A. S. Beck Shoe Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1951

92 N.L.R.B. 1457 (N.L.R.B. 1951)

'In the Matter of A. S. BECK SHOE CORPORATION and UNITED RETAIL,
WHOLESALE & DEPARTMENT STORE EMPLOYEES UNION OF AMERICA,
CIO
Case No. 3-CA-202.-Decided January 23,1951
DECISION AND ORDER
On October 5, 1950, Trial Examiner Eugene E. Dixon issued his
Intermediate Report finding that the Respondent had engaged in
certain unfair labor practices within the meaning of Section 8 (a) (1)
and 8, (a) (5) of the Act, and recommending that the Respondent
cease and desist therefrom, and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended
dismissal of these allegations. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The. rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and supporting brief, and the
entire record in the case, and hereby adopts the finding s,3 conclusions,
and recommendations of the Trial Examiner with .the ,additions and
modifications noted below.
1. The Trial Examiner found, and we agree, that the Respondent
has interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act by the following statements and
' The Respondent 's request for oral argument is denied because the record and the
exceptions and brief submitted , in our opinion , adequately present the issues and position
of the parties.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board . had delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Murdock and Styles].
' The Intermediate Report contains minor inaccuracies which do not affect our ultimate
findings :
(a) The Trial Examiner erroneously stated that the Respondent hired Harold Winer
and Herman Levine as full-time shoe salesmen in its Syracuse store on June 27, 1948;
the record shows , however , and we find that they were hired on June 27, 1949 ;
(b) The Trial Examiner also stated that the letters addressed to McKee and to the
Respondent 's New York office, in which the Union asked for recognition and bargaining
conference , were dated June 19 , 1949 ; the record, however, shows and we find that these
letters were dated June 16, 1949.
92 NLRB No. 225. 1457
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct: (a) The acts of Vice-President Domash and District Man-
ager Scott in interrogating certain named employees as to their union
activities, who had signed union authorization cards, and why they
wanted a union; ' (b) the acts of District Manager Scott and Manager
McKee in requesting employees Maurillo, Umbra, and Liquori to with-
,draw from the Union, promising them in return, expressly or iln-
pliedly, promotions to a better job or increased earnings; (c) Scott's
attempts to get employee Umbra to announce his resignation from the
Union and Scott's subsequent statement to Maurillo that "it is all up to
you Steve. The boys have waited for you to say the word, if you want
to get out, they will get out"; 6 (d) the withdrawal by the Respondent
of certain privileges theretofore enjoyed by the employees, such as
.drinking coffee at the store in the morning, periodic breaks in work,
and the use of the telephone, in retaliation for their failure to abandon
the Union; ? and (e) McKee's orders to Maurillo and Pascale not to
discuss the Union in the store, orders broad enough to prevent union
discussions during nonworking hours away from the selling floors in
the store.8
2. TheTrial Examiner found that the Respondent on June 27, 1949,
hired Harold Winer and Herman Levine as full-time salesmen in its
.Syracuse store for the purpose of destroying the Union's majority
-status as the bargaining representative in an appropriate unit, and
that the Respondent thereby violated Section 8 (a) (1) of the Act.
The Respondent excepts to this finding. While the matter is not
free from doubt, we are not convinced, upon the record before us,
that the hiring of the new salesmen was for the purpose of impair-
ing the Union's majority rather than for business reasons. We do
not, therefore, adopt this finding.
3. The Trial Examiner found, and we agree, that all the employees
of the Respondent employed in its Syracuse store, with certain ex-
clusions, constitute a unit appropriate for the purposes of collective
bargaining, and that by failing to bargain with the Union on that
basis the Respondent violated Section 8 (a) (5) of the Act. The
Trial Examiner, however, also found that the bargaining unit urged
by the Respondent comprised of the employees in the Respondent's
Mohawk Valley stores would be inappropriate. Inasmuch as we
have found that the single-store unit, upon which the request for
4 No exceptions were taken by the Respondent to these findings of the Trial Examiner.
6 Standard_ Coosa-Thatcher Company, 85 NLRB 13,58; The Linde Air Products Company,
86 NLRB 1333.
6 Earl Sewerin, Inc., 90 NLRB 86: Pure Oil Company , 90 NLRB 1661 ; Chicopee Manu-
facturing Corporation of Georgia, 85 NLRB 1439.
' Cummer -Graham Company, 90 NLRB 722 ; Jackson Doily News, 90 NLRB 565;
Valdoroth Label Corporation, 91 NLRB 1.22.
" Meier & Frank Company, Inc ., 89 NLRB 1016.
4,
A. S. BECK SHOE CORPORATION 1459
bargaining was predicated, is appropriate,9 it is unnecessary for us
to pass upon the appropriateness of the area-wide unit asserted by
the Respondent."' There is nothing in the statute which requires
that the unit for bargaining be the only appropriate unit, or the
ultimate, or the most appropriate unit. The Act requires only that
the unit be "appropriate" to ensure to employees in each case the
fullest freedom in exercising the rights guaranteed under the Act"
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National La-
bor Relations Board hereby orders that the Respondent, A. S. Beck
Shoe Corporation, New York City, New York, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating employees at its Syracuse store concerning their
union membership and activities, seeking to induce its employees to
withdraw from membership in a labor organization by solicitation
and promises of benefit, denying its employees privileges previously
enjoyed by them for the purpose of discouraging membership in a
labor organization, and prohibiting its employees from discussing
union matters in the store away from the selling floors during non-
working hours.
(b) Refusing to bargain collectively with the United Retail, Whole-
sale & Department Store Employees Union of America, CIO, as the
exclusive representative of all its employees in its Syracuse store
excluding part-time and temporary employees, supervisors, guards,
and professional employees as defined in the Act, with respect to
rates of pay, wages, hours of employment, or other conditions of
employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Retail, Wholesale
& Department Store Employees Union of America, CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
9The Kroger Company, 85 NLRB 6; The Great Atlantic & Paci/ic Tea Company, 85
NLRB 680; American Stores Company , 82 NLRB 882.
10 Cf. Safeway Stores , Inc., 88 NLRB 1335; The Grand Union Company, 81 NLRB 1016;
Kraft Foods Company, 91 NLRB 525.
11 Garden State Hosiery Co., 74 NLRB 318, 324; Morand Brothers Beverage Co., et al.,
91 NLRB 409.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership 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) Rescind immediately its rule against discussion of union mat-
ters, insofar as it prohibits such discussions off the selling floors
during nonworking hours.
(b) Upon request, bargain collectively with United Retail, Whole-
sale & Department Store Employees Union of America, CIO, as the
exclusive bargaining agent of all its employees in the bargaining unit
described herein, with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement.
(c) Post at its store in Syracuse, New York, copies of the notice
attached hereto, marked Appendix A.12 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
It is further ordered that the complaint be dismissed insofar as it
alleges that the Respondent violated Section 8 (a) (1) and 8 (a) (3)
of the Act by hiring Winer and Levine.
APPENDIX A
NOTICE TO ALL EMPLOYEES
. Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
membership and activities, seek to induce them to withdraw from
12 In the event this order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words "A Decision and Order ," the words
"A Decree of the United States Court of Appeals Enforcing."
A. S. BECK SHOE CORPORATION 1461
membership in a labor organization by solicitation or promises
of benefit, deny them privileges previously enjoyed by them for
the purpose of discouraging membership in a labor organization,
prohibit them from discussing union matters in the store away
from the selling floors during nonworking hours, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organi-
zatiolls, to join or assist UNITED RETAIL WHOLESALE & DEPART-
MENT STORE EMPLOYEES UNION OF AMERICA, CIO, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment, or other conditions of employment, and, if
an understanding is reached, embody such understanding in a
signed agreement. 'The bargaining unit is: All employees in our
Syracuse, New York, store, exclusive of part-time and temporary
employees, supervisors, guards, and professional employees.
All our employees are free to become, remain, or refrain from
becoming members of the above-named union, or any other labor
organization, except to the extent that this right may be affected by a
lawful agreement requiring membership in a labor organization as a
condition of employment.
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Ralph E. Kennedy, of Buffalo , N. Y., for the General Counsel.
Mr. Ludwig Teller, of Schlesinger & Krinsky, New York , N. Y., for the
Respondent..
Mr. John J. Maurillo , of Syracuse , N. Y., for the Union.
A. S. BECK SHOE CORPORATION,
Employer.
By ------------------------------------
(Representative ) ( Title)
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge filed August 9, 1949, by United Retail, Wholesale & Department
Store Employees Union of America, CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, herein called the General Counsel
and the Board, respectively, by the Regional Director for the Third Region
(Buffalo, New York), issued his complaint dated February 28, 1950, against A. S.
Beck Shoe Corporation, herein called the Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. Copies of the complaint, the charge, and notice of hearing were duty
:served upon Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended,' alleged
in substance that: (1) Respondent since on or about June 17, 1949, has refused
to bargain with the Union as the exclusive representative of Respondent's employ-
ees in an appropriate unit; (2) by various named supervisory personnel, Re-
spondent (a) interrogated its employees about their union activities, ( b) urged,
persuaded, threatened, and warned its employees from assisting the Union or
becoming or remaining members thereof, (c) offered and promised benefits and
inducements to its employees to refrain from becoming or remaining members
of the Union, (d) threatened its employees with withdrawal of benefits and
changing their working conditions if they joined or remained members of the
Union, (e) stated to its employees that it would not permit them to become
members of the Union and that they would be discharged if they joined the
Union or remained members thereof, (f) hired additional employees to reduce
commissions paid the employees, thus discouraging membership in the Union,
(g) announced and enforced a rule prohibiting discussion of union activities
or matters on store premises; and (3) on or about June 27, 1949, hired Harold
Winer and Herman Levine for the purpose of destroying the union majority and
for the additional purpose of reducing the commissions of salesmen because they
had joined the Union.
In its duly filed answer, as amended, Respondent denied that it had engaged
in or was engaging in any of the alleged unfair labor practices.
Pursuant to notice, a bearing was started at Syracuse, New York, April 17,
1950, before Eugene E. Dixon, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. At this time, because of Respondent's refusal
to comply with subpenas directed to certain of its officials and records, a recess
was granted at the request of the General Counsel to enable him to seek enforce-
ment of the subpenas in the United States district court. An order or enforce-
ment having been obtained, pursuant to notice, the hearing was reopened at
Syracuse, New York, on May 18, 1950. During the above interim the Board
denied appeals by both the General Counsel and the Respondent pertaining
to the undersigned's denial of respective motions for more specification of the
answer, and a bill of particulars.
All parties were represented by counsel, participated in the hearing, and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
,and to introduce evidence bearing upon the issues. Respondent's objections to
i The complaint was amended March 15, 1950, and ruling was reserved at the end of
bearing on a motion further amending the complaint with respect to the addition of an
allegation that Respondent announced and enforced a rule prohibiting discussion of union
activities and matters ion .store premises . The motion is hereby granted.
A. S. BECK SHOE CORPORATION 1463
the offer in evidence of General Counsel's exhibits identified as Numbers 17
and 15 being, respectively, publication entitled "We" and a communication to
the Board on the letterhead of Respondent's counsel, were taken under advise-
ment. The objections are hereby sustained and the exhibits relegated to the
rejected exhibit file. At the end of the General Counsel's case-in-chief, Respond-
ent's motions to dismiss the complaint were denied. Rulings on similar motions
at the end of the hearing are disposed of as appears herein. Ruling on the
General Counsel's motion to conform the pleadings to the proof with respect
to formal matters not of substance was objected to by Respondent, and ruling
was reserved at that time. The motion is hereby granted.
Upon the conclusion of the hearing the Respondent argued the issues orally
upon the record, and although leave was granted to file briefs, only the General
Counsel availed himself of that privilege.
Upon the entire record in the case and from my observation of the witnesses,
I, the undersigned Trial Examiner, make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is and for many years has been a corporation duly organized
under and existing by virtue of the laws of the State of Delaware. Since
December 29, 1936, Respondent has had authority to conduct its business in the
State of New York.
At all times material herein Respondent has maintained its principal office
and warehouse in the City of New York, State of New York, and has operated
approximately 125 retail stores selling shoes, hosiery, handbags, and related
items in some 20 States of the United States, and in the District of Columbia.
The facility involved in this proceeding is the retail store of Respondent lo-
cated at Syracuse, New York. During the calendar year 1949, Respondent's sales
at its Syracuse, New York, store, totalled more than $100,000. During the cal-
endar year 1949, Respondent received at its Syracuse, New York, store, merchan-
dise, equipment, and supplies valued in excess of $100,000, of which approxi-
mately 95 percent originated in and was shipped to it from points outside the
State of New York through the conduit of a warehouse located in New York
City.
During the calendar year 1949, Respondent in the course and conduct of its
business operations, purchased merchandise, supplies, and equipment valued in
excess of $20,000,000, approximately 75 percent of which value was purchased
outside the State of New York and shipped in interstate commerce to the ware-
house of Respondent located in New York, New York. During the same period,
Respondent shipped from its warehouse located in New York, New. York, mer-
chandise, supplies, and equipment valued in excess of $10,000,000 to points out-
side the State of New York.
Respondent admits, and I find, that it is engaged in commerce within the
meaning of the Act.
11. THE ORGANIZATION INVOLVED
United Retail, Wholesale & Department Store Employees Union of America,
CIO, is a labor organization admitting to membership employees of the
Respondent.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The issues
The main issues in this case as presented by the evidence and the pleadings
are relatively simple : 1. Was the hiring of Levine and Winer some 10 days
after a demand for recognition had been made by the Union, motivated by the
purpose of discriminatorily decreasing the commissions of the employees thus
discouraging membership in the Union, and by the purpose of destroying the
Union's' majority? 2. Did Respondent in violation of the Act refuse to recognize
and bargain with the designated representative of a majority of its employees
in an appropriate unit? 3. Did Respondent interfere with, restrain, and coerce
its employees in the exercise of rights guaranteed them in the Act? The only
real difficulty in disposing of these issues arise as a result of sharp conflicts in
the testimony requiring careful analysis of the witnesses' credibility.
B. Interference, restraint, and coercion
On or about June 15, 1949, Ralph Scott, Respondent's district manager for the
Mohawk Valley area, in which the Syracuse store is located, was informed by
means of a long distance telephone call from Clarence McKee, manager of
Respondent's Syracuse store, that the Union was attempting to organize the
Syracuse store. Scott thereupon called Jacob Domash, Respondent's vice presi-
dent in charge of store operations and labor relations at the latter's office in
New York City. Domash told Scott in substance, "these things" usually arise
from grievances on the part of the employees and instructed him to go to Syracuse
and investigate the matter. Whether in that conversation or in another Domash
also requested Scott to arrange a dinner at one of the Syracuse hotels for the
following evening. Present at this dinner was McKee, Scott, and Domash, as
well as all the regular full-time employees of the Syracuse store' then on the
payroll2 After small talk over a cocktail and dinner the purpose of the meeting,*
which occasioned Domash's first visit to the store in about 3 years, was made
known. Among other things, Domash stated that it had come to his attention
that the employees had some grievances which he wanted to hear about and
discuss.
Maurillo' then announced "that he would talk for every one as their repre-
sentative." Abrams and either Pearlman or one other thereupon disclaimed
representation by Maurillo. Maurillo then named those for whom he did speak
as being himself, Rose Maurillo, Umbra, Pascale, and Liquori. Domash told
Maurillo that he wasn't interested in speaking to_him as a representative of any.
group . . . "but that he was interested in the comments of everybody."
Thereupon Maurillo made a statement as to his own grievances and various
of the others also voiced theirs. These gave rise to a general discussion appar-
ently centering on the subject of unionism and Respondent's experience with
unions and union adherence. That the discussion must have been quite compre-
hensive is evidenced by Domash's testimony that it lasted "several hours."
2 Those present in addition to the officials of Respondent already mentioned were Louis
Abrams, assistant manager of the store ; Stephen Maurillo ; James Umbra ; Tony Pascale ;
Pearlman and Mangin, shoe salesmen ; Rose Maurillo , assistant cashier and saleslady ;
Virginia Wiggins, cashier ; and Thomas Liquori , stock boy and porter.
3 All references to Maurillo will be to Stephen Maurillo unless otherwise indicated.
Involved in this proceeding are also Rose Maurillo, Stephen's wife, and John Maurillo,
Stephen 's brother and subregional director of the CIO in the Syracuse area.
A. S. BECK SHOE CORPORATION 1465
While Domash denied, asking at this meeting why the employees had not come
to management with their grievances rather than turning to the Union, he did
not deny as testified credibly in substance by Rose Maurillo and Umbra, that he
had asked them why they wanted a union ; why they were trying to organize
and start a union.
The meeting broke up with a comment to Domash from Maurillo to the effect
that ". . . despite everything you say, we are still going to use our prerogative.
We are going to make up our minds to do what we think is best for us." Domash
replied, "Fine, that is what you should do. It is up to you to decide what you
want to do. As far as I am concerned it makes no difference. I am here to
straighten up these few grievances."
On the morning of the dinner meeting, according to Maurillo's testimony, at
Scott's invitation the two had breakfast together. The invitation surprised
Maurillo since it was not Scott's usual practice to invite Maurillo to breakfast-
Scott informed Maurillo that he had heard that the employees were forming
a union and asked why it was being started and who was responsible for it_
He further asked if Abrams was causing any trouble adding "because if Mr_
Abrams is, we will take care of it." Scott went on to state that if Abrams was
responsible "he would get rid of Mr. Abrams, and that if everything went along
smooth" the job of assistant manager would be offered to Maurillo.4 Scott also
asked who was in the union-"Who had signed the union cards."
The following day Scott and Maurillo had a conversation. in the basement of
the store. Scott said "it is all up to you, Steve. The boys have waited for
you to say the word. If you get out, they will get out." Upon further exami-
nation on this subject Maurillo testified that Scott said "that James Umbra and
the boys were waiting for" Maurillo to give the word that they were all dropping
the Union.
Umbra testified that during the course of the dinner at the hotel he saw Scott
in the lobby near the cigarette machine. Scott called him over and after asking
if he would like a package of cirgarettes, he asked Umbra if he thought he was
doing the right thing and said that he could not see that Umbra "would be
gaining anything by going along with the boys." Scott told Umbra that "he
could see that [Umbra] could make more money without the union being in the
store." Then Scott asked Umbra to do him a favor-to get up when they went
back to the meeting and announce that he had dropped out of the Union. Umbra
refused. An excerpt from Umbra's testimony on the point follows :
Q. Who was that?
A. Mr. ScoTT. And I said to him, "Why ask me to do it?" He said; "I can't
ask Steve, he is too hot headed." He says, "Tony, he is in, cahoots with
Steve."` And I said, "Well, I can't. Don't pick on me. I am not going to
do it." So we left it at that. Steve came out in the hall and we started
to walk back to the parlor. We got to the door. and he grabbed me, "I am
going to ask you once more. If you don't get up and tell them, I will get
up and tell them you will."
Q. Who asked you that?
A. Mr. SCOTT. I says, "No, I won't. That is my final answer." I went
back to the parlor and left it at that.
^ Prior to McKee's managership of the Syracuse store Maurillo had been assistant
manager but had relinquished the position for straight selling because of differences
between him and the then manager.
929979-51-vol. 92-94
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Umbra further testified that a few days after the dinner Scott was in the store
and pursuant to his custom of helping out when the store was busy had made
a sale. He asked Umbra who he should give it to and Umbra suggested himself.
In refusing Scott replied, "I wouldn't give you anything."
Rose Maurillo testified credibly that on the day of the dinner when Scott asked
her to be there he said to her "you know why, you're no dummy."
Liquori testified that the day after the dinner Scott took him down to the
stockroom and told him "about unions and things like that." Right after this
discussion McKee took Liquori aside and asked him whether he would like to
go to Utica as a salesman saying that Scott had an opening there and was
offering him a job. Liquori, who was 17 years old at that time, said he would
have to discuss the matter with his parents. The following day he informed
McKee that he would have to decline the offer whereupon McKee called Scott
at the Statler hotel in Buffalo and informed him of Liquori's decision. Later
that same day McKee told Liquori that if he "played ball with the Company"
he would give him a job as a salesman in the Syracuse store. Liquori refused
saying that he was in .the union and "was going to stay with the fellows in the
union."
McKee in his testimony denied that he offered Liquori a job in Utica but ad-
mitted that after the dinner and prior to June 27, 1949, he did have a conversa-
tion with Liquori in which he asked Liquori if he was interested in a promotion
to a salesman's position in the Syracuse store. Liquori said that he was but
indicated that he would be going to school in the fall and that "it would be more
or less a temporary set-up." McKee further denied offering Liquori or anyone
else a promotion for resigning from the Union.
With the exception of having had breakfast with Maurillo the morning. of
the dinner, Scott at first denied the part attributed to him by the foregoing
testimony. With respect to the breakfast with Maurillo, Scott testified on direct
examination that he invited Maurillo to breakfast the morning of the dinner
meeting and asked Maurillo to tell him the nature of his grievances. Maurillo
stated that he had no grievances except one-a discrepancy in the commission
rate between the Washington, D. C., and the Syracuse store. Scott told Maurillo
that to his knowledge the rate was the same in both places. Maurillo "couldn't
understand it and wouldn't believe it."
Maurillo then told Scott that he had a brother who was subregional director
of the CIO in the Syracuse area and went on to say "Furthermore, Mr. Scott,
you are aware that I have had a lot of difficulty,•a lot of trouble with my leg
and with my nose in doing my work properly and I feel that I. would like
eventually to go in with my brother and assist him in his work as representative
of the CIO in the Syracuse area." Scott replied, "well, I. have no objection
to anything that you might want to do outside of the store, but, Steve, I do not
want you to discuss or talk-I don't want you to talk unionism in the store
during working hours, and that is something I will not stand."
The day after the dinner certain employees' privileges of long standing-
namely the practice of having coffee and donuts in the store just before 10 a. m.
when selling began, periodic breaks during the day to permit the salesmen to
leave the store for a cigarette (smoking was not permitted on the premises),
and the use of the telephone for personal calls, were ordered discontinued.
Domash's testimony was that immediately after the dinner he -had a conference
with Scott and McKee in his hotel room wherein McKee informed him of the
above practices describing them to Domash as having started on a reasonable
A. S. BECK SHOE CORPORATION 1467
enough basis but as having been pushed to such an abusive extent by the em-
ployees as to interfere with the proper operation of the store. On that basis
and for that reason, according to Doinash's testimony, he ordered the privileges
stopped. It was Domash's further testimony that these things were not per-
mitted in the other stores and that he instructed Scott to "check up on all the
rest of the stores to see there were no abusive practices in our store."
It was Maurillo's testimony that shortly after the dinner Scott and McKee
told him he was not to talk about the Union in the store but that no restriction
was placed on his talking about other things. Corroborating Maurillo's testi-
mony is the testimony of McKee that shortly after the dinner he told Maurillo,
"Steve, I don't want any talking of the Union in the store whatsoever." McKee
also commented to Pascale, "let's have no union discussion in the store." None
of the other employees were warned by Respondent against such conduct.
Respondent vigorously attacks the credibility of the General Counsel's witness
contending that none of the material testimony given by them is worthy of
credence while at the same time maintaining that its own witnesses were entirely
unimpeached. Thus, the testimony of'Stephen and Rose Maurillo as to their
estimate of Maurillo's absence during 1949 and Pascale's testimony regarding
his estimate of his absences during that year being considerably less than was
indicated by Respondent's records is pointed to as an indication of their un-
truthfulness. Likewise, Liquori's credibility is attacked because he testified
that he did not remember the circumstances under which he was asked to become
a union member and because his testimony was that he told McKee he refused
a job as salesman in Syracuse because of an "illegal condition" connected with
the offer when, the Respondent contends, his real reason was that he intended
to go to school which reason McKee testified was given him by Liquori at the
time. While admitting that he could have said many things to McKee at that
time, Liquori testified that he did not recall mentioning anything to McKee about
going to school. He further testified that it was not until about September 1
that his mind was definitely made up about going back to school.5
None of the above factors impressed me as being indicative of dishonest testi-
mony. With respect to Liquori, whose testimony appeared to me to be on the
whole candid, consistent, and sincerely given, the fact that he started in his
job with Respondent only a few months previous to McKee's offer, would tend
to make logical his testimony that he did not definitely make up his mind to
return to school until about September 1, unless it can be assumed that when he
took his job with Respondent in April he intended to go to school. If he had
such intention at that time it is apparent that he said nothing about it to Re-
spondent then. Having said nothing then I see no reason why he would have
said anything about it in June. In any event, whether he did or did not mention
returning to school in June is immaterial and does not support a conclusion that
Liquori testified falsely.
Had McKee's testimony impressed me as favorably for its frankness as
Liquori's; it would be difficult to resolve the conflict between the two. But it did
not so impress me. McKee's testimony was not candidly given. There was a
reluctant and hedging quality about it that detracts from its reliability in con-
trast to Liquori's. Thus, for example, with respect to the authority of the
assistant manager pertaining to refunds, McKee's testimony was as follows :
6 Liquori had graduated from high school and his returning to school pertained to a
post-graduate course.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Suppose you have, as I am.sure you do have complaints on merchandise
that they desire to exchange. Who, in the store is empowered to authorize
a refund?
A. Refunds can be authorized by the mangaer or the assistant. We don't
make a question of refunds. If a customer demands a refund they can
go to the desk and get a refund.
Q. I didn't understand to whom you referred by use of the word assistant.
You mean the sales people or the assistant manager?
A. The sales people. We have a policy in the trade, in many shoe busi-
nesses, a customer takes a pair of shoes, she wants a. refund, it doesn't
need an authorization because of the fact she takes those shoes on approval.
We make no issue of refunds. It is a general thing, they can get their
money just as easy..
Q. And so in your absence any sales employee can make a refund, go
over to the cashier and request a refund?
A. There is the girl behind the counter that handles the cash.'
Q. They go to the cashier and she helps the customer?
A. If a customer wants a refund, they are in good saleable condition,
and it will be granted.
Q. No further checking is.required of the assistant manager or manager?
A. Not necessarily. It has been done just as I have stated.
Q. What is the standard practice?
A. When I am in the store usually they come to me for an okay.
Q. When you are not in the store and the assistant manager is in the store?
A. They would at that time come in and in case of a C. U. customer,
that is, personal trade, they would-
By Mr. KENNEDY.
Q.. Let's take the other type of customer. The customer is not a C. U.
type, and that customer who is not a C. U. type desires a refund. What is
the authority, of the salesman to grant refunds in tat type of situation?
A. It would be the same. We don't have any definite, set rule that
guaranties that they have to go to the assistant or the manager. There
are times might both be busy, and the girls-we give them a certain amount
of authority I have a good girl down there who is cashier and there is a
certain amount of leeway let there. Ordinary they would come to the as-
sistant or the manager.
Q. That is standard practice, isn't it?
A. That is-standard. I don't live up to it a 100 percent but it's the general
idea.
Although McKee testified that "oft-times" the employees cleared with the assist-
ant manager as to their lunch period, such clearance.was required: of, the employees
and had been delegated to the assistant manager as his sole responsibility.
While McKee's testimony was that up to the time of the dinner, Domash had
not been in the Syracuse store "too often," the fact is that up to that time, he
had not been in the store at all during McKee's managership there.'
6 Domash testified that at the time of the dinner he had not been in the Syracuse store
since sometime when Maurillo was in the service. Maurillo ' s tenure with Respondent
in Syracuse dates from 1940 with a 2% years' absence in the service. At the time of
the hearing , McKee had been manager of the Syracuse store approximately 3 years.
A. S. BECK SHOE CORPORATION 1469
On cross-examination, McKee testified that he recalled that during January,
February, and part of March 1949, the employees, except for himself and Abrams,
worked 5 days a week instead of the customary 6 days. But his testimony was
that he did not recall that this arrangement arose as a result of his proposal
that Umbra be laid off at that time. Nor did his testimony indicate that the
arrangement arose as the result of any suggestion or initiative on the part of
management whatsoever. His explanation was "that the fellows would like to
take a day off each week due to the fact that business was a little slow," and.that
the reduced workweek was the result of the voluntary suggestion on the part
of the employees and in accordance with their wishes. Although January and
February are months in which, because of slack business, the employees' drawals
are normally guaranteed, in this instance their drawals were reduced proportion-
ately to their reduced workweek.' In spite of the fact that there is no contra-.
dictory testimony on this point, McKee's attempt to lend the impression that this
arrangement was gratuitously volunteered by the employees and that without
any word, demand, or suggestion by the Respondent they offered to accept a cut
in their wages, in the circumstances herein is so unlikely as to preclude its
credence.'. Being convinced that Liquori's testimony is more reliable than
McKee's, conflicts between the two are resolved against the latter.
Aside from Maurillo's testimony about his absences upon which I have already
commented, it was Maurillo's testimony that he did'not solicit anyone's union
membership in the store or give anyone a union card in the store. While he
admitted that on occasion the general subject of unionism was discussed in the
store, he denied that the charging union was discussed in the store. The testi-
mony of Liquori and Umbra squarely and credibly contradicts Maurillo's testi-
mony in this respect.
Since the testimony of Umbra and Liquori contradicts that of Maurillo as
indicated, Respondent contends that none of Maurillo's material testimony should
be believed. The same contention is raised with respect to Umbra whose general
credibility Respondent questions because of his obvious reluctance to reveal the
occasions and extent to which he discussed this proceeding with Board personnel
and the General Counsel. While I agree that in both instances referred to the
witnesses in question were less than truthful, before rejecting their entire testi-
mony for that reason, it will be necessary to analyze it carefully in the light of
all the factors herein and also to weigh the credibility of Respondent's witness
whose testimony conflicts with that of these two. That witness is Scott.
Scott was called as a witness by the General Counsel under Rule 43 (b) of
the Federal Rules of Civil Procedure. When asked if he had a discussion with
McKee about the Union the day previous to the dinner, Scott testified, "We had
no discussion about any union. There was nothing said about a union." After
further cross-examination about this matter, Scott admitted that in relating to
him the substance of his conversation with Mangin, McKee intimated that "in
a way" the subject of the Union had come up in the telephone conversation be-
tween McKee and Scott ; but then when it was again suggested to Scott specifically
that the subject of the Union had come up in this discussion, Scott hedged with
the statement "I believe no mention was made of any union." McKee's testimony
° Respondent's salesmen are not paid on a salary basis but receive 7 percent commission
on sales, with certain extras, against which they have specified weekly drawing accounts.
8 Significant to the conclusion is the fact that this occurred just a few months before
employees grievances gave rise to the organization of a union in the store.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on this point is in flat contradiction to Scott's. The record clearly establishes
that McKee's testimony in this respect was correct9'
Scott initially testified that it was Maurillo who brought up the subject of the
Union in their breakfast conversation but after being cross-examined in detail
about the matter, Scott finally admitted that the subject arose as a result of his
asking Maurillo if he had spoken to Mangin about the Union.
Scott further testified that he did not recall having commented to Rose Maurillo
on the occasion of his asking her to attend the dinner to the effect that "You
know what for. You're no dummy," classifying the remark as "ridiculous."
Asked by Respondent's counsel if he knew the meaning of the remark, Scott
testified "I certainly do not." That Scott, contrary to his direct testimony, did
attribute a meaning to the remark is apparent from his cross-examination on
the matter :
By Mr. KENNEDY.
Q. What is there about that statement that classifies it as ridiculous, Mr.
Scott? Why do you say it is ridiculous?
A. I have no authority. I don't talk to any employees regarding those
things.
Q. You talked to Mr. Steve Maurillo about it, didn't you?
A. On that particular occasion, yes, because there was a grievance in the
store. It is my duty as district supervisor to follow up on complaints of
that nature. That is my job.
None of the stores in Scott's territory are unionized. Scott repeatedly testified
that he had no authority concerning union matters. Thus, it is clear that by
the above reference to lack of authority, he not only attributed some meaning to
the remark, contrary to his testimony, but attributed some union significance to it.
It having been Scott's testimony that he told Maurillo he had no right to
discuss the Union in the store during working hours, when asked if he imposed
"any other limitation on what Maurillo could talk about other than union ac-
tivities" Scott's testimony was that he told Maurillo he "could talk about anything
as long as he didn't talk about union activities in this store. He could talk about
it outside the store." Then the following colloquy occurred :
Q. Talk about anything else on Company premises?
A. No, he could not, if that is what you mean. No, he could not. All
business in the store.
Q. Didn't you say a moment ago he could talk about anything other than
union activities?
A. I don't know what you're driving at.
In addition to the foregoing considerations affecting the question of Scott's
credibility, his testimony regarding the hiring of additional employees in the
stores under his supervision at about the time Levine and Winer were hired at
Syracuse is difficult to believe under the circumstances herein. Thus, after
testifying that it was his initial responsibility to pass upon store requests for
additional employees and that he had no authority to authorize the hiring of
additional people without the approval of Damash, whose final decisions were
relayed through Scott to the stores concerned, he testified that "I believe there
was additional employees employed at Niagara Falls store at that ,particular
9 That Scott, during his cross-examination when called as Respondent 's witness, admitted
that McKee mentioned the Union to him in connection with the information Mangin had
given McKee, serves only to accentuate doubt as to Scott's credibility.
A. S. BECK SHOE CORPORATION 1471
time. I am not sure though," adding, "this happened a year ago. It is hard
to tell whether we hired employees at that time. We are always hiring em-
ployees in our stores. I mean, it is difficult for me to name the exact specific
period during that time. We generally employ help." ' Yet, at another stage of
his examination, he testified that at about the time the additions of Winer and
Levine were being considered at Syracuse, he had requested authorization to
hire one additional salesman for each of the following stores: Niagara Falls,
Binghamton, Troy, Albany, and Rochester. It was his further testimony that
although he was granted permission to increase the staffs of these stores as re-
quested, because none were available no additional people were hired with the
exception of the Rochester store where one permanent employee was added.
While Respondent contended that "not a comma or a period" of Scott's testi-
mony was contradicted, it apparently was cognizant of some discrepancies
therein, which its counsel analyzed and attempted to explain on the basis that
"he was ill, and on cross examination, he testified to a couple of sentences one
way or the other. And then later, when he began to feel a little better and felt
the effect of the phenobarbitol pills and his face became less .pale, his story went
smoothly without the constant preoccupation of his own physical condition or
reaction to it." 10
Although Scott testified that he had taken "about 8" phenobarbitol tablets for
palpitating heart the last day he was on the witness stand, I do not view that
circumstance as a reason to excuse any damaging implications regarding his
credibility raised by the foregoing considerations. Scott, although not elderly,
was a man oflmatnre years. By virtue of his background as a salesman and his
attainment of the position of district manager, it is to be assumed that he would
have more than the average ability to express himself and withstand the emo-
tional strain of giving testimony if such testimony were freely and forthrightly
given.
Umbra, in contrast, was a very young appearing person whom I should judge
to be in his late teens or early twenties. In addition to his lack of maturity as
a factor in weighing Umbra's credibility, his admission on the stand of anti-
Semitic remarks to one of the Jewish employees and the vigorous and emotionally
charged cross-examination of him in respect thereto, are factors that normally
would provide a wedge to open and widen any faulty seams in dishonest testi-
mony. Yet, his direct testimony which was clearly and candidly stated and
embellished with plausible detail, was not shaken in the slightest by cross-
examination.
For the foregoing reasons and notwithstanding Umbra's attempt in his rebuttal
testimony to conceal his contacts with the General Counsel about this case, I
resolve the essential conflicts between his and Scott's testimony against Scott.
By the very nature of Scott's instructions from Domash to "investigate" the
situation at Syracuse and his reluctant admission that he questioned Maurillo
about the latter's union activities with respect to Mangin, the conclusion is.
compelling that his interrogation of Maurillo about his union activities was in
substance as testified by Maurillo. I so find. I also find as fact Scott's actions
toward Maurillo, as testified by the latter, to the extent that they are of a
pattern and consistent with Scott's action toward Umbra, as revealed by the
latter's credited testimony. Thus, I find that in the following respects Respond
10 That Respondent's concern over the testimony of Scott was not confined to testimony
elicited from him by opposing counsel is apparent from the criticism levelled at Scott on
-the record by Respondent's counsel in his direct examination of Scott.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed them in the Act :
(1) Scott's interrogation of Maurillo about his union activities and who had
signed union authorization cards."
(2) Scott's statement to Maurillo that if Abrams was "responsible" for the
Union "he would get rid of Mr. Abrams, and that if everything went along
smooth," Abrams' position would be offered to Maurillo. This statement, no
matter how it is interpreted, is violative of the Act. The allusion to Abrams'
responsibility for the Union can be interpreted in two ways-either that he was
the leader and instigator of the union movement or that his attitude toward
the employees gave rise to a concerted effort on their part to combat it. If in-
terpreted in the first manner it is obvious that for Respondent to "get rid of Mr.
Abrams" because of his being the leader of the Union would be patently illegal.
If the other interpretation is used, it is clearly an attempt to influence the
employees' action by means of a beneficial offer to them. Under the circum-
stances in which it was made, the implied promise of the assistant managership
to Maurillo I find also to have been. an. illegal promise of benefit tending to
coerce Maurillo in the exercise of rights guaranteed him in the Act. 12
(3) Scott's attempts to get Umbra to announce his resignation from the Union
and Scott's subsequent statement to Maurillo that "it is all up to you, Steve.
The boys have waited for you to say the word. If you get out, they will get out." 12
(4) Scott's question to Umbra the night of the dinner when in connection with
a discussion about the Union he asked Umbra if he thought the latter was doing
the right thing. Also Scott's statement to Umbra that Scott could see how
Umbra "could make more money without the Union being in the store."
(5) Scott's statement to Umbra a few days after the dinner in connection with
who should get credit for a sale Scott had made in which Scott said that he
would not give Umbra anything clearly implied Scott's displeasure with Umbra
for not acceding to his request to drop the Union and constitutes discrimination
and a direct threat of reprisal against Umbra calculated to coerce him in the
exercise of rights guaranteed him in the Act.
(6) McKee's offer to Liquori of a job as salesman in the Syracuse store if
he "played ball with the Company."
(7) The withdrawal on the day after the dinner of the customary privileges
referred to above. There is no doubt that an employer is entitled, in the absence
of a collective bargaining contract to the contrary, to make, enforce, and change
rules of conduct affecting the privileges of its employees during working hours
if such action is not motivated by antiunion considerations. However, once
such privileges have. been established by custom or otherwise, to discontinue
them primarily as a retaliatory measure because of the employees' union or
concerted activities, is illegal .14 For the following reasons I find such to have
been the case here: Although Domash's testimony was that the practice of having
donuts and coffee in the morning had gradually carried over beyond 10 a. in.
when the store was open to the public, that the "breaks" had grown from 3 to
11 An employer's interrogation of his employees' union membership and activities is
prohibited by the Act. H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 518-520; Standard-.
Coosa-Thatcher Company, 85 NLRB 1358.
12 "Interference is no less interference because it is accomplished through allurements
rather than coercion," N. L. R. B. v. Crown Can Company, 138 F. 2d 263, 267 (C. A. 8) ;
Mcdo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678.
12 Pure Oil Company, 90 NLRB 1661 ; Earl Seeerin, Inc., 90 NLRB 86; Chicopee Manu-
facturing Corporation o t Georgia, 85 NLRB 1439; National Biscuit Company, 83 NLRB 79.
14 Rome Products Company and Kenton Plastic Corporation, 77 NLRB 1217; E. A.
Laboratories, Inc., 80 NLRB 625; Cummer-Graham Company, 90 NLRB 722.
A. S. BECK SHOE CORPORATION 1473
4 minutes to as long as 20 minutes, there was no evidence to support the con-
clusionary testimony of Domash that these things did in fact interfere with the
efficient operation of the store. Moreover McKee's alleged statement to Domash
that the extent to which the privileges had grown interfered with the efficient
operation of the store impresses me as an implausible admission for a store
manager to make to his superior. Also significant to this conclusion Is the
timing of Respondent's action coming as it did 2 days after it learned about
the union activities of its employees and within a matter of hours after its
unsuccessful attempt to sway the employees from their convictions about the
Union at the dinner. Significant in this connection is Umbra's undenied credited
testimony that the day after the dinner McKee told him that the privileges were
"all stopped until this thing blew over." The apparent attempt to establish by
inference that the discontinuance of the privileges was to accord with established
rules and practice in Respondent's other stores is weakened by Domash's testi-
mony that he instructed Scott to "check up on all the rest of the stores to see
there were no abusive practices in our store."
(8) Also interfering with the rights of the employees herein were Respondent's
orders to Maii-rillo and Pascale not to discuss the Union'in -the store., It is clear .
that an employer, to prevent disruptions in its, business, may prohibit union
solicitation or discussion on the selling floor where the employees come in
contact with the public regardless of whether such activity is conducted on
the employee's own or free time." However, in exercising its prerogatives in
this respect, it is the employer's duty to guard against invoking a rule so
broad in scope as to prevent union discussions during nonworking hours away
from the selling floors in the store. By prohibiting "any union discussion in
the store whatever" the apparent effect of which was to prohibit. such discussion
"off the selling floors outside of working time, such as before and after work
and. during lunch and rest periods, does not bear a reasonable relationship
to efficient operation of Respondent's business" and, therefore, to that extent
constitutes unwarranted interference with the employees' rights under the Act 36
(9) Also violative of the Act was Domash's query to the employees as to why
they wanted a union ; why they started a union.17
C. The hiring of Winer and Levine
On or about June, 27, 1948-,less-than 2 weeks'after learning of the-union activity,,.
of its employees , Respondent hired Harold Winer and Herman Levine as full-
time shoe salesmen in its Syracuse store. The General Counsel contends that
the hiring of these two was motivated by antiunion considerations and not,
as Respondent contends , by legitimate business reasons.
The substance of Respondent 's defense to this charge was that by . reason of
changing buying habits and increased business in 1949, excessive absenteeism
in the store during that year, and the increased vacation leave anticipated for
1949, additional permanent personnel was required.
Respondent adduced evidence showing that for the months of April and May
1948, Respondent's Syracuse store sold 4,337 casual shoe units and 7,874 styles
and welts shoe units , making a total of 12,211 units sold during that period. For
16 Goldblatt Bros. Inc., 77 NLRB 1262; The May Department Stores Company, 59
NLRB 976; The J. L. Hudson Company, 67 NLRB 1403 ; Marshall Field & Company,
34 NLRB 1.
16 Meier & Frank Company, Inc., 89 NLRB 1016.
17 Houston and North,:TexasiMotor:!Freight;*88 NLRB°1462..
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same period of time in 1949, the store sold 6,600 casual shoe units and 8,327
styles and welts shoe units, for a total of 14.927 units-an increase of 2,716
units over 1948. -
Respondent further established that during 1949, exclusive of vacations,
Maurillo was absent 32 days, Pascale 36, Umbra 19, Mangin 58Y2, Pearlman 9,
and Abrams 41/.. In addition to the above absences it appears that 17 weeks
of vacation leave were anticipated for 1949 as against 13 weeks taken in 1948.
The years from 1946 brought a large increase in the sale of casual or play
shoes throughout the country. The acceptance of this type of shoe by the
public resulted from a combination of factors including the fact that it was
less expensive than "the street footwear 18 or shoes made of a more sturdy cast."
During this period the size range of casuals increased from a range of 51/2 to 5
to a range of 31/2 to 10 including a range of 2 or 3 widths instead of a previous
single width. At the same time a greater variety of styles, patterns, and colors
was developing in casuals. Whether these.changes gave rise to the increased
demand for casuals or whether the increased demand gave rise to the changes
is not clear; however, it is clear that the demand for this type of footwear
increased and that an important factor in this increased demand was the
decreased buying power of the. public.
Domash testified that from 1945 through 1947, the public "went on a buying
spree and bought anything. any retailers had to offer," that Respondent "couldn't
make shoes fast enough to satisfy the demand." But in 1948 "competition was
beginning to catch up." Sales resistance, not. confined to the Syracuse store,
developed. People began to demand better service. Respondent "began to
reduce prices somewhere in 1948 to meet competition, to awaken buying on
the part of the public," and continued to reduce prices in 1949.
As for the sale of casuals, the public demanded "the same fitting attention and
same style attention as they got from styles and welts shoes," thus "making it
increasingly difficult in time consumed by salesmen in handling that type of
customer."
According to Domash, it was in April that Scott first requested additional
help in the Syracuse store. By the end of May, in view of the foregoing factors,
Domash "was fairly well satisfied that the store needed more personnel" and,
buttressed by the information that Monday nights and Saturdays "throughout
the country were not as heavy" as they had been, he came to the conclusion that
"a conversion of some of the extra help used on those days could easily be
accomplished" thus giving better service to the customer during the week. Ac-
cordingly "about the first week in June" he authorized the hiring of two additional
:salesmen in the Syracuse store.
If I were to accept the foregoing at face value it would appear that Respondent
had established an adequate explanation for, the hiring of ,Winer and Levine.
Unfortunately for Respondent, however, an analysis of the record does not
bear out its contention.
While the total of so-called absenteeism in the Syracuse store for 1949 is
impressively large, I am convinced that it played little or no part in the hiring
of Winer and Levine. Of this total, approximately 60 percent accrued after
Dom:lsh authorized the hiring of additional employees in June. Of the 40 per-
cent that accrued prior to that time, it appears that the major portion of it
occurred during those months when business was so poor a reduced workweek
was inaugurated. There is no evidence that the employees absented themselves
18 Respondent 's casuals range in price from $1.99 up.
A. S. BECK SHOE CORPORATION 1475
without permission or that they were criticized or warned about excessive ab-
senteeism. Moreover, it appears that Respondent in computing the total so-called
absenteeism has included in its computations a large number if not all of the
days taken off .by.the employees as required by the reduced workweek.'9
It would seem that if Respondent was really concerned about absenteeism
in the store it would have discussed the matter with the employees and if neces-
sary taken some disciplinary action against the guilty ones so as to eliminate
the problem instead of allowing its continued growth .20
From the foregoing , I conclude that the so -called absenteeism was not a reason
for the hiring of Winer and Levine but that it was raised by Respondent as a
defense in retrospective justification thereof. Significant to this conclusion is
the fact that neither McKee nor Scott in their testimony under Rule 43 (b)
of the Rules of Civil Procedure assigned absenteeism as a reason for the hiring
of Winer and Levine but only mentioned increased vacation schedules and
increasing business in that respect.
Equally untenable is Respondent's contention that the increased vacation
schedule made necessary the employment of additional permanent salesmen.
The proposition that permanent employees are hired to fill the gaps left during
summer vacations is suspect on its face . In this case it appears that Respondent
had six salesmen in 1949 as against five in 1948. While this added to the
vacation load in 1949, it also added to the number of salesmen available among
whom the work would be divided during such absences.
In view of McKee's testimony that the busiest selling hours began at noon
and that at the time Winer and Levine were hired, two extras were available
for afternoons and evenings, Domash's reasoning that the customers could be
better served during the week by the conversion of extras to full time is not
convincing. In this, connection it is interesting to note that Domash did not
testify that such conversion was necessary, but that it could be "accomplished."
It is clear from Domash's testimony that the selling of all shoes became more
difficult when the "buying spree" that occurred after the war ended. I also
accept his conciusionary testimony that the selling of a $1.99 casual involves
the same selling techniques as are involved in the sale of a $6 .99 dress shoe.
However, his testimony that the same amount of sales resistance is present
in either transaction , is not only credibly contradicted by Umbra's testimony
but in essence is nullified by Domash himself when he testified that in 1948
and 1949 Respondent reduced its prices "to awaken buying on the part of the
public." This admission clearly supports the fundamental proposition, if any
is needed, that there is a correlation between lower shoe prices and decreased
sales resistance . Accordingly, I am not convinced that sale of any given number
'9 These figures are based on exhibits summarizing the absences of the employees on a
weekly basis for the entire year 1949 . Since these figures were described as all absences
excluding vacations , I assume that the single day d.bsences shown for any one employee
in any one week . during the time the reduced workweek was in effect represents the day
that that employee was officially off duty. The same exhibit shows that all salesmen's
vacations were taken after July 1 that year.
. 20 It appears that Mangin was responsible for approximately 31 percent of the total
absences incurred by the shoe selling personnel for the entire year . Of this percentage
50 percent was incurred . after Scott had requested authority to hire additional help.
Mangin was described as a heavy drinker who nevertheless was a good salesman with a
large personal following known in the trade as CU customers . He had been with
Respondent 20 years : and, his substantial absences over a long period were obviously
condoned by Respondent and allowed for in meeting its personnel requirements prior
to the time Winer and Levine were hired.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of casual shoe units consumed as much time as the sale of a like number of
styles and welts shoe units, other factors being equal.
Assuming arguendo, however, that all shoe units required the same amount
of selling time, the preponderance of the evidence shows that the increase
in Respondent's business during the months of 'April and May 1949 over the
corresponding period for 1948 did. not warrant. the hiring of two additional
salesmen.
As indicated, during April and May 1948, a total of 12,211 shoe units was sold
in the Syracuse store. The evidence shows that during that period 5 full-
time salesmen including the assistant manager were employed. In April and
May 1949, a total of 14,927 shoe units were sold. During that period, however,
there were 6 full-time salesmen employed including the assistant manager.
Thus it appears that the average number of units sold for each regular salesman
employed during this period in 1948 was approximately 2,440, while the average
number of units sold for each regular salesman employed in the comparable
period in 1949 was approximately 2,480. On the basis of this computation, it
would appear that Respondent's permanent staff was adequate in June 1949 and
thatethe increase.in business was substantially correlated with the larger staff of
full-time salesmen employed at that time .n
Viewed in another light it appears that the increase in Respondent's business
for the months of April and May 1949 over the comparable period for 1948 com-
puted in number of units sold, was approximately 211/2 percent while the in-
crease in the permanent staff over 1948 was exactly 20 percent. Moreover,
there was an increase of 60 percent -in the number of extras utilized by Re-
spondent during the same period in 1949. These figures would hardly warrant
an increase in the full -time staff of 331/3 percent.
While I am willing to concede that computations of this kind may not account
for potential variable factors and while the component- parts of Respondent's
defense, considered as a whole, might conceivably have been sufficient to justify
the hiring of one additional full-time salesman, I am convinced that they did
not justify-the hiring of two-particularly when business was about to enter its
midsummer decline, when there, were two extras available for the very period
Respondent contended that it could better serve its customers by utilizing reg-
ular employees, and when Respondent at about that time had authorized the
hiring of notmo.re,than one additional employee for..any of io-other-stores-in the
Mohawk Valley area in spite of the fact that the Syracuse-store-mas -considered
to be one of Respondent's smaller units in that area.
These facts, when viewed in the light of Respondent's attempts to coerce its
employees and interfere with them in the exercise of rights guaranteed them in
the Act, compel the conclusion that whatever legitimate business rationalization
Respondent had for hiring Winer and Levine, the real motivation'was to defeat
the union organization of its employees 22
21 Although for the comparable periods in question the evidence shows earnings by
five extra employees in 1948 and by eight extra employees in 1949, there was no showing
what proportion of the sales was attributable to them. In any event , the above correla-
tion is not changed or affected by the extras.
22 Another significant factor bearing on this facet of the case is Domash's testimony
that at some unspecified time Levine was told he could transfer "anywhere he wanted,
if he wanted to get out of the area" and that in January 1950, he went to see Domash
and a transfer was arranged to Florida . An offer to transfer a newly hired salesman
to any place of his choosing seems unusual on its face. The fact that Levine went to
New York to discuss the- -matter, -with a ,iop--official .::of--Respppdmpt seems-even. more
unusual.
A. S. BECK SHOE CORPORATION - 1477
The question thus presented is: In what manner did Respondent intend that
the addition of these two employees would accomplish its purpose? The General
Counsel alleges three-by interfering with the right of the employees in violation
of Section 8 (a) (1) of the Act ; by reducing the commissions of the employees,
thus discouraging membership in the Union in violation of Section 8 (a) (3) of
the Act; and diluting the majority adherent to the Union in violation of Section
8 (a) (5) of the Act.
With respect to the alleged violation of Section 8 (a) (3) of the Act, I am
of the opinion that the record does not sustain the General Counsel's contention.
While it appears that the earnings of the regular salesmen for the months of
July, August, and September (the 3 months following the hiring of Winer and
Levine.) were somewhatlieiow their earnings for the months of May and June
(the 2 months prior-1o the hiring of Winer and Levine), it must be remembered
that July marked the beginning of the midsummer decline in business 23 Also
it appears that most, if not all, of the regular salesmen took their vacations dur-
ing July and August which may have accounted for some of the declines in
amounts earned after Winer -and Levine were hired. Another factor that may
have tended to decrease their earnings was that exclusive of vacations, consider-
able time was taken off by several of the salesmen during this period."
It also appears that the earnings of the salesmen in the spring and summer
months of 1949 were somewhat less than for the comparable period in 1948. A
comparison of the number of units sold during the months of April, May, June,
July, August, and September 1949 with the number sold during the corresponding
period in 1948 shows an increase over 1948 of approximately 19 percent. During
the same period,, however, the increase in dollar volume of business, over 1948
was less than 2, percent. When it is considered that the increase in the full-
time staff of salesmen over 194S was 20 percent, it is apparent that the average
earnings would normally be less in 1949.
These facts, of course, do not eliminate the possibility that the commissions
earned by Winer and Levine diminished and were intended to diminish the poten-
tial earnings of the other salesmen. However, since there is no evidence to
show to what extent, if any, the use of extras was curtailed after Winer and
Levine were hired, it is also possible that their earnings merely corresponded to
the amounts that, would have been normally earned by extras and thus in no
way affected the commissions of the other full-time salesmen.
It would seem that if Respondent's motive was to discriminate against its
employees the results of such purpose would be more apparent. Moreover, I
believe it is significant that to have intended such a result Respondent would
have had to adversely affect employees who had demonstrated to Respondent
their lack of sympathy with the union cause. While such discriminatory action
is not unprecedented in the history of the Act, I do not believe that such was the
case here. Accordingly, I am convinced that Respondent's motive in hiring Winer
and Levine while, basically antiunion was not grounded in a discriminatory
intent.
On the other hand, the evidence all points to Respondent's purpose to dis-
sipate its employees' majority adherence to the Union. The Union, as will
appear below, had a majority of one in an appropriate unit at the time Winer
23 The earnings for the comparable periods in 1948 show a similar decline after July 1.
24 For example , Respondent ' s summary of the year's absences shows 15 man-days lost
during the week ending July 30, of which an unspecified amount was taken by Pascale
as sick leave , while the week before 13 days were lost including an unspecified amount
of sick leave by Umbra.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Levine were hired. Respondent's attempts to eliminate that one, or more,
by illegal persuasion and coercive means having failed, the next method of attack
was to hire a sufficient number of new employees for the purpose of creating
a minority in the union ranks. I find this to have been Respondent's inotivation
in the hiring of Winer and Lavine.ZS' While it is obvious that such action
violates Respondent's obligation not to interfere' with its employees in the
exercise of rights guaranteed them in the Act, and while its conduct goes to the
very essence o ' Respondent's obligation to bargain with the duly designated
representative cf its employees and is indicative of Respondent's purpose not to,
so bargain, I am of the opinion that the hiring of these two constituted only
a violation of Section 8 (a) (1) of the Act and not; independently, a violation
of Section 8 (a) (5). I so find.
In reaching this conclusion I rely on the inferences compelled by the pre-
ponderance of the evidence considering the record as a whole. Respondent
apparently contends that such inferences are not permitted by the Act and.
that the concept of administrative expertise, long recognized as one of touch-
stones in the development of Administrative Law, was rejected in the 1947
amendment of the Act. It is clear that the Board and the courts do not agree
with Respondent's interpretation " As pointed out by the Court of Appeals for
the Fourth Circuit in the Greensboro case cited in the above footnote:
It must be remembered, in this connection, that the question involved is
a pure question of fact; that, in passing upon it, the Board may give con-
sideration to circumstantial evidence as well as to that which. is direct;
that direct evidence of a purpose to violate the statute is rarely obtainable..
There is one remaining aspect of this phase of the case that requires comment..
There was evidence of anti-Semitic remarks directed by some of the union
adherents to the Jewish employees in the store. The only contention raised
by Respondent in this connection was that because of that fact the employees
were entitled to a Board-conducted election of their bargaining representative.
Since there was no connection shown between the anti-Semitism and the union
activities of the employees, it is clear that Respondent's contention is without
merit.
D. The refusal to bargain
1. The appropriate unit and the majority
The complaint as amended alleges that all employees of the Respondent em-
ployed in the Syracuse, New York, store, exclusive of part-time and temporary
employees, supervisors, guards, and professional employees as defined in the
Act constitute a unit appropriate for the purposes of collective bargaining
within the meaning of section 9 (b) of the Act. Respondent denies that the
above is an appropriate unit and contends that the unit should encompass all
its store in the Mohawk Valley area 27
zc In my consideration of the evidence I do not rely on the statement attributed to
Scott in John Maurillo 's testimony that he would "do everything in [his] power to break
the union."
26 Gould & Preisner ( Denver Building and Construction Trades Council , et al.), 82
NLRB 1195 ; Universal Camera Corporation , 79 NLRB 379; Victor Mfg . & Gasket Co. V.
N. L. R. B., 174 F . 2d 867 (C. A. 7) ; N. L. R. B. v. Greensboro Coca Cola Bottling..Co.,
180 F . 2d 840 (C. A. 4) ; N. L. R. B. v. Dixie Shirt Co., 176 ,F. 2d 969 (C. A. 4).
27 As part of its chain , Respondent operates stores in Niagara Falls , Buffalo , Jamestown,
Binghamton , Rochester , Syracuse , Utica, Schenectady , Troy and Albany, all in. the State
of New York , which it designates as the Mohawk Valley area. Domash testified there
A. S. BECK SHOE CORPORATION 1479
a. The area-wide contention
Aside from the fact that the 11 stores in the Mohawk Valley are under the
supervision of 1 district manager and that the employees are all compensated
on the same commission percentage against drawing accounts, there is little
in the record to support Respondent's claim to an area-wide unit. Domash
testified without contradiction that merchandising methods, operating condi-
tions, advertising methods, style demand, and type of customers are similar
"in most instances" in the 11 stores. Store hours, he admitted, were governed
by local custom.
As a result of the above similarities there is a "close interchange between
stores of missing styles and sizes" which for the most part are moved directly
by.the district manager in his own ear. A copy of a weekly merchandise report
is sent by each store to the district manager, the original being transmitted
to the New York office.
While it is clear that all personnel policy is established in the New York
offi2e and that there is no authority in the store managers to make additions
to the full-time personnel without the prior approval of their superiors, there
is no evidence as to what the situation is as regards the hiring of replacements
or the firing of employees. Likewise there is no showing other than the above
as to what limitations there are on the exercise of discretion by the store
manager in carrying out his duties. Domash, in describing these duties, tes-
tified that the store manager is responsible for all stock, cash, window displays,
administration of the selling force, adjustments, complaints, handling of cus-
tomers, and the cleanliness of the store. There is no doubt that the deter-
mination of need for, hiring of, and the laying off, of extra help comes within
the scope of the store manager's authority and discretion.
On these facts the record fails to show, such a lack of autonomy at the store
level as .to satisfy one of the requirements necessary to establish the appropriate-
ness of an area-wide bargaining unit28 Nor does the evidence establish any
other pertinent fact in support of this contention. The record shows that there
is no interchange of employees between stores. Respondent's attempt to estab-
lish that there is social contact among the employees of the various stores
through picnics and outings is so contradictory that it is not worthy of credence.
The same is true of Domash's testimony that there is integration of store opera-
tions by periodic meetings of the store managers in the Mohawk Valley.28
The fact that Respondent has collective bargaining agreements with both the
charging union and other unions involving other area-wide units does not sup-
port Respondent's contention herein. There is no showing that the areas in,
volved constitute a single administrative area as contended for herein, nor that
any of the areas in question are as large as the Mohawk Valley area. Here we
have an area of some 300 miles between its farthest points with the nearest store
were 11 stores in this area while Scott testified there were 13. This discrepancy may
have resulted from the fact that Scott, in addition to the above stores, also has Erie,
Pennsylvania, under his supervision. Domash testified that Erie is not considered to be
in the Mohawk Valley and that Scott's supervision of that point was a temporary
arrangement.
28 Cf. The Kroger Company, 85 NLRB 6; The Great Atlantic & Pacific Tea Company,
85 NLRB 680.
29 The testimony of both Scott and McKee shows that if there are such meetings they
are so infrequent that they could hardly be called periodic and could play little part in
the integration of operations.
4
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Syracuse in the area being Utica , 53 milesaway . 30 Moreover , it appears that
on one occasion the Board has found a single-store unit appropriate in one of
Respondent 's own stores.'
For the foregoing reasons and particularly in view of the geographic distances
existing between the stores in the Mohawk Valley area and the lack of inter-
change or integration of the employees therein, I find that there is no community
of interest among the employees of the Respondent ' s Mohawk Valley stores and
that a bargaining unit comprised of the employees in that area would be inap-
propriate within the meaning of Section 9 ( b) of the Act . Also pertinent to this
conclusion , but not controlling , is the fact that there is no history of collective
bargaining in the area to justify Respondent ' s contention . Section 9 (c) (5)
of the Act provides that "In determining whether the unit is appropriate for
the purposes specified in subsection ( b) the extent to which the employees - ha ve
organized shall not be controlling ." The Board has interpreted this section of
the Act as not precluding it from considering the extent of employee organization
as one of the factors in determining the appropriateness of a bargaining unit.33
b. The General Counsel's contention
During the entire month of June 1949, exclusive of the manager , the assistant
manager, and extras, there were five salesmen ,. a sales cashier , one saleslady,
and one employee performing the duties of stockboy and porter , all carried on
Respondent ' s payrolls as full -time employees.
Other than for its contention as to the area that the unit should encompass.
Respondent made no contention regarding the composition of the unit alleged
in the complaint except for the assistant manager whom the Respondent con-
tends is not a supervisor within the meaning of the Act and should be included
in the unit.
With respect to the assistant manager, the evidence shows that the major
portion of his time is devoted to selling ; that he receives the same selling com-
mission as the other salesmen against a drawing account ; that in addition he
receives $12.50 a week flat salary to compensate for extra duties and time off the
selling floor ; 83 that unlike the other salesmen , he receives a yearly bonus of
30 Rand McNally Word Atlas 1947 shows the railroad distance between Albany and
Buffalo at 299 miles . Niagara Falls is somewhat further from Albany but no mileage is
shown . The distance from Syracuse to Utica is shown as 53 miles , to Albany 148, to
Rochester 80, and to Buffalo 149. It is apparent that none of the remaining stores,
namely, Jamestown , Binghamton , Troy, or Niagara Falls is as near to Syracuse as
Utica and that 53 miles is the shortest distance between any two stores with the possible
exception . of the distance between Buffalo and Niagara Falls.
31 A. S . Beck Shoe Corporation , 43 NLRB 214 , involved a single-store unit In Wash-
ington , D. C. The multiple store units referred to by Respondent include : ( 1) All of New
York City ; ( 2) Westchester County , New York ; ( 3) five or six stores in Chicago , includ-
ing one outside the city : (4) the stores of Stamford , New Haven , Bridgeport , and Water-
bury in Connecticut ; ( 5) three stores in Washington , D. C., and six stores located at
Baltimore , Maryland . While it is clear that the separate areas in question are under
the supervision of single district managers, there is no showing that they were the only
stores under the supervision of such managers. Where administrative lines have been
disregarded in the establishment of bargaining units for other stores and where, as here,
a single -store unit has been found appropriate in one of Respondent 's other stores, there
is no compelling reason why an administrative area should now be recognized or required
as the appropriate scope of the unit. Cf. American Stores Company, 82 NLRB 882, and
TheWroger and The Great Atlantic and Paci fte Tea Company cases , supra.
3? lWaldensian Hosiery Mills , Inc., 83 NLRB 742.
33 While the evidence shows that Abrams has , in the absence of a porter, performed
the porter 's functions, it is clear that the porter work is part of the stockman's duties
when one is employed.
A. S. BECK SHOE CORPORATION 1481
one-half of 1 percent of sales over the store's sales quota and that he shares re-
sponsibility with the manager for inventory shortages'" It also appears that he,
along with the manager, has the sole authority to approve adjustments and re-
funds ; that it is his responsibility to administer the lunch hour schedule when
conditions require ; that he alternates with the manager in opening the store in
the morning , and that his name and phone number, along with McKee's and
Scott's, is posted on the store entrance for emergency purposes. He also takes
over the duties of the manager in the latter's absence from the store which nor-
mally consists of lunch hours and 2 or 3 weeks of annual vacation.
It is clear that when the manager is present, the assistant manager has no
authority to hire or fire, nor has he any other appreciable authority at such
times unless specifically delegated by the manager.
A great deal of conflicting testimony was adduced as to the scope of the
assistant manager's authority and duties during the absence of the manager.
I find it unnecessary to resolve these conflicts because I am convinced on the
basis of previous Board decisions (one involving one of Respondent' s stores) 35
and the record herein, that assuming the assistant manager to be clothed with
the same authority as the manager in the latter's absence, the remainder of his
duties are primarily those of a salesman and what over-all indicia of supervisory
capacity he may have are so inconsequential in scope that it cannot be said
he is a supervisor within the meaning of the Act. I shall, therefore, contrary
to the General Counsel's contention, include him in the bargaining unit.
Since there is no objection to the inclusion of the cashier and saleslady, I
shall, in accordance with Board precedents,36 include them in the unit. Also,
in view of -the stipulation of the parties that extra or part-time employees be
excluded, I .shall exclude them 34
Accordingly, I find that all employees of the Respondent employed in its
Syracuse, New York, store, exclusive of part-time and temporary employees,
supervisors,3S guards, and professional employees as defined in the Act con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
c. The majority
During the month of June 1.949, when the Union requested recognition by
the Respondent as the bargaining agent of its employees, as is more fully set
forth below, there were nine employees in the above unit. Of these, five had
signed cards authorizing the Union to act as their bargaining representative.
Thus, I find that at the time the Union made its request for bargaining recogni-
tion it represented a majority of Respondent's employees in an appropriate
unit and was the duly authorized bargaining agent of those employees.
34 The bonus was described as a means of compensating the manager and the assistant
manager for losses that might incur as a result of their liability for inventory shortages.
It would appear that the bonus of the assistant manager does not involve a substantial
amount in view of Abrams' testimony that in 1949 he received a bonus of $25.
31A. S. Beck Shoe Corporation, 57 NLRB 335; Florsheim Retail Boot Shop, 80 NLRB
1312.
36 Denver Dry Goods Company, 74 NLRB 1167; Phelps Dodge Mercantile Company,
78 NLRB 179; Providence Public Market Company, 79 NLRB 1482. See also Florsheim
Retail Boot Shop and A. S. Beck Shoe Corporation, supra.
37 Tanner-Brice Company, 82 NLRB 477.
33 I find the store manager to be a supervisor within the meaning of the Act.
929979-51-vol. 92-95
1482 DECISIONS .,OF NATIONAL LABOR RELATIONS BOARD
d. The, request. for recognition and its refusal
By registered letters dated June 19, 1949, to McKee and to the New York office
of the Respondent, the Union informed Respondent that it represented a ma-
jority of Respondent's employees in its Syracuse store and requested bargaining
recognition. The post office return receipts show that McKee's letter was received
on June 17, and that the letter to the New York office was received on June 18.
On June 17, 1949, John Maurillo, the union representative, called at the
Syracuse store and had a conference with Scott and McKee pertaining to
recognition of the Union as bargaining agent of Respondent's employees in the
Syracuse store. The end result of this conference was that Maurillo's doubts
as to the authority of McKee and Scott to act for the Respondent were con-
firmed and Maurillo was informed that it would be necessary for the Union to
deal with Domash. Thereupon Maurillo made several unsuccessful attempts to
reach Domash by telephone that day and the next, finally leaving word with
the operator to have Donnish call him.
The Union's letters were never answered, Maurillo's telephone calls were
never returned, nor was any communication ever made by Respondent to the
Union relative to the Union's requests.
Whether Maurillo's letter to McKee and his conference with McKee and
Scott the following day constituted a valid demand for recognition in view of
his admission that he had doubt as to their authority to speak for Respondent,
I deem unnecessary to decide-since it is clear that the letter to the New York
office did constitute a notice of majority representation and a demand for bar-
gaining recognition.
On these facts, and notwithstanding the fact that the Union had filed a
petition on or about June 18 with the New York State Labor Board for certifica-
tion, which was dismissed June 30, and the fact that the Union filed a petition
for certification with the Board on June 30, which was withdrawn without
prejudice on August 3, it is clear that Respondent refused to recognize or bargain
with the Union. The question is, was Respondent legally justified in so doing.
I find that it was not.39
It is well established that an employer who has a good faith doubt that the
majority of his employees in an appropriate unit have designated a union as their
bargaining agent 'inay have the question of majority resolved by a Board-con-
ducted election. However, such doubt must be bona fide and not raised merely
as a device with which to gain time to undermine the union's majority or as an
excuse to avoid its responsibility under the Act to bargain."
On the basis of Scott's interrogation of Maurillo as to who had signed union
cards and the designation by Maurillo at the dinner meeting of the employees
for whom he spoke, it is clear that Respondent was well aware of the majority
representation of its employees by the Union in its Syracuse store when the
request for bargaining was made. The question thus narrows down to the good
faith of Respondent's unit contention.
The preponderance of the evidence compels the conclusion that Respondent's
position was not taken in good faith. The sudden convergence on the store
89 It is clear that the pendency of a representation petition by its employees does not
relieve an employer from the duty of bargaining. The Red Rock Company, 84 NLRB 521 ;
D. H. Holmes Company, Ltd., 81 NLRB 753; Allen Morrison Sign Company, •79 NLRB 903.
Nor does the filing of a complaint have that effect. Kelco Corporation, 79 NLRB 759 ;
Mason & Hughes, Inc., 86 NLRB 848; J. H. Rutter-Rex Manufacturing Company, Inc.,
86 NLRB 470.
40 Artcraft Hosiery Company, 78 NLRB 333; Jasper National Mattress Compan+" 89
NLRB 75.
A. S. BECK SHOE CORPORATION 1483
of top officials as soon as the Union made its appearance, the illegal interroga-
tion of one of the union leaders, the attempts to instigate a movement among
the employees to repudiate the Union, the attempt to eliminate the Union's
majority by the offer of promotion to one of its members, the hiring of two
needless employees for antiunion reasons, the ignoring of the Union's request for
bargaining recognition, and the failure to offer the Union any reason or explana-
tion for its position, and the fact that a single store unit has been previously
found by the Board to be appropriate in one of Respondent's other stores 41 all
point to Respondent's lack of good faith in its contention and to a determination
on the part of Respondent to defeat its employees in their efforts to adopt a
concerted approach in their relationship with Respondent and to be represented
by the Union. Domash's remark to Maurillo that he was not interested in speak-
ing to Maurillo "as a representative of any group" was indeed prophetic and is
indicative of Respondent's basic purpose of not recognizing the Union.
Accordingly, I find that Respondent's refusal to recognize the Union was not
based upon a sincere conviction that the single store unit was inappropriate,
but rather was motivated by Respondent's desire and purpose of avoiding its
legal responsibilities to its employees. Thus I find that at all times herein from
June 18, 1950, Respondent refused to bargain with the duly designated repre-
sentative of its employees in violation of Section 8 (a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR. PRACTICES UPON COMMERCE
The activities of the Respondent as, set forth in Section III, above, occurring
in connection with the operations of 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.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices, the undersigned will recommend that the Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It having been found that Respondent has engaged in certain acts of inter-
ference, restraint, and coercion it will be recommended that the Respondent
cease therefrom.
In addition, having found that Respondent has refused to bargain collectively
with the Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the undersigned will recommend that Respondent, on request,
bargain collectively with the Union.
By conduct found to constitute interference, restraint, and coercion and by
its studied refusal to bargain with the majority representative of its employees,
Respondent has demonstrated a determination not to accord to employees rights
which the Act was designed to protect. It is reasonably to be assumed that
further unfair labor practices of the same or different character may be ex-
pected to occur unless Respondent is ordered to refrain from in any manner
transgressing employees' statutory rights. I will recommend, therefore, that
Respondent be ordered to cease and desist from interfering with, restraining,
or coercing its employees in any manner, in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to join or assist the
11 A. S. Beck Shoe Corporation, 43 NLRB 214.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
Union , to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities, as
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. United Retail , Wholesale & Department Store Employees Union of America,
CIO, is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. All employees of the Respondent employed in its Syracuse , New York, store,
exclusive of part-time and temporary employees , supervisors , guards, and pro-
fessional employees as defined in the Act constitute and at all times material
herein have constituted a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act.
3. United Retail, Wholesale & Department Store Employees Union of America,
CIO, was on July 18, 1949, and at all times thereafter has been the exclusive
representative of all Respondent 's employees in the above appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 ( a) of the
Act.
4. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By refusing to bargain collectively with United Retail , Wholesale & De-
partment Store Employees Union of America , CIO, Respondent has engaged and
is engaging in unfair labor practices within the meaning or Section 8 (a)
(5) of the Act.
The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and ( 7) of the Act.
7. Respondent has not violated Section 8 ( a) (3) of the Act.
[Recommended Order omitted from publication in this volume.]