J.J. Newberry Co.

National Labor Relations Board - Board Decisions

Mar 8, 1950

88 N.L.R.B. 947 (N.L.R.B. 1950)

In the Matter of J. J. NEWBERRY COMPANY, EMPLOYER and RETAIL
CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNION 322, A. F. OF L.,
PETITIONER
In the Matter of J. J. NEWBERRY COMPANY and RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, LOCAL UNION 322, A. F. OF L.
Cases Nos. 17-RC-. 99 and 17-CA-113.-Decided March 8, 1950
DECISION
AND
ORDER
On August 17, 1949, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (I) of the Act, and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner further found that the Respondent had
interfered with an election conducted among Respondent's employees
by the Board on November 5, 1948, to determine representatives for
the purposes of collective bargaining, and he recommended that the
election be set aside. Thereafter the Respondent filed exceptions to
the Intermediate Report, and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief filed by the Respondent, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.2
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended , the National Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and Members Reynolds and
Murdock].
2 In adopting the Trial Examiner's finding that the Respondent has violated Section 8 (a)
(1) of the Act, the Board does not rely on the discharge of Baker in view of the fact that
the complaint does not allege such an unfair labor practice and it is not of same char-
acter as the violations of Section 8 (a) (1) which are alleged.
88 NLRB No. 198.
947
8S2191-51-61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 , J. J. Newberry
Company, Chanute , Kansas, and its officers , agents , successors, and
assigns, shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees at its store in Chanute, Kansas, in the
exercise of the right to self -organization , to form labor organizations,
to join or assist Retail Clerks International Association , Local Union
322, A. F. of L., or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act , except
to the extent that such right may be affected by an agreement requir-
ing membership in a, labor organization as a condition of employment
as, authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its store 'in Chanute , Kansas, copies of the notice at-
tached hereto, marked Appendix A.3 Copies of said notice to be
furnished by the Regional Director of the Seventeenth Region, shall,
after being duly signed by the Respondent , be posted by it immediately
upon receipt thereof , and maintained by it for sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other materials;
(b) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10 ) days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
IT Is ruRTFIER ORDERED that the election held on November 5, 1948,
among the employees of J. J . Newberry Company, Chanute , Kansas,
involved in this proceeding be, and it hereby is, set aside 4
8 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
4 When the Regional Director advises the Board that circumstances permit a free choice
of representatives, we shall direct that a new election be held among the Respondent's
employees.
J. J. NEWBERRY COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
949
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist RETAIL CLERKS IN-
TERNATIONAL ASSOCIATION, LOCAL UNION 322, A. F. of L., or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted acti-
vities for the purpose of collective bargaining or other mutual.
aid or protection. All our employees are free to become or remain
members of this union or any other labor organization.
J. J. NEWBERRY COMPANY,
Employer.
By-----------------------------
(Representative) (Title)
Dated--------------------
This notice must remain posted for 60 day's from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
AND
RECOMMENDED ORDER
Mrs. Margaret L. Fassig, for the General Counsel.
Mr. Thomas M. Kerrigan, of New York, N. Y., for the Respondent.
Mr. S. G. Lippman, by Mr. William F. Lennon, of Chicago, Ill., for the Union.
STATEMENT OF THE CASE
On November 22, 1948, Retail Clerks International Association, Local Union
#322, A. F. of L., herein called the Union, filed a charge with the Regional Di-
rector°for the Seventeenth Region (Kansas City, Missouri) in Case No. 17-CA-113
alleging that J. J. Newberry Company, herein called the Respondent, had com-
mitted unfair labor practices at its store in Chanute, Kansas, within the meaning
of Section 8 (a) (1) and Section 2 (6) and (7) of the National Labor Relations
Act, 1947, Public Law 101, 80th Congress, herein called the Act. A copy of the
charge was duly served on the Respondent on November 24, 1948.
On March 14,1949, the National Labor Relations Board, herein called the Board,
remanded Case No. 17-RC-299 (in which the Regional Director for the Seven-
teenth Region had conducted an election of representatives among the emnioyees
of the Respondent's store in Chanute, Kansas, on November 5, 1948, pursuant to
the Union 's and the Respondent 's "Stipulation for Certification upon Consent
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Election"),' for the purpose of adducing testimony concerning substantial and
material issues of fact raised by the Union's objections to the election, the Re-
spondent's reply thereto, the Regional Director's report thereon, and the Re-
spondent's exceptions to the Regional Director's report.
On March 16, 1940, the General Counsel of the Board,' by the Regional Director
for the Seventeenth Region, issued an order consolidating Cases Nos. 17-CA-113
and 17-RC-299; a complaint based upon the Union's charge in Case No. 17-CA-113
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and Sec-
tion 2 (6) and (7) of the Act; and a notice of hearing in the consolidated cases
upon the complaint and the Union's objection to the election. Copies of the
order consolidating the cases, the charge and complaint in Case No. 17-CA-113,
and the notice of hearing in the consolidated cases, were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices, the complaint in Case No. 17-CA-113
alleges that on and since approximately October 1, 1948, the Respondent: (a)
has vilified, disparaged, and expressed disapproval of the Union; (b) has inter-
rogated its employees concerning their union affiliations and as to their vote
in the election held by the Board on November 5, 1948; and (c) has urged,
persuaded, threatened, and warned its employees to refrain from assisting, be-
coming members of, or remaining members of the Union, or from voting for the
Union.
In its answer to the complaint in Case No. 17-CA-113, the Respondent in
substance denies that it committed the unfair labor practices alleged in the
complaint. In its answer, the Respondent also alleges that on or about October
22, 1948, the Respondent, the Union, and a representative of the Regional Director
agreed upon the settlement and withdrawal of a certain charge filed by the Union
on October 13, 1948, based upon the discharge of employee Joyce Baker, and that
this agreement of settlement bars the Board's consideration of any conduct on the
part of the Respondent or its agents which occurred prior to the date of the settle-
ment agreement.
In substance, the Union's objections to the election of November 5, 1948, in Case
No. 17-RC-299, alleged, and the Respondent's reply thereto denies, that shortly
before the election (a) the Respondent informed its employees that it would not
tolerate a union, that three or four stores had been closed by the Respondent
because of unions, and that the Respondent's Chanute, Kansas, Store could and
would be closed before the Respondent would sign a contract with a union, but
that if the employees did not vote for the Union "they would be taken care of";
and (b) that on the day of the election the Respondent gave its employees at the
Chanute, Kansas, store $50 for a party.
Pursuant to notice, a hearing was held in Chanute, Kansas, on April 26, 1949,
before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. The General Counsel, the Respondent, and the Union participated
in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues. At
the conclusion of the hearing, the undersigned reserved decision on a motion by
1 According to a tally of the ballots, furnished by the Regional Director to the parties,
14 of 15 eligible voters cast their ballots, of which 7 were for the Union and 7 were against
the Union.
2 The General Counsel and his representative at the hearing are herein referred to as the
General Counsel.
J. J. NEWBERRY COMPANY 951
counsel for the Respondent to strike the complaint. This motion is now denied in
accordance with the considerations, findings, and conclusions hereinafter set
forth. At the conclusion of the hearing, the undersigned also granted unopposed
motions by the General Counsel and counsel for the Respondent, to amend the
complaint and the answer respectively, to conform them to the proof in such
minor matters as the spelling of names and dates. The parties waived oral argu-
ment at the hearing. Since the hearing, the undersigned has received briefs from
the General Counsel and counsel for the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, J. J. Newberry Company, a Delaware corporation with its
principal office and place of business in New York, New York, is engaged in the
retail merchandising business and operates approximately 500 retail stores at
various points within the United States, including the retail store located fiat
Chanute, Kansas, whose 15 nonsupervisory employees are involved in the present
proceeding. The Respondent's store in Chanute purchases annually for resale,
merchandise of a value in excess of $50,000, all of which is shipped to the store
from points outside the State of Kansas. The store sells at retail merchandise
in excess of $100,000 each year.
The undersigned finds that the Respondent in the conduct of its business
at its store in Chanute, Kansas, is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association, Local Union #322, A. F. of L., is a,
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts a
1. Incidents before October 26, 1948
On or shortly before October 1, 1948, one of the sales clerks in the Respondent's
Chanute store informed Mrs. Bert Beck, assistant secretary of the Union, that
the clerks were dissatisfied with their working conditions and were about to walk
out. During the morning of October 1, a messenger from Mrs. Beck visited sales
clerk Colleen Bartholomew while she was working in the store and invited the
employees to visit Mrs. Beck at her home that night. As a result, a number of
meetings between the employees and Mrs. Beck were held on that night and other
nights, and on October 7 the Union filed its petition in Case No. 17-RC-299 for
certification as the representative of all the Respondent's employees at its Chanute
store, excluding office employees and supervisory employees.
At noon on October 1, after Mrs. Beck's messenger had spoken to sales clerk
Bartholomew in the store, Store Manager Morgan Bridges asked Bartholomew
whether her visitor that morning had "anything to do with the Union." Upon
Bartholomew's affirmative answer, Manager Bridges told her that she "was
l Unless otherwise indicated , the findings of fact are based upon uncontradicted evidence.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working for him and no one else, that he didn't want anything said about the
Union, that he didn't like the Union," and that "the Company would absolutely
not allow unions." He also called her a traitor and said that as far as he was
concerned , she could get her pay and leave. Finally, however, he told her (and
she agreed ) that if she would forget about the Union's proposed meeting and not
say onthing more about the Union, he in turn would forget her "saying anything
about the Union and starting the girls out on it, and [they] would go on working
as though nothing over had happened."4
On October 9, after the Union had filed its representation petition, Manager
Bridges reminded Bartholomew of her promise to "forget" the Union, and then,
saying that he thought he could trust her, told her that he wanted her to tell
him whatever she found out about the Union. About a week later, he repeated
this request to Bartholomew for information about the Union, coupling it with
a promise to "help [her] in return." At about the same time Bridges made a
similar request of sales clerk Betty Neptune, after asking her whether she had
attended any of the Union's meetings and telling her in substance that the
Respondent had closed down some of its California stores because of inability
to make profits and to keep the store going with a union present.
In one instance Manager Bridges' questioning an employee about her attend-
ance of union meetings resulted in her discharge. On October 9, upon question-
ing and receiving a denial from window dresser Joyce Baker that she knew
anything about the Union, Bridges told her that he knew "from reliable sources,
that she had attended a Union meeting, that the store wouldn't stand for a
union" and that she was betraying him because he was training her for the
position of floor walker. To Baker's query as to whether she was being dis-
charged, he said she might as well get her pay because "it would be pretty rough
there" for her. Baker thereupon drew her wages and left the store.`
2. Settlement- of charges based upon Baker's discharge ; Stipulation for Consent
Election
On October 13, 1948, the Union filed charges against the Respondent in Case No.
17-CA-78, alleging that Baker's discharge constituted an unfair labor practice
within the meaning of Section 8 (a) (1) and (3) of the Act. On approximately
October 20, 1948, the Respondent reinstated Baker to her job and compensated
her for her loss of earnings. On October 26, 1948, as the result of a conference
en October 20, 1948, the Respondent and the Union executed, and the Regional
Director approved, an agreement which recited the Respondent's reinstatement
and reimbursement of Baker, without admission that her discharge constituted
an unfair labor practice, and provided also for the withdrawal of the charge in
Case No. 17-CA-78, upon the Respondent's posting a notice to its employees for 60
days that it would not interfere with their exercise of the rights guaranteed them
by Section 7 of the Act. Pursuant to this agreement, the Respondent posted the
prescribed notice and maintained the posting for the 60-day period.
On October 27, 1948, the Union and the Respondent agreed that an election
by secret ballot be conducted by the Regional Director in Case No. 17-RC-299,
to determine whether the Respondent's employees in an appropriate unit con-
sisting of all its Chanute store employees, except office employees, the store
manager , and other supervisory employees, desired to be represented by the
Union for purposes of collective bargaining.
4 The quotations are from Bartholomew 's uncontradicted testimony.
5 The quotations are from Baker 's uncontradicted testimony.
J. J. NEWBERRY COMPANY 953
The Regional Director approved this agreement for an election and set No-
vember 5, 1948, as the date for the election.
3. Merchandise Manager Burke's statements to the employees immediately before
the election
In the latter part of October 1948, Merchandise Manager Virgil Burke, one of
the Respondent's traveling supervisors attached to the Respondent's St. Louis
divisional offices, made a regular visit to the Chanute store where he stayed from
October 26 to October 29 for the purpose of "setting up" a November sale. Leav-
ing Chanute on October 29 and proceeding on his regular schedule, he reached
Dennison, Texas, on Monday, November. 1, where, according to his testimony, he
learned from a district supervisor of the Respondent "that we had some ques•
tions of organizing the [Chanute] store." He thereupon returned by automobile
to Chanute, arriving in Chanute on November 2, and staying there until after
the election on November 5.
In that period, according to the testimony of Burke as well as that of four of
the employees, Burke told each of the store's employees separately that he under-
stood that "the store is being organized" and also asked each of them "what seems
to be wrong here." Some of the girls complained to Burke in these conversations
about such matters as low wages, the existing 10-hour workday on Saturday,
company restrictions on their attire, and the absence of any regular rest periods.
Saleslady Bartholomew testified credibly and without contradiction, that Burke
asked her whether the girls wanted a union because of working conditions or
their dislike for the store manager, and then told her that "they would rather
train a manager than train a new bunch of girls, that he knew the Company
couldn't afford to pay higher wages, they weren't making enought profit, . . .
[that] the store was more or less a training place for young, green managers,
and that before they could pay a higher wage and lose money, they would take
the store completely out of Chanute."
The consent election was conducted by the Regional Director at 5 :15 p. in. on
November 5. Earlier in the afternoon, Burke met with and spoke to all the em-
ployees, taking them in two groups. At each of the meetings, the substance of
his remarks to the girls was the same and each of the meetings was concluded
by Burke's reading the following prepared statement :
No matter what I say, no matter what the Union says, no matter if you
have joined the Union, no matter what you have promised or signed, you
have the right to vote as you desire today. No one, the Company nor the
Union, will do anything to you no matter how you vote. No one can possibly
know how you vote. This is a secret ballot election. You. vote as you please.
From the testimony, however, it appears that the substance of Burke's preced-
ing remarks was not consistent with this concluding statement. Burke himself
testified, and the undersigned finds, that at each of the two meetings Burke first
asked the girls what was wrong and that, upon their voicing complaints about the
absence of regularly defined rest periods, the lack of provision for occasional
Saturday nights off, and the Company's restrictions upon the employees' attire,
Burke said that he would see what he could do. Employee Amberg testified that
Burke then told the employees that the Respondent would not tolerate or recog-
nize a union which organized its employees. Employee Baker testified that
Burke said that if the Union won the election, the Respondent would close its
Chanute store. And employee Bartholomew testified that Burke told them that
the Respondent had already closed several stores because it could not pay the
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
higher wages demanded by unions. Burke denied having made any of the
statements thus attributed to him by Amberg, Baker, and Bartholomew. How-
ever, he admitted telling the girls that the Respondent could not pay the $38 a
week wage which he had been told the Union would demand,° that "if the Union
came or if the store was unionized, the bonuses would have to be dropped," and
that "we had closed stores in the past where the profits did not justify the
. . . continuance of the operation." The undersigned finds, in accordance
with the testimony of Amberg, Baker, and Bartholomew, that Burke told the
girls in substance that the Respondent would not tolerate or recognize the Union
as the representative of its employees ; and that if the Union won the election, the
Respondent would close that Chanute store as it had closed several other stores,
or at least eliminate the existing bonus.
4. The "prize" awarded the employees of the Chanute store on November 5
During the morning of November 5, and thus immediately before the election
held that afternoon, Store Manager Bridges told employee Joyce Baker that the
Chanute store had won a prize of $50 given by the Company for the store's sales
in a July sales contest. In accordance with the custom followed on previous
occasions when the prize money had been used for employee parties, he asked
Baker to have the girls decide what they wanted to do with the money. At the
same time, he showed Baker a company check for $50, together with a letter from
the Respondent's St. Louis divisional office. The letter was dated November 1,
announced the award of the prize for the July sale, and stated that "we are sorry
to be so late in sending through this check." Employees Baker, Bartholomew,
and Neptune testified without contradiction, and the undersigned finds, that the
Respondent's salespeople in the Chanute store received no notice of, and knew
nothing about, there having been a contest between stores for prizes in connection
with the Company's July sale until the prize award was made by Bridges on
November 5, the day of the election.
The Respondent holds an average of 12 sales in each of its approximately 500
stores every year. Some of these sales are "contests." The "contests" may be
competitions between the Respondent's 4 geographical divisions, competitions
between the individual stores in each division, or competitions both on the divi-
sional and store levels. Some of the "contests" carry prizes for the highest rank-
ing stores in each division, but others involve no prizes whatsoever. According to
Burke, whose testimony supplied this information, notices of sales and contests,
with announcements of prizes if any are to be awarded, are sent by the divisional
office to the manager of each of its stores. Then, in advance of each sale, the store
manager informs his employees if the sale is to be a contest for store prizes.
As has already been noted, there is no dispute that the Respondent's Chanute
employees received no notice that they were competing for a store prize in the
July sale until the "prize" was awarded 4 months later on the very day of the
representation election, with an apology that the check came "so late." The
Respondent's omission to give its customary notice to the employees of a com-
petition for prizes and its eventual award of the "prize" on the day of the rep-
resentation election after an admittedly unusual delay are certainly strong indi-
cations that the Respondent did not plan to award prizes in the July sale and
that, as a matter of fact, the "prize" was given not as a bona fide award for high
sales but as an inducement or bribe to the employees not to vote for representa-
tion by the Union in the election held that day.
0 The starting wage at the store was $18 a week.
J. J. NEWBERRY COMPANY 955
Through Burke's testimony, however, the Respondent sought to prove that,
whether or not the Chanute employees actually received notice, the Respondent
had advised its store managers in advance that the July sale was to be a con-
test between the stores for prizes. For this purpose, Burke produced a mimeo-
graphed notice from the Respondent's St. Louis divisional office to its store
managers which was dated June 23 and announced a "Big July Sales Contest"
starting on July 1. Since this notice referred only to a contest between divisions
and made no reference to any contest between stores or the award in prizes, it is
apparent from Burkes' testimony as to the Respondent's practice in these matters,
that the notice of June 23 does not indicate a decision by the Respondent or an
intended notice to its managers and employees that the stores were to compete for
prizes in the July sale.
Both Burke and Store Manager Bridges testified that they had also seen notices
from the divisional office to the store managers which supplemented the June
23 notice with an announcement that store prizes were to be awarded. No such
supplementary notices were produced however, although from Burke's testimony
there appears to have been no reason why, assuming their existence, they could
not as readily have been produced at the hearing as was the June 23 an-
nouncement.
Furthermore, neither Burke's nor Bridges' testimony as to these supplement-
ary notices seems reliable. Burke testified that he had taken no part either
in their preparation or their mailing. Consequently he was unable to testify
from his own knowledge that they were actually sent to the stores. Bridges'
testimony, although purportedly direct, was also unsatisfactory. Bridges took
the witness stand at the request of the undersigned after counsel for the Re-
spondent stated that he did not intend to call him as a witness because Burke
had given detailed testimony as to the July sales announcement and also be-
cause Bridges, who was in the hearing room, had just informed the Respondent's
counsel that he had been on vacation at the time and knew nothing of the July
sale. At first Bridges testified that he had been on vacation from about July 1
to July 15, but then he amended this statement, saying that actually his vaca-
tion began on July 5 and that he returned to work on July 19. Thus it appears
from Bridges' testimony that he was at work in the store for 10 days after the
sales announcement of June 23, and throughout the first 3 days of the sale which
the announcement incidentally stressed as being the most important. Yet
Bridges, continuing his testimony, said that he did not see the June 23" an-
nouncement nor the supplementary notices as to prizes until he found them in
his mail basket upon his return from his vacation on July 19. It is incredible
that such notices, if they had actually been issued as the Respondent says they
were, should not have come to the attention of Store Manager Bridges in the
10-day period before his vacation while he was preparing for the sale and con-
ducting it during its first three, most important days.
Upon the foregoing considerations, the undersigned concludes, contrary to
Burke's and Bridges' testimony, that no notices were issued that store prizes
would be awarded in the July sale; that the Respondent did not decide to
award store prizes for the July sale until the election of representatives among
the Chanute employees approached on November 5; and that it then pretended
to award the "prize" in an effort to induce or bribe the Chanute employees to
vote against representation by the Union.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions
Upon the foregoing facts, the undersigned finds (1) that between November 2
and November 5, 1948, the date of the election, the Respondent through Merchan-
dise Manager Burke individually questioned the Respondent's Chanute employees
as to the reasons for desiring representation by the Union, and offered to satisfy
their grievances in lieu of their voting for the Union in the impending election ;
(2) that on November 5, 1.948, the Respondent through Burke again offered to
eliminate the sources of its employees' dissatisfaction with working conditions
and threatened to close the store if the Union should win the election; (3) that
on November 5, the Respondent attempted to bribe its employees to vote against
the Union in the election by pretending to award them a prize for their efforts
in a July sales contest ; and (4) that the Respondent thereby interfered with,
restrained, and coerced its employees in the exercise of their rights guaranteed
under Section 7 of the Act.
The undersigned has thus found that the Respondent committed unfair labor
practices after October 26, 1948, the date of the agreement settling the previous
charges filed against the Respondent. The settlement agreement, therefore, no
longer constitutes a bar to a finding that the Respondent's conduct through Store
Manager Bridges before October 26, 1948, also constituted unfair labor practices
within the meaning of Section 8 (a) (1) of the Act' The undersigned therefore
finds that between October 1 and October 26, 1948, the Respondent, in violation
of Section 8 (a) (1) of the Act interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act by
Manager Bridges' questioning employees Bartholomew, Baker, and Neptune
concerning their affiliation and that of other employees with the Union; by
Bridges' statement to employee Neptune that the Respondent had closed other
stores whose employees had been organized by a union ; by his statements to
employees Bartholomew and Baker on different occasions that the Respondent
would not stand for a union; and by his discharge of employee Baker and threat
to discharge employee Bartholomew on the occasions when he charged each
of them of betraying him and the Respondent by joining the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above, occurring
in connection 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 commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act, the undersigned
will recommend that it cease and desist therefrom and take affirmative action in
order to effect the policies of the Act.
Since the conduct of the Respondent which has been found to constitute
unfair labor practices also interfered with and made impossible any free choice
by the employees of a bargaining representative in the election conducted by the
Regional Director in Case No. 17-RC-299, it is recommended that the Board
7 Wallace Corporation v. N. L. R . B., 323 U. S. 248.
J. J. NEWBERRY COMPANY 957
sustain the objections of election filed by the Union and set aside the election
which was held on November 5, 1948.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Retail Clerks International Association , Local Union #322, A . F. of L., is a
labor organization within the meaning of Section 2 (5) of the Act.
2. 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
{a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the Respondent , J. J. Newberry Company, its
officers, agents , successors , and assigns shall:
1. Cease and desist from in any manner interfering with, restraining, or
coercing its employees at its store in Chanute , Kansas, in the exercise of the
right to self-organization , to form labor organizations , to join or assist Retail
Clerks International Association , Local Union #322, A. F. of L., or any other
labor organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
.2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Post at its store in Chanute , Kansas, copies of the notice attached hereto,
marked Appendix A. Copies of said notice , to be furnished by the Regional
Director of the Seventeenth Region, shall , after being duly signed by the Re-
spondent , be posted by it immediately upon receipt thereof, and maintained by it
for sixty ( 60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material; and
(b) Notify the Regional Director for the Seventeenth Region in writing
within twenty ( 20) days from the date of the receipt of this Intermediate Re-
port and Recommended Order what steps the Respondent has taken to comply
with the foregoing recommendations.
It is further recommended that, unless the Respondent shall, within twenty
(20) days from the receipt of this Intermediate Report and Recommended Order
notify the Regional Director for the Seventeenth Region in writing that it will
comply with the foregoing recommendations , the National Labor Relations
Board issue an order requiring the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may , within twenty (20) days from the date
of service of the order transferring the case to the Board , pursuant to Section
203.45 of said Rules and Regulations , file with the Board, Washington 25, D. C., an
original and six copies of a statement in writing setting forth such exceptions to
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Immedi-
ately upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed, and if mimeo-
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46 should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 17th day of August 1949.
WILLIAM F. SCHARNIKOw,
Trial Examiner.
APPENDIX A
NOTICE iO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist RETAIL CLERKS INTERNATIONAL ASSOCIATION,
LOCAL UNION #322, A. F. of L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection. All our employees are free to become or remain members
of this union or any other labor organization.
J. J. NEWBERRY COMPANY,
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.