A. E. Nettleton Co.

National Labor Relations Board - Board Decisions

Jun 30, 1954

108 N.L.R.B. 1670 (N.L.R.B. 1954)

1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. E. N E T T L E T O N CO., N E T T L E T O N SHOPS, INC.,
EMPIRE STATE NETTLETON COMPANY, INC., NETTLE-
TON ROOSEVELT COMPANY, INC., and MANHATTAN
N E T T L E T O N COMPANY, INC. and RETAIL SHOE EM-
PLOYEES UNION, LOCAL 1268, CIO. Case No. 2-CA-2903.
June 30, 1954
DECISION AND ORDER
On February 11, 1954, Trial Examiner Reeves R. Hilton
issued his Intermediate Report in the above entitled pro-
ceeding , finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recommending
that they cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Exami-
ner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case, and hereby adopts the Trial
Examiner's findings , conclusions, and recommendations , except
as hereafter noted. I
1. A majority of the Board, consisting of Members Murdock,
Peterson and Beeson , find , in agreement with the Trial Exami-
ner, that the Respondents independently violated Section 8 (a)
(1) by virtue of the following incidents : ( 1) Buell ' s asking
Winch, in the latter part of August 1952 ,. whether he had joined
the Union and then remarking that Winch had made a mistake
in joining the Union ; ( 2) Radazzo ' s asking Florentine, in
September , who had started the union movement ; and (3)
Buell ' s urging Schneyman , on January 5, 1953 , to resign from
the Union and return to work for the Respondents.'
'The Intermediate Report contains certain minor misstatements or inadvertencies, none
of which affects the Trial Examiner's ultimate conclusions. Accordingly, we note the following
corrections:
Winch's letter addressed to Buell, requesting a wage increase , was sent in March 1952,
not June.
Bond testified that the parties agreed that for salesmen ' s commission purposes slippers
were to be treated as shoes, not "findings."
Bond testified that prior to the December 9 meeting the Respondents' representatives,
not the "parties," had discussed the health and pension plans.
The same representatives appeared at the January 20, 1953, meeting as had appeared at
the January 19 meeting, except Schneyman,
2 Chairman Farmer and Member Rodgers do not adopt these findings because, in their view,
the first two incidents are isolated remarks occurring in an atmosphere free of antiumon
background and are not part of a pattern of conduct hostile to the Union. They believe the
record shows that the meetings between the Respondents and the Union, after the occurrence
of these events, opened in a friendly, cooperative atmosphere and generally fails to establish
that the remarks were motivated by antiunion considerations or had any coercive impact.
They reject the third of these findings that Section 8 (a) (1) has been violated because, in
their opinion, the record establishes that Schneyman exercised supervisory authority, and, they
find, therefore, that remarks made to him cannot constitute the basis for an unfair labor
practice finding.
108 NLRB No, 236.
A. E. NETTLETON CO. 1671
A majority of the Board, consisting of Chairman Farmer
and Members Rodgers and Beeson, find, contrary to the
Trial Examiner, that Bond's interrogations of Schneyman and
Winch, about October 1, 1952, as to the Union's representation
status among the employees were not violative of Section 8 (a)
(1). They believe that Bond's questioning was a bona fide attempt
by the Respondents to determine the validity of the Union's
representation claim.3 They further believe that the Respond-
ents' subsequent recognition of the Union, without requiring a
Board-conducted election, conclusively establishes thatverifi-
cation of the Union's claim was the sole purpose of Bond's
interrogations.
2. The Board unanimously adopts the Trial Examiner's most
significant finding herein, that the Respondents have violated
Section 8 (a) (5). The record clearly establishes that the
Respondents' conduct in dealing with the Union did not meet
the good-faith bargaining requirements of the Act. In reaching
this conclusion, the Board has relied particularly upon the
Respondents ' offers of wage increases and other benefits
directly to the employees at a time when the Respondents had
scheduled further bargaining conferences with the Union.
In reaching this conclusion, however, Chairman Farmer
and Member Rodgers do not rely upon the fact that the
Respondents, at first, made no counterproposals and only
minor concessions with respect to the Union's demands; that
the Respondents' negotiating representatives, at the early
meetings, allegedly lacked authority to conduct the negotiations
to final agreement; and that the Respondents postponed further
bargaining meetings because of Radazzo's illness. In their
view, the January 19 and 20, 1953, conferences, at which the
Respondents submitted counterproposals, delegated sufficient
bargaining authority to its negotiators, and participated without
Radazzo, negate any inference of bad faith in the preceding
meetings.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respond-
ents, A. E. Nettleton Co., Nettleton Shops, Inc., Empire
State Nettleton Company, Inc., Nettleton Roosevelt Company,
Inc., and Manhattan Nettleton Company, Inc., their respective
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
sMembers Murdock and Peterson would adopt the Trial Examiner 's finding that Bond's
interrogations were violative of Section 8 (a) (1) on the ground that such incidents had a
coercive impact upon the employees . They believe , in agreement with the Trial Examiner,
that the Respondents were obligated to ascertain the merits of the Union ' s representation
claim through the mechanics of the Board and/or the Union.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Interrogating its employees with regard to their member-
ship , or nonmembership , in Retail Shoe Employees Union,
Local 1268, CIO, or in any other labor organizations, in a
manner constituting interference , restraint , or coercion, in
violation of Section 8 (a) (1) of the Act.
(b) Bargaining directly with its employees in disregard of
Retail Shoe Employees Union , Local 1268, CIO, the exclusive
representative of all employees at the New York City stores
of Empire State Nettleton Company, Inc., Nettleton Roosevelt
Company, Inc., and Manhattan Nettleton Company, Inc., exclud-
ing managers and supervisors as defined in the Act, or other-
wise refusing to bargain collectively with the said Union.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist
Retail Shoe Employees Union, Local 1268, CIO, or any other
labor organization , to bargain collectively through represen-
tatives 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 of
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.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with Retail Shoe
Employees Union, Local 1268, CIO, as the exclusive bargain-
ing representative of all employees in the above- described
unit, with respect to rates of pay, wages , hours of employment,
and other conditions of employment, and, if an understanding
is reached , embody such understanding in a written, and
signed , agreement.
(b) Upon application , offer all striking employees of Empire
State Nettleton Company, Inc., Nettleton Roosevelt Company,
Inc., and Manhattan Nettleton Company, Inc., who have not
been reinstated , immediate and full reinstatement to their
former or substantially equivalent positions , without preju-
dice to their seniority or other rights and privileges, dis-
missing , if necessary , any persons hired on and after January
6, 1953.
(c) Make whole the striking employees specified in para-
graph 2 (b) hereof for any loss of pay they have suffered
or may suffer by reason of the Respondents ' refusal , if any,
to reinstate them in the manner provided in the section of
the Intermediate Report entitled , "The Remedy."
(d) Upon request , make available to the National Labor
Relations Board or its agents, for examination or copying,
all payroll records, social -security payment records, time-
cards, personnel records and reports , and all other records
A. E. NETTLETON CO. 1673
pertinent to a computation of the amounts of back pay due and
the rights of reinstatement under the terms of this Order.
(e) Post at their respective places of business copies of
the notice attached hereto as an "Appendix." 4 Copies of said
notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondents'
representative, be posted by the Respondents immediately upon
receipt thereof and maintained by them for sixty (60) consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for the Second Region, in
writing , within ten (10) days from the date of this Order, as to
the steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondents have violated the Act otherwise
than herein found be, and it hereby is, dismissed.
41n the event that this Order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT interrogate our employees with regard
to their membership, or nonmembership, in Retail Shoe
Employees Union, Local 1268, CIO, or in any other labor
organization , in a manner constituting interference, re-
straint, or coercion, in violation of Section 8 (a) (1) of the
Act.
WE WILL NOT bargain directly with our employees in
disregard of Retail Shoe Employees Union, Local 1268,
CIO, the exclusive representative of the following bargain-
ing unit of employees:
All employees at the New York City stores of Empire
State Nettleton Company, Inc., Nettleton Roosevelt Com-
pany, Inc., and Manhattan Nettleton Company, Inc., exclud-
ing managers and supervisors as defined in the Act,
or otherwise refuse to bargain collectively with the said
Union.
1 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self- organization , to form labor organizations, to
join or assist Retail Shoe Employees Union , Local 1268,
CIO, or any other labor organization, to bargain collec-
tively 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 of 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.
WE WILL, upon request , bargain collectively with
Retail Shoe Employees Union, Local 1268, CIO, as the
exclusive bargaining representative of all the employees
in the above -described unit , with respect to rates of pay,
wages, hours of employment, and other conditions of
employment , and, if an understanding is reached , embody
such understanding in a written and signed agreement.
WE WILL , upon application , offer all striking employees
of Empire State Nettleton Company, Inc., Nettleton Roose -
velt Company, Inc., and Manhattan Nettleton Company,
Inc., who have not been reinstated , immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights andprivileges , dismissing , ifnecessary , anypersons
hired on and after January 6, 1953.
WE WILL make whole the aforesaid striking employees
for any loss of pay suffered, or which may be suffered, by
reason of our refusal , if any, to reinstate them, by pay-
ment to each of them of a sum of money equal to that he
normally would have earned as wages for the period
starting five ( 5) days after the date of his application for
reinstatement to the date of our offer to reinstate him,
less his net earnings , if any, during that period.
A. E. NETTLETON CO., NETTLETON SHOPS, INC.,
EMPIRE STATE N E T T L E T O N COMPANY, INC.,
NETTLETON ROOSEVELT COMPANY, INC., and
MANHATTAN NETTLETON COMPANY, INC.,
Employer.
Dated ................ By ....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced , or covered by any
other material.
A. E. NETTLETON CO.
Intermediate Report
STATEMENT OF THE CASE
1675
This proceeding, brought under Section 10 (b) of the Labor Management Relations Act of
1947, 61 Stat. 136, herein called the Act, was heard in New York City, on various dates between
September 21 and October 19, 1953, pursuant to due notice to all parties. The complaint,
issued on April 30, 1953, by the General Counsel of the National Labor Relations Board,'
and based on charges as amended duly filed and served, alleges, as specified in a bill of
particulars, that the above-named Companies have engaged in certain unfair labor practices
proscribed by Section 8 (a) (1) and (5) of the Act. The answer, denies the commission of any
unfair labor practices.
The above-named Companies are herein referred to as Nettleton Company, Nettleton
Shops, Empire State, Roosevelt, and Manhattan, respectively, and are collectively referred to
as the Respondent or the Company.
All parties were represented at the hearing and were afforded opportunity to be heard, to
examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and
to file briefs. Thereafter counsel for the Respondent filed a brief which has been considered
by the undersigned.?
Upon the entire record in the case and from observation of the witnesses, the undersigned
makes the following:
FINDINGS OF FACT
I, ORGANIZATION AND BUSINESS OF THE COMPANY
Nettleton Company, a New York corporation, has its office and plant in Syracuse, New York,
where it is engaged in the manufacture, sale, and distribution of "Nettleton" shoes and related
products. It employs about 350 production employees. It also maintains a display room in
New York City. During the year 1952, it purchased leather and other products, of which in
excess of $ 500,000 represented shipments to its plant from outside the State of New York. In
the same period finished products valued in excess of $100,000 were shipped to places
outside the State.
Nettleton Shops, a New York corporation, is awholly owned subsidiary of Nettleton Company
and maintains its offices in the Nettleton Company building in Syracuse from which it operates,
manages, and controls 12 retail shoe stores and 24 "leased departments" (shoe departments
in department stores) located in various States. The Company has a staff of 12 clerical and
office employees. Each of the stores and leased departments is a separate corporation and a
wholly owned subsidiary of Nettleton Shops.
Empire State, Roosevelt, and Manhattan, New York corporations, are three of the above-
mentioned retail stores and are located in New York City.
The foregoing corporations have the same officers, who also serve as directors, namely:
Henry W. Cook, president
Robert S. Cook, vice president
Robert S. Merrill , secretary- treasurer
The retail stores sell Nettleton and Barclay brands of shoes, the latter being manufactured
by two independent companies. According to WilllamH, Frost, assistant treasurer of Nettleton
Shops and its subsidiaries, the store managers submit a weekly order to Nettleton Shops
which, after approval, is sent to Nettleton Company for filling. The latter Company then bills
and ships the shoes directly to the store. The store manager, after checking the shipment,
sends the bill to Nettleton Shops which pays the same through a central banking account and
charges the expenditure to the particular store. The same procedure is followed in respect
to purchases of Barclay shoes. Nettleton Company sells approximately 40 percent of its entire
'The General Counsel and the staff attorney appearing for him at the hearing are referred
to as the General Counsel and the National Labor Relations Board as the Board.
2 The parties filed certain stipulations correcting portions of the record, which are accepted
and marked as Trial Examiner's Exhibits Nos, 1 and 2.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production to the stores and the remainder to dealers. During 1952, the combined purchases
of shoes and allied merchandiseby EmpireState, Roosevelt, and Manhattan exceeded $ 150.000,
of which about 35 percent represented direct shipments from out-of-State with the remainder
coming from Nettleton Company. Purchases for other retail stores, on the same percentage
basis amounted to about $ 10,000 per store. Thetotal sales for all stores exceeded $ 1,000,000.
Charles W. Buell is general manager of Nettleton Shops and exercises final authority, subject
only to Henry W. Cook, (hereafter referred to as Cook) on all matters pertaining to the opera-
tion of the stores, including the formulation of labor policy In turn the store managers are
responsible to Buell for the operation of their respective stores. Paul J. Stover is Buell's
assistant.
Frost stated that all books and records relating to the stores are maintained by Nettleton
Shops, except that store managers keep inventory and accounts--receivable records. Each
store has a checking account in which the manager deposits daily the store receipts and the
money is then transferred from those banks to Nettleton Shops general fund. The store
managers are not authorized to issue checks but may pay small items in cash which come up
in the course of everyday business. The managers pay the store employees from a petty-
cash check which is sent to them each week for that purpose. Nettleton Shops prepares
payroll tax returns for the stores and engages an accounting firm to conduct periodic audits,
for which each store pays its pro rata share of the expense.
John A. Lemly, publicity director for Nettleton Company, gave substantially the same account
as Frost regarding the management and operations of the various companies
George H. Bond, Jr., attorney, testified that his firm had represented Nettleton Company
in labor relations matters for a number of years and since about 1948 he represented the Com-
pany in its negotiations with the United Shoe Workers of America, CIO, covering the factory
employees. He stated that the Company and the union have had agreements since about 1945,
and that in the negotiations he conducted Cook was kept informed of the terms of the agreement
prior to its execution. Bond said he was retained by Cook about August 20, 1952, to represent
Nettleton Shops and the stores in the present matter and thereafter acted as representative
and spokesman at various meetings with the Union.
The Parties Respondent
During the hearing counsel at various times moved to dismiss the proceedings as to
Nettleton Company and Nettleton Shops for the reason that they were not proper parties to
the proceedings,3 which motions were denied. The same question is presented in counsel's
brief. The principal grounds relied upon by counsel are: separate identities and functions
of the corporations, lack of community of interest among the corporations as well as their
respective employees, and the fact that the employees involved herein are employed and paid
directly by Empire State, Roosevelt, and Manhattan. Counsel also refers to the agreements
Nettleton Company has with the United Shoe Workers of America, CIO, and that its labor
policy is fixed by Superintendent Starner, who is responsible to Cook. Substantially the same
argument is made on behalf of Nettleton Shops which counsel term a service corporation
performing merchandising and clerical services for the stores.
In short, the General Counsel contends that the affairs of the companies are so closely
related and integrated as to constitute a single employer. At the hearing counsel spent much
time on two road trips made by Donald L. Winch, a salesman at Manhattan, in the fall of 1951
and the spring of 1952, for the purpose of displaying Nettleton and Barclay shoes to the store
managers. While thus employed his salary was paid by Nettleton Company and his expenses
by Nettleton Shops. Subsequently, Nettleton Company billed Nettleton Shops for the amount
it paid Winch. The undersigned attaches no significance to these trips, other than the financial
transactions between the companies is in line with the business procedures as related by Frost.
The recent decision of the Circuit Court of Appeals for the Second Circuit in N. L. R. B.
v. National Shoes, Inc., and National Syracuse Corp., 208 F. 2d 688, is decisive of the issue
of whether the five corporations may considered as a single employer for the purposes
of this proceeding. In that case National Shoes was engaged in the purchase of shoes and related
products which it distributed through numerous retail stores, including National Syracuse
and subsequently filed charges alleging a refusal to bargain and interference with the rights
3Section 2 (2) of the Act provides : "When used in this Act--(1) The term 'person' includes
one or more individuals .. , corporations , legal representatives .... (2) The term 'employer'
includes any person acting as an agent of an employer , directly or indirectly...."
A. E. NETTLETON CO. 1677
of the employees guaranteed under the Act. Thereafter, the Board duly issued its decision
wherein it found that the respondents constituted a single employer and entered an order
in customary terms requiring the respondents to cease and desist from engaging in the un-
fair labor practices found. National Shoes contended that the evidence was insufficient to
support the finding that it was an employer as defined in the Act. The record disclosed that
all of the stores were owned and operated by National Shoes and that National Syracuse pur-
chased its merchandise from this corporation. The business and intercorporate relationships
were closely integrated and the corporations had the same officers and directors. Labor policy
of National Shoes was determined by its officers, one of whom also fixed such policy for
National Syracuse and counsel for both corporations conducted the bargaining negotiations.
On the basis of this evidence the court held that the relationship between the two corporations
amply supports the conclusion that the respondents might properly be considered as a single
employer.
The evidence herein establishes an identical relationship between Nettleton Shops and the
stores, so the undersigned finds and concludes that Nettleton Shops and Empire State, Roose-
velt, and Manhattan may be considered as a single employer. The remaining issue to be de-
termined is whether Nettleton Company is to be included therein. As the testimony plainly
discloses Nettleton Company owns all the stock of Nettleton Shops and sells 40 percent of its
entire production to this corporation. The officers and directors are identical and certainly
their business is closely related. Cook, as president of these corporations, prescribes labor
policy and Buell is responsible for carrying out this policy with respect to the employees of
Nettleton Shops and the stores. Bond acted as counsel for Nettleton Company as well as Nettle-
ton Shops and the stores and conducted the negotiations with the Union.
By virtue of the above-described corporate pyramid Nettleton Company through its subsid-
iary Nettleton Shops, maintains effective control and management over the operation and affairs
of the various stores including the labor policy to be followed by the store corporations. Under
these circumstances, as well as subsequent findings herein, the undersigned concludes that
the five corporations may be considered as a single employer for the purposes of the Act.
The parties stipulated that Nettleton Company manufactures shoes which flow in interstate
commerce and that Nettleton Shops is engaged in interstate commerce.
The undersigned finds that the Company is engaged in commerce as defined in the Act.
II. THE LABOR ORGANIZATION
Retail Shoe Employees Union, Local 1268, CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Personnel at the stores
During the period in question the stores employed the following named persons:
Empire State
Cyrus S. Bloom, manager
Maurice Borst, salesman, terminated
about September 1952
Alvin F. Swanberg, salesman, employed
about October 1952
Ben Lewis, porter (part time)
Roosevelt
Louis Radazzo, manager
Henry Schneyman, salesman
Ralph M. Tedrow, salesman
Martin J. Florentine, salesman
Herbert R. Carnell, salesman
Victoria Stein, cashier-bookkeeper
William D. Hayden, porter
16 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manhattan
Robert C. Darnell, manager
Donald L. Winch, salesman
Clarence C. Edwards , salesman
(left November 22, 1952)
Ben Lewis, porter (part time)
B. Organizational activities
Schneyman testified that about the middle of March 1952 he talked to Buell at the Roosevelt
store in regard to a wage increase and Buell suggested that he put his request in writing.
Schneyman thereupon prepared such a letter which he gave to either Buell or Radazzo.
Under substantially the same circumstances Tedrow and Winch sent similar letters to Buell
during March and June, respectively. Radazzo also told Florentine to submit a letter to
Buell, which he did in April or June. Shortly before Radazzo left for his vacation, August 18.
Stein asked for an increase and he promised to obtain the same for her upon his return.
Buell did not reply to the above letters so on August 13, 9 of the 10 employees went to the
officie of the Union and signed membership application cards.4
C. The Union' s request for a meeting
On August 19 David Geisler, business agent, sent a letter to Nettleton Shops , attention of
Buell , advising him that the employees had joined the Union and requested a meeting be ar-
ranged for the purpose of discussing an agreement.
On August 28, Bond acknowledged receipt of the letter and stated under the provisions of the
Act there was no purpose in meeting with the Union.
On September 16, the Union filed a representation petition against Nettleton Shops wherein
it alleged all employees at the three retail stores in New York City constitute a unit appropriate
for the purpose of collective bargaining.5
D. Alleged acts of interference, restraint, and coercion
1. Activities of the store managers
About 2 or 3 days after Radazzo returned from his vacation, September 1, Stein informed
him they had joined the Union . In response to Radazzo ' s inquiry as to why she and the men
had joined Stein stated that Buell had failed to answer their letters requesting a raise and that
she believed it her duty to go alongwith the men. Radazzo then inquired why they had selected
the CIO instead of the AFL. As Stein was not familiar with the organizations she asked him
to explain them and he pointed out that the AFL had the higher grade shoe stores He further
stated that while unions were all right in factories they were unnecessary in stores. Radazzo
"felt bad" about their joining and also declared that Cook did not believe in unions for the
stores and "he was sorry to say he didn 't think he would ever sign for a union."
Schneyman related that 'during the interval from September to January 1953, Radazzo spoke
to him practically every day about the Union and in these conversations Radazzo stated that
the men had made a mistake in joining the Union, that they should drop it, and that Cook
would never give in to the Union.
Florentine testified that during the first or second week of September , Radazzo said he heard
he had joined the Union . When Florentine admitted he had joined Radazzo said it was too bad,
whereupon Florentine replied that since Cook had not answered the letters there was nothing
else to do . Radazzo stated that Cook "will never sign up with the union " and asked the name
of the "instigator " of the movement. Florentine replied he was sorry to hear this and informed
Radazzo that no one instigated the Union, the men simply signed up as a group. On two
occasions during September and October the store received large shipments of shoes and when
Florentine asked Radazzo the reason for such large consignments he said Cook was preparing
and would never sign up with the Union.
4Borst was the only employee who did not loin. Swanberg signed up about December 12.
5 Case No. 2-RC-5163.
A. E. NETTLETON CO. 1679
About September 1, Tedrow said Radazzo asked him if he was satisfied with his job and
he replied he had never said anything to the contrary. Radazzo said he was personally hurt
because the men had joined, and in particular because they selected the CIO rather than
the AFL. Tedrow said there was nothing personal in this action and that the men believed
the Union chosen was preferable as a bargaining representative.
Winch testified that during the second week of his vacation, he took the last 2 weeks in
August, Buell telephoned him at his home to find out if he signed up in the Union and he said
he had. He then asked why the employees had not sent a "round robin letter to the factory"
requesting a raise and Winch replied they had written letters, but had received no answer.
Buell told Winch that he had made a mistake in joining ; that Cook was very much disappointed
in him and that he would talk to him when he returned from his vacation. In October or
November , Buell, while at the store, told Winch he was the "fairheaded boy" at the factory,
that he had made a mistake in becoming a member and that there was little chance of his
making any more road trips . Winch explained his reasons for joining and Buell repeated that
Cook was disappointed in him. When Winch returned from his vacation Darnell informed him
he had made a mistake in joining and that Cook would never give in to the Union. Thereafter,
between September and January 1953, Darnell and Winch conferred about twice a week.
Radazzo testified that during March, Schney man advised him that he and the men were dissat-
isfied and desired a wage increase. Radazzo told him the time was inappropriate because sales
were dropping but he would keep the matter under consideration. Stein, who was present, said
she must be considered in the event any increases were granted and Radazzo assured her
this would be done. About 1 week later Radazzo discussed the subject with Buell, who then
talked to Schneyman, and suggested that the men submit a written memorandum to him, which
he would keep for future use but the requests were inappropriate at the present time. The
same day Schneyman and the rest of the men submitted letters to Radazzo, which he turned
over to Buell.
Radazzo stated that shortly after he returned from his vacation Stein informed him that she
and the men had joined the Union. He could not recall the details of this conversation, other
than he toldherhewas sorry tohear they joined. Radazzo stated that Stein was always bringing
up some questions about the Union and on one occasion in September she asked him to explain
the difference between the CIO and the AFL. In answer he pointed out that the AFL had
organized the higher priced stores while the CIO had the lower priced shops and he was
surprised that they had not selected a union which organized stores similar to the Nettleton
shops. Again. Stein, after referring to the fact that the factory was organized , asked why they
could not have a union at the store and he replied he did not think it was necessary.
Radazzo denied that he discussed the Union with Schneyman and he could not recall making
any statement to the effect that Schneyman could get the men to drop their membership.
About September, Radazzo said Florentine informed him the men had signed up in the Union
because they had received nq reply to their letters . Radazzo told Florentine he was sorry they
had joined and asked who started the movement.
He further denied that he had any conversations with any of the employees concerning their
membership or nonmembership in the Union or that he told the employees to drop their
membership therein.
Darnell heard that Winch was a member of the Union and during the period in question
Winch brought up the subject of the Union with him on 2 or 3 occasions. Darnell had no
recollection of these conversations other than Winch stated the Union offered job security.
Darnell denied that he ever asserted Cook would never sign a union agreement.
Buell did not testify at the hearing. However, the parties stipulated that if called as a witness
he would deny making any "antiunion statements," in his conversations with Winch in August
and October or November.
2. Questioning employees in connection with the Union's petition
As already stated the Union filed its petition on September 16. Thereafter, Bond conferred
with Cook or Buell in regard to the petition and he advised them to complete the commerce
data form which accompanied the copy of the petition served upon them. The parties stipulated
that thereafter a preheating conference was duly scheduled for October 1, before Field
Examiner O'Loughlin, at the Regional Office of the Board. Sometime prior to the above date
Bond called O'Loughlin and informed him that he was going to satisfy himself on the question
of the Union's majority and thathe mightconcede an election was unnecessary. The conference
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was then postponed until October 8. At the same time Bond discussed the subject with Buell
and requested the names of employees he could talk to in regard to union sentiment among the
personnel. Buell suggested he see Schneyman and Winch. Bond thereupon came to New York
City about October 1, and interviewed these employees at the display room of Nettleton
Company. Arthur Poole, who was in charge of the display room, made the necessary ar-
rangements for the meetings.
Schneyman said about the middle of September he was called to the display room by
Poole and introduced to Bond, who stated he was acting as attorney for Cook. Bond said he
wished to talk toSchneymaninordertodetermine whether the Nettleton Shops should recognize
the Union without resorting to a Board-conducted election and then asked Schneyman if all
the employees had joined the Union. When Schneyman replied that the men were 100 percent
in the Union, Bond said he would recommend to Cook that no election be held. Bond asked
Schneyman how much he was earning and he answered about $ 3600 per year. He commented
that he was in no position to make any offer of a wage increase and further inquired if there
were any possibility of Schneyman leaving the Union. Schneyman said there was no chance of
this since he and the men were in the Union 100 percent. Schneyman could not remember
whether Bond made any reference to the "labor law." The meeting concluded with Bond
stating it would be nice to have Schneyman on the bargaining committee.
Winch stated that during the second week in September he was called to the display room,
under similar circumstances, where he met Bond, who said he represented Nettleton Shops.
Bond asked Winch whether the employees were 100 percent in the Union and he replied that
was true. Winch spoke of salaries and explained why the men had joined. Bond said he was
not authorized to give any increases or even mention salary. Bond informed Winch that
he had talked to Schneyman and as a result of these conversations he would recommend that
no election be held and that negotiations be started with the Union.
Bond testified he told Schneyman and Winch, at separate meetings, that he was counsel
for Nettleton Shops and that he had information from both the Regional Office of the Board
and the Union that the latter represented all of the employees in the 3 New York City stores.
He then explained that the Act provided for an election in such cases or the employer could
recognize the Union without the formality of an election. Bond stated he was not concerned
about membership or nonmembership in the Union but he did want to know whether the em-
ployees were signed up 100 percent. Both Schneyman and Winch advised him all of the em-
ployees were members, except 1 man at the Empire State store, who had been refused admit-
tance to the Union. Bond admitted he asked both Schneyman and Winch if they and the men
intended to stay in the Union and each advised hun they intended to remain members thereof.
Upon receiving this information Bond advised them he did not believe any election would
be necessary and that negotiations would commence at once.
E. The refusal to bargain
1. The representation proceedings; recognition of the Union as the bargaining
representative in the appropriate unit
Following these meetings Bond returned to Syracuse and advised Cook and Buell there was
no point in having an election and suggested that they meet with the Union. Obviously, Bond's
advice was accepted for about October 5, he informed O'Loughlin that he was satisfied the
Union represented a majority of the employees and that he would so advise the Union.
Bond then called Arthur K. Garfinkel, attorney for the Union, and, after explaining his
position to him, arranged a meeting for October 15.
Garfinkel testified that he prepared the Union's petition and was informed by O'Loughlin
that the prehearing conference was being postponed from October 1 to October 8, at the
Company's request. He further stated that on October 2, Bond telephoned him and said that he
was representing "Nettleton Company" in these proceedings. Garfinkel told Bond he under-
stood the Union represented all, or virtually all, of the employees, except managers and Bond
replied he knew the Union represented a majority of the employees in the unit, so he was
recommending that his client forego an election and negotiate with the Union. The conversation
concluded with Bond promising to contact Garfinkel at a later date. On October 6, Bond called
Garfinkel and informed him that his recommendations had been accepted, whereupon they
agreed to meet on October 15, at Garfinkel's office. Bond also requested Garfinkel to notify
O'Loughlin of this action and cancel the conference scheduled for October 8, which he ap-
parently did.
A. E. NETTLETON CO. 1 681
The complaint alleges all employees at the three retail stores in New York City, exclusive
of managers and other supervisors, constitute a unit appropriate for the purpose of collective
bargaining. The petition alleged the same unit, except no specific reference was made to man-
agers or supervisors.
At the meeting of October 15, Garfinkel presented union authorization cards to Bond, which
were examined by Radazzo, whereupon Bond agreed to recognize the Union as the bargaining
representative for all the employees in the unit described in the complaint.
On December 2, the Regional Director approved the Union's request to withdraw its
petition, without prejudice.
The undersigned finds the unit set forth in the complaint to be appropriate and that at all
times material the Union represented a majority of the employees therein and was, and is, the
exclusive representative of all these employees for the purpose of collective bargaining.
2. Meetings between the parties
During the period October through December the parties held four meetings, each at
Garfinkel's office, as described below.
a. October 15
At the first meeting Garfinkel, Geisler, and Irving Simon, manager of the local, appeared
on behalf of the Union while Bond, Buell, and Radazzo represented the Company. Garfinkel
and Bond acted as spokesmen for their respective groups.
Garfinkel testified he gave Bond a form union contract in order to outline the details
of the demands and specifically stated the language therein was not controlling but could be
worked out as the parties agreed on basic issues. Garfinkel then presented the following
demands on behalf of the Union:
Wages: Salesmen; $74 per week and 1 percent of their sales or $70 per week and 2
percent of their sales, and 5 percent on "findings." (hosiery, polish, shoe trees, etc.)
Assistant managers ; $ 85 and 1 percent of their sales, or $ 80 and 2 percent of their sales,
and 5 percent on "findings."
At that time most of the salesmen were receiving $ 45 per week and 3 percent of 20
percent of gross store sales. Winch and Schneyman, who had been employed for 14 and 25
years, respectively, claimed they were assistant managers and each received $45 per week,
with the former getting 3 percent of 40 percent of gross store sales and the latter 3 percent
of 30 percent of such sales. Swanberg received the same rate and commission as Winch.
Cashier-bookkeeper; $ 10 per week increase. Stein was the only employee in this category.
Porters; $50 per week for a 5-day, 40-hour week. The 2 porters were then working a 6-day,
48-hour week.
Hours: The Union asked for a 5-day, 40-hour week, which was then in effect. However, the
Union requested elimination of a 44-hour week during certain peak periods, for which no
extra compensation was paid.
Vacations: One week for employment from 6 months to 1 year; 2 weeks for 1 to 5 years and
3 weeks for service after 5 years. Vacation pay to be computed on the basis of the average
yearly earnings of the employee, rather than his earnings during the vacation period.
Holidays: Garfinkel pointed out that while the stores had recognized 7 annual holidays the
employees were not actually paid therefor because when the holiday was granted the em-
ployee'Lost his regular day off that week. The Union requested that employees be paid for these
7 holidays, plus 2 religious holidays.
Sick leave. 6 days per year.
Health and puns ion plans: The Union sought establishment of plans with the Company whereby
it would contribute $ 5 per month for each employee to the Retail Shoe Health Commission and
$ 8 per month for each employee to the Retirement Fund of Retail Shoe Employees.
Trial period. The Union requested that all present employees be certified as regular, per-
manent employees.
Union shop: Garfinkel explained that while the form agreement contained a closed-shop
provision the Union was requesting a union-shop clause as permitted under the Act.
Garfinkel related that in connection with the wage demands Bond and Buell asserted that
the stores employed only managers and salesmen and had no assistant managers as contended
by the Union. Garfinkel and Geisler declared that Schneyman and Winch acted as assistant
managers, received a higher pay rate than the salesmen, and therefore the Union was
339676 0 - 55 - 107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demanding that the differential be maintained. Bond and Buell admitted that Schneyman and
Winch received a higher pay rate than the salesmen but stated this attributable to their long
service and valuable employment and not because they were considered assistant managers.
Garfinkel stated that Bond may have commented that the Union was seeking a higher wage
rate than that prevailing in other stores and may have stated the Company could not afford
to meet these demands. Buell inquired if slippers, for commission purposes, would be
included under findings or shoes and Geisler replied that they would be treated as shoes.
Bond or Buell raised some questions concerning the trial-period provision which provided
that present employees be considered permanent and that new employees be hired for a
2-week trial period. Geisler stated the Union would be willing to make it a 4-week period and
Garfinkel added that if at anytime the length of the trial period became an issue it could be
extended. Bond and Buell stated they might have to lay off Edwards, a salesman at Manhattan,
whom the Company considered a temporary employee, for business reasons. Garfinkel
and Geisler contended that since Edwards had been employed at the store for 4 months he was
a regular employee and if the Company had to lay off one man it should select a salesman
who was employed at another store only a few weeks previously.
In respect to the vacation demands Buell said he did not believe the Union had obtained 3
weeks after 5 years' service at other stores and Geisler answered that some firms granted
this period while others did not, but that the Union was making a similar demand upon all
companies with which it had dealings.
Garfinkel explained the health and pension plans were operated jointly by employers and
the Union and that practically every employer in the area was contributing to the plans.
With respect to the request for 6 days' sick leave, Buell said the Company was paying em-
ployees while they were sick but did not specify how long the employees were entitled to draw
such pay.
Although Bond mentioned and commented briefly upon articles pertaining to discharge and
arbitration there was no discussion of these provisions.
Bond, according to Garfinkel and Geisler, stated that Cook made all decisions in matters
of this kind and all he, Buell, and Radazzo could do was to report the Union's demands to him
at Syracuse. This he promised to do, and added, "then they might come back with counter-
offers."
Geisler testified that the demands presented to the Company had been discussed and
formulated at a meeting of the employees held about August 18. He also stated that Bond in-
quired about the wage scale at similar stores and he said it varied between $ 70 and $ 80 or
$ 85 per week and 1 percent commission. Geisler said that at Nunn-Bush it was $ 60 or $ 70
and 2 percent, Lloyd & Haig $ 74 and 1, and Lefcourt $ 65 and 1 percent. Bond declared he was
merely seeking information and that he would submit it to Cook. His testimony concerning
other events at the above meeting is substantially the same as related by Garfinkel.
Bond testified that Geisler or Garfinkel presented the Union's demands, in the terms
described above.
Bond asked if the Company was required to keep present employees and Geisler answered
in the affirmative. He then stated the Company wanted to discharge Edwards, in fact, Buell
had intended to discharge him in July or August, since he was a temporary employee and be-
cause of business conditions, but "he just hadn't done it." Geisler replied that the Company
had a salesman at another store with less service than Edwards and that Edwards should be
retained. Bond said the other man was a better salesman than Edwards and they preferred to
keep him. Much time was devoted to this subject and the parties finally agreed to think it over.
In connection with the wage demands, Bond said he informed the Union that the Company did
not have assistant managers. He admitted that Schneyman received a higher rate of pay than
salesmen because of his long and esteemed service, plus the fact that he had greater respon-
sibilities than other employees. Bond could not recall whether Winch's name was mentioned
during the meeting. He further stated that there may have been some discussion of the defini-
tion of findings, but in any event no conclusion was reached on this topic.
In respect to the provision for 3 weeks' vacation after 5 years' employment, Bond said if
the Union asked for "3 for 15 ... I'd give it a look." Geisler replied that 3 for 7 years was
standard in the industry but in agreements comingup for negotiation the Union was requesting
3 weeks for 5 years, Bond apparently made no comment thereto.
Bond stated Garfinkel handed him a form contract, which he described as a typical union
agreement, and pointed out that some of the provisions did not apply to the present situation
and that they could work out the wordingof any final agreement. Bond glanced over the agree-
A. E. NETTLETON CO. 1683
ment and Garfunkel announced that he was giving the Company an "option of a union shop with
a hiring hall, or a closed shop." Bond made no reply to Garfinkel's statement and said that
constituted the discussion on the contract. He further stated that Garfinkel made no reference
to a union shop in accordance with the terms of the Act.
Bond informed Garfinkel that since this was the first meeting he had no authority to accede
to any of the demands but he was certain something could be worked out and that they would get
together again.
Radazzo could not recallwhether he said anything at the meeting. He testified to substantially
the same effect as Bond concerning the demands and positions of the parties.
The next meeting was scheduled for October 29. Bond, for personal reasons he could not re-
call, was unable to confer on the above date , so the meeting was postponed until November 7.
b. November 7
The same parties, excluding Simon, met on this occasion.
At the outset of the meeting Garfinkel asked Bond if he had discussed the Union's proposals
with Cook and if hehad any acceptances or counteroffers to submit. Bond replied that Cook was
studying the matter and that a survey of wages in other shops was being conducted, or about
to be conducted. He further stated that Cook had not authorized him to accept any of the Union's
proposals or to make any counteroffers thereto. Bond then asked about the wage scale in other
shops and Geisler gave him this information, at least as to shops which were under agreement
with the Union. Bond asked the rate at Florsheim Shops and Geisler said he did not know since
they were under contract with the AFL. Bond said he thought the rate was $55 per week and 2
percent commission. In the course of this discussion Bond and Buell reiterated their position
that the Company did not have assistant managers and they could not understand the Union's
request for a wage differential for Schneyman and Winch. Geisler replied that these men had
been known as assistant managers for a long time and they did receive a higher pay rate than
the salesmen.
The subject of Edwards' discharge was again brought up but no decision was reached as to
whether he would be dismissed or retained.
In answer to the union proposal for 9 paid holidays, 2 being religious holidays, Bond stated
the employees were given holidays. Geisler pointed out that although Ilohdays were granted the
employees were not paid because the holiday was considered as their day off and they still
worked a 5-day week. On the question of religious holidays Bond said he could see the neces -
s ity therefor in respect to Jewish employees, who by custom observed these days, but he could
see no purpose in granting these concessions to other employees for they were under no such
obligation to observe their holidays. Garfinkel and Geisler said this would be discriminatory
and in essence the Union was simply asking for 9 paid holidays.
Bond requested the Union to explain the proposal providing for a guaranteed 52-week work
year Garfinkel replied that it was thecustomof the industry, as well as the Company, to pro-
vide such employment for regular employees. He further stated that the closing of a store
would create no serious problem as far as this clause was concerned.
Garfinkel informed Bond that at least some of the wage demands, if agreed upon, would be
subject to approval of the Wage Stabilization Board and they then discussed regulations and
procedures of that Board.
At the conclusion of the meeting Geisler urged Bond to obtain authorization from Cook to
submit counterproposals to the Union. Bond said he would do so but that the Company was
conducting a survey of wages.
Geisler testified substantially the same as Garfinkel.
Bond stated that Garfinkel inquired if he had any offers to submit and he told him he could
give the Union 6 days' sick leave.
The union-shop demand was discussed with Bond explaining that since the Company operated
high grade stores and employed high caliber salesmen it would be detrimental to their best
interests to have a union shop or utilize a union hiring hall. In this respect Bond testified,
"That was my personal position--that it seemed to me the type of fellow we got might not
want to join the union, and we didn't think that he should be compelled." Apart from Geisler
agreeing to extend the trial period from 2 to 4 weeks, Bond could not remember any definite
position taken by Geisler or Garfinkel, although he thought they may have said all their con-
tracts provided for a union shop. This clause, as related by Bond, "was still in limbo, so to
speak" and left open for future discussion.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to vacations, Bond said he agreed that pay should be computed on average
yearly earnings, and that the Union withdrew its demand for 3 weeks' vacation after 5 years
service. Bond did not state what, if any position he took in regard to the length of vacations.
He stated the Company was agreeable to 7-paid holidays and 2 religious holidays "for
people of the Jewish faith or people who celebrated" such holidays. Geisler asserted this
clause discriminated against non-Jewish employees whereupon Bond said there was no reason
to grant a religious holiday to any employee unless it was used for that purpose, "But we
did agree for Jewish people for two religious holidays and we agreed to seven paid holidays."
Both Geisler and Garfinkel maintained this was discriminatory. On cross-examination Bond
stated that Geisler pointed out the employees were not paid for holidays as it was considered
their day off, and it was his, Bond's, understanding he agreed to grant holidays, in addition
to regular days off. On this topic, Bond testified he told the Union, "we could go along with
them, except for the two religious holidays for Gentiles and Catholics ... and Moslems "
Bond requested the union representatives to explain the provision in the proposed agreement
relating to an employer's right to require a full-time employee to work the sixth day during
certain peak seasons. Garfinkel or Geisler explained the provision, which Bond understood to
mean that "at peak periods of the year they ask men to work longer hours." The representa-
tives of the Company then discussed it among themselves and "we agreed to substantially
everything in Article 7," covering hours of work. On cross-examination Bond stated they
agreed with the union system forcertamperiods during which the employees worked a 48-hour
week and others when they worked a 40-hour week. He concluded by stating, "I don't think we
ever concluded anything on the hours of work per week for the men," excluding the porters.
Bond said the Company agreed thatGeisler, or a union representative could visit the stores.
Geisler or Garfinkel explained that the visits would be infrequent and would not interfere with
store business.
The Edwards case was discussed and in this connection Bond asked what would happen if
a store had to be closed. Garfinkel replied that under the permanent employment clause the
Company would be technically obligated to find places for the men in other shops. However,
Garfinkel or Geisler assured Bond the Union would take care of the employees in such a
situation. The Company did not agree to this provision.
Bond announced that under the terms of the proposed agreement an employee could not be
discharged unless the employer caught him "with his hand in the till." This clause provided
that an employee could be discharged immediately for alleged dishonesty, but the employer
must at once notify the Union in writing giving the details thereof. The Union then has the
right to contest the action and if the parties are unable to adjust their differences the dispute
shall be submitted to arbitration. Bond suggested that the language be changed to permit the
discharge of an employee for flagrant misconduct or good and sufficient cause, with the right to
thereafter submit the matter to arbitration. Garfinkel said the provision was standard and
refused Bond's suggestion.
Bond stated the wage demands had been considered and as a matter of principle the Company
preferred low base pay with a high commission rate. This acted as an incentive to the salesmen
and Bond declared, "we would very much appreciate it if they would consider $50 and 3
percent." Geisler answered that the Union favored a high base rate and lower commissions
and reiterated their demands for $ 74 and 1 percent or $ 70 and 2 percent. Bond said $ 50 and
3 percent was agreeable to hint and then talked about $55 and 2 percent. Garfinkel or Geisler
asked Bond if he was making an, offer and he said, "well, if you will tell me you will take
it, I will practically guarantee I could get it."
Radazzo stated that Bond agreed to 7 holidays, plus 2 religious holidays for employees of
the Jewish faith. He also stated he believed something could be worked out on the Union's
demand to compute vacation pay on the basis of annual earnings. The Edwards case was
discussed with Geisler agreeing to take up the matter with the union membership. Bond,
according to Radazzo, complained that the wage demands were rather high and Buell expressed
the opinion the Company would be unable to pay such wages. On cross-examination Radazzo
was asked whether Bond advised the Union that the Company had not had time to study its
demands and was checking into the wage picture and he answered: "I think there was some-
thing mentioned about that," He was then asked:
Q. And Mr. Bond said that because of that, the Company was not prepared to make
any counter offers at the time9
A. Yes.
A. E. NETTLETON CO, 1 685
Radazzo made no mention of any offer as related by Bond, nor did he refer to any discussion
of the union-shop provision at this meeting.
Garfinkel and Geisler denied that the union-shop demand was discussed at this meeting.
At the conclusion of the meeting the parties agreed to meet on November 14. Garfinkel
said that Bond called him on November 12, and requested that the meeting be postponed until
November 20. Bond related that in the course of this conversation he told Garfinkel the
Company had decided to retain Edwards.
c. November 20
The same representatives, except Buell, attended this meeting.
Garfinkel asked Bond if he was prepared to accept any of the Union's demands or if he had
any counterproposals. Bond replied that a wage survey was being conducted and that Cook
had not authorized him to submit any offers or counterproposals. Geisler and Garfinkel
complained that the matter was dragging and that the Company should be prepared to make
counterproposals. Bond said he was in no position to do so but he believed that when the survey
was completed Cook might authorize wage offers. Garfinkel inquired about the other union
demands and Bond reiterated that Cook had not authorized him to make any offers. Bond men-
tioned that the Company had agreed to retain Edwards and the discussion reverted to wages.
Bond brought up the question of pay rates at other stores and asked if the Union would main-
tain the present rate, which Geisler promptly rejected. Bond then said he understood Florsheim
was paying $ 55 and 2 percent and inquired if the Union would consider that rate. Garfinkel
asked if he was making an offer and he said no, he was trying to get the Union to lower its
demands so he could report back to Cook. Garfinkel complained of these tactics. Geisler
stated the Union would like to have offers to its demands. Bond also asked if the Union
would accept $ 60 and 1 percent and when Garfinkel inquired if this was an offer, he replied
it was not. Geisler remarked that in view of the delays encountered the Company should
agree that any increases agreed upon should be retroactive to September 1. Bond said he could
only report this to Cook. Geisler declared that since Cook could not attend these meetings
and was the only person who had authority to determine the matter, he would go to Syracuse
to confer with him. Bond said he could not arrange such a meeting at that time although he
might be able to do so at some future date.
Garfinkel stated that there was some discussion at the meeting, or perhaps the next one,
on the health and pension plans. Bond inquired if it was agreeable to the Union to bring the
employees under the benefit plan maintained by Nettleton Company for its factory employees.
Garfinkel asked Bond for details concerning the operation of this plan and Bond said he could
not give this information because he was not too familiar with it. Garfinkel advised him the
Union would consider the plan but it would naturally desire its own plans unless the other one
was more beneficial to the employees. Garfinkel pointed out that the Union in one case had
accepted an old established company plan instead of its own. Under the Union's demands
payments would commence at once. However, Garfinkel suggested that payments to the pension
fund might be postponed until 6 months after an agreement was signed. He did not state what,
if any, reply Bond made to this suggestion.
Geisler testified to about the same effect.
Bond testified that the Company wanted a low base rate and a high commission percentage
and that the Union's wage demands would put them out of business. Garfinkel said that other
stores were paying the union scale. The parties discussed wage rates at other stores and
Geisler stated he believed the Florsheim rate to be $ 76 and 1 percent. In the meantime Bond
had learned it was $ 57.50 and 2 and so stated at this meeting. Garfinkel, following a telephone
call, verified this amount. Bond said the Union reduced its wage demands and he believed
there was some talk about $ 60 and 1 percent. There was some discussion on the wage question
as to the porters and Stein but noagreement was reached, except that the porters should work
a 40-hour week. There was some talk about findings and when Geisler said slippers would be
considered as such, Bond said "Okay." Bond said "push merchandise," that is goods the
store wanted to get rid of and on which extra commission was paid, was discussed but he was
not very clear on this subject.
The parties also discussed the Union's health and pension plans, with the union representa-
tives urging the Company to adopt one of them at that time and defer action on the other for
some future date. Bond did not state what, if any reply, he made to their proposals. Bond
said he may have mentioned the mutual benefit association at Nettleton Company but it was
not discussed.
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Geisler again pointed out the discriminatory character of the Company's proposal to limit
religious holidays to Jewish employees. Bond said they were willing to give the other employees
2 days off at times other than peak periods. When Garfinkel replied that was satisfactory
Bond indicated he was satisfied.
Bond said he believed the Union requested hiring preference for union members, which
was rejected.
Bond denied he told Garfinkel or Geisler that he had to take everything back to Cook. He
further informed them:
The only thing that we ever had to submit to management was when a new proposition
was made with regard to wages. On everything else, we had practically come to agree-
ment, and on the question of a union shop, I was still at the position that we shouldn't
require anybody to join any union if he didn't want to.
Geisler offered to meet with Cook in Syracuse and Bond said that while he would ask
Cook, there was no point in doing so because Cook did not participate in bargaining negotia-
tions.
Radazzo stated that Bond declared the Union's demands were exorbitant and asked that
they be reduced. He further stated there was some discussion about keeping the wages in line
with those in other stores and Bond said he was going to have a check made on rates pre-
vailing in such stores. Radazzo could not recall any other subjects discussed at this meeting.
The parties scheduled the next meeting for December 2. Bond was unable to leave Syracuse
that day, so the meeting was continued for 1 week.
d December 9
Garfinkel, Geisler, Bond, and Radazzo attended this meeting.
Garfinkel testified he asked Bond if he was finally prepared to accept any of the Union's
demands or to submit any counterproposals. Bond said he was not authorized to accept
any of the demands or to make any counteroffers. He also stated the Company was still
studying the wage demands and conducting the survey already mentioned. Garfinkel and Geisler
complained that the matter was dragging and although they had been meeting for a long time,
still the Company had failed to submit any offers, especially on wages. Bond replied it could
not be helped because Cook had not authorized him to do so. Geisler again offered to meet with
Cook in Syracuse. Geisler, after commenting on the delays encountered, requested that any
agreement be made retroactive to September 1. Bond replied he could not commit himself
on that point. Geisler then requested December 1 as the date and Bond said he would report
it to Cook. Bond asked Geisler if the Union could lower its wage demands and Geisler
said if he would make an offer of $ 57.50 and 2 percent or $ 65 and 1 percent he would take it
up with the employees. Bond stated he was not in a position to make any such offer. Getsler
again offered to meet with Cook in Syracuse and Bond answered he would consult with Cook
and see if an appointment could be arranged.
Bond said the parties had previously discussed the health and pension plans so at this
meeting he told the union representatives of the benefit association at Nettleton Company.
The association plan did not cover hospitalization for families of employees but Bond said
he though such benefits could be added thereto. In response to Garfinkel's inquiry Bond stated
the employees contributed 25 cents per week and the Company 62J cents per week to the fund.
Geisler outlined the union plans and Bond admitted the benefits thereunder exceeded those
of the association. Geisler then stated the Union was not interested in any plan that did not
grant more benefits to the employees than its plans. Geisler also pointed out that the Union
did not insist upon its plans and referred to the acceptance of a company plan in at least one
other instance. Bond did not explain how the store employees could be brought under the terms
of the association plan. He also told the union representatives the Company could not afford
its plans.
Garfinkel, according to Bond, brought up the subject of the union shop and when he said he
was opposed to such a provision Garfinkel replied all their contracts contained this clause
and they had to have it.
Bond could not recall whether Geisler repeated his request to meet with Cook.
Radazzo, on cross-examination, testified that during the first week in December, prior to
the meeting, he went to Syracuse where he met with Cook and Bond. Radazzo said, "we had
A. E. NETTLETON CO. 1687
some discussions up there about what we could possibly offer at the next meeting" and they
arrived at some figures. "55 and 2, and 60 and 1," as the basis for an offer.
Concerning the meeting of December 9, Radazzo stated that Bond mentioned the association
plan and that the Company would like to include the store employees under it. When Garfinkel
declared he knew nothing of the plan Bond gave him a pamphlet and told him the amount con-
tributed by the employee and the Company. Garfinkel asked if the benefits were greater than
under the union plans and when Bond said he did not think so, Garfinkel and Geisler rejected
it. Bond also asked Geisler the Florsheim rate and he replied it was $ 55 or $ 57.50 and 2
percent. Bond asked if the Union would consider that rate and Geisler said he did not know,
he would have to take it up with the employees. On cross-examination he stated Geisler
"probably did" ask Bond if he was making a definite offer.
Garfinkel and Geisler denied there was any discussion of the union-shop provision.
Garfinkel denied that Bond offered to grant 2 extra holidays to non-Jewish employees, pro-
vided they would not be taken during peak seasons.
No date was fixed for the next meeting. In this connection Bond told Garfinkel they should
meet again but he did not want to come to New York City during the Christmas holidays.
F. Chronology of succeeding events
1. Attempts to arrange a meeting
On December 17, Geisler telephoned Bond at Syracuse but was unable to reach him. The
following day Bond returned the call. Geisler informed him that the employees were complain-
ing of acts of intimidation directed against them as well as the long period of time covered
by the unsuccessful conferences and wanted to know what the Union intended to do. In view of
these complaints Geisler siad that a conference should be arranged either in New York City
or Syracuse . Bond stated he would arrange for a meeting and notify Garfinkel.
On December 22 or 23 , Bond called Garfinkel and informed him of his conversation with
Geisler . Garfinkel stated he was aware of Geisler 's call and that he, too , was upset over the
conduct of the Company and the fact that the matter had been dragging for a long time. Bond
told Garfinkel he was unawareofany such conduct . The conversation concluded with the parties
agreeing to confer at Garfinkel 's office on December 29.
2. The offer of wage increases and other benefits to the employees
Schneyman testified that on the evening of Saturday, December 20, Radazzo drove him home
in his car. During this trip Radazzo said it was too bad Schneyman became involved in "this
Union mess" and he hoped he would drop out because Cook had told Radazzo, "he would pay
me (Schneyman] $ 80, plus one per cent of my sales, and that the Company would pay my
Blue Cross, and that they would give me six days sick leave, and that we would work a 40-hour
week, and that we would have the privilege of joining the Nettleton Association." The sales-
men would receive $ 70 and 1 percent, as well as the other benefits. Radazzo added that he
felt certain if Schneyman dropped out of the Union, some of the other men would go along with
him. Schneyman replied he did not see how he could do it because he had gone along with the
Union and the men had only Cook's word as far as job security was concerned. Radazzo asked
Schneyman to discuss the matter with the other employees on Monday and then advise him of
their answer to the offer. On Monday morning Schneyman reported the offer to Tedrow and
Florentine and asked them to think it over. Shortly thereafter they told Schneyman they could
not accept the offer because it lacked security and that was one of the reasons why they had
joined the Union. The same afternoon Radazzo asked Schneyman if he had talked to the men and
he reported the conversations he had had with them. Radazzo commented, "Too bad."
Florentine and Tedrow testified that Schneyman talked to them separately on the above
date and corroborated Schneyman's testimony concerning the wage increases and other bene-
fits. Florentine further stated that the next day Radazzo asked him to consider the offer and
repeated the terms thereof. Florentine replied he was sorry, but they were union members
and the Union would handle the matter for them. Radazzo said they would be sorry for Cook
would never sign up with the Union.
Winch testified that on Saturday, December 20, Darnell invited him to have a drink, after
the store closed, at a nearby bar. There Darnell said he had an offer from Cook and outlined
the terms thereof, as stated above. Winch answered he could only speak for himself but he
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was certain the men felt the same as he did, that he was staying in the Union because they
needed job security . Darnell said he had Cook's word that these benefits would be granted,
that there was no change of him losing his job , and that his joining the Union would not be
held against him. Winch repeated he was going to remain in the Union and the conversation
ended .6 Winch reported this conversation to Geisler the following Monday.
Swanberg said that on the afternoon of December 20, Radazzo telephoned Bloom at the store
and immediately after the conversation ended Bloom announced he had good news for Swan-
berg. Bloom said he just received an offer from Cook and explained it in the terms set forth
above. He also stated "there will be no union with that offer." Bloom asked Swanberg what
he thought of the offer and he inquired what security the men would have that Cook would keep
his promise . Bloom said none, except Cook's word. Swanberg stated he would like to think
over the matter and Bloom said this was satisfactory to him . On Monday morning, Swanberg
turned down the offer. The same afternoon Swanberg called Winch and informed him of the
offer he had received and turned down. Winch replied that the same offer had been made to
the other employees and they had rejected it.
Radazzo admitted he drove Schneyman home on the evening of December 20. Counsel for
the Company then propounded a series of questions quoting specific phrases from Schneyman's
testimony , and in instances the substance thereof, concerning the conversation he had with
Radazzo and in response Radazzo denied , or could not recall, making any of the statements
attributed to him by Schneyman . On cross-examination he stated the trip took about 40
minutes and during this time they talked about a loafer sale or contest being conducted and
business in general . Radazzo again denied or could not remember making the statements as
related by Schneyman.
Radazzo further stated that he suffered "stomach attacks " commencing about December
19, but continued to work until the afternoon of December 23. On December 25, he entered
the hospital and did not return to work until February 2.
Darnell said that on December 20, at his invitation , he and Winch had a couple of drinks
after store hours , as they had in the past . He stated they were at the bar about 20 minutes
during which time they discussed business and engaged in general conversation . In short,
Darnell denied that the Union was mentioned , or that he made any offers whatever to Winch.
Darnell could not remember whether Radazzo telephoned him that day or the previous day
in regard to an offer to be submitted to the employees.
Bloom denied that he ever made any offers to Swanberg . He also denied that Radazzo ever
told him offers were to be submitted to the men if they dropped the Union.
3. The cancellation of the meeting ; the strike of January 6
On December 26 Bond called Garfinkel and informed him that Radazzo had been taken to
the hospital for an emergency operation and that the conference , scheduled for December
29, would have to be called off until such time as Radazzo was able to be present . Garfinkel
expressed sympathy for Radazzo but declared this was no reason to postpone the conference
for neither Radazzo, Bond , nor Buell had authority to act in the matter. Garfinkel stated
that in view of the treatment afforded the men and the length of time spent in meeting the
Company, if they wished to avoid a strike , should bring the matter to a definite conclusion
and suggested that Geisler meet with Cook or, if that could not be arranged , Bond and Buell
should confer with the union representatives . He stated there was no point in waiting for
Radazzo. Bond replied he would take it up with Cook.
On December 29, the Union called a meeting of the employees at which time they complained
to Geisler of the failure of the Company to submit any offers during the long period of the
conferences and expressed the opinion they should resort to strike action . In this connection,
Winch and Florentine referred to the offers that had been made to the employees, which had
been rejected. Geisler advised them a conference might be held with the Company that week,
it was then Monday, and the employees should meet the following Friday, January 2. The
meeting, which lasted about 15 minutes, then adjourned.
6 Winch said Radazzo came to the store the following Tuesday or Wednesday and told
Darnell he thought the Company might give employees, with 4 years' service, 3 weeks'
vacation . Since this conversation was between 2 supervisors the undersigned does not rely
on this evidence to support any of the findings herein.
A. E. NETTLETON CO. 1689
About December 29, Schneyman received a call from Cook who inquired when the men
were going on strike . Schneyman said they did not want a strike but apparently it was neces-
sary in order to obtain some security . Cook stated he thought Radazzo had taken care of
things at the store and Schneyman informed him that Radazzo 's offer came too late. Cook
then asked if the men were to go on strike the following Friday and Schneyman replied he
believed it was scheduled for Monday . Cook concluded the conversation by stating he would
send some men to the store.
On December 30 Bond called Garfinkel and advised him he could not arrange a conference
at that time . Garfinkel repeated his complaint of the Company 's conduct and pressed for a
meeting. Bond said he would call back, which he did. This time Bond stated he had talked to
Cook and no conference could be scheduled until Radazzo was able to attend.
On January 2 the Union held a meeting which was attended by practically all of the em-
ployees. Geisler explained that four meetings had been held with the Company, that Bond had
submitted no offers , and in his opinion they were stalling . Geisler referred to the offers made
directly to the employees and stated if the same terms were made to the Union they would
probably be accepted. In answer to their specific inquiry, Geisler informed them that no
meeting had been held that week . The men then unanimously voted to go on strike Monday,
January 5. At that point Winch stated that Buell was in the city and perhaps it would be ad-
visable to hold off another day in the event he requested a conference. Simon spoke to the
employees of the seriousness of strike action and, like Winch, suggested that the strike be
postponed for 1 day. Geisler then told the men to come to the union hall on Monday evening.
On the above day, Garfinkel telephoned Bond but was unable to reach him. On January 5
he again called Bond and this time he told him a strike was imminent and he was trying to
prevent it . Bond advised him that he was no longer representing the Company , that other
counsel had been retained.
Bond admitted that Geisler complained to him about the employees being offered money to
get out of the Union and that he told him he had no knowledge of any such action. Bond testi-
fied to substantially the same effect as Garfinkel concerning the above telephone conversa-
tions.
Schneyman testified that about 5 days prior to the strike, or about January 2, Buell, Stover,
and Lemly came to the store and one of them introduced Robert Boitet to him, at the same time
announcing that he was taking over Schneyman's duties as acting manager. Schneyman ad-
mitted he acted as manager from about the time Radazzo entered the hospital until the above
date. Thereafter , Boitet assumed his duties at the store and was so engaged at the time the
strike was called.
Florentine and Tedrow testified that on January 2, Buell, Stover, and Lemly came to the
store and that they were introduced to Boitet.
Stover testified that Buell " surmised " a strike would be called on January 2 , so he and
Buell came to New York City that morning. Stover remained at the store all day while Buell
was in and out a number of occasions. That evening or early the next morning Buell stated
he was bringing Boitet from Fort Wayne, Indiana, to assist Stover in the event the employees
went out on January 5. On the latter date Boitet reported at the store and the next day was
made acting manager. Stover could not recall whether Lemly was with them on January 2
or 3.
Schneyman stated that about 5:30 the evening of January 5, he received a call from Buell
to come to his hotel room, which he did. There Buell said he knew the Union was holding a
meeting that night and suggested that Schneyman "lust go home ... forget this Union busi-
ness" and come back to work. Buell pointed out that Schneyman had sold a large amount of
merchandise the past year, that the Company was going ahead with its January sale, and if he
would return to work everything would be forgiven. He further urged Schneyman to drop the
Union and was certain if he did so others would follow because he was looked upon as a key
man. Schneyman replied he and the men were in the Union to stay and asked Buell why some-
thing had not been done about the letters which had been sent to him many months previously.
Buell said to forget about that, that if he returned to work everything would be all right.
The parties stipulated thatBuell, if called as a witness, would deny making these statements.
Later the same evening the employees held a meeting at the union hall and Geisler informed
them he had not heard from any representatives of the Company, so they would commence
picketing the next morning. The men did so and the strike was still current at the time of the
hearing.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Events subsequent to the strike
On January 7, the original charge was filed in this case and the Union wrote the Company of
this action.
On January 9, Buell wrote the Union accusing it of refusing to arrange another meeting.
Buell further stated that Radazzo "the company's principal negotiator" was still sick and
requested the Union to fix a date for a future conference at such time when Radazzo could be
present.
On the same date Buell sent letters to each of the employees advising them that the Union
had refused to await the recovery of Radazzo, their "principal negotiator," or arrange a date
for a meeting but had "pulled" them out on strike, which was wholly unnecessary. Buell stated
the Company was willing to meet with the Union. The letter concluded with a request to the
employees to return to work at once, otherwise they would be replaced.
On January 15, the striking employees sent a letter to Cook, which was signed by all of them,
giving their version of the negotiations and strike and specifically setting forth the details of
the offer made to them on condition they quit the Union.
On January 13, the Union wrote theCompany explaining its position and suggesting a meeting
be held on January 16. Meantime, the NewYork State Mediation Board intervened in the matter
and notified the parties by telegram, dated January 12, that it was scheduling a conference for
January 14. The conference was held on January 19.
1. The replacement of the striking employees
The parties stipulated that the Company inserted an advertisement in the New York Times,
on January 7, 8, and 9, announcing openings for experienced shoe salesmen for high grade
stores in Manhattan, then having a labor dispute.
Stover testified that he worked at the Roosevelt Shop for about 10 days after the strike
commenced and during this period Buell hired 9 replacements for the 3 stores.
2. The meeting of January 19
The meeting was conducted by Mediator IrvmgShapiro, with Garfinkel, Geisler, and Binnen-
baum appearing for the Union and Attorney Benjamin Seligman and Buell representing the
Company. Winch and Schneyman were also present.
Garfinkel testified that after the mediator had made a statement he outlined what had trans-
pired between the parties with respect to the Union's demands and complained of various
attempts by the Company to drive the employees out of the Union. Garfinkel also stated that
the Company had made offers directly to the employees on condition they drop their membership
and if these offers had been made to the Union the parties would no doubt have agreed upon
contract terms. Seligman then made a statement in which he declared he had just come into the
picture, that he was not too familiar with the facts and had not had a chance to consult properly
with the Company. Seligman denied that the Company had engaged in acts of intimidation or
had made offers directly to the employees and asserted it had bargained in good faith. Gar-
fmkel asked Seligman to repeat the offers made to the employees and when he received no
answer, Garfinkel referred to the letter of January 15, addressed to Cook by the employees
outlining the terms of the offer. Seligman denied that any offers were made to the employees.
Garfinkel then asked Buell to deny that such offers had been made but Seligman refused to per-
mit Buell to say anything.
After Garfinkel repeated the Union's demands, the mediator asked Seligman if he was pre-
pared to make any counterproposals. Seligman again stated he had been in the case but a short
time and, after inquiring of Winch or Schneyman concerning their earnings, he thought he
could offer $ 60 per week and 1 percent commission. Garfinkel inquired if that was an offer
and he replied he could not say it was a definite one--that he did not have sufficient facts and
figures and he would have to take up the matter with the Company. Seligman said he did not
believe the Company would accept a union shop and that he was not too certain about the basic
or permanent crew demand. Garfinkel said the latter was no problem in view of the small
staffs employed at the stores. Following separate meetings with the mediator Garfinkel asked
Seligman for definite offers and he answered that he would contact Cook and discuss the matter
with him.
A. E. NETTLETON CO. 1691
Seligman, who was engaged as counsel about January 5, testified that Garfinkel gave a sum-
mary of the events preceding the meeting and then outlined the Union's demands, which were
substantially the same as those related by Garfinkel at the meeting of October 15. In addition
Garfinkel mentioned that any agreement should be retroactive, without specifying any date,
and must contain certain standard provisions.
Seligman stated that the Company objected to the clause providing that all employees be
considered permanent because they would be guaranteed employment for 52 weeks and could
not be discharged even if business declined. Garfinkel replied that was no issue since they had
only a manager and a salesman at the stores, except Roosevelt. Seligman stated that was not
the question, the Company objected to the provision for the above reasons.
Seligman objected to arbitration of discharges because the Union required the continued
employment of dischargees, except those for thefts, until the question had been determined by
arbitration.
Garfinkel announced that the union-shop provision would be in conformity with the Act and
Seligman said it was possible the Company might consider a maintenance-of-membership
clause.
After the Union had withdrawn its demand for 3 weeks' vacation after 5 years, Seligman said
the Company was willing to compute vacation pay on the basis of average annual earnings.
In respect to holidays, Seligman stated the present system would be continued, without any
religious holidays.
The Company did not object to granting 6 days' sick leave since the employees were always
paid when out sick.
With respect to the workweek, Seligman considered this a cost item which could not be de-
termined until something had been done on the subject of wages.
Seligman told the union representatives that he was studying their demands for a welfare
and pension fund and was certain something would be forthcoming to cover at least part of the
demand.
Seligman declared the wage demands, which amounted to about a 25 percent increase, were
exorbitant and could not be accepted. He said he was prepared to offer $ 60 per week and 1
percent commission for the salesmen. No offer was made in regard to employees in other
categories for Seligman believed that any agreement on wages covering a particular group of
employees would apply proportionately to other groups.
Seligman admitted that Garfinkel referred to offers made directly to the employees and
asked Buell, "Isn't that so" or "Do you deny it? " Seligman instructed Buell not to answer and
told the mediator, "We are here bargaining on terms of a contract, and I do not think it is
fair or right for that question to be put to anybody that is here with me for the company, or
even to me." Seligman conceded he may have said, "I would categorically deny, on behalf of
the company, such charges, unfair labor practices charges were then pending before the
National Labor Relations Board and, further, I didn't think this was the time to raise such
issues. Mr. Garfinkel said he believed otherwise."
Following separate meetings with the mediator, Seligman stated he would confer with Buell
and contact Cook that evening to see if there were any further proposals he could submit.
The meeting adjourned and the parties agreed to meet the next day.
3. The meeting of January 20
The same representatives appeared at this meeting. Garfinkel asked for counterproposals
and Seligman replied he had contacted the Company and was offering $60 per week plus 1 per-
cent for the salesmen. Garfinkel then asked for offers covering assistant managers, porters,
and the cashier. Seligman said the Company did not have assistant managers whereupon Gar-
finkel referred to Schneyman and Winch and the fact that they received a higher wage rate than
salesmen. Seligman admitted there had been a variation in pay in these cases and while the
Company would undoubtedly grant a variation he was not prepared to state the amount thereof.
Seligman stated he had no offers tosubmitin regard to the cashier and porters because he had
not had time to become informed on these matters.
With respect to vacations, Seligman said theCompany would continue the present system but
that compensation would be computed on the employee's average yearly earnings rather than
his earnings during the vacation period.
Seligman stated the Company was willing to bring the store employees under the Nettleton
association pension plan. Garfinkel asked for the details thereof and Seligman said he did not
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have this information but gave Garfinkel a printed booklet containing the plan. After quickly
examining the booklet Garfinkel expressed theopmion itwas in the nature of a disability bene-
fit plan rather than a pension plan for it made no provision for retirement upon attaining a
specified age.Seligman repliedhehadnothadtime to study the provisions but the Company was
willing to bring the store employees under the plan. Garfinkel said it was strange that the
Company had decided on such action after so many years and Seligman answered that was all
he could say, he knew nothing about the plan.
In regard to holidays, Seligman stated the present system would be maintained. Garfinkel
inquired if this meant that holidays would be considered in lieu of regular days off and Seligman
answered that was it, the Company would not pay for 7 legal and 2 religious holidays.
Seligman informed Garfinkel that the Company would notagree to arbitration of any matter,
nor grant any form c. union security, nor make any changes in the workweek, including the
elimination of the 44-hour week in peak periods and the porters' hours. Garfinkel asked his
position concerning other proposals and Seligman said he was rejecting them.
On several occasions Garfinkel urged Seligman to have Cook submit the same offers to the
Union that had been made to the employees and he denied any such offers had been made. The
meeting concluded with Seligman stating he had not had sufficient time to discuss the entire
matter with Cook, that he would try to sec him shortly and if he was authorized to make any
offers he would contact the mediator and Garfinkel.
Seligman testified he submitted the following proposals to the Union.
Wages: $ 60 per week and 1 percent commission for salesmen , with proportionate variations
for so-called assistant managers according to the present differential and proportionate in-
creases for the porters and cashier.
Vacations. Vacation pay to be computed on average yearly earnings.
Welfare and pension fund : Membership in the Nettleton Company association plan, a copy of
which was given to Garfinkel . Seligman stated the plan would have to be amended in. order to
include store employees.
Holidays: Present holiday plan to be continued plus 2 religious holidays, to be taken in lieu
of regular day off.
Arbitration: The Union's proposal was rejected,
Union shop : The Company was unwilling to enter into any agreement which required mem-
bership or maintenance of membership in the Union.7
Hours: No change in this respect since the salesmen worked a 40-hour week, except in
peak periods "But as to employees and porters and cashiers , the proportionate increase to
apply to them , and possibly as to the hours , why, whether that would stand or not depended on
what we worked out on wages... .
Permanent crew: Rejected.
The Union, through Garfinkel, stated the wage proposal was not satisfactory because it was
way below the wage scale then being paid in comparable stores as well as the union scale.
Seligman denied that Garfinkel refused the proposal because it was lower than the offer made
directly to the employees . In this connection Seligman testified that Garfinkel " heeded" the
position he had taken on thequestionofthe offers at the earlier meeting, although he may have
subsequently brought up the subject of these offers . In that event Seligman stated:
I immediately told him that he was out of order , that that wasn't what we were bargaining
about, that we were there bargainingthe terms ofthe contract, and I felt that by the terms
of his references he was hindering the contract being negotiated because it raised ques-
tions and issues which we denied.. . .
Garfinkel also stated that unless the association plan offered greater benefits than the non-
contributing union plan the Union was not interested.
The Union, according to Seligman , did not modify any of its demands, although Garfinkel did
state at the previous meeting that they were negotiable.
Seligman stated that the parties conferred separately with the mediator and thereafter the
mediator asked if the Union would consider the proposals and Garfinkel said they were inade-
quate . He then asked Seligman if he could increase his offer and he replied he could not. The
7 The mediator suggested an "open-end contract ," that is, the right of the Union to strike
at any time if the parties were unable to agree upon a discharge or the application of any
other provisions of the contract. Seligman said this was not acceptable.
A. E. NETTLETON CO. 1693
meeting concluded with Garfinkel and Seligman promising to notify the mediator if there was
any change in their respective positions.
No further meetings were held between the parties.
H. Concluding findings
1. Acts of interference , restraint , and coercion
It is undisputed that in the interval, March to about June , a number of the employees sent
letters to Buell requesting a wage increase , which were ignored by Buell. As a result of this
treatment all but one of the employees joined the Union on August 13. About a week later
Geisler informed the Company of this action and requested a meeting for the purpose of dis-
cussing an agreement . This request was refused so on September 15, the Union filed a repre-
sentation petition with the Regional Office of the Board.
The General Counsel contends thatduring the period from about September to January, Buell
and the store managers conducted a campaign against the employees designed to discourage
membership in the Union . Much evidence was adduced in an effort to support this contention
and insofar as the managers are concerned , the undersigned finds as follows.
In early September , Stein voluntarily informed Radazzo the employees had joined the Union
because Buell neglected to answer their requests for a wage increase . Radazzo asked why they
had selected the CIO instead of the AFL and when Stem professed unfamiliarity with these or -
ganizations and requested an explanation Radazzo pointed out the latter had organized the
higher grade stores. In the course of this conversation , and at other times, Radazzo said he
was sorry to hear the employees had joined the Union , that unions were all right in factories
but unnecessary in stores , and that Cook did not believe in organization and would never sign
up with the Union.
Schneyman , Tedrow , and Florentine testified to the "lam sorry you joined . Cook will never
sign up with the Union " variety of statements by Radazzo . Darnell and Winch discussed the
Union on the same theme on at least 2 or 3 occasions . The undersigned entertains no doubt
that the managers , salesmen , and Stein, discussed organization along these lines but finds that
such statements were neither unlawful or coercive.
Winch stated that in the latter partofAugust , Buell telephoned him at his home to find out if
he had joined the Union and he admitted he had done so. It was stipulated that Buell , if called
as a witness , would deny making this inquiry. The undersigned accepts Winch 's testimony and
finds that Buell questioned him in regard to his membership in the Union.8
Florentine testified that in September, Radazzo asked him to name the "instigator" of the
union movement. Radazzo admitted he made this inquiry. The undersigned so finds.
Bond, who had been retained by Cook , came to New York City about October 1 for the pur-
pose of interviewing Schneyman and Winch to determine whether the Union did represent a
majority of the employees and, if it did , to grant recognition without the formality of a Board-
conducted election . Admittedly , Bond inquired of these individuals if the Union had signed up
all of the employees and they informed him that was true, except for one man . He then asked
if Schneyman and Winch intended to remain in the Union and they answered in the affirmative.
Bond concluded the interviews by stating he would recommend the Company recognize the
Union, without any election. Both Schneyman and Winch corroborated this testimony. The
undersigned finds accordingly.
The General Counsel contends that Bond should have contacted the Union concerning its
majority status instead of interrogating the employees , therefore , his action constitutes a vio-
lation of Section 8 (a) (1) of the Act. Opposing counsel argue that the questioning was proper
since Attorney Bond was simply attempting to verify the Union 's claim that it represented the
employees . Counsel also point out that an employer may question his employees concerning
union affiliation in order to prepare for trial or for proceedings pending before the Board,
8 Winch also testified that about October, Buell told him he had made a mistake in joining
the Union and there was little chance of his making any more road trips . Granting these
statements were made , nevertheless they are insufficient to warrant the inference that
Winch 's failure to make any more trips was attributable to his union membership. While
Winch did make a few trips there is nothing in the record to support the assumption this was
to be considered as a permanent assignment for all future time. The record also indicates
Stover was employed in March 1952 , to perform these duties.
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
citing The Walmac Company, 106 NLRB1355,andN, L. R. B. v. Katz Drug Co., 207 F. 2d 168,
(C. A. 8). In the Walmac case, the union filed a representation petition and when the employer
insisted upon a hearing and a Board-conducted election to determine the majority question, the
union withdrew its petition, filed a charge, and thereafter a complaint was issued alleging
violation of Section 8 (a) (1) and (5) of the Act. The Board found the alleged violations had no
merit and dismissed the complaint. With respect to several instances of interrogation of
employees by a supervisory official the Board held that the employer's position towards the
union had at all times been proper and in view of the isolated nature of the interrogations it
would serve no useful purpose to issue a cease and desist order based on such conduct.
In the Katz case, the union, which concededly did not represent a majority of the employees,
demanded recognition and when for that reason its demand was rejected immediately placed
pickets at the employer's place ofbusmess. Atthat time there was no evidence of any hostility
towards organization on the part of the employer. Thereafter the employer petitioned the
State court for injunction relief and, in connection with the question of majority status, asked
the employees to sign a general affidavit to the effect that the employee was, or was not, a
member of the union. Charges were then filed and subsequently the Board issued its decision
and order finding such conduct to be in violation of the Act.
In denying the Board's petition for enforcement the court held that the Act was not intended
to preclude or obstruct the obtaining of evidence for judicial proceedings and that inquiry as
to an individual's membership in the union, where there was no intent to coerce, restrain, or
interfere with the employees' rights, did not, per se, establish unlawful conduct. However, the
court declared that the employer or attorney may not use "a judicial proceeding and its in-
cidents as a weapon or as a shield for saying and doing things not reasonably necessary to the
effecting of proper disposition of the justiciable controversy involved, measured by the test of
fitting sense of suitor and counsel responsibility in the immediate situation."
The Board, of course, has recognized that an employer, or his attorney, is privileged to
interview employees for the purpose of discovering facts within the limits of the issues raised
by a complaint for the purpose of preparing his case for trial , provided the interview does not
extend beyond the necessities of such preparation and pry into matters of union membership
and activity. (May Department Stores Company, 70 NLRB 94, 95.)
The undersigned is of the opinion that the principles announced in the foregoing cases do not
support the contention that Bond's conduct was not violative of the Act. Here it is undisputed
that Bond was fully cognizant of the fact that Union had demanded recognition as the bargain-
ing representative of certain of the employees and when its demand was rejected filed a
petition with the Board's Regional Office. During the pendency of this petition Bond caused
Schneymand and Winch to be separately summoned before him at the Nettleton Company show-
room where he questioned them as to whether the Union represented all of the employees and
if they, as well as the other employees , intended to remain members of the Union . In resorting
to this procedure Bond completely ignored and bypassed the representatives of both the Board
and the Union. Moreover, as already found, Buell had previously questioned Winch regarding
his union membership and Radazzo sought to learn the identify of the instigator of the move-
ment from Florentine.
In a recent case , N. L R. B. v. Syracuse Color Press, Inc., 209 F. 2d 596, the Second Cir-
cuit held interrogations of this type to be violative of the Act. There high officials of the com-
pany called certain key employees to the office where they questioned them concerning their
union membership as well as that of other employees, the place where meetings were held and
the strength and names of employees who were union members. The court recognized that the
questions propounded , and standing alone , were insufficient to sustain a charge of unfair labor
practices but the answer as to whether such interrogations interfere with , restrain , or coerce
the employees in their right to self-organization must be found in the record as a whole. In-
terrogations of this type, the court, stated, find no specific authorization in the Act, nor are
they afforded constitutional protection except tothepointthat they are free from the character
of coercion, and when that limit is passed ji licial precedents are unanimous that a violation
of Section 8 (a) (1) may be found. Further, the court held that the time, place, personnel in-
volved, and information sought, "all must be considered in determining whether or not the
actual or likely effect of the interrogations upon the employees constitutes interference,
restraint or coercion." These circumstances the court concluded, "go to make up ... 'at
least the aroma of coercion' in which the interrogations were conducted" and afford a legal
basis for the Board's order.
All the indicia relied upon by the court appear in this case . Here the appearance of Schney-
man and Winch before Bond at the display room was compulsory rather than voluntary or
A. E. NETTLETON CO. 1695
optional and certainly it cannot be said that Bond held the status of a minor representative of
the Company, which might tend to negate the effectiveness of his interrogations. Nor does the
undersigned believe that subsequent recognition of the Union, without an election, justifies or
condones this illegal conduct. To hold otherwise would mean that the filing of a representation
petition would be tantamount to issuing a license to the employer or his attorney authorizing
the direct interrogation of employees on the pretext of determining the Union's majority, which
issue the courts have long held to be an exclusive function of the Board.
Under all the circumstances the undersigned finds that Bond's interrogations were calculated
to have a coercive effect upon the employees, and did have such an effect, and the Company
thereby interfered with, restrained, and coerced the employees in violation of their rights
guaranteed under the Act.
By reason of the foregoing acts on the part of Bond, Buell, and Radazzo the undersigned finds
that the Company violated Section 8 (a) (1) of the Act.
2. The refusal to bargain
It is readily apparent from the evidence detailed above that sharp conflicts arise from the
testimony of witnesses presented by the respective parties concerning the discussions and
their positions on various bargainable subjects at the four sessions. Under the circumstances
the question of whether the Company refused to bargain collectively in accordance with the
mandate of the Act is one of mixed fact and law, with the former to be determined like any
other factual issue . At this point it is appropriate to comment that the personal demeanor and
conduct of all witnesses was commendable and they offered their testimony without any indi-
cation of hostility or ill feeling towards the opposing party or counsel. This is particularly
true of witnesses for the General Counsel, many of whom were subjected to prolonged, routine
cross-examination. Accordingly, these factors which normally are considered in passing upon
the credibility of witnesses are not decisive of the issue in this case. In resolving the conflicts
herein the undersigned has considered principally, the witness' knowledge of the particular
subject matter, his frankness in responding to proper questions, consistency of narration,
corroboration from other sources and the logic and reasonableness of his testimony viewed in
the light of the facts of the case. Applying these tests the undersigned finds that Garfinkel and
Geisler were thoroughly acquainted with the details of the negotiations and presented their
version of events and positions of the parties throughout these meetings in a clear and forth-
right manner. Moreover, the events related by them impress the undersigned as being entirely
reasonable and plausible and viewed in the light of all the facts bearing upon this controversy
carry the imprint of consistency and integrity. On the other hand Bond gave a vague, rambling,
and disconnected recital of the events occurring at the meetings which was frequently marred
by inconsistent and contradictory statements . His testimony, which is set forth above, need
not be repeated here, other than to refer to 2 instances illustrating his views of the negotia-
tions. Thus, at the meeting of November 7, he blandly testified the parties had agreed to
"substantially every"" covering hours of work. When, on cross-examination, he was
questioned concerning this accord, he quickly admitted that no such agreement had been
reached except as to the 2 porters. Again, at the meeting of November 20, he asserted that the
representatives had practically reached an agreement on all issues except wages and the union-
shop provisions. This testimony is flatly contradicted by the evidence and even trial counsel,
in their brief, concede that the Company accepted only 4 minor proposals submitted by the
Union. The undersigned firmly believes that Bond uttered this statement without any deliberate
attempt to mislead anyone, nevertheless, responses of this character considered with his
entire testimony plainly demonstrate that his memory was faulty or that he was prone to make
reckless and unfounded assertions. Although Radazzo attended the meetings it is obvious he
was placed in a minor role and admittedly his participation in any of the discussions was ex-
tremely limited. As might be expected from the nature of the evidence adduced by Bond,
Radazzo at various tunes supported and contradicted portions of his testimony. Radazzo
exhibited scant knowledge of the issues discussed and the positions of the parties and his
testimony is unimpressive. Accordingly, the undersigned accepts and credits the testimony of
Garfinkel and Geisler and rejects that of Bond and Radazzo, except where it is not inconsistent
with the findings herein. On the foregoing basis and with the reasonable inferences to be
drawn from the evidence, the undersigned makes the following findings.
At the first meeting the Union outlined its proposals to the Company which included requests
for substantial wage increases, a basic 40-hour week, greater vacation and holiday conces-
sions, and other customary demands in respect to conditions of employment. At the same time
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a form union agreement was presented to the Company , with the explanation that it might serve
simply as a guide during the negotiations. While this agreement contained a closed-shop pro-
vision, the Union made it plain it was not seeking that type of clause but a union shop in
conformity with the provisions of the Act. The representatives briefly referred to the wage
demands with Bond complaining the increases were excessive. While on this subject the
Company claimed they had no assistant managers, although it was admitted that Schneyman
and Winch because of their long service did receive higher earnings than the other salesmen.
There is no evidence that the Company sought to exclude these individuals from the bargaining
unit on the grounds that they were supervisory employees. Consequently, whether they be
called assistant managers or long service employees is a matter of semantics . The belated
contention that Schneyman was in fact a supervisory employee is discussed below. The meeting
ended with the representatives of the Company, who had no authority to accede to any of the
proposals, stating they would submit the demands to Cook, at Syracuse, since he made final
decisions in matters of this kind and they might return with counterproposals.
Two weeks later the second meeting was held and in answer to the Union's request for
counteroffers the Company replied they had not been authorized to submit any proposals be-
cause Cook was studying the matter and a survey of rates in other shops was being, or about
to be, conducted. A short discussion of rates at other stores then ensued. The parties at this
meeting, or subsequent one, agreed upon terms providing for 6 days ' sick leave , a 40-hour week
for porters, and computation of vacation pay, on the existing vacation system, on the basis of
annual earnings, after the Union withdrew its demand for 3 weeks' vacation after 5 years'
service. Other subjects such as holidays and guaranteed employment were also discussed.
At the outset of the third meeting, held2 weeks later, the Union again asked for counteroffers
to its proposals and received thesameansweras made at the previous session . The Company,
through Bond, mentioned pay rates at other stores and inquired if the Union would be satisfied
to maintain the present wage scale, which was rejected. Bond thereupon stated that the
Florsheim rate was $ 55 and 2 percent and inquired if the Union would consider that rate. The
union representatives asked if this was an offer and Bond said it was not , that he was attempt-
ing to have the Union lower its demands so he could report back to Cook. In like manner Bond
mentioned $ 60 and 1 percent and again, when the Union asked if this was an offer, Bond replied
in the negative. Since Cook had final authority in the matter and did not attend any of the meet-
ings, the Union, through Geisler, offered to confer with him at Syracuse, but Bond was unable
to agree to such a meeting, all he could do was to report the same to Cook.
The fourth meeting was held on December 9, and the Union repeated its request for counter-
proposals. Bond replied he was not in any position to comply with this request as the wage
survey had not been completed. The union representatives complained of the delays in the
negotiations, as they had at an earlier meeting, but Bond said it could not be helped for Cook
had not authorized the submission of counterproposals. In view of these delays the union
representatives asked that any agreement be made retroactive to September 1, which was
later changed to December 1, but the Company could make no commitment without Cook's
approval. Bond requested the Union to lower its wage demands and Geisler answered if the
Company would offer $ 57.50 and 2 percent or $ 65 and 1 percent, he would discuss the pro-
posal with the employees. Bond advised him he could not present any such offer. A short time
prior to this meeting Radazzo and Bond conferred with Cook concerning a possible offer for
the Union and disc.ssed "some figures ... 55 and 2 and 60 and 1." During the course of the
instant meeting Radazzo testified that Bond asked theUnion if it would consider $ 55 or $ 57.50
and 2 percent and Geisler inquired if this was a definite offer. While the record fails to dis-
close Bond's response the undersigned, considering the other testimony in this respect, is
convinced that Bond did not submit any offer at this meeting.
The subject of pension and welfare plans was brought up in which Bond sketchily outlined the
Nettleton Company association plan and asked if the Union would consider including the store
employees thereunder. The Union, after explaining its plans, stated it was not insisting upon
its own program and was agreeable to any other plan, provided it was more beneficial to the
employees. The Company admitted the Union's plans were more beneficial to the employees
and the matter was dropped.
In answer to the request for a union-shop agreement, Bond, at this and other meetings,
declared he was opposed to such a clause although he was merely expressing his own personal
opinion, as distinguished from the position of the Company, whatever that might have been.
Geisler again offered to meet with Cook and Bo,id promised to consult with Cook in regard
to an appointment. While Bond was of the opinion that another meeting should be held he was
A. E. NETTLETON CO. 1697
opposed to coming to New York City during the holidays, so no date was set for the next
meeting.
Following an exchange of telephone calls the parties arranged a meeting for December 29.
In the meantime, on December 20, Schneyman, Winch, and Swanberg testified that Radazzo,
Darnell, and Bloom, respectively, offered them substantial wage increases and other con-
cessions provided they dropped their union membership. Forentine and Tedrow corroborated
Schneyman's testimony in this respect. Each of the managers categorically denied making
any such offers. While the evidence on this point is conflicting the resolution of the conflict
is not so difficult as might appear on the surface. First, it seems highly implausible that the
five witnesses presented by the General Counsel would concoct such a story without any
foundation whatsoever. Again, the steps taken by the employees are entirely reasonable and
consistent and as might be expected under the circumstances. It is undisputed that Schneyman
reported the offers to Florentine and Tedrow as soon as practicable, who rejected the same.
The subject of the offers was also discussed among the employees and the union representa-
tives complained of this action to the Company. Thus, at the meeting of January 19, Garfinkel
referred to these offers and called upon Buell to confirm or deny the same, but Seligman
refused to permit him to answer the statement. Certainly, it cannot be said that the question
was not raised at any early date and this lends credence to the fact that the offers were made.
The undersigned accepts and credits the testimony of witnesses for the General Counsel and
finds that on December 20, Radazzo, Darnell, and Bloom made direct offers to the employees,
conditioned upon their renouncing the Union
It is undisputed that the Company cancelled the meeting for December 29, because of
Radazzo's illness and refused to fix another date until such time as he might be able to attend.
Thereafter the employees voted to go on strike and commenced picketing on January 6 The
strike was still current at the time of the hearing.
From the foregoing findings the undersigned must determine whether the Company engaged
in conduct in violation of the Act Section 8 (a) (5) provides that an employer may not refuse
to bargain collectively with the representatives of his employees and Section 8 (d) states the
employer and representatives are mutually obligated to meet at reasonable times and to confer
in good faith concerning wages, hours, and other conditions of employment but this obligation
does not compel either party to agree to a proposal or require the making of a concession.
In passing upon the statutory duties and obligations imposed upon the employer the Court of
Appeals for the First Circuit, in N. L. R, B. v Reed & Prince Mfg. Co. 205 F 2d 131, 134-
135 held that while the Board may not "sit in judgment upon the substantive terms of col-
lective bargaining agreements," it is not to beblinded by empty talk and mere surface motions
of collective bargaining but must take cognizance of the positions taken by an employer in the
course of bargaining negotiations. (Citing N. L. R. B. v. American National Insurance Co ,
343 U. S. 395, 404, and other cases.) Continuing, the court declared.
Thus if an employer can find nothing whatever to agree to in an ordinary current-day
contract submitted to him, or in some of the union's related minor requests, and if
the employer makes not a single serious proposal meeting the union at least partway,
then certainly the Board must be able to conclude that this is at least some evidence
of bad faith, that is, of a desire not to reach an agreement with the union in other
words, while the Board cannot force an employer to make a "concession" on any spe-
cific issue or to adopt any particular position, the employer is obligated to make some
reasonable effort in some direction to compose his differences with the union, if § 8 (a)
(5) is to be read as imposing any substantial obligation at all.
Adopting the sound principles and guides announced in the Reed & Prince case, the under-
signed has no difficulty in concluding that the Company in its dealings with the Union has failed
to carry out its duties and obligations under the Act.
Here the Union presented certain demands including one for substantial wage increases,
which proposal became the principal issue between the parties. Although the representatives
conferred on four occasions at no time did the Company ever make any counteroffer in this
regard, even though repeatedly requested to do so, but was content to assume the position
that the rate was too high, that a survey was being conducted, and that Cook had simply refused
to authorize the submission of any offer. Moreover, the Union did not maintain any adamant
position that its wage demands must be accepted as stated, for at the fourth meeting it pro-
posed that the Company submit a much lower figure in order that it might have something to
339676 0 - 55 - 108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer and discuss with the employees. However, the Company refused to alter its position.
In adopting this attitude the Company effectively precluded any worthwhile negotiations on
this and other contract terms. Tactics of this type have long been held sufficient to support
the conclusion that the party did not enter into the discussion "with an open and fair mind,
and a sincere purpose to find a basis of agreement touching wages and hours and conditions
of employment . . . . " (Globe Cotton Mills v. N. L. R. B., 103 F. 2d 91, 94 (C. A. 5). See also,
N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 429; N. L. R. B. v. O'Keefe and
Merritt Mfg. Co , 178 F. 2d 445, 449 Atlanta Broadcasting Company, 90-NLRB 80-878-18--0-1,
enforced 193 F. 2d 641 (C. A. 5).) Nor was the Company ' s resistence to the principle of col-
lective bargaining limited to its refusal to make any counteroffers. The Company's evidence
on the subjects that were mentioned, or talked about, at the conferences is so vague and con-
fusing as to render any opinion on its definite position concerning these terms practically a
hopeless matter. It is true that the Company did make several minor concessions, such as
sick leave, vacation pay, and hours for the porters, but the record clearly demonstrates that
its representatives lacked adequate authority to conduct the negotiations as evidenced by
the fact that all matters had to be referred to Cook for approval Not only did this procedure
result in much delay and loss of time but his absence reduced the conferences to nothing
more than a mere exchange of thoughts, ideas, and personal opinions on the part of the com-
pany representatives. The Union sought to eliminate this condition by offering to meet with
Cook at Syracuse which was rejected. Such conduct plainly indicates a violation of Section 8
(a) (5). (Great Southern Trucking Co. v. N. L. R. B., 127 F. 2d 180, 185, (C. A. 4) cert. denied
317 U. S. 652.) The undersigned is convinced that the Company entered into these negotiations
without any intention of reaching an accord with the Union and was concerned only with escaping
its obligations through obstructive, evasive, and stalling tactics.
Any doubt of the Company's motive is fully removed by its subsequent action in approaching
the employees individually and offering substantial wage increases and other concessions
provided they gave up their union membership. All this taking place after the Company had
agreed to a fifth meeting. In so doing the Company acted in plain derogation of its duty to
bargain with the Union as the exclusive representative of the employees and the net result
of this action was to minimize the influence of collective bargaining and block the Union from
securing further wage adjustments. The Company thereby violated Section 8 (a) (5) and (1)
of the Act. (May Department Stores Company v. N. L. R. B. 326 U. S. 376. 383-385.)
Several days before the scheduled meeting the Company advised the Union it had to be
cancelled because Radazzo , its chief negotiator , had been taken ill and it could not arrange
another conference until he had recovered. Certainly there is nothing in the record to remotely
justify the assertion that Radazzo was the chief negotiator, in fact the evidence clearly shows
he was relegated to a minor role as far as the meetings were concerned . The Company there-
fore simply seized upon his illness as an excuse to avoid future meetings . But even assuming
Radazzo was an important figure in the negotiations still that would afford no reason to
indefinitely postpone the Company's obligation to meet and bargain collectively with the Union.
(Martin Brothers Box Company, 35 NLRB 217, 238-240, enforced 130 F. 2d 202, 207, cert.
denied 217 U. S. 660, Patterson Steel & Forge Company, 96 NLRB 129, 140.)
Counsel argue that irrespective of what might have occurred during the previous sessions
the Company bargained in good faith with the Union at the meetings of January 19 and 20.
Counsel concede that the wage rate was the paramount issue between the parties. At these
meetings the Company proposed a basic wage of $ 60 and 1 percent with adjustments to be
made for nonselling employees,9 inclusion of store employees under the Nettleton Company
association plan, 6 days' sick leave, and computation of vacation pay on average yearly
earnings . Seemingly, there would be no change in hours of employment for Seligman inter-
twined the length thereof with wages, although the Company had previously agreed to a 40-
hour week for porters Other demands were discussed, such as holidays, union shop, and
9 In their brief counsel point out that the proposal was in excess of the average weekly
earnings of "retail trade" employees in New York City, which was about $50 per week at
that time, in accordance with a statistical report issued by the State Department of Labor.
According to this chart the figures are for employees working in "apparel and accessories"
stores. While the argument is not important to the issues here, there is nothing to indicate
that retail shoe employees are included in this category. In response to inquiry by the under-
signed the Bureau of Labor Statistics, United States Department of Labor, advises that it
has no breakdown on the average weekly earnings of retail shoe salesmen.
A. E. NETTLETON CO. 1699
arbitration, and rejected by the Company The Union refused to accept the Company's wage
offer for the reason that it was far less than the offer made to the employees and urged the
Company to submit this proposal to it. This the Company declined to do. Of course, if the
prior conduct of the Company is to be ignored and overlooked there may be some merit to
the argument that in submitting limited proposals it fulfilled its statutory obligations. However,
having found that the Company offered substantially higher increases to the employees the
undersigned has no difficulty reaching the conclusion the Company did not bargain in good
faith during these meetings and the so-called counterproposals were meaningless and presented
only to give some semblance of negotiation to a course of conduct in plain opposition to the
principle of collective bargaining. Throughout these sessions Seligman stressed the fact that
he had been recently retained in the matter and was not too familiar with the facts. As might
be expected he concluded the meetings by stating he had to confer with Cook on policy matters
and if he had anything further he would contact the mediator.
The undersigned finds that on and after October 15, 1952, the Company refused to bargain
collectively in good faith with the Union and thereby engaged in conduct in violation of Section
8 (a) (5) and (1) of the Act. The undersigned further finds that the strike of January 6, 1953,
was caused and prolonged by unfair labor practices committed by the Company.
3. Conclusions upon other phases of the case
The General Counsel adduced evidence to the effect that on January 5, Schneyman and his
wife visited Radazzo at the hospital at which time Radazzo referred to the threatened strike
and prior offers to the men. As "background evidence," Stain and Florentine stated they
called upon Radazzo at his home about January 12, when he expressed surprise that the Com-
pany had considered him the "principal negotiator." These incidents are not decisive of the
issues so , granting Radazzo made the statements, the undersigned does not rely upon them
to support any of the findings herein.
Philip Burnstein testified he was interviewed by Buell in regard to employment while the
strike was in progress and asked whether he was a member of the Union. Assuming this to
be true the undersigned finds that under the circumstances the so-called interrogation is
clearly an isolated and unrelated incident.
Counsel for the Company contend that Schneyman acted as manager in Radazzo's absence
and therefore was a supervisory employee. Consequently, the conversations between Cook and
Schneyman about December 29, and between Buell and Schneyman on January 5, in regard to
continued operation of the store in the event of a strike were privileged. The fallacy and
insincerity of this contention is patent for while the Company asserts Schneyman was a super-
visor in these instances there is no suggestion that he was acting in such a capacity when he
transmitted the wage offers to Tedrow and Florentine. Then he was simply an employee.
The argument therefore is merely one of convenience In any event there is nothing in the
record to warrant the assumption that Schneyman exercised any of the duties of a supervisory
employee. True he did act as manager when Radazzo was out but only to the extent that it
was necessary to have someone in charge of the store. However, there is no evidence that
while so acting Schneyman was vested with the power and authority to conduct all operations
of the store, including the right to hire and fire. Indeed counsel can point to only one alleged
instance where Schneyman was even consulted concerning the action of an employee, and then
he merely agreed with Radazzo that a particular salesman was not too cooperative. Further,
both Florentine and Tedrow testified that they did not consider Schneyman to be a supervisor.
The undersigned so finds. In making this finding it does not necessarily follow that the above-
mentioned conversations were violative of the Act, for there appears to be nothing coercive
in these statements . The undersigned does find that on the evening of January 5, Buell called
Schneyman to his hotel room where he urged him to give up the Union and if he would return
to work everything would be all right. This statement is clearly coercive and violative of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection with
the operations of the Respondent described in section I, above, have a close, intimate, and
substantial relation to trade , traffic , and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent has engaged in certain unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative action which
the undersigned finds will effectuate the policies of the Act.
Having found that the Respondent refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit, it will be recommended that
the Respondent upon request bargain collectively with the Union
It has been found that the strike, which began on January 6, 1953, and was still in progress
at the date of the hearing, was caused and prolonged by the Respondent's unfair labor practices.
The strikers, who have not been reinstated, therefore, are entitled to reinstatement, upon
application, irrespective of whether or not their positions have been filled by the Respondent,
and to be made whole for any loss of pay they have suffered or may suffer because of the
Respondent's refusal, if any, to reinstate them.io Accordingly, in order to restore the status
quo as it existed prior to the time the Respondent engaged in the unfair labor practices, it
will be recommended that the Respondent shall, upon application, offer reinstatement to their
former or substantially equivalent positions,11 without prejudice to their seniority and other
rights and privileges, to all their employees who went on strike on January 6, 1953, or there-
after , dismissing , if necessary , any person hired on or after that date . It will also be recom-
mended that the Respondent make whole these employees for any loss of pay they have suf-
fered or may suffer by reason ofthe Respondent's refusal, if any, to reinstate them by payment
to each of them of a sumof money equal to that which he normally would have earned as wages
for the period five (5) days after the date of his application for reinstatement to the date of
the Respondent's offer to reinstate him. Loss of pay shall be computed on the basis of separate
calendar quarters , less his net earnings , if any, during that period.iz
Because the variety of the unfair labor practices engaged in by the Respondent evinces an
attitude of general opposition to the purposes of the Act, it will be recommended that the
Respondent cease and desist from in any manner infringing upon the rights guaranteed in
Section 7 of the Act.
Upon the basis oftheabove findings offact and upon the entire record in the case, the under-
signed makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of Section 2
(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. All employees at Empire State Nettleton Company, Inc., Nettleton Roosevelt Company,
Inc., and Manhattan Nettleton Company , Inc ,exclusive ofmanagers and supervisory employees
constitute a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4, On or about August 13, 1952, Retail Shoe Employees Umon, Local 1268, CIO, was, and at
all times since has been, and now is, the exclusive bargaining representative of all the em-
ployees in the above-described unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
5. By refusing on Octpber 15, 1952, and at all times thereafter, to bargain collectively
with Retail Shoe Employees Union, Local 1268, CIO, as the exclusive representative of all its
employees in the appropriate unit , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
6 By interrogating its employees concerning their membershipor nonmembership in Retail
Shoe Employees Union, Local 1268, CIO, the Respondent engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. 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 (a) (1) of the Act.
to City Packing Company, 98 NLRB 1261,
"The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65
NLRB 827.
12 F. W. Woolworth Company, 90 NLRB 289.
A. E. NETTLETON CO. 1 701
8 The strike of January 6, 1953, was caused and prolonged by the unfair labor practices
of the Respondent
9 The aforesaid unfair labor practices affect commerce within the meaning of Section 2
(6) and (7) of the Act.
[Recommendations omitted from publication.]
U S. GOVERNMEN I PRINTING OFFICE 1955 0 - 339676