J. B. Liebman and Co., Inc.

National Labor Relations Board - Board Decisions

May 16, 1960

127 N.L.R.B. 761 (N.L.R.B. 1960)

C. L. MORRIS, INC. 761
C. L. Morris, Inc., subsidiary of J. B. Liebman and Company,
Inc. and Local 312, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, Inde-
pendent. Case No. 4-CA-1956. May 16, 1960
DECISION AND ORDER
On November 9, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief to the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following addition.
We agree with the Trial Examiner's finding that the Respondent is
engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
The Respondent, a Pennsylvania corporation, is engaged in the
retail furniture business in Marcus Hook, Pennsylvania. It is a
wholly owned subsidiary of J. B. Liebman and Company, Inc., of
Philadelphia, Pennsylvania, a holding corporation, which owns and
controls nine other corporations operating 15 furniture stores in
Delaware, Pennsylvania, and New Jersey. Liebman and Company,
whose gross volume of business in the past year exceeded $500,000,
exercises close overall control over its subsidiaries, including the
Respondent herein, pays the monthly bills and checks, accepts daily
reports and records, and makes all major decisions incident to the
operations of the stores. It is clear, as the Trial Examiner found,
that for the purpose of this proceeding the Respondent and Liebman
and Company constitute a single Employer which meets the Board's
retail standards for assertion of jurisdiction.
We have held, however,' that in addition to showing the Board's
discretionary jurisdictional standards, the record in each case must
also show by probative evidence the existence of the Board's statutory
jurisdiction, i.e., that the operations of a respondent before us affect
interstate commerce. The record herein contains no figures as to the
purchases or sales directly or indirectly made by either the Respondent
I Southwest Hotels, Inc ., 126 NLRB 1151 ; Catalano Island Sightseeing Lines, 124
NLRB 813.
127 NLRB No. 98.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or Liebman and Company outside of the Commonwealth of Pennsyl-
vania. The record does show, however, that the Respondent is an
integral part of a company whose operations extend over the terri-
tory of three States; that the Respondent's warehouse stores mer-
chandise for Liebman and Company's Wilmington, Delaware, affiliate,
and makes deliveries of merchandise to that company's customers; and
that there is a free and frequent exchange of merchandise between
the various stores in the Liebman chain across State boundaries.
The Board with court approval has held that an otherwise local
enterprise may lose its character as such when it becomes a link in a
business which stretches over many States.'
In Polish National Alliance, etc. v. N.L.R.B.,' the United States
Supreme Court has recognized that otherwise local activities are sub-
ject to regulation by Congress where they are interlaced with business
carried on across State lilies.' We believe, therefore, that evidence
showing multistate operations of a Respondent before us is pertinent
and satisfactory evidence to support a finding that such Respondent's
operations "affect commerce" and that such Respondent is engaged in
commerce within the meaning of the Act.
Because of the multistate character of Liebman and Company's
operations and because of the above additional facts, we are satisfied
that the combined operations of Liebman and Company, including the
operations of the Respondent, affect commerce within the meaning
of Section 2(7) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, C. L. Morris, Inc.,
Marcus Hook, Pennsylvania, subsidiary of J. B. Liebman and Com-
pany, Inc., Philadelphia, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in or activity on behalf of Local 312,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, or in any other labor organiza-
tion of their employees, by discharging, laying off, refusing to rein-
2 Collins Baking Company, 83 NLRB 599 In enforcing the Board' s decision the Fifth
Circuit Court of Appeals stated as follows (193 F. 2d 483, 485) :
This close integration of ownership and operation with a bakery chain operating in
several States effectively removes petitioner from the realm of purely local enterprise.
See also Tennessee Egg Company, 93 'NLRB 846 , Air Line Pilots Association , Inter-
national , 97 NLRB 929
3 322 US 643, 648
4 See also N L R B v Local 74, United Brotherhood of Carpenters & Joiners of America,
A.F of L, et at. (Wats on's Specialty Store ), 341 U.S. 707, 712, where the Supreme Court
noted with approval the Board's taking of jurisdiction of a retail store system , because
inter alia of its operations in seven different States.
C. L. MORRIS, INC. 763
state, or in any other manner discriminating against their employees
in regard to their hire or tenure of employment, or any term or con-
dition of employment, except as authorized by1Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(b) Threatening their employees with economic reprisals to dis-
courage membership in or activity on-behalf of any labor organization.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right of self-organization, to
form, join, or assist Local 312, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Independ-
ent, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act, or to refrain from
any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as authorized by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Arthur York immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of pay he may have suffered by reason of the discrimination
against him, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Post at its Marcus Hook, Pennsylvania, store, copies of the
notice attached hereto marked "Appendix." I Copies of said notice,
to be furnished by the Regional Director for the Fourth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fourth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Order.
APPENDIX'
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership or activity on behalf of
Local 312, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Independent , or in any
other labor organization of our employees, by discharging, laying
off, refusing to reinstate , or in any other manner discriminating
against our employees in regard to hire or tenure of employment
or any term or condition of employment , except as authorized by
Section 8 ( a) (3) of the Act , as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL NOT threaten our employees with economic reprisals
to discourage membership in or activity on behalf of any labor
organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right of self-
organization , to form, join , or assist Local 312 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent , or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection
as guaranteed in Section 7 of the Act, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as authorized by Section 8(a) (3) of the Act, as
modified by the Labor -Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Arthur York immediate and full reinstate-
ment to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges , and make
him whole for any loss of pay he may have suffered by reasons of
the discrimination against him.
All our employees are free to become or to remain or to refrain
from becoming or remaining members of Local 312, International
C. L. MORRIS, INC. 765
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Independent, or any other labor organization.
C. L. MORRIS, INC., SUBSIDIARY OP
J. B. LIEBMAN AND COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed and served in the above-entitled proceeding, a
complaint and notice of hearing thereon having been issued and served by the
General Counsel of the National Labor Relations Board, and an answer having
been filed by the above-named Respondent, a hearing involving allegations of
unfair labor practices in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, was held in Philadelphia, Pennsylvania, on
October 5 and 6, 1959, before the duly designated Trial Examiner.
At the hearing all parties were represented by counsel and were afforded full
opportunity to introduce evidence pertinent to the issues, to examine and cross-
examine witnesses, to argue orally, and to file briefs. Argument was waived.
Briefs have been received from the Respondent and General Counsel.
Disposition of the Respondent's motion to dismiss, upon which ruling was
reserved at the conclusion of the hearing, is made by the following findings,
conclusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
C. L. Morris, Inc., is a Pennsylvania corporation, maintaining its principal place
of business at Marcus Hook, Pennsylvania, where it is engaged in the retail sale
of household furniture. It is a wholly owned subsidiary of J. B. Liebman and
Company, Inc., which is also a Pennsylvania corporation with its office in Philadel-
phia, Pennsylvania.
J. B. Liebman and Company, Inc., is a holding corporation, all of its stock being
owned by the Liebman family. It does not engage in the business of selling as a
store, but owns and controls, besides C. L. Morris, Inc., 15 retail stores located
in various cities and towns of New Jersey and Pennsylvania. All such Liebman-
owned stores sell furniture, although not all carry precisely the same lines of other
merchandise. Joseph Liebman is the president of all but one of the subsidiary
operating companies, but including C. L. Morris, Inc.
C. L. Morris, Inc., and all other Liebman-owned companies, are required to
submit a daily statement of sales to the parent company, and payment for all
Morris' monthly bills is made by J. B. Liebman. All store managers for the entire
group are hired, or fired, by Liebman. Specifically as to C. L. Morris, Inc., the
one store involved in this proceeding, J. B. Liebman instructs the store manager,
Harry Morris, as to the number of employees who may be carried on the payroll.
Liebman also controls the broad labor policy of C. L. Morris, Inc.,-Harry Morris
testifying that he has no authority to enter into a collective-bargaining agreement
with a representative of Morris' employees without Liebman's approval.
Contrary to the Respondent's contention, ably argued in its brief, the Trial
Examiner is convinced and finds, as alleged in the complaint and as governed by-
the cases cited below,' that C. L. Morris, Inc., and J. B. Liebman and Company, Inc.,
1 York Coca-Cola Bottling Works, Incorporated, 119 NLRB 147, and Orkin Exterminat-
ing Comnpany, Inc. (of Kentucky), 115 NLRB 622.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constitute a single integrated enterprise for the purpose of determining the Board's
jurisdiction, and are an employer within the meaning of Section 2(2) of the Act.
The Respondent in its answer concedes that the gross sales of J. B. Liebman and
Company, Inc., exceed $500,000 annually.
The Respondent is engaged in commerce within the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Local 312, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, is a labor organization admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
There are only two major issues in this case: (1) Was employee Arthur G. York
illegally discharged on June 3, 1959; and (2) on or about the same date did man-
agement threaten employees with economic reprisals if they chose to have the
Union represent them?
The circumstances of York's discharge, established by his uncontradicted testi-
mony and that of two other employees, is as follows:
1. In May and early June 1959, employees York, Perkins, and McAbee were
working in, or from, Morris' warehouse, under the supervision of Foreman Lester.
2. On June 1 and 2 these employees met with a representative of the Charging
Union for the purpose of organization. The second meeting was at York's home.
3. On June 3 Harry Morris, store manager, received from the union representative
a letter seeking recognition as the bargaining agent for these warehouse employees.
When the three employees returned that noon from lunch they were met by Morris,
who said he had received a letter from the Union and asked who knew about it.
None of the three answered for a moment, and finally York spoke up and admitted
that he did. York also told Morris, in effect, that they wanted to be represented
by the Union. Upon receiving this reply, Morris discharged York, saying, "As of
today you are finished."
4. Having thus summarily dismissed York, Morris turned to the other two em-
ployees and told them that it was "up to" them if they wanted a union, but if they
did they would work only 2 or 3 days a week and eventually Liebman would
shut down the warehouse.
5. A few days later Morris came to the warehouse and told Perkins and McAbee
that he had been called by the Union regarding his discharge of York. He further
told them that he had intended to let York go soon, but the "union business" had
"hastened it up."
6 About a week after the above-described incident, Foreman Lester told Perkins
and McAbee that Morris had been informed by Liebman that if the employees "went
union" the warehouse would be shut down.
As previously noted, undisputed testimony establishes the above-described facts.
Morris was not asked by his counsel either as to why he dismissed York or as to
the dismissal interview. He did state that sometime in the latter part of May he had
"received a note from J. B. Liebman suggesting" that he let York go, but that he
had not done so. The "note," if any, was not produced to support his testimony.
Only from other testimony, elicited from him on cross-examination, does it appear
by inference to be Morris' claim that there was no work for York to do and that
this was the cause of his discharge. And this implication is negated by his other
testimony to the effect that the busy season continued until the last of June, and
would begin again in October. Furthermore, although he claimed that York had
been hired as a "temporary" employee, he admitted that he could not recall having
told York that this was the case. It is uncontradicted that York was working
overtime at the time of his discharge
The Trial Examiner concludes and finds that Arthur York was discriminatorily
discharged on June 3, 1959, to discourage union membership and activity, and that
by this discharge and by the above-described threats by Morris and Lester to the
effect that if the warehouse employees "went union" economic reprisals would
follow, the Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act.2
2 As to Lester's statement to the two employees, heretofore described, the Trial
Examiner makes no finding either that Liebman told Morris, or that Morris told Lester,
that the warehouse would be closed Whether or not Lester had actually been so in-
formed, the coercive nature of the remark is established by the fact that Lester was a
representative of management.
L & L SHOP RITE MARKET 767
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in cdn
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Arthur York immediate and
full reinstatement to his former or substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make him whole for any loss
of pay he may have suffered .by reason of the discrimination against him, by payment
to him of a sum of money equal to that which he normally would have earned as
wages from the date of the discrimination to the date of the offer of reinstatement,
less his net earnings during such period, in accordance with the Board policy set
forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company,
8 NLRB 440.
It will be further recommended that the Respondent, upon reasonable request,
make available to the Board and its agents all payroll and other records pertinent to
the analysis of the amount of backpay due.
Since the violations of the Act which the Respondent committed are closely re-
lated to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are co-
extensive with the threat. To effectuate the policies of the Act, therefore, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS 'OF LAW
1. Local 312, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, is a labor organization within the meaning of
Section 2(5) of the Act.
2. By discriminatorily discharging employee Arthur York to discourage member-
ship in and activity on behalf of the above-named labor organization, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Stanley Levandowsky, d/b/a L & L Shop Rite Market and Re-
tail Grocery and Food Clerks Local No. 876, Retail Clerks
International Association, AFL-CIO. Case No. 7-CA-29289.
May 16, 1960
DECISION AND ORDER
On November 12, 1959, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in the unfair
127 NLRB No. 96.