J. L. Brandeis & Sons

National Labor Relations Board - Board Decisions

Nov 3, 1943

53 N.L.R.B. 352 (N.L.R.B. 1943)

In the Matter of J. L. BRANDEIS & SONS and AMALGAMATED CLOTHING
WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS.
Case No. C-2655.Decided November 3 , 19.1,3
Mr. Eugene R. Melson, for the Board. -
Kennedy, Holland, De Lacy d Svoboda, by Messrs. Ralph E. Svo-
boda and Harry R. Henatsch, all of Omaha, Nebr., for the respondent.
Mr. David M. Schlossberg, of New York City, Mr. Frank Schaps, of
Chicago, Ill., and Mrs. Clara Kanun, of St. Paul, Minn., for the Union.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on April 6,1943, by Amalgamated Clothing
Workers of America, affiliated with the Congress of Industrial Organ-
izations , herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Seventeenth
Region ( Kansas City, Missouri ), issued its complaint dated June 4,
1943, against J. L. Brandeis & Sons, Omaha, Nebraska, 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) and (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 notices of hearing thereon
were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged in
substance that the employees in the respondent's men's, boys' and
women's clothing alterations departments constitute a unit appropri-
ate for the purposes of collective bargaining, as previously determined
by the Board;1 that the Union, following an election conducted by
the Board, was certified by the Board as the exclusive bargaining rep
1 Matter of J. L. Brandeis & Sons , 47 N L R B. 614.
53 N. L. R. B., No. 65.
352
J. L. BRANDEIS & SONS 353
resentative of the employees in the Aforesaid appropriate unit; that
the Union thereafter requested the respondent to bargain and that the
respondent refused and still refuses to do so; and that by the afore-
said refusal , respondent engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (1) and (5) of the Act.
On June 14, 1943, the respondent filed an answer, admitting certain
allegations of the complaint, but denying that it is subject to the pro-
visions of the Act or to the jurisdiction of the Board and also denying
that the afore-mentioned bargaining unit is appropriate for the pur-
poses of collective bargaining, and denying that it had engaged or was
engaging in any unfair labor practice. Thereafter the respondent,
the Union, and the Regional Attorney for the Seventeenth Region
entered into a written stipulation, waiving hearing and providing
that in lieu thereof, the record in the instant proceeding should con-
sist of the Complaint, Notice of Hearing, the Answer of respondent,
the entire record and all exhibits in the preceding representation case,
and the stipulation of the parties. The stipulation, in addition to
setting forth the facts already mentioned, provided that certain por-
tions of the record in a subsequent representation proceeding,2 involv-
ing the remainder of respondent's employees, should be incorporated
into the record in the instant case, and also set forth the volume of re-
spondent's annual business as compared to that of other department
stores in the United States. The stipulation further provided that re-
spondent did not waive an Intermediate Report, or in lieu thereof,
Proposed Findings of Fact by the Board, or the right to file objections
thereto, to have oral argument and to file briefs.
On June 29, 1943, the Board issued its order transferring the case
to and continuing it before the Board and thereafter, on August 19,
1943, issued its Proposed Findings of Fact, Proposed Conclusions of
Law and Proposed Order- Thereafter, on September 3, 1943, re-
spondent filed its Statement of Exceptions To the Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order, and a
brief in support thereof, and requested oral argument. Thereafter,
pursuant to notice, a hearing for the purpose of oral argument was
held before the Board in Washington, D. C., on September 21, 1943.
The respondent was represented at said hearing by counsel and pre-
sented oral argument. At the same hearing the respondent submit-
ted an Extended Brief Supplementing Oral Argument.
The Board has considered the-exceptions and briefs of respondent
and finds its exceptions to be without merit.
Upon the entire record in the case, the Board in apes , the following :
2 Matter of J. L. Brandeis & Sons, 50 N L. R B 325.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
J. L. Brandeis & Sons, a Nebraska corporation with its office and
place of business in Omaha, Nebraska, is engaged in the operation
of a retail department store. All of its capital stock is owned by
citizens or corporations of the State of Nebraska and all its assets'
are located within the State of Nebraska. Respondent has no out-
standing financial obligations other than short term obligations to
local banks. Respondent's principal store occupies half a block in
area and has 10 floors and a basement. The basement and first 7
floors are devoted to merchandising and the 3 upper floors are used
for service departments and an assembly hall available for use by
the public. Respondent also operates, as departments of its store,
2 drug stores in other buildings; leases 5 floors of another building
for warehousing; leases another building as a garage, carpenter shop,
and paint and repair shop ; and leases another building which supplies
heat for the main store. Respondent's store has 99 departments and
an additional 18 departments are leased to other persons, but are held
out to the public as departments of respondent's store. Through
these 117 departments respondent offers for sale to. the public the
thousands of items and services required to satisfy personal and
household needs and desires. During the fiscal year ending January
21, 1943, the respondent made purchases of merchandise for resale
at a cost to the respondent of $4,941,236, of which about 75 percent
was purchased and shipped to it from points outside the State of
Nebraska. During the same period respondent's sales totaled ap-
proximately $7,730,630, of which about 2 percent was made to cus-
tomers outside the State of Nebraska. Respondent's mail orders for
the fiscal year ending January 31, 1943, were estimated to amount in
,value to approximately $121,274, of which approximately $20,799
represented mail order sales to customers outside the State of Ne-
braska. During the same period respondent caused to be delivered
to customers outside the State of Nebraska - approximately 8,900
packages.
Respondent does not advertise on a Nation-wide basis. It does,
however, advertise in the Omaha World Herald, which has a sub-
stantial circulation in the State of Iowa, and in the Non Pareil, a
newspaper published and circulated in Council Bluffs, Iowa.
Respondent employed, as of January 5, 1943, 984 employees. Its
electrical power is purchased from the Nebraska Power Company.
Respondent contends that its business is not subject to the Act be-
cause the Act applies only to industries and not to the merchant
whose activities are not industrial in character; that its sales and
J. L. BRANDEIS & SONS 355
shipments to points outside the State are so small as to make ap-
plicable the' doctrine of de minimi8 and therefore do' not have a
direct and substantial effect upon commerce; and that purchases of
merchandise from outside the State do not confer jurisdiction. Each
of these contentions was specifically raised by a department store and
rejected by the Board and the Circuit Court of Appeals for the Sixth
Circuit in a recent case.3
Counsel for respondent, in oral argument, laid great stress upon
the contention that the volume of respondent's interstate sales is not
sufficiently large appreciably to affect interstate commerce. It is
established that the quantity of an employer's interstate business is
not the controlling factor in determining the, Board's jurisdiction,
unless that quantity is so small as to make applicable the doctrine
of de minimis.4 Interstate sales of approximately $150,000 cannot
be said to be trifling or inconsequential.5
It is also worthy of note that respondent itself considers its inter-
state business to be of sufficient importance to justify the continuous
expenditure of funds for advertising, as noted above, in a Council
Bluffs newspaper, in an effort to enlarge that business.
Respondent further contends that there is no evidence that 'com-
merce will be affected by a labor dispute at its store. This conten-
tion is supported only by the fact that there has been only one pre-
vious labor dispute involving the respondent's employees and that
that dispute had no apparent adverse effect upon commerce. The
Board's jurisdiction is not dependent upon the imminence of actual
interruption. Since the purpose of the Act is to protect and foster
interstate commerce, the Board's jurisdiction attaches, before actual
industrial strife materializes to obstruct that commerce. Our posi-
tion in this regard has been consistently upheld by the Supreme Court
of the United States.°
We conclude that respondent is subject to the Act.
II. TFIE ORGANIZATION INVOLVED
Local 285, Amalgamated Clothing Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the respondent.
IN L R. B. v. J. L Hudson Company, 135 F ( 2d) 380 (C. C A. 6) enf'g 42 N I. P B.
536, cert. denied Oct . 11, 1945. See also Newport News Shtpbneldenq and Drydock Co v.
N L R B., 101 P. ( 2d) 841 , 843; reversed, 308 U S . 241; N L. R B v Endule , 130 F. (2d)
615, cert denied , 317 U. S . 694; N. L R B V. Robert S Green, Inc, 125 F ( 2d) 485
(C. C A 4).
4N L R B v. Famblatt, 306 U. S 601 ; N L R B v. Suburban Lumber Co , 121 F. (2d)
829, cert denied , 314 U S. 693.
IN. L R B. V. Suburban Luinbe Co., supra ( Interstate sales approximately $2,000)
,e N L R B. V. Bradford Dyeanq Association, 310 U S 318: Consolidated Edison Corn-
pany v N L R. B., 305 U S 197; N L. R B. v. Fainblatt, 306 U. S . 601 ; N. L. R. B v.
Jones J Laughlin Steel Corporation , 301 U. S. 1.
i
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
Respondent contends that, even though it may be found to be sub-
j ect to the Act, its refusal to-bargain with the Union does not con-
stitute an unfair labor practice, because the unit which the Union
claims to represent is inappropriate for the purposes of collective
bargaining.
In our Decision of February 15, 1943, we found that all employees
of respondent engaged in the alteration of men's, boys' and women's
clothing (comprising'alteration department 36, and department 82),
excluding supervisory employees having the right to hire and dis-
charge, the manager and assistant manager of alteration department
36 (the women's alteration department), and the head tailor in de-
partment 82 (the men's alteration department), constitute a unit
appropriate for the purposes of collective bargaining. In that De-
cision we reviewed the evidence pertaining to the question and con-
cluded that the unit above set forth was an appropriate bargaining
unit. We have reexamined the entire record in the case and carefully
considered the arguments of respondent's counsel; we are not per-
suaded that we should alter the conclusions set forth in our preceding
Decision 7 It is sufficient to add that one of the major divisions of
,the Union here involved confines its membership to employees who
work in just such units as that which we have here found to be appro-
priate, and has been bargaining on their behalf since long before the
passage of the National Labor Relations Act.
We find that all employees of the respondent engaged in the altera-
tion of men's, boys' and women's clothing (comprising alteration
department 36, and department 82), excluding supervisory employees
having the right to hire and discharge, the manager and' assistant
manager of alteration department 36 (the women's alteration depart-
ment), and the head tailor in department 82 (the men's alteration de-
partment), constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section -9 (b) of the Act.
B. Representation by the union of a majority in the
appropriate unit
On March 15, 1943, pursuant to the Decision and Direction of
Election of February 15, 1943, an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Seventeenth Region (Kansas City, Missouri). The Union
7 We have considered the fact that since our previous Decision the rest of the respond-
ent's store has been organized
J. L. BRANDEIS & SONS 357
won the election, and on March 25, 1943, the Board certified that the
Union had been designated by a majority of the employees in the
appropriate unit, as their representative for the purposes of collective
bargaining. We find that Local 285, Amalgamated Clothing Workers
of America, affiliated with the Congress of Industrial Organizations,
is and at all times material herein has been the duly designated repre-
sentative of a majority of all employees of the respondent engaged
in the alteration of men's, boys' and women's clothing (comprising
alteration department 36, and department 82), excluding supervisory
employees having the right to hire and discharge, the manager and
assistant manager of alteration department 36 (the women's altera-
tion department), and the head tailor in department 82 (the men's
alteration department), and that, by virtue of Section 9 (a) of the
Act, the Union is the exclusive representative of all the employees in
said unit, for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of
employment.
C. The refusal to bargain
On March 23, 1943, the Union requested that the respondent bargain
collectively with the Union. On March 29, 1943, the respondent re-
plied, refusing the Union's request and stating its intention legally
to test the Board's jurisdiction and the propriety of the bargaining
unit.
We find that on March 29, 1943, and at all times thereafter, the
respondent refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate unit in
respect to rates of pay, wages, hours of employment, and other condi-
tions of work, and has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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 REMEDY
Since we have found that the respondent has engaged in unfair
labor practices, we will order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. We have found that the respondent has refused to bargain
collectively with the Union. In order to effectuate the policies of
the Act, we shall order the respondent, upon request, to bargain col-
lectively with the Union as the exclusive representative of all em-
ployees in the appropriate unit in respect to rates of pay, wages, hours
of employment, and other conditions of employment.
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. Local No. 285, Amalgamated Clothing Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. All employees of the respondent engaged in the alteration of
men's, boys' and women's clothing (comprising alteration depart-
ment 36, and department 82), excluding supervisory°employees having
the right to hire and discharge, the manager and assistant manager
of alteration department 36 (the women's alteration department), and
the head tailor in department 82 (the men's alteration department),
at all times material herein constituted, and now constitute, a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
3. Local No. 285, Amalgamated Clothing Workers of America,
affiliated with the Congress of Industrial Organizations, was on March
29, 1943, and at all times since has been the exclusive representative of
all the employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Local No. 285, Amalga-
mated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations, as the exclusive representative of its em-
ployees in an appropriate unit, respondent 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, 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,
J. L. BRANDEIS & SONS 359
the National Labor Relations Board hereby orders that the respondent,
J. L. Brandeis & Sons, and its officers, agents, successors, and assigns,
shall :
'1. Cease and desist from :
(a) Refusing to bargain collectively with Local No. 285, Amalga-
mated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations, as the exclusive representative of all em-
ployees of the respondent engaged in the alteration of men's, boys'
and women's clothing (comprising alteration department 36, and de-
partment 82), excluding supervisory employees having the right to
hire and discharge, the manager and assistant manager of alteration
department 36 (the women's alteration department), and the head
tailor in department 82 (the men's alteration department) ;
(b) Engaging in any like or related acts or conduct interfering
with, restraining, or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, whichsthe Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local No. 285, Amal-
gamated Clothing Workers of America, affiliated with the Congress
of Industrial Organizations, as the exclusive representative of all
employees of the respondent engaged in the alteration of men's, boys'
and women's clothing (comprising alteration department 36, and de-
partment 82), excluding supervisory employees having the right to
hire and discharge, the manager and assistant manager of alteration
department 36^(the women's alteration department), and the head
tailor in department 82 (the men's alteration department), in respect
to rates of pay, wages, hours of employment, and -other conditions of
employment ;
(b) Post immediately notices to its employees in conspicuous places
in and about its department store at Omaha, Nebraska, where they
can be readily seen by the employees above-described, and maintain for
a period of at least sixty (60) days from the date of posting, stating :
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; and '(2) that the respondent will take the affirmative action
required by paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.