GEM International, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1962

137 N.L.R.B. 1343 (N.L.R.B. 1962)

GEM INTERNATIONAL, INC., ETC. 1343
I conclude and find that General Counsel has not proved by a preponderance of
the evidence the allegations of his complaint that Respondent violated Section
8(b) (4) (i ) and (ii ) ( B) of the Act. In view of my findings and conclusion, I
shall recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Highway Truck Drivers and Helpers , Local 107, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2(5) of the Act, and Sterling
Wire Products Company is engaged in commerce within the meaning of Section
2(6) of the Act.
2. Respondent has not engaged in conduct violative of Section 8(b) (4) (i) and
( ii) (B), of the Act as alleged in the complaint.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint herein be dismissed in its entirety.
GEM International , Inc. and its affiliates , GEM Stores, Inc.,
G.E.M. Southway, Inc. and GEM of St. Louis, Inc. and Local
770, Retail and Department Store Employees Union , Amalga-
mated Clothing Workers of America , AFL-CIO
Local 655, Retail Store Employees Union , Retail Clerks Inter-
national Association, AFL-CIO and Local 770, Retail and
Department Store Employees Union , Amalgamated Clothing
Workers of America, AFL-CIO. Cases Nos. 14-CA-2599 and
14-CB-976. July 17, 1962
0
DECISION AND ORDER
On March 20, 1962, Trial Examiner Lloyd R. Fraker issued an Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Charging Party filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
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 Inter-
mediate report, the exceptions and briefs, and the entire record in this
case. The Board finds merit in the exceptions and adopts only the
Trial Examiner's factual findings that are consistent with this De-
cision and Order.
137 NLRB No. 144.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts in the case are as follows: Respondent Employers, herein
called GEM, have operated at all material times closed-door member-
ship department stores, including the two in the St. Louis area which
are involved in this case.' These stores are hereinafter referred to as
Northway and Southway. Both stores were operated under a common
labor relations policy, under which, prior to August 1961, solicitation
was forbidden on store premises. The only exception to this rule was
for charitable organizations. In accordance with this policy, union
solicitation was denied to organizers of Respondent Union, hereinafter
referred to as the Union or Local 655. As a result of GEM's opposition
to the Union, including ejection of Organizer Valenti from the North-
way store premises, and GEM's opposition to a representation petition
the Union filed with the Board for a single Southway store unit be-
cause of its preference for a two-store unit, picketing ensued. There-
after, GEM filed unfair labor practice charges against the Union.
Because of the picketing and its effect on its business, GEM met
with the Union on or about August 11, 1961, and agreed to withdraw
its charges and to permit the Union to solicit memberships in the sell-
ing areas in its stores during working hours. In return, the Union
agreed to withdraw its picket line and its representation petition and
began to organize on a two-store unit basis. The Union's organizers,
including Valenti, immediately thereafter began to solicit GEM em-
ployees during working hours in selling areas. On or about August
30, 1961, Leonard Schwartz, a GEM official, addressed employees at
both stores. Attendance at the meetings was compulsory for all af-
fected employees and,they were held on store premises prior to working
time. The employees were paid for their attendance. The speeches
recounted GEM's prior opposition to the organizing efforts of the
Union, noted that a discussion between GEM and the Union had
"resolved to our satisfaction that it is now to the employees [sic] best
interest, as well as that of management that management would not
look unfavorably upon you if you now decided to sign a card with the
Local 655 Retail Clerks Union . . . [that] we appreciate very much
your loyalty but we would not look unkindly at this time if you chose
to appoint the Union as your bargaining agent. . . . When the ma-
jority of GEM personnel sign these cards, it then becomes established
that you are members of said union and recognize said union as your
legally appointed bargaining agent. . . . We are in business to serv-
ice customers, not to fight labor wars and as business judgment already
hurt [sic] We'd like to end this...."
Pursuant to a further announcement in the speeches, organizers for
the Union, who had been waiting outside the stores during the speeches,
were thereafter admitted and began soliciting the employees on the
1 The Trial Examiner 's finding that all the employers named in the complaint are in-
volved in the operation of the two stores is adopted in the absence of exceptions to such
a finding by the Respondent.
GEM INTERNATIONAL, INC., ETC. 1345
selling floors during their working hours. Soliciting continued in this
way during the next 2 days. On September 2, 1961, the Union re-
quested recognition as bargaining representative for the employees
at the two stores. Later that day GEM caused a check to be made of
authorization cards submitted by the Union and, after a third party
determined the Union possessed cards signed by a majority of em-
ployees in the 292-employee unit, recognition was immediately ac-
corded the Union. A contract, including maintenance-of-membership
and union-shop provisions, was executed on or about September 8,
1961. The Union thereafter was permitted to collect dues from mem-
bers on the premises of the stores. Approximately 258 employees
joined the Union between October 1961 and January 1962.
Meanwhile, on August 24, during the period when Local 655
organizers were freely soliciting employees inside the GEM store,
Raymond Merk, an organizer for the Charging Party, herein called
Local 770, was prevented by Norman Sherman, assistant manager of
the Northway store, from continuing to distribute organizing mate-
rial, containing a Local 770 authorization form, on the walk in front
of the Northway store. Sherman also refused Merk's request for
the names and addresses of the employees. The request was made
when Sherman informed Merk that he would have to solicit the em-
ployees at their homes. On August 26 Merk was able to solicit in the
Northway store without being observed by union organizers or by
Sherman. However, on August 30, after being observed by Valenti
and other union organizers, and after Merk had rejected their offer to
join up with them, Sherman arrived on the scene and ejected Merk
from the store. At the time, Merk explained to Sherman he was solicit-
ing authorization cards and offered to point out to Sherman the Local
655 organizers present in the store and soliciting employees. Sherman,
however, ejected Merk-allegedly because the GEM membership card
used by Merk to gain admittance to the store was borrowed.
On September 13 Merk inquired at the Northway store concerning
how he might obtain a membership card entitling him to access to the
sales floor of the Respondent's two stores. He was informed that his
employment with a labor union did not entitle him to a card under
the membership regulations then in effect.
In dismissing the General Counsel's complaint, the Trial Examiner
found that Merk's failure to request GEM permission to solicit its em-
ployees in the store precluded a finding that the right had been denied
Local 770 and, therefore, that there had been no disparate treatment
as between the two unions. We disagree. While it is true that
neither Merk nor other officials of Local 770 specifically requested
such permission, we find that, in the circumstances, a specific request
was not necessary to put Respondent on notice of Local 770's organiza-
649856-63-vol. 137-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional aims. Thus, Merk's presence in the Northway store and his
stated reason that he was soliciting on behalf of Local 770 certainly
was tantamount to notice, if not such a request, to the Respondent Em-
ployer that Local 770 sought organizational opportunities equal to
those then being enjoyed by Local 655. Moreover, it is at least con-
jectural that had a specific request been made, it would have been
futile. For Merk was ejected from the store on the grounds he did
not possess a GEM membership card. This occurred at the same time
that organizers for Respondent Union freely toured the store securing
employees' signatures. In the circumstances, we find that disparate
treatment during a period of competing organizational efforts in fact
existed, and that it was violative of Section 8(a) (2) of the Act.
Also, contrary to the Trial Examiner, we find that an analysis of
the entire record compels the conclusion that the majority status
claimed by Local 655 on September 2, 1961, was the result of the un-
lawful assistance furnished the Union by GEM on and after Au-
gust 24,1961. The evidence shows that as late as August 11 the Union
claimed to represent a majority of employees only in the GEM South-
way store. Subsequent to that date, and up to the date recognition
was first claimed and accorded, Local 655 had as many as four
organizers at the employers' stores on almost a daily basis. Despite
this whirlwind organizing campaign, when GEM Management Rep-
resentative Schwartz spoke to these employees on August 30 to assure
them that GEM had abandoned its expressed opposition to the Union,
he spoke in terms of ". . . When the majority of GEM personnel sign
these cards. . . ." (Emphasis supplied.) At the conclusion of his
address, which itself was an invitation to the employees "to end .. .
labor was. . . . ," Respondent Local 655 representatives waiting out-
side were permitted to enter and continue the solicitation. Only after
3 additional days of activity did the Union finally present its cards
and claim its majority status. In view of these factors, we find the
General Counsel has established, by a preponderance of the evidence,
that Local 655 did not represent an uncoerced majority of employees
at the time recognition was achieved.2
Thus we find, in agreement with the General Counsel, that, by
denying organizational rights to Local 770 which it had accorded to
Local 655, by encouraging its employees to sign authorization cards
in favor of Local 655, and by according recognition in the form of a
collective-bargaining agreement containing a union-security arrange-
ment to a union whose majority status was acquired as a result of the
above unlawful acts, GEM has assisted Local 655 in violation of Sec-
2 Dixie Bedding Manufacturing Company, 121 NLRB 189 , 194-195. It should also be
noted here that although Local 655, in its answer to the amended consolidated complaint,
states that ". . . since August 15, 1961 . . . [it] has represented a lawfully obtained
majority of the employees [at Northway and Southway], it presented no evidence in sup-
port of this affirmative defense in response to the General Counsel's prima facee case "
GEM INTERNATIONAL, INC., ETC. 1347
tion 8 (a) (2) of the Act,3 and has interfered with the rights of its em-
ployees in violation of Section 8 (a) (1).
We also find that by executing a contract containing a union-
security agreement with the unlawfully assisted Union, and by main-
taining and enforcing it, GEM has violated Section 8(a) (1) and (3)
of the Act; and that Respondent Local 655, by maintaining and en-
forcing said contract, violated Section 8(b) (1) (A) and (2) of the Act'
THE REMEDY
Having found that the Respondents have engaged in and are engag-
ing in certain unfair labor practices, we shall order that they cease
and desist therefrom and take certain affirmative action which we deem
necessary to effectuate the policies of the Act.
Based upon our finding that GEM has violated Section 8(a) (1)
and (2) of the Act by unlawfully denying Local 770 an opportunity to
solicit its employees on equal terms with Local 655 and by otherwise
unlawfully assisting Local 655 to obtain authorization cards from its
employees, we shall order that Respondent Employer cease and desist
from such activities and, further, that it shall withdraw and withhold
recognition from Local 655 unless and until that union shall have been
certified by the Board as the exclusive representative of the employees.5
We have found further that Local 655 obtained the majority status
which it asserted on September 2, 1961, only as a direct result of the
unlawful and coercive acts of the Respondent Employer, in which
it acquiesced and participated. Consequently, on September 8, 1961,
Local 655 did not represent an uncoerced majority of GEM employees
at the Northway and Southway stores and had no lawful right to
execute the union-security agreement and to collect the dues and fees,
the payment of which was made mandatory under the agreement as
enforced by the parties. We have concluded that the execution, main-
tenance, and enforcement of the agreement, under these circumstances,
by GEM and Local 655, constituted violations of Section 8 (a) (1) and
(3) and 8(b) (1) (A) and (2), respectively.
In order, therefore, fully to remedy the unfair labor practices found
herein, and to establish an atmosphere in which the employees may
exercise the right to select or reject a bargaining representative, we
deem it necessary, and do, order GEM and Local 655, jointly and
severally, to reimburse all employees, present and former, of GEM's
Northway and Southway stores for dues and fees paid by them to
Local 655, on and after September 8, 1961, pursuant to the unlawful
union-security agreement executed on that date and thereafter main-
3 Accurate Forming Corporation , 128 NLRB 653, 655, enfd. 288 F. 2d 818 (CA. 3) ;
General Holds and Plastics Corporation , 122 NLRB 182, 185.
A Accurate Forming Corporation, supra. Fiore Brothers Oil Co. , Inc., 137 NLRB 191.
s N L R B v District 50 United Hine Workers of America (Bowman Transportation,
Inc ), 355 U.S. 453, 459.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained and enforced.' We shall, of course, also order these Respond-
ents to cease maintaining and Enforcing the unlawful agreement.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board hereby makes the following:
CONCLUSIONS OF LAW
1. Respondents GEM International, Inc., and its affiliates, GEM
Stores, Inc., G.E.M. Southway, Inc., and GEM of St. Louis, Inc., are
employers within the meaning of Section 2(2) of the Act and are
engaged in commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
2. Local 655, Retail Store Employees Union, Retail Clerks Inter-
national Association, AFL-CIO, and Local 770, Retail and Depart-
ment Store Employees Union, Amalgamated Clothing Workers of
America, AFL-CIO, are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By rendering illegal support and other assistance to Local 655,
and by recognizing and entering into, maintaining, and giving effect
to an agreement with Local 655 which imposed unlawful discrimina-
tory conditions of employment at a time when said Local 655 was not
the freely chosen representative of the majority of Respondents'
employees , GEM International , Inc., and its above-named affiliates
have engaged in and are engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a) (1), (2 ), and (3) and
Section 2 ( 6) and (7 ) of the Act.
4. By securing recognition and a collective-bargaining agreement
containing illegal conditions of employment from Respondent Em-
ployers at a time when Local 655 was not the collective -bargaining
representative of an uncoerced majority of their employees and by
thereafter maintaining and enforcing the terms of such illegal agree-
ment, Local 655, Retail Store Employees Union, Retail Clerks Inter-
national Association , AFL-CIO, has coerced and intimidated said
employees and has caused Respondent Employer to discriminate
against them in violation of Section 8 (a) (3) of the Act and has thereby
violated Section 8(b) (1) (A) and (2) of the Act and Section 2(6)
and (7) of the Act.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondents GEM International, Inc., and its affiliates, GEM
Stores, Inc., G.E.M. Southway, Inc., and GEM of St. Louis, Inc., its
officers, agents , successors , and assigns , shall :
6 Vtryan6a Electra' and Power Company v. E.L R. B , 319 U . S. 533.
GEM INTERNATIONAL, INC., ETC. 1349
1. Cease and desist from :
(a) Assisting and contributing support to Local 655, Retail Store
Employees Union, Retail Clerks International Association, AFL-
CIO, or to any other labor organization.
(b) Recognizing Local 655 as the representative of any of its em-
ployees for the purpose of dealing with it concerning wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until such labor organization shall have been certified by the
Board as the exclusive representative of Respondents' employees.
(c) Giving effect to the collective-bargaining agreement entered
into on or about September 8, 1961, with Local 655, or to any exten-
sion, renewal, or modification thereof, or any other contract or agree-
ment with such labor organization which may now be in effect.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization including Local 770, Retail and
Department Store Employees Union, Amalgamated Clothing Workers
of America, AFL-CIO, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Local 655, Retail
Store Employees Union, Retail Clerks International Association,
AFL-CIO, as the exclusive representative of its employees unless and
until such labor organization shall have been certified by the Board
as such representative.
(b) Jointly and severally with Respondent Local 655 reimburse all
employees of its Northway and Southway stores, present and former,
for dues and fees paid by them to Respondent Local 655 on and after
September 8, 1961, in the manner and to the extent set forth in that
portion of this Decision and Order entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to determine the amounts of reim-
bursement due under the terms of this Order.
(d) Post at its Northway and Southway stores copies of the notice
attached hereto marked "Appendix A." 7 Copies of such notice, to
' 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."
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by an authorized representative of the
Respondent Employer, be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notice 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.
(e) Mail to the Regional Director for the Fourteenth Region signed
copies of the notice attached thereto marked "Appendix A" for post-
ing by Local 655 at its offices and meeting halls where notices to mem-
bers are customarily posted. Copies of said notice, to be furnished
by the Regional Director, shall, after being duly signed by the rep-
resentative of the Respondent Employer, be forthwith returned for
such posting.
(f) Post at the same places and under the same conditions as set
forth in (d) above, as soon as they are forwarded by the Regional
Director, copies of the notice marked "Appendix B."
(g) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
B. Respondent Union Local 655, Retail Store Employees Union,
Retail Clerks International Association AFL-CIO, its officers, agents,
representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Giving effect to the collective-bargaining agreement entered
into on or about September 8, 1961, with GEM International, Inc.
and its affiliates, GEM Stores, Inc., G.E.M. Southway, Inc. and GEM
of St. Louis, Inc., or any extension, renewal, or modification thereof.
(b) Causing GEM International, Inc. and its affiliates, GEM
Stores, Inc., G.E.M. Southway, Inc., and GEM of St. Louis, Inc., to
discriminate against their employees in violation of Section 8(a) (3),
of the Act.
(c) Acting as the exclusive bargaining representative of the em-
ployees of GEM International, Inc. and its affiliates, GEM Stores,
Inc., G.E.M. Southway, Inc., and GEM of St. Louis, Inc., for the
purpose of dealing with said companies concerning wages, rates of pay,
hours of employment, or other conditions of employment unless and
until said labor organization shall have been certified by the Board as
such exclusive representative.
(d) In any other manner restraining or coercing employees of Re-
spondent Employers in the exercise of the rights guaranteed them in
Section 7 of the Act, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
GEM INTERNATIONAL , INC., ETC. 1351
as a condition of employment as authorized by Section 8(a) (3) of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Jointly and severally with the Respondent Employers reim-
burse all employees of the Northway and Southway stores, present and
former, for dues and fees paid by them to Respondent Local 655 on
and after September 8, 1961, in the manner and to the extent set forth
in that portion of the Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the National
Labor Relations Board, or its agents, for examination and copying, all
records necessary to determine the amount of reimbursement due
under the terms of this Order.
(c) Post at its offices and meeting halls , copies of the notice attached
hereto marked "Appendix B." 8 Copies of said notice , to be furnished
by the Regional Director for the Fourteenth Region, shall, after being
duly signed by an authorized representative of Respondent Local 655,
be posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter , in conspicuous places, including
all places where notices to members are customarily posted. Reason-
able steps shall be taken to see that said notices are not altered, de-
faced, or covered by any other material.
(d) Mail to the Regional Director for the Fourteenth Region signed
copies of the notices attached hereto marked "Appendix B" for posting
by Respondent Company as provided herein. Copies of said notice,
to be furnished by the Regional Director , shall, after being duly signed
by representatives of Local 655 , be forthwith returned for such
posting.
(e) Post at the same places and under the same conditions as (d)
immediately above as soon as they are forwarded by the Regional
Director copies of Respondent Company's notice herein marked
"Appendix A."
(f) Notify said Regional Director , in writing , within 10 days from
the date of this Decision and Order, what steps Local 655 has taken
to comply herewith.
8 See footnote 7, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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 notify our employees that:
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give effect to the collective-bargaining agree-
ment entered into on or about September 8, 1961, with Local 655,
Retail Store Employees Union, Retail Clerks International Asso-
ciation, AFL-CIO, or to any extension, renewal, or modification
thereof.
WE WILL NOT assist or contribute support to Local 655, or any
other labor organization.
WE WILL NOT require as a condition of employment that employ-
ees become or remain members of the above-named labor
organization.
WE WILL withdraw and withhold recognition from Local 655,
or any successor, unless and until such labor organization shall
have been certified by the Board as the exclusive representative
of our employees.
WE WILL jointly and severally with Local 655 reimburse all
employees for dues, fees, and other assessments exacted from them
pursuant to the unlawful agreement entered into on or about
September 8, 1961.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization
including Local 770, Retail and Department Store Employees
Union, Amalgamated Clothing Workers of America, AFL-CIO,
to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of a labor organization, except to the
extent that such rights may be affected by an agreement conforming
to the provisions of Section 8 (a) (3) of the National Labor Relations
Act, as amended.
GEM INTERNATIONAL, INC. AND ITS ArFILI-
ATES, GEM STORES, INC., G.E.M. SOUTH-
WAY, INC., AND GEM OF ST. Louis, INC.,
Employer.
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.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis 3, Mis-
souri, Telephone Number, Main 1-8100, Extension 2142, if they have
any question concerning this notice or compliance with its provisions.
GEM INTERNATIONAL, INC., ETC.
APPENDIX B
1353
To ALL MEMBERS OF LOCAL 655, RETAIL STORE EMPLOYEES UNION,
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, AND TO
EMPLOYEES OF GEM INTERNATIONAL, INC., AND ITS AFFILIATES, AT
THE NORTHWAY AND SOUTHWAY STORES, ST. Louis, MISSOURI
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 notify our employees that:
WE WILL NOT cause GEM International, Inc. and its affiliates,
GEM Stores, Inc., G.E.M. Southway, Inc., and GEM of St.
Louis, Inc., to discriminate against their employees in violation of
Section 8(a) (3) of the National Labor Relations Act, as
amended.
WE WILL NOT give effect to the collective-bargaining agreement
entered into on or about September 8, 1961, with the above-named
employers, or to any extension, renewal, or modification thereof.
WE WILL NOT act as the exclusive bargaining representative of
any of the employees of the above-named employers unless and
until we have been certified by the Board as such representative.
WE WILL NOT in any other manner restrain or coerce the said
employees in the exercise of the rights guaranteed them in Section
7 of the Act, except to the extent that such rights may be lawfully
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized by Section
8(a) (3) of the Act, as amended.
WE WILL jointly and severally with the above-named Employ-
ers reimburse the employees of the Employers' Northway and
Southway stores for dues, fees, and other assessments exacted
from them on and after September 8, 1961, and remitted to us.
LOCAL 655, RETAIL STORE EMPLOYEES
UNION, RETAIL CLERKS INTERNA-
TIONAL 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.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis 3, Mis-
souri, Telephone Number, Main 1-8100, Extension 2142, if they have
any question concerning this notice or compliance with its provisions.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The Unfair Labor Practice Charges and the Complaint
The original charge in Case No. 14-CA-2599 was filed September 1, 1961, there-
after an amended charge and a second amended charge were filed on December 12,
1961, and January 5, 1962, respectively. The original complaint in this case was
issued November 3, 1961; GEM of St. Louis, Inc., was the only Respondent named
in that complaint.
The original charge in Case No. 14-CB-976 was filed on December,12, 1961; there-
after, an amended charge was filed in that case on January 5, 1962.
On January 5, 1962, a consolidated complaint was issued in both cases, con-
^currently with the issuance of an order consolidating said cases.
Named as Respondents in the consolidated complaint were GEM International,
Inc., GEM Stores, Inc., G.E.M. Southway, Inc., GEM of St. Louis, Inc. (herein col-
lectively called the Respondent Employers and individually the Respondents GEM
Stores, Southway, and St. Louis, respectively), and Local 655, Retail Store Em-
ployees Union, Retail Clerks International Association, AFL-CIO, herein called the
Respondent Union.
Both of the original charges and all of the amended charges herein were filed
by Local 770, Retail and Department Store Employees Union, Amalgamated Cloth-
ing Workers of America, AFL-CIO, herein called the Charging Party.
The Hearing and the Briefs
These consolidated cases were heard by Trial Examiner Lloyd R. Fraker at St.
Louis, Missouri, on February 6 and 7, 1962. All parties were represented by counsel
and participated fully in the hearing. After the hearing all of the parties filed briefs
in support of their respective positions all of which have been helpful and have been
fully considered by me in arriving at my findings and conclusion herein.
The Pleadings and Stipulations
It is alleged in the consolidated complaint and admitted in the answers, which are
-in evidence as the General Counsel's Exhibits Nos. 1-W and 1-X,i that each of the
Respondent Employers is engaged in the operation of retail stores, that during the
past 12 months each of them had gross sales in excess of $500,000 and an inflow, in
interstate commerce, of goods and merchandise of a value in excess of $50,000
which were shipped to them directly from points outside of the States wherein their
retail business operations are conducted, or as to Respondent GEM only, that during
said period it transported or caused to be transported "goods and materials" of
a value in excess of $50,000 from one State to another, in the conduct of "its busi-
ness operations."
It is also alleged in said complaint and admitted in the answers that at all times
material to the issues in these cases each of the Respondent Employers is and has
been engaged in "commerce" as defined in Section 2(6) of the National Labor Rela-
tions Act., as amended, herein called the Act.
It is also alleged in said complaint and admitted in the answers that all of the
other Respondent Employers are subsidiaries of the Respondent GEM and are
operated under its control and supervision.
It is also alleged in said complaint and admitted in the answers that both
the Charging Party and the Respondent Union are "labor organizations" as defined
in Section 2(5) of the Act.
At the hearing the General Counsel introduced in evidence as his exhibit No. 2, a
written stipulation executed by all of the parties, in which they stipulated the pleaded
jurisdictional facts recited above and the status of all of the other Respondent
Employers as subsidiaries of Respondent GEM that they are controlled and super-
vised by it and that, at all times material to the issues in these cases, each and all
of the Respondent Employers are and were engaged in "commerce" as defined in
Section 2 (6) of the Act.
'The General Counsel's Exhibit No. 1-W is the joint answer of the Respondent Em-
ployers and General Counsel's Exhibit No. 1-X is the answer of the Respondent Union.
The apparent typographical error in paragraph 3 of the Respondent Employers' answer in
referring to "Paragraph II A, B, C, D and E of the Complaint" rather than to paragraphs
-numbered II A, B, C, D, and E thereof is of no consequence since the parties stipulated
the jurisdictional facts in General Counsel's Exhibit No. 2 which is in evidence.
GEM INTERNATIONAL, INC., ETC. 1355
At the hearing, due to the illness of one Roland E. Maurath, the parties also
stipulated, on the record Jr. 10 and 11),2 that if called he would testify as set forth
in a written affidavit, General Counsel's Exhibit No. 3, and said affidavit was received
in evidence as the testimony of the said Maurath.
The Unfair Labor Practices Alleged
The Respondent Employers are jointly charged in said complaint with violations of
Section 8(a)(1) and (2) of the Act since on or about March 2, 1961, and with
violations of Section 8(a) (1), (2), and (3) thereof since on or about September 2,
1961, by their alleged conduct in:
1. Refusing to permit the Charging Party to solicit memberships among employees
in the so-called Northway store, operated by the Respondent stores, at a time
when they were inviting and permitting the Respondent Union to solicit said em-
ployees in said store.
2. Urging and soliciting said employees to sign "authorization cards for the Re-
spondent Union" and/or to join that Union.
3. Recognizing the Respondent Union, on or about September 2, 1961, as the
exclusive collective-bargaining representative "in an overall unit of employees at
the Northway and Southway Stores." 3
4. Executing a collective-bargaining contract, through the Respondent St. Louis,
with the Respondent Union, covering their employees at both of said stores, which
contract contained a union-security provision, and in maintaining and enforcing
the same .4
The Respondent Union is charged in said complaint with violations of Section
8(b)(1)(A) and (2) of the Act, since on or about September 2, 1961, by virtue of
the fact that the Respondent Employers recognized it on or about that date, the
fact that it and the Respondent Employers executed the contract referred to above,
on or about September 8, 1961, and the alleged fact that the parties thereto have
enforced and maintained said contract at all times since its effective date, on the
basis that at all of said times the Respondent Union did not represent an uncoerced
majority of the employees covered by said contract.
All of the Respondents have denied in their answer herein the unfair labor practices
with which they are so charged, although they admit recognition of the Respondent
Union by the Respondent Employers and the execution by them of said contract,
all as alleged in said complaint.
The Issues To Be Resolved
As I view these cases the main issues to be resolved are:
1. Did the Respondent Employers discriminate against the Charging Party by
refusing it opportunities to organize the employees involved, equal to those which
it accorded to the Respondent Union?
2. Did the Respondent Union represent an uncoerced majority of said employees
at the time when it was recognized by the Respondent Employers and at the time
when the contract was executed by said parties?
Ancillary to the issues posed above are the following:
1. Was any adequate demand ever made by the Charging Party that the Re-
spondent Employers grant it the same privileges and opportunities to organize their
employees which were accorded by them to the Respondent Union?
2. Is there any evidence to indicate that the Respondent Union did not represent
an uncoerced majority of said employees at the time when said contract was
executed?
2 Transcript references herein are to the numbered pages of the "Official Report of Pro-
ceedings" in these cases
The so-called Southway store is operated by the Respondent Southway
'The contract, which is in evidence as General Counsel's Exhibit No. 15 and contains
provisions for a union shop, is ambiguous as to its effective date since it contains a recita-
tion on page 1 thereof that it was entered into "on this 9th day of September 1961" and
further recitations on page 17 thereof that it shall be effective from "September 8, 1961"
and was "Dated this 8th day of September, 1961 " Since, however, the evidence that no
employee had been required to join the Respondent Union up to the dates of the hearing,
Is not disputed and the General Counsel contends that the execution and maintenance
thereof is a violation of the Act only because it was executed at a time when said Union
did not represent an "uncoerced majority" of the employees covered, the ambiguity in
question could not affect the merits of these cases. In this connection see the Board's
recent decision in a representation case, modifying its contract-bar doctrine, in Paragon
Products Corporation, 134 NLRB 662
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Did the Respondent Employers urge and or solicit their employees to sign
authorization cards for or to join the Respondent Union?
The Evidence in Support of the Alleged Violations
The only evidence offered by the General Counsel in support of the allegations
of the complaint that the Respondent Employers assisted the Respondent Union
in violation of Section 8(a)(2) and ( 1) of the Act was the evidence that on and
after about August 11 , 1961 , said Employers permitted the Respondent Union to
solicit their employees openly at all times and places including selling areas and
working hours ; that on August 30, 1961 , a store manager delivered a mandatory
captive audience speech on its time to the assembled employees at one of the two
stores involved and delivered the same speech to a similar audience of the em-
ployees at the other store on either August 29 , 30, or 31, 1961 ; that on or about
September 2, 1961 , said Employers recognized the Respondent Union as the ex-
clusive collective -bargaining representative of said employees ; that on or about
September 8, 1961 , they executed a union-shop contract with said Union covering
said employees ; that on August 24, 1961 , and again on August 30, 1961 , the assistant
manager of one of said stores evicted a representative of the Charging Party, who
was then and there trying to organize said employees for the Charging Party, from
store premises ; that on or about September 8, 1961 , a department manager in one
of the stores told the assembled employees of his department that they would have
to join the Respondent Union to retain their jobs ; and that thereafter he and his
assistant made the same statements to one of said employees who had attended
said departmental meeting.
In the absence of physical conditions such as obtained in the LeTourneau case
(N.L.R.B . v. LeTourneau Company of Georgia, 324 U.S. 793 ), which were not
shown or contended to have been present in these cases, it is not a violation of the
Act for an employer to deny to nonemployee union representatives access to his
premises for organizational purposes . (N.L.R.B. v. Babcock & Wilcox Company,
351 U. S. 105 .) If, however , there are two or more unions competing in efforts to
organize the same employees the employer may not permit one of them to have
access to the premises for the purpose of soliciting said employees and deny such
privilege to its competitor or competitors . Absent a request for such privilege by
a union which contends that it has been denied such privilege , there can be no denial
thereof. (Essex Wire and Associated Machines, Inc., 107 NLRB 1153.)
In these cases the General Counsel 's witness Raymond Merk was the only rep-
resentative of the Charging Party who was shown to have made any attempt, at
any time , to organize the employees involved . On neither of the occasions when
he was ejected from the Respondent Employers ' premises did he ask for permission
to solicit the employees on said premises . On the second such occasion he merely
suggested that the Respondent Union 's representatives "should be asked to leave"
said premises . Assistant Store Manager Sherman ejected him on both occasions,
the first time because he was soliciting without permission and the second time
because he was in one of the stores on a "borrowed " card contrary to the Respondent
Employers ' uniformly enforced policy of not permitting anyone to enter or remain
in their stores without a valid nontransferable membership card . Sherman was not
shown to have been in charge of the store on either of such occasions and there is
no evidence in the record to show that he even knew the conditions under which the
Respondent Union had been granted permission to solicit employees on the Re-
spondent Employers' time and premises or that he had authority to do likewise.
In the absence of any evidence of a request it cannot be said that permission would
not have been granted to the Charging Party. Under such conditions I cannot find
that the Charging Party was denied such permission.
It is admitted in the answers herein that , on or about September 2, 1961, the
Respondent Employers recognized the Respondent Union as the exclusive collective-
bargaining representative of the theretofore unrepresented employees at both their
Northway and Southway stores and that , on or about September 8, 1961 , a union-
shop contract covering said employees was executed by the Respondent Employers
and the Respondent Union.
It is alleged in the complaint that the Respondent Union did not on either of
said dates represent an uncoerced majority of said employees. No evidence in
support of such allegations was adduced at the hearing other than the evidence of
open permissive solicitation by the Respondent Union, on the Respondent Em-
ployers' premises during the period from on or about August 11, 1961 , through
September 1, 1961 . On September 2, 1961 , the Respondent Union and the Re-
spondent Employers conducted a check of the authorization cards submitted by that
Union in support of its claim for recognition by said Employers as the exclusive
GEM INTERNATIONAL, INC., ETC. 1357
collective-bargaining representative of said employees . The check was made against
the payroll records and employee signature records of the Employers involved and
it disclosed that a majority of said employees had selected the Respondent Union to
represent them . (See General Counsel 's Exhibit No. 3.) There is no evidence in the
record to show the dates when any of the authorization cards used in the card
check were executed by the employees who signed them except that "all cards more
than four months old as well as any card signed by a person who was not listed as
an employee on that date" were excluded . See General Counsel 's Exhibit No. 3 and
the testimony of the Respondent Union 's representative , Valenti , that a "few"
authorization cards were signed on and after August 30 , 1961 . General Counsel's
Exhibit No . 12 throws no light on this subject since it covers only the period from
October 1961 through January 1962 . It could well be that all of the authorization
cards, which were counted in the card check for the Respondent Union, were dated
before August 24, 1961 . Certainly as to any such cards the General Counsel is not
contending that they could have been tainted by anything which took place on or
after that date . In any event the burden of proof is on the General Counsel to
prove that at the time of the recognition of the Respondent Union and of the
execution of the contract , it did not represent an "uncoerced majority" of the em-
ployees involved . This he has failed to do and I cannot , therefore , but find against
such contentions.
There is no evidence in these cases of any direct violation of Section 8(a) (1) of
the Act, prior to September 2, 1961, other than the alleged violations involved in
the captive audience speeches referred to above and no evidence of any direct viola-
tion of Section 8(b) (1) (A) thereof other than that which would be inherent in the
execution and maintenance of the contract mentioned above, if it was executed at
a time when the Respondent Union did not represent an "uncoerced majority" of
the employees involved . ( Bernhard-Altmann Texas Corporation , 122 NLRB 1289,
enfd . sub nom . International Ladies' Garment Workers' Union , AFL-CIO v.
N.L.R.B., 280 F. 2d 616 (C.A.D.C.), and affd. on cert. 366 U.S. 731.)
Any evaluation of the captive audience speeches , a copy of which is in evidence
as General Counsel 's Exhibit No. 4, must be made in the context of the settlement
of the strike against the Respondent Employers and the picketing of their premises
by the Respondent Union which settlement contemplated cessation of the strike
and picketing, the accessation by that Union to the Employers ' unit position, per-
mission to that Union to solicit the employees involved on the Employers ' premises
during working hours and the withdrawal of the pending unfair labor practice
charge against the Union and of its representation petition . Viewed against that
background and taking into consideration the fact that the speeches themselves
contained no threats of reprisals or promises of benefits , I concluded that they were
within the protection of Section 8 (c) of the Act.
The General Counsel , however , also contends that the speeches in question
constituted "Urging and soliciting employees" to sign authorization cards for and/or
to join the Respondent Union . As I read it (the same speech was made separately,
on different occasions , to two different groups of employees ), it has no such con-
notation but simply served to inform the employees that the parties involved were
no longer "at war," that the Employers had given permission to the Union to solicit
them at their work stations , and that they were free to sign authorization cards for
the Union if they desired to do so.
Since I have already found that the General Counsel has failed to establish the
invalidity of the contract , I cannot find that the Respondent Union violated Section
8(b) (1) (A ) of the Act by executing , maintaining, and/or enforcing it.
Since the alleged violations of Section 8(a)(3) of the Act are based on recogni-
tion of the Respondent Union , the execution of the contract with it , and the main-
tenance and enforcement thereof, and I have already found that the Respondent
Employers did not, by such conduct , violate either Section 8 (a)(1) or ( 2) of the
Act, I cannot find that such conduct violated Section 8 ( a)(3) thereof.
Since I have already found that the Respondent Union did not violate Section
8(b) (1) (A ) of the Act by executing , maintaining, and/or enforcing said contract,
there remains nothing on which to base a finding of violation of Section 8(b)(2)
thereof.
Since I have found that the General Counsel has failed to establish the invalidity
of the contract it is immaterial that on or about September 6, 1961 , or at some later
date the employee Marshall Marasco may have been required to join the Respondent
Union.
Contrary to the Charging Party's contention that the Respondent Union first re-
quested recognition on September 2, 1961 , there is no evidence in the record to
indicate that such a request was made on that or any other date . It is, however,
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonable to infer that the Respondents must have , on some date prior thereto„
agreed to abide the results of the card check conducted by them on that date.
In arriving at the findings and conclusions on which my recommendation herein
is based , I have carefully considered all of the evidence adduced at the hearing and
base my findings and recommendation on the entire record in these cases.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYERS
Since the allegations of the complaint , in these cases , on which the jurisdiction
of the Board is predicated , are admitted by the answers of the respective Respond-
ents and/or by the stipulation of all of the parties , I find that the Respondent
Employers are engaged at St. Louis, Missouri , and elsewhere in the operation of
retail department stores, that each of them has annual gross sales in excess of
$500,000 and an inflow, in interstate commerce , of goods and merchandise of a
value in excess of $50 ,000 which goods and merchandise are shipped to them di-
rectly from origins outside of the respective States wherein their retail stores are
located and that during the 12 months prior to January 5, 1962, the Respondent
Employer GEM International, Inc., in the conduct of its said business operations,
transported or caused to be transported from one State to another goods and ma-
terials of a value in excess of $50,000.
I find , therefore , that each of the Respondent Employers is engaged in "commerce"
and/or in business operations "affecting commerce" as those terms are defined in
Section 2 (6) and ( 7), respectively , of the Act and that it will effectuate the purposes
and policies of the Act to assert the Board 's jurisdiction in these cases over all of the
Respondents including the Respondent Union.
R. THE LABOR ORGANIZATIONS INVOLVED
The General Counsel alleged and all of the other parties to these cases admitted
and I find that the Charging Party and the Respondent Union herein are "labor
organizations" as that term is defined in Section 2 (5) of the Act.
CONCLUSIONS OF LAW
1. On the basis of the foregoing discussions and findings , I conclude that none
of the Respondent Employers has violated Section 8(a)(1), (2), and/or (3) of
the Act as alleged in the complaint herein.
2. On the same basis I conclude that the Respondent Union has not violated Sec-
tion 8 (b) (1) (A) and /or (2) of the Act as alleged in said complaint.
RECOMMENDED ORDER
1 therefore recommend that the complaint herein be dismissed in its entirety.
Pacific Tile and Porcelain Company and Theodore J. Theodoroff,
Petitioner and Local 487, United Brick and Clay Workers of
America, AFL-CIO. Case No. 21-RD-555. July 17, 1962
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Regional Director for the Twenty-first Region on June 27, 1961, an
election by secret ballot was conducted on July 21, 1961, under his
direction and supervision, among the employees in the appropriate
unit. Upon the conclusion of the balloting the parties were furnished
with a tally of ballots which showed that of approximately 275 eligible
voters, 17 cast valid ballots, of which 7 were for, and 10 against, the
Union, and 251 cast challenged ballots.
137 NLRB No. 169.