F. F. Fields of N. Y., Inc.

National Labor Relations Board - Board Decisions

Oct 2, 1964

148 N.L.R.B. 1515 (N.L.R.B. 1964)

F. F. FIELDS OF,N.Y., INC. 1515
Upon the basis of the foregoing findings of fact , the Trial Examiner makes the
following: -
CONCLUSIONS OF 'LAw
1. Sheridan Creations, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District 65, Retail Wholesale & Department Store Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor, practices alleged in the
complaint.
RECOMMENDED ORDER
The Trial Examiner hereby recommends that the complaint be dismissed in its
entirety.
F. F. Fields of N.Y., Inc. and Amalgamated Meat Cutters,
Butcher Workmen and Affiliated Crafts of North America,
District Union Local No. 1, AFL-CIO and The Sunshine Club,
Party in Interest . Case No. 3-CA-2259. October 2, 1964
DECISION AND ORDER -
On July 21, 1964, Trial Examiner Lloyd Buchanan issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action,'as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Decision and a supporting brief.
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 [Members Leedom, Fanning, and
Brown].
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 Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications hereinafter
noted.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent F. F.
Fields of N.Y., Inc., Schenectady, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the Trial Exam-
iner's Recommended Order, with the following modifications :
148 NLRB No. 151.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Substitute for paragraph 1(b), the following:
(b) Recognizing The Sunshine Club or any successor thereof as the
representative of its employees at its Schenectady, New York, store,
for the purpose of dealing with the Company concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
terms or conditions of employment.
2. Substitute for the second indented paragraph of the Appendix
to the Trial Examiner's Decision the following :
WE WILL NOT recognize The Sunshine Club or any successor
thereof as the representative of our employees at our Schenec-
tady, New York, store for the purpose of dealing with us con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms or conditions of employment.
TRIAL EXAMINER'S DECISION
The complaint herein , as amended (issued March 13, 1964; charge filed January
22, 1964), alleges that the Company, F. F. Fields of N.Y., Inc.,' has violated Section
8(a) (2) of the National Labor Relations Act, as amended, 73 Stat. 519, by initiating,
forming, dominating, and interfering with the administration of The Sunshine Club;
and Section 8 (a) (1) of the Act by said alleged acts and by bargaining directly with
employees while a question of representation was pending , promising and granting
benefits, and interrogating employees concerning their union activities and desires.
The answer denies the allegations of violation.
A hearing was held before Trial Examiner Lloyd Buchanan at Schenectady, New
York, on April 27, 1964. At the close of the hearing , counsel were heard in oral
argument ; pursuant to leave granted to all parties , a brief has been filed by the
Company.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT ( WITH REASONS THEREFOR)
1. THE COMPANY 'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Company , a New York corporation , is engaged
in the operation of retail discount department stores, the one involved herein being
in Schenectady , New York; that at said store it annually sells and distributes products,
at retail , with a gross value of more than $500,000 per year, and receives goods
valued at more than $50,000 , which goods were transported to said store in interstate
commerce directly from States of the United States other than the State of New York;
and that it is engaged in commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
The most strenuously litigated issue in this case is whether the Club is a labor
organization within the meaning of the Act . Reflecting the stated purpose and
functions indicated in a company memorandum issued in May 1963 by Astor, at that
time director of personnel for the Company , to all store managers , Ward , who was
assistant to the director of personnel and is now supervisor of personnel activities
and audits , visited the Schenectady store on November 19, 1963, and on working
time addressed first the day shift employees and then the night shift employees. He
informed the employees that the Company had found that The Sunshine Club in a
new format had worked out very well at other stores: 2 he was there to reactivate the
local Club; and he would "take a hand" to set it up, as he indeed proceeded to do.
1 Correct name, as amended
2 There are some 42 Sunshine Clubs In the Company's stores. Our concern is with the
Club in the Schenectady store only.
F. F. FIELDS OF N.Y., INC. 1517
Ward further stated that employees who had complaints concerning conditions in
the store were to take them up with the improvement committee of the Club, the
Company's purpose being "to be sure that [it] had a real happy working group."
Neither Ward's activities nor the earlier memorandum indicate the limitation on
the Club and its improvement committee as a mere technique for communication
apart from working conditions, which counsel for the Company has since urged.
Ward in fact indicated the concern for employees ' "complaints" and "working condi-
tions" which had been declared in the memorandum to be the responsibility of the
improvement committee. His activities vis-a-vis the employees, further explained
by the document, are more significant' and persuasive than the self-serving memo-
randum issued a month after the commencement of this proceeding to the effect that
action theretofore taken by the improvement committee, and on which it had met
with the store manager, with respect to complaints and working conditions (payment
of sick leave and granting of Saturday off), were "absolutely and positively not in
the realm of The Sunshine Club."
Nor should we overlook an earlier meeting between the improvement committee
and the store manager concerning complaints of two employees who said that they
needed help in their department, and the manager's promise to look into it and
provide the help if that were warranted. In fact, Ward anticipated the finding here
in his remark at one of the meetings of employees on November 19 that the improve-
ment committee would take the place of a shop steward or mediator between the
employees and the Company. As if this were not enough, the earlier memorandum
indicates that the improvement committee was to assist the Company in maintaining
discipline or good conduct among the employees' at work by imposing fines for
breaches of behavior.
As Ward testified, the Club controls the very existence of the improvement com-
mittee by the power of appointment, which resides in the Club's officers. Further
in this connection, the Club's monthly reports to the Company specifically include
the activity and discussion of the improvement committee.
While there were limitations on the scope of possible accomplishment, I find that
The Sunshine Club with its constituent (as indicated•by the Company) improvement
committee is a labor organization within the meaning of the Act.
If. THE UNFAIR LABOR PRACTICES
A. The alleged violation of Section 8(a)(2)
The Company correctly points out that the charge alleges violation of Section
8(a)(1) only, without mention of Section 8(a)(2); and it objects to inclusion and
consideration of the allegations of violation of the latter section.
All of the interference alleged in the complaint is within the scope of the charge.
Once those facts are before us, notice thereof having been given to the Company by
the charge, it is within the Board's judicial powers to grant all of the relief warranted
by such facts. This is a fair construction of the Board's decisions through the years,
and I rely on such decisions. In addition it may be noted that it has very recently
been held that the Board should permit amendment of the complaint under such
circumstances.3 To the extent that the court reversed the Board, I need not and do
not rely on such action; I do, as stated, rely on the Board's decisions.
As for the evidence concerning this violation, we have already noted Ward's
statements to the employees that he had come to reactivate The Sunshine Club and
would take a hand to set it up. The election of Club officers was held I week later.
The ballots were prepared in the Company's office; Ward "set up a voting," having
gotten two girls to ask the employees for nominations, and with two employees helped
count the ballots as he "wanted to make absolutely sure that it was a fair election."
Thereafter a list of the Club's two committees, the improvement committee and the
social committee, was prepared on company stationery and posted on the bulletin
board, as was a form notice, prepared by Ward, in which the improvement committee
members solicited employee complaints or, suggestions.
The Company's domination and indeed its initiation and sponsorship of The Sun-
shine Club and its improvement committee are so clear that beyond this- we need
no more than refer to the information -concerning the committee called for on the
Club's monthly report form which the Company prepared and issued. Perhaps not
realizing that the Club functions as and is a labor organization within the meaning of
the Act, the Company initiated and has dominated it. An attempt to disassociate the
3 The Frito Company v. N L R B., 330 F. 2d 458 (C.A. 9).
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Club from its improvement committee has not been made beyond a reference in the
Company's brief to "confusion" of the Club with its committee. But in anticipation
of such an attempt later, if it then be considered, the idea has been noted, supra, and
will be again in connection with the Remedy, infra. (Election of Rossi, a supervisor,
as an officer of the Club need not be analyzed 4) -
B. The alleged independent violation of Section 8(a)(1)
The Union filed a representation petition 5 on October 24, 1963. Pursuant to an
agreement on November 17 for a consent election, the election was conducted on
December 5, the tally being 38 against and 26 for the Union. Objections were there-
after filed and a report issued setting aside the election No second election has been
held. The interference alleged occurred while the election proceeding was pending.
It stands uncontradicted 6 that Astor on November 12 bargained directly with
employees, inquiring concerning the reasons for their seeking union representation
and thereafter promising to look into conditions which they mentioned. On or
about December 3 Astor informed the employees that the matters mentioned on
November 19 had been looked into and taken care of as the employees had requested,
or would be taken care of. Here, while the election proceeding was pending, were
unlawful promises and grants of benefit as alleged in connection with overtime pay,
permitting cash purchases, and refurbishing of the ladies' lounge. Whether similar
statements by Humes, the store manager, made after the filing of objections to the
election in which the Union had failed to gain a majority but before the report on
objections, and his subsequent filing (not alleged) of a report thereon constituted
additional although similar violations need not now be determined.
On November 19 Ward asked employee Thomas whether he had signed a union
card. If this was in banter, it was nevertheless violative in the context of the Com-
pany's indicated opposition to the Union and the other violations found. At the
same time Ward informed the employees that the Company had in process an insur-
ance and pension plan for them. If this latter was not an outright or definite promise,
it sufficiently indicated benefit to the employees to constitute interference with their
lawful concerted activities.7 Whatever Ward's reluctance to discuss the Union at
one of the meetings with the employees on that day, his interference, like Astor's,
is clear.
I have not "overlooked" various remarks testified to because, one can only guess,
they were deemed violative although not alleged; or the testimony that on November
19 Ward asked why they "didn't have [their] own little union to iron out [their]
problems." Whether or not this question by Ward was embraced in the General
Counsel's amendment to allege interrogation, it is part of and merged in the sponsor-
ship violation found, supra.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
IV. THE REMEDY
Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by bargaining directly with employees and
promising and granting benefits while a question concerning representation was
pending, and by interrogation concerning union membership, interfered with, re-
strained, and coerced its employees in violation of Section 8(a)(1) of the Act. I
shall therefore recommend that the Company cease and desist therefrom and from,
any like or related conduct.
4Cf National Gypsum Company, 139 NLRB 916; Banner Yam n Dyeing Corporation,.
139 NLRB 1018, Jos Schlstz Brewing Company, 139 NLRB 1466
r Case No 3-RC-3274
6 Although at the hearing, Astor was not called to testify.
7 N L R B. v. Exchange Parts Company, 375 U.S. 405
F. F. FIELDS OF N.Y., INC. 1519
It has been further found that the Company, by sponsoring, promoting, and con-
trolling the organization and procedure of The Sunshine Club and its improvement
committee, dominated and interfered with the formation and administration of The
Sunshine Club in violation of Section 8(a)(2),ofthe Act. I shall therefore recom-
mend that the Company cease and desist therefrom and from any like or related
conduct. In the absence of evidence that the Club at the Schenectady store has
been freely selected by the employees as their collective-bargaining representative,8
I shall further recommend that the Company withdraw and withhold recognition from
the Club and completely disestablish it as the representative of any employees for
the purpose of dealing with the Company concerning grievances, labor disputes,
wages, rates of pay, or hours or conditions of employment.
Whether the Company's desire to use the name and setup of The Sunshine Club,
which it maintains elsewhere (without violation alleged or found, the recommendation
herein being limited to the Schenectady store) can be satisfied may depend on dis-
establishment as here recommended and, conceivably after the effects of the violations
found have been dissipated, on the formation of a new Club without unlawful activity.
We cannot at this time pass judgment on any new organization, its timing, and its
actual scope. The findings made indicate that I do not, despite the urging by counsel
for the Company and my full sympathy for his position, regard the Club as a mere
means of lawful communication, and its improvement committee as a mere social
portion within that alleged and limited function. Nor can we separate the Club from
the violation in connection with its Committee: not only is the latter the-more im-
portant of the Club's two committees, but the Club and the Improvement Committee
were simultaneously reactivated. Neither functioned nor were they intended to
function without the other, as the procedure outlined in the Company's memorandum
to the various store managers indicates. We recall also that the members of the
Committee were not elected by the employees but were appointed by the Club's
officers; and that reports of meetings between the Improvement Committee and the
store manager were filed with Ward, the Company's representative, as part of the
monthly reports by the Club's president, who signed them.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Amalgamated Meat Cutters, Butcher Workmen and Affiliated Crafts of North
America, District Union Local No. 1, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. The Sunshine Club is a labor organization within the meaning of Section 2(5)
of the Act.
3. By sponsoring, promoting, and controlling the organization and procedure of
The Sunshine Club, thereby dominating and interfering with its formation and ad-
ministration, the Company has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (2) of the Act.
• 4. By such domination and interference, and by bargaining directly with employees,
promising and granting benefits, and interrogation, thereby interfering with, re-
straining , and coercing employees in the rights guaranteed in Section 7 of the Act,
the Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
5. The aforesaid labor practices are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Company, F. F. Fields of N. Y.,
Inc., Schenectady, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Sponsoring, promoting, or controlling the organization or procedure of the
Sunshine Club or any other labor organization of its employees, or otherwise domi-
nating or interfering with the formation or administration of, or contributing support
to a labor organization:
(b) Recognizing The Sunshine Club as a labor organization, or recognizing any
labor organization as the representative of its employees for the purpose of dealing
with the Company concerning grievances, labor disputes, wages, rates of pay, hours
8 Cf. M. Esksn & Son, 135 NLRB 666, 671; Signal Oil and Gas Company, 131 NLRB 1427.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment, or other terms or conditions of employment, unless and until such
labor organization has been duly certified by the National Labor Relations'Board as
the exclusive representative of such employees.
(c) Bargaining directly with employees or promising or granting benefits while a
question concerning representation is pending, or interrogating employees concern-
ing union membership.
(d) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is necessary to effectuate the poli-
cies of the Act:
(a) Withdraw and withhold recognition from The Sunshine Club in its Schenec-
tady, New York, store and completely disestablish it as the representative of its
employees in said store.
(b) Post in its store in Schenectady, New York, copies of the attached notice
marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director
for Region 3, shall after being duly signed by Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained by it for a
period of '60 days thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 3, in writing, within 20 days from
the receipt of this Decision, what steps have been taken to comply herewith.10
9In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of the United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci-
sion and Order."
10 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
`Pursuant to the Recommended Order 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 our employees that:
WE-WILL NOT dominate, interfere with, or contribute support to The Sunshine
Club or any other labor organization of our employees.
WE WILL NOT recognize The Sunshine Club as a labor organization, nor will
we recognize any other labor organization as the representative of our employees
for the purpose of dealing with us concerning grievances, labor disputes, wages,
rates of pay; hours of employment, or other terms or conditions of employment,
unless and until such organization has been duly certified by the National Labor
Relations Board as the exclusive representative of our employees.
WE WILL NOT bargain directly with our employees or promise or grant benefits
while a question concerning representation is pending, or interrogate employees
concerning union membership. -
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed in Section 7 of the Act.
WE HEREBY disestablish The Sunshine Club as the representative of any of
the employees at our Schnectady, New York, store. .'
F. F. FIELDS OF N.Yc, INC.,
Employer.
Dated------------------= By---------------- - --- ---
(Representative , ------ (Title) -----
This notice must remain,posted for 60 consecutive days from the date'of posting,
and must-not be altered, defaced, or covered by any other material. '
CONSOLIDATED AMERICAN SERVICES, INC. 1521
Employees may communicate directly with the Board's Regional Office, Fourth
Floor, the 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
TL 6-1782, if they have any questions concerning this notice or compliance with
its provisions.
Consolidated American Services , Inc. and Fairbanks Joint Craft
Council. Case No. 19-CA-2698. October 5, 1964
DECISION AND ORDER
On March 19, 1964, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modification.
We agree with the Trial Examiner that Respondent's refusal to
bargain with the Union on and after August 9, 1963, violated Section
8(a) (5) and (1) of the Act. In reaching this conclusion however,
we rely upon the rationale as set forth in the Board 's decision in
Maintenance, Incorporated, 148 NLRB 1299.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that Consolidated Ameri-
can Services, Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order.
MEMBER LEEDOM, concurring :
For the reasons stated in my concurring opinion in Maintenance
Incorporated, 148 NLRB 1299, I agreed with the majority that
Respondent's refusal to bargain with the Union on and after August
9, 1963, violated Section 8(a) (5) of the Act.
148 NLRB No. 149.
760-577-65-vol. 148-97