Joslin Dry Goods Co.

National Labor Relations Board - Board Decisions

Jul 9, 1957

118 N.L.R.B. 555 (N.L.R.B. 1957)

JOSLIN DRY GOODS COMPANY 555
on the Air Force job after October 14, 1954, and (2) Hagel did not make -a
diligent attempt to obtain employment between November 11, 1954, and May 16,
1955. Accordingly, the Trial Examiner finds that the gross back pay due Hagel
amounts to $923.74 which sum is arrived at in the following manner:
Gross back-pay due from Respondent from 6-10-54 to 10-17-54______ $3, 487.07
Interim Gross Earnings 14____________ 2, 563.33---------------
Total back pay due--------------------------------------- 923.74
U Prom Morrison-Knudsen $843.16; from Patti-MacDonnald & Associates $1,404.05;
from L . E. Baldwin $316.12.
[Recommendations omitted from publication.]
Joslin Dry Goods Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen , and Helpers of Amer-
ica, Local No. 452, AFL-CIO. Case No. 30-CA-419. July 9,1957
DECISION AND ORDER
On April 9, 1956, Trial Examiner Henry Sahm issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondent, Joslin Dry Goods Company, had engaged in certain
unfair labor practices and recommending 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
found further that the Respondent had not engaged in certain unfair
labor practices alleged in the complaint, and recommended dismissal
of these allegations of the complaint. Thereafter, the Respondent and
the Charging Party, International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen, and Helpers of America, Local No. 452,
AFL-CIO, hereinafter referred to as the Union, filed exceptions to
the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions, and briefs; and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions, modifications, and exceptions :
1. Respondent is a retail department store with main and branch
stores located in Denver, Colorado, and environs. On June 29, 1954,
the Respondent received a letter from the Union in which the Union
claimed to represent a majority of the employees who work at the
Respondent's warehouse as truckdrivers, truck helpers, warehouse-
men, appliance servicemen and installers, and television service repair-
men, and requested the Company to bargain with it for these
employees. Upon receipt of the Union's demand for recognition, Store
Superintendent Jordan, telephoned the Respondent's New York
118 NLRB No. 58.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office for instructions on handling the Union's request. Jordan testi-
fied that during this conversation he was instructed to announce an
immediate wage increase and "to go ahead and correct . . . anything
else which were problems to the men."
On July 1 Jordan began calling each of the warehouse employees
into his office. In separately held interviews Jordan polled the em-
ployees as to whether they had signed a union card, solicited letters
of withdrawal from those who had, and announced a wage increase,
running in some cases to as much as $13 a week. In addition, the
Respondent's superintendent stated that the Company was "one
hundred percent against" the Union; that he "didn't believe in out-
siders coming in and telling him how the Company should be oper-
ated"; and that the Company "could sell the trucks and you boys will
be out of work." Jordan also asked who the "instigator" was; warned
that the Company "doesn't like . . . that kind of men"; requested the
employees to "remember the raise . . . if it ever came to a vote"; and
announced: "there's only six of them left that are for the Union."
On July 2, a Saturday, Union Representative Lindsay telephoned
Superintendent Jordan to inquire whether he had received the Union's
letter. Jordan acknowledged its receipt but declined to meet with
the Union at that time because he was "rather busy." There is a dispute
as to who was obligated to call whom thereafter. Union Representa-
tive Lindsay testified that Jordan said he would contact Lindsay later
the following week; whereas Superintendent Jordan's version is that
he asked Lindsay to call later the next week and Lindsay consented.
Between July 5 and July 7, five of the employees who. had signed
union cards submitted letters revoking their signatures to Superin-
tendent Jordan. On July 8 the Union filed the instant charges alleging
violations of Section 8 (a) (1) and 8 (a) (5) of the Act.
Like the Trial Examiner, we find that by its campaign of interroga-
tion, threats of reprisal, and other acts of interference, restraint, and
coercion, set forth above and at greater length in the Intermediate
Report, the Respondent violated Section 8 (a) (1) of the Act.
Although we affirm the Trial Examiner's finding that there was no
violation of Section 8 (a) (5) of the Act by the Respondent, we do
not agree with the Trial Examiner's stated reasons predicated by him
in substance on the view that the Respondent had not been accorded
sufficient time within which to determine the validity of the Union's
bargaining request. In our opinion, the conduct of the Respondent,
detailed above, which followed immediately upon the Union's request,
clearly indicates that the Respondent embarked upon a calculated
campaign to undermine the Union. The Trial Examiner, assuming
the appropriateness of the unit and the Union's majority status, none-
theless failed to relate the effect of such conduct to the Section 8 (a)
JOSLIN DRY GOODS COMPANY 557
(5) allegations.' As we do not agree with the Trial Examiner's ra-
tionale, we must pass upon the contention of the Respondent that the
Union's bargaining request embraced an inappropriate unit, a con-
tention which the Trial Examiner, in view of his ultimate holding,
found unnecessary to consider. As it is well established that a bargain-
ing request must be made in an appropriate unit to serve as a basis
for a finding of unlawful refusal to bargain, the Respondent's
contention raises a serious issue for our resolution.
The Respondent contends that the unit set forth in the Union's
bargaining request was inappropriate since it grouped television and
appliance repairmen with truckdrivers and warehousemen. The
warehouse in question, located about a mile from the main store, is
used to store merchandise carried in the Respondent's various selling
departments. In addition, a portion of the warehouse is devoted to
a television and appliance repair shop. The warehousemen and truck-
drivers perform the normal tasks which their classification implies.
Thus, the warehousemen receive merchandise, store it at prescribed
locations in the warehouse, move it as the need arises, keep records
of goods shipped in and out of the warehouse, and prepare goods for
delivery. The drivers deliver goods between the warehouse, the main
or branch stores, customers' homes, and local distributors. When not
engaged in delivery duties the drivers perform general warehouse
functions. Both groups work regular hours and their wages are
carried on the same "general" store account. The Respondent's ware-
housing and delivery employees work under a foreman at the ware-
house and they are responsible to Store Superintendent Jordan rather
than the manager of any particular store department.
The repair shop is partitioned off from the storage sections of the
warehouse with entrances separate from those used by the warehouse-
men and truckdrivers: Its function is to service and repair television
sets, radios, refrigerators, and other household equipment. Some
"benchwork" is performed in the shop but the repairmen's work is
mainly at customers' homes or on the selling floor of the main store.
One group of repairmen is assigned to appliance repair, the other to
television repair. All have a familiarity with service manual tech-
niques, and either a background of technical training or equivalent
apprenticeship. Frequent night calls are a condition of the repair-
men's employment, and their hours of work are therefore irregular.
In making service calls during the day as well as at night, the
repairmen use their own cars on a compensable mileage basis. Time-
cards for the television repairmen are located in the television repair
shop; those of the appliance repairmen are kept in the appliance
1 See e . g. KTRH Broadcasting Company, 113 NLRB 125; Idaho Egg Producers Inc.,
111 NLRB 93; Safeway Stores, Inc., 110 NLRB 1718.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department of the main store. The repairmen's wages are charged by
the Company to the merchandise department. Supervision for the
repairmen is distinct from that governing the other warehouse em-
ployees. Thus, the television repairmen have their own foremen and
although the appliance repairmen have no on-the-scene supervision,
the line of supervision for the repairmen, as a group, is through the
main store's appliance merchandise manager.
On the basis of the foregoing facts and the entire record, we conclude
that the duties and interests of the television and appliance repairmen
are different from those of the warehousemen and drivers. The
Board has held that appliance repair and service personnel are not
properly a part of a driver and warehouseman unit where the repair-
men do not perform customary warehouse duties and where the
repairmen are responsible to a store department manager rather than
to a warehouse supervisor.2 Here, the repairmen exercise skills dif-
ferent from those of the drivers and warehousemen, and the repairmen
are directly responsible to the main store's appliance manager.
Under these circumstances, we find that the repair shop, though
located in the warehouse, is for all intents and purposes merely an
adjunct of the appliance department. Accordingly, we find that the
appliance service employees were improperly included in the unit in
which the Union requested bargaining, because, as we recently stated
in the Harris 3 case, "they are not under the supervision of the ware-
house superintendent but also for the further reason that in general
they are not engaged in performing typically warehouse functions."
In our opinion the Union's failure to request bargaining in the
proper unit is fatal to the General Counsel's Section 8 (a) (5) allega-
tions against the Respondent. "[A] prior appropriate request for
bargaining is a condition precedent to any finding of a refusal to
bargain." 4 While the existence of "minor variations" between the
unit originally proposed by the Union and the unit which the Board
ultimately finds appropriate, will not, in and of itself, preclude the
Board from sustaining a refusal to bargain allegation,' we note that
here the proposed unit is virtually twice as large as the unit which
we would normally find appropriate,' and includes categories which
are not properly in the unit. Accordingly, in the face of this sub-
stantial variation between the proposed unit and the appropriate unit,
2 See, e. g., Montgomery Ward & Company, 85 NLRB 976; Mayflower Sales Company,
78 NLRB 69; Morris Kirschman & Co., Inc., 111 NLRB 776.
3 A. Harris & Co., 116 NLRB 1628 ; Associated Dry Goods Corporation , 117 NLRB 1069.
4 See Barlow -Maney Laboratories , Inc., 65 NLRB 928, 943 ; The C. L . Bailey Grocery
Company, 100 NLRB 576, 579.
e See Barlow -Haney Laboratories , Inc., supra ., at p. 944 ; Washington Coca-Cola
Bottling Works, Inc., 117 NLRB 1163.
fi According to the General Counsel , the warehouse is made up of 17 employees, 8 of
whom are repairmen.
JOSLIN DRY GOODS COMPANY 559
we shall dismiss the complaint herein, insofar as it alleges that the
Respondent violated Section 8 (a) (5) of the Act.7
ORDER
Upon the entire record in this 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, Joslin Dry Goods
Company, its agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Coercively or otherwise unlawfully polling or interrogating
employees concerning their membership in, or activities on behalf
of, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 452, AFL-CIO, or any other
labor organization of its employees, in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a) (1).
(b) Threatening economic reprisals against its employees because
of their union sympathies and activities.
(c) Offering grants of economic benefits to its employees if they
would refrain from their union activities and affiliations.
(d) Urging, inducing, and assisting, said employees to repudiate
in writing their union affiliations and their authorizations to the
Union to act for them as their bargaining representative.
(e) In any like manner interfering with, restraining, or coercing
its employees in the exercise of their rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which it is found will
effectuate the policies of the Act :
(a) Post at its warehouse, 2401 Blake Street, Denver, Colorado,
copies of the notices attached hereto marked "Appendix A." s Copies
of said notices, to be furnished by the Regional Director for the
Seventeenth Region, shall, after being duly signed by the Respond-
ent's representatives, be posted by the Company immediately after
receipt thereof, and be maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps
shall be taken by the company to insure that said notices are not
altered, defaced, or covered by any other material.
(b) 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.
7 As a unit made up of the entire warehouse is found inappropriate , it is immaterial
whether the Union represented a majority of the employees therein.
8In 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."
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8 (a) (5) of the Act.
MEMBER MURDOCK, dissenting in part :
This case, following the majority's decision in Washington Coca
Cola, supra, is, in my opinion, another example of the incorrectness
of that decision. Here an employer committed the most serious viola-
tions of Section 8 (a) (1) of the Act in a calculated effort to undermine
the Union and avoid its statutory duty to bargain in good faith.
While finding violations of Section 8 (a) (1), the majority holds that
the Respondent nevertheless should be excused from its flagrant re-
fusal to bargain on the ground that the Union did not request bargain-
ing "in an appropriate unit." I do not believe that this decision
correctly follows the literal language of the statute or the Barlow-
Maney case, supra, upon which the majority, as in the Washington
Coca Cola case, again relies. In the former case the Board was careful
to point out that a union should not be required to "precisely define"
the unit it seeks to represent. Without this qualification unions would
be required to guess exactly which employees should be excluded from
or included in an overall unit for which bargaining was requested.
The result, as here, is that an unlawfully motivated employer may
completely destroy the union's majority and then maintain that the
Union had guessed wrong as to the status of some employees and from
this argue successfully that it should not be found in violation of
Section 8 (a) (5). I can conceive of no doctrine more harmful to
the encouragement of collective bargaining. It may well be that
the majority's decision in the instant case to exclude servicemen from
the warehouse unit is right even though in several cases the Board
has also included such employees in this type of unit .9 These matters
can always be settled in a representation proceeding which was at all
times available to the Respondent in this case. In my opinion, how-
ever, the fact that some employees are best excluded from a requested
unit should not be used to defeat the statutory requirement that an
employer bargain in good faith with the representative of its em-
ployees. Here the Union had a majority among the employees it
requested. It also had a majority for a warehouse unit comprising a
smaller number of employees, the identical unit found appropriate
by the Board. Under these circumstances I would find that the Re-
spondent violated Section 8 (a) (5) as well as 8 (a) (1) of the Act.
MEMBERS BEAN and JENKINS took no part i n the consideration of
the above Decision and Order.
O Jordan Marsh Company, 78 NLRB 1031; Television Company of Maryland, Inc., 101
NLRB 355.
JOSLIN DRY GOODS COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
561
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, as amended, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations, sentiments, or activities; threaten our employees with
reprisals because of their union affiliations and activities; offer
them benefits to induce them to withdraw or refrain from union
affiliations and activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
our employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except as
that right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act. We will not discriminate in regard to
the hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on
behalf of any labor organization.
JOSLIN DRY GOODS 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on July 8, 1955, by the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local No. 452, AFL,
now merged with the Congress of Industrial Organizations, herein called the Union,
against the Joslin Dry Goods Company , the Respondent herein , the General Counsel
of the National Labor Relations Board issued a complaint on November 30; 1955.
The complaint alleges that the Respondent Company had engaged in and was en-
450553--58-vol. 118-37
562 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
gaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act. Copies of the charge, complaint , and notice of hearing
were duly served upon the Respondent and the Union.
The complaint alleges, in substance , that the Respondent violated Section 8 (a)
(1) of the Act in that it interrogated its employees concerning their union activities
and the identity of the employees who were leading the organizational, activities;
threatened reprisals, offered economic benefits to their employees if they would
refrain from their union activities ; urged them to repudiate their union affiliations, and
unilaterally granted said employees a wage increase . The complaint . also alleges
that the Respondent engaged in unfair labor practices within the meaning of Section
8 (a) (5) of the Act, in that it refused to bargain collectively with the Union. ,
The Respondent in its answer admitted the jurisdictional allegations of the com-
plaint and that the Union is a labor organization within the meaning of Section 2
subsection (5) of the Act. The Respondent also admitted in its answer that the
Union requested it to bargain on June 29, 1955, and that the Union, by .telephone,
discussed with Respondent a convenient date for a meeting, but justifies its refusal
to enter into collective-bargaining negotiations with the affirmative explanation that
the Union's request was based upon a unit inappropriate for collective bargaining
and that on.June 29, 1955, and thereafter, the Union did not represent a majority of
its employees.
Pursuant to proper notice given, a hearing was held on the issues framed by the
pleadings in Denver, Colorado, from January 16 to 20, 1956, inclusive, before Henry
S. Sahm, Trial Examiner. All parties were represented by counsel, and were
afforded full opportunity to participate in the hearing, to introduce relevant evidence,
and to argue orally. Briefs were filed by the General Counsel and the Respondent,
and have been carefully considered.
Upon the entire record in this case, including the briefs filed by the parties and cita-
tions of cases alleged to be dispositive of the issues in this case , and from observa-
tion of the demeanor of the witnesses while testifying , the Trial Examiner makes
the following:
FINDINGS OF FACT I
1. THE BUSINESS OF THE RESPONDENT
It is conceded that Respondent, a Colorado corporation, is a wholly owned sub-
sidiary of Mercantile Stores Company, Inc., a Delaware corporation, whose main
offices are located in Wilmington, Delaware. Mercantile Stores Company, Inc.,
through various subsidiary companies, including Respondent, operates 19 major de-
partment stores, 34 junior department stores, and 13 branch appliance stores, located
in 17 States of the United States, and 1 store in Hamilton, Ontario, Canada. The
operations of Mercantile Stores Company, Inc., for the year 1954 amounted in
value to net sales of approximately $130,882,985; total income of $9,017,691, and
net income of approximately $3,523,491.
Respondent, Joslin Dry Goods Company, operates 6 stores employing about 450
employees: a major store located in Denver, Colorado, and 5 branch stores, of which
4 are located in Denver and suburban towns, and 1 is located in Greeley, Colorado,
55 miles from Denver.
Respondent in the course and conduct of its business operations during the year
1954, purchased merchandise and goods valued at approximately $8,000,000,, ap
proximately 75 percent of which were purchased and shipped in interstate commerce
to Respondent's 6 stores from points outside the State of Colorado. It is found,
therefore, that the Respondent, Joslin Dry Goods Company, is engaged in commerce
within the meaning of the Act, and it is subject to the jurisdiction of the Board.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that the Union is a labor organization within the meaning
of Section 2 (5) of the Act.
' In resolving the disputed issues , where no mention is made of certain evidence intro-
duced by the parties, it is not because consideration was not given to such evidence, but
rather because it is regarded as immaterial to deciding the salient issues in this proceed-
ing. Moreover, in this proceeding inasmuch as no refusal to bargain is found, infra, it is
unnecessary to make any determination with respect to the appropriate unit or as to the
majority status of the labor organization.
JOSLIN DRY GOODS COMPANY 563
III. THE ALLEGED UNFAIR LABOR PRACTICES
Alleged Violations of Section 8 (a) (1)
The Union began an organizational drive in June 1955 to recruit members from
among- the employees of the •Joslin Dry Goods Company who worked at its main
warehouse in Denver, Colorado. During the course of the organizational drive, 10
"warehouse employees" 2 signed union membership application cards.3 These cards
authorized the Union to act as bargaining agent for the signers. On June 29, 1955,
the Respondent Company received a letter from the Union in which the Union
claimed to represent a majority of the employees who were employed at Respondent's
warehouse as truckdrivers and their helpers, warehousemen, and appliance and
television servicemen and requested the Company to bargain with it.
The General Counsel alleges that after the Union requested the Company to
bargain, Respondent's superintendent interrogated some of the employees with respect
to their union activities and affiliations; induced employees to revoke the authoriza-
tions they had previously given to the Union to represent them; increased the em-
ployees' pay for the purpose of persuading the employees that they did not need
the Union to represent them; and threatened to do away with the Respondent's truck
delivery service if they persisted in adhering to the Union. These allegations are
based on the following testimony which was adduced by the General Counsel at the
hearing.
Arthur L. Ver Wey who was formerly employed by Respondent from April to
the latter part of July 1955, as an appliance serviceman, signed a union authoriza-
tion card on June 20, 1955. On or about the 1st of July 1955, Jordan, superin-
tendent of Respondent, called Ver Wey to his office in the main store which is about
a mile -from the warehouse. Ver Wey testified that Jordan asked him to "submit a
letter to the Union" revoking the authorization he had given the Union to represent
him. Ver Wey's testimony continues as follows:
[Jordan] said he had contacted most of the men at the warehouse in the appli-
ance departments and finding them very much opposed to having the Company
organize, he said he didn't believe in any outsiders coming in and telling him
how the Company should be operated. He also mentioned the fact that we
would be put on a forty-hour week instead of forty-eight hour straight time
which he was very much opposed to. I believe that was one of the determining
reasons I submitted this letter. He did make mention of the fact that he could
lease out. the drivers and this service work in both departments?
Ver Wey was asked later that same day to return to Jordan's office. At the time
he was working at a customer's home and was contacted by Brewer, one of his
superiors, who telephoned the customer's home and asked the customer to tell
Ver Wey to call him (Brewer) back. When he did, Brewer told him that "Mr.
Jordan wanted that letter [revoking his union authorization] that I had promised."
Brewer then told Ver Wey to come immediately to Jordan' s office. Ver Wey
testified that, "Mr. Jordan was there and myself, and I had the letter written in
my own words before I arrived at the office. His secretary typed it and I signed
it." An original and two copies were typed; the original was mailed by the
Respondent to the Union, a copy given to Ver Wey, and another retained by the
Company.5 _
2 The term "warehouse employees" is used herein in a descriptive sense and not as a
legal conclusion.
. 8 The General Counsel contends that the appropriate unit at the warehouse comprises
17 employees : 8 truckdrivers and helpers, 4 television repair servicemen, 4 appliance repair
servicemen, and 1 warehouseman. Respondent contends, however, that four additional
men who wort: at the warehouse are not supervisors within the meaning of Section 2 (11)
as claimed by the General Counsel but rather rank-and-file employees. Respondent also
contends that if the unit proposed by the General Counsel is an appropriate one, then 2
other employees (carpet serviceman and dockman) should be included in this unit or a
total of 23 employees.
4 At one time, Respondent's deliveries of merchandise to customers were handled largely
through separate contract with an independent delivery service. Deliveries of appliances
and other large bulk items were handled by Respondent. In mid-1954, the Company
bought trucks, employed 8 drivers and helpers which presently handle 25 percent of the
Company's deliveries, the other 75 percent being handled by an independent delivery
company.
5 All of the employees ' letters to the Union revoking their authorizations were mailed
by the Respondent.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Ver Wey was asked on cross-examination if Jordan told him that he had
to sign the letter, he answered:
He didn't tell me I directly had to, no. I wasn't forcibly made to sign a
letter, but from what I surmised from the interview, my interpretation of the
visit, it would be advisable to sign the letter from the matters that Mr. Jordan
presented me and the fact that the Company changed their policy and in
allowing time and a half after 40 hours.6
Robert P. Canada, who is presently employed by Respondent as a truckdriver,
signed a union authorization card on June 17, 1955. Jordan spoke to him on
July 1 at the warehouse. Canada testified that Jordan first advised him that his
pay was to be raised $13 a week, and that the employees had no need for a union.
The following morning, July 2, Canada was told to report to Jordan's office.
Canada testified as follows:
He started telling me about this letter he'd received from the home office
specifying he was unfair to his men and they should get wages up to where
they belong so everybody'd be satisfied. Again he started telling me what he
didn't like about the Union and he showed me a piece of paper he had on
his desk with two columns, "Yes" and "No" columns, with the names covered.
He had the names covered. And it specified whether they wanted Union or
didn't want it. I only seen one check mark with "Yes" on it and after one
name. Then he asked me. if I'd consider signing a similar letter to that effect.
I told him I didn't know. It was a letter he'd received from one of his
employees specifying that he don't want nothing to do with the Union after
he heard the Company was one hundred percent against it, and he asked me
if I'd consider signing one of those letters. I told him, "I don't know." He
said, "Think it over the holidays and let me know."
On July 5, Jordan again called Canada to his office. His testimony continues:
I went in and Mr. Jordan says, "Have you made up your mind?" I says, "I
don't know yet." He said, "Well, we could sell the trucks and all you boys
would be out of work. We don't want to do that because we're making money
using our own trucks and using our own men." He asked me if I'd sign and I
told him I'd think it over and let him know the next morning.
When Jordan called the next morning, Canada went to his office. Canada
testified:
I went in and he says, "Have you thought it over?" I told him "yes" that I'd
sign. He produced this letter he had already prepared stating the Union-I
didn't want to have anything to do with it, to send back my letter [authoriza-
tion card]. I signed it and he says, "I'm glad you signed that because if you
hadn't have, I got orders from the home office I was supposed to take some
drastic steps."
Thomas L. Rogers, who is presently employed as a truckdriver by the Respondent,
signed a union authorization card on June 13, 1955. On July 1, Jordan called him
to his office and told him he was to get a raise in pay. Rogers' testimony
continues:
. Then he asked me if I had been contacted by the Union representative,
and I said I had and he asked me if I signed a card. I told him "Yes" and
he asked me if there had been an instigator, and I told him the boys got
together on their own.
On July 5, Jordan again called him to his office and said, according to Rogers:
"Well,'I suppose you can see we are trying to improve things around here," and
he said, "I have talked to all the boys and there's only six of them left that
are for the Union. And then he said-and I know one of the boys he talked
to didn't know what he signed and he sent the letter to the Union asking them
to return his card. And he says, "I have one of the fellows here that asked
me to withdraw his card from the Union." And then he asked me if I would
6 Respondent's counsel on cross-examination asked : "So you did it because you wanted
to rather than because Mr. Jordan was threatening you or forcing you to do it." Ver
Wey answered : "I would say that I voluntarily signed it, yes."
JOSLIN DRY GOODS COMPANY 565
write a letter. He said, "I believe in giving you older boys a chance to write
a letter as I think it would be to your advantage. I don't care too much
about the fellows that haven't been here so long." And then I told him that
I'd have to think about it or that I'd let him know that evening. And as we
were going out of the office, he told me New York had given him authority
to decide whether to use his own trucks or rent trucks out. He said he'd have
to see.
Well, when I got back in about 4:15 Tom Grieve asked me if I had called Mr.
Jordan, and I told him "No." He said, "you'd better call him right away as,
he is going to leave." And I went and talked to Bob Canada and we decided
we'd better write the letter or we would be jeopardizing our job. . . . So we
went up to the store to get our paycheck, and I went in to get my pay and the
girl in the payroom told me that Mr. Jordan wanted to see me right away
in his office. So I went to his office and he asked me if I would write the
letter. I said I would, and I would write a few words and give it to him the
next morning.. . [The following morning] I went right to the store and I
had a few words written on a piece of paper and I handed it to Mr. Jordan,
and he read it and said that he didn't like the way it was phrased and that he
knew about these legal deals, and that he'd like to rephrase it for me. Well he
rephrased it and handed it to me for me to read. And then he called in Mr.
Robb [personnel manager] and had him type it up and I signed. He typed up
three copies and I signed them, and he gave me one.
Robert L. Edwards, a truckdriver for Respondent, signed a union authorization
,card on June 17, 1955, designating the Union as his agent for collective-bargaining
purposes. On July 2, 1955, Jordan, Respondent's superintendent, told Edwards that
he was increasing his salary $13 a week because the Company wanted to share its
increased profits with its employees? Edwards also testified that Jordan asked;
him at that time:
if this thing ever came to a vote, he told me he had no objection to the
Union, but that they didn't wish to be dictated to, anybody telling them how,
to run their business, and he said if it ever come to a vote he wished that I.
would remember the raise. They were doing it for us... .
Robert E. Guyer who is presently employed by Respondent as a truckdriver signed':
a union authorization card on June 17, 1955. Jordan called him to his office on
July 1 or 2 and informed him that he would receive an increase in pay. Jordan
then asked him, "What I thought about the Union. . He asked me if I would'.
sign the card. I told him `No.' He said something about a vote. `Well,' I says,.
if the boys want a union, I'll go along with them to make the majority greater."
Robert L. Beckham, who is presently employed by the Respondent as a truck
helper signed a union authorization card on June 8, 1955. On July 2 he was.
.called to Jordan's office. His testimony is as follows:
[Jordan] talked about the pay raises. Then he says, "how would you like to
have a nice pay raise?" I said, "pretty nice, I never refuse anything like that."
Then he went on to say, how would I be voting, would I be voting for the
majority if I would go Union. I said, "I'd vote for the majority if the boys;
go along with it."
On or about July 6, Jordan again called Beckham to his office. At that time,
Beckham testified that Jordan said:
. .. he had the go-ahead from the officials of the Company that they could
rent trucks out cheaper than they had been using them in the warehouse
and . . . he showed me three letters, but I didn't get to see the names on
these letters, where the men would sign the Union withdrawal. And he asked
me if I'd sign a letter. I told him-I asked him-I says, would it affect my
job in that I was newest man there? and he said, "no." He said I would not
be laid off if I signed the letter. Then he, after that, he called a stenographer
in and he dictated a letter to the Union stating that I wanted my card back.
4 Edwards testified that he had received a $5-a-week raise, effective June 15, 1955, but
only after he had appealed to five company officials. The $13-a-week raise of which Jordan
notified him on July 2, 1955, was -unsolicited.
566 DECISIONS OF NATIONAL. LABOR -RELATIONS BOARD
Robert J. Ferris, who was formerly employed in Respondent's television repair
,shop, signed a union authorization card on June_ 9, 1955. Ferris was called to
Jordan's office on July 1 or 2 and informed that he was to receive a raise in salary.
Ferris' testimony continues as follows:
Then [Jordan] said that he knew all about the Union and he said some of
the fellows had told him that I had initiated the Union and he said I had
a good record in any department I had worked for, he'd gotten good reports.
He felt this was like a kick in the teeth .to the Company and he said further,
"frankly if we had known you were strong Union when we hired you, we
wouldn't have hired you because the Company doesn't like to hire that kind
of men." Then he asked me what I thought of the whole thing. I said,
well, I thought that I appreciated the raise but I still felt we needed representation.
Ferris testified that 4 or 5 days later, which would place the date sometime be-
tween July 5 and July 7, Jordan again called him to his office. Ferris testified
that:
... [Jordan] said knowing how I felt about the Union he didn't think I'd
want to sign the statement like some of the boys had been signing, and I
said, no, I didn't want to sign any statement. And then he said, at that, time,
that I represented the minority. He said that most of the boys felt, with the
new raise and everything they didn't need a Union and that's about the gist
of it. . At one of the two meetings, I don't remember which one it was,
he said that they might do away with the trucks and the drivers, and he
mentioned it. He didn't say definitely. He said we might do away with them.
Holman D. Long, who is presently employed by the Respondent as a helper on
one of its appliance trucks signed a union authorization card on June 17, 1955.
On July 5, Jordan called him to his office. Long's testimony follows:
He asked me how I felt about the Union. I told him I had belonged to the
Teamsters Union since 1937 and at the time still carried a card. And then
he went ahead and asked me if I had been approached and had signed a card.
I told him I had. Then he asked me who I was approached by, and I told
him I'd rather not answer that. Then he went ahead and outlined where he
had a substantial raise figured out for me, to be a nice increase of approxi-
mately $12 per pay period, and that was about all of it.
The following morning, Jordan again called Long to his office. Long testified
that:
[Jordan] explained to me that the boys were signing some letter to the effect
that they didn't want the Union and it centered between two of us, of which
one of us was myself. . I told him if he would have the letter typed up I
would sign it as I felt I had no other alternative. He called in his secretary
and helped me dictate the letter to the effect that we didn't want the Union
to represent us. However, before I did sign this letter, I asked him if there
would be any hard feelings towards the one that had instigated it, and he
said "none whatsoever," and I signed the letter, and that was it.
Arthur G. Oetken, truckdriver, and Paul R. Whitehead, television repairman,
testified that they signed union authorization cards.
Ivar N. Jordan, superintendent of the Respondent Company, testified that he
began a wage survey in March 1955 to determine whether the so-called warehouse
employees were entitled to an increase in salary. It was upon the basis of this
survey, he testified, that he decided on June 15 to raise wages and on July 1, he
notified the warehouse employees that he had granted them a wage increase effective
July 15, 1955.
Jordan's direct testimony continues as follows:
Q. Did you talk to some of the employees of Joslin's about the union after
June 29th, after you received this letter?-A. Yes.
Q. Where did you talk to them?-A. Well, in two places, at the warehouse
and in my office.
Q. What was your purpose in talking to these employees?-A. Well, I -had
never heard anything about the union and I felt that I should find out a little
more about what was going on, if anything. I supposed that I could give
JOSLIN DRY GOODS COMPANY 567
some credence to this letter but I,wanted to find out for myself. I wanted
to find out just what it was all about actually.
Q. When you say ."find out what it was all about," what do you mean?-
A. Well, for example, he [union representative] said that he represented the
majority of our employees, and I just didn't hardly think that he did, and I
wanted to talk with some of the employees, try to determine for myself what
the whole story was, and I knew that there had been an increase in the work
for them. And I, at that time, decided to talk to them and tell them how
we felt as a store about the working conditions, wages and hours for that
group, and to outline our policy, and to tell them that even though we had
this group of truckdrivers, especially in our own minds, as sort of on a test
basis as far as the trucks were concerned, that I wanted them to know that
everything, at the moment, seemed to be going all right and ,that, as far as
we were concerned, they were entitled to increases and they were going to
get. it, and to find out if there was anything in the way of working conditions
that they didn't like, and to see what I could do about correcting them. And
also I told them, during this time, that since these trucks had been on an
experimental basis, that I'd always held it within my authority to use rented
delivery if I felt it was expedient economically to do so. I think that's what
some of their remarks stem from.
Q. Did you indicate to them that if the union came in or if the union
was voted in you would change your method of delivery?-A. No, I didn't
say anything as far as tying my remarks to the union. I did mention something
about the organizational campaign that I assumed had been going on from
Mr. Lindsay's letter, However, I didn't even know there had been. But I
wanted to find out , as I have said , just what had been going on. So I told
them, first of all, this was a free country. They could do as they wished.
They could not tell me a thing they didn't want to. I wanted them to know
the company's position in this matter because I felt , before they made a final
decision in the case , that if anything ever came for vote they were entitled
to -know both sides, and I wanted them to know the company's side of the
matter. I told them we never found it necessary to work with a collective
bargaining agent and I had hoped that, as far as I was concerned, that it
wouldn 't be necessary . But if the majority of them wanted a union , that's
what they would get . I asked them, if they wouldn 't mind telling me, that
it was voluntary on their part to answer, whether they had participated in
any of this organizational campaign . I received three answers , in a general way,
from them. One was "No, I haven't heard anything about it." The other
was; "Yes, but I haven't paid much attention to it." The other was, "Yes, I
have participated ." And a couple of them actually declined to answer me,
and I didn't press it any further. With the indications of the ones that
,answered "Yes I told them I would like them to consider , after hearing the
company's position , to withdraw from any such action if they felt that was
the thing to do, and some of them did withdraw and wrote letters with the
help of our store secretary.
Q. Why was the store secretary brought into it?-A. I felt that there was
no' real reason other than legibility or clarity of the letters rather than in their
own handwriting . I had no ulterior motives in it. Actually, I called the
secretary in and they dictated the letters , in the main, to the store secretary.
I think, with one exception . She typed them out and they signed them, and
one was mailed by the store to the union or to the Teamsters 452, I believe.
On cross-examination when Jordan was asked if he had decided on June 15
to give the men a raise why did he wait until July. 1 to notify them, he answered:
"I just plain didn't get around to it."
Q. Until after you called New York after the 29th. After that call you
announced it to the employees . Isn't that correct?-A. That's correct.
Q. All right. And you heard about the union , organizing on the 29th,
didn't you?-A. . . We discussed it, Mr. McWilliams and I discussed it
with the home office, sometime after the 29th, probably on the 30th.
Q. And the, next day you started advising the employees that they: had
this raise.-A. That's correct.
Q. Did the home office authorize you to grant • this raise?-A. No, , they
merely suggested that since I had the increase instituted and actually started in
the works , to go ahead and announce it.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
To summarize briefly, then, that part of the complaint alleging that Respondent
violated Section 8 (a) (1) of the Act 8 avers that the employees were interfered
with, restrained, and coerced in the exercise of the rights guaranteed them under
the Act in the following respects: threatened with economic reprisals because of
their union sympathies and promised economic benefits if they did not join the
Union; interrogated concerning their union activities and membership and ques-
tioned about the identity of employees who were leading the Union's organizational
activities. Respondent contends, however, that under the circumstances presented
in this case, it felt it necessary to make inquiry of the warehouse employees to
determine. whether there was any basis for the allegation made in the union letter
which was received by it on June 29, stating that a majority of the employees
employed at the warehouse as truckdrivers, truck helpers, warehousemen, appliance
servicemen, and television servicemen had authorized the Union to represent them
in collective bargaining. The Respondent also denies that the employees were
threatened or coerced; on the contrary, Respondent contends that the employees
were assured that there would be no reprisals if they decided to join the union.
In determining whether an employer's conduct amounts to interference, restraint,
or coercion within the meaning of Section 8 (a) (1), the test is not the employer's
intent or motive, but whether the conduct is reasonably calculated, or tends to,
interfere with the free exercise of the rights guaranteed by the Act .9 Then, too, on
the issue of whether the Respondent violated Section 8 (a) (1) of the Act, it is not
required that each item of the Respondent Company's conduct be considered sep-
arately and apart from all others but consideration must be given to all such conduct
as a whole.10
The Board has held that an employer's systematic questioning of employees
about a union's status with its employees in a bona fide attempt to determine the
validity. of the Union's representation claim is not per se unlawful unless an
overall perspective of the factual situation discloses the interrogation was conducted
under such circumstances, and in such a manner as restrained or interfered with
the employees in the exercise of their rights.11 While the act of questioning employees
cannot abstractly be declared to constitute a violation of Section 8 (a) (1) of
the Act, nevertheless, if the setting, the conditions, the methods, the incidents,
the purpose or other probative context of the particular situation can be appraised,
in reasonable probability, as having the effect of restraining or coercing the employees
in the exercise • of such rights, such activity on the part of the employer is violative
of this section of the Act.12
In applying these tests to the evidence in this case, it is found that Respondent's
course of conduct violated Section 8 (a) (1) of the Act for the reasons hereinafter
indicated. Accepting Respondent's contention that its purpose in questioning the
employees was to ascertain whether the Union represented a majority of its
warehouse employees in order to decide how to respond to the Union's demand
for recognition, nevertheless, its methods in obtaining this information was accom-
plished in a manner which went beyond the limits permitted by the Act. Assuming
8 The relevant provisions of the National Labor Relations Act, as amended (61 Stat.
136, 29 U. S. C., Sees. 151, et seq.), are as follows :
UNFAIR LABOR PRACTICES
SEc. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 ;
s s * • s • •
RIGHTS OF EMPLOYEES
Sec. 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment as authorized in section 8 (a) (3).
° N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811, 814 (C. A. 7).
1° N. L. It. B. v. Popeil Bros., Inc., 216 F. 2d 66, 68 (C. A. 7).
11 Blue Flash Express, Inc., 109 NLRB 591 ; Graber Manufacturing Company, .Inc., 111
NLRB 167; Lily-Tulip Corporation, 113 NLRB 1267.
12 N. L. R. B. V. Protein Blenders, Inc., 215 F. 2d 749, 750 (C. A. 8).
JOSLIN DRY GOODS COMPANY 569
this asserted right to question employees in order to determine the validity of a
union's representation claim is vouchsafed to the Respondent, nevertheless, its
right is limited by the Act to the extent that it cannot be exercised in such a
manner as to amount to an interference with, restraint, or coercion of, the employees
in the exercises of the rights guaranteed to them by the Act. This is especially true
in the insecure organizational period, as here, where the employer can make a
seemingly innocent question suggest his displeasure with employees who support
the union. Such questions may convey an imagined threat of reprisal, even if the
employer intends neither the threat nor the reprisal.
Respondent's justification for the interrogation of its employees on the ground that
its purpose was to verify the Union's representation claim in order to ascertain
whether the Union was entitled to represent the employees is belied by Jordan's
threats to discontinue its truck delivery service. But even assuming that verification
was Respondent's objective, it would hardly justify imposing upon employees the
coercion implicit in questioning them on an individual basis, and in some cases
more than once, and under the circumstances disclosed by the evidence in this
proceeding.
Respondent's increasing the employees' wages 2 days after the Union's demand
for recognition, lends persuasive force to the conclusion, and it is so found, that the
pay increases were granted at the time for the purpose of persuading the employees
that they would be better off without union representation.13 The Respondent's
response to the stimulus of the Union's representation claim was to alienate the
Union's adherents by increasing their wages. The survey which Jordan testified
that he undertook in March 14 to determine whether these employees were entitled
to a pay increase was pursued in a leisurely manner until the Union came upon the
scene, at which time it was determinedly completed and the wage increase announced
2 days after Respondent received the Union's letter. Such a chronology cannot be
rationalized as a mere temporal coincidence. In arriving at the conclusion as to
the purpose of the wage increases, reliance has been placed upon the belief that the
July first wage increase was not put into effect pursuant to normal management
policy, in view of the fact that a wage increase had been given the warehouse
employees only a month prior to the July first increase. Also, the precipitate July
increase was in an amount considerably more substantial than the wage increases
Respondent had granted these employees heretofore.
Additional conduct of Respondent which are singly and in combination unfair
labor practices are: (1) Jordan's tactics and participation in the preparation of letters
which eventuated in some of the employees revoking the authorizations previously
given to the Union to represent the signers as bargaining agent; 15 (2) Jordan's
questioning Rogers as to who was the "instigator" of the Union and employee Long
as to who had solicited him to sign a union authorization card; and (3) Jordan's
statements to Ferris, Rogers, Beckham, and Canada that the Respondent might dis-
continue its delivery service.16 This was not a mere prophecy as Jordan, who was
1 of the 2 dominant figures in the management of the Respondent Company, "had
the power to change prophecies into realities." 17
The questioning of the employees in this case is contemporaneous with and linked
to the other proscribed activity described above, and it is conduct aimed and directed
at inducing the warehouse employees to take the kind of action it was successful
in obtaining from the individuals that Jordan called to his office. That the
employees felt the restraint, interference, and coercion flowing from Jordan's ques-
tioning of them is apparent from the following facts. Ver Wey testified that he
signed the revocation letter to the Union because, "from what I surmised from my
interview [with Jordan], my interpretation of the visit, it would be advisable to
sign the letter from the matters that Mr. Jordan presented me...... In addition,
13 Wilson & Co., 115 NLRB 327 (Intermediate Report).
14 Robb, the personnel manager, testified on cross-examination that the wage survey was
begun a "month or more" before June.
15 The Board and the courts have repeatedly held that the requirement of the Act, that
an employer observe strict neutrality in the employees' choice of a bargaining representa-
tive, is flouted when the employer, as here, undertakes actively to secure resignations from
the Union. American Bottling Company, 99 NLRB 345, 348-350, enforced 205 F. 2d 421
(C. A. 5) ; N. L. R. B. v. Gate City Cotton Mills, 167 F. 2d 647, 648 (C. A. 5).
11 Atlas Underwear Co. v. N. L. R. B., 116 F. 2d 1020, 1023 (C. A. 6) ; Idaho Egg Pro-
ducers, 111 NLRB 93 at page 103, 229 F. 2d 821 (C. A. 9) ; Sunrise Lumber & Trim Corp.,
115 NLRB 866.
17 Sardis Luggage Company, 114 NLRB 446.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Long testified, "I told [Jordan] if he would have the letter typed up I would sign, it
as I felt I had no other alternative."
Such interrogation , carried on , as here, with respect to their union membership, the
extent of their organization, the identity and union activity of other employees and
Jordan's threatening to liquidate the truck-delivery service, in conjunction with the
circumstances under which the wage increases were granted, constitutes unlawful
interference with employees' rights under the Act.18 It is found, therefore, that in
considering the conduct described above, not simply in isolation, but cumulatively
and compositely as well, that it was intended and so timed as reasonably to have
the effect of interfering with the rights guaranteed to employees by Section 7 of the
Act and constituted interference, restraint, and coercion in violation of Section 8 (a)
(1) of the Act.19
The question of whether the Act has been violated, however, requires not only an
appraisal of the particular conduct which has been described above, but also a deter-
mination of whether the Respondent Company is liable for the statements and con-
duct of Jordan. Jordan, superintendent, and the second in command in the Re-
spondent Company hierarchy, had authority to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline employees, as well as the
authority to direct their work or to adjust their grievances. Jordan, therefore, is
found to be a supervisor within the meaning of Section 2 (11) of the Act so as to
make Respondent liable for his statements and conduct.
Alleged Violations of Section 8 (a) (5)
The Union wrote a letter, which was received by the Respondent Company on June
29, 1955, requesting contract discussions and claiming to represent a majority of the
employees who were employed at Respondent's warehouse as truckdrivers and their
helpers, warehousemen, and appliance and television servicemen. On Saturday,
July 2, 1955, Charles F. Lindsay, secretary-treasurer of the Union, telephoned Ivar
N. Jordan, Respondent's superintendent, to inquire whether he had received the
Union's letter requesting the Company to bargain with it as representative of its
warehouse employees. Jordan replied he had, whereupon Lindsay requested that
a meeting be scheduled with a view to discussing a contract. From this point for-
ward Lindsay's version of what transpired differs in some respects from that of
Jordan's.
Lindsay testified that Jordan told him that, "he was rather busy at the time and that
he would contact me later the following week. I said `okey."' According to Jordan,
he told Lindsay he "would be out of town for a few days . and I asked him if
he would call me later the next week. And I don't remember that he answered that.
He just said, `Well, all right' and hung up." There were no further negotiations
thereafter between Lindsay and Jordan or any other union or company representa-
tive with respect to recognition and/or bargaining. On July 8, 1955, the.Union filed
a charge with the Board alleging, inter alia, that the Respondent "employer refused
to bargain with the Union."
Section 8 (a) (5) of the Act provides that:
It shall be an unfair labor practice for an employer to refuse to bargain
collectively with the representatives of his employees. .. .
Jordan, superintendent of the Respondent Company, had notified .Lindsay, the
union representative, when he telephoned him on July 2, that he was preparing to
go out of town over the July 4th holiday weekend, and requested that the matter
be left in abeyance until his return the following week. Lindsay admits- he agreed
to Jordan's request that the contact be made "later the following week,.." but the
record is not clear as to who was to contact whom. Nevertheless, no definite date
was set for a meeting; there was no subsequent effort by the parties to meet or
confer, and the Union, 6 days after this July 2 telephone call, filed an unfair labor
practice charge with the Board.
Under these facts, it would not be reasonable to hold that the Respondent's conducts
constitutes substantial evidence upon which to base a finding of a refusal to bargain.
An employer is entitled to a reasonable time, varying according to the circumstances
of the case, in which to consider the validity of a union's request to bargain.20 The
length of time accorded Respondent here: from June 29. to July 8, or the fourth
business day from the July 2d telephone call, was not a sufficiently reasonable
19 Joy Silk Mills, Inc. V. N. L. R. B., 185 F. 2d 732, 743, 744 (C. A., D. C.).
19 N. L. R. B. v. Gate City Cotton Mills, supra; Graber Manufacturing Co., Inc., 111
NLRB 167-169.
11 See Mrs. Natt's Bakery, 44 NLRB 1099.
JOSLIN DRY GOODS COMPANY 571
length of time for Respondent to determine the validity of the Union's claim, in view
of its doubt, as evidenced by its making inquiry of its employees, that the Union
represented a majority of the warehouse employees. Under the circumstances in
this case, it would not be an unreasonable limitation to hold that before the Union
swore out its charge that the Respondent should have been offered a reasonable
opportunity to determine the validity of the Union's representation claim,21 and not
be placed in the position of being accused of refusing to bargain with respect to
unstated demands.
The obligation to bargain collectively encompasses a correlative and affirmative
duty of equitable dealing. Collective bargaining is stifled at the source if the party
upon whom the demand is being made, is not accorded a reasonable opportunity to
investigate and determine the validity of the representation claim. Even assuming
arguendo that the unit for which bargaining was requested is appropriate and that the
Union represented a majority of the employees, nevertheless, if the Respondent had
not been accorded sufficient time to resolve its doubt with respect to the unit and
majority when the charge was filed on July 8th, it follows that there could be
no refusal to bargain if there was no obligation to bargain at that time.22
Moreover, the record fails to disclose that Jordan refused Lindsay's request to
bargain. Indeed, if Jordan's version of what transpired is accepted, one interpreta-
tion of the evidence would be that the initiative was left with Lindsay to arrange for
a meeting and that he elected not to do so, but to file an unfair labor practice charge.
The filing of an unfair labor practice charge, assuming Lindsay left Jordan under
the impression that he would contact him "later the following week," does not appear
to foster the good-faith indicia defined in Section 8 (d) of the Act.23 However,
regardless of whose version is accepted as true, the bona fides of the Respondent,
under the circumstances presented here, could best have been tested at that juncture
by further affirmative steps 24 by the Union looking toward a definite meeting date
and collective bargaining before the charge was filed. It is concluded, therefore,
that the evidence presented by the General Counsel in this case falls short of estab-
lishing such bad faith on the part of the Respondent in its dealings with the Union
as constituted a refusal to bargain within the meaning of the Act.25 Nor is the
Trial Examiner persuaded that the evidence is substantial enough to support a finding
that the Respondent's conduct constituted a refusal of the Union's request to bargain 26
In view of the precipitate manner in which the charge was filed, less than a week
after the last telephone conversation between the parties on July 2, and the posture
in which the matter was left at that time, and the fact that there is no evidence
that Jordan's request for a few days' delay was in itself a pretext to evade collective
bargaining, in addition to the fact that a sufficiently reasonable time was not af-
forded Respondent to determine whether there was any basis for the Union's
representation claim, it is concluded that in the absence of any demand which the
Union desired to make on behalf of Respondent's warehouse employees, and. in
the absence of any reasonable opportunity to negotiate, there could be no refusal
to bargain. To hold that Respondent refused to bargain would be, in effect, to
ignore the Union's conduct in not affording Respondent a reasonable time to consider
the validity of its representation claim. Such a holding would be inherently in-
equitable in that it would penalize the Respondent for conduct induced by the
Union's actions. Moreover, there is an implied understanding that neither party
21 N. L. R. B. v. Jones & Laughlin, 301 U. S. 1, 44, hold that Section 9 (a) of the Act
imposes upon an employer only the duty of negotiating with the authorized representa-
tive of a majority of his employees. At the time the charge was filed in this case, the
Respondent was exercising this privilege, namely, the right to ascertain whether the
Union did represent a majority of its employees.
22 See N. L. if. B. v. Jackson Press, Inc., 201 F. 2d 541, 544-545 (C. A. 7) ; Texarkana
Bus Co., V. N. L. R. B., 119 F. 2d 480, 484 (C. A. 8) ; C. L. Bailey Grocery Company, 100
NLRB 576.
22 ". . . to bargain collectively is the performance of the mutual obligation of the em-
ployer and the representative of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours and other terms and conditions of employ-
ment, or the negotiation of an agreement, or any question arising thereunder, . . .
24 Neither in its letter received June 29, nor in its telephone call of July 2, did the
Union offer any tangible evidence of its alleged majority. See Texarkana Bits Co. v.
N. L. R. B., supra, at page 484.
21 See Green Colonial Furnace Company, 52 NLRB 161, 163; American Rubber Products
Corp., 214 F, 2d 47, 54 (C. A. 7).
28 In Keegan v. U. S., 325 U. S. 478, 487, "refuse" is defined as, "to decline to accept ;
to reject; .. . 11
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to collective-bargaining negotiations will affirmatively prevent performance by the
other and thus prevent effective negotiation as a means of maintaining the "normal
flow of commerce.. 1127 It is recommended, therefore, that the complaint be
dismissed insofar as it alleges a violation of Section 8 (a) (5) of the Act 28
The next question to be decided is whether the Respondent's conduct which vio-
lated Section 8 (a) (1) changes the above finding that Respondent did not refuse
to bargain within the meaning of Section 8 (a) (5) of the Act. The General
Counsel in his brief refers to one Board case which appears to indicate in a marginal
reference 29 that where an alleged refusal to bargain is accompanied by the unilateral
granting of wages or violations by interrogation, that it is a "per se" violation of
Section 8 (a) (5). However, this concept was discredited in The Walmac Company
case,30 where the Board stated:
Apparently, it is the theory of the Trial Examiner that in any situation where
a union claims, but is denied recognition as majority representative and the
employer commits any form of unfair labor practice, ipso facto, the employer
also thereby violates. Section 8 (a) (5). We cannot agree with this principle
and past Board decisions do not support it.
In Harcourt and Company, Inc.,31 the Board stated:
Our colleague apparently assumes that every interference by an employer
with the right of its employees to bargain collectively through representatives
of their own choosing is per se an unlawful refusal to bargain with their
statutory representative. We do not understand this to be the law.
It is well established that the violations of Section 8 (a) (2), (3), (4), and
(5) are species of the generic unfair labor practices defined in Section 8 (a)
(1), and hence conduct violative of those sections is also violative of Section
8 (a) (1). The converse, however, is not true. For example, interference
with the right of the employees to bargain collectively is a much broader con-
cept than a refusal to bargain with their statutory representative. Indeed, the
commission of any of the unfair labor practices defined in the Act constitutes
at least an indirect interference with that right, for the Act was designed to en-
courage collective bargaining and to assure the employees the right to bargain
collectively through representatives of their own choosing. Thus, coercive
statements by an employer that is calculated to prevent its employees from
organizing for the purpose of collective bargaining . . . ; constitutes acts of
interference with the right of the employees to bargain collectively, just as
does a direct refusal to bargain with their bargaining agent. Under our dis-
senting colleague's theory, all such conduct would constitute an independent
violation of Section 8 (a) (5). We cannot agree with this legal conclusion.
It is found, therefore, that under the facts in this case, and the applicable law,
the Respondent's conduct which violated Section 8 (a) (1), supra, is not controlling
in determining whether there was a refusal to bargain by it within the meaning of
Section 8 (a) (5) of the Act.32
HI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section I, above, occurring in con-
nection with the operations of the Respondent, have a close, intimate, and substan-
21 See Mastro Plastics v. N. L. It. B., 350 U. S. 270.
21 The United States Supreme Court in N. L. It. B. v. Columbian Enameling ct Stamping
Co., 306 U. S. 292, 298, recognized that there can be no bargaining without a request
and that in the absence of some request by the union, an employer is not guilty of
refusing to bargain within the meaning of Section 8 (a) (5) of the Act. As the Court
stated in that case, "The employer cannot, under the statute, be charged with refusal
of that which is not proffered." So too, in this case, Respondent cannot be charged with
refusal of that which it has not had a reasonably sufficient time to consider.
20 W. T. Grant Company, 94 NLRB 1133, 1134, footnote 5:
The granting of these benefits, without consulting the Union, constitutes an inde-
pendent violation of Section 8 (a) (5) of the Act even without regard to the Re-
spondent's purpose . [Emphasis supplied.]
so 106 NLILB 1355, 1356; see also KTRH Broadcasting Company, 113 NLRB 125.
w 98 NLRB at pages 900-901.
12 See A. L. Gilbert Company, 110 NLRB 2067, 2069-2071 ; N. L. It. B. v: Jacl naiv
Press, 201 F, 2d 541 at pages 545-546 (C. A. 7).
WESTINGHOUSE ELECTRIC CORPORATION 573
tial 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.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it shall be recommended that the Respondent cease and desist therefrom and take
certain affirmative action which it is found necessary to effectuate the policies of
the Act.
It has been found that the Respondent, by inducing its employees to repudiate
in writing their union authorizations, by granting wage increases, and by threats
and interrogation, interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act. It shall be recommended that the Respondent
cease and desist therefrom.
Inasmuch as Respondent's antiunion activities are not so extensive in manner
and scope and are not of such an aggravated character as to indicate an attitude
of general opposition to employees' rights, it will be recommended that Respondent
only be required to cease and desist from in any like manner interfering with,
restraining, or coercing its employees in the exercise of the rights guaranteed them
in Section 7 of 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. The Union herein is a labor organization within the meaning of Section
2 (5) of the Act.
2. Joslin Dry Goods Company is an employer, who at all times material hereto,
was engaged in commerce within the meaning of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent Company has engaged 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.
5. The Company has not committed the violations of Section 8 (a) (5) of the
Act, -alleged in the complaint. It is recommended that the allegations of the
complaint setting forth said violations be dismissed.
[Recommendations omitted from publication.]
Westinghouse Electric Corporation (Sturtevant Division) and
International Union of Electrical , Radio and Machine Workers,
CIO, Petitioner. Case No. 1-RC-2077. July 9,1957
DECISION AND ORDER
Pursuant to a stipulation for certification upon consent election
and the election held pursuant thereto, International Association of
Machinists , AFL-CIO, hereinafter called the Union, was certified on
April 25, 1951 , as the collective -bargaining representative in a unit of
production and maintenance employees at the Employer 's Hyde Park,
Massachusetts , plant, and South Boston, Massachusetts , warehouse,
excluding among others time-study men. On December 14, 1956, the
Union filed a motion for clarification of certification, requesting the
Board to find that the classification of layout-calculator is included in
the certified unit. On December 31, 1956, the Board issued a notice
118 NLRB No. 67.