Hirsch Mercantile Co.

National Labor Relations Board - Board Decisions

Nov 5, 1942

45 N.L.R.B. 377 (N.L.R.B. 1942)

In the Matter of HIRSCH MERCANTILE COMPANY and WAREHOUSE
WORKERS UNION LOCAL 26, INTERNATIONAL LONGSHOREMEN AND
WAREHOUSEMEN'S UNION (C. I. 0. )
Case No. C-2178.-Decided November 5, 1942
Jurisdiction : variety or department stores industry.
Unfair Labor Practices
Interference, Restraint and Coercion : refusal to bargain in good faith with the
employees' freely chosen, representative ; questioning union's chief stew-
ard ; disparaging union and any other form of concerted activity ; granting
concessions in working conditions directly to employees, ^ both on a general
and on an individual basis to undermine the union ; threatening employees
with discharge for discussing the union; stating that no contract would
ever be made with the union.
Collective Bargaining : majority established by application cards-refusal to
negotiate in good faith: by refusing to work out any agreement as to the
appropriate. unit; by refusing to recognize the union as the exclusive repre-
sentative of the unit, and by insisting that it represent its members only ;
by dilatory and evasive stratagems ; by refusing to discuss certain improve-
ments in working conditions with the union, but granting them directly to
the employees; by refusing to make genuine counterproposals or to explain
to the union why its various demands were rejected; by refusing to permit
the union to meet with the management representatives allegedly respon-
sible for such rejections ; by stating that the organizational activity of an-
other union prevented the making of an agreement; by refusing to embody
in a written contract certain noncontroversial matters and legal require-
ments; and by outright refusal to meet with the union after the respondent's
unfair labor practices had undermined the union's majority
Remedial Orders : cease, and, desist nunfair,,laboe practices; bargain, collectively
with the union on request, and embody resulting agreements in a signed con-
tract; policy of the Act requires order to bargain collectively with the
union, regardless of possible loss of majority subsequent to the unfair labor
practices.
Unit Appropriate for Collective Bargaining : all the respondent's non-supervisory
employees at two of its places of business in Los Angeles, California,
including the freight elevator operators, stockmen, shipping employees, and
employees in the receiving, marking and transfer rooms, regardless of the
respondent's classification of such employees as extra or seasonal employees,
but excluding the passenger elevator operators, night men, truck drivers,
tailors, maintenance men, and employees in the retail store, the factory, the
print shop, the supply room, the display department, and the office.
Mr. Richard A. Perkins, for the Board.
Mr. Guy T. Graves, of Los Angeles, Calif., for the respondent.
Mr. Milton E. -Harris, of•counsel to the -Board.
45 N. L. R B, No. 60.
377
378 DECISIONS bF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges, duly filed by. Warehouse Workers Union Local 26,
International Longshoremen and Warehousemen's Union, affiliated
with the Congress of Industrial Organizations, herein called, the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Twenty-first Region (Los Angeles,
California), issued its complaint dated November 10, 1941, and amend-
ments thereto dated December 4, 1941, and January 12, 1942, against
Hirsch Mercantile Company, Los Angeles, California, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 '(1) 'aild ^(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 thereon,
and copies of the amendments to the complaint were duly served upon
the- respondent and the Union.
The complaint, as amended, alleged in substance that since about
June 20, 1940, the respondent (1) refused to bargain collectively with
the Union, although the Union was the exclusive representative of all
the. respondent's employees in an appropriate unit, and (2) interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, by questioning its employees about
their affiliation with the Union, by urging them to present grievances-
individually and not through the Union or,by concerted means, by
granting wage increases and reductions in hours of employment to
discourage membership in the Union, and by threatening a shut-down
and discharge unless the employees abandoned the Union.
On December 15, 1941, the respondent duly filed an answer, and
on February 26, 1942, an amended -answer, in substance denying the
Board's jurisdiction and the alleged unfair labor practices, but spe-
cifically admitting that during negotiations with the Union it had
granted specific increases in wages and reductions in hours to some
of its employees.
Pursuant to notice, a hearing was held in Los Angeles, California,
from March 10 to 19, 1942, before James C. Batten, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hear-
ing. . Full opportunity to be heard, to examine and cross-examine
HIRSCH MERCANTILE COMPANY 379
witnesses, and to introduce, evidence bearing on the issues' was af-
forded all' parties. At the close of the hearing opportunity was
afforded the parties to. present argument before the Trial Examiner.
In response to the Trial Examiner's request that the parties submit
briefs to him, a brief was filed by the Board Attorney. During the
hearing and in his, Intermediate Report, the Trial Examiner made
rulings on various motions and on objections to the admission of evi-
dence. The- Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.,
On April- 29, 1942, the Trial Examiner filed his Intermediate Re--
port, copies of which were duly served on the respondent and the
Union. In substance, the Trial Examiner therein found that the
respondent had refused to bargain collectively with the Union and
had interfered with, restrained, and coerced its employees in the•exer-
rcise of the rights guaranteed in Section 7 of the Act. He recom-
mended that the respondent cease and desist therefrom and, affirma-
tively, that the respondent bargain collectively with the Union upon
request.
On June 29, 1942, the respondent filed exceptions to the Inter-
mediate Report and other parts of'the record, and a brief in'support
thereof. A hearing for the purpose of oral argument before the
Board, which had -been scheduled pursuant to the respondent's re-
quest, was thereafter canceled on consent of the parties. The Board
has considered the exceptions and brief and, insofar as the exceptions
are inconsistent with the findings, conclusions, and order hereinafter
set forth, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a California- corporation, is engaged in the opera-
tion of eight variety or department stores in the State of California.
In the year 1940, the respondent's total purchases amounted to $3,-
839,935.97, of which $2,363,474.80 represented goods purchased out-
'On December 15, 1941 , the respondent filed a motion to make the complaint, as
amended, more definite and certain and /or for a bill of particulars , and also a motion to
strike certain allegations thereof. On December 23, 1941, the Trial Examiner issued an
order granting the former motion in certain respects , and copies thereof were duly served
on the parties . On February 26, 1942, the respondent filed similar motions with respect
to the complaint as amended on January 12, 1942, pursuant to this order . On March 3,
1942, the Trial Examiner issued orders denying the motions, and copies thereof were duly
served on the parties . On April 21, 1942 , pursuant to notice , the Trial Examiner issued
an order correcting the transcript in certain specified respects , and copies thereof .were
duly served on the parties . The orders are hereby affirmed.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side and transported into the State of California. ' In the same year
the respondent's total sales amounted to •$5,034,104.31, of which $4,-
320.93 represented sales to purchasers. outside the State of California.
During the first 10 months of 1941 the respondent's total purchases
amounted to $3,096,832.58, of which $2,011,190.85 represented goods
purchased outside and transported into the State of California. Dur-
ing the same 10 months of 1941, the respondent's total sales amounted
to $4,102,448.83, of which $2,132.37 represented sales to purchasers
outside the State of California.
The respondent, although conceding the foregoing facts, neverthe-
less contends that its operations do not constitute commerce, within
the meaning of Section 2 (6) of the Act. In support of this conten-
tion, the respondent points out that no proceeding has been instituted
,against ,it,- its--failure to comply with the provisions of the Fair
Labor Standards Act of 1938. We find the respondent's contention
without merit .2 We further find that the respondent's operations
constitute commerce, within the meaning of the Act.
H. TIIE'ORGANIZATION INVOLVED
Warehouse Workers Union Local 26, International Longshoremen
and Warehousemen's Union, is a labor organization affiliated with (he
Congress of Industrial Organizations, and admits to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit ,
The complaint, as amended; .alleges,,,in.substance that all the re-
spondent's non-supervisory warehouse employees at its place of busi-
ness at 530 South Main Street and the connecting building `at 531
South Los Angeles Street, Los Angeles, California, including stock-
men, elevator operators, and employees in the receiving, marking,
and transfer rooms, but excluding night men, truck drivers, and em-
ployees in the retail store, the factory, the print shop, the supply
room, the display department, and the office, constitute a unit appro-
priate for the purposes of collective bargaining.
2 See N. L. R. B v Fainblatt, 306 U S 601, reversing 98 F (2d) 615 (C. C A. 3). which
set aside Matter of Benjamin Fainblatt and Marjorie Fainblatt , individuals, doing business
under the firm names and styles of Somerville Manufacturing Company and Somerset Man-
ufacturing Company and International Ladies' Garment Workers ' Union, Local No. 149,'
4 N. L. R . B. 596, 1 N. L R . B. 364; N. L. R B. v. Suburban Lumber Company, 121 F. (2d)
829 (C. C. A. 3), cert denied 301 U. S. 693, modifying and enforcing Matter of Suburban
Luamber Company and International Brotherhood of Teamsters , Chauffeurs , Stablemen and
Helpers of America, Local Union No. 676 , 3 N. L. R. B. 194 . See also Matter of Goldblatt
Bros ., Inc. and Office Employees' Union No . 207.82, A F of L, 41 N L R B 741; Mat-
ter of M. E . Blatt Company and Retail Clerks International Protective Association, Local
No. 1358, affiliated with the A. F. of L., 38 N. L. R. B. 1210.
i
HIRSCH MERCANTILE COMPANY 381
The ground floor at this place of business is occupied by one of the
respondent's retail stores, and the remaining floors consist of a ware-
house handling merchandise to be sold in the retail stores, a small
sewing factory, a print shop, a supply room for storing such items as
wrapping paper and twine, and a display department, which are not
limited to serving the warehouse, and also an office. The various
departments of the warehouse are designated as the receiving room,
the marking room, the stockroom, the transfer room, and the ship-
ping department. Charles Pfeiffer, the Union's financial secretary
and treasurer and its principal negotiator herein, testified that the
,Union had' organized and attempted to bargain for ;the warehouse
unit as thus defined, except that the passenger elevator operators, the
tailors who altered garments sold in the retail store, and the night
men or night watchmen, were also excluded from the units He
further testified that the respondent's classification of an employee, as
extra or seasonal did not affect the inclusion in or exclusion from the
claimed unit of that employee. The parties agreed that the mainte-
nance man should be excluded.
At one point in the hearing, Urban S. Hirsch, Jr., the respondent's
general manager, testified that the employees in the unit claimed by
the Union were considered to be an integral group. In addition,
Pfeiffer testified without contradiction that at a conference between
representatives of the respondent and the -Union on June 2$, 1940, the
'Union detailed the inclusions in and exclusions from the unit which
it desired, and the respondent's representatives did not object thereto.
'Four more conferences were held thereafter during the summer of
1940, at none of which did the respondent's representatives make
specific objection •to the appropriateness of any of the claimed
inclusions or exclusions.
The respondent in substance now contends, seriatim, that the appro-
priate unit should consist of= (1) all its non-supervisory employees,
including those in its-eight retail,stores ; or (2) all its non-supervisory
employees in Los Angeles, including those in its two retail stores in
Los Angeles; or (3) all its non-supervisory employees at the South
Main Street place of business, including those in the retail store .4 On
the basis of the unit accepted by the respondent in its negotiations
with the Union, we find these contentions without merit.
On the entire record, we find that all the respondent's non-super-
visory employees at its place of business at 530 South Main Street
"The constitution of the Union limits its jurisdiction to "workers employed in the ware-
housing industry."
4 The respondent points out that many' of the warehouse employees are temporarily
transferred to the selling floor when needed , some on an average of as much as once a
week However , the Lespondent designates such employees as warehouse and not as sales
employees on its pay roll.
382 DECISIONS OF' NATIONAL LABOR RELATIONS I BOARD
and- the connecting building at 531 South Los Angeles Street, Los
Angeles, California, including the freight elevator operators, stock-
men, shipping employees, and employees in the receiving, marking,
and transfer rooms, regardless of the respondent's classification of
such employees as extra or seasonal Employees, but excluding the pas-
senger elevator operators, night 'men, truck drivers, tailors, niain-
•tenanoe men, and employees in the retail store, the factory, the print
-shop,, the supply room, the display department, and.,the office,,have. at
all times material herein constituted, and now constitute, a unit ap-
'propriate'for the purposes of collective bargaining, and that said unit
insures to the respondent's employees the full benefit of their right to
self-organization and to collective bargaining, and otherwise effec-
tuates the policies of the Act.
B. Representation by the Union of a majority in the appropriate unlit
The respondent's pay-roll records for the week ending June. 22,
1940, when the Union advised the respondent of its majority claim
and requested recognition as the employees' collective bargaining rep-
resentative , show a total of 52 employees in the unit.5 Also in evi-
,'dence is a, list of employees as of June 20, 1940, prepared by the
;respondent,. showing -a temporarily laid-off employee 'in the unit in
,addition to the 52,shown oil the pay roll. ,Accordingly, the unit for
the week ending June 22, 1940, consisted of "53 employees.e
By -June 22, 1940, 30 of the 53 employees in the unit had signed
cards, applying ^ for membership in the Union and designating it as
,their collective bargaining representative,' and had made dues pay-
ments s Of the remaining 23 non-members in the unit, 6 signed appli-
cation cards on July 12, 1940, and a seventh signed on August 2, 1940.9
Beginning on June 22, 1940, and ending on or about August-28, 1940,
the respondent held a series of 6 conferences with the Union, and on
° The respondent contends that three of these employees , Marvin Smith,Odetta Krok-
strom, aud .°Austie,Smith , should be excluded from the unit : Marvin Smith , a furniture
finisher 44'9" works in one corner of the stockroom, is listed on the respondent 's pay roll
as a stockroom employee . Krokstrom and=Austie Smith, billing clerks , and stenographers
in the warehouse office, are listed on the respondent 's pay roll as transfer -room employees.
We find, as did the Trial Examiner , that these three employees should be included within
the unit.
6 While the number of employees within the unit varied in succeeding weeks, we find that
this number of employees is representative of the size of the unit, nor did the respondent
argue to the contrary.
The Union was then known as Local 1-26. The respondent makes no objection to the
variation in the Union's name.
° Only 29 of the 30 application cards show a payment of dues. In addition, the Union
issued membership cards to at least 28 of these 30 applicants As for the discrepancy
between 30 application cards but only 28 membership cards, Pfeiffei explained that mem-
bership cards were sometimes "pulled" from the files when a member was dischaiged by
his employer.
I° Three more-application cards were signed in July 1940 bv'emplo, ees who came within
the unit after June 22, 1940, and three more were signed in ,the early _par,t, of August 1940.
HIRSCH MERCANTILE COMPANY ' 383
-July 2, 1940, wrote a letter to the Union in connection therewith, with-
out once questioning the Union's over-all majority .1e
We' find that at all times material herein the Union was the duly
designated representative of a majority of the employees in the ap-
propriate unit, and that, by virtue of Section 9 (a) of the Act, the
Union was, and now is, the exclusive representative- of all the em-
ployees in said unit for the purposes of collective bargaining with the
respondent in respect to rates of pay, wages, hours of employment,
and other conditions of employment.
C. The refusal to bargain; interference, restraint, and coercion
1. Chronology
Shortly after the Union started to organize the respondent's ware-
house early in June 1940; Vaughn Bell, the respondent's personnel
manager, aware of the Union's organizational efforts, arranged to
drive Don E. Richards, a warehouse employee and chief steward of
.the Union, home from work. According to Richards, a witness called
.by the respondent, Bell said that he "wanted it understood that he had
not asked me to ride home with any intentions to try to get me to
divulge any secrets' of the Union; that he wanted me to understand
that he was not trying to intimidate me in any manner. He had two
questions he wanted to ask me : what brought this all about, and
secondly, what could have been done to prevent it. . . . I was quite
elaborate in my answer." Bell admitted the foregoing incident, add-
ing that he "did not want Don Richards to feel that I was pumping
'him for information."
On June 20, 1940, Pfeiffer, the Union's representative, called at
the respondent's office with a proposed contract that the Union had
prepared, and was referred to Bell, who was at home ill on that
day. Pfeiffer therefore left the contract with the person in charge
of the office. The proposed contract covered "employees who per-
form work in the warehouse"; recognized the Union as the sole
representative of all such employees; and established minimum
wages,11 a 42-hour week,12 time and a half for overtime, holidays,
seniority as the basis for layoffs and promotions, preferential hiring,
paid vacations, and a grievance or "stewards" committee, with ulti-
mate recourse to arbitration. The proposed- contract further pro-
vided that there should be no discrimination for union activity and
- 10 At a conference on June 28, 1940 , the respondent questioned whether a majority of
the employees in one part of the unit ( the marking room ) were members of the Union.
11 The contract further provided that the wages of handicapped workers were to be
mutually fixed below the minimum by the respondent , the Union , and the employee.
12 To be reduced to a 40-hour week on October 22, 1940, "in compliance with. the Fair
Labor Standards Act."
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no strikes or lock-outs, and it also contained other provisions, which
evoked no subsequent controversy.
On June 21 or 22, 1940, the respondent received a letter from
Pfeiffer, addressed to Urban S. Hirsch Sr., the respondent's presi-
dent and treasurer, stating that the employees had designated the
Union as their collective bargaining representative and requesting a
meeting at the earliest possible date-to discuss the contract. ,
On June 22, Hirsch Jr., the respondent's general manager, tele-
phoned Pfeiffer, acknowledged receipt of the letter, and arranged
for a meeting later that day to discuss the proposed contract. Pur-
suant to this arrangement,' Hirsch `Jr. and Bell, representing the
respondent, convened at a nearby hotel with Pfeiffer, Byrne, and the
Union's negotiating committee, consisting of four employees. At
the request of Hirsch Jr., Pfeiffer first explained the procedure
generally followed by the Union, and gave the Union's interpreta-
tion of each section of the proposed contract. According to Pfeiffer,
Hirsch Jr. then said that he would have to "take the contract back
to the directors of the company . . . [He] said that he would have
to take it up with his people." At the close of the meeting, Pfeiffer
stated that at the net meeting the Union desired to begin nego-
tiation on the contract, section by section, and a further conference
was arranged for June 28, 6 days later.
On or about June 26, according to employee Johanna Read, whom
we credit, as did the Trial Examiner, Personnel Manager Bell called
all the warehouse employees together during working hours. He
told them hq was surprised that they had not come to him before
organizing, since he could have averted the necessity for it, and
that they could continue to work for the respondent whether or not
they were members of-the Union. In closing, he announced that'his
office was open to the"employees at all times: Bell corroborated
Read -in many particular's' and' 'contradicted 'her in none.
A second conference between the parties was held on June 28, as pre-
viously arranged. At the outset, substantial agreement was reached as
to the appropriate unit and the Union's majority therei11.13 According
to Pfeiffer's uncontradicted testimony, Hirsch Jr. nevertheless raised
some objection to the clause whereby the respondent agreed to recognize
the Union as the sole collective bargaining representative for all the
employees in the warehouse unit, and as a consequence the clause was
"skipped over" to a later meeting. Byrne testified'that the proposed
contract was then discussed, but the respondent's representatives were
"still not prepared to give us any answers on any, of the various sec-
tions of the contract, and we just discussed them in general:" 14 ,Ac-
13 The respondent merely_ questioned the Union's majority in the marking room, a sec-
tion of the unit, but not its over-all majority.
14 Willard Holeman, an employee-member of the negotiating committee, corroborated
Byrne.
HIRSCH MERCANTILE COMPANY 385
cording to both Pfeiffer and Hirsch Jr., they agreed to certain minor
clauses of 'the proposed contract, including those dealing ivith pay-
ments to employees called to work with no work available, a union
bulletin board in the warehouse, and entry of authorized union repre-
sentatives on the' respondent' s premises during working hours.
Hirsch Jr. claimed, however, that it was clearly understood that these
agreements were'subj ect to future ratification by the board of directors. 15
Without reference to the directors, he rejected all the proposals re-
garded by the Union as most significant, particularly the clauses dealing
with wages, hours, seniority, and a grievance procedure, and in addi-
tion he said that probably no counterproposals would be forthcoming
on such matters. As to the wage clause, for example, he admitted that
Pfeiffer requested a counterproposal, but claimed that his reply was
that the respondent "had no proposal on this thing, that we felt that
these requests were so high that there was no chance of meeting them in
any way." At the close of the conference Pfeiffer asked that the re-
spondent "have something more definite" for the next meeting.
The parties held a third meeting on July 1. Hirsch Jr. first stated
that he thought the Union had instructed the employees to "pull a slow-
down strike" in the plant. Pfeiffer, without admitting or denying this
charge, replied that "many times unions were forced to use their eco-
nomic strength ... 'Sometimes there was a refusal of the employer to
bargain that resulted in various types of economic action." The par-
ties then proceeded to a discussion of the proposed contract." Accord-
ing to Hirsch Jr., he rejected the recognition clause, allegedly on advice
,of counsel, and insisted that the Union be recognized as representing
its members only. Further according to Hirsch Jr., he and Pfeiffer
again "agreed on some of the clauses," including those relating to the
posting of rules concerning discharges, leaves of absence, access of the
Union's representatives to the plant during working hours, and "per-
haps" other matters. When asked if any agreement had been reached
by the end of this meeting with respect to the preferential hiring
clause, Hirsch Jr. testified, merely that he did not "recall any agree-
ment . . . at that time." Pfeiffer and Byrne testified that such an
agreement had been reached. We find, as did the Trial Examiner, that
an agreement was reached with respect to the preferential hiring clause.
Again, however, Hirsch Jr. said that the agreements were not final since
they had not yet been ratified by the directors. As to the wage clause,
15 According to Hirsch Jr , the respondent was a "family concern ," there were no "regu-
lar directors ' meetings ," and the "people who had the autboiity " were "the board of
directors , myself
le The respondent thereafter held three more meetings with the Union , wrote the Union
a letter expressing the hope that the "cordial relations " of the parties would endure, and
claimed in its brief that it even "offered to continue negotiations " with the Union several
months later .' In the circumstances , we find no merit in the respondent's contention that
the slow-doutn justified its own conduct toward the Union or precludes the Board from
making an affirmative order to bargain with the Union.
493508-43-vol 45-25
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hirsch Jr. unconditionally rejected it, according to his own testimony,
with the assertion that the respondent was losing money and could not
agree to meet the Union's demands. Pfeiffer thereupon pointed out
that such demands were subject to negotiation and that the Union
would consider a reduction in the proposed rates. Hirsch Jr. coun-
tered with the suggestion that the respondent's books be inspected by
the Union to verify his assertion about the respondent's deficit, but he
made no other counterproposal to the Union on the matter. " The meet-
ing terminated pursuant to an arrangement that the Union would write
the respondent a letter setting forth the Union's understanding of the
points of agreement thus far arrived at.
Later in the afternoon of the same day, Pfeiffer wrote the respond-
ent a letter in accordance with the prior arrangement, itemizing the
Union's understanding of the agreements reached on the various
clauses of the proposed contract. Upon receipt of the letter on July
2, Hirsch Jr. immediately wrote a reply, stating that the letter did
not "quite accurately reflect what has occurred in our discussions thus
far" and that "we have not finally agreed to any of the provisions
of the proposed agreement." Although the reply made no attempt
to set forth an "accurate" reflection of the points of agreement there-
tofore reached, Hirsch Jr. closed with the expressed 'hope' that the
parties might "continue our cordial relations in this matter."
On July 6 Bell called another meeting of the employees during
working hours, and announced that the "company were paying all
that they felt they could pay," but that the respondent nevertheless
hoped "possibly later, by the first of September," to restore the 5
percent wage reduction which had been instituted the preceding May.
He then called into his office 14 of the employees in the appropriate
unit, including Richards, the Union's chief steward and a member of
the negotiating committee, and granted them individual wage in-
creases. The respondent admitted that it had not 'discussed these
increases with the Union?'
On July 8 the parties held a fourth meeting. Pfeiffer told Hirsch
Jr. that the Union was disturbed by the respondent's reply of July 2.
According to Pfeiffer, when we credit, as did the Trial Examiner,
Hirsch Jr. answered that the Union's letter was satisfactory to him
personally, but had been referred to the respondent's other directors,
particularly Hirsch Sr., who had completely rejected even the terms
which Hirsch Jr. had admittedly agreed to. Pfeiffer then asked
Hirsch Jr. if the latter "would have to go back to the directors in
order to do anything." Hirsch Jr. answered in the affirmative.
17 On July 1, the respondent had transferred an employee from one part of the ware-
house to another at a substantial increase in pay , likewise without discussion with the
Union.
HIRSCH MERCANTILE COMPANY 387
Pfeiffer thereupon said that that was not a satisfactory arrangement,
and that the Union did not want to deal with a so-called representa-
tive whose every decision the board of directors- were free to reject;
and he requested that the Union be allowed to meet directly with
Hirsch Sr., if he was the one who was ultimately responsible, or the
board of directors if necessary. Hirsch Jr. rejected this request, on
the ground that the Union would thereby accomplish nothing because
Hirsch Sr. was "tremendousl'y hot-headed,"' was "very set .. .
against the-Union coming in-there," .and. "wouldn't agree to do prac-
tically anything"' proposed by the Union. Despite this rebuff', the
Union induced Hirsch Jr. to discuss the proposed contract in some
detail again. This procedure proved of no avail, however, since the
Union was only confronted with further objections to its proposals
and suggestions. As to the recognition clause, for example, Hirsh Jr.
said that it had been referred to the respondent's legal counsel, who
advised that the clause, together with the preferential'-hiring clause,
established a closed shop. Pfeiffer denied this, whereupon, according
to his uncontradicted testimony, Hirsh Jr. repliedthat irrespective of
the meaning of the clause lie had been advised not to agree to it, and
"that was all there was to it." Yet when Pfeiffer asked Hirsch Jr.
for the name of 'the attorney who had allegedly given this advice,
the latter refused to divulge it. As to the wage clause, despite
Hirsch Jr.'s statement to the Union 10 days. earlier that the respond-
ent had "no proposal on this thing,"' he said that the respondent's
proposal to the Union currently was the one that had been offered
directly to the employees 2' days before. At the close of the meeting
Pfeiffer told Hirsch Jr. that it was "obvious that we hadn't gotten
anywhere that day," and that he would have to discuss the Union's
next step with the members themselves.
About the middle of July, Bell for the third time called a meeting
of the employees during working hours, discussed a rumored strike
in the warehouse, and requested the employees not to take the serious'
step of striking because, according to the uncontradicted testimony
of employee Holeman; whom we credit, as did the_ Trial Examiner,
their "pay automatically stops." ',s In the Tatter part of July, Bell
called a fourth meeting of the employees during working hours, and
announced that on and after July 30 the working hours of the men
would be reduced from 49 to 44 hours per week and the hours of the
women from 48 to 44 hours per week, but that the employees would
all continue to receive the same pay. This reduction of hours had
not been discussed with the Union. According to the uncontradicted
testimony of Holeman, corroborated in, substance by Bell, Hirsch Jr.
also spoke at one of the July meetings and emphasized that no em-
18 At about the same time , an employee was transferred from the warehouse to the
retail store at a substantial increase in pay, again without discussion with the Union.
388 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
ployee would be discharged for refusing to join or for joining the
Union.
A -fifth meeting was held between the parties on or about August
17.1a M. W. Phelps, the Union's president, acted as spokesman for
the Union in a "last effort" to reach an agreement with the re-
spondent. As in previous conferences,' there was a discussion of the
various sections of the contract. Phelps offered to revise the pro-
posed wage demands of the Union except for the women employees,
who' at the time were being paid what the Union claimed was a
minimum wage. Hirsch Jr. replied that the respondent would not
consider any wage proposal other than the 5 percent restoration which
it had told the employees might be granted about September 1. The
Union thereupon withdrew its wage demands in their entirety and
agreed to accept the currently paid wages, together with the promised
percent increase. As to hours, Hirsch Jr. admitted that the Union
likewise receded from its earlier demands, and agreed to accept the
current hours, which the respondent had instituted unilaterally on
July 30. At the close of the conference, the Union offered to submit
an entirely new proposal, embodying the Union's understanding of
the results of the meeting. The respondent's representatives replied..
that the arrangement was satisfactory_to them.
Within a day or two after the fifth meeting, Pfeiffer and Byrne
reviewed all the notes which they had taken on the previous negotia-
tions with the respondent's representatives, and drafted a new pro-
posed contract "embodying all of the objections the company had to
the agreement, and incorporating as near as possible all of the
company's views." 20 The Union then submitted the new proposed
contract to the respondent as a "new complete counterproposal by
the Union on the entire contract, as a basis for getting together."
In the latter part of August, a meeting of all the warehouse em-
ployees was held in the plant near the close of work by Clifford G.
Butler, a non-supervisory employee. According to warehouse em-
ployees Johanna W. Read and Holeman, the person "that had charge"
told the employees, during working hours, to go to a certain section
of the plant for a meeting; the meeting began at about 4 p. in.,
during working hours, and lasted for about a half hour; and the
employees were addressed by Butler, who said that he had been
advised by his own attorney that the Union's activities were "illegal"
and would not get the employees "to first base," that the employees
should "forget" about the Union, that a "company union will be far
'u Between August 3 and 10, the respondent had granted individual wage increases to
11 more warehouse employees, again without discussion with the Union.
.° In conformity with Hirsch Jr.' s expressed objections to the recognition clause at the
July 1 meeting, the new proposal provided for recognition of the,Union as representing
only its members. ,
HIRSCH MERCANTILE COMPA'NY' 389
superior to an outside union," and that if there were any sort of
strike, the employees would be sure to lose. Butler, who was called
by the respondent; admitted holding ,the meeting in the plant, but
'claimed that it was -held after working hours, aild repeatedly in-
sisted that he did not remember what he had talked about. " We do
not credit Butler's claim, and find in accordance with the testimony
of Read and Holeman. The respondent thereafter gave Butler a
wage increase.
On or' about August 29, the parties held a sixth conference. Hirsch
Jr., according to his own testimony, opened the meeting by telling
-Pfeiffer that Hirsch Sr. was "God-damned mad" because another
affiliate of the C. I.O. was organizing the respondent's retail employees,
whom the respondent had repeatedly requested the Union to exclude
from the unit herein. Pfeiffer and Byrne testified that Hirsch Jr.
added that he was certain no agreement could be reached with the
'Union at that time. Hirsch Jr. claimed that he did not recall saying
that an agreement could not be reached, but admitted that he did
not remember what he did say. Richards, an employee called by
the respondent, testified that he was present at this meeting as a
member of the Union's negotiating committee, and heard Hirsch
Jr. suggest a "cooling-off period" because of Hirsch Sr.'s alleged anger
at the organization of the retail employees, at the expiration of which
period he was "sure" an agreement -could be reached. Richards'
testimony was generally corroborated by that of David Hirsch, an
official of the respondent who also attended the meeting. We find,
as did the Trial Examiner, that Hirsch Jr. in effect said that the
parties could not come to an understanding at that time.
The Union nevertheless persuaded Hirsch Jr. to' discuss the various
provisions of the new proposal. As to wages, it was provided in
the proposal that on September 1 the respondent should grant the
promised 5 percent increase to those of its employees whose wages
had not been unilaterally increased since the commencement of the
Union's organizational activities. Hirsch Jr. completely rejected
this provision, according to his own testimony, on. the ground that
the board of directors had not yet formally authorized the granting of
the increase, although the respondent's officials had promised- such
an increase to the employees since early July.
As to hours, the proposal provided that the current working•hours
should be continued, with time and a half for overtime. Hirsch Jr.
rejected this provision on the ground that -the respondent was losing
money and could not pay any premium for overtime work. Pfeiffer
then suggested that instead of time and a half the respondent merely
pay a 60-cent supper allowance for overtime • work, and Hirsch Jr.
agreed, according to his own testimony. The proposal further pro-
390 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
vided that, "should it be proven" that the respondent came under
the Fair Labor Standards Act, the shorter workweek provided for
in- that Act should be complied with. Hirsch Jr. rejected this pro-
vision, according to his own testimony; on the ground that "there
was no reason for that in there at all, that if and when it was proven
that.we were under it, we would ,comply with the law.",
With respect to holidays, it was provided inter alia that Sunday
should be considered a holiday but should not be paid for unless the
:employees actually worked on that,day. Hirsch Jr. rejected this pro-
vision, according to his own ,testimony, on the ground that "we saw
no reason for the statement that Sunday should Abe .considered a holi-
day, because we had always considered Sunday a holiday." It was
further provided that Armistice Day should be considered a, paid
holiday in the event that it was declared a legal holiday or the other
local department stores should .decide to close on that day. Hirsch
Jr. rejected this provision, according to his own testimony, on the
ground that he "saw no reason to put it in," and that the Union "could
be .assured we would close" under such circumstances.
With respect to ;seniority,' it was provided that the respondent's
"past, practice . . . shall be continued. The employer recognizes the
advantage of advancing regular employees when there, are openings
for advancement with the company and will give consideration to
such employees based on length of employment with the company."
Hirsch Jr. rejected, the provision, according to his own testimony, on
the ground that he thought it was "just a tricky method of wording"
the respondent's current practice, and that it "might, in the future,
get us into trouble" because the :current practice was to consider both
seniority and ability. He also testified that ",the Union or nobody
else was going to tell us how to advance people in our organization.
That was one place that hit home as far as I was concerned, and that
when the day came that we would have to be told how to advance
our people, as far as I was concerned, I didn't want to be around." 21
With respect to vacations, it was provided that the respondent's
".past practice . . ,. shall be continued, and it is understood . . . that
the'past practice . . . has been- to give 'each- year to regular employees
one full week's vacation with pay." Hirsch Jr. rejected this provi-
sion, according to his own ;testimony, ,on the ground that "there was
no reason to put it in." 22 1
a Hirsch Jr 's notation on the seniority provision in the Union's original proposed
contract , providing that "advancement in jobs . . . shall be'based ' on length of employment
with the company" on a plant -wide basis , indicates that the respondent 's only objection
to this provision was based on the clause that seniority should be plant-wide.
Z' Hirsch Jr 's notation on the vacation proposal in the Union 's original proposed
contract , providing in certain cases for more than 1 weeks vacation with pay, indicated
merely that vacations should be limited to 1 week.
HIRSCH MERCANTILE COMPANY 391
As to handicapped employees, it was provided that they should
be paid a scale of wages "mutually agreed upon by the employer,
the employee, and the Union." Hirsch Jr. rejected this provision,
according to his own testimony, "because we wanted to be the sole
deciders as to how much wages we were going to pay a person."
Expanding his view, he- then testified that he-could not'.agree to bar-
gain,with;the Union about, the wages of an admittedly handicapped
employee because "we wanted to be the sole decider, that our benev-
olence in this particular thing was to rest with us . . . We didn't
want to sit down in a discussion with the employee and the Union,
what we were going to do about it." -
As to non-interference with union activity, it was provided that
no agent of the respondent should in any way hinder any employee
from joining the Union, nor should there be any interference "with
the rights of employees as set forth under the Wagner Act." Hirsch
Jr. rejected this provision, according to his own testimony, on the
ground that "as far as we were concerned, at that time we were not
under it, to the best of our knowledge, there was no reason to put
it in."
Despite having thus rejected the Union's new proposed contract
virtually in its entirety, Hirsch Jr. was asked by Pfeiffer how soon
another meeting could be held. Hirsch Jr. replied, "In 4 or 5 days."
Pfeiffer requested that the meeting be held sooner. Hirsch Jr. an-
swered, according to his own testimony, that he could not do so, since
he had a lot of work to do, and "that was that."
Hirsch Jr. claimed that shortly after this meeting the respondent's
directors for the first time decided to grant the long-promised 5
percent wage increase, effective as of September 1, to those of its
employees who had not received recent individual raises, and an-
nouncement of the proposed general increase was made directly to
the employees a day or two later. The increase was granted in-spite
of the fact, according to Hirsch Jr., that the respondent had been
losing money heavily during the month of August and indeed ever
since May, when it had imposed the 5 percent wage cut, and not-
withstanding, the,,rejection of the Union's request at the meeting that
the respondent embody the promised increase in the contract.
On September 4, employee Richards, the Union's chief steward
and a member of the negotiating committee, who had received a
substantial wage increase on July 6, circulated a petition in the
warehouse, stating that the signers tendered their resignations from
the Union. According to employee Read's uncontradicted testimony,
Richards solicited her signature with the statement that the re-
spondent had "given us everything we asked for." According to
employee Freda Ryther, Richards approached her during working
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, said that the employees had "got everything that we have
wanted," and advised her to sign, adding that "if your name isn''t
on this list you are liable to get blackballed." Ryther explained that
she "needed her job" and therefore signed the petition.' Richards in
effect admitted that he solicited Ryther during working hours,
claimed that he told her she would be blackballed if she did sign the
petition, and denied that he told her the employees had received
everything they wanted from the respondent. Later in the hearing,
however, Richards admitted that he could not remember what he had
told Ryther. We credit Ryther's, testimony. As a result of Rich-
ards' efforts, the petition was signed by 23 of the 30 employees who
had joined the Union by June 22, including 3 of the 4 members on
the Union's negotiating committee, and also by 12 others who had
joined the Union after June 22. Richards thereupon delivered the
petition to the Union.
A day or two later Pfeiffer telephoned Hirsch Jr. and requested
a further meeting. Hirsch Jr. rejected the request, replying, accord-
ing to his own testimony, that he had been informed of the resigna-
tions and that, "As far as I am concerned, people apparently have
withdrawn of their own free will and accord, and if that is the way
they want it, the majority of them, that is the way it is going
to be:"
On September 18, 6 of the employees who had signed the resigna-
tion petition, and 19 other warehouse employees, signed another
petition "affirming" their "loyalty" to the Union and expressing their
"desire" that the Union "continue to act" as their collective bargain-
ing representative. Thereafter, Pfeiffer again telephoned Hirsch Jr.,
stated that the employees wanted the Union as their bargaining rep-
resentative, and requested -a meeting. Hirsch Jr. replied that he
"didn't have time to sit down with" the Union until Pfeiffer "showed
he had the majority:"
In November or December 1940; Hirsch Jr. called a meeting of the
employees in the marking room, a section of the warehouse, during
'working hours. According to Ryther, he stated that he had heard
rumors'that the employees had to join the Union to keep their jobs';
that he wanted to settle matters once and for all; and that no em-
ployee had to join the Union. He then referred to a rumor to the
effect that he was about to sign a contract with the Union, said that
the rumor was not true, and repeated that he did not intend to
sign such a contract. He added that he had not done any "firing"
-yet, but that he might have to do some "firing" if the rumors did
not cease. He closed by saying that his desire was to "get the union
business straightened out." Employee Helen Bulger DeVisscher cor-
roborated this testimony, as did other employees. Hirsch Jr. testified
HIRSCH MERCANTILE COMPANY 393
that he told the employees they "could belong or not belong to the
Union as'they saw fit," admitted that the rumors which he referred
to were to the effect that the respondent would refuse to sign a con-
tract with the Union, and asserted that he said the respondent would
have signed a contract except for the fact that the employees "had
dropped out of the Union." He further admitted that he closed by
saying that "this turmoil . . . would have to stop" or else there
would be "trouble," and that "some firing" might have to be done;
but he claimed that he did not recall saying that he had his "rights"
and was not going to sign any contract with the Union. We find,
as did the Trial Examiner, that Hirsch Jr. said in effect that the
respondent would never sign a contract with the Union.
• In January or February 1941, according to Hirsch Jr., Pfeiffer
again telephoned him to request a meeting to discuss a contract
merely embodying "the present things that the employees had at
that time," but he again refused, on the ground that the Union did
not currently, represent a majority.
Early in March 1941, according to David Hirsch, one of the re-
spondent's officials, Pfeiffer telephoned him and said that the em-
ployees in the marking room of the warehouse were "having some
difficulty over seniority," whereupon Hirsch promised to look into
the matter. He at once called a meeting of the employees involved
and, after a discussion with them, agreed that "employment and
lay-offs shall be judged according to length of time the individual
has been employed by" the respondent, "regardless of locality in the
organization," and that vacations and wage payments for holidays
would be granted on the same basis.
In May 1941 the respondent began to dispense with many of the
operations previously performed in its warehouse, and reduced the
warehouse personnel. Pfeiffer thereupon telephoned Hirsch Jr. to
protest this action and to repeat his request for recognition. The
request was refused.
In January 1942; Pfeiffer again telephoned Hirsch Jr., stated that
the Union, had filed. charges with the Board alleging that the re-
spondent had refused to-bargain collectively, and added that the
whole matter might be disposed of if the parties were to resume
negotiations. Hirsch Jr. declined the Union's suggestion, on the
ground that the Union did not then represent a majority of the
employees.
2. Concluding findings
The issue presented by the foregoing, facts, which are substantially
undisputed except as hereinbefore noted, is whether the respondent
has interfered with, restrained, and coerced its employees in the ex-
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ercise of the rights guaranteed in Section 7 of the Act, and whether
it has refused to bargain collectively with the Union. The facts
in this case clearly demonstrate that the respondent has so interfered,
in two distinct ways: (1) by attempting to prevent its employees
from choosing the Union to represent them for the purposes of col-
lective bargaining, and (2) by refusing, despite certain negotiations
with the employees' chosen representative, to bargain in good faith
and with a sincere purpose to compose differences and embody the
agreements reached in a signed contract.28
The respondent sought in many ways to deter its employees from
choosing the Union as their collective bargaining representative. Its
action in refusing to bargain with the Union, and the effect
thereof on the employees' right to make a free-choice of representatives;
will be hereinafter discussed. In addition, the respondent first ex-
hibited its opposition to the Union shortly after the commencement
of the Union's organizational drive early in June 1940, by Personnel
Manager Bell's questioning of Richards, the Union's chief steward.
In the latter part of June, after negotations with the Union had com-
menced, Bell again demonstrated the respondent's anti-union attitude
by calling a meeting of the employees and, in effect, urging them to
deal with the respondent directly rather than through the Union.
About 10 days later, Bell called a second meeting of the employees,
promised them a general wage increase in 2 months, and granted indi-
vidual wage increases to about a quarter of the employees in the unit.
This was all done without reference to the Union and in spite of the
fact that the respondent was ostensibly negotiating with the Union at
that very time on the subject of wages. After another 10 days, Bell
called a third meeting of the employees and=advised them to,take no
part in the strike which the Union had threatened to call as a con-
sequence of the respondent's bad faith in negotiating with the Union.
Still later, Bell called a fourth meeting of the employees, announced
a reduction in the hours of work, and pointed out that there would,be
no reduction in pay. As in the case of his earlier handling of the
wage situation, there was no reference to the Union, despite current
negotiation with the Union on the subject of hours. In addition to
Bell's activities, Hirsch Jr. told the employees, at one of these July
meetings, that no one had to join the Union to keep his job; and an-
other anti-union meeting was held during working hours in the latter
part of August, purportedly by one of the rank-and-file employees
23 H J Heinz Co v. N. L R R, 311 U. S 514, aff'g 110 F. (2d) 843 (C. C. A 6 ), enf'g
10 N. L. R . B 963; Singer Manufacturing Company v . N L R. B., i .19 F. (2d) 131 (C C A.
7), cert denied 313 U. S 595, 314 U S. 705, mod'g and enf'g 24 N. L R B 444 ; N. L. R. B.
Y. George P. Pilling d Son Company, 119 F. (2d) 32 (C C. A 3 ), enf'g 16 N. L R B. 650;
N L R B . v. Highland Park Manufacturing Company, 110 F. (2d) 632 ( C C A 4 ), enf'g
12 N L R B 1238 ; Globe Cotton Mills v. N. L. R . B., 103 F. ( 2d) 91 ( C C A. 5), mod'g
and enf'g 6 N L R B. 461.
HIRSCH MERCANTILE COMPANY 395.
but actually with supervisory acquiescence and approval. Moreover;
individual wage increases were granted in the first part of August
1940 to approximately another quarter of the employees in the unit,
and a general wage increase was granted early in September 1940 to
all the remaining employees. Once again these wage increases were
granted without reference to the Union and despite the respondent's
current negotiations with the Union on that subject. Finally, Hirsch
Jr. told the employees that they need.not join the Union, threatened
to do some "firing" if the employees did not cease discussing the Union,
and stated that the respondent would never sign a contract with the
Union.
The respondent urges that the foregoing activities, and particularly
the wage increases and the reduction of hours granted directly to the
employees during negotiations with the Union-on such matters but
without reference to the Union,, do not constitute unfair labor practices,
on the ground that the Union had "refused to bargain further" and it
"appears" that such terms "would not be acceptable to the Union."
Contrary to the respondent's assertion, however, the Union never "re-
fused to bargain further," but at all times persisted in trying to reach
an agreement in the face of the respondent's repeated rebuffs, as is
hereinafter discussed. Moreover, the respondent's alleged opinion as
to the hypothetical unacceptability to the Union of certain terms can
not excuse the unilateral granting of such terms to the employees for
the purpose of interfering with their freedom of choice of representa-
tives. We find, as did the Trial Examiner, that by such activities the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.24
While thus seeking to prevent its employees from making a free
choice of collective bargaining representatives, the respondent, dur-
ing the summer of 1940, went through the motions of negotiating
with the Union, which the employees had chosen as their representa-
tive. However, the respondent carried on these negotiations with -a
fixed determination not to compose differences and embody the re-
sulting agreements in a signed contract; and,, beginning in Septem-
ber 1940, it refused even to meet with the Union. The respondent's
determination to thwart the making of an agreement with the Union
first became apparent at the second meeting, when the respondent,
29 See Singer Manufacturing Company V . N. L. R. B , 119 F. (2d) 131 (C C A. 7), cert.
denied 313 U S 595, 314 U. S. 705, mod'g and enf'g 24 N. L. R B. 444; N. L R. B. v.
Westinghouse Airbrake Company, 120 F. (2d) 1004 (C C. A. 3), enf'g 25 N. L R B. 1312;
Matter of Aluminum Ore Company and Aluminum Administrative Workers' Union, Local
No. 20661, adiliated with the American Federation of Labor, 39 'N. L R. B. 1286; Matter
of Newton Chevrolet , Ina"and International Association of Machinists, Automotive Ma-
chinists Lodge No 1001, 37 N. L. R. B 334; Matter of Pacific States Cast Iron Pipe Com-
pany and Steel Workers Organizing Committee, Local Union 1654, 37 N. L R. B. 405;
Matter of Henry McCleary Timber Company and International Woodworkers of America,
Local No. 38, affiliated with the Congress of Industrial Organizations , 37 N. L R. B. 25
396• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by its chief spokesman, Hirsch Jr., refused to recognize the Union as
representing the warehouse employees, although conceding the
Union's majority in that unit. Moreover, -despite the fact that the
respondent had had a week to consider and- take some official -action
on the Union's written proposals,-Hirsch '.Jr. -at the same, meeting .told
the Union that the respondent was "still not prepared" to state its
position on the proposals which Hirsch Jr. said were acceptable to
him, and would refuse to submit counterproposals on the demands
which he rejected.
After the second meeting the respondent's intent to frustrate the
Union became increasingly apparent. At the third meeting the re-
spondent emphasized its determination not to accord the Union the
recognition to which it was entitled, and at the fourth meeting it
stated categorically that it would limit the Union to representing its
,,members only, In addition, after attempting to forestall the Union
by a variety of dilatory and evasive strategems, including the direct
granting to the employees of improvemeiits in their working condi-
tions as a result of the Union's efforts while at the same time refusing
to discuss such matters with the Union, the respondent at the fourth
meeting flatly rejected all the Union's proposals without attempting
to explain the reasons for such action.25 Although the respondent,
attributed this action,to its directors, and particularly Hirsch Sr., it
nevertheless refused the Union the opportunity to meet with the perr
sons allegedly responsible for such outright rejection. Moreover, the
respondent persisted throughout the series of negotiations in its re-
fusal to make genuine counterpropasls on, or otherwise try to reach
a settlement with respect to, any of the demands which its repre-
sentatives rejected on their own initiative or as a result of actual
instructions from the directors.
By the sixth meeting, in the latter part of August; the Union had
bowed to the respondent's insistence that it bargain for its members
only, and had withdrawn its demands for any change in the wages or
hours currently in effect. The respondent's response to this con-
ciliatory attitude was the curt statement that the action of another
labor organization in organizing its retail employees, whom it had
requested the Union to exclude from the warehouse unit, prevented
the reaching of any agreement at all with the'Union. When the
Union nevertheless urged a further discussion of the proposed con-
tract, Hirsch Jr. was again forced to reveal the respondent's unal-
terable determination not to bargain with the Union, by his refusal
to embody in a contract such non-controversial matters as the re-
spondent's current practices as to wages, hours, holidays, and vaca-
tions, and by his refusal to agree to bargain concerning, the wages of
"See N. L. R. B. V. George P. Pilling & Son Co., 119 F. (2d) 32 (C. C. A. 3), enf'g
36 N. L. R. B. 650.
HIRSCH MERCANTILE COMPANY ,397
handicapped workers and to refrain from interfering with the rights
of the employees as set forth in the Act. Hirsch Jr. further exhibited
the respondent's true attitude by the incredible reasons he advanced
for -rejecting such of the Union's proposals as concerned-seniority and
overtime pay, in view of the respondent's unilateral conduct in grant-
ing wage increases and seniority' rights" directly to the employees.
Thereafter, beginning in September 1940, the respondent flatly
refused even to meet with the Union, although it continued to recog-
nize the Union as an object of its hostility and at the same -time
investigated the Union's complaint concerning a seniority, problem
in the marking room of the warehouse.
The respondent argues that its negotiations with the Union ful-
filled the collective bargaining requirements of the Act, but resulted
in an "impasse" on the question of overtime pay at the sixth meeting,
after which "the respondent offered to continue negotiations but the
Union refused." This argument is unsupported) in fact, since an
agreement was admittedly reached at the sixth meeting that, the
overtime premium should consist of a 60-cent supper allowance, and
since the respondent admittedly refused the Union's subsequent re-
quests for a further meeting. Moreover, as we said in the Mont-
gomery Ward case '16
It takes the affirmative effort of the two parties . . . to ,make a
collective bargain . . . The respondent, pursuant to its duty to
bargain collectively in good faith, was required to take an active
part in the negotiations to the end that agreement should be
reached if possible.
Clearly, the respondent in the instant case has not fulfilled these
requirements.
The respondent further argues that, regardless of the Union's
initial majority status, its apparent loss of majority in the early
part of September 1940 both legalized the respondent's prior refusal
to bargain with the Union and excused it from any further obliga-
tion to bargain with the Union in the future. It is true thati, after
the respondent had engaged in unfair labor practices throughout
June, July, and August 1940, a majority of, the employees, were
finally induced to withdraw, the Union's designation' as their collec-
tive bargaining representative, and were "dropped" as members by
the Union. We are satisfied, however, that the, respondent's unfair
labor practices were responsible for this action, and that such action
did not represent the unhampered expression of, the employees' de-
sires. Accordingly, we reject the respondent's argument. We find,
as, did the Trial Examiner, that the respondent cannot by its unfair
R' Matter of Montgomery Ward & Company and Warehousemen's Union, Local No 200„
etc., 87 N. L. R. B. 100, 119-124. `
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices change the bargaining representative theretofore
selected by the free will of the employees .27
Upon the entire record we find, as did the Trial Examiner, that by
the foregoing acts the respondent refused to bargain collectively with
the Union and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.28
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of t'he respondent set forth in Section
III, above, occurring in connection with the, operations of the re-
spondent 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 RE1LEDY
Having found that the respondent has engaged in and is engaging
in certain unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action which we find
will effectuate the policies of the Act.
We have found that the respondent refused and now refuses to
bargain collectively with the Union as the representative of all the
employees in the unit hereinbefore found appropriate. The respond-
ent argues that nevertheless' "the Board has no power to order a
resumption of negotiations," on the ground that the Union no longer
represents a majority of the employees. It bases this argument
on the resignations and the fact that a majority of the employees
were "dropped" from membership by the Union, hereinbefore dis-
cussed, and the further fact that most of the employees are no
longer employed by the respondent. - We find, however, that it
would not effectuate ,the, policies of the Act, to permit an employer
who refuses to bargain with a majority union to succeed in his illegal
refusal, upon a showing ,that such refusal eventuated in the Union's
loss of majority 29
27N. L . R. B. v Bradford Dyeing Association ( U. S. A), et al, 310 U S 318 , rev'g and
rem'g 106 F . ( 2d) 119 (C. C. A 1), which set aside 4 N. L. R. B. 604. See also Matter of
Fass Corp . and Pocketbook Workers Union of New York, Local No. 1 and International
Ladies ' Handbag, Pocketbook and Novelty Workers Union (A. F L ), 43 N.-L R B 125
28 At the hearing the Trial Examiner granted the respondent 's motion to dismiss the
allegations of the amended complaint that the respondent , in violation of the Act, (1) in
September 1940 procured or pemmitted Richards during working hours to circulate a peti-
tion of resignation from the Union , and (2 ) in May 1941 , while refusing to meet with the
Union, announced to its employees the partial liquidation of the warehouse , and com-
menced laying off employees without notice to the Union
2e N. L. R. B. v. P . Lorillard Company , 314 U. S 512 . rev'g and rem 'g 117 ' F. (2d) 921
,(C. C. A. 6 ), with directions to enforce 1G N. L R B. 684; International Association of
Machinists et al v. N. L. R B, 311 U. S. 72, aff'g 110 F ( 2d) 29 (C. A , D. C ), enf'g
8 N L. R B. 621; N. L. R. B v. Clarksburg Publishing Company, 120 F. (2d) 976 (C. C. A.
4), enf'g 25 N. L . R. B. 456.
HIRSCH MERCANTILE COMPANY 399
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Warehouse Workers Union Local 26, International Longshore-
men and Warehousemen's Union, affiliated with the Congress of Indus-
trial Organizations, is a labor organization, within the meaning of
Section 2 (5) of the Act.
2. All the respondent's non-supervisory employees at its place of
business at 530 South Main Street and the connecting building
at 531 South Los Angeles Street, Los Angeles, California, includ-
ing the freight elevator operators, stockmen, shipping employees, and
employees in the receiving, marking, and transfer rooms, regardless
of the respondent's classification of such employees as extra or sea-
sonal employees, but excluding the passenger elevator operators,
night men, truck drivers, tailors, maintenance men, and employees in
the retail store, the factory, the print shop, the supply room, the dis-
play department, and the office, have at all times material herein con-
stituted, and now constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
'3. Warehouse Workers Union Local 26, International Longshore-
men and Warehousemen's Union, affiliated with the Congress of In-
dustrial Organizations, was at all times material herein, and now
is, the exclusive representative of all the employees in such unit for
the purposes of collective bargaining, within the meaning of Sec-
tion 9 (a) of the Act.
4. By refusing to bargain collectively with Warehouse Workers
Union Local 26, International Longshoremen and Warehousemen's
Union, affiliated with the Congress of Industrial Organizations, as
the exclusive representative of all the employees in such unit, the re-
spondent 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.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
ECISIONS •OF ° NATIONAL- LABOR RELATIONS BOARD400 D "- '
spondent, Hirsch Mercantile Company, Los Angeles, California,- and
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Warehouse Workers
Union Local 26, International Longshoremen and Warehousemen's,
Union, affiliated with the Congress of Industrial Organizations, as
the exclusive representative of all its non-supervisory employees at its
place of business at 530 South Main Street and.the connecting build-
ing at 531 -South Los Angeles Street, Los Angeles, California, in-
cluding the freight elevator operators, stockmen, shipping employees,
and employees in the receiving, marking, and transfer rooms; re-
gardless of the respondent's classification of such employees as extra
or seasonal employees, but excluding the passenger elevator operators,
night men,'truck drivers, tailors, maintenance men, and employees in
the retail store, the factory, the print shop, the supply room, the
display department, and the office, with respect to rates of pay,
wages, hours of work, and other conditions of employment;
(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, or to engage in con-
certed activity for the purposes 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 Warehouse Workers
Union Local 26, International Longshoremen and Warehousemen's
Union, affiliated with the Congress of Industrial Organizations, as
the exclusive representative of all its non-supervisory employees at
its place of business at 530 South Main Street and the connecting
building at 531 South Los Angeles Street, Los Angeles, California, in-
cluding the freight elevator operators, stockmen, shipping employees,
and employees in the receiving, marking, and transfer rooms, re-
gardless of the respondent's classification of such employees as extra
or seasonal employees, but excluding the passenger elevator oper-
ators, night men, truck drivers, tailors, maintenance men, and em-
ployees in the retail store, the factory, the print shop, the supply
room, the display department, and the office, with respect to rates
of pay, wages, hours of work, and other conditions of employment,
and if an understanding is reached on any such matters, embody
said understanding in a signed contract;
(b) Post immediately in conspicuous places throughout its place
of business at 530 South Main Street and the connecting building
at 531 South Los Angeles Street, Los Angeles, California, and main-
HIRSCH MERCANTILE COMPANY , 401
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating : (1) that the re-
spondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) hereof; and (2)
that it,will take the affirmative action set forth in paragraph 2 (a)
hereof; '
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
AIR. WM. M. LEISERSON, took no part in the consideration of the
above Decision and Order.
493508--43-vol. 45-26