Atlantic Thrift Center

National Labor Relations Board - Board Decisions

Nov 15, 1965

155 N.L.R.B. 853 (N.L.R.B. 1965)

ATLANTIC THRIFT CENTER 853
CONCLUSIONS OF LAW
1. Consolidated Gas and Service Co. is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has not committed unfair labor practices as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint herein be dismissed.
Atlantic Mills Servicing Corp . of Wisconsin d/b/a Atlantic Thrift
Center and Retail Store Employees Union , Local 400, affiliated
with Retail Clerks International Association , AFL-CIO
Amalgamated Clothing Workers of America , AFL-CIO and
Retail Store Employees Union , Local 400, affiliated with Retail
Clerks International Association , AFL-CIO. Cases Nos. 5-CA-
p566 and 5-C11-563. November 15, 1965
SUPPLEMENTAL DECISION AND ORDER
On November 19, 1964, the National Labor Relations Board issued
a Decision and Order in the above-entitled proceeding,' reversing
Trial Examiner James V. Constantine's Decision 2 and dismissing the
complaint in its entirety. In so finding, the Board stated :
Contrary to the Trial Examiner, we believe the facts and circum-
stances on which he relies to find the unlawful purpose and design
do not, on the record as a whole, support a finding of a conspiracy
on the part of the Respondent-Company and the Joint Board to
violate the Act.
Upon the Charging Party's petition to review and set aside the said
Order, the Court of Appeals for the District of Columbia Circuit
remanded the proceeding to the Board on the ground that the Board
has failed to explicate with sufficient clarity the reasons for its decision
dismissing the complaint.3
Pursuant to the court's remand, the Board 4 has reconsidered its
earlier decision. In doing so, the Board has considered the Trial
1149 NLRB 884.
2 The Trial Examiner found that Atlantic Thrift Center, herein referred to as Atlantic
or the Company , entered into a conspiracy with the Central States Joint Board of the
Amalgamated Clothing Workers of America , herein referred to as Joint Board or the
Union , and that pursuant thereto It aided , supported , and assisted the Union in violation
of Section '8(a) (2) and ( 1) of the National Labor Relations Act, as amended.
a Sub nom. Retail Store Employees Union, Local 400, Retail Clerks International Associ-
ation, AFL-CIO v. N.L.R.B., 59 LRRM 2763 . ( July 13, 1965.)
'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the Board has delegated Its powers in connection with this case to a three-
member -panel [Members Fanning, Brown , and Jenkins].
155 NLRB No. 77.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision, the exceptions and briefs, the Charging Party's
supplemental brief, and the entire record in the case. The Board
adheres to its earlier conclusion and, based on the evidence in the rec-
ord as a whole and for the reasons hereinafter set forth, dismisses the
complaint.
The background facts, as more fully set forth in the Trial Exam-
iner 's Decision, show that, in April 1963,5 Atlantic, a nationwide chain
of department stores, purchased nine Bargain City stores, including
one in Alexandria, Virginia, and eight in Philadelphia, Pennsylvania.
Atlantic took possession of the stores in the latter part of June and
closed them to the public for 2 months to remodel, stock, and staff
them in order to reopen all nine stores simultaneously in late August.
This undertaking necessitated the temporary transfer of approxi-
mately 50 employees from Atlantic's other stores to assist in the prep-
arations. A number of employees so transferred were assigned to the
Alexandria store to assist in setting up and staffing the toy, luncheon-
ette, cashiers, housewares, receiving, and shoe departments. The
instant case concerns the temporary transfer of employees Taylor and
Crist, officers of their respective locals of the Amalgamated Clothing
Workers Union, who were selected for transfer by their immediate
supervisors on requests for experienced help in Alexandria' s receiv-
ing and shoe departments made by Atlantic's Vice President
Gottfried.
Prior to the said purchase, Atlantic had contracts with various sub-
divisions of Amalgamated covering approximately 30 of its stores.
In July, David Chaney, president of the Joint Board, read in a trade
journal about Atlantic's acquisition of the stores and directed that an
investigation be made of the representational status of the nine stores.
It was learned that four of the stores in Philadelphia were repre-
sented by Retail Clerks, the Charging Party herein, and the remaining
five stores were under contract with Retail, Wholesale and Depart-
ment Store Union, herein referred to as Retail-Wholesale. Chaney
thereupon telephoned the president of Retail-Wholesale to inquire
whether that union was currently interested in the five stores, and the
latter expressed some doubt concerning the Alexandria store. In late
July, Chaney again contacted Retail-Wholesale and learned it was no
longer interested in that store.
Sometime in August, Chaney assigned the project of organizing the
Alexandria. store to William McClow, Joint Board executive vice
president. When telephone calls were made to McClow early in
August from Crist and Suthard 8 concerning the prospective trans-
5 Unless otherwise specified all dates refer to 1963.
6 Suthard way business agent of the Baltimore Joint Board of Amalgamated Clothing
workers of Anvorica which services the contract between the Norfolk store and Amal-
gamated's Central States Joint Board.
ATLANTIC THRIFT CENTER 855
fers of Crist and Taylor, after which the two employees agreed to
transfer , McClow inquired as to their willingness to help organize the
new store and they agreed. Crist reported to Alexandria on Au-
gust 12, and Taylor arrived in Alexandria on August 13 and reported
for work on August 14. On August 16 Crist and Taylor had signed
up approximately 123 employees, a clear majority, which was proven
at a formal card check on August 17. Two days later Gottfried and
McClow negotiated a collective-bargaining agreement patterned
after their recently negotiated contract covering 19 stores, and the
Alexandria contract was signed the following day, August 20.7
The Trial Examiner correctly observed that the instant record con-
tains no direct evidence of a conspiracy between Atlantic and the Joint
Board to install that Union as the collective-bargaining agent at the
Alexandria store. He inferred, however, based on seven subsidiary
findings, discussed below in the order set forth in the Trial Exam-
iner's Decision, that such a conspiracy existed and that Crist and Tay-
lor were transferred pursuant thereto at the Respondent Company's
expense in violation of Section 8 (a) (2) and (1) of the Act. Contrary
to the Trial Examiner, we find no inference of conspiracy or of any
unlawful action in furtherance of any plan which may reasonably
be drawn from the facts. Rather, as discussed fully below, each inci-
dent as readily accords with an innocent purpose as the improper one
inferred by the Trial Examiner. Therefore, in the absence of any evi-
dence of some communication between the Company and the Joint
Board concerning the prospective organizational campaign, we find
that the Trial Examiner has relied on mere suspicion and that the
General Counsel has failed to meet his burden of establishing the alle-
gations of the complaint by a preponderance of the evidence.
1. The Trial Examiner found it significant that no regular staff
organizer took part in the organizing campaign and that the solicita-
tion was conducted by two employees who had never engaged in such
activities. However, Vice President McClow, a more responsible
representative of the Joint Board than a staff organizer, who had been
assigned by the president of the Joint Board to organize the store,
was in communication with Crist by telephone. Further, he arrived
in Alexandria on August 14, and spoke with Crist and Taylor about
their activities. This was only 2 days after Crist and 1 day after
Taylor reported there for work and only 1 day after Crist had
informed him that the Alexandria employees were "interested in the
Union." He also conferred with them on August 15, when he sug-
gested that they return to the store that evening to obtain additional
cards, and he spoke with them during the noon hour on August 16, at
7 The Trial Examiner specifically found that the execution of the contract did not
establish a desire to head off some other union or amount to aid, assistance , or support
of the Joint Board.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which time he ascertained that a majority of the employees had signed
cards. It is evident that McClow took a more active interest and part
in the organizing campaign than the Trial Examiner recognizes in
his concluding findings, and that McClow's presence in Alexandria
was for the very purpose of directing, counseling, and supervising
the campaign.
In any event, it is not unusual for employees, rather than profes-
sional organizers, to engage in the actual solicitation of other employ-
ees. This is a method of conducting such campaign frequently pre-
ferred by labor organizations where they can secure such employee
assistance. Accordingly, the solicitation by the two employees does
not justify the inference that the Joint Board's actions were prompted
by an "unusual confidence" in the outcome of the campaign. Nor does
it warrant the inference that the Union "anticipated no competition
from a rival union and no opposition from a willing Employer." The
Joint Board had already ascertained that Retail-Wholesale disclaimed
any interest ; it was merely fortuitous that the Charging Union
herein did not appear on the scene earlier; and there is no evidence
of the Employer's willingness.
2. The Trial Examiner conceded that it was "of minor significance"
and "not of paramount importance" that the Company accepted the
Joint Board's majority status without ascertaining the position of
Retail-Wholesale but nevertheless concluded, without setting forth
any supporting rationale, that the Company "should have" inquired
about this, and its "failure to do so indicates ... a desire to aid the
Joint Board.." In our opinion, on the facts of this case, it does not
follow from the failure to act on a matter of such little significance
that so essential an element of the alleged violation as the desire to aid
the Joint Board can be found.
Contrary to the Trial Examiner, this finding of "desire" is not
strengthened by the May 1963 discussion between Company Officials
Gottfried and Mittelman, during which they speculated as to possible
union organization of their employees." It appears obvious from a
reading of his testimony that Gottfried was merely wondering how
negotiations would develop if the Company were required to bargain
with Retail-Wholesale. But even if this interpretation of the testi-
mony be rejected, the Trial Examiner is clearly incorrect in relying
on it. For the Joint Board was not mentioned during the conversa-
tion, and that Union did not learn of the Respondent Company's
acquisition until its president read a report thereof in a trade journal
8 In response to a question by the General Counsel as to whether Gottfried had had any
conversation concerning union organization at the Alexandria store, Gottfried testified:
I told Mr. Mittelman that we had been advised by Bargain City that their store had
previously been under contract with the Retail -Wholesale Store Employees ; that I
had never had any contact with them-we had never entered into any negotiations
with them ; and I wondered what the possible development might be.
ATLANTIC THRIFT CENTER 857
sometime in July. Even then, it made no plans to organize the Alex-
andria store until its president sometime later had ascertained from
Retail-Wholesale that it claimed no interest in the Alexandria em-
ployees. In this connection we note that the Joint Board made no
attempt to organize the employees in the other eight stores, where
Retail-Wholesale and Retail Clerks claimed to represent the employ-
ees, although the situation concerning these stores was the same as at
Alexandria in all other respects.
In sum, we find it too tenuous to infer that Gottfried and his supe-
riors preferred an unnamed labor organization based on a comment
about "what the possible developments might be" where the Joint
Board was as yet unaware of the change of ownership, learned of it
by reading a news item in a trade paper, and took steps to avoid an
organizational conflict with the previous union, absent evidence-and
there is none here-that there was some communication between the
Company and the Union concerning the matter then or later.
3. The Trial Examiner inferred that the long-distance telephone
calls from Crist and from Suthard on behalf of Taylor to the Joint
Board were made solely to apprise it of their impending departure.
This inference rests on the Trial Examiner's disbelief of the testimony
of Crist and Suthard. He rejected Crist's testimony that she called to
find out "if she had to go" to Alexandria only because she also testified
that she had been "requested," not ordered, to transfer; and he con-
cluded that Suthard, as representative of the Baltimore Joint Board,
had no reason to call the Central Joint Board concerning Taylor's
status if she transferred to Alexandria because the Norfolk store was
under contract with the Baltimore Joint Board. As to Crist, unlike
the Trial Examiner, we find no material inconsistency in her testi-
mony. It is not unreasonable, in our view, for an employee to ques-
tion whether the employer's statement, although phrased in the form
of a request, constituted a direction which was in fact mandatory.
And the Trial Examiner's basis for rejecting the reason for Suthard's
call to the Joint Board is clearly erroneous, since the record shows
unequivocally that the Norfolk store is covered by a contract with the
Central States Joint Board, although it is serviced by the Baltimore
Joint Board. Accordingly, Suthard did have reason to call the Joint
Board for advice concerning Taylor's status under the contract.
Under the circumstances, we reject the inference drawn by the
Trial Examiner, particularly since the alternative is to assume facts
not in the record; to wit, that all individuals, including Crist, involved
in the requests to Crist and Taylor to transfer to Alexandria, were cog-
nizant of the alleged conspiracy.
4. The Trial Examiner found it significant that Taylor and Crist
occupied responsible positions in their respective locals, although he
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not state why this was particularly meaningful; and he concluded
that it was more than coincidence that the Norfolk and Knoxville
stores chose to transfer union officials to the Alexandria store, with-
out specifying the evidence upon which this was based. The uncon-
tradicted record evidence shows that the two employees were highly
qualified to perform the work for which they were transferred. In
addition, the Joint Board has contracts covering about 30 of the
Respondent's stores, and approximately 50 employees, including sev-
eral other union members and at least one other union officer, were
temporarily transferred to the 9 newly acquired stores in the same way
as were Crist and Taylor. Finally, the record shows only that Gott-
fried requested Mr. Thaler, the president of the firm operating the
shoe department concession in all Respondent 's stores, to send some-
one to Alexandria quickly to assist in the preparations for opening,
and Thaler in return requested the Knoxville shoe department man-
ager, Linhaers , to assign someone for this purpose . Similarly, Gott-
fried telephoned the manager of the Norfolk store and requested the
assignment of an experienced warehouse clerical , and the Norfolk
manager then asked Taylor to accept the assignment . In view of the
above and the complete absence of any evidence that Crist and/or
Taylor were requested by name, the Trial Examiner's inference can
be supported only by assuming that the president of the shoe firm
operating the concession, the Knoxville shoe department manager,
and the Norfolk store manager were all privy to the asserted con-
spiracy and for this reason chose Crist and Taylor for the respective
assignments.
5. The Trial Examiner rejected as implausible and inconsistent
the reasons asserted for Crist's transfer, and he therefore concluded
that both Crist and Taylor were transferred for reasons other than
those testified to at the hearing. The Trial Examiner appears to find
a contradiction between Gottfried's testimony that the work of the
shoe department in Alexandria was behind and experienced help was
necessary to expedite matters, and Thaler's testimony that the depart-
ment 's delay resulted from a fire marshal's order requiring construc-
tion of a fire aisle; that help was required solely to "teach" the employ-
ees in the shoe department how to tie, awl, and shank the shoes
together; and that he believed that women rather than men could
better train employees to do this work. We see no contradiction in
this testimony and no reason for disbelieving it. Gottfried made no
attempt to identify the work that was falling behind or explain the
reason therefor, and it is entirely plausible that construction of the
fire aisle monopolized much of the department manager's time and
contributed to a delay in preparing the shoes for display or prevented
the shoe department manager from devoting the necessary time to
ATLANTIC THRIFT CENTER 859
teaching the employees. In any event, Thaler indicated that he
believed a female was better suited to perform this duty, his view is
not contradicted in the record, Crist was undeniedly competent to per-
form the task, and there is no indication that she did not do so.
Finally, although the Trial Examiner found that Taylor's transfer
was equally a part of the conspiracy, he cites no evidence in the record
suggesting that the need for Taylor's services was not bona fide.
6. The Trial Examiner inferred that Crist and Taylor were trans-
ferred by prearrangement between the Company and the Joint Board,
based on his findings that (1) Suthard told Taylor to call upon Crist
when Taylor arrived in Alexandria and therefore Suthard had been
informed that Crist's mission was to organize, and (2) when Crist
departed for Alexandria she expected someone from Norfolk to assist
her in organizing. As to the first, McClow's testimony reveals that
Suthard had been informed that Crist would attempt to organize the
employees. However, it is not unusual that McClow should have dis-
cussed the organizational efforts with Suthard and given him this
information. In this connection, it is noted that the times when those
discussions occurred make them entirely reasonable. Thus, McClow
learned definitely on August 9 that Crist had decided to go to Alex-
andria and would attempt to organize, and Suthard asked Taylor on
August 12 to assist Crist and to call the latter in Alexandria. Under
these circumstances, unlike the Trial Examiner, we cannot deduce
that Suthard's statement to Taylor indicates any unusual informa-
tion concerning the forthcoming transfer. As to the second, the only
evidence is that Crist was first informed by McClow in a telephone
conversation on August 13, the day after her arrival in Alexandria,
that someone from Norfolk was expected. Furthermore, the record
reveals that Crist did not speak with McClow between August 9 and
13, and it therefore does not appear when or from whom Crist could
have received the information between those dates. Accordingly,
the Trial Examiner is in error concerning the time Crist was told about
the Norfolk employee. But even if the accuracy of both of these find-
ings be accepted, they indicate only that the Union was seeking the
coordinated assistance of Crist and Taylor, and they supply no sup-
port for the inference that the Union and the Company communicated
in any way before or during this period. The facts relied on by the
Trial Examiner clearly are not inconsistent with the legitimate need
for the employees' services in Alexandria.
7. Finally, the Trial Examiner inferred company knowledge of
and acquiescence in Crist's and Taylor's solicitation on company time
and in work areas from his findings that it occurred pursuant to a
conspiracy and because it resulted in the signing of more than 100
employees in 2 days. In the first place, the Trial Examiner has
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in circular reasoning in assuming that a conspiracy existed,,
for that assumes the resolution of the primary issue in this case as
support for the inference of acquiesence in solicitation for the pur-
pose of finding a conspiracy and unlawful support of the Union in
accord therewith. Secondly, the success of the activities of Crist and
Taylor does not necessarily indicate that the Respondent was aware
of or condoned the conduct during working time. Nor does any other
direct evidence support such a finding. Rather, the credited evidence
establishes that fellow employees observed the two women soliciting
on company time, but there is no evidence that management was
informed on one occasion that Crist had solicited an employee to join
the Union. It is also clear from the evidence that Store Manager
Perothers on one occasion cautioned Crist to limit solicitation to non-
working time and areas, a fact which militates against the inference
of Respondent's acquiescence.
The success of the activities of Crist and Taylor is at least as con-
sistent with the probability that their efforts reached willing ears in
view of the fact that the employees were faced with the uncertainty
of employment with a new employer. It may readily be inferred
that the employees would, without much persuasion, be willing to,
join the only labor organization then manifesting an interest in rep-
resenting them.
In summary, the Trial Examiner's findings are either unsupported
by logic or the record or are equally consistent with a lawful as with
an unlawful motive. It would be a miscarriage of justice to conclude,
from the evidence before us that the Respondent Company was an
active party to a preorganizational campaign understanding with the
Joint Board. These facts provide no basis for finding even company
knowledge or assistance and a fortiori do not support an inference
of conspiracy. Accordingly. we shall dismiss the complaint in its
entirety.
[The Board dismissed the complaint.]
J.M. Machinery Corporation and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths , Forgers and
Helpers, AFL-CIO, Local 609. Case No. 1J3-CA-3101. Novem-
ber 16, 1965
DECISION AND ORDER
On August 10, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
155 NLRB No. 100.