J. C. Penney Co.

National Labor Relations Board - Board Decisions

May 15, 1941

31 N.L.R.B. 877 (N.L.R.B. 1941)

In the Matter of J. C. PENNEY COMPANY and RETAIL CLERKS UNION,
LOCAL No.. 1296
Case No. C-1868 .-Decided May 15, 191x.1
Jurisdiction : general merchandise selling industry.
Settlement : stipulation providing for compliance with the Act.
Remedial Orders : entered on stipulation.
Mr. Elmer P. Davis, for the Board.
Mr. A. W. Hughes, of New York City, for the respondent.
Mr. W. R. Varnell, of Houston, Tex., for the Union.
Mr. Bonnell Phillips, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Retail Clerks Union, Local
No. 1296, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Sixteenth Region (Ft. Worth, Texas), issued its complaint dated
March 19, 1941, against J. C. Penney Company, Houston, Texas,
herein called the respondent, alleging' that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and' Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by
notice of hearing, were duly served upon the respondent and the
Union. • ' '
With respect to the unfair labor practices, the complaint alleged
in substance : (1) that the respondent on or about November 1, 1940,
-discharged Jimmy Finnell, 'and on or about December 4, 1940,
discharged Walter Tomlinson, • and thereafter refused them rein-
statement because of their membership in and activity in-behalf of
the Union;, and (2) that the respondent, by the above actions, by
disparaging the Union, by advising certain of its employees in its
Houston, Texas, store that "they would never have any possibilities
with" the respondent if they became union members, and by threat-
31 N. L. R. B., No. 146.
877
878 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
ening to close said store if the respondent had to "contend with
the Union," and by various other acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Thereafter, the respondent, the Union, and counsel for the Board
entered into a stipulation in settlement of the case. The stipulation
.provides as follows :
STIPULATION
Amended charges having been filed with the Regional' Direc-
tor of the Sixteenth Region by the Retail Clerks Union, Local
No. 1296, the National Labor Relations Board, hereinafter called
the Board, by Dr. Edwin \A. Elliott, Regional Director of the
Sixteenth Region, having duly issued and served its Complaint
dated March 19, 1941 against J. C. Penney Company, herein-
after called Respondent, alleging that the Respondent had en-
gaged and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8, subsections (1) and (3)
and Section,2, subsections (6) and (7) of the National Labor
Relations Act, hereinafter called the Act, and the Respondent
having'waived its right to file Answer in this cause; it is hereby
stipulated and agreed by and between the undersigned parties
to this proceeding, that:
1-The Respondent and the Union hereby - waive their right
to a hearing in this cause, to the making of findings of fact and
conclusions by the Board, and all parties expressly agree that
this Stipulation, the Complaint with Notice of Hearing,
Amended Charge, National Labor Relations Board Rules and
Regulations, together with Affidavit of Service of said docu-
ments, previously issued in this matter, and duly served upon
Respondent and the Union, may be introduced in the record
in this proceeding by filing with the Chief Trial Examiner.of
the National Labor Relations Board in Washington, D. C., and
that said documents shall constitute the entire record in this
cause.
2-The Respondent, J. C. Penney Company, is and has been
at all times material to this proceeding, a Delaware corporation
with its principal offices being located in New York City, New
.York. It is and has been engaged in the sale, warehousing,
and distribution of general merchandise through the mainte-
nance and operation of approximately 1600 stores located in
various cities, and all States of the United States.
3-The Respondent, in the course and conduct of its business
as aforesaid, maintains and operates warehouses in New York
J. C. PENNEY COMPANY 879
City, N. Y. and in St. Louis, Missouri from which all of said
stores are supplied with general merchandise in whole or in
part, and during the year 1939 the 1600 stores of the Respondent
did a gross business in excess of $282,000,000.00 which represents
'an approximately normal annual business.
4-Of the 1600 stores maintained and operated by the Re-
spondent, approximately 100 are maintained and operated
within the State of Texas, including one at ,Houston, Texas, and
a majority of the merchandise sold and distributed through
the Houston store is supplied through the warehouses in New
York City, N. Y. and St. Louis, Missouri, above referred to,
and is shipped through channels of interstate commerce from
one or both of said warehouses to its store in Houston, Texas.
5-The Respondent admits the allegations of Paragraphs 1, 2,
3, of the Complaint, hereinabove mentioned.'
6-The Retail Clerks Union, Local 1296, is and has been a
labor organization within the'meaning of Section 2, subsection
(5) of the Act.
7-Upon the entire record in the above-entitled matter, the
Board may forthwith or at any future time issue the following
order:
The Respondent, J. C. Penney Company,,its officers, agents,
successors, and assigns, shall:
1. Refrain from
(a) 'Discouraging membership in the .Retail Clerks Union,
Local 1296, or any other labor organization of its employees
by discharging or refusing to reinstate its employees, or any
of them, or in any other manner discriminating in regard to -
hire or tenure of employment, or any term or,' condition of
employment of its employees ;
(b) In any manner interfering with, restraining and coercing
its employees in the exercise of their rights to self-organization,
to form, join and assist labor organizations, to bargain' collec-
tively through representatives of their own -choosing and • to
engage in concerted activities 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 :
(a) Make whole Jimmie Finnell and Walter Tomlinson for
the loss of pay they have suffered by reason of their discharges,
by paying said persons the sum of $239.26 and $400.00 re-
spectively, in full payment of the Respond'ent's obligations to
i
Paragraphs 1, 2, and 3 of the complaint alleged in substance the facts set forth above
in-paragraphs 2, 3, and 4 of the stipulation.
880 DECIS20N'S OF NATIONAL LABOR RET ATIONSi BOARD
them under the Act. Payment is to be effected by delivery of
checks, payable to said individuals, to the Regional Director
for the 16th Region of the National Labor Relations Board
for distribution.
(b) Post immediately in conspicuous" places in its store at
Houston, Texas and maintain for a period of at least sixty (60)
days notices stating that the J. C. Penney Company
(1) Will not' engage in the conduct from which it is ordered
to refrain in Paragraphs 1 (a) and (b) of this order;
,(2) The J., C.' Penney Company will take ^ the affirmative
action set forth in Paragraph 2 (a) of this order; and,
(3) That the J. C. Penney Company's employees are free
to become or remain members of the Retail Clerks Union,
Local 1296, and that the J. C. Penney Company will not dis-
criminate against any.' employees because of membership or _
activity in that organization.
(c) Notify the Regional Director of the Sixteenth Region
within ten (10), days from the date of the order what steps
the Respondent has taken to comply therewith.
8-It is further stipulated and agreed by and between the
respective parties in this cause, and Respondent expressly con-
sents to the entry by the Fifth-Circuit Court of Appeals of
an enforcement order embodying the terms of the Board's order
agreed to above, and the parties hereby waive further notice
of the entry of such enforcement order.
9-This stipulation and all terms and conditions thereof are
made subject to the approval of the National Labor Relations
Board.
On May 5, 1941, the Board issued an order approving the stipu-
lation and making it a part of the record, and, acting pursuant to
Article II, Section 36, of National Labor Relations Board Rules and
Regulations-Series 2,, as amended, further ordered that the pro-
ceeding be transferred to and continued before the Board for the
purpose of entry of a decision and order by the Board pursuant
to the provisions of said stipulation.
Upon the, basis of the above stipulation and the entire record in
the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
J. C. Penney Company, a Delaware corporation with its principal
offices at New York City, New York, is engaged in the sale, ware-
housing; and distribution of general merchandise, having approxi-
J. C. PENNEY COMPANY 881
mately 1,600 stores located in various cities and all States of the
United States. In the course and conduct of its business, respond-
ent maintains and operates warehouses in 'New York City and' in
St. Louis, Missouri, from which it supplies general merchandise to
its various stores. During the calendar year 1939, the respondent's
1,600 stores did a gross business in excess of $282,000,000. This pro-
ceeding is concerned only with the respondent's store at Houston,
Texas. A majority of the merchandise sold and. distributed at the
Houston store is shipped from and supplied by the respondent's
warehouses located at New York City and St. Louis, Missouri.
The respondent admits that it is engaged in commerce within the
meaning of the Act.
We find that the above-described operations constitute a continu-
ous flow of trade, traffic, acid commerce among the several States.
ORDER
Upon the basis of the above findings of fact, stipulation, and
the, entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, J. C., Penney Company,
Houstoii, Texas, its officers, agents, successors, and assigns, shall:
1. Refrain from
(a) Discouraging membership in the Retail Clerks Union, Local
1296, or any other labor organization of its employees by discharg-
ing or refusing to reinstate its employees, or any of them, or in
any other manner -discriminating in regard to hire or tenure of
employment, or any term or condition of employment of its
employees;
(b) In any manner interferring with, restraining and coercing
its employees in the exercise of their rights to self-organization, to
form, join and assist labor organizations, to bargain collectively
through representatives of their own choosing and to engage in
concerted activities 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 :
(a) Make whole Jimmie Finnell and Walter Tomlinson for the
loss of pay they have suffered by reason of their discharges, by pay-
ing- said persons the sum of $239.26 and $400.00 respectively, in
full payment of the Respondent's obligations to them under the
Act. Payment is to be effected by delivery of checks, payable to
said individuals, to the Regional Director for the 16th Region of
the National Labor Relations Board for distribution.
882 DECISIONS OF NATIONAL LABOR RELAT'IONS' BOARD
(b) Post immediately in conspicuous places in its store at Houston,
Texas and maintain for a period of at least sixty (60) days notices
stating that the J. C. Penney Company
(1) Will not engage in the conduct from which it is ordered to
refrain in Paragraphs 1 (a) and (b) of this order; `
(2) The J. C. Penney Company will take the affirmative action
set forth in Paragraph 2 (a), of this order; and,
(3) That the J. C. Penney Company's employees are -free to
become or remain members of the Retail Clerks Union, Local 1296,
and that the J. C. ,Penney Company will not discriminate against
any employees because of membership or activity in that organi-
zation.
(c) Notify the Regional Director of the Sixteenth Region within
ten (10) days from the date of the order what steps the Respondent
has taken to comply therewith.