Topps Kerrmill, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1963

143 N.L.R.B. 694 (N.L.R.B. 1963)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel apparently would distinguish these cases on the grounds
that there was no showing in them, as here, that the union representatives in addi-
tion to their union duties also worked at their respective trades. In the circum-
stances of this case I do not believe that this distinction is of sufficient significance
to reach a result different than that which the Board reached in the cases in
question. While this distinction may detract somewhat from the strength of those
cases there are in my opinion other circumstances here which tend to strengthen
Respondent's reliance thereon. In both the cited cases the Unions were actively
engaged in trying to organize the respective Respondent's employees and had solicited
or were soliciting them to join the Union. Here there is no such evidence. Indeed,
in May the Union was claiming to be doing only "informational" picketing and
specifically stated through its picket signs that it did "not have organization or
recognition as an object." Moreover, although in January the Union had sought
recognition, it did that, so far as the record shows, by a direct approach to Kopp
Without attempting to organize the employees and bypassing them completely. In
these circumstances it seems to me that there was little likelihood or reasonable
expectation that Kopp's remarks to Chester would be communicated to the em-
ployees-certainly no more anticipation of that here than in the Reilly Cartage Com-
pany, and Max Silver & Son, cases and even less likelihood than in Everett Van
Kleeck & Company, Inc., 88 NLRB 785 and Ford Radio & Mica Corporation, 115
NLRB 1046, where the union actually represented a majority of the employees or
Claimed to represent a majority at the time the putative remarks were made to a
union representative.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Alton-Wood River Building and Construction Trades Council and Local 553,
United Association of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
2. Norman E. Kopp and Larry K. Evans, d/b/a Kopp-Evans Construction Com-
pany and the Alton District Independent Contractors and Associates are and at
all times material herein have been engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a)( I) of the Act.
RECOMMENDATION
On the basis of the foregoing findings of fact and conclusions of law, and on
the entire record in the case, I recommend that the complaint be dismissed.
Topps Kerrmill , Inc. and Amalgamated Clothing Workers of
America, AFL-CIO
Retail Clerks International Association , AFL-CIO, and Local
1325, Retail Clerks International Association , AFL-CIO (Topps
Kerrmill , Inc.) and Amalgamated Clothing Workers of Amer-
ica, AFL-CIO. Cases Nos. 1-CA-3799 and 1-CB-776. July 22,
1963
DECISION AND ORDER
On February 12, 1963, Trial Examiner David London issued his
Intermediate Report herein, finding that Respondents, Topps Kerr-
mill, Inc., and Local 1325, Retail Clerks International Association,
AFL-CIO, had engaged in and Ivere engaging in certain unfair prac-
tices and recommending that they cease'and desist therefrom and, take
143 NLRB No. 75.
TOPPS KERRMILL, INC. 695
certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that Respondent, Retail
Clerks International Association, AFL-CIO, had not engaged in any
unfair labor practices as alleged in the complaint, and recommended
that the complaint against that Respondent be dismissed. Thereafter,
Respondents, Topps Kerrmill, Inc., and Local 1325, and the Charg-
ing Party, Amalgamated Clothing Workers of America, AFL-CIO,
filed exceptions to the Intermediate Report and supporting briefs.
Respondent International filed a statement in support of the recom-
mendation of dismissal of the complaint against it and joined in the
brief of the Respondent Local.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
this proceeding, and adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications below.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner as amended herein.
I. The following provisions shall apply to the Order against Re-
spondent Company and the notice, Appendix A.
(1) Paragraph 1(c) is amended by substituting a comma instead
of a period at the end thereof and adding the following :
unless and until Local 1325 shall have been certified by the Board
as the exclusive bargaining representative of the Company's em-
ployees : Provided, That nothing in this Decision and Order shall
require Respondent Company to vary or abandon any wage, hour,
seniority, or other substantive feature of its relations with its
employees which the Company has established in the performance
of such agreement, or to prejudice the assertion by its employees
of any rights they may have thereunder.
(2) Paragraph 1(d) is renumbered 1(e) and the following para-
graph is substituted as paragraph 1(d) :
(d) Discouraging membership in Amalgamated Clothing
Workers of America, AFL-CIO, or encouraging membership in
Local 1325, Retail Clerks International Association, AFL-CIO,
in violation of Section 8 (a) (3) of the Act.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) Paragraph 2(a) is amended by deleting therefrom the words
"the Retail Clerks International and or . . . ."
H. The Order against Respondent Local 1325 and the notice, Ap-
pendix B, are amended as follows :
(1) Paragraph 1(a) is amended by substituting a comma for the
period at the end thereof and adding the following :
unless and until it shall have been certified by the Board as the
exclusive representative of the employees of said Company.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges 1 filed by Amalgamated Clothing Workers of
America, AFL-CIO (Clothing Workers ), against Topps Kerrmill , Inc., (Company)
and Retail Clerks International Association , AFL-CIO , (Retail Clerks ), and its
Local 1325, the General Counsel of the Board , acting through the Regional Di-
rector for the First Region ; consolidated said cases and , on October 26, 1962, issued
his consolidated amended complaint against the Company, the Retail Clerks, and
its Local 1325 . That complaint alleges that , in violation of Section 8(a)(1) and
(2) of the National Labor Relations Act, as amended , 29 U.S .C. Section 151 et seq.,
herein called the Act , the Company ( a) permitted Respondents Retail Clerks and
its Local 1325 to conduct meetings and organization activities , and to solicit em-
ployees, at its Fall River store during working hours; (b) urged its employees to
join said labor organizations ; and (c) executed a union-security contract with said
labor organizations at a time when they did not represent an uncoerced majority of
the Company 's employees . The amended consolidated complaint further alleges
that Respondent Unions in violation of Section 8(b)(1)(A) and 8 ( b)(2) of the
Act (a ) authorized the Company to urge and solicit its employees to join said labor
organizations ; (b) used the premises of the Company to conduct meetings and
organization activities , and to solicit employees , on company time and property;
and (c ) executed a union-security contract with the Company at a time when it did
not represent an uncoerced majority of its employees . By their separate answers,
all three Respondents denied the commission of any unfair labor practice.
Pursuant to due notice, the hearing herein was held before Trial Examiner David
London at Fall River , Massachusetts , on November 20, 1962 . All parties to the
proceeding participated therein , were given full opportunity to present competent
and relevant evidence , and to present oral argument . On or about January 18,
1963, briefs were received from the General Counsel , the Charging Party, and all
three Respondents , and have been duly considered . Upon the entire record in the
case, and my observation of the witnesses as they testified herein , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Topps Kerrmill , Inc., is , and has been at all times material herein , a corporation
duly organized under and existing by virtue of the laws of the Commonwealth of
Massachusetts . At all times herein mentioned , the Company has maintained an
office and place of business in the city of Fall River, Massachusetts , and is now,
and continuously has been , engaged at said premises in the sale and distribution of
general retail department store merchandise . The Company , in the course and
conduct of its business , causes, and continuously has caused at all times herein
mentioned , large quantities of products sold in said retail department store to be
purchased and transported to it in interstate commerce from and through various
States of the United States other than the Commonwealth of Massachusetts The
Company is one of some 70 wholly owned subsidiaries and stores located in 17 States
owned and operated by Interstate Department Stores, Inc.. a New York corporation,
which has its principal place of business in New York City. The Company does
an annual business in excess of $500,000 annually . The Company admits, and I
1 The original charge in Case No. 1-CA-3799 was filed May 7, 1962, and in Case No.
1-CB-776 on July 16, 1962.
TOPPS KERRMILL, INC. 697
hand , that it is, and has been at all times material herein , an employer engaged in
,,commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America , AFL-CIO, and Retail Clerks In-
ternational Association , AFL-CIO, and its Local 1325, at all times material here-
in were , and now are, labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
In January 1962, one or more organizers for the Retail Clerks, or its Local 1325,
came into the Company's store seeking to "sign up" its employees during working
hours. When this activity came to the attention of Joseph Prague, the Company's
store manager, the Retail Clerks' representatives were, according to Prague, "thrown
out of the store."
In the early part of February,2 Frank Luongo, an organizer for the Clothing
Workers, came into the Company's store and made an attempt to organize its em-
ployees. Though he talked to six or eight employees, at the snack bar "or wherever
they were working," the employees were reluctant to talk with him and he was
unable to get anyone to sign up. Nicholas Aiello, another organizer for the Cloth-
ing Workers, followed up Luongo's efforts aforementioned by calling upon the em-
ployees at their homes. This campaign continued until "about the third week, .. .
when the workers said that they already had a union, that there was some organizer
of the Retail Clerks in the store that had signed up the people."
Aiello reported this information to Harvey L. Friedman, assistant to the New
England director for the Clothing Workers. After discussing the matter with his
superior, Joseph Salerno, the following telegram was sent to, and received by
Prague:
MARCH 2, 1962.
JOSEPH PRAGUE, Store Manager,
Kerr Mills Discount Store,
Kerr Street,
Fall River, Mass.
We have been informed that you have permitted the organizers of the Retail
Clerks of the International Association to sign up the employees of your Fall
River store inside the store and in the manager's office. We demand the
same rights. Please advise.
JOSEPH SALERNO, New England Director,
Amalgamated Clothing Workers of America, AFL-CIO,
73 Tremont Street, Boston, Mass.
Neither Prague, nor anyone else in behalf of the Company, made any response to
the foregoing request.
The "policy," pursuant to which Prague had ejected the organizers of Retail
Clerks or its Local 1325 from its premises for seeking membership of its employees,
was changed on February 28, pursuant to instruction from David Hughes, director
of personnel for Interstate Department Stores, the parent company of Respondent
Company. On that day, Hughes informed Prague "that the Retail Clerks was [sic]
coming into Kerr Mill ... would organize the store, ... and that [he should] assist
them in their organizing [sic] the employees." Prague called Joseph Zendlowitz,
the Interstate Department Stores' group or district manager, and was instructed by
him to comply with Hughes' instructions.
Prague called Respondent Local 1325's office and told Gilbert Howarth, one of
its business agents, of the instructions he had received pertaining to the Retail Clerks.
Shortly thereafter, but still on February 28, Howarth and Arthus Souza, another
business agent for the same local, came to Prague's office. There, Prague gave
them a list of the approximately 50 employees, and the three men "discussed how
[they] could more quickly ... sign up the people." For that purpose, it was de-
cided to use a restroom at the rear of the store, where Prague's office and that of
his clerical assistants were also located.
Howarth and Souza spent the "next two days" in the restroom "signing up
people." Prague spoke to about 30 employees before they were sent to that rest-
room, told them that "the Retail Clerks were going to organize the store, .
suggested that they sign the card . and that it would be to their benefit to sign."
By the end of the second day of this task, March 2, at least 44 employees had
been directed to the restroom either by Prague, or by employees after they left that
2 Unless otherwise Indicated , all reference to dates herein are to the year 1962.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room, and there signed cards designating the Retail Clerks or its Local 1325 as
their collective-bargaining representative . When Prague received the Clothing
Workers' telegram of March 2 , aforementioned , demanding a similar opportunity,
he completely ignored its demands and made no response thereto?
On March 8 , a State labor relations adjuster checked the cards obtained from
the employees as above described against a list of the eligibles , and certified that
44 of 52 eligible employees had designated the Retail Clerks as their collective-
bargaining representative . The Company and Local 1325 thereafter executed a
collective -bargaining agreement , dated March 12 , 1962 , which contract contained
a union -security clause requiring membership in the Retail Clerks as a condition
of employment . Pursuant to that agreement, the Company has checked off the
Retail Clerks ' dues and fees of its employees as authorized by checkoff cards. It
has not, however, remitted the dues to the Union but is holding them "in escrow,"
pending the outcome of the present dispute.
Concluding Findings
It is true , as the Company contends in its brief, that "the Board and the courts
have repeatedly recognized that not every accommodation given by an employer
to a union violates Section 8(a)(2) of the Act." It is equally true and well estab-
lished , however, that there are limits to the accommodation which may be extended,
and that during an organization campaign in which two or more unions are engaged,
an employer may not accord disparate treatment to one of the participating labor
organizations . Indeed, practically all of the cases relied upon by Respondents have
recognized this distinction . Thus, in Jolog Sportswear, Inc., et al., 128 NLRB 886,
cited several times in the Company 's brief, the Board stated that where "unlawful
assistance has occurred , or where the employer has discriminated between compet-
ing unions seeking to represent its employees , . . . such conduct has been found
to violate" Section 8(a) (2) of the Act.
That the Company here gave such unlawful assistance , and also discriminated
against the Garment Workers while the latter was competing with the Retail Clerks
or its Local 1325 for the right to represent the employees , is clearly and abundantly
established by the record made herein.
I need not consider whether or not , standing alone, the employees considered
the use of the Company's facilities by Local 1325 of the Retail Clerks , and the
instructions of the Company to meet with its representatives during working hours,
as a subtle manifestation by their employer that it expected them to join that union .4
Prague cleared the atmosphere in that respect by telling the employees that "the
Retail Clerks were going to organize the store . . . suggest [ ing] that they sign the
card . . . and that it would be to their benefit to sign."
Not only did the Company provide Local 1325 with the facilities and opportunity
to successfully carry on its campaign , but it did so by extending an unsolicited
invitation to make those facilities , and that opportunity , available. In contrast,
the Company completely ignored the demand of the Clothing Workers that it be
given a similar opportunity.
The record establishes conclusively that it was only after the interference of, and
the disparate assistance granted by, the Company that Local 1325 achieved the
8 The findings entered above pertaining to the conduct of Prague are based on his testi-
mony given at the hearing and two sworn statements he gave to a Board agent prior to
the issuance of the complaint herein , almost 6 months before the hearing herein . Though
an attempt was made by Respondent Unions at the hearing to have Prague minimize the
effect of his pretrial statements , observation of his demeanor , consideration of his oral
testimony , and the remainder of the record , compel the conclusion that his pretrial state-
meats should be, and hereby are, credited . Grove Shepherd Wilson & %ruge, Inc., 109
NLRB 209.
4 The Act expresses "a clear legislative policy to free the collective bargaining process
from all taint of an employer's compulsion , domination , or influence . The existence of
that interference must be determined by careful scrutiny of all the factors , often subtle,
which restrain the employees' choice and for which the employer may fairly be said to
be responsible . Thus, where the employees would have just cause to believe that solicitors
professedly for a labor organization were acting for and on behalf of the management,
the Board would be justified in concluding that they did not have the complete and un-
hampered freedom of choice which the At contemplates . Here, there [ is] ample evi-
dence to support that inference ." International Association of Machinists , et al. ( Serrick
Corp .) v. N.L.R.B ., 311 U. S. 72, 80.
TOPPS KERRMILL, INC. 699
majority status upon which it now relies , and pursuant to which it executed its
collective-bargaining agreement with the Company . Thus, though it began its
campaign to organize the Company 's employees in January 1962, all of the 44 au-
thorization cards which the State labor relations adjuster certified as establishing
the Retail Clerks ' majority status were not obtained until after the campaign con-
ducted for 2 days in the restroom on March 1 and 2.5
Upon the authority of GEM International Inc., et al., 137 NLRB 1343, involving
two other locals of the Retail Clerks and Garment Workers in conduct most closely
resembling that found herein , I adopt the rationale of the Board in that case and
find "that, by denying organizational rights to [the Garment Workers ] which it had
accorded to Local [1325], by encouraging its employees to sign authorization cards
in favor of [ that] Local , and by according recognition in the form of a collective-
bargaining agreement containing a union -security arrangement to a union whose
majority status was acquired as a result of the above unlawful acts, [the Company]
has assisted Local [1325 ] in violation of Section 8(a)(2) of the Act, and has
interfered with the rights of its employees in violation of Section 8(a) (1). [I] also
find that by executing a contract containing a union-security agreement with the
unlawfully assisted Union , and by maintaining and enforcing it, [the Company]
has violated Section 8(a) (1) and (3) of the Act; and that Respondent Local [1325],
by maintaining and enforcing said contract , violated Section 8 (b)(1) (A) and (2)
of the Act." 6
Though Respondent International Retail Clerks is named as a Party to the Con-
tract of March 12 with the Company, the General Counsel has failed to establish by
a preponderance of the evidence that the contract was ever executed by that Inter-
national or that , in fact , it ever became a party thereto, nor does the record estab-
lish that the International otherwise engaged in conduct violative of the Act. It
will, therefore , be recommended that the allegations of the complaint charging the
International Retail Clerks with violation of the Act be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Company and Local 1325 have engaged in certain of the
unfair labor practices alleged in the complaint, I recommended that they be required
to cease and desist therefrom and take affirmative action designed to effectuate the
policies of the Act. Since the agreement of March 12, 1962 is found to have been
entered into, and subsequently maintained , under conditions and at a time when
Local 1325 did not represent the free choice of a majority of the employees in the
unit covered thereby, I recommend that the said Respondents be required to set
aside the agreement and that the Company be required to withdraw recognition
from the Retail Clerks and its Local 1325, and continue to withhold recognition
unless and until such time as it or they are certified by the Board in accordance
with the terms of the Act.
Inasmuch as the evidence plainly indicates that the union-security and checkoff
provisions and the authorization cards executed in accordance with the terms of
the agreement of March 12 are inseparable parts of the unlawful course of conduct
of those Respondents, it is recommended that the Company and Local 1325, jointly
and severally, reimburse the Company's employees for amounts deducted from their
wages pursuant to these authorizations. The reimbursement of dues and fees shall
bear interest in accordance with the formula set forth in Seafarers' International
Union, 138 NLRB 1142.
Upon the basis of the foregoing findings of facts, and upon the entire record in
the case, I make the following:
5 No official of the Retail Clerks, or its Local 1325, was called upon to testify. The
failure to do so, warrants an inference that if their testimony were adduced, it would
not be favorable to that Respondent. Interstate Circuit v. United States, 306 U.S. 208,
225-226; N.L R B. v. Wallick and Schwalm Company, et at ., 198 F. 2d 477, 483 (C.A. 3).
0 See also Salmirs Oil Company, 139 NLRB 25.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Respondent International Retail Clerks, and
its Local 1325, are labor organizations within the meaning of Section 2(5) of
the Act.
2. By soliciting employee authorizations for, and rendering illegal support and
assistance to, Local 1325; by according exclusive representation rights to Local
1325 at a time when it did not represent an uncoerced majority of employees; and
by providing for union-security provisions in such agreement, the Company has
engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and
(3) of the Act, and Local 1325 has engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent International Retail Clerks has not engaged in violation of the
Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, I recommend that:
A. Topps Kerrmill, Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Assisting or contributing upport to Local 1325, or to any other labor
organization.
(b) Recognizing Local 1325 as the representative of any of its employees for
the purpose of dealing with it concerning wages, rates of pay, hours of employ-
ment, or other conditions of employment , unless and until such labor organiza-
tion shall have been certified by the Board as the exclusive representative of the
Company 's employees.
(c) Giving effect to the collective -bargaining agreement entered into on or about
March 12, 1962, or to any extension , renewal , or modification thereof, or any
other contract or agreement with such labor organization which may now be in
effect.
(d) In any other manner interfering with, restraining , or coercing employees in
the exercise of their right to self-organization , to form, join , or assist any labor
organization including Amalgamated Clothing Workers of America, AFL-CIO,
to bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action which I find to be necessary and ap-
propriate to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the Retail Clerks International
and or its Local 1325 as the exclusive representative of its employees unless and
until such labor organization shall have been certified by the Board as such
representative.
(b) Jointly and severally with Respondent Local 1325 reimburse all its em-
ployees, present and former , for dues and fees paid by them to Respondent Local
1325 on and after March 12, 1962, or withheld from them by the Company for that
purpose, in the manner and to the extent set forth in that portion of this Intermedi-
ate Report entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all records necessary to determine the amounts of reim-
bursement due under the terms of this Recommended Order.
(d) Post at its premises in Fall River, Massachusetts , copies of the attached
notice marked "Appendix A." 7 Copies of the notice to be furnished by the Re-
gional Director for the First Region shall , upon being duly signed by the Company,
7 In the event that this Recommended Order, as well as those hereinafter stated with
respect to Local 1325, shall be adopted by the Board, the words "A Decision and Order"
shall be substituted for the words "The Recommended Order of a Trial Examiner" in the
notices In the further event that the Board's Order be enforced by a United States
Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing
an Order" shall be substituted for the words "A Decision and Order."
TOPPS KERRMILL, INC. 701
be posted by it immediately upon receipt thereof in conspicuous places, including
all places where notices to employees are customarily posted, and maintained by it
for a period of at least 60 consecutive days after posting. Reasonable steps shall
be taken by the Company to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Mail to the Regional Director for the First Region signed copies of the
attached notice marked "Appendix A" for posting by Local 1325 at its offices and
meeting halls where notices to members are customarily posted. Copies of the
notice to be furnished by the Regional Director shall, after being duly signed by
the representative of the Company, be forthwith returned to the Regional Director
for such posting.
(f) Post at the same places and under the same conditions as set forth in (d)
above, as soon as they are forwarded by the Regional Director, copies of the at-
tached notice marked "Appendix B."
(g) Notify the Regional Director for the First Region in writing, within 20 days
from the receipt of this Intermediate Report, what steps the Company has taken to
comply herewith.8
B. Respondent Local 1325, its officers agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Giving effect to the collective-bargaining agreement entered into on or
about March 12, 1962, with Topps Kerrmill, Inc., or any extension, renewal, or
modification thereof.
(b) Causing Topps Kerrmill, Inc., to discriminate against its employees in viola-
tion of Section 8 (a) (3) of the Act.
(c) Acting as the exclusive bargaining representative of the employees of Topps
Kerrmill, Inc , for the purpose of dealing with said Company concerning wages,
rates of pay, hours of employment, or other conditions of employment, unless and
until said labor organization shall have been certified by the Board as such exclusive
representative.
(d) In any other manner restraining or coercing employees of the Company in
the exercise of the rights guaranteed them in Section 7 of the Act, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which I find necessary and appropriate
to effectuate the policies of the Act:
(a) Jointly and severally with the Company reimburse all employees of Topps
Kerrmill, Inc., present and former, for dues and fees paid by them to Local 1325,
or withheld by said Company, on or after March 12, 1962, in the manner and to
the extent set forth in that portion of this Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board, or its agents, for
examination and copying all records necessary to determine the amount of reim-
bursement due under the terms of this Recommended Order.
(c) Post at its offices and meeting halls copies of the attached notice marked
"Appendix B." Copies of said notice to be furnished by the Regional Director for
the First Region shall, after being duly signed by an authorized representative of
Local 1325, be posted by it immediately upon receipt thereof and maintained by it
for 60 consecutive days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable step shall be taken to see
that said notices are not altered, defaced, or covered by any other material.
(d) Mail to the Regional Director for the First Region signed copies of the
attached notice marked "Appendix B" for posting by the Company as provided
herein. Copies of said notice to be furnished by the Regional Director, shall, after
being duly signed by representatives of Local 1325, be forthwith returned to the
Regional Director for such posting.
(e) Post at the same places and under the same conditions as (c), immediately
above, as soon as they are forwarded by the Regional Director, copies of the
Company's notice herein marked "Appendix A."
(f) Notify said Regional Director, in writing, within 20 days from the date of the
receipt of this Intermediate Report what steps Local 1325 has taken to comply
herewith.
s In the event that this Recommended Order, as well as the recommendations herein-
after included with respect to Local 1325 , are adopted by the Board, this provision as
well as that pertaining to the Union shall be modified to read, "Notify the Regional
Director for the First Region , in writing , within 1 0 days from the date of receipt of
this Order, what steps the Company (or Union ) has taken to comply herewith."
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the allegations of the complaint charging the In-
ternational Retail Clerks with violations of the Act be dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT give effect to the collective -bargaining agreement entered into
on or about March 12, 1962, with Local 1325, Retail Clerks International
Association , AFL-CIO, or to any extension , renewal or modification thereof.
WE WILL NOT assist or contribute support to said Local 1325, or any other
labor organization.
WE WILL NOT require as a condition of employment that employees be-
come or remain members of the above -named labor organization.
WE WILL withdraw and withhold recognition from said Local 1325 and its
International Organization , or any successor thereof unless and until such labor
organization shall have been certified by the Board as the exclusive representa-
tive of our employees.
WE WILL, jointly and severally with said Local 1325, reimburse all employees
for dues, fees, and other assessments exacted from them pursuant to the un-
lawful agreement entered into on or about March 12, 1962.
WE WILL NOT in any other manner interfere with , restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
any labor organization including Amalgamated Clothing Workers of America,
AFL-CIO , to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining,
or other mutual aid or protection, or to refrain from any or all such activities.
All our employees are free to become or remain , or to refrain from becoming or
-remaining , members of a labor organization except to the extent that such rights may
be affected by an agreement conforming to the provisions of Section 8 (a) (3) of
the National Labor Relations Act, as amended.
Tors KERRMILL, INC.,
Employer.
Dated------------------- By-------------------entative
---) ---------- (----
Title)
-------
(Repres
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate with the Board 's Regional Office, 24 School Street,
Boston, Massachusetts, 02108, Telephone No. Lafayette 3-8100, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX B
To ALL MEMBERS OF LOCAL 1325, RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO, AND To EMPLOYEES OF TOPPs KERRMILL, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT cause, or attempt to cause, Topps Kerrmill, Inc., to discriminate
against their employees in violation of Section 8(a)(3) of the National Labor
Relations Act, as amended.
WE WILL NOT give effect to the collective-bargaining agreement entered into
on or about March 12, 1962, with the above-named employer or to any ex-
tension, renewal , or modification thereof.
WE WILL NOT act as the exclusive bargaining representative of any of the
employees of the above -named employer unless and until we have been cer-
tified by the Board as such representative.
WE WILL NOT in any other manner restrain or coerce the said employees in
the exercise of the rights guaranteed them in Section 7 of the Act except to the
extent that such rights may be lawfully affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized by
Section 8(a) (3) of the Act, as amended
WESTERN AUTO ASSOCIATE STORE 703
WE WILL , jointly and severally with the above-named employer , reimburse
its employees for dues, fees, and other assessments exacted from them on and
after March 12, 1962.
LOCAL 1325 , RETAIL CLERKS
INTERNATIONAL ASSOCIATION,
AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 24 School
Street , Boston , Massachusetts , 02108 , Telephone No. Lafayette 3-8100 , if they have
any question concerning this notice or compliance with its provisions.
Dan T . Edwards and Son d/b/a Western Auto Associate Store
and Local 646, International Hod Carriers , Building and Com-
mon Laborers Union of America, AFL-CIO. Case No. 1I-CA-
2315. July 22, 1963
DECISION AND ORDER
On February 20, 1963, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in the unfair labor practices alleged in
the, complaint and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reveiwed the rulings of the Trial Examiner 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 and the entire record in the case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and-
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat . 136), herein called the Act was heard before Trial
Examiner Eugene E . Dixon at St . Louis, Missouri , on January 23, 1963 , pursuant
to due notice with all parties being represented by counsel . The complaint , issued
by a representative of the General Counsel for the National Labor Relations Board
(herein called the General - Counsel and the Board) on November 9, 1962, and
based upon charges filed and served on June 25 and 26, 1962 , by Local 646 ," Inter-
national Hod Carriers, Building and Common Laborers Union of America, AFL-
143 NLRB No. 82.