Department Store Employee Union

National Labor Relations Board - Board Decisions

Aug 28, 1958

121 N.L.R.B. 688 (N.L.R.B. 1958)

688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close, intimate , and substantial relation to trade, traffic , and commerce among
the several States and substantially affect commerce within the meaning of Section
2 (6) and (7) of the Act
5 Respondents have not engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) as alleged in the complaint
THE REMEDY
Having found that Respondents have engaged in activities which violate Section
8 (b) (4) (A) of the Act, I shall recommend that they cease and desist therefrom
and that they take certain affirmative action, of the type conventionally ordered in
such cases, which I find necessary to remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the Act
[Recommendations omitted from publication
APPENDIX A
NOTICE To ALL MEMBERS OF LOCAL UNION NO 98, SHEET METAL WORKERS'
INTERNATIONAL ASSOCIATION, AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify you that
WE WILL NOT induce or encourage employees of Limbach Company, or any
other employer, to engage in a strike or a concerted refusal in the course of their
employment to use, manufacture, process, transport, or otherwise handle or
work on, any goods, articles, materials, or commodities, or to perform any serv-
ices for their employer, where an object thereof is to force or require Limbach
Company, or any other employer or person, to cease using, handling, or other-
wise dealing in the products of, or to cease doing business with, York Corpora-
tion or Barber-Colman Company, or to force or require York Corporation to
cease doing business with Ebasco Services, Inc, Barber-Colman Company, and
other employers and persons
------------- ----------(CLIFTON DBAEaULO)
LOCAL UNION No 98, SHEET METAL WORKERS'
INTERNATIONAL ASSOCIATION, AFL-CIO,
Labor Organization
Dated------------------- By---------- --------------------------^ -----
(Representative ) (Title
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Department Store Employees Union , Local 1100, AFL-CIO, and
Retail Shoe & Textile Salesmen 's Union, Local 410, AFL-CIO
and Lane Bryant San Francisco, Inc. Case No 2O-CB-56L.
August 28,1958
DECISION AND ORDER
On March 1^, 1958, Trial Examiner David F. Doyle issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto Thereafter, the Respondents filed
121 NLRB No 86
DEPARTMENT STORE EMPLOYEES UNION 689
joint exceptions to the Intermediate Report and a supporting brief.
Lane Bryant San Francisco, Inc., the Charging Party herein, filed a
brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no-prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with certain modifications made in the
Order below.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Department
Store Employees, Union, Local 1100, AFL-CIO, and Retail Shoe '&
Textile Salesmen's Union, Local 410, AFL-CIO, their ' officers, rep-
resentatives, agents, successors, and assigns, shall:
1. Cease and desist from restraining or coercing the employees of
Lane Bryant San Francisco, Inc., in the exercise of the rights guaran-
teed in Section 7 of the Act by picketing the said Company, making
appeals to its customers not to do business with it, or placing the
Company's name on the Respondents' "unfair lists," or engaging in
any other conduct, for the purpose of forcing the said Company to
recognize the Respondents as the exclusive bargaining representative
of its employees when the Respondents do not represent a majority of
such employees in an appropriate unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective offices and meeting halls in San Fran-
cisco, California, copies of the notice attached hereto marked "Appen-
dix." 1 Copies of said notice, to be furnished by the Regional Director
for the Twentieth Region, shall, after being duly signed by an au-
thorized representative of each Respondent, be posted by the Respond-
ents immediately upon receipt thereof and be maintained by them for
sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to members are customarily posted. Reason-
1 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
487926-59-vol. 121-45 _
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able steps shall be taken by the Respondents to insure that the said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twentieth Region signed-,
copies of the'notice attached hereto marked "Appendix" for posting at
the premises of Lane Bryant San Francisco, Inc., in places where
notices to the Company's employees are customarily posted, if the
Company is willing to do so. Copies of said notice, to be furnished
by the Regional Director for the Twentieth Region shall, after being
duly signed by an authorized representative of each Respondent, be
forthwith returned to the Regional Director for such posting.
(c) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, as to what steps,
the Respondents have taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF DEPARTMENT STORE EMPLOYEES UNION
LOCAL 1100 , AFL-CIO, AND RETAIL SHOE & TEXTILE SALESMEN'S-
UNION, LOCAL 410, AFL-CIO AND TO ALL EMPLOYEES OF LANE
BRYANT SAN FRANCISCO, INC.
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, as amended, we hereby give notice that :
WE WILL NOT restrain or coerce the employees of Lane Bryant
San Francisco , Inc., in the exercise of the rights guaranteed by
Section 7 of the Act, by picketing Lane Bryant San Francisco,
Inc., making appeals to its customers not to do business with it, or
placing the Company's name on our "unfair lists ," or by engaging
in any other conduct, for the purpose of forcing Lane Bryant
San Francisco , Inc., to recognize us as the exclusive bargaining
representative of its employees when we do not represent a major-
ity of such employees in an appropriate unit.
DEPARTMENT STORE EMPLOYEES UNION
LocAL 1100 , AFJ)-CIO,
Labor Union.
Dated---------------- By-------------------------------------
(Representative ) (Title)
RETAIL SHOE & TEXTILE SALESMEN'S
UNION, LOCAL 410, AFL-CIO,
Labor Union.
Dated---------------- By-------------------------------------
(Representative ) (Title) -
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
DEPARTMENT STORE EMPLOYEES UNION 691
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Rela-
tions Act, 61 Stat. 136, pursuant to a complaint issued by the-General Counsel of
the National Labor Relations Board against the Respondent Unions.'
The complaint dated November 15, 1957, alleged that the Union had engaged in
unfair labor practices proscribed by Section 8 (b) (1) (A) of the Act, in restraining
and coercing employees of the Company in the exercise of their rights guaranteed
by Section 7 of the Act. The complaint specified that the Union had (a) picketed
the store of the Company; (b) made appeals to the Company's customers not to do
business with the Company; and (c) placed the Company on its "Unfair List," for
the purpose of securing recognition as the statutory representative of the Company's
employees, when at no time the Union represented a majority of said employees in
an appropriate unit.
By answer the Union denied the commission of any unfair labor practice , attacked
the sufficiency of the complaint as a matter of law, and affirmatively alleged that
its conduct was in all respects lawful.
Pursuant to notice, a hearing was held at San Francisco, California, on December
12, 1957, before the duly designated Trial Examiner. The parties' were repre-
sented by counsel who were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant evidence. At the close of the
hearing the parties were given an opportunity to argue orally and to file briefs.
The General Counsel presented oral argument and the Company and the Union
filed briefs.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a wholly owned subsidiary of Lane Bryant , Inc., a Delaware
corporation , which with other wholly owned subsidiaries forms a chain of 70 retail
stores in 28 States and the District of Columbia . The operations of the Company
are completely integrated with those of the parent chain , which has its headquarters
in New York City. The annual volume of the entire chain exceeds $65 ,000,000, half
of which represents goods and merchandise which originates outside the State in
which the stores are located . The store in San Francisco is the only one involved in
these proceedings . I find that the Company is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies of the Act for the Board
to assert its jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 1100 and Local 410 are, and at all times material herein were, labor
organizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
This case is concerned with the legality of picketing, and other conduct of the
Union at a store of the Company which was opened for business in the city of San
Francisco on August 13, 1956. It is undisputed that the picketing, which has
always been peaceful in nature, began with the opening of the store and has con-
tinued without interruption through the date of the hearing herein, December 12,
1957. In the course of the controversy, on the petition of the Company, the Board
conducted.a hearing in a representation case between the parties on July 9, 1957,
and thereafter on August 26, 1957, issued a Decision and Direction of Election.2
1 In this report the Respondent Unions, who acted in concert , are referred to individually
as Local 1100 and Local 410 and, jointly , as the Union , Lane Bryant San Francisco, Inc,
as the Company or Lane -Bryant; the General Counsel of the Board and his representative
at the hearing , as the General Counsel ; the National Labor Relations Board, as the
Board ; and the Labor Management Relations Act of 1947 , as amended , as the Act.
2 Lane Bryant San Francisco , Inc., employer -petitioner , and Department Store Em-
ployees Union, Local 1100, AFL-CIO, and Retail Shoe & Textile Salesmen ' s Union,
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 16, 1957, the Board conducted an election in an appropriate unit of
the Company's employees , with the result that 52 employees voted against the Union-
and 3 voted in favor of the Union.
At the instant hearing , counsel for the parties stipulated into evidence portions
of the verbal testimony , and certain documentary exhibits , which had been re-
ceived in evidence in the representation proceeding . This testimony, the exhibits,
plus additional stipulations and exhibits , comprise the transcript of the instant
proceeding.
Events Prior to the Opening of the Store
Ray Vetterlein is the present secretary-treasurer of Local 1100. In the course
of his cross-examination in the representation proceeding he testified to the begin-
ning of relations between the Union and the Company relative to the San Francisco
store. He testified that on March 28, 1955, Fred Plumley, then secretary-treasurer
of Local 1100, addressed a letter to the parent corporation of the Company, to the
attention of Ray Malsin, president. This letter read as follows: 3
GENTLEMEN: We have been advised that your firm intends to open a store
at 51 Geary Street in San Francisco, sometime this year. This operation will
fall under our specialty store agreement which is in effect throughout the City
and County of San Francisco for the stores in the same general category, as
the store planned by you.
For your information and in order that this store may operate under industry
wide prevailing conditions in San Francisco, we enclose herewith a copy of
the aforementioned specialty store agreement.
You are requested to review this agreement for such purpose, and if you
have any questions concerning its terms, we shall be glad to discuss such ques-
tions with you.
Yours very truly,
[Emphasis supplied.]
Vetterlein 'further testified that on May 2, 1955, the Company by L. Maier, per-
sonnel executive, replied as follows:
DEAR MR. PLUMLEY: Your letter of March 28, 1955, addressed to Mr.
Raphael Malsin, President, has been turned over to me for consideration and
reply. I have been away from my office for an extended period, and I am
just now catching up on my correspondence.
Your letter certainly parallels the old maxim about putting the cart before
the horse. We have just signed a lease and we do not even know at this time
when it will be possible for us to open a store.
Naturally we have no employees for the San Francisco location at this time
and will not have any employees for the store for some time to come.
On June 2, 1955, Plumley again wrote to Maier, as follows:
GENTLEMEN: With reference to your letter dated May 2, 1955, concerning
union relations with your firm and Local 1100, RCIA, our information was
that your San Francisco branch would probably be opened late this fall, and
of course, it was our desire to ascertain more or less your attitude towards
the union shop.
In San Francisco, as you know, most of the specialty shops are under union
contracts. Mr. Bernard Columbo, who represents the specialty shop employees
as the union's business representative, and I will be in New York during the
week of June 19 through 25 and would appreciate meeting with you 'to discuss
this matter.
I would appreciate you contacting us by letter or by telephone at the Com-
modore Hotel, and we shall be happy to meet with you at any time convenient
to you. [Emphasis supplied.]
On June 8, 1955, Maier, by letter, informed Plumley that he would be away
from New York City at the time of Plumley's contemplated visit. Apparently,
9-months intervened before the correspondence was resumed.
Local 410, AFL-CIO, Retail Clerks International Association, AFL-CIO, Case No.
20-RM-235. The pertinent portion of this Decision and Direction of Election (un-
published) is hereinafter set forth.
s Transcript, representation proceeding, page 51, et seq. relates to this correspondence.
DEPARTMENT STORE EMPLOYEES UNION 693
On March 2, 1956, Plumley again wrote Maier as follows:
GENTLEMEN: On March 28, 1955, in our letter addressed to Mr. Ray Mali
sin, President of Lane Bryant, we expresssed our desire to meet with you to
discuss a union store agreement under our specialty stores agreement here in
San Francisco. Of course, as you then expressed in your reply, we were per-
haps premature in our suggestion. As of that time only a lease had been signed.
Since then, however, extensive alterations and repairs have been made, and
from our observation it seems that completion is not too far distant. There-
fore, we would appreciate meeting with a representative of your company
to discuss an agreement.
We, as you may know, are required to make periodic reports to our Cen-
tral Labor Council and Building Trades Council, and we, of course, would
like to be able to report favorably concerning your operation.
We will be happy to meet with your representative at any time.
Sincerely yours,
[Emphasis supplied.]-
On March 20, 1956, Maier replied to Plumley, as follows:
DEAR MR. PLUMLEY: I have just received your letter of March 2, 1956,
and I have studied its contents interestedly.
At the risk of seeming repetitious, I feel that the picture of facts I gave
you in my letter of May 2, 1955, still pertain. We still have no employees for
the San Francisco location and alterations, while started, are certainly far from
completion.
You said you were requested to make periodic reports to your Central Labor
and Building Trades Councils. While I would like to be more helpful in
giving you meat for inclusion in these reports, I am not able to do so at this
time.
[Emphasis supplied.]
Apparently this letter concluded the correspondence between the parties.
Conference of August 6, 1956
It is undisputed that on this date Vetterlein, secretary-treasurer of Local 1100,
and Silverstein, a representative of Local 410, met with Maier, personnel director,
and Tannen, manager of the San Francisco store, at the office of Robert Littler,
counsel for the Company, at the latter's office in San Francisco. As to what
occurred at this conference, Littler and Vetterlein testified at some length, and
Tannen briefly.
Littler testified that Vetterlein acted as spokesman for the Union and opened the
conference.4 After some friendly remarks he asked the representatives of the
Company, if the Company would be willing to sign a contract with the Union.
Maier spoke on behalf of the Company and asked the union representatives how
many employees the two unions claimed to represent. Vetterlein answered, "About
four or five." Maier then stated that the Company had hired 39 employees for
the store up to that date, and expected to hire more. He commented that it was
obvious that the Union did not represent a majority of the employees. Vetterlein
pursued the question as to whether or not the Company would be willing to sign
the agreement with the Union. Maier replied that the Company would be happy
to do so, if the Union became the certified bargaining representative of its employees.
Vetterlein then asked if the Company would be willing to have an organizer for
the Union present at the employment office of the Company when further employees
were interviewed for employment. Maier replied that the Company would not be
willing to do that. Vetterlein then explained that when a new store came into
San Francisco it was customary for the store to sign up with the Union, and he
asked the Company, "to sign up as all the rest of the stores did." At this point
Vetterlein said they could go along with the Union or "they could do it the hard
way."
When Maier told the union representative that the Company would not recognize
the Union, the union representatives asked for a recess in the conference. They
stepped to an adjoining room and had a private conversation. When they came
back to the conference a few moments later, "they said they withdrew any request
for a contract, and didn't claim to recognize [sic] anybody."
' Littler's testimony begins at page '9, transcript, representation proceeding.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vetterlein in his testimony furnished a somewhat different version of this confer-
ence 5 He testified that at the conference, the Union presented no contracts to the
Company, nor did it ask the Company to sign any contract. The union representa-
tives endeavored to explain to the company representatives the different types of
retail industries operating in San Francisco, department store industry, specialty
store industry, the variety stores, Sears, and so on. He sought to obtain from Maier
information as to the kind of store the Company was going to have, as the union
representatives were not sure it would be in the specialty field, or a department
store. Maier asked the union representatives if they represented a majority of the
sales people hired for the store, but Vetterlein replied that the Union was not making
that point at that time; the Union had some people signed up, and other people on
pledge cards, but the Union was not prepared to reveal who or how many. Maier
replied that the company policy was not to deal with any union as representative
of the Company's employees until the Board had conducted an election.
Then, the discussion went to the subject of organization. Union representatives
asked the Company if it would take a hands-off attitude, and permit the union
organizers to go into the store and talk to the employees. Maier's answer was
an emphatic no, and he again asked, if they were claiming that they represented
the employees, and did the Union want them to sign a contract. Silverstein and
Vetterlein both,told Maier that they wanted nothing from him, that they were not
claiming to represent the employees; nor did they 'ant a contract; that the Union
merely wanted to find out the Company's attitude. At this point the union repre-
sentatives conferred privately. According to Vetterlein, when the union repre-
sentatives returned to the conference, they told Maier the following:
. . . we wanted nothing from them, that in San Francisco when a new store
came in we had almost complete organization. We were going to organize the
people and we could do it the hard way or the easy way, and the end result
was we were going to organize the employees in the store. We had done it in
about every other store in the city.
Then I told him in order to-if there was any question in his mind, we were
not requesting anything, we had not claimed anything; and if he thought we had
in the past, we wanted him to clearly understand that we were making no
claim for any demand on him whatsoever.
With that we broke up. The whole meeting couldn't have lasted more than
maybe 15 or 20 minutes at the most; a very short meeting.6
A moment later in his testimony Vetterlein explained his reference to the "hard
way" by saying that the reference meant the Union would organize the people, using
the Sears type of approach in which the company kept a hands-off policy and
permitted the union to send its organizers into the store to organize the employees,
or to do it the hard way, by making "night calls" on the employees, and sending
"shoppers" into the store, "and on leaflets, and so on."
I credit Littler's testimony as-to the tenor and substance of the conversations of
the parties iii this conference. His version of these conversations seems to be more
consistent with, and more plausible in the light-of, all the other evidence, than the
version furnished by Vetterlein. Especially is this true when the Union's letter of
August 8, 1957, hereinafter set forth, is considered. In that letter the Union pur-
portedly withdrew "all previous requests or demands," and stated that the Union
"had no further purpose or desire to enter into a collective agreement of any kind or
sort," with the Company. This would indicate that in the August 6, 1957, con-
ference the Union did make requests and demands, and seek a collective-bargaining
agreement with the Company. This would be consistent with Littler's testimony.
On the other hand, if as Vetterlein testified the Union made no requests or demands,
and did not seek a contract with the Company, the Union' s later disclaimer would
appear to be entirely unnecessary. -
Furthermore, Littler's testimony appears consistent with the earlier correspondence
between the Union and the Company in 1955 and 1956, in which the Union instituted
negotiations directed toward recognition and acceptance of the specialty store con-
tract, which it submitted to the Company at that time.
The Disclaimer of August 8, 1956
On August 8, 1956, 2 days after the conference with Company officials, and 5
days before the opening of the San Francisco store Silverstein op behalf of Local
410, and Vetterlein on behalf of Local 1100, addressed substantially identical letters
s Vetterlein's testimony begins at page 36, transcript, representation proceedings.
6 Transcript, representation proceeding, page 39.
DEPARTMENT STORE EMPLOYEES UNION 695
to Tannen, store manager, with copies to Maier and Littler. These letters read as
follows: 7
LANE BRYANT, INCORPORATED, AUGUST 8, 1956.
55 Geary Street,
San Francisco, California.
Attention: Mr. Richard Tannen
Store Manager
At the recent meeting between this Union and yourselves, at which you were
represented by Messrs. Littler, Maier and Tannen, and the union by Messrs.
Silverstein and Vetterlein, certain views regarding the future relations between
yourselves and this union were expressed on behalf of the union by Mr. Vetter-
lein. The purpose of this letter is to confirm those statements so that no pos-
sibility of misunderstanding may arise between us.
As you will remember, at the conclusion of this meeting, Mr. Vetterlein stated,
on behalf of the Union, that all previous requests or demands which had been
made upon you for the said union were at that time withdrawn and that as the
result of the viewpoints expressed by yourselves during that meeting, the said
union had no further purpose or desire to enter into a collective bargaining
agreement of any kind or sort with you.
This is, therefore, to formally and officially notify you that, in the future,
any economic activities on the part of this union directed against yourselves,
including picketing if the same is deemed to be advisable, is not and will not be
for the purpose of obtaining any sort of type of union agreement with you.
The sole and exclusive purpose and objects of said future economic activities
will be to persuade your employees to affiliate with this union and to advertise
to the public that your firm does not operate under A. F. of L. Union condi-
tions with respect to the hours, wages and working conditions of your employees.
You are further formally and officially notified hereby that any demands that
may have been made upon you in the past by this union that you enter into any
type of agreement or collective bargaining contract with it are hereby with-
drawn and no such demands have been or will be renewed.
Finally, you are hereby officially and formally advised that, as above stated,
any economic action and/or picketing engaged in by this union against your
business from and after this date will be for the sole and exclusive purposes and
objects hereinabove stated, namely, to persuade your employees to affiliate with
this union and/or to advertise to the public that you are not operating under
A. F. of L: Union conditions in San Francisco.
Yours very truly
RAY VETTERLEIN,
Assistant Secretary.
[Emphasis supplied.]
The Opening of the Store; the Union ' Picketing and Other Activities
On August 13, 1956, the Company opened its store in San Francisco, California, in
a building which has entrances on Geary Street and on Market Street, two prominent
streets in the city. Contemporaneous with the opening of the store, the Union
began picketing.
It is undisputed that for the first 2 weeks, the pickets carried a placard head-
ing: EMPLOYEES-JOIN THE UNION. HELP YOURSELVES-HELP US
ACHIEVE BETTER WAGES AND WORKING CONDITIONS IN NON UNION
`STORES. THIS STORE DOES NOT MAINTAIN AFL-CIO CONDITIONS.
PLEASE DO NOT PATRONIZE. DEPARTMENT STORE EMPLOYEES UN-
ION, LOCAL 1100. RETAIL SHOE & TEXTILE SALESMEN'S UNION, LO-
CAL 410.
Thereafter the pickets did not normally carry placards, but instead wore a banner
or sash reading, "Picket" and bearing a symbol "AFL-CIO."
It was stipulated in the present proceeding that the picketing has been continuous
from August 13, 1956, up to the date of the hearing herein, December 12, 1957, and
that until about December 1, 1957, there had been two pickets stationed at each of
the two entrances to the store used by the public and employees, but that after ap-
proximately December 1, 1957, the picketing had consisted of 1 picket at each of the
2 entrances to the store.
7 General Counsel's Exhibit No. 7 (b).
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to their patrol, the pickets distributed handbills and leaflets to customers
and employees approaching the store, and to the public passing on the street. These
were introduced into evidence.8
One of the handbills handed out by the pickets was entitled, "Why not shop at
FAIR union stores." This pamphlet states in part that "LANE BRYANT does not
maintain AFL union conditions." It then explains why the union thinks nonunion
conditions are bad. It also asks why not shop at "fair" union stores, and then gives
a list of so-called "fair" San Francisco stores. These were stores with which the
Union had a contract.
A second handbill is entitled, "IS THIS SAN FRANCISCO?" It charges that
(1) Lane Bryant fired an employee merely because she expressed an opinion in favor
of the union; (2) used store officials and called police in an effort to stop union
representatives from talking to employees; and (3) that the store was the place where
a picket was manhandled and the picket's camera smashed.
It also says:
THAT'S LANE BRYANT, who refuses to maintain AFL-CIO union con-
ditions, who refuses to hire Union clerks.
And that's why LANE BRYANT has been declared unfair-and why we
urge you to shop at a FAIR UNION STORE.
This pamphlet also says:
While virtually all department, specialty and variety stores in San Francisco
are under union agreement, LANE BRYANT alone refuses to meet the estab-
lished standards of wages and working conditions.
A third handbill is entitled, "Do San Francisco Shoppers Approve This Attitude?"
It reads in part:
Virtually every department, specialty and variety store in San Francisco
operate under union conditions-except LANE BRYANT!
San Francisco's finest stores, of almost every size and kind, employ union
members to serve you, maintain fair, union wages and conditions-except
LANE BRYANT!
San Francisco stores deal with their employees through their unions and
collective bargaining=except LANE BRYANT!
-On the other hand, LANE BRYANT-almost alone-refuses to maintain
AFL-CIO union conditions, refuses to hire union clerks.
-LANE BRYANT fired an employee merely because she expressed an
opinion in favor of the union, . . . used store officials and called police in an
effort to stop union representatives from even talking to their employees .. .
a picket was manhandled, her camera smashed.
That's why we say LANE BRYANT is unfair- . .
A fourth handbill is entitled, "Who Decides?" Its message, in part, is as follows:
Who decides the wages and working conditions in San Francisco's fine stores?
*In the overwhelming majority of stores, the wages and working con-
ditions are decided by collective bargaining between the employers and
the union representing their employees.
*But in LANE BRYANT, they are decided in the East-without con-
sulting local employees, without giving employees any kind of voice or vote.
LANE BRYANT, virtually alone among San Francisco retail stores,
refuses to meet AFL-CIO union conditions, refuses to employ union clerks.
LANE BRYANT has been declared unfair because it refuses to accept the
established San Francisco way of doing things, the accepted San Francisco
standards. Instead, it imposes its own conditions, sets its own standards.
In his testimony in the representation proceeding Vetterlein also testified to the
purpose of the picketing. On direct examination he testified as follows: 9
Well, the purpose of the picketing has been to get the people to join the union.
It's also to notify the public that the stores does not maintain these conditions
we have established in San Francisco and to ask them to shop at union stores
and to buy from union clerks, to give the business in the city to decent, fair-
minded employers who are willing to maintain wages and conditions. -
8 In the instant proceeding these handbills and pamphlets are General Counsel's
Exhibits Nos. 7-E, 7-F, 7-G, and 7-H. In the same sequence, they were Petitioner's
Exhibits Nos. 4, 5, 6, and 7 In the representation case.
9 Transcript, representation proceeding, page 42. '
DEPARTMENT STORE EMPLOYEES UNION 697
On cross-examination he testified as follows: io
Q. Does the union want the store to change these non-union conditions that
are in effect-that you allege are in effect, I should say?
A. Does the union want us to change-well, obviously the union wants
them to.
Q. Your picket line was established on or about August 13, 1956, was it not?
A. The day the store opened, the morning the store opened.
Q. And at that time what was your purpose in establishing the picket line?
A. Same purpose it is today, to advertise to the public and the employees,
to advertise to the employees requesting that they join the union, to advertise to
the public they do not employ members of Local 1100 and maintain these
industry conditions.
The Decision and Direction of Election
Upon all the evidence adduced at the hearing in the representation case, the
Board on August 26, 1957, issued its Decision and Direction of Election.
Its decision reads in part as follows:
The Employer seeks a determination of representatives among the employees
at its San Francisco store. The Unions contend that no question concerning
representation exists because they do not claim to represent these employees.
The San Francisco store opened on August 13, 1956. During the year preceding
its opening the Unions engaged in correspondence with the Employer which
appears to have been designed to gain recognition from the Employer. On
August 8, 1956, the Unions and Employer met, and there is a conflict in the
record as to whether a demand for recognition was made at that time. In any
event, at the close of the meeting and immediately thereafter by letter the
Unions unequivocally disclaimed any interest in recognition, and stated that
any future action including picketing would be solely for organizational pur-
poses. Since the store opened, the Unions have engaged in picketing which
they admit has been for the twofold purpose of persuading employees to join
the Unions and to persuade the public not to patronize the Employer because it
does not maintain union wages and conditions. These purposes particularly
the latter, have been made evident by signs and handbills. Such picketing
is inconsistent with the Unions' disclaimers as it constitutes an attempt to secure
by picketing conditions and concessions normally obtained as a result of col-
lective bargaining. Accordingly, the Unions' picketing is tantamount to a
present demand for recognition which renders ineffective the Unions' disclaimers.
Francis Plating Co., 109 NLRB 35.
The Election
On September 16, 1957, the Regional Director conducted an election among the
employees of the Company in the appropriate unit defined by the Board, with the
results noted previously, 3 votes for the Union, and 52 votes against the Union.
The Regional Office issued its usual certification on conduct of Board election to
the parties.
The Disclaimer of September 20, 1957
On this date, the Union, by Vetterlein, sent the following letter to the Company: ii
GENTLEMEN: -We are in receipt of the National Labor Relations Board's
"Certification on Conduct of Election," referring to an election apparently con-
ducted by the Board, with your cooperation, among employees of your San
Francisco store.
This development, which we had no interest in, will not affect our determina-
tion to proceed with peaceful picketing and boycott activities in connection
with your San Francisco operations. So that there may be no misapprehension
as to the objectives of these activities, please be advised that they are and will
be exclusively for the following purposes:
(1) Persuasion of the public not to patronize your San Francisco store,
but rather to take its patronage to firms which maintain for their employees
10 Transcript , representation proceeding, pages 69 , 70, 71.
11 General Counsel's Exhibit No. 8.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, hours and other employee benefits which we consider fair to such
employees:
(2) Persuasion of your employees to join our Union, so that they, too,
may enjoy through collective bargaining such fair wages, hours and other
employee benefits.
Our Union does not claim to represent a majority of your employees for col-
lective bargaining. Until such time as we do secure such representation, we
neither seek nor demand that you recognize, bargain with or execute any agree-
ment with our Union as the representative of any of your employees; and,
as noted above, none of the Unions activities are or will be directed to that end.
Yours very truly
Present Phase of Picketing
Despite the election, in which the employees had overwhelmingly rejected the
Union, and its latest disclaimer, the picketing at both entrances of the San Francisco
store was maintained. The only apparent change being that the pickets distributed
a revised version of a handbill, used immediately prior to the election. The revision,
deleted a reference to the pending election. This handbill reads as follows:
San Francisco has strong employee groups and strong employer groups and
a long tradition of industry-wide, city-wide contracts. As a result we have
labor peace, decent wage rates and fair working conditions. We want to keep
it that way.
- LANE BRYANT IS ATTEMPTING TO DESTROY THESE CONDI-
TIONS: They pay less than the union rate. For example: the shipping and
receiving clerk is labeled an "executive" and paid $80.00 a week; the union
rate is $91.80. The girls in the stock room are paid $60.69, while the union
rate is $68.40. Lane Bryant's welfare benefits are definitely inferior to those
provided under union contract.
Before Lane Bryant opened its San Francisco store , the union asked for
the right to organize the employees and that management remain neutral.
Management replied emphatically that it would fight union in every way.
When Lane Bryant learned an emplyee was a union member or expressed a
pro-union sentiment , the employee was fired.
Lane Bryant could have joined the San Francisco Retailers' Council, which
would have guaranteed the establishment of fair San Francisco working con-
ditions without requiring so much as one employee to join the union , making
it incumbent upon the union to sell the idea of union membership to the em-
ployee. A union representative going into the store to tell the employees about
the benefits of a union contract, was physically detained by a store executive
who demanded she open her purse to show him whether she had any signed
applications. When she refused the executive called the police. The police
wisely refused to interfere.
THE SOLE REASON FOR THE PICKET LINE IS TO TELL THE PUB-
LIC THAT LANE BRYANT IS NON-UNION.
DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1100.
The above narrative is not a complete recital of the evidence, but is a summary
of the essential elements , of the controversy.
Concluding Findings
Upon this evidence the General Counsel claims that the Union has violated Sec-
tion 8 (b) (1) (A) of the Act by three types of conduct; by (a) its picketing;
(b) its appeals to the Company's customers not to do business with the Company;
and (c) its placing of the Company on its unfair list. The Union, however, con-
tends that its conduct was for organizational and advertising purposes, and cannot
constitute a violation of the Act.
Certain findings are basic to the controversy. It is undisputed, and I find, that
at no time did the Union represent more than 3 employees in the unit of employees,
numbering approximately 39 on the day the store opened, and numbering exactly
55 on the day of the election.
It is also undisputed, and I find, that the,Union, (a) picketed the premises of the
Company; (b) made appeals to the Company's customers not to do business with
the Company; and (c) placed the Company's name on its "unfair" list.
With these fundamentals established we may approach the main issue-what
was the object of this union activity? I can find in this record no evidence to sup-
port the Union's contention that its activities were peaceful persuasion directed
DEPARTMENT STORE EMPLOYEES UNION 699
to the employees for the purpose of obtaining their voluntary membership in the
Union. A short review of the facts demonstrates that the Union had scant regard
for the rights and desires of the employees at any time. Before employees were
hired by the Company, the Union initiated correspondence directed toward obtain-
ing from the Company recognition, and a contract, covering the employees not
yet hired. Of course, if the Company had recognized the Union, and executed
a contract with it, thereby foisting the Union on the employees subsequently hired,
both the Union and the Company would have been guilty of an unfair labor prac-
tice. That conduct of the Union is evidence of its purpose-to impose itself on the
employees, with the aid of the Company, without regard to the employees' rights
or desires. Of course, this conduct could not be peaceful persuasion of employees
not yet hired. At the conference on August 6, 1956, 5 days prior to the opening
of the store, the Union again requested the Company to recognize it and to sign
a contract. The Company at this point replied, in accordance with the law, that
it would be happy to recognize and bargain with the Union, if the Union estab-
lished that it represented a majority of the Company's employees. Upon being
questioned, the union representatives admitted that the union adherents in the
unit of 39 employees numbered only "4 or 5." However, despite its minority
status, the union representatives persisted. They pressed the Company for two
further concessions, both of which envisaged the Company's assistance in enrolling
the employees in the Union. The Union requested that union representatives be
present at hiring interviews in the future, and when that was refused, the union
representatives requested that the Company allow union organizers to enter the
store, and talk to employees of the Company' during working hours.
When these requests were refused, the union representatives talked privately, and
then told the company representatives that they had a choice, to go along with the
union, or "they could do it the hard way."
I do not credit Vetterlein's'explanation of the use of this latter phrase. In the
context, I deem it to be a threat to the Company, that the Union would cause it
economic harm and damage because of the Company's refusal to accede to the
Union's illegal demands, and the Company's insistence that the rights of its em-
ployees, to freely choose a bargaining representative of their own, be respected.
Upon all the evidence, I find that at that point in the controversy the Union
resorted to sham and pretext to give its illegal purpose a semblance of legality-
it fulsomely disclaimed that it sought recognition from the Company, or a con-
tract, and embarked on its campaign of picketing, handbilling, and boycotting.
That the purpose of the Union had not changed is evident from the manner in
which those activities were conducted. For approximately 2 weeks, the pickets
wore placards reading, "Employees-Join the union" etc., but these placards were
soon abandoned, in favor of the handbills, every one of which was addressed to the
public. I deem it significant that every handbill in this case has the recurrent
theme, "Lane Bryant does not maintain union conditions, Lane Bryant is Unfair,
Patronize Fair Union stores." Of course, the "fair" and "union" stores, were
those which had recognized the Union, and signed a contract with it. The con-
tinued repetition of the charge that Lane Bryant does not maintain union condi-
tions, demonstrates that the Union still sought in its pickeing, the same recog-
nition and union contract conditions which it previously sought from the Company,
and that despite its disclaimer, it had not abandoned or changed its purpose.
The Union began its picketing on August 13, 1956, and thereafter picketed the
Company continuously. On September 16, 1957, the Board conducted an election
by secret-ballot, and the employees, after over a year of picketing, rejected the Union
by a vote of 52 to 3. Thereafter, the Union wrote another letter of disclaimer,
stating that it would continue to picket for the purpose of persuading employees to
join the Union, and persuading the public not to patronize Lane Bryant. I cannot
believe or credit the statement in this letter, that the Union still sought to persuade
employees to voluntary membership in the Union by its picketing activities. The
union representatives I deem to be rational men, living in a world of reality. I
cannot believe, that after a year of picketing, which was absolutely barren of new
memberships, they still believed that picketing for another period would produce
a different result. Contrary to the statement of the letter, I find that all the circum-
stances existing at that time should have led reasonable men to the conclusion
that the picketing and other activity of the Union had solidified the opposition of
the employees, and alienated them from the Union, irretrievably. In the light of
all the evidence, the conclusion is inescapable that after the election, the Union
continued to picket for one purpose, to inflict economic harm and damage on the
Company, and thereby compel Lane Bryant to recognize it, and sign a contract
with it , in utter disregard of the rights and expressed desires of the employees.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon all the evidence , I find that at all times the picketing and boycott activities
of the Union had for its purpose the forcing of the Company to extend exclusive
recognition to it, at a time when it represented far less than a majority of the
Company's employees . Recently in Curtis Brothers, Inc., and companion cases, the
Board held that such conduct was a violation of Section 8 (b) (1) (A). The con-
tentions , and arguments , here proposed by the Union were considered and rejected
by the Board in the cited cases.12
Upon all the evidence , I find that the Union has violated Section 8 (b) (1) (A)
of the Act as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III , above, occurring in connection
with the activities of the Company described in section I, above, have a close, inti-
mate , 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
Having found that the conduct of the Union constitutes a violation of Section 8
(b) (1) (A) of the Act, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Department Store Employees Union, Local 1100, AFL-CIO, and Retail Shoe
& Textile Salesmen 's Union, Local 410, AFL-CIO, are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By picketing the premises of Lane Bryant , by making appeals to the Company's
customers not to do business with Lane Bryant, and by placing Lane Bryant's name
on their unfair lists, for the purpose of securing recognition as the statutory rep-
resentative of Lane Bryant's employees, when they did not represent a majority of
the employees of said Company, the Respondent Unions have violated Section
8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
"Curtis Brothers , Inc., 119 NLRB 232; Alloy Manufacturing Company, 119 NLRB 307;
Shepherd Machinery Company, 119 NLRB 320.
Ra-Rich Manufacturing Corporation and Aluminum Metal Al-
loys, Aircraft Components & Allied Trades , Local 142, Coopers
International Union , AFL-CIO. Case No. 2-CA-5182. August
28, 1958
ORDER REOPENING RECORD AND REMANDING
PROCEEDING
On April 21, 1958, the Board issued a Decision and Order 1 in the
above-entitled proceeding, finding that the Respondent committed
certain unfair labor practices , including the discharge of employees
for union activities.
On July 31 , 1958, the Respondent filed with the Board a motion to
reopen record in order "to permit Respondent to cross-examine all
witnesses after being furnished copies of their affidavits , that the
1120 NLRB 503.
121 NLRB No. 90.