Bargain City, U.S.A, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1960

129 N.L.R.B. 93 (N.L.R.B. 1960)

BARGAIN CITY, U.S.A., INCORPORATED 93
2. Local 560 , International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and ( 3) of the Act.
[Recommendations omitted from publication.]
Bargain City, U.S.A., Incorporated , a Pennsylvania Corporation
and its wholly owned subsidiary , Bargain City, U.S.A., Incor-
porated, a Delaware Corporation and Retail Store Employees
Local 400, Retail Clerks International Association , AFL-CIO
and Retail , Wholesale & Department Store Union , AFL-CIO,
and its Local 770, Party to the Contract . Case No. 5-CA-
1550. September 22, 1960
DECISION AND ORDER
On October 23, 1959, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. The Charging Party filed exceptions and a
brief, and the Respondent filed a brief. The Party to the Contract
also filed a brief.
Subsequently, by Order dated January 28,1960 the Board remanded
this matter to the Trial. Examiner, who was directed to hold a further
hearing to permit the parties to introduce into evidence certain testi-
mony and documents previously excluded. After the further hearing
was held, the Trial Examiner made his Supplemental Intermediate
Report on April 27, 1960, also attached hereto, wherein he also re-
issued the Intermediate Report dated October 23,1959. The Charging
Party again filed exceptions and a supporting brief, and the Em-
ployer filed a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that any prejudicial error which may have
been committed in the first hearing was cured at the hearing on the
remand, and that no prejudicial errors were committed in the hearing
on the remand. The rulings of the original hearing are hereby
affirmed, excepting those rulings which excluded evidence the parties
were permitted to introduce at the reopened hearing pursuant to the
Board's remand. The rulings of the Trial Examiner at the hearing
129 NLRB No. 16.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the remand are hereby affirmed. The Board has considered the
Intermediate Report, the Supplemental Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
The nature of this case is such that determination of the issues de-
pends primarily upon the resolution of credibility of witnesses. The
Trial Examiner resolved many credibility conflicts in favor of the
Respondent's witnesses. In taking exception to the Intermediate
Reports, the Charging Party has noted factors in the record which
it claims justify reversal of the Trial Examiner's credibility resolu-
tions. Although the Trial Examiner's credibility resolutions involved
some matters which have required close scrutiny, we are not convinced
that the clear preponderance of all the relevant record evidence shows
that the Trial Examiner's resolutions are incorrect.' Accordingly,
we adopt the Trial Examiner's credibility resolutions and his in-
terpretations of testimony and his findings based thereon.
[The Board dismissed the complaint.]
3 Standard Dry Wall Products, Inc., 91 NLRB 544.
INTERMEDIATE REPORT AND RECOMMENDATIONS
ISSUES
The primary issues herein are: (1) Did Bargain City, U.S.A., herein called
Respondent, unlawfully apply a collective-bargaining agreement entered into with
the Retail, Wholesale and Department Store Union, AFL-CIO, herein called the
RWDSU, on December 22, 1958, at its retail store at Hybla Valley, Virginia? (2)
did Respondent unlawfully encourage membership in the RWDSU and discourage
membership in Retail Clerks International Association, AFL-CIO, herein called
the Retail Clerks? and (3) did Respondent unlawfully require its employees at the
Hybla Valley store to sign cards for and join the RWDSU and unlawfully require
said employees to pay moneys to the RWDSU?
FACTS AND CONCLUSIONS
On December 22, 1958, Respondent and the RWDSU entered into a collective-
bargaining agreement 1 which contains union-security clauses and a clause purport-
ing to cover future em--ployees.2 At the time this agreement was executed the Hyb1a
Valley store was not in operation-apparently it was under construction. In any
event, it is undisputed that at the beginning of March 1959 Respondent began to
hire employees and the store was first opened for business on March 23, 1959.
When it became known that the Hybla Valley store would soon open, Earl
McDavid, Eastern Division Director of the Retail Clerks (in January 1959), and
thereafter (in February 1959) Frank Meloni and Max Greenberg, officials of the
RWDSU, requested recognition as the bargaining representative of the employees
at this store. Respondent refused to honor both requests and indicated it would
not accord recognition absent proof that a majority of the employees at this store
1 The agreement was executed by Blausun Corporation and the RWDSU, but for pur-
poses of this proceeding is referred to as a contract between Respondent and the RWDSU
2 The introductory clause reads "This AGREEMENT made and entered into this 22nd
day of December 1958, by and between Blausun Corporation, on its own behalf and, with
,due authority, on behalf of all Concessionaires who now do or may hereafter conduct
business at Bargain City USA.. . .
BARGAIN CITY, U.S.A., INCORPORATED 95
(the Hybla Valley store) desired representation by the organization seeking such .3
During March 1959 each of the Unions involved herein initiated and thereafter
conducted organizing campaigns at the Hybla Valley store and one of the issues
herein is whether Respondent unlawfully assisted the RWDSU by applying the
December 22, 1958, contract at this store prior to March 20, 1959. In support
of the affirmative of this proposition the General Counsel relies upon the testimony
of McDavid, noted above in footnote 3, and upon the testimony of Jacob W. Ray,
Kenneth L. Taylor, and John Rowell.
Jacob W. Ray testified that he was interviewed for employment by Howard
Niederman, general manager of the Hybla Valley store, on March 10, 1959, and
testified further:
Q. Would you relate your conversation with Mr. Niederman at that time?
A. Well, he had me fill out a questionnaire as to what my previous experi-
ence had been, and then he stated to me what the salary was. He said it would
be a dollar an hour.
And after 30 days I would receive an additional 7i cents an hour union
raise.
And I asked him if he was going to have a closed shop. He said, "No, that
is a harsh term. We call it a Union shop."
He said that they had brought their union with them from Philadelphia that
was in their other stores.
Niederman testified that he did not remember the exact words of the conversation
with Ray and that he did not remember whether Ray asked if Respondent had a
closed shop. Niederman denied telling Ray that Respondent had a union shop at
the Hybla Valley store and denied telling Ray that Respondent brought a union
with it from Philadelphia. Niederman also testified he thought he told everyone he
interviewed that Virginia was a right-to-work State and that they did not have to
belong to a union.
The General Counsel contends that Niederman had in mind the December 22,
1958, contract mentioned earlier herein when he was talking to Ray. However,
even if Ray's testimony is accepted, it is not clear therefrom which union Respond-
ent brought from Philadelphia since both the RWDSU and the Retail Clerks had
agreements with Respondent covering stores in the vicinity of Philadelphia. Fur-
thermore, it is clear from other parts of Ray's testimony that Respondent was not
at this time, at least, applying the December 22, 1958, contract and requiring Ray to
join the RWDSU or any other union. In any event, after observing the witnesses
and analyzing the record herein, the Trial Examiner believes Niederman a more
reliable witness than Ray and credits his (Niederman's), rather than Ray's, testimony
concerning this matter where there are conflicts.
Kenneth L. Taylor testified that on March 10, 1959:
I applied for the position at Bargain City through Mr. Niederman, who was
interviewing at the time. Mr. Niederman looked at my application and stated
he would pay one dollar an hour to come to work for him at Bargain City;
that he would hire me. I told him I wouldn't be interested at that price. He
said-"well," he looked my application over again and said, "Well, on your
previous experience I will give you $1.15 an hour. But I will have to give you
some sort of title so that it will be legal."
Q. (By Mr. Segal ) Was that all there was to the conversation?
A. No, sir. After he looked over my application, he said most of your
previous employment has been produce. And he gave me a card of introduc-
tion to Mr. DeBenedictis, who is in charge of the produce department of Bargain
City.
Q. Did he say anything about a union?
Mr WACHS: Objection, Mr. Examiner. This is the worst form of leading.
TRIAL EXAMINER: Sustained.
3 Based upon the testimony of William Chanoff, Respondent's labor consultant, and
Frank Meloni In the light of the entire record herein and inherent probability (i e, it
strains credulity to believe that the extreme organizing efforts of the RWDSU and the
Chanoff-Meloni meeting on March 20 were contrived to camouflage an illegal application
of the December contract), their testimony with respect to this matter appears more
reliable than that of McDavid. McDavid testified that he asked if Respondent would
recognize the Retail Clerks after a card check and without the necessity of a Board-
conducted election and that Respondent (Chanoff) refused, indicating that the Decem-
ber 22, 1958, contract (referred to above) covered this store and that he (Chanoff)
would make "a deal" if he (McDavid) would forget about the Hybla Valley store.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Segal. ) Was anything else said at that conversation?
A. Yes, sir. He said that they would be represented by a national union,
and that they were going to pay $1 an hour, and eventually they would go
to $1.07.
But they had that agreement. That was all he was able to pay.
During cross-examination Taylor testified that Niederman offered him $ 1.15 an
hour and remarked that in order to pay him at this rate some sort of a title would
be given so that the terms of the contract with the national union to pay $1 an hour
would not be applicable.
Niederman testified he did not recall anyone by the name of Kenneth Taylor
and denied that he ever told any employee that Respondent had a national contract
with any union.
In the light of the entire record herein, it appears probable that Niederman in
offering Taylor a $1.15 an hour made some mention that this rate was a higher
rate then called for by the contract which ultimately went into effect at this store
(the December 22, 1958, contiact mentioned above), and indicated that in order
to pay Taylor this higher rate and not have repercussions therefrom he would
give him a title not encompassed by the terms of the contract. These facts tend
to establish, however, that Niederman was circumventing rather than applying
the terms of the contract. While there is an innuendo from Taylor's testimony
that the contract was then being applied at the Hybla Valley store such innuendo
is not sufficient to establish this as a fact. Standing alone , or in conjunction
with other credible evidence in this record, it does not meet the requirement that
such fact be established by the preponderance of the evidence.
John Hugh Rowell, at one time the manager of the grocery department (at the
times material herein a supervisor for Respondent), testified that during his pre-
hire employment interview (on March 9, 1959), General Manager Niederman
"informed me that the operation would be union. He did not state which union,"
that on the day he reported for work or the next day (on March 12 or 13, 1959),
Lawrence Millstein, assistant manager of the Hybla Valley store, gave him approxi-
mately 50 RWDSU authorization and checkoff cards together with income tax
papers and instructed him to have the employees sign these cards and return them,
and that he and Millstein thereafter sought and obtained signatures upon the
union cards from employees. According to Rowell he (Rowell) obtained in the.
neighborhood of 50 to 75 signatures 4 between March 12 or 13 and April 20, 1959
(and approximately 25 or 30 before the store opened on March 23). Rowell
testified further that he turned all these cards over to Millstein. He could not name
anyone to whom either he or Millstem gave a card. Rowell testified further
that "Two, maybe three, or four," days after March 12, 1959, he asked RWDSU
representative Graham for a "copy of the contract" and Graham handed him a
copy of the December 22, 1958, contract (mentioned above).
General Manager Niederman testified that at the prehire interview Rowell asked
"if this would be a union shop" and he answered that he did not know, that Re-
spondent had unions in other stores and it was "quite possible we would have a.
union here." Assistant Manager Millstein was also present at this conference.
He testified that Rowell inquired whether there would be a union in the store
when it opened and that Niederman replied that such was a "possibility."
Millstein testified he never had any union authorization or checkoff cards in his
possession and that he did not give any to Rowell or to any other employee The
testimony of RWDSU representatives Graham and Meloni tends to corroborate
this testimony by Millstein. Graham also testified that on March 13 he gave Rowell
one authorization card and one checkoff card and attempted to get him to sign these
cards but abandoned such efforts upon being told by Rowell that he (Rowell)
was going to be the manager of the department (a supervisory employee). Graham
testified these were the only authorization and checkoff cards he gave Rowell-
that he did not give him extra cards to be signed.
Graham testified on one occasion (Graham was not able to establish the date)
Rowell asked for a copy of the contract which the RWDSU had covering another
store because some of the employees were asking about the benefits in various
unions and that on this occasion he gave Rowell a copy of the December 22,
1958, contract.
Even if Niederman and Millstein 's version of the conversation were ignored,
Rowell's testimony was in the nature of a prediction of things to come-not proof
4 Rowell further testified that he got about 25 of these cards from John Graham, ark
RWDSU organizer.
BARGAIN CITY, U.S.A.) INCORPORATED 97'
that the contract was then being applied. In addition, Graham's conduct at the
store belies the tact that the December contract was applied before March 20, 1959.
Furthermore, Rowell, did not make a favorable impression upon the Trial Examiner
as he was testifying and the recoid as a whole supports the Trial Examiner's
original impression that Rowell exaggerated his activities on behalf of the RWDSU.
While the Trial Examiner believes and finds that Rowell engaged in some activity
beneficial to the RWDSU, he is not convinced that it was anywhere near as extensive
as Rowell would have him believe or that it was at the request of, or with the
assistance of, Respondent's officials. Rather, whatever activity of this nature
Rowell engaged in appears to have been without the express authorization or
approval from Respondent or the RWDSU.
On the basis of observations of witnesses and analysis of the record herein, the,
trial Examiner rejects Rowell's testimony (with respect to this matter and other
incidents involved in this proceeding) where it is in conflict with other evidence.
In view of the foregoing, the Trial Examiner hereby rejects the contention of the
General Counsel that Respondent applied the December 22, 1958, contract to the
store at Hybla Valley prior to March 20, 1959.
Prior to March 23, 1959, the store at Hybla Valley was without windows or doors,
construction work was still in progress, merchandise was being shelved, employee
training was in progress, union organizing campaigns were being conducted, and
hundreds of people were constantly walking in and out. In short, a state of chaos
prevailed. Insofar as the organizing campaigns are concerned, the record reveals
that both unions (Retail Clerks and RWDSU) engaged in solicitation and organi-
zational work in the vicinity of the store. At times this activity was conducted
on the store premises during working hours. There is no doubt from the record
herein that Respondent was aware of this activity. In fact, some of the super-
visors engaged in this conduct-John Rowell on behalf of the RWDSU and Joseph
Owens, Jacob Ray, and Paul Price on behalf of the Retail Clerks. While the
RWDSU's activity was more aggressive and more extensive than that of the Retail
Clerk's, each union roamed the store without interference from Respondent, with
one exception hereinafter noted (see facts regarding discharge of Jacob W. Ray).
The record reveals that the RWDSU was accorded certain privileges (hereinafter
noted) not accorded to the Retail Clerks. However, the evidence establishes
that the RWDSU requested such privileges and the evidence adduced does not
establish that similar privileges were requested by the Retail Clerks and denied.
On March 19, 1959, RWDSU representatives Meloni and Graham approached
a group of trainees being instructed by General Manager Niederman. At the con-
clusion of Niederman's remarks Meloni asked Niederman for permission to address
the group. Niederman then introduced Meloni to the group and Meloni spoke
about the benefits of authorizing the RWDSU to represent them and thereafter
sought and obtained signatures to authorization cards.5
During the afternoon or evening on March 19, 1959, RWDSU representative
Meloni telephoned Respondent's labor consultant, William Chanoff, and requested
a meeting with him (Chanoff) on the following day (March 20, 1959). Meloni
told Chanoff the RWDSU had authorization cards from a majority of the employees
at the Hybla Valley store and that he (Meloni) wanted to discuss and negotiate a,
contract to cover these employees. A meeting was scheduled for the following day
at 4 p.m. After the telephone call from Meloni, Chanoff contacted Respondent's
comptroller and Respondent's executive assistant to the vice president and ascertained
from them that there were between 175 and 200 employees then working in the
Hybla store.
At the meeting on March 20 Meloni presented 138 cards 6 to Chanoff and advised
Chanoff be had more in his possession but not with him at the time. Chanoff
examined the cards "to make sure that they weren't signed by one person" and
then turned them over to his assistant (Jack Soloff) who made a list of the names
appearing on the cards. After examination and counting of the cards a "memor-
andum of agreement" recognizing the RWDSU (Local 770 of the RWDSU) as the
bargaining agent for the employees of the Hybla Valley store was executed by
6 Mabel O'Neil testified that Graham addressed the employees and Betty June Bergeron
testified that Assistant Manager Millstein made the introduction. In these respects these
witnesses appear to be in error and the Trial Examiner so finds
6 There is no evidence that these cards were not signed by the persons whose names
appear on them or that these persons were not employees of Respondent at the Hyb1a
store The record tends to support the affirmative of these propositions.
586439-61-vol 129-8
'98 DECISIONS OF NATIONAL LABOR RELATIONS W kRD
Chanoff and Meloni. The "memorandum of agreement" contains a notation that the
terms of the December 22, 1958, agreement (mentioned earlier in this report) with
certain exceptions, notably the provisions concerning union security, are to be
.applicable at the Hybla Valley store. A copy of the "memorandum of agreement"
is attached hereto marked "Appendix A."
The General Counsel contends that at the time of the execution of the memor-
andum of agreement on March 20 the RWDSU did not represent a numerical
majority of employees at the Hybla Valley store. However, he offered no evidence
to substantiate this contention. He asserts that Respondent undertook to prove
majority and failed because Respondent did not compare the names on the cards
against its payroll records. These contentions by the General Counsel are hereby
rejected. The burden in this matter is on the General Counsel to prove lack of
majority, not on Respondent to prove majority status. Furthermore, the inference
from the entire record herein is that at the time in question the RWDSU did in
fact have signed authorization cards from a numerical majority.
The General Counsel asserts that assuming the RWDSU represented a numerical
majority this majority was obtained with the assistance of Respondent and was,
therefore, not a valid basis upon which Respondent could accord recognition As
noted above, each of the unions involved herein exploited the prevailing situation
and engaged in organizational activities during working hours and on Respondent's
property and with the help of minor supervisors. In addition, the RWDSU was
accorded a privilege not accorded to, or declined to, the retail clerks. Thus, each
union received assistance which it may not have been entitled to receive. However,
the Trial Examiner believes and finds that such assistance, under the circumstances,
is not sufficient to warrant a finding that Respondent thereby violated the Act or a
finding that because of this assistance the RWDSU's majority was a coerced or
tainted majority.
On or about March 25, 1959, following the execution of the memorandum of
agreement with Local 770 RWDSU, Chanoff went to the Hybla Valley store and
spoke to an assemblage of concessionaires, managers, assistant managers, and super-
visors He told them, inter alta, about the terms of the agreement between Re-
spondent and the RWDSU and explained that under the terms of the agreement
and the Virginia right-to-work laws, employees were not required to join the RWDSU.
There is a dispute herein as to whether, on or about March 26 or 27 David
Lewin, a supervisor in charge of the domestic department, advised Mary Morrison
and Doris Bryant, employees in the domestic department, that it was "mandatory"
for them to join the RWDSU. On the basis of observations of witnesses and
analysis of the record, the Trial Examiner accepts Lewin's version of this matter
rather than that given by Morrison or Bryant and credits his (Lewin's) denial that
he told them it was "mandatory' 'to join the RWDSU.
General Counsel's witness, Jacob W. Ray, testified that "a week or two" after
March 23, 1959, which was after the execution of the memorandum of agreement,
Produce Manager William DeBenedictis went to a manager's meeting and after his
return called the employees of the produce department together and stated "that
we all had to join the Union, the Union in the store." General Counsel's witness,
Kenneth L. Taylor, fixed the date as April 3, 1959, and testified that DeBenedictis
said Respondent "had an agreement with the Union, and that he wanted all of us
to become union members " No other witness testified about this matter As noted
above, there were several persons who could have testified about this matter, but
only two were called and they were called by the General Counsel and their testimony
conflicts. Under these circumstances, the Trial Examiner credits neither. Further-
more, the Trial Examiner believes Taylor a more reliable witness than Ray and
under his version of the incident DeBenedictis was suggesting (not requiring) that
in the light of the memorandum of agreement employees joined the RWDSU.
On May 2, 1959, Jacob W. Ray became a supervisor in the shoe department and
-while thus employed engaged in activities on behalf of the retail clerks. He was
criticized on May 10 by General Manager Niederman for engaging in such activities
in the store and told to quit passing out cards On May 13, 1959. Ray was discharged
and was told at that time that he was being discharged because of his union activities.
Ray was recalled on May 16, and told at that time that Respondent did not object
to him engaging in union activities provided he did not do it in the store. The
General Counsel argues that Ray's discharge was because of his activities on behalf
of the retail clerks and consequently an act of assistance to the RWDSU. There
is no doubt herein that Ray was discharged because of activities on behalf of the
-retail clerks. However, from Ray's testimony (and his is the only evidence concern-
ing this matter) it appears that Respondent believed that he was engaging in these
BARGAIN CITY, U.S.A., INCORPORATED 99
activities during working hours and on company property and discharged him for
that reason. There is no evidence that in discharging Ray, a supervisory employee,
Respondent was attempting to encourage or discourage union membership by rank-
and-file workers. The Trial Examiner hereby rejects the contention that Ray's
discharge was an unlawful act of assistance to the RWDSU.
The contract of December 22, 1958, which was incorporated by reference into
the memorandum of agreement of March 20, 1959, contains provisions concerning
checkoff of RWDSU dues and initiation fees and the parties herein stipulated that
for the purpose of this proceeding it may be found that since May 20, 1959, and
pursuant to signed checkoff authorization cards dues payments on behalf of the
RWDSU have been checked off by Respondent. Having rejected the contention of
the General Counsel that the December 22, 1958, contract was unlawfully applied
to the Hybla Valley store, the Trial Examiner now rejects the contention that Re-
spondent unlawfully required employees to pay moneys to the RWDSU.
As noted above, the Trial Examiner rejects the contention of the General Counsel
that the contract executed in December 1958, months before the Hybla Valley
store was in existence, was applied in violation of the Act to the employees at the
Hybla Valley store immediately upon being hired, and that the RWDSU was recog-
nized long before there were any employees at this store. In addition, the Trial
Examiner has rejected the contention of the General Counsel that at the time of
the execution of the memorandum of agreement of March 20 the RWDSU did not
represent a numerical majority of the employees at the Hybla Valley store and the
contention that the numerical majority was a coerced or tainted majority. While
the Trial Examiner believes and finds that the evidence adduced establishes that the
RWDSU and the retail clerks roamed the store and solicited membership, that
Respondent upon request introduced RWDSU representatives to employees who
then solicited membership and that minor supervisors distributed RWDSU and retail
clerks membership and checkoff cards to new employees and solicited their member-
ship in these organizations, the Trial Examiner is not convinced that under the
circumstances involved herein these acts constitute violations of the Act as alleged
in the complaint.
In view of the foregoing, it is believed that the complaint, in its entirety should be
dismissed.
.[Recommendations omitted from publication.]
APPENDIX A
MEMORANDUM OF AGREEMENT
At a meeting held at 326 South 19th Street, Philadelphia, on March 20, 1959,
the undersigned representatives of Local 770 and the Blausun Corporation met for
the purpose of ascertaining the Union's right to represent the employees at the
Bargain City store #6, located at Hybla Valley, Alexandria, Virginia.
The union representatives presented membership application cards and check-off
authorization cards from 138 employees purporting to give Local 770 the right to
represent the employees as their authorized bargaining agent.
The company representative counted and examined the union application cards
and established their validity.
On the basis of these cards, the company representative recognized Local 770 as
the sole agent for collective bargaining purposes for the employees of the above
named store.
The parties then proceeded to establish the terms of a collective bargaining
agreement and agreed that the employees would be covered by the National Agree-
ment currently in effect between the Union and Blausun Corporation, dated the 22nd
day of December 1958, except for the provisions of Article II of that agreement
which shall not apply to the employees of Bargain City #6, located at Hybla Valley,
Alexandria, Virginia. This agreement was reached with the complete understanding
of the parties that the National Agreement contains certain provisions in excess of
those agreed herein.
This agreement provides that all employees working as of March 16, 1959, will
receive an immediate increase of $3.00 per week, effective as of March 16, 1959,
and that all employees hired subsequent to that date, and prior to April 15, 1959
will receive a wage increase of $3.00 per week sixty days from their date of
employment.
In addition, the parties agreed to a merit increase provision identical to the
provision operative in the Fairless Hills Bargain City store.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This agreement between Local 770 and the Blausun Corporation, Alexandria„
Bargain City store, is to remain effective from March 16, 1959 to May 1, 1962.
For the Company: For the Union:
(S) William Chanoff. (S) Frank E. Meloni.
WILLIAM CHANOFF. FRANK E. MELONI.
RETAIL, WHOLESALE AND DEPARTMENT
STORE UNION, LOCAL 770, AFL-CIO.
SUPPLEMENTAL INTERMEDIATE REPORT
On October 23, 1959, the duly designated Trial Examiner issued his Intermediate
Report in the above-entitled matter. Thereafter, by order dated January 28, 1960,
the Board remanded this matter with directions that the Trial Examiner hold a_
further hearing to permit the parties to introduce into evidence "certain testimony
and documents previously excluded" and with directions that upon conclusion of"
such further hearing the Trial Examiner issue a Supplemental Intermediate Report.
In the order remanding this matter the Board:
1. Reversed a ruling made at the original hearing refusing to permit the General
Counsel to introduce evidence bearing upon the "intent of the parties, as indicated.
in their negotiations , with respect to the applicability of the December 22, 1958,
contract to the Hybla Valley store." The order in effect reversed the Trial Ex-
aminer's ruling refusing to let the General Counsel go into the negotiations leading
up to the December 22, 1958, contract.
2. Reversed the Trial Examiner's rulings rejecting the General Counsel's offer-
of proof that John Graham, and RWDSU organizer, made a request to John Hugh
Rowell, manager of the grocery department, that he (Rowell) discharge employee
Henry Levin ( also spelled Levene in the record herein) because Levin would not
sign a union authorization card and that shortly after Rowell refused to honor this
request General Manager Howard Niederman told Rowell that he did not have to,
discharge Levin because Levin had signed a card. In addition, the Board indicated
that it wants to know the name of the Union for which Levin had signed a union
authorization card on or about March 20, 1959.
3. Reversed the Trial Examiner's ruling rejecting Respondent's offer of certain
collective-bargaining agreements between Respondent and an affiliate of the same-
parent organization of which the Charging Party herein is an affiliate (between
Respondent and a Local of the Retail Clerks other than the Local involved herein).
The only evidence offered at the further hearing bearing upon the negotiations
leading up to the December 22, 1958, contract consists of testimony by Respond-
ent's labor consultant (William Chanoff) which the Trial Examiner credits. Chan-
off's testimony is to the effect that there was no discussion at these negotiations with
respect to stores that might open in the future, that there was no discussion with
respect to Hybla Valley and that there was no discussion that in any way referred
to the Hybla Valley store.
At the further hearing held on March 29, 1960, Rowell testified that 2 or 3 days
prior to March 23, 1959, he saw Graham and Levin talking and that at the con-
clusion of this conversation Graham "came directly to me" [Rowell] and "told
me that I would have to let Mr. Levene go; he had refused to join the Union.'°
Rowell testified further that he told Graham he would not let Levin go and that later
that day Niederman "came up to me and told me that I didn't have to let Levene
go; that the situation had straightened out."
In an affidavit executed on May 10, 1959, Rowell stated that Niederman "came
over to me, told me that the situation had straightened out and that Hank [Levene
or Levin] had signed a card."
At the further hearing on March 29, 1960, Rowell testified he was not sure
whether Niederman had said "Hank had signed a card" since he (Rowell) had been
told by Levin that he (Levin) had not signed any union authorization card but that
he (Rowell) believed that Niederman had said that Levin had signed an RWDSU
authorization card.
Henry Levin testified that on the occasion in question Graham told him he
(Levin) "had to join the Union" and that he (Levin) responded that he would not
join and walked away from Graham and that he (Levin) did not "join any union,
while" employed by Respondent.
At the original hearing in this matter Graham denied telling Rowell he would
have to let Levin go.
Niederman, generally and specifically, denied making the statements attributed
to him by Rowell and denied that at the time in question he had any conversation
with Rowell "as to whether Levin ought to be discharged or not discharged."
ATLAS ENGINE WORKS, INC . 101
In the original Intermediate Report the Trial Examiner indicated that Rowell had
mot made a favorable impression upon him (the Trial Examiner ). After observing
Rowell at the further hearing on March 29, 1960, and analyzing his testimony the
Trial Examiner adheres to his view that Rowell is not a reliable witness and again
rejects his testimony where it is in conflict with other evidence.,
At the further hearing held on March 29, 1960, each of the parties herein was
afforded an opportunity to offer into evidence the collective -bargaining agreements
rejected at the original hearing or any collective -bargaining agreements between
"Respondent and the Charging Party which govern the terms and conditions of
employment of Respondent 's employees at the stores covered by such agreements."
Such documents were not offered . Furthermore, statements by counsel for the
Charging Party indicate that there are no collective-bargaining agreements between
Respondent and the Charging Party.
In its directions that the Trial Examiner issue a Supplemental Intermediate Report,
the Board directed that such report contain, inter alia, findings of fact pertinent to
the business of Respondent , the Board 's jurisdiction with respect thereto , and the
status of the labor organizations.
Respondents are separate corporate entities but for the purpose of this proceeding
may be considered as a single Employer engaged in the operation of department
stores in various States of the United States, including one located at Hybla Valley,
Fairfax County, Virginia. The store at Hybla Valley was open for business on or
about March 23, 1959.
In the operations of the department stores in various States of the United States,
Respondent receives a gross income from sales in excess of $500,000 annually.
Purchases of merchandise , equipment , and supplies of substantial value are received
annually from points and places located outside the States in which the various
department stores operated by Respondent are located . It is anticipated that the
gross income from sales at the Hybla Valley store will exceed $500,000 annually
and that merchandise , equipment , and supplies of substantial value will be received
at said store from points and places located outside the State of Virginia. The
evidence reveals that Respondent is engaged in a business affecting commerce within
the meaning of Section 2(6) of the Act and that the Board 's requirements for the
assertion of jurisdiction have been satisfied.
Retail Store Employees Local 400, Retail Clerks International Association, AFL-
CIO, and Retail , Wholesale & Department Store Union, AFL-CIO, and its Local
770, are labor organizations within the meaning of Section 2(5) of the Act.
As supplemented by the information contained herein the Intermediate Report
issued on October 23, 1959, is hereby reissued.
i The reasons or basis for such credibility resolutions are personal demeanor , conduct
and attitude of witnesses , and careful evaluation and weighing of evidence and inherent
probability
Atlas Engine Works, Inc. and International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO. Case No. 8-CA-92048. September 22, 1960
DECISION AND ORDER
On May 10, 1960, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report appended hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief.
129 NLRB No. 17.