it in July 1936. However, since
the November 1936 meeting was the ' only meeting of warehouse employees which Baker
attended , it is obvious that this is the meeting to which Schaeffel's testimony refers
THE MAY COMPANY 1165
employees during the strike.15 Among those not returned to the
warehouse were the two Shadoins and Ferrazza.16
After the close of the strike, Schaeffel talked to almost all the
strikers who returned to Work, asking them why they had gone on
strike and why they were in favor of the outside union. In addition,
for about 3 months after the termination of the strike, Schaeffel kept
a list of members of the Association. He compiled this list at about
the time the Association was organized, and kept it up to date by
inquiring of Representative Committee members from time to time
regarding changes in Association membership. At times during this
period, Baker would a.sk Schaeffel whether a particular employee was
a member of the Association, and Schaeffel would then make inquiry.
Sometimes Schaeffel would inquire through the Representative Com-
mittee, at other times directly of the employee in question. If he
found that an employee Was not a member of the Association, he in-
quired through the Representative Committee as to the reason.
Baker admitted that he had asked Schaeffel whether certain
employees were members of the Association, but stated that he did
so only when employees sought to bargain individually, and he de-
sired to verify that they were not members of the Association.
Schaeffel also testified that occasionally Baker would ask his opinion
concerning the advisability of granting a certain employee a wage
increase, and that his (Schaeffel's) opinion Would be based, in part,
on "how an employee stood with the for instance, how he stood at
the time of the strike. What he did at that time, or how he acted when
there was trouble or dissension in the warehouse."
On February 23, 1937, the respondent executed with the Repre-
sentative Committee a supplemental agreement, confirming the con-
tract of July 25, 1936. On July 26, 1937, July 1, 1938, and August
18, 1939, the Representative Committee, elected by the Association
members, executed contracts with the respondent for approximate
15 That the respondent was content to rely solely upon the judgement of the Representa-
five Committee as to which stiikers were not to be reinstated at the warehouse, clearly
appears from the following testimony of Store Superintendent Baker
Trial Examiner BARTON. I want to be sure I understand one thing Did the coin-
mittee direct its objection to all of the strikers or to just part of them'+
The WITNESS Oh, no, just to certain ones. They went over the list of the strikers
and picked out certain ones that had been guilty of committing overt acts like turning
over automobiles and doing such things to the property
Trial Examiner BARTON Anyway, that was the objection they made.
The WITNESS That was the objection, yes
Trial Examiner BARTON Whether it had validity or not, I don't think is the issue.
Mr STANLEY (Counsel for the respondent). We are not claiming that those things
actually occurred. [Italics supplied ]
It is noteworthy also that there was no evidence that the respondent made any attempt
to ascertain the bona fides of the Representative Committee's alleged objections
ii Strikers not reemployed at the warehouse were offered employment at the respondent's
store.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
periods of 1 year. In all cases, the provisions of the contracts were
discussed at meetings of the Association.
In 1940, the election of the Representative' Committee and the
execution of the contract did not conform to the usual pattern. The
Association had held a meeting on July 1, 1939, and the minutes of
that meeting recite: "The meeting was adjourned due to disinterest."
The Association's minutes show that no more meetings of the member-
ship were held until May 7, 1941. A meeting was called for May 4,
1940, but no quorum was present at the meeting. During the interval
from July 1, 1939 to May 7, 1941, the Representative Committee
transacted business on behalf of the Association. On May 4, 1940,
the Representative Committee decided to hold an election for new
Representative Committee members by attaching ballots to the em-
ployees' time cards. The election was thus conducted. Thereafter
the new Representative Committee executed on behalf of the Associ-
ation a contract dated May 15, 1940. There was, however, no meeting
of the Association for the discussion or approval of the provisions
of this contract.
All meetings of the Association, from its inception until July 1939
when it ceased to hold meetings, took place in the respondent's ware-
house. Meetings of the various committees elected by the Association
also took place in the warehouse until about May 1941. One such
committee meeting in July 1939 took place in the office of the ware-
house superintendent, with his permission. A number of meetings of
both the general membership of the Association and the Representa-
tive Committee took place during working hours. On or about July
31, 1937, Baker, apparently on advice of the respondent's counsel,
instructed Schaeffel to notify the Association to refrain from such
practice. Schaeffel so notified the officers and Representative Com-
mittee of the Association in writing,17 but the provisions of the
notice were not enforced.
During December 1940 or January 1941 the Union sought to organ-
ize the warehouse employees. At about the same time general interest
also revived in the Association. In February 1941 the Representative
11 The full text of the notice was as follows
To the Officers and Representatives of the Warehouse Employees Organization
According to the terms of the Wagner labor bill , it is illegal for employers to sponsor,
encourage , and assist financially or otherw ise grant favors to employees organizations
commonly known as company unions.
Permission to hold meetings during working hours for which employees are being
paid might be construed as an act on the part of The May Company which is in con-
flict with the labor law
For this reason , you will please be advised that employees meetings as well as com-
mittee meetings should not be held during working hours but either during the lunch
hour or before or after working hours.
It will be noted that this notice ignored the fact that meetings were being held on
company property
THE MAY COMPANY 1167
Committee negotiated with the respondent for, and obtained, substan-
tial wage increases for a large number of employees in the ware-
house.18 At that time there was an understanding that any employee
who received a weekly wage of $35 or more, became ineligible for
membership in the Association. Barrett received one of the increases
at the time of the negotiations mentioned above, his salary being
fixed at $34.95, in order that, as explained by Baker and Barrett,
the latter would not "be taken out of an organization that I think I
helped to build up, that I like to be with, and between you and me
I would like to stay in this organization." 1'
The Representative Committee held a meeting on February 24,
1941, at which it discussed the desirability of holding Association
meetings outside the respondent's plant. Caroline Sipan, who was
present at this meeting, testified as follows in this connection : "We
had heard at that time that the National Labor Relations Board was
interested in our activities and our union, and that the only fault
that was given or was shown was that we held our meetings on com-
pany property." Sipan testified further that Barrett told her he
,'got the information through the store, the management." Barrett
testified without contradiction that Baker had told him in substance,
that the only fault the Board had found with the Association was
that it held meetings on company time and property. At the meeting
on February 24, 1941, the Representative Committee decided not to
hold future Association meetings on the respondent's property and
to attempt to collect money from members of the Association to de-
fray the expenses of such meetings. Late in April or early in May
of that year, Barrett collected 25 cents each from several members of
the Association for the purpose of renting a meeting place. Paul
Tessman, who was acting president of the Association at the time of
the hearing, testified without contradiction that Barrett secured his
contribution toward the meeting place in the following manner :
[Tessman] : Well, when I come back from lunch, Mr. Barrett
called me over and he says, "Tessman, you know you are a good
worker, Mr. Robinson (superintendent of the warehouse) has you
slated for a fairly good job." And he asked me to attend the
18 The Representative Committee between annual contract renewals frequently negotiated
with the respondent as to individual wage increases.
19 According to Barrett's own testimony, one of his efforts to "build up" the Association
consisted in attempting to persuade some of the employees to spy on a meeting of the Union
and report to him which of the Association' s members attended Barrett assured these
employees that "if you do go there and if anything happens on account of you going to a
meeting , get that out of your mind because you don't have to be afraid of anything like
that, because I think through our committee we can protect you." He also testified that he
had told these employees that he would take the responsibility for their protection upon
himself
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting that night, and I should give him a quarter, because he
had to get some money together to rent the hall.
He says, "Be at that meeting."
I says, "0. K."
Thereafter, on May 7 and 19, 1941, the Association held general mem-
bership meetings at Flynn-Frolich Hall, a meeting place in Cleveland
situated away from the respondent's property. Barrett made arrange-
ments for the use of this meeting place. He also placed in the ware-
house posters announcing the meetings. Barrett, although not an
officer of the Association at this time, called to order the meeting of
May 19. The record does not indicate where subsequent meetings were
held, although it does show that at least one, that of June 17, was held
in the respondent's warehouse.
At the meeting on May 7 there was disagreement between one group
which favored the Association as it had existed up to that time, and
a group led by James McCafferty, an employee in the carpet and rug
department, which consisted of employees who were either members
of or sympathetic toward the Union. This meeting adjourned in dis-
order. At a meeting on May 26, 1941, the Association elected a new
Representative Committee, several of those elected being members of
the Union.20 At the same meeting a vote was taken to hire an attorney
"to draw up a new contract." An attorney was thereafter retained
and negotiations with the respondent for a new contract were begun.
This contract, which was signed on July 9, 1941, contained a schedule
of wage increases for substantially all the employees. In paragraph
10 of the contract, the respondent recognized the Association as the
sole collective bargaining agent for the warehouse employees, with
certain enumerated exceptions, including all employees who received
more than $40 a week. By its terms, the contract is to expire on
May 25, 1942.
C. Concluding findings
It is clear that the respondent instigated the formation of the Asso-
ciation. The warehouse employees did not consider having an inside
union until the respondent called the meetings of July 21 and 22, 1936.
At the meeting on July 21, Schaeffel denounced those employees who
had joined Local 19499, while Kay ridiculed and disparaged its or-
ganizers and official personnel. Schaeffel then "suggested" that the
employees consider the respective merits of an "inside" or "outside"
organization. On the following day, the employees were -again as-
20 A statement by McCafferty , newly elected chairman of the Association ' s Representative
Committee and leader of the union group, is enlightening in this regard McCafferty testy
fied "I belong to the A F L because I beliese in unionism [1] belong to the
Association because that is the only way you can deal with the company
THE MAY COMPANY 1169
sembled by Kay and Schaeffel, and a vote was taken, again at their
"suggestion." Not only the remarks and presence of Kay and Schaeffel
at these meetings, but also the instructions given by the department
heads during working hours, that all employees be present at the meet-
ings, indicated to the employees the respondent's desire that they
organize an "inside" union.
These activities, as well as Schaeffel's suggestion that the employees
should "select some representatives," the use of Schaeffel's office to
draft the documents to be used for securing signatures, the suggestions
by Gries, Baker, and Kay that the respondent would "cooperate" and
that the temporary representative committee be made permanent,
clearly reveal the respondent's active participation and interest in the
formation of the Association.
This initial participation by the respondent in the formation of the
Association continued in the form of open interference, support, and
control. Two of the three officers first elected in the Association, and
five of the seven members of the original Representative Committee
were supervisory employees 21 Between the time the Committee was
elected and the time the July 1936 contract was signed, Schaeffel
spoke "privately" to about 50 of the warehouse employees, expressing
keen displeasure to those who had been interested in the "outside"
union. When the dissatisfaction of the Shadoins and Ferrazza with
the contract of July 25, 1936, culminated in open dissension and their
resignations from the Committee at the meeting of August 18. Barrett,
a supervisory employee, informed the employees that he was author-
ized to state that in the event of trouble the respondent would support
and protect its "loyal" employees in every way. He further assured
the group that the respondent would abide by its contract, and that
it would not recognize an outside union. Thereafter, within a day
or two after Barrett had spoken at this meeting, members of the Com-
mittee circulated copies of a document prepared by the respondent's
counsel at Baker's request, ratifying the contract of July 25 and ap-
proving the members of the newly constituted Representative Com-
mittee. Schaeffel's talk with Shadoin, Sr., after the latter resigned,
indicating surprise at Shadoin's action and disapproval of an outside
union constituted further interference with and support of the
Association. /
Dries' refusal, late in/July 1936, to sign a contract with Local 19499
on the ground that the warehouse employees were already covered
by a contract, was clearly discriminatory. As noted above, only those
employees who had designated the Committee were covered by such
contract. Under these circumstances the respondent could not law-
21 Before August 18 , 1936, only three members of the Representative Committee were
supervisory employees , namely : Barrett , Weihl, and Bonnelli However,,on that date,
Loeser and Ashdown , supervisors , were elected to positions vacated by the two Shadoins
find Ferrazza.
438861-42-vol. 38-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully refuse to grant similar "members-only" recognition to any labor
organization seeking to represent its employees, and its refusal to do
so constituted further partisan support to the Association. The re-
spondent showed similar partisanship when Local 19499 threatened a
strike in November 1936. Baker, at the meeting of warehouse em-
ployees called by Schaeffel at Gries' direction, expressed opposition
to Local 19499. Moreover, at the time of the strike-settlement agree-
ment in January 1937 the respondent consulted with the Representa-
tive Committee of the Association regarding which strikers should
not be reemployed in the warehouse. It is significant that three of
the strikers not reemployed at the warehouse were the two Shadoins
and Ferrazza, who were the three committee members who had re-
signed on August 18. Barrett, whose activities on behalf of the re-
spondent at that meeting have been noted above, was chairman of the
Representative Committee which was instrumental in barring the
Shadoins and Ferrazza from reemployment at the warehouse. We
find that,the respondent's consultation with the Representative Com-
mittee in connection with reinstatements following the strike and its
refusal to reinstate to the warehouse the leaders of the opposition to
the Association, constituted obvious and potent support to that
organization.
Schaeffel's individual discussions with the strikers after their re-
turn to work at the warehouse, in which he evinced strong disapproval
of an outside union, and his practice until 3 or 4 months after the
strike of keeping a list of Association members, pursuant to which
he made inquiries concerning those employees who were not meni-
bers, were further acts which inevitably impressed upon the enm-
ployees the fact that the respondent favored the Association. More-
over, the fact that Schaeffel, in recommending wage increases, took
into account an employee's "attitude" at the time of the strike,, is
further evidence of favoritism. The respondent contends that it
should not be held accountable for Schaeffel's activities, because some
of his actions were not authorized, and in this connection it intro-
duced evidence to show that it had regarded Scbaeffel as unduly
opposed to unions, and that at times it had warned him against
manifesting such an attitude. We find no merit in this contention.
The conduct of Schaeffel's superiors at the inception of the Associa-
tion was such as to indicate approval of all Schaeffel's conduct with
respect thereto. In any event, the question is not whether certain
acts by supervisory employees were authorized; but whether the
employees' freedom of choice has been interfered with by the em-
ployer. As the Supreme Court has stated :
The employer, however, may be held to have assisted the forma-
tion of a union even though the acts of the so-called agents were
THE MAY COMPANY 1171
not expressly authorized or might not be attributable to him on
strict application of the rules of respondent superior . . . The
existence of that interference must be determined by careful
scrutiny of all the factors, often subtle, which restrain the em-
ployees' choice and for which the employer may fairly be said
to be responsible.22
After the illegal formation of the Association, the respondent
executed a contract with it each year thereafter and, until 1941, con-
tinued to allow such meetings of the Association and the Repre-
sentative Committee as were held, to take place in the warehouse.
When activity on behalf of the Union developed in December 1940
or January 1941, after a lapse of general employee interest in the
Association dating from July 1939,23 Association activity revived.
At about this time the respondent stated to the Representative Com-
mittee that the Board objected to meetings of the Association on
company time and property, and the Representative Committee sub-
sequently considered ways of meeting this objection. Barrett, at that
time chairman of the Representative Committee, again served as the
instrument of the respondent, in guiding the internal affairs of the
Association. Barrett's salary was fixed at the unique sum of $34.95
so that he could remain a member of the Association. He arranged
for a meeting hall away from the warehouse. He collected 25 cents
from each of several members to defray the expense of renting the
meeting hall, and in one instance, at least, indirectly promised an
employee a promotion in the warehouse if he contributed toward the
rental fund. Barrett posted announcements of the meetings of
May 7 and 19. He called to order the meeting of May 19. All of
these actions were taken by Barrett, although he was not president,
vice president, or secretary of the Association.24
The respondent contends in its brief that the present Representative
Committee is not dominated by it because a majority of that com-
mittee are members of the Union. This contention, however, is
without merit. That members of the Union chose, for one tactical
reason or another, to be active in the Association does not remove
the taint of the respondent's domination of that organization 25
Barrett asserted in his testimony that the events of 1941, constituted
a reorganization of the Association. The events to which he referred
were the meetings outside company property, the collection of dues,
21 International Ass'n of Machinists v. N. L. R. B , 311 U. S. 72.
23 The Representative Committee continued to hold some meetings during this time.
2' The constitution of the Association provides that. "Meetings are held at the call
of the president. In the absence of the president, the vice president may call and conduct
the meetings."
u See New Idea, Inc v. N. L It. B , 117 F. (2d) 517 (C. C. A. 7) ; Corning Glass Works v
N. L. R. B., 118 F. (2d) 625 (C. C. A. 2).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the change in name through dropping the word "Representative,"
and the election of a new Representative Committee?s It is clear,
however, that these events did not remove from the Association the
taint of employer interference, support, and domination or restore to
the employees the freedom of choice prescribed by the Act.21
Upon the basis of the entire record we find that the respondent
dominated and interfered with the formation and administration of
the Association and contributed financial and other support to it, and
that the respondent thereby interfered with, restrained, 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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices within the meaning of Section 8 (1) and (2) of the Act,
we must order the respondent, pursuant to the mandate of Section
10 (c), to cease and desist therefrom. We also predicate our cease
and desist order upon the following findings : The respondent has
dominated and interfered with the Association, and contributed sup-
port to 'it over a long period. This continued and never-disavowed
control and support not only violates Section 8 (1) and (2) of the
Act, but reveals a purpose to defeat the basic rights of self-organi-
zation and collective bargaining which the Act was designed to pro-
tect. The exercise of those rights was seriously impeded, if not
altogether prevented, by the barrier which the Association presented
to bona fide self-organization on the part of the respondent's em-
ployees; by the same token, the Association necessarily interfered
with the right of the employees to bargain collectively through repre-
sentatives of their own choosing. Because of the respondent's long-
continued unlawful conduct and its underlying purpose, we are con-
29 Barrett also contended that the Association had abandoned its constitution and bylaws
and that a new constitution and bylaNNs were to be adopted There is, however , no record
of any such action The attorney for the Association testified that he had intended to raise
the question of altering the constitution and bylaws at a meeting of the Association, but
did not do so because of the small attendance
"Westinghouse Electric & Mfg. Co v National Labor Relations Board, 112 F (2d) 657
(C C A. 2), aff'd 312 U. S. 660; National Labor Relations Board v. Falk Corp , 308 U 8 453.
THE MAY, COMPANY 1173
vinced that the respondent may seek to accomplish its unlawful purpose
by unfair labor practices other than those in which it has engaged, and
that the danger of the commission of such related unfair labor prac-
tices in the future "is to be anticipated from the course of [the respond-
ent's] conduct in the past." 28 The preventive purposes of the Act will
be thwarted unless the terms of our order are coextensive with the
threat. In order, therefore, to make effective the interdependent guar-
antees of Section 7, to prevent a recurrence of unfair labor practices,
and thereby to minimize industrial strife which burdens and obstructs
commerce, and thus to effectuate the policies of the Act, we shall
order that the respondent cease and desist from in any manner in-
fringing the rights guaranteed in Section 7 of the Act. We shall
also order the respondent to take certain affirmative action, which
we find necessary to effectuate the policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed financial and other support to it. We further find that
the consequences of the respondent's domination, interference, and
support constitute a continuing obstacle to the exercise by the em-
ployees of the rights guaranteed them in the Act. Accordingly, we
shall order the respondent to withdraw recognition from and com-
pletely disestablish the Association as the representative of any of
the respondent's employees for the purposes of dealing with the
respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment. Since
the contract of July 9, 1941, between the respondent and the Asso-
ciation embodies recognition of the Association as the representative
of the respondent's employees, and represents the fruit of the respond-
ent's unfair labor practices and a device by which to perpetuate their
effect, we shall order the respondent to cease and desist from giving
effect to the contract heretofore described or to any other contract
or agreement with the Association. Nothing in this Decision and
Order, however, shall be taken to require the respondent to vary
those wage, hour, and other substantive features of its relations with
the employees themselves which the respondent may have established
in conformance with this contract as extended, renewed, modified,
supplemented, or superseded.
Upon the foregoing findings of fact, and upon the entire record
in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Warehouse Employees' Union, Local 197, affiliated with the
American Federation of Labor, and May Company Warehouse Em-
?e National Labor Relations Board v. Express Publishing Company, 312 U. S. 426 ; Amer-
ican Enka Corp. v. N. L. R. B., 119 F. (2d) 60 (C. C. A. 4).
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees Association are labor organizations, and Federal Local 19499,
affiliated with the American Federation of Labor, was a labor organi-
zation, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of May Company Warehouse Employees Association and con-
tributing financial and other support thereto, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
3. 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, The May Company, Cleveland, Ohio, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of May Company Warehouse Employees Association or with
the formation or administration of any other labor organization of
its employees and from contributing financial or other support to May
Company Warehouse Employees Association or to any other labor
organization of its employees;
(b) Recognizing May Company Warehouse Employees Associa-
tion as a representative of any of its employees for the purposes of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or any other conditions
of employment;
(c) Giving effect to its agreement with May Company Warehouse
Employees Association, or to any modification, extension, or renewal
thereof, or to any agreement with May Company Warehouse
Employees Association;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
THE' MAY COMPANY 1175
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from May Company Warehouse Em-
ployees Association as the representative of any of its employees for
the purposes of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment, and completely disestablish May Company
Warehouse Employees Association as such representative;
(b) Post immediately in conspicuous places throughout its ware-
house at Cleveland, Ohio, and maintain for a period of at least sixty
(60) consecutive days, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraph 1 (a), (b), (c), and (d), hereof;
and (2) that the respondent will take the affirmative action set forth
in paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.