Famous-Barr Co.

National Labor Relations Board - Board Decisions

Dec 17, 1943

53 N.L.R.B. 1366 (N.L.R.B. 1943)

In the Matter of MAY DEPARTMENT STORES COMPANY DOING BUSINESS
AS FAMOUS-BARB COMPANY and ST. Louis JOINT COUNCIL, UNITED
RETAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES or AMERICA,
CIO
0 Case No . 14-C-872.-Decided December 17, 19.43
DECISION
AND
ORDER
On October 28, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist from the unfair labor prac-
tices found and take certain affirmative action, as set out in the copy
of the Intermediate Report attached hereto. Thereafter the-respond-
ent filed exceptions to the Intermediate Report and a supporting brief.
No request for oral argument before the Board at Washington, D. C.,
was made by any of the parties. The Board has considered the rulings
of the Trial Examiner at the hearing and finds that no prejudicial er-
rors were committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the respondent's brief and
exceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
11
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, May Department Stores Company,
doing business as Famous-Barr Company, St. Louis, Missouri, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with St. Louis Joint Council,
United Retail & Department Store Employees of America, affiliated
with the Congress of Industrial Organizations, as the exclusive repre-
sentative of all its employees at its St. Louis store engaged in the bush-
eling room, second floor, department 280, and in the busheling room,
basement, department 281, including regular extra employees in these
53 N. L. R. B., No. 250.
1366
MAY DEPARTMENT STORES COMPANY 1367
departments, but excluding the two foremen and all other employees
of the respondent;
(b) In Any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with St. Louis Joint Coun-
cil, United Retail & Department Store Employees of America, affili-
ated with the Congress of Industrial Organizations, as the exclusive
representative of all its employees at its St. Louis store engaged in
the busheling room, second floor, department 280, and in the bushel-
ing room, basement, department 281, including regular extra em-
ployees in these departments, but excluding the two foremen and all
other employees of the respondent, with respect to rates of pay, wages,
hours of employment, and other conditions of employment;
(b) Post immediately in conspicuous places at its St. Louis, Mis-
souri, store, and maintain for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; and (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten '(10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Charles K. Heckler , for the Board
Leans, Rice , Tucker . Allen & Chubb , by Mr. Milton H. Tucker and Mr. Robert
T. Burch, of St. Louis, Mo ., for the respondent.
Mr. Emanuel Boggs , of St. Louis , Mo, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by St. Louis Joint Council, United Retail,
Wholesale & Department Store Employees of America, CIO, herein called the
Union, the National Labor Relations Board, herein called the Board, by the
Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its
complaint dated September 23, 1943, against May Department Stores Company,
doing business as Famous-Barr Company, herein called the respondent, alleging
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint accompanied by notice of hearing were duly
served upon the respondent and the Union.
Concerning the unfair labor practices, the complaint alleged in substance :
(1) that on June 16, 1943, the Board in its Decision and Direction of Election in
Case No. R-5331,' found that all employees of the respondent at its St. Louis
store engaged in the busheling room, second floor, department 280, and in the
busheling room, basement, department 281, including regular extra employees
but excluding the two foremen and all other employees of the respondent,
constituted a unit appropriate for collective bargaining; (2) that on July 12,
1943, the Board in its Certification of Representatives in the same case, certified
the Union as the exclusive representative of all employees in the said unit for
the purposes of collective bargaining, and that the Union is still such representa-
tive; (3) that on and after July 8, 1943, although requested to bargain collectively
by the Union, the respondent has refused to do so; and (4) that by the foregoing
acts and conduct, and by, attempting to effectuate a unilateral wage increase and
by publishing this fact to its employees, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
In its duly filed answer and amended answer to the Board's complaint, the
respondent admitted its refusal to bargain with the Union as representative
of the unit which the Board found to be appropriate, and asserted by way of
affirmative defense that the Board erred in its finding as to the appropriateness
of the unit in question. It further denied that it had engaged in any of the
alleged unfair labor practices.
Pursuant to notice, a hearing was held on October 14, 1943, at St. Louis,
Missouri, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board, the respondent, and the Union were repre-
sented by counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. At the close of the hearing, the parties were
advised that they might argue orally before and file briefs with the undersigned.
Pursuant thereto, the attorney for the Board presented oral argument before,
and the respondent filed a brief with the undersigned.
'Upon the entire record of proceedings, including Case No. R-5331,2 the
undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The May Department Stores Company is a New York corporation owning and
operating department stores in several states. In St. Louis the respondent does
business under the trade name of Famous-Barr Company and, at times, Famous
and Barr Company. Only employees of the St. Louis store are involved in this
proceeding.
The respondent at its St. Louis store is engaged in purchasing, receiving,
processing, repairing, selling and distributing a general line of department store
3 Matter of May Department Stores Company, d/b/a Famous and Bdrr Company and St.
Louis Joint Council, United Retail, Wholesale & Department Store Employees of America,
CIO, 50 N. L. R. B. 669.
2 See footnote 1 supra. '
MAY DEPARTMENT STORES COMPANY 1369
goods and merchandise . In the course and conduct of its business and in the
operation of the St. Louis store , it causes and has continuously caused large
quantities of goods and merchandise to be purchased and transported in inter-
state commerce from and through States of the United States, other than the
State of Missouri , to its St. Louis store . During the calendar year of 1942, the
respondent purchased and transported approximately $27,000 ,000 worth of such
goods and merchandise , approximately 70 percent of which was purchased and
transported from points outside the State of Missouri to the St. Louis store.
The respondent causes and has continuously caused large quantities of such goods
and merchandise to be sold and transported in interstate commerce to, into and
through States other than the State of Missouri . During the calendar year of
1942, the respondent sold and transported such goods and merchandise in excess
of $27 ,000,000, of which approximately 12 percent was transported from the St.
Louis store to points outside the State of Missouri.
On the basis of the foregoing findings of fact, derived from a stipulation of
the parties , the undersigned finds that the respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
St. Louis Joint Council, United Retail, Wholesale & Department Store Em-
ployees of America is a labor organization affiliated with the Congress of In-
dustrial Organizations. The Joint Council represents in St. Louis various locals
of United Retail, Wholesale & Department Store Employees of America which
admit to,membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
On June 16, 1043, the Board issued its Decision and Direction of Election in
Case No. R-5331 (50 N. L. R. B. 669), in which it found that all employees of the
respondent at its St. Louis store engaged in the busheling room, second floor,
department 2501 and in the busheling room, basement, department 281, including
regular extra employees but excluding the two foremen and all other employees
of the respondent, constituted a unit appropriate for the purposes of collective
bargaining. On June 29, 1943, an election was held, pursuant to the said Direc-
tion of Election. On June 30, 1943, the Regional Director issued and served upon
the parties an Election Report with respect to the balloting. No objections to the
said Report or to the conduct of the ballot were filed by any of the parties. On
July 12, 1943, the Board in its Certification of Representatives, certified the Union
as the representative for the purposes of collective bargaining of the employees in
the unit hereinabove referred to.
The respondent contests the appropriateness of the unit, referred to above, and
hence the subsequent certification of the Union therefor. No additional evidence
to support the respondent's contention was introduced in the present proceeding.
Similarly, no evidence was introduced in the present proceeding to rebut the
presumption arising from the certification that the Union is still the representa-
tive of the majority of the employees of the respondent in the appropriate unit.
The undersigned finds that all employees of the respondent at the St. Louis
store engaged in the busheling room, second floor, department 280, and in the
busheling room, basement, department 281, including regular extra employees but
excluding the two foremen and all other employees of the company, constitute
and at all times material herein constituted a unit appropriate for the purposes
i
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining . The undersigned further finds that on and at all times
after July 12, 1943 , the Union was the duly designated bargaining representative
of a majority of the employees in the aforesaid appropriate unit, and that, pur
suant to the provisions of Section 9 (a) of the Act, the Union was on July 12, 1943,
and at all times thereafter has been, and is now the exclusive representative of
all employees in the aforesaid unit for the purposes of collective bargaining with
respect to rates of pay , wages, hours of employment , and other conditions of
employment.
2. The refusal to bargain
On July 8, 1943, the Union requested the respondent to bargain collectively
with respect to rates of pay, wages , hours of employment and other conditions
of employment , with the Union as the exclusive representative of all employees
in the appropriate unit. On July 19, 1943, the respondent , through its vice
president and general manager, Fred J. Salomon, advised the Union by letter
of its refusal to recognize the Union and to bargain with it as the representative
of its employees . The respondent in its July 19 letter stated, "we do not agree
that your organization represents a majority of the employees within an
appropriate unit, and we wish to preserve our full rights to question the recent
decision of the National Labor Relations Board on that subject as we may see
fit." It is clear from respondent 's admissions , and the undersigned finds, that
at all times since July 19 , 1943, the respondent has maintained its'position as
set forth in its July 19 letter.
The undersigned accordingly finds that the respondent on July 19, 1943, and
at all times thereafter , has refused to bargain collectively with the Union as the
exclusive representative of its employees in the appropriate unit, and has
thereby interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. Interference , restraint, and coercion
On August 30, 1943, the respondent made unilateral application to the National
War Labor Board for "approval of a voluntary wage or salary rate adjustment,"
affecting the wages or salaries of some 4,530 employees engaged in its St. Louis
operations , including employees of the unit represented by the Union, some 40
in number . In a letter attached to its application the respondent stated that
certain of its employees, being covered in collective bargaining agreements
between the respondent and certain labor organizations , were excluded from the
application . The letter further set forth the facts concerning the Union's cer-
tification as bargaining representafive , the respondent 's refusal to recognize or
bargain with it, and the respondent 's intention to contest the Union's certifica-
tion, wherefore the' respondent argued that the Union had no interest in the
application . The letter provided , however, that if the Union should object
to the inclusion in the application of employees for whom it had been certified
as bargaining representative , the application might "be considered as having
been amended so as to exclude those employees from the application." The
respondent , subsequent to the filing of its application , by speeches of its super-
intendent of employment , Griffith McCarthy , and its vice president and general
manager, Fred J. Salomon, and through its publication , Store Chat , published
to its employees , including employees of the unit in which the Union had been
certified as bargaining representative , an account of its unilateral efforts and
progress in obtaining approval of its proposed wage increases. 0
The Board and the courts have uniformly held that unilateral action by an
employer in the granting of a wage increase , where there is a duly constituted
MAY DEPARTMENT STORES COMPANY 1371
and existing bargaining representative of the employees affected, is in deroga-
tion of the union 's right to recognition and representation in such matters. It
logically follows that the respondent 's action in ignoring the Union while at-
tempting to win approval of its proposal for wage increases , and in publishing
the facts of its unilateral action to its employees , including employees repre-
sented by the Union , had the effect of depriving the Union of credit which nor-
mally would accrue to it, and of nullifying its efficacy as a bargaining agent.
The said action may, therefore , reasonably be said to have undermined the
Union among employees for whom it had been certified as bargaining representa-
tive, and to have discouraged employees generally in their union affiliation.
Were the respondent successful in obtaining approval of its proposed wage ad-
justments , under the circumstances of the war emergency , this might result in
the Union being foreclosed for an indefinite period from effective bargaining with
reference to the wages of employees for whom it had been certified as bargaining
representative . Nor could the respondent through unilateral action place the
Union in a position where it would be required to request the National War
Labor Board's deletion of employees it represented from respondent's ap-
plication , or assert its approval thereof, in order to maintain a semblance of
authority as bargaining representative . No justification for the respondent's
unilateral actions, set forth above , is found in its contesting of the appropri-
ateness of the unit and the Union 's certification therein, since it gains no immunity
for engaging in unfair labor practices until such time as ultimate adjudication
of the matter has been reached in the courts . "An order of the Board is final and
binding upon the parties thereto unless reversed upon appropriate judicial
review."'
The undersigned finds that , by its unilateral action in seeking approval of its
proposed wage adjustments , and by statements of its officers and its publication
Store Chat addressed to employees concerning said unilateral action, the re-
spondent interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent as set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
Since it has been found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in an appro-
priate unit, it will be recommended that the respondent, upon request, bargain
collectively with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
3 Matter of Bear Brand Hosiery Co . and International Brotherhood of Firemen & Otters,
Local 296 (AFL), 46 N. L R. B. 609.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS of LAW
1. St. Louis Joint Council, United Retail & Department Store Employees of
America, affiliated with the Congress of Industrial Organizations, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All employees of the respondent at its St. Louis store engaged in the bushel-
ing room, second floor, department 280, and in the busheling room, basement, de-
partment 281, including regular extra employees but excluding the two foremen
and all other employees of the respondent, constitute a unit appropriate for
collective bargaining, within the meaning of Section 9 (b) of the Act.
3. St. Louis Joint Council, United Retail & Department Store Employees of
America, affiliated with the Congress of Industrial Organizations, was on July
12, 1943, and at all times thereafter has been the exclusive representative of all
the employees in the aforesaid unit, for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
lectively with St. Louis Joint Council, United Retail & Department Store Em-
ployees of America, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of all its employees in the aforesaid appropriate
unit, the respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
May Department Stores Company , doing business as Famous -Barr Company,
and its officers , agents, successors and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with St. Louis Joint Council , United
Retail & Department Store Employees of America , affiliated with the Congress of
Industrial Organizations , as the exclusive representative of all its employees
at its St. Louis store engaged in the busheling room, second floor, department
280, and in the busheling room, basement , department 281, including regular
extra employees but excluding the two foremen and all other employees of the
respondent;
(b) In any other manner interfering with, restraining , and coercing its
employees in the exercise of the rights to self-organization, to form, join, or
assist labor organizations , to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , as guaranteed in Section
7 of the Act ;
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with St. Louis Joint Council, United
Retail & Department Store Employees of America , affiliated with the Congress
of Industrial Organizations , as the exclusive representative of all its employees
at its St. Louis store engaged in the busheling room, second floor, department
MAY DEPARTMENT STORES COMPANY 1373
280, and in the busheling room, basement, department 281, including regular
extra employees but excluding the two foremen and all other employees of
the respondent;
(b) Post immediately in conspicuous places at its St. Louis, Missouri, store
and maintain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 (a) and (b) of these recommendations; and (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a) of
these recommendations ;
(c) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Rochambeau Building,
Washington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support there-
of. As further provtded in said Section 33, should any party desire permission
to argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the date of the order transferring the case
to the Board.
WILLIAM E. SPENCER,
Trial Examiner.
Dated October 23, 1943
0
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