Gimbels-Schusters

National Labor Relations Board - Board Decisions

Jun 17, 1964

147 N.L.R.B. 500 (N.L.R.B. 1964)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gimbel Bros., Inc., and the G .& S Corp . d/b/a Gimbels-Schusters
and Local 444, Retail Clerks International Association, AFL-
CIO; Local 150 , Building Service Employees International
Union, AFL-CIO; and-Local -9, Office =Employees-'International
Union, AFL-CIO,.Joint-Petitioners . Cases Nos. 13-RC-89.3: and
13-CA--5455. June 17, 1964
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
On November 21, 1963, Trial Examiner John F. Funke issued his
attached Decision in ,the above-entitled proceeding, finding that Re-
spondent had not engaged in .unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety. He also found that Respondent had not interfered.,with an
election-held on January 31 and February 1, 1963, and therefore recom-
mended that objections to the election be overruled and that the results
of the election be certified. ''Thereafter, the General Counsel and
Charging Party filed exceptions to the Trial Examiner's Decision and
supporting[ briefs. The :Respondent. filed a reply brief in support of
the Trial Examiner'sDecision.
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 entire
record in -this case, including. the Trial =Examiner's Decision, ;the ex-
ceptions, and-briefs, and hereby adopts the Trial Examiner's. findings,
conclusions,aud recommendations.
[The :Board dismissed the complaint in Case No. 13-CA--5455.]
[The Board certified that a .majority .of the valid votes .cast in
the election in Case No. 13-RC-8923, were not cast •for ,Joint-Peti-
tioners, Local -444, ' Retail . Clerks =International Association, AFT,
CIO; Local 150, Building" Ser-vice;Employees International U lion,
AFL-CIO,;-and,Local-9, Office-Employees International Union, AF11-
CIO,,and that said labor organizations are not the exclusive rep-
resentatives in the unit found appropriate.]
TRIAL.EXAMINER 'S DECISION
STATEMENT OF THE CASE
Pursuant to a; Decision and Direction -in-'Case No . 13-RC-8923 , - issued --Decem-
ber 28, 1962, , an, election was conducted ',by the Regional ' Director for-the Thirteenth
-Region on-January'-31 and February 1,' 963, in -an appropriate unit - of employees
of Gimbel-'Bros.; Inc., and 'The'G=& S'Corp . d/b/a' Gimbels =Schusters, herein - called
Gimbels or the Respondents , upon a petition filed by Local 444, Retail Clerks Inter-
national Association , AFL-CIO; Local 150 , Building Service Employees Inter-
national Union, AFL-CIO; and Local 9, Office Employees International Union,
147 NLRB No. 62.
GIMBEL BROS., INC., AND GIMBELS-SCHUSTERS 501
AFL-CIO, herein referred to as the Joint-Petitioners. On February 7, 1963, the
Joint-Petitioners filed timely objections to said election and on March 1, 1963, the
Joint-Petitioners filed unfair labor practice- charges against Gimbels. On May 10,
1963, the Regional Director issued complaint in Case No. 13-CA-5455. On May 13,
1963, the Regional Director issued a supplemental decision, order consolidating
the cases, and notice of consolidated hearing. In his supplemental decision the
Regional Director overruled all of the 16 objections except those numbered 1, 2, 6,
7, 13, and 14, and as to those objections the Regional Director ordered a consolidated
hearing with Case No. 13-CA-5455. The allegations of the objections and the com-
plaint are identical and the complaint alleges violation of Section 8(a) (1). The an-
swer of the Respondent admits certain of the allegations of the complaint, denies
others, and denies that Respondent violated Section 8(a) (1) of the Act.
This proceeding, with all parties represented,. was heard before Trial Examiner
John F. Funke at Milwaukee, Wisconsin, on- July 23 and 24. The hearing was then
adjourned and reconvened for August 20, 1963, at the request of the General Counsel.
On August 20 the General Counsel requested that the hearing be closed and the
hearing was closed by order of that date and the parties were granted until Septem-
ber 23-to file briefs. Briefs were received from the General' Counsel'and:Respondent
on September 23.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND - CONCLUSIONS'
1. THE BUSINESS OF THE RESPONDENT
Respondent operates seven department' stores, a bakery, a warehouse, and a- service
department in Milwaukee, Wisconsin. During•'the. calendar. year^1962• Respondent
sold and distributed goods and merchandise valued in excess of $1,000,000 and dur-
ing the- same year it received- goods' and-merchandise valued in- excess- of $500,000
from places outside the State of Wisconsin:
Respondent is engaged in commerce within the meaning of Section-2(6) and (7)
of the Act. -
II. LABOR ORGANIZATIONS- INVOLVED
The unions involved in this proceeding, referred to collectively as the Joint-
Petitioners, are labor organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In -the election held on January 31 and-'February 1, 1963 , the tally of ballots read:
Approximate number of eligible voters ---------------------------- 5, 824
Void ballots--------------------------------------------------- 11
Votes cast ' for joint-petitioner----------------------------------- 1, 311
Votes cast -against participating labor organizations----------------- 4, 117
Valid votes counted------------------------------------------- 5,428
Challenged ballots------- ---------------------------------- --- 230
Valid votes counted plus challenged ballots-- ---------------------- 5, 658
The objections to the election which were filed by the Joint -Petitioners are em-
braced within paragraph VI, subparagraphs ( a) through (h), of the complaint.
Evidence to support the allegations of the, complaint was introduced by the testimony
of witnesses and by documents : The testimony of the witnesses in support of the
allegations of subparagraphs (a) through ( f) will be considered' first.
B. Evidence of coercion and restraint
Beverley Flowers testified that she was employed as an elevator operator at Re-
spondents' Mitchell Street store and that on the Friday before the election (the elec-
tion was held on a Thursday and Friday) she met Mary Kiel, a group manager, in
the elevator and that Kiel told her that she had heard that Fran Gordon, another
elevator operator, was "talking for the Union." According to Flowers, Kiel said she
was going to have a talk with Gordon. Gordon was not produced as a witness.
I find this testimony so ambiguous and inconclusive as to be worthless, particularly in
view of the fact that there is no evidence. that. Kiel, ever discussed union activity with
Gordon.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flowers also testified that on the Wednesday before the election she again met Kiel
in the elevator and that Kiel told her she had heard that she (Flowers ) was to serve
as an observer for the Union . Flowers admitted that she was to act as observer
and that Kiel then said "something about a traitor." She further testified that Kiel
sounded "sort of disgusted ." Since I find this testimony as meaningless as the testi-
mony to the prior conversation, I find it unnecessary to resolve the credibility issue
raised by Kiel's denials of both conversations.
Mary Lichte, employed in the floral department at the Leavitt and Mitchell store,
testified that her supervisor , Helen Goeb, asked her if she ever attended union meet-
ings and that she admitted she had attended . She further testified that she and Goeb
were good friends and talked about many things . Lichte testified that a Mr. Hume,
designated as a supervisor , asked her how the election was going to go and that when
she told him she hoped it would go Union he said he could see "it didn't do any good
to talk to you."
Goeb was called by the Respondent and denied asking Lichte if she attended union
meetings . Goeb stated that Lichte had told her she was for the Union and that on
one night she had asked Lichte if she had a date and Lichte told her she was to attend
a union meeting . Hume was not called as a witness by Respondent.
Mary Tews, a waitress employed in the cafeteria at the downtown store, testified
that sometime in January Mildred Wittnebel , her supervisor , asked her what she
thought about the Union and that she told her she "hadn 't thought about the Union."
This question was asked at the coffee um where she and some other employees were
having coffee.
Wittnebel could not recall asking this specific question of Tews.
Louise Hellmer , employed as a sales clerk at the Third Street store, testified that
sometime in January her supervisor , Virginia Smith , gave her some antiunion litera-
ture and asked her what she thought of the chances of the Union getting in and
what she thought of the Union . Hellmer told her that everyone has "their"
own opinion and Smith then told her that a former employee of Schusters (Gimbels)
had gone to work for another store where the Union had been voted in and that the
employees had not benefited.
Smith testified that she gave antiunion literature to Hellmer , that she knew Hell-
mer very well, but denied -asking her if she was for the Union . She admitted having
discussions with Hellmer respecting unions and that Hellmer told her she (Hellmer)
was in favor of a union.
Walter Peters , employed in the wrapping and packing department,' testified that on
January 29 his supervisor, Estelle Kuhs , asked him what he was wearing on his lapel
(it wasa union button ) 2 and that she told him she hoped he was not working for the
Union . Peters than testified that Kuhs , about 20 minutes later, told another employee
that she hoped he did not work for the Union because it would not provide "as much
benefits" as the Company would.
Kuhs admitted asking Peters what kind of a button he was wearing but denied
telling him she hoped he was not working for the Union . She further denied telling
any other employee that she hoped he was not working for the Union because it could
not provide more benefits than the Company.
This testimony , like that of Flowers, I find too inconclusive to raise any issue of
coercion and restraint or of interference with the election.
Sandra Plamann , also employed in wrapping and packing at the downtown store,3
testified that a week or two before the election Kuhs called her into her office and
told her that she (Kuhs) had heard that she had been talking about the Union.
Kuhs told her that she (Kuhs ) had been told to talk to her employees and see how
they felt about the Union and asked her how she felt. Plamann told Kuhs she did
not know and that when the time came to vote she would vote the way she felt.
Plamann testified that a week before the election she overheard Kuhs telling three
or four part-time employees they "didn't want to vote for the Union" because the
Union would not have part-time employees or extras.
Kuhs denied calling Plamann into her office and denied asking her how she felt
about the Union. She testified that Plamann told her, voluntarily, that she
(Plamann) would not vote for the Union because her mother worked in a laundry
where the employees were represented by a union and that it had not done any good.
Kuhs also denied telling any part-time employees that the Union would not have
part-time help.
' Peters acted as observer for the Joint-Petitioners at the election.
s Kuhs did not ask him to remove the button.
Plamann was an observer for the Union at the election.
GIMBEL BROS., INC., AND GIMBELS-SCHUSTERS 503
Alice Reicholtz, another employee in wrapping and packing,4 testified that a few
days before the election Estelle Kuhs asked her how she felt about the Union and
she told Kuhs she did not know. Kuhs did not indicate to her how she thought she
should vote nor make any other inquiry.
Kuhs admitted that many months before the election (she fixed the time as Septem-
ber or October) she had asked Reicholtz her opinion of a union representing the
employees but specifically denied making any such inquiry during January.
Martha Schaske testified that she was employed during the month of January in
the mail and telephone order department at the Third Street store and that her im-
mediate supervisor was Inez Busse. On the Tuesday before the election she was
.called to Busse's office by telephone and given antiunion literature to pass out to the
other girls. (Schaske stated there were about 13 girls in her department.) Schaske
also testified that Busse told her to vote no in the election and that she was told to
:tell the other girls to vote no. Schaske delivered both the literature and the message
to the other girls.
Busse admitted giving out literature for distribution but denied telling the em-
ployees to vote no in the election. She stated the instructions she received were to
ask the employees to read the literature and make up their own minds.
Eva Kitzke, another employee in wrapping and packing, testified that a day or two
before the election she was called into the office of Estelle Kuhs and that Kuhs asked
her how she felt about the Union. Kuhs did not tell her how to vote but did tell
her the union "stuff" was just a lot of promises.
Kuhs denied having any conversation with Kitzke about the Union.
Virginia Radaj testified that she had been employed as a "flyer" (an employee who
?has no regular assignment but who works wherever needed) at the downtown store 6
and that Mary Davis was supervisor of the flyers. Radaj testified that one evening
in December 1962, as she was checking out for supper, Davis told her that she
wanted to speak to her and then asked which of the girls were attending union meet-
ings. Radaj told her she did not know that any of the other flyers were attending
union meetings but told her that she had attended one. Davis then asked if she
.knew where Chris Boenig worked (the flyers worked only part time) and she told
,Davis that Boenig worked at either the gas or electric company. Davis then re-
marked that she thought Boenig might be the one attending union meetings and
reporting back to the other girls what took place at the meetings. Radaj testified
that during her talk with Davis she told Davis that the girls who worked in the mail-
room on Saturday mornings had lost their coffee break 6 and that this was one of
the reasons they had been talking for the Union. After this discussion, according
to Radaj, the Saturday morning coffee break was restored.
Davis denied asking Radaj which employees were attending union meetings and
denied telling her that she suspected Boenig was the one who was attending. With
respect to the coffee break, Davis testified that she received a complaint from Radaj
'that the flyers, who supposedly finished in the mailroom about 11 a.m. on Saturdays,
were not getting their coffee breaks with the regular mailroom employees who took
their breaks about 10:30. Davis stated that there had been complaints that the flyers
had been reporting late for reassignment after they finished sorting mail. Davis
testified that she met with all the Saturday morning flyers who worked in the mail-
room and told them to take their coffee breaks when the regular employees took
theirs. Davis fixes this conversation with respect to coffee breaks as occurring in
the spring of 1962 rather than in December 1962. I credit Davis on the issue of
dates.
C. Conclusions on coercion and restraint
Out of an estimated total of 5,824 eligible voters the General Counsel has produced
10 witnesses (5 of whom acted as observers for the Joint-Petitioners in the. election
and 1 of whom was employed by one of the Joint-Petitioners for a brief time) who
-testified in support of the allegations set forth in paragraph VI, subparagraphs "a"
through "f." As to two of these I have already found their testimony void of sub-
stance and the testimony of the remaining witnesses is worth little more. Six wit-
nesses, Mary Lichte, Mary Tews, Louise Hellmer, Sandra Plamann, Estelle Reicholtz,
-and Eva Kitzke, testified to single instances of interrogation as to their union activity
on the part of their immediate supervisors, all in the lower-echelon supervisory status.
Reicholtz acted as an observer for the Union at the election.
° Radaj was also employed by Local 444, Retail Clerks, during December and January.
° According to Radaj the four girls who worked in the mailroom on Saturday mornings
'had lost their coffee break because it took them too long to sort the mail.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conversations, assuming they actually took place, were brief, casual, and free
from any context of coercion, restraint, threats, or promises. Under these circum-
stances I find that they warrant neither the issuance of a remedial order nor the
setting aside of the election.?
Martha Schaske testified that she was given antiunion literature prepared by the
Respondent to distribute to other employees and was told by her supervisor, Inez
Busse, to vote "no" (union) in the election and to tell the other employees to
vote "no." Busse admitted that she gave Schaske the literature to distribute but
denied telling her to vote "no." I credit the testimony of Busse that she told
Schaske to ask the employees to read the literature and make up their own minds.
Under these circumstances, I find no violation of Section 8(a)(1) nor any inter-
ference with a free election. A different situation might be presented if any em-
ployee was directed to distribute antiunion literature, had refused, and had been
ordered to do so under threat of disciplinary action. No such evidence was presented
in this case.
Radaj testified to an inquiry by a supervisor as to the attendance of other em-
ployees at union meetings on the part of a supervisor and the voiced suspicion that
a certain employee was attending. Again, if true, the incident must be rejected for
reasons previously stated and in accord with the cases cited.
As to the coffee break restoration, I credit Mary Davis that it was restored in the
spring of 1962 and therefore barred as evidence of violation by Section 10(b) of
the Act.
It is difficult to believe that any election involving so large a number of employees
and in which a prolonged and bitter preelection campaign was conducted would not
reveal a far larger number and more substantial incidents than the meager and
trivial ones indicated here.
D. The no-distribution rule
On November 30, 1962, Gimbels promulgated a rule reading as follows:
Advertising material (other than store merchandise); political material; litera-
ture, notices, or announcements soliciting or promoting membership in any or-
ganization may not be placed or distributed in working areas on our premises.
The General Counsel does not contend that the rule is invalid or improper. He
does contend that Gimbels, by distributing antiunion literature in working areas in
the stores and particularly by using employees to distribute such literature, destroyed
the validity of the rule and engaged in an unfair labor practice. The fact that Gim-
bels did distribute antiunion literatures in working areas in violation of the rule is
not in dispute.
The Supreme Court has answered this question, I believe, in the Steelworkers
(N'+tnnal cace.9 In that case and its companion case Avondale Mills, 115 NLRB
840, the Court stated:
. . . but the Taft-Hartley Act does not command that labor organizations as
a matter of abstract law, under all circumstances, be protected in the use of
every possible means of reaching the minds of individual workers, nor that they
are entitled to use a medium of communication simply because an emnlover is
using it. [Citations omitted.] No such mechanical answer will avail for the
solution of this nonmechanical, complex problem in labor management rela-
tions. . The Board, in determining whether or not the enforcement of the
rule in the circumstances of an individual case is an unfair labor practice,
7 Even the dissenting minority in Blue Flash Express, Inc., 109 NLRB 591, stated,
page 597:
There are, of course, instances of interrogation which can properly be regarded as
isolated, casual and too inconsequential in their impact to constitute a violation of
the Act or to warrant a Board remedy. In such situations we have participated in
dismissing the allegations of illegal interrogation. [Citing cases.]
Tills is not intended as a holding that interrogation, to be coercive, must be accompanied
by other unfair labor practices. See Petroleum, Carrier Corporation of Tampa. Inc.. 125
NLRB 1031. As to isolation see Gastonia Combed Yarn Corporation, et al ., 109 NLRB
585; Western Table Company, et al ., 110 NLRB 17; Crown Drug Company, 110 NLRB
845: General Electric Company, 143 NLRB 923
s There is no contention that the literature was coercive.
9 N.L.R.B. v. United Steelworkers of America, CIO, petitioner (Nutone Inc., intervenor),
357 U.S. 357. The General Counsel did not refer to this case in his brief, a seemingly
exceptional oversight.
•GIMBEL BROS., INC., AND GIMBELS-SCHUSTERS 505
may find alternative channels available for the communications on the right to
organize. -
In the Steelworkers case, as here, the literature, was noncoercive although anti-
union,1° the Company distributed the literature in violation of its own rule, and
no request was made by the petitioning union for an equal opportunity to distribute
literature." Moreover, the Joint-Petitioners had access to all the usual means of :
communication with the employees. The Joint-Petitioners, during the course of the
campaign, distributed literature at the employee entrances to the stores, made house
calls and telephone calls to employees, distributed literature through the mails, con-
ducted television and radio programs, used billboard posters, etc. The preelection
campaign was bitterly fought but it cannot be said that the Joint-Petitioners suffered
any such disadvantage through the Respondents violation of their own no-distribu-
tion rule as would warrant setting the election aside and ordering the Respondents
to make their premises available to the Joint-Petitioners for campaign purposes.
Since the Board has apparently adopted the ruling of the Supreme Court in Steel-
workers in the James Hotel Company, a corporation d/b/a Skirvin Hotel and
Skirvin Tower case,12 further discussion seems futile. It will be recommended
that the allegations of paragraph VI, subparagraph (g), of the complaint be dismissed.
E. The distribution of roses
V. F. Lindner, store manager of the downtown store of Gimbels, was called as a
witness by the General Counsel under Rule 43-b of the Federal Rules of Civil
Procedure. He testified credibly that on the morning of January 31, the first day
of the election, he noticed that representatives of the Joint-Petitioners were dis-
tributing roses and carnations to employees as they entered the store to go to work
and that he shortly discovered that such distribution was taking place at the other
stores. After conferring with counsel Lindner issued instructions through the
department supervisors of the downtown stores and through the supervisors of the
other stores to "discourage" the employees from wearing the roses and carnations.
Lindner testified that he did not instruct the supervisors to remove the roses from
the employees' persons but that they be requested not to wear them since it was
contrary to company practice and policy. The flowers bore no indication that they
were distributed by the representatives of the Joint-Petitioners or that they indicated
sympathy for the Joint-Petitioners. • While the Respondents had no rule in effect
prohibiting the wearing of flowers, I cannot see how the sudden decision to discourage
the wearing of flowers on this, the first election day, was in any way discriminatory
nor could have had any effect upon the result of the election. I reject the contention
of the General Counsel that, because the identity of the representatives of the
Joint-Petitioners had become known to the employees of the various stores, the
wearing of the flowers identified the sympathies of the employees and that inter-
ference with such wearing therefore constituted coercion and restraint. There is
no evidence to support this inference and such speculation, however reasonable,
is still speculation. My recommendation, however, is based on the fact that an
employer may make any rules with respect to the conduct of its employees which
are not discriminatory within the meaning of the Act and I do not find such dis-
crimination in the promulgation of this rule on election day. The situation here
is clearly distinguishable from the wearing of union insignia which, absent special
circumstances, is protected activity.I3
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in a business affecting commerce within
the meaning of the Act.
2. The Joint-Petitioners are labor organizations within the meaning of Section
2(5) of the Act.
3. Resnondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
30 In Steelworkers, however, the employer was held guilty of other unfair labor practices.
"In GFhf International, Inc. v. N.L.R.B., 321 F. 2d 626 (C.A. 8), the court reversed
the Board's finding of an unfair labor practice based upon disparate treatment between
competing labor organizations on the ground that the charging union had made no request
for permission to solicit In the respondent's stores. The rival union had been permitted
to solicit on the selling floors during working hours and the Board held that an attempt
by the other union to engage in solicitation implied a request. The reversal was specific.
.12 142 NLRB 761.
13 Floridan Hotel of Tampa, Inc., 130 NLRB 1105.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent has not engaged in conduct interfering with its employees ' freedom
of choice in selecting their bargaining agent in the election conducted on January 31
and February 1, 1963.
RECOMMENDED ORDER
It is recommended that the complaint in Case No . 13-CA-5455 be dismissed in,
its entirety and that the objections in Case No . 13-RC-8923 be overruled and that
the results of the election be certified.
Milk Drivers and Dairy Employees ' Local 680, International'
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Ind. and Durling Dairy Distributor&
d/b/a Woolley's Dairy. Case No. 22-CC-197. June 17, 1964
SUPPLEMENTAL DECISION AND AMENDED ORDER
On November 21, 1963, the Board issued a Decision and Order'
finding that Respondent Union had engaged in consumer picketing at
secondary establishments. Relying on Fruit & Vegetable Packers c^
Warehousemen, Local 760, et at. (Tree Fruits Labor Relations Com-
mittee, Inc.) 132 NLRB 1172, 1177, the Board concluded that Re-
spondent had thereby violated Section 8(b) (4) (ii) (B) of the Act..
On April 20,1964, the Supreme Court rejected the Board's holding in
that case. N.L.R.B. v. Fruit & Vegetable Packers cf Warehousemen,
Local 760, 377 U.S. 58.
Upon reconsideration of this case in light of the Court's aforemen-
tioned decision, we find that Respondent Union did not violate the
Act as alleged and we shall dismiss the complaint.
[The Board 2 dismissed the complaint.]
1145 NLRB 165.
2 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].
147 NLRB No. 68.
Ralston Purina Company and International Union , United Auto
mobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO and its Local Union No. 1119, United Auto--
mobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO, Petitioner. Case No. 25-RC-2542. June 17,..
1964
DECISION AND CERTIFICATION OF RESULTS OF
ELECTION
Pursuant to a stipulation for certification upon consent election ex--
ecuted on December 12, 1963, an election was conducted on January 3,.,
147 NLRB No. 65.