U-Tell Corp.

National Labor Relations Board - Board Decisions

Feb 3, 1965

150 N.L.R.B. 1534 (N.L.R.B. 1965)

1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (5) of the Act.
[Recommended Order omitted from publication.]
U-Tell Corporation and Retail Store ' Employees Union, Local
444, Retail Clerks International Association , AFL-CIO. Case
No. 30-CA-29 (formerly 13-CA-6060). February 3, 1965
DECISION AND ORDER
On August 19, 1964, Trial Examiner Horace A. Ruckel issued
his Decision in the above-entitled proceeding, finding that Re-
spondent had engaged in certain unfair labor practices alleged in
the complaint and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Decision. The Trial Examiner further found that the
Respondent had not engaged in one unfair labor practice alleged
in the complaint and recommended that the complaint be dismissed
with respect to the latter allegation. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's failure to make
certain findings and conclusions and filed a brief in support thereof
and in support of the remainder of the Trial Examiner's Decision.
The Respondent filed exceptions to the portion of the Trial
Examiner's Decision in which it was found to have violated the
Act and filed a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National
Labor Relations .Act, the Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, exceptions, briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
x The Trial Examiner erroneously fixed the date of the meeting of Respondent's cashiers
as July 21, 1963 Such meeting was in fact held on September 21, 1963. We do not
find the variance in these dates to be material to the finding of a violation with respect
to payment of compensation to the employees who attended the meetings of July 20
and September 21, 1963, or with respect to the statements of Dumke, the chief cashier,
at the latter meeting.
150 NLRB No. 149.
U-TELL CORPORATION 1535
as its Order, the Order recommended by the Trial Examiner and
orders that Respondent 1T--Tell Corporation, its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner 's Recommended Order-
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on December 4, 1963, by Retail Store Employees Union,
Local 444, herein called the Union, the General Counsel for the National Labor
Relations Board, respectively called the General Counsel and the Board, by the
Regional Director for Region 13 (Chicago, Illinois), issued a complaint dated
March 2, 1964, against U-Tell Corporation, herein called Respondent, alleging, as
amended at the hearing, that Respondent had engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act, by threatening its employees with
reprisals if they joined or assisted the Union, and by conducting two antiunion meet-
ings of employees in the plant. Respondent filed an answer denying that it had
engaged in any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Horace A. Ruckel
at Milwaukee, Wisconsin, on April 13, 1964, at which the parties were represented by
counsel. Upon the conclusion of the hearing the parties waived oral argument. They
subsequently filed briefs.
Upon the record as a whole, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT -
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation with an office and place of business in
Milwaukee, where it operates a retail department store. During the fiscal year prior
to the issuance of the complaint Respondent derived a gross income from its opera-
tions in excess of $500,000. During the same period it purchased goods and mate-
rials valued in excess'of $50,000 which were shipped to it from points directly outside
the State of Wisconsin. The complaint alleges and Respondent's answer admits that
it is engaged in commerce and has affected commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 444, Retail Clerks International Association,
AFL-CIO, is a labor organization admitting employees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion
During the latter part of 1963 the Union began the organization of Respondent's
employees and a Board election was set for September 27. On July 20, 1963, Nicho-
las Petros , Respondent 's store manager , convened a meeting in the cafeteria attended
by approximately 50 employees . The Union was a subject of discussion but no anti-
union remarks are attributed to Petros or any other supervisor . It is undisputed,
however, that the employees were paid an hour's wages for attending the meeting,
whereas they had never previously been paid for attending such meetings . This prac-
tice, which has been continued , the General Counsel asserts , is violative of the Act
in that it constitutes a benefit conferred on employees while an election was pending.
On the following day, Saturday , July 21, an hour before starting time, Frances
Dumke, Respondent 's head cashier and admittedly a supervisor , called a meeting
attended by about 15 of Respondent 's 20 cashiers and spoke to them concerning the
Union . As was the case with the general meeting of employees the previous day,
Respondent paid the cashiers for attending the meeting although it had not previously
done so.
It is stipulated that Dumke declared to the cashiers that if the Union came in certain
"freedoms" that they previously enjoyed would be abrogated , for example the free-
775-692-65-vol. 150-98
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dom to "switch" vacations and workdays among themselves , to come to work on
occasion at 5:30 or 6 p . m. instead of 5 p.m., the regular starting time for the evening
shift, and to take extensive leaves of absence without loss of seniority rights. -
. Concurrently with the above activities Respondent , during the period immediately
preceding the election , published and circulated among its employees four letters in
which, although the General Counsel asserts Respondent "walked the tenuous' line
that separates permissive propaganda from coercive conduct," it did not overstep it.
Respondent 's letters were a proper exercise of free speech.
B. Conclusions
In paying its employees for attendance at plant meetings when prior to the Union's
organizing campaign it had not so paid them, Respondent granted them an economic
benefit which , when taken in conjunction with Dumke's remarks on the following
day to the cashiers that if the Union came in they would be deprived of certain spe-
cific benefits previously enjoyed, suggests the "fist inside the velvet glove" as the
Supreme Court described it in N.L.R.B. v. Exchange Parts, 375 U.S. 405. This was
violative of the Act . In addition , and as the reverse of the coin, Dumke 's statement
that Respondent would withdraw certain benefits if the Union came in constituted
interference , restraint , and coercion in the exercise of rights guaranteed in Section 7
of the Act. -
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
2. Retail Store Employees Union, Local 444, Retail Clerks International Associa-
tion , AFL-CIO, is a labor organization within the meaning of Section 2(5) 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, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair laborpractices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case , it is recommended that U-Tell Corporation, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act by granting them economic benefits or by
changing the terms and conditions of employment ; provided , however, that nothing
in this Recommended Order shall be construed as requiring Respondent to vary or
abandon any economic benefit or any term or condition of employment which it has
heretofore established.
(b) Threatening to deprive employees of existing benefits if the Union should
come to represent Respondent 's employees.
(c) In any like or related manner interfering with , restraining , or coercing employ-
ees in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its offices at Chicago , Illinois, copies of the attached notice marked"
"Appendix ." 1 Copies of said notice , to be furnished by the Regional Director for
Region 13 , shall, after being duly signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , or covered by any other material.
IIn the event that this Recommended Order be adopted by the Board the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words " a Decision
and Order ." i -. • _
ALTA-DENA DAIRY 1537
(b) Notify said Regional Director, in writing, within 20 days from the date of
this Decision and Recommended Order, what steps the Respondent has taken to
comply herewith.2
It is further recommended that the complaint be dismissed as to all allegations not
specifically found herein to have been in violation of the Act.
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act by granting them, or threatening
to withdraw, economic benefits, or by changing the terms or conditions of their
employment, provided, however, that nothing in these recommendations requires
us to vary or abandon any economic benefit or any term or condition of employ-
ment which has heretofore been established.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist Retail Store Employees Union, Local 444, Retail Clerks International
Association, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
right is affected by the provisos in Section 8(a)(3) of the Act.
U-TELL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Alta-Dena Dairy and Dairy Employees, Plant & Clerical, Local
93, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , Petitioner . Case No. 21-RC-
8882. February 3, 19615
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before a Hearing Officer
of the National Labor Relations Board. The Hearing Officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. Thereafter, a brief was filed by the Employer
herein.
150 NLRB No. 142.