L. B. Hartz Stores

National Labor Relations Board - Board Decisions

Nov 27, 1946

71 N.L.R.B. 848 (N.L.R.B. 1946)

In the Matter of L. B. HARTZ, BERNARD J. HARTZ, MRS. BERNARD J.
HARTZ, LOUISE K. HARTZ, AND HARRIET L. HARTZ, CO-PARTNERS DOING
BUSINESS UNDER THE FIRM NAME AND STYLE OF L. B. HARTZ STORES,
AND UNITED INDUSTRTES, INC. and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
GENERAL DRIVERS AND WAREHOUSE EMPLOYEES LOCAL UNION #581,
A. F. OF L.
Case No. 18-C-1199.-Decided November 27, 1941
Mr. Stanley D. Kane , for the Board.
Mr . H. 0. Chommie, of Thief River Falls, Minn., for the
respondents.
Mr. M. G. Lindemann, of Grand Forks , N. Dak., for the Union.
Mr. Milton E . Harris, of counsel to the Board.
DECISION
AND
ORDER
On July 2, 1946, Trial Examiner Irving Rogosin issued his Interme-
diate Report in the above-entitled proceeding, finding that the re-
spondents had engaged in and were engaging in certain unfair labor
practices affecting commerce and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter the
respondents duly filed exceptions to the Intermediate Report and a
supporting brief.
The Board has considered the rulings of the Trial Examiner at the
hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and reconn-
mendations of the Trial Examiner.'
1 We depart from the Intermediate Report, however, in the following respects (1) We
find that the respondents first refused to bargain collectively with the Union a few days
after October 19, 1945 ( 2) We further find that L . B. Hartz did not make any state-
ments to the employees on October 26, 1945 , urging them to renounce the Union or any
other collective bargaining representative . ( 3) Our agreement with the Trial Examiner
that Belland was discharged in violation of the Act is not based on Belland ' s testimony that
L B Hartz threatened to discharge him.
71 N. L. R. B., No. 141.
848
L. B. HARTZ STORES 849
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents L. B. Hartz, Bernard J.
Hartz, Mrs. Bernard J. Hartz, Louise K. Hartz, and Harriet L. Hartz,
co-partners doing business under the firm name and style of L. B.
Hartz Stores, and United Industries, Inc., Thief River Falls, Min-
nesota, and their officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hQod of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
General Drivers and Warehouse Employees Local Union #581, affili-
ated with the American Federation of Labor, as the exclusive repre-
sentative of all warehousemen, truck drivers, and garage mechanics,
including garage service men, but excluding office employees and super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, with respect to rates of pay, wages, hours, and
other conditions of employment;
(b) Taking any unilateral action, without prior consultation with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, General Drivers and Warehouse Employees
Local Union #581, affiliated with the American Federation of Labor,
with respect to rates of pay, wages, hours, and other conditions of
employment affecting the said employees;
(c) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, Gen-
eral Drivers and Warehouse Employees Local Union #581, affiliated
with the American Federation of Labor, or any other labor organiza-
tion of their employees, by discharging or refusing to reinstate
any of their employees or by discriminating in any other manner
in regard to their hire or tenure of employment, or any term or condi-
tion of their employment;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, General
Drivers and Warehouse Employees Local Union #581, affiliated with
the American Federation of Labor, or any other labor organization, to
bargain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purposes of collective bargain-
ing, or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of America,
General Drivers and Warehouse Employees Local Union $ 581, affili-
ated with the American Federation of Labor, as the exclusive represen-
tative of all warehousemen , truck drivers , and garage mechanics,
including garage service men, but excluding office employees and
supervisory employees with authority to hire, promote, discharge,
discipline , or otherwise effect changes in the status of employees, or
effectively recommend such action , in respect to rates of pay, wages,
hours, and other conditions of employment;
(b) Offer Omer Belland immediate and full reinstatement to his
-former or a substantially equivalent position , without prejudice to his
seniority or other rights and privileges;
(c) Make Whole Omer Belland for any loss of•pay he has suffered by
reason of the respondents ' discrimination against him , by payment to
him of a sum of money equal to the amount which he normally would
have earned as wages from the date of the respondents ' discrimination
against him to the date of the offer of reinstatement , less his net earii-
iiigs during such period;
(d) Post at their warehouse at Thief River Falls, Minnesota , copies
of the notice attached to the Intermediate Report herein , marked
"kppendix A." 2 Copies of said notice , to be furnished by the Re-
gional Director for the Eighteenth Region, shall, after being duly
signed by the respondents ' representatives , be posted by them imme-
diately upon receipt thereof, and maintained by them 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 respondents to insure that said notices are not
altered, defaced , or covered by any other material;
(e) Notify the Regional Director for the Eighteenth Region in
writing, within ten ( 10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
2 Said notice shall be amended, however, by striking from the first paragraph the words
"The Recommendations of a Trial Examiner" and substituting in lieu thereof the words
"A Decision and Order" , and by striking the third paragraph, referring to Omer Belland,
and substituting in lieu thereof the following
We will offer Omer Belland immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice to any seniority or other rights
and privileges previously enjoyed, and make him whole for any loss of ' pay suffered
as a result of the discrimination
In the event that this order is entorced by court decree , there shall also be inserted , before
the words "A Decision and Order ," the words •
"A Decree of the United States Circuit Court of Appeals enforcing
L. B. HARTZ STORES
INTERMEDIATE REPORT
Mr. Stanley D Kane, for the Board
Mr II. 0 Chonamie, of Thief River Falls, Minn., for the respondent.
Mr. M. G. Dcndenaann, of Grand Forks, N. Dale, for the Union.
STATEMENT OE THE CASE
851
Upon a second amended charge duly filed by International Brotherhood of Team-
sters, Chauffeurs, Wareliouseinen & helpers of America, General Drivers and
Warehouse Employees Local Union #581, affiliated with the American Federation
of Labor, herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Eighteenth Region (Minneapolis,
Minn ), issued its complaint dated April 25, 1916, against L. B Martz, Bernard J.
Hartz, Mrs Bernard J. Hartz,' Louise K Hartz, and Harriet L Hartz, co-partners,
doing business under the firm name and style of L. B. Bartz Stores,2 and United In-
dustiies, Inc, herein jointly and severally called the respondent, except where the
context otherwise requires,' alleging that the respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section S (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint accom-
panied by notice of hearing were duly served upon the respondents and the
Union'
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondents have: (1) since on or about October 18, 1945, advised,
urged, and warned their employees against affiliation with or activities in behalf
of the Union, and against engaging in concerted activities for the purpose of
collective bargaining; threatened their employees with reprisals; offered them
special privileges to refrain from affiliation with the Union or engaging in con-
ceited activities; made inquiries of them concerning their union affiliations and
activities ; inspired, prepared, and circulated an anti-union pledge, and other
petitions among the employees for the purpose of dissuading them from union
menibeiship; and requesting the respondent to refiain from negotiating with
the Union, offered the employees a stock bonus and wage increases as an induce-
ment to refrain from membership in the Union or engaging in other concerted
activity; conducted a private election among the employees , in which they com-
pelled them to participate, in order to ascertain their preference concerning the
Union, and, by statements, speeches, and threats, discouraged union mem-
bership and other concerted activity for the purpose of collective bargaining;
(2) on or about December 12, 1945, discharged, laid off, and terminated the em-
ployment of Omer Belland, and have since refused and failed to reinstate him
because of his membership in and activity in behalf of the Union and his con-
certed activities with other employees, thereby discriminating in regaid to hire,
So designated at the suggestion of the respondent to avoid confusion with another
female co-partner bcaiing a similai given n.inie
"As amended at the hearing Upon motion of counsel for the Board, the complaint was
dismissed, without objection, with respect to L. B Hartz, Inc , and L B Hartz Stoles,
Warehousing Division
J For convenience the respondents, or any of them, t,i11 hereinafter be referred to by the
neuter pionoun
' Although counsel for the respondent objected to the amendment to the complaint,
naming the members of the co-paltnersliip and inseiting their names at appropriate places
in the complaint , he acknowledged due and sufficient service in their behalf, and stated that
he intended that the oral answer read into the recoid should be considered as having been
filed in behalf of all the respondents named, as amended.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure, and terms and conditions of his employment, and discouraging member.
ship in the said Union; (3) since on or about October 19, 1945, and at all times
thereafter, including October 25, 1945, and November 14, 1945, have refused,
upon demand, to bargain collectively with the Union, despite the fact that the
said Union has at all times since October 18, 1945, been the exclusive collective
bargaining representative of all the employees in an appropriate unit; and (4)
by the foregoing acts, have interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
The respondents, although afforded an opportunity to do so during the hearing,
filed no formal answer, but, through their counsel, stated orally upon the record,
their defenses to the allegations in the complaint Those allegations relating to
the ownership of the business, and the nature and extent of its operations, were
conceded by stipulation of the parties The respondents otherwise denied the
commission of any unfair labor practices, and affirmatively alleged, in substance,
that: (1) the Union had not been properly designated as the exclusive represent-
ative of the employees in the appropriate unit, inasmuch as the question con-
cerning representation has not been determined by appropriate proceedings
brought before the Board, which has exclusive jurisdiction, under Section 9 (c)
of the Act; (2) any purported certification of the Union, made by a Labor Con-
ciliator for the State of Minnesota, was invalid and not binding upon the
respondents; (3) consequently, the Union was not "qualified" to file the charges
upon which the complaint is founded; (4) on January 2, 1946, the employees,
voluntarily and on their own accord, notified the respondents to refrain from
negotiating with any labor organization until otherwise notified by the said
employees, and informed the respondents that the employees contemplated
holding a meeting to determine the wishes of the majority of the employees
respecting representation by any organization; and (5) on January 12, 1946,
the employees in the warehouse and truck driving departments, upon their own
initiative, and without any influence by the respondents, voted by secret ballot
against representation by the Union. Further answering, the respondent, in
effect, denied the appropriateness of the unit assented in the complaint.
Pursuant to notice, a hearing was held at Thief River Falls, Minnesota, from
May 8 to May 11, 1946, inclusive, before Irving Rogosin, Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondents were
represented by counsel, and the Union by one of its representatives. All parties
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 commencement of the hearing, the respondents moved to
dismiss the complaint or, in the alternative, to suspend the proceeding "until
such time as the [Board] has designated, in accordance with the provisions of
law, the representative of the unit in this case." The motion was denied. The
motion to dismiss the complaint in its entirety, and as to each of the allegations
separately, made at the close of the Board's case, was similarly denied. The,
motion was renewed at the close of the hearing, and ruling was reserved. For
reasons which will be apparent hereinafter, the motion is hereby denied. Motion
of counsel for the Board, made toward the close of the evidence, to conform
the pleadings to the proof with respect to formal matters, not affecting the
substantive issues, was granted without objection Counsel for the Board and
for the respondent, as well as the representative of the Union, availed themselves
of the opportunity to argue orally upon the record Although afforded an
opportunity to do so, none of the parties has filed a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
L. B. HARTZ STORES
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
853
L. B. Hartz, Bernard J. Hartz, Mrs Bernard J Hartz, Louise K Hartz, and
Harriet L. Hartz, co-partners, doing business under the firm name and style of
L. B Hartz Stores, with their office, principal place of business, and warehouse in
Thief River Falls, Minnesota, were engaged, prior to December 31, 1945, in the
wholesale and retail distribution of foods and other products. In connection
with this enterprise, L B Hartz Stores manufactured food and bakery products,
operating a bakery department on the main floor, and a potato chip department,
for the manufacture of potato chips and popcorn, in the basement of a retail
store building, located at Thief River Falls. It also operated a "super-market"
retail store in this building. Prior to 1935, L B. Hartz Stores owned and operated
approximately 15 retail stores and outlets in the States of North Dakota and
Minnesota. At the time of the hearing, the respondents owned and operated 3
"super-market" retail stores, all located in the State of Minnesota, and furnished
and supplied, under a contractual arrangement revocable upon 30 days' notice
by either party, approximately 105 agency stores, operated under the trade
name and style of L. B. Hartz Stores, of which approximately 25 or 30 are located
in the State of North Dakota, and the remainder in Minnesota The respondents
employ about 130 employees, exclusive of supervisors, of which approximately
45 are employed as warehousemen, truck drivers, and garage mechanics;
30, as bakery employees ; 15, in manufacturing ; and 25, as office and clerical
employees 6 The respondents maintain and operate a fleet of, 10 semi-trailer
trucks for long distance, "over-the-road" hauling, and a number of smaller trucks
for local "pick-up" and delivery service. Approximately 12 truck drivers, includ-
ing maintenance men or garage mechanics, are employed in the trucking depart-
ment
On December 31, 1945, substantially all the assets of L. B Hartz Stores were
transferred and conveyed to, and the liabilities assumed by, United Industries,
Inc., a newly organized Minnesota corporation. No change in the nature of the
business, its operations, management, personnel, or labor policies resulted from
this transfer Nor did the change in the structure of the business enterprise
from a partnership to a corporation affect the relationship of employer and
employee.6 L. B. Hartz, one of the principal partners and general manager of
L. B. Hartz Stores, continued as active manager of United Industries, Inc., and
became its piesident and general manager, as well as one of its directors and
principal stockholders' In view of all the circumstances, the undersigned finds
that, for the purposes of effectuating the policies of the Act, the respondents,
L. B. Hartz, Bernard J. Hartz, Mrs Bernard J Hartz, Louise K. Hartz, and
Harriet L. Hartz, co-partners, doing business under the firm name and style of
L B. Hartz Stores, and United Industries, Inc., are jointly and severally liable
5 These proceedings are concerned principally with the respondent's warehousemen and
truck drivers, including, by amendment, garage mechanics
Although L B. Hartz, the active manager of L B Hartz Stores , as well as of United
Industries, Inc , testified that the activities of the corporation have been "somewhat slightly
expanded," and that it is contemplated that it will engage in "some new activities," there
has been no substantial change in the nature of the business enterprise, and no change,
according to Hartz, in the functions of the employees in the alleged appropriate unit.
7 According to Hartz' undisputed and credited testimony, his financial interest in the
partnership was equal to that of one of the partueis, and exceeded that of the remaining
3 partners Hartz' financial interest in the corporation and that of the other partners
were in the same relative proportion The record discloses no evidence of participation by
any of the other partners in the active management of the business or the establishment
of labor policies
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any unfair labor practices committed by the partnership as well as by the
corporation'
The total annual volume of the respondent's wholesale business amounts to
approximately $1,500,000. During the year 1945, approximately 66 percent of
its total purchases was shipped to its warehouse in Thief River Falls from sources
outside the State of Minnesota. Of its total sales, approximately 20 to 25 percent
represents shipments from the respondents' warehouse in Thief River Falls to
consumers in States other than the State of Minnesota. Part of the said 20 to 25
percent in volume is shipped, directly by suppliers of the respondent, from points
outside the State of Minnesota to consumers also located outside the said State.
Of the said 20 to 25 percent in volume of sales, approximately 1/;; consists of
products manufactured by the respondents at Thief River Falls, Minnesota.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, General Drivers and Warehouse Employees Local Union #581,
affiliated with the American Federation of Labor, is a labor oiganization ad-
mitting to membership employees of the respondent.
° III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; synopsis of events
1 'Bhe events leading up to the designation of the Union
In October 1945, the Union undertook to organize the respondent's waiehouse-
men and truck drivers, including the garage mechanics and service men. Ralph
Henderson, business agent of the Union,' enlisted Omer Belland, the employee
whose discharge is discussed hereinafter, as a union adherent and, on the evening
of October 18, 1945, obtained his signature to a membership application blank"
Between the late hours that night and the next morning, Belland, solicited the
membership and procured signatures to membership applications, of 19 of his
fellow-employees in the warehouse division." Several days later, Business Agent
Henderson called on the respondent, L B. Hartz, asserted that he represented all
the respondent's warehousemen and truck drivers, and aslied Hartz to negotiate
a contract." Hartz stated that he wanted some time to consider, and told
Henderson that lie would give him his answer several weeks later
On October 25, 1945, the Union notified the Division of Conciliation for the State
of Minnesota of its claim of majority and petitioned that agency for certification
as exclusive collective bargaining representative of the employees in the unit
alleged to be appropriate. A hearing was held on November 2, 1945, at Thief
River Falls before an Assistant Conciliator of the Division of Conciliation, at
which Business Agent Henderson was present in behalf of the Union, and L. B.
8 See N. L R B v. Blair Quarries, lice, 152 F. (2d) 25 (C C A. 4), enf'g 58 N. L R B
1448, N L. R. B. v Adel May Products Co , 134 F (2d) 342 (C C A 8), enf'g 44
N. L. R B 386; see also Matter of Peter Freund, d/b/a Peter Freund Knitting Mills , et at.,
61 N L R B. 118
° Succeeded on April 8, 1946, by Milton G Lindemann
10Alihough Belland's application card was dated October 19, 1945, he testified that he
actually signed it on the night of October 18, and that it was dated October 19 in error The
undersigned so finds
11 Unless otherwise indicated. reference to the employees in the warehouse division is
intended to include the truck drivers, garage mechanics, and,service men
ii All references hereinafter to Hartz are intended to refer to the respondent, L B Hartz
L. B. HARTZ STORES 855
Hartz, and other tiianageinent representatives appeared in behalf of the employer.
Following this hearing, the Acting Incumbent Labor Conciliator of the State of
Minnesota, on November 9, 1945, certified the Union, upon the basis of a cross-
check, as "the exclusive representative for collective bargaining purposes of the
employees of the L B Martz Stores, in the unit composed of all warehouse,
employees, truck drivers and garage mechanics excluding office employees and
supervisory employees above the rank of working foremen."
On November 13, 1945, Business Agent Henderson wrote Hartz informing him
that the Union had received notice of certiheation from the Division of Concilia-
tion, and requested that a date be set for the commencement of negotiations for
a contract. This letter was admittedly ignored
2. The events following the designation of the Union
Meanwhile, on October 26, 1945, a week after a substantial number of the
warehousemen and truck drivers had designated the Union, and 2 or 3 days
after Henderson had requested recognition, the i espondent held several meet-
ings of its employees on the plant premises during working hours At the first of
these, a preliminary meeting held in the morning at the billing office of the
warehouse, Harry Simons, the respondent's bookkeeper and office manager,'
spoke informally to some 8 to 12 warehouse employees who had assembled
either in response to a summons by Supervisor Alfred Johnson, in charge of
the trucking department, or as a result of rumors that a meeting was to be
held"' Later that morning, a "pre-view meeting" 14 was held in the tobacco
room on the main floor of the warehouse This meeting, too, was attended by
the warehousemen and truck drivers Several supervisors were also present,
as were Simons and Hartz, both of whom addressed the employees At the
first of the meetings held that day, at which Hartz apparently was not present,
Simons presented a brief outline of a stock bonus participation plan which
the respondent proposed to institute for its employees. A later meeting held in
the billing room on the afternoon of the same day, at which, according to Hartz,
all the «aiehousenien and truck drivers, Manager Carlson of the bakery de-
partiuent, and some of the office and clerical employees were present, was
addressed by Simons and Hartz, as well as by the respondent's attorney, H A.
Chonnmie The remarks addressed by Simons and Hartz were substantially
the same at both latter meetings Simons, who apparently presided, informed
the employees that Hartz had intended to announce the plan at a Christmas
party, but that it had been decided to advance the date of the announcement so
that the employees might know "what [Hartz] had in store for [them] before
[they] went any further with [their] activities of any kind."" Simons ex-
plained that under the plan the business of L. B. Hartz Stores was to be trans-
ferred, as of January 1, 1946, to a corporation to be oigauized; that all net
profits would be distributed among the employees in the form of a stock bonus.
Houtz elaborated upon the plan, and after stating that plans to incorporate the
13 Upon the basis of'their respective duties as revealed by the record, the undersigned
finds that both Simons and Johnson are supervisory employees, within the Board's usual
definition, foi whose conduct the respondent is answerable. The parties finally so stipu-
lated as to Johnson
11 The phrase was attributed to Hartz, without contradiction, by employee Harold Pierce.
The quoted excerpt is from the testimony of employee IIiibert Johnson, which the
undersigned credits for the reasons stated hereinafter. Simons did not categorically deny
the statement attributed to him, although he denied generally that any mention of, or
reference to the Union was made, or that the plan was in any way conditioned upon refrain-
ing tiom affiliation with the Union. As will appear hereinafter these denials are not
credited
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business enterprise and establish the stock bonus plan had been under way
for over a year, explained that the activities of the corporation would embrace
the existing operations of L. B. Hartz Stores as well as some new ventures,
including the erection of a new factory and warehouse, and the manufacture
of food and other products Hartz continued, that in recognition of the as-
sistance and cooperation given the partnership by many employees who had
been in the employ of the partnership for periods extending for as long as 18
years as of December 31, 1945, a bonus would be paid to such employees based,
not upon the earnings for the year 1945, but upon an "arbitrary plan" depending
upon the length of service To be eligible for participation in the stock bonus,
an employee was required to have been on the pay roll of the respondent on
December 31, 1944, and to have been employed for at least a year on December
31, 1945. It was estimated by Hartz that the stock bonus payable to the employees
according to this plan would approximate between $50,000 and $60,000.'°
At the conclusion of his explanation, Hartz introduced Attorney H. O. Chommie,
who conducted the remainder of the meeting. Chommie amplified Hartz' remarks,
explained that the "project had been in his hands for several months and . . . the
articles of incorporation . . . in a fairly advanced stage of completion," and
commended the respondent's "generous gesture" in enabling the employees to
participate in the respondent's assets and profits acquired in 20 years of successful
operation According to Hartz, after Chommie concluded his remarks, they "dis-
appeared and left it to the employees."
At the request of several of the employees, including Lloyd Alnes, a clerk in the
fruit department and one of two assistants to the head of the department, and a
former warehouseman," Hartz, at some time prior to the afternoon meeting, pre-
pared a "brief" of the bonus plan, which he wrote out in long hand and turned
over to Alnes. According to Hartz, he understood that the employees wanted to
draft a statement "to express their views regarding the bonus plan and their
inteiest in the union effort which was being conducted at that time."" Hartz'
statement was to serve as an introduction to such a document Alnes testified
that, after considering the plan, he and other employees decided that "it wouldn't
be amiss if we gave [Hartz] a vote of confidence in his ability in which we had
the fullest confidence . . ." Consequently, after a discussion among several of
the employees, during which Office Manager Simons was present, Alnes drafted
an addenda to Hartz' statement, and typed a rough draft of the document. The
final draft was then typed by Hartz' secretary. The document, which was made
available for the first time at the afternoon meeting, was then placed on a desk
in the waiting room for signature by the employees, and was later circulated
generally throughout the respondent's organization at Thief River Falls.
19 As of the (late of the hearing , nearly $75,000 in stock bonuses had been issued to
employees , exclusive of stock bonuses still due eligible employees in the armed services.
Stock certificates to all eligible employees of record as of December 31, were issued in March,
and later to some retuining veterans , as of the same date The capital stock thus issued
was set up as an obligation of the partnership for the year 1945 , was assumed , as part of
the liabilities by the corporation , as of December 31, 1945, and later paid by the issuance
of capital stock
17 Alnes was employed as a warehouseman from July 1941 to September 1942, and from
February 1945 until October 22 , 1945, when he was transferred to the fruit department
to the position he held at the time of the hearing. His status is considered hereinafter
18 Contrary to this testimony, Alnes testified, " . I'm positive that Mr. Hartz had
no knowledge at the time he outlined the plan that we had any intention of tacking on an
11amendment of our own or putting our personal opinion underneath it . . .
L. B. HARTZ STORES
As finally drafted, the document read :
857
OCTOBER 26, 1945.
The management of L. B Hartz Stores have formulated and agreed upon
a plan, to take affect January 1, 1946, whereby all earnings of the company,
after payment of a small rate of interest on investment, will be equitably
distributed among all local employees, in the form of a stock bonus. In other
words, the employees will receive all the real profits of the company, in
addition to their wages which they have received during the year.
Furthermore, a stock bonus will be paid to all employees in December 1945,
based upon length of service and aggregating between fifty and sixty thousand
dollars This will be paid from earnings accumulated over the past twenty
years.
It is further planned to raise additional capital to undertake construction
of a new warehouse and factory building and to engage in light manufacturing
and food processing. The sole object of these activities will be to give added
employment in Thief River Falls. All profits from these activities will like-
wise be distributed amont (sic) the company's entire group of local employees.
In view of this program and believing that each local employee of the
L B. Hartz Stores and associated activities will receive everything that his
work produces,
We, the undersigned, present employees of L. B Hartz Stores, believing
that our best interests lie in cooperation with our management in whom
we have the fullest confidence, and believing that we can attain the greatest
measure of income for ourselves, while preserving the greatest independence
for ourselves and our company.
Now therefore, we do reject any outside offer to organize us as a group of
Hartz employees, and we hereby renounce our membership in or any intention
to join, a union, whether or not we have paid or have been solicited for
membership dues.
Several copies of this document were prepared, and substantially all the employees
in all the departments, including the warehouse and truck driving, office, bakery,
potato chip and retail store, signed the document Among those signing the
document were Office Manager Simons, Supervisor Alfred Johnson, Foreman
Ed Carlson, of the bakery department, and Clarence Gulseth, head of the billing
department, and Lloyd T. Alnes.
The testimony is conflicting as to whether any mention of the Union, or refer-
ence to rejection of the Union as collective bargaining representative was made
by management representatives during any of the meetings held on October 26.19
According to Omer Belland, at the meeting which he attended, Simons, after ex-
plaining the stock participation program, stated that he "wanted [the employees]
to refrain from union or union activities ... [and] later on [Simons] stated
that he was going to pass a petition around that would so state that you was
getting these bonds provided you refrained from union or union activities ..."
Simons admitted that he spoke at the meetings, but denied in substance that he
had made any reference to the Union. He testified that he was present while
1° The record does not disclose any evidence of organizational activity in any of the
departments other than the warehouse and truck driving departments during the period
in question The Union does not claim jurisdiction over any employees other than ware-
housemen and truck drivers, including the garage mechanics and service men
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the document set forth above was being prepared , and that, when he was asked
his opinion by some of the eiaploiees present , merely inquired whether the
document reflected their attitude . Although he admitted that the statement, or
portions , of it, were read in his presence while it was being prepared , he testified
that he did not recollect hearing the last paragraph , in which the employees
renounced representation by the Union , during the brief interval he was present
He admitted , however , that he had referred to the statement , either during the
meeting or immediately thereafter , and "ment i oned that there was a statement
un the table there that the employees had prepared " After the meeting , several
employees gathered about the table , and, Simons testified , he "assumed that they
were signing it or reading it."
Hilbert Johnson , however, one of the few employees who did not sign the
statement,20 substantially corroborated Belland ' s testimony regarding the state-
ments made by Simons According to Johnson , Simons stated to the employees
that Hartz had intended to announce the plan at a Christmas party, but had
decided to advance the date of the announcement so that the employees might
know "what he had in store for [them] before [they] went any-further with
[their] activities of any kind." Johnson also testified that Simons had further
stated, ". . . on the bottom of the list . . . we have also added this here to show
our appreciation towards Air . Hartz ' plan here that we pledge not to join any labor
organization of any kind " Johnson further testifed that Simons remaiked that
"he thought this would be a better plan for everybody." 21
20 Hilbert Johnson testified, without contradiction, that Supervisor Alfred Johnson later
told him that he was the only employee who had not signed the statement
21 Apart from Simons' vague, equivocal and unconvincing denials, further corroboration
of this testimony is found in the following excerpt from Simons ' testimony before the
Assistant Conciliator as reported in a copy of the transcript of that hearing. This former
testimony contradicts his own testimony at the present hearing :
Mn SIMONS. When this matter of organizing first came up, I didn't hear about it.
It apparently was conducted quite on the q t among the employees, but there was
several of them came to me then and asked about or wanted to talk the matter over.
And I knew this plan was being formulated and practically completed. Some of the
other employees came to me and we thought that everybody should know about Mr
Hartz' plan so that they could better judge for themselves whether or not the union
could do them any good and whether they wanted to organize it union. This plan
was intended to be announced at a Christmas party where bonuses were to be dis-
tributed Before we could make the plan public, I did say we felt that we should
get Mr Hartz' consent And in all fairness to the employees, they should know what
the plan was There was a group of about eight or 10 of us got Mr Haitz' consent to
announce this proposed plan, of this plan that was already completed practically in
the attorney's office We thought that the employees and everyone should
have that knowledge, and with that knowledge, they could make up their mind them-
selves if they felt an organization was necessary In these meetings I was one of
those to find out fiom any employees any grievances they had Everyone seemed to
be satisfied They had no complaints with Mr Hartz or the organization I tried
to find out if any were dissatisfied None expressed any dissatisfaction I asked
some of them why they wanted to sign up to organize a union They said, "Well,
I have no reason, but I was told everybody else was and if everybody else was, I
didn't want to be the only one that wasn't " I made it plain and definite at each one
of these meetings that'Mr Hartz had nothing to do with our announcing of this plan
and that the employees should use their own judgement (sic) whether or not they
wanted to sign up with an organisation or not And I laid out the petition or a
statement on the table, and I said, "Here is this thing and you can sign it if you
want to " And I left it on the table I believe all but two signed the statement
The statement was made up by a group of employees . . .
The copy of the transcript from which the excerpt is quoted was received upon stipulation
by the paities The respondent, however, relied upon its general objection to all evidence
relating to the proceedings befoie the Division of Conciliation, and not to the lack of
authentication of the copy of the transcript Although Simons testified at the instant
hearing, and was in it position to deny the statements attributed to him in those proceed-
ings, lie was not called to do so _
L. B. HARTZ STORES 859
Although Hartz testified that he had authorized or approved all the meetings
at winch the plan was announced, and that lie had observed the completed docu-
ment, including the last three paragraphs, lying on the table both before and
after the document was signed, he denied that thei e had been any mention of
the Union, any suggestion or intimation that the bonus plan was in any way
dependent upon the employees renouncing membership in the Union, or that it
was intended for that purpose On the contrary, Hartz testified that he had
stated to the employees at the two meetings which lie had attended that the bonus
plan had no connection with the "union effort" ; that the explanation of the plan
was being offered at the request of the employees "to get a picture of our plan
before them . . . that the union had done very fine woi k and that we were not
making any statement against the union, in fact, we praised the union for what
liad been accomplished and knew they were still accomplishing elsewhere . . " --
Employees called by both the Board and the respondent testified variously either
that no mention was made of the Union or the contingency of the stock plan upon
the employees refraining from membership in or adherence to the Union, or that
they did not recall or bear any such mention.
In view of the foregoing, especially the credible and persuasive testimony of
Oilier Belland and Hilbert Johnson, substantially corroborated by Office Manager
Simons' testimony before the Assistant Conciliator, and because of the equivocal
character of Simons' denials at the present hearing, the undersigned con-
cludes and finds that, whether or not the stock bonus participation plan was
actually conditioned upon the withdrawal of union membership by the em-
ployees, Simons, in his remarks to the employees made it clear that the respond-
ent expected that the employees would renounce the Union in response to the
announcement of the plan. The reference by Simons, reiterated by Attorney
Chommie, to the gratitude owed the respondent by the employees, and by em-
ployee Allies to the vote of confidence which the employees felt constrained to
give the respondent, is further indicative of the effect of the announcement of
the plan Although Hartz' testimony, that the bonus plan had no connection
with the union activity, finds some corroboration in the testimony of some of
the employees, and the record supports a finding that he may in fact have given
the employees some assurance that the plan was not dependent upon their with-
drawal from the Union, it is apparent, and the undersigned funds, that this state-
ment slid not effectively dissipate the effect of Simons' remarks or the timing of
the announcement Thus, for etianiple, employee Ralph Johnston, called as a
witness by the respondent, testified that, although lie heard no reference to
the Union by management representatives during the meeting he attended, it
fellow-emplo.N ee remarked to him, "well, it this goes through we'll have to have
one of our happy home unions."
The respondent's contention that the stock bonus plan had been under con-
sideration for several years ; that its institution had merely been delayed by
reason of the war, and governmental regulations against inflation ; that the
matter had been in the hands of its attorney at least since August 1945, some 2
months before the commencement of the Union's organizational campaign among
the warehousemen and truck drivers, is not convincing or persuasive Even
less so is the contention that the reason for the premature announcement of th r-
plan was that employees had been clamoring for confirmation of the rumors that
z' According to Harold Pierce, on the morning of October 26, Supervisor Johnson asked
him if he had joined the Union , and when he replied that he had, Johnson stated that a
meeting was to be held in the tobacco room, but that he did not know if Hartz would want
him to attend in view of the fact that lie had joined the Union After consulting with
Hartz, however, Johnson informed him that his membership in the Union would make
no difference , and that Hartz would like him to hear his plan
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a stock plan was impending 23 In any event, none of these asserted reasons
affords any justification for disregarding the Union, after it had been designated
as collective bargaining representative by a majority of the employees in the
unit, when the respondent finally determined to announce the plan to its em-
ployees. Such conduct manifests an attempt to discredit and undermine the
Union, to alienate the employees from their collective bargaining representative
by offering them an inducement to withdraw from the Union, and to frustrate
and defeat the employees in their right to self-organization.
Upon'the basis of the foregoing, and a reconciliation of the conflicting testimony,
the undersigned concludes and finds that the rejection by the employees of repre-
sentation by any labor organization, and the renunciation of the Union, was sug-
gested or inspired by the respondent through the premature announcement of
the stock bonus plan ; that the presence of Hartz and other management officials
while the petition was being prepared, and the participation by Office Manager
Simons, Supervisors Alfred Johnson, Carlson, and Gulseth, each of whom signed
the document, could not have failed to influence the employees in withdrawing
from the Union.
It is not suggested that the initiation of the plan was in any sense unlawful,
improper or violative of the Act. Indeed, the plan may have been prompted by
highly commendable motives. Where, however, as here, the plan was prematurely
announced so soon after a group of employees had designated the Union, it
becomes apparent that it was utilized as an instrument to defeat and frustrate
the self-organizational activities of the employees. The respondent's conduct
in so doing is violative of the Act. For it has been recognized that the right of
employees to self-organization is equally affected whether the interference, re-
straint, and coercion assumes the form of inducements, concessions, or rewards
for refraining from self-organizational activities, or of interrogation, discrimina-
tion, reprisals, or other forms of coercive conduct 24 Indeed, the former, and
perhaps subtler form of coercion, has frequently been found more effective than
more obvious methods.
3. The attempted revocation of designation of the collective bargaining
representative
Almost immediately upon the receipt of the certification of the Union from the
State Labor Conciliator, Supervisor Alfred Johnson and Jessie Miramontes, one
of the truck drivers, consulted L. W. Rulien, a local attorney, with a view to
obtaining reconsideration of the certification. Rulien drafted a letter to the
Conciliator, dated November 10, 1945, stating that more than a majority of the
drivers and warehousemen requested reconsideration of the order of certification,
dated November 9, 1945. The letter further stated that the employees who "may
have indicated that [they] wished Local #581 to represent [them] hereby with-
draw such request," and continued,
In the honest and sincere belief that the Local #581 does not represent a
majority of us, we respectfully request that the certification be reconsidered
and that an actual vote be taken to determine our wishes in this matter.
2a According to Hartz' testimony, he had previously revealed the plan to Office Manager
Simons and Supervisor Alfred Johnson , and to employee Alnes. It is reasonable to infer
that the rumors among the employees emanated from these persons.
24 See N L R B. v John J Other Engravinq Co., 123 F. (2d) 589 (C. C A. 7), enf'g
24 N. L. R B. 893; N. L. R. B. V. Vincennes Steel Corp., 117 F (2d) 169 (C. C. A 7),
enf'g as modified 17 N. L. R. B. 825.
L. B. HARTZ STORES 861
Johnson returned to the warehouse with the letter and procured the signatures
of some of the warehousemen and truck drivers.Z" The letter was later posted on
the bulletin board in the warehouse, and was signed by a number of the other
employees A total of 29 of these employees, most of whom had previously signed
union membership application blanks, signed this letter. Among those signing
the letter were Supervisors Alfred Johnson and Freedolph Johnson, and employee
Lloyd T Allies.
Supervisor Alfred Johnson then mailed the letter by registered mail to the
Conciliator. The registered mail receipt, together with a copy of the letter ob-
tained from Attorney Rulien, was turned over by Johnson to Hartz' secretary, and
remained in the respondent's files until the time of the hearing, when it was
produced at the request of counsel for the Board 2'
Shortly after he learned that Omer Belland had been recruiting membership in
the Union among the warehousemen and truck drivers, Victor Anderson, a ware-
house employee in the candy and tobacco department, allegedly on his own initia-
tive, dictated a petition to Hartz' secretary, addressed to Hartz. The petition,
typed on a sheet from a stock record pad of the respondent, read as follows :
Mr. L. B. Hartz
We the undersigned employees respectfully request that you refrain from
any negotiations with any labor organization, until such time as we may
advise to the contrary.
We anticipate hohhug a meeting among ourselves to determine the wish of
the majority of the Employees as to an organization of any kind or not.
January 2nd, 1946.z'
Anderson placed the petition on a table in the rest room in which the employees
congregated, where it remained for some time. It was later removed and placed
upon the bulletin board. Some 42 employees signed this petition, including a
substantial majority of those warehousemen and truck drivers who had signed
the letter 'to the Conciliator requesting reconsideration of the certification.
Among those signing this latter petition were Supervisor John Erickson, head
sa According to the undisputed testimony of Tenny Torkelson , he signed this letter on a
Sunday afternoon when he casually dropped in at the rest room of the warehouse. Al-
though Sunday was not a regular wonkng day , about 8 or 10 warehousemen or truck
drivers were present, as was Supervisor Johnson. At Johnson ' s request , Torkelson ac-
companied him to the home of Joel Hovden , a warehouse employee , who had signed a
union application blank. Although Torkelson disclaimed any knowledge of the reason for
the visit , it is apparent that it was for the purpose of obtaining Hovden's signature to
the letter. Hovden, however, was ill and Johnson did not see him. According to the
uncontradicted testimony of Harold Pierce, a truck driver, Supervisor Johnson sent a
message to him at his home on Sunday that he wanted to see him at the warehouse.
Pierce drove there and, when he arrived , found a number of his fellow-employees, and
Supervisor Johnson present Johnson asked him to sign the letter and he did so, not-
withstanding that, according to him, the letter did not "exactly" reflect his sentiment.
Hulbert Johnson , another truck driver, also testified , without contradiction , that Super.
visor Alfred Johnson approached him in the garage to sign the letter , but be refused
Supervisor Johnson repeated the request later in the day, and, when he was again refused,
stated to the employee that be (Supervisor Johnson ) wanted to "bring this up to an
election to get the feeling of the men "
^ According to Supervisor Alfred Johnson, Attorney Rulien had neither been paid, nor
had he submitted a bill for services , up to the time of the hearing The record discloses
no evidence that the respondent or any of the responsible officials had authorized the
ietainer of Rulien, or that he had ever represented them in any transaction.
27 While, according to Anderson, his activity in connection with the petition com-
menced shortly after the organizational campaign, it is apparent that the signatures were
not all obtained, and the petition was not delivered to Hartz until this date
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the warehouse department, Supervisors Alfred Johnson, of the trucking de-
partment, Freedolph Johnson of the produce depaitnient, Clarence Gulseth, of the
billing department, in addition to Victor Anderson and Lloyd T. Alnes.
On the evening of January 12, 1946, a meeting was held among the ware-
housemen and truck drivers in the billing office at the warehouse, for the purpose
of conducting an "election " The meeting was arranged by Clifford Any rin, a
warehouseman, at the suggestion of several of the warehouse employees Myrin
obtained permission front Clarence Gulseth, manager of the billing department,
to use the room after working hours. Prominent in the preparations for the
election were Lloyd Allies and Victor Anderson. After conferring with Myrin
as to the form of ballot, Allies typed a stencil of the ballot on his office type-
writer after working hours, and then mimeogi aphed about 50 ballots on his office
mimeograph machine The ballot afforded a choice of voting for No Union,
Company Union, An Outside Union (CIO or AF of L) About 30 warehousemen
and truck drivers were present and voted. The employees signed their naives to
a blank sheet of paper as a means of registration, and each of the employees was
given a ballot Ballots were then cast and deposited in a sealed ballot box,
which had been prepared by Anderson for the occasion. A tally of the ballots
disclosed that, of 30 employees voting, 5 votes weie cast in favor of .in outside
union, 6 in favor of no union , and 19 in favor of a company organization. Ac-
cot dui; to Myrin, both Supervisors Alfred Johnson and Freedolph Johnson were
present during the meeting and voted in the election. Supervisor John E rickson
entered the room after the balloting had been completed, and when lie was
informed what had transpired, told Myrin that lie did not wish to have anything
to do with it' Supeivisor Harold Rasmussen of the fruit department came in
as the employees were dispersing
Following the election, Allies, by letter dated the same day , reported to Hartz
the results of the election 20 The letter concluded,
zv Although Allies testified that he believed that Supervisors Alfred Johnson and
Freedolph Johnson were present during the voting, he was not certain whether they
voted He agreed with Myiin that Supervisor Erickson came in after the balloting had
been completed, and testified that he did not believe that Erickson had voted The
undersigned finds that both Alfred and Freedolph Johnson were piesent and voted, but
that Erickson did not
'20 Allies who had formerly been employed by the respondent as a warehouseman, was
transfeired, on October 22, 1945, at his request, to the fruit department as a clerk His
duties consisted of general clerical work, including billing, buying and selling over the
phone, and assisting, with another assistant of equal rank, Supervisor Harold Rasmussen,
head of the department, with a total complement of nine employees Although the evi-
dence does not waiiant a finding that Allies was a supeivisory employee at this time, there
is sufficient basis for the conclusion that lie was in the confidence of Hartz, and that
Alves' activities were conducted in Haitz' inteiest In August 1945, Hartz had invited
Alves to attend a "Technocracy" meeting While driving him home after the meeting,
Hartz disclosed to him the contemplated stock bonus plan for the employees. Thus, Allies
was the only employee, other than Office Manager Simons and Supervisor Alfred Johnson,
to whom the plan was disclosed in advance of the announcement It will be recalled
that Allies initiated the original petition to reject the Union , that he requested Hartz to
draft the introduction to the petition , and that Hartz delivered the original draft to
him Allies prepared the final draft, adding the language revoking the union designation ,
played a principal tole in the pieparations for, and the conduct of, the election, and
normally reported the results to Hartz the same day In view of the foregoing, the under-
signed finds that Allies was acting in the interest, and with the knowledge and approval
of Hartz, and that Allies' activities in combatting the Union are attributable to the
respondent It should be noted that Hartz saw the completed document which Allies had
diafted, containing the recital that the employees were renouncing the Union in considera-
tion of the stock bonus plan, yet he made no attempt, after the document was prepared, to
i eassure the employees that they need not withdraw from the Union in order to qualify
for the stock bonus.
L. B. HARTZ STORES 863
Since the overwhelming majority favored a company organization, it was
decided to meet at an early date to give more consideration to the partic-
ular type and scope of organization we might desire, and to appoint a
committee to investigate several company union setups, and their contracts °D
It is clear from the foregoing, and the undersigned finds, that supervisory
employees of the respondent actively participated and engaged in activities
directed toward obtaining reconsideration of the State certification; requesting
Hartz to refrain from negotiating with any labor organization; and the holding
of an election on company premises Thus, Supervisor Alfred Johnson consulted
an attorney with a view to attempting to effect reconsideration of the certifica-
tion, obtained the signatures of employees to the petition addressed to the State
Conciliator, and himself signed the petition, as did Freedolph Johnson, another
supervisor Later Supervisor Alfred Johnson furnished the respondent with a
copy of the letter, with which lie tui,ied over the registered mail receipt, which
remained in the respondent's possession until the time of the hearing. The
request to the respondent, Hai tz, to refrain from bargaining with any labor
organization was similarly signed by those supervisors, as well as by Supervisor
Erickson and Supervisor Clarence Gulseth, who later granted the employees
permission to conduct the election upon company premises. Furthermore at
least two of these supervisors voted in the election which resulted, in effect,
in the rejection by the employees of the Union and the decision to organize a
company union When these facts are considered against the background of
the circumstances in connection with the announcement by the respondent of
the stock bonus plan, which culminated in the rejection of the Union by the
employees including substantially all the warehousemen and truck drivers who
had previously designated the Union, the, evidence leads to the conclusion and
the undersigned finds that, by all of the foregoing acts, related in detail above,
the respondents have interfered with, restrained, and coerced their employees
in the exeicise of the rights guaranteed under the Act.a'
B. The discriminatory discharge of Omei Belland
Omer Belland was first employed by the respondent in the latter part of August
1942. For the first week he worked in the fruit department, and for a few
weeks afterward, in the warehouse, loading trucks He continued in the
respondent's employ until late in December 1943, when he left voluntarily
During the summer of 1944, he communicated with Supervisor Alfred Johnson
and offered to return to work if there was an opening In January 1945,
Johnson called him to return to work and, according to Belland, informed him
that the ,lob would be "steady " Belland was assigned the job of night service
man,` servicing trucks and doing minor repairs. His hours were from 6 o'clock
p in to 6 o'clock a in.
On the evening of October 18, 1945, alter an earlier discussion with Business
Agent Ralph Henderson, Belland signed a membership application blank at the
company gar.ige, and joined the Union During the lunch period, at about 3
o'clock in the morning, on October 19, he signed up the night crew among the
warehousemen and truck drivers. Later that morning, after he had completed
his shift and was ott duty, he enlisted the membership of the remaining ware-
10 The record discloses that no further effort was made by the employees to organize a
company union.
i' The effect of the attempted revocation by the employees of their designation of the
collectne baigaining representative is discussed heiemafter , under Section III C, "The
i(Ain,al to bargain
_11-o releriid to in the iecoid as "gre,iwe nionkei
717734-47-voi 77 56
864 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
housemen and truck drivers whom he eventually recruited , except for one
employee whose application he later obtained on November 16. Of a total of 23
union members , including himself , Belland personally enrolled 19
On the evening of October 19, shortly after 5 o'clock , as he was leaving the
warehouse , Lloyd Seaverson was accosted by Hartz, Supervisor John Erickson,
Office Manager Simons and Supervisor Alfred Johnson , who were also about
to leave 33 Hartz asked Seaverson what had been going on at the warehouse
that day , and Seaverson informed him that "the boys were signing up for the
union ." When Hartz asked him who had been signing up the men, Erickson
interjected that it was Belland. Hartz inquired as to Belland's whereabouts,
and asked Seaverson whether he knew where to reach him. Seaverson replied
that he did not Hartz interrogated Seaverson with respect to whether he
had joined the Union . Seaverson replied that he had not , but that he had
promised Belland that he would do so that night . Hartz then asked Seaverson
what percentage of the warehouse employees Belland had signed up , and when
Seaverson replied that Belland had signed up 70 percent , Hartz remarked to
Simons, "Do you suppose he got that many ?" Seaverson interposed , "Well,
that's what the man says . . . ' At that point , Hartz became provoked, swore
and exclaimed , "find that man and fire him " Johnson suggested , " no, no, we
can't do that, after all, he's the best man we've got in the place ." Thereupon,
Hartz remarked , "Well, if the man comes clean we won ' t fire him, go and find
him." 64
Supervisor Johnson suggested that lie and Seaverson go uptown to look for
Belland , and both men left, but parted outside the warehouse Seaverson left
for his borne.
Later that evening , according 1o Belland 's testimony , which was substantially
corroborated by Johnson , Supervisor Johnson found Belland at Hilly's Tavern,
and told him that Hartz wanted to talk to him. Johnson asked him what he
"expected to 'gain by signing the boys up in the union ." Belland answered,
"Nothing, personally." During the conversation , Johnson further remarked, "to
33 According to Johnson , he had only just returned to the plant from a trip , and was
only present for a very brief interval toward the end of the episode.
34 These findings are based upon the combined testimony of Lloyd Seaverson and Omer
Belland , to whom, as will be seen, Seaverson related what had transpired later the same
evening , in the presence of employees Hilbert Johnson and Joel Hoyden . Hoyden did not
testify , but Hilbert Johnson substantially corroborated Belland's testimony as to the sub-
stance of his conversation with Seaverson. Although Seaverson testified that he did not
recall telling Belland that Hartz swore and threatened to discharge Belland , and that lie
did not recall that this actually occurred, his testimony, otherwise substantially corrobo-
rated Belland's as to what lie had been told by Seaserson. Moreover, according to Hil-
bert Johnson ' s credible testimony , Seaverson had.stated to Belland that "somebody said
someone was going to get fired," and it is clear from the context of the testimony that this
referred to Belland This witness, however , could not recall any reference in Seaverson's
statement to Belland about anyone "coming clean " Hartz, Erickson, Simons and Alfred
Johnson manifested an astonishing lack of recollection in their testimony about so crucial
an incident, Hartz protesting a complete inability to recall the incident The others
admitted the encounter with Seaverson, but testified either that they could not recall any
mention of Belland and his union activity or that no such mention was made. All, how-
ever, denied that any threat was made to discharge Belland because of his union activity.
Although the testimony of the respondent ' s witnesses regarding this episode was generally
vague, equivocal and evasive, Erickson admitted that some mention was made of "the
boys signing up for the Union " Supervisor Johnson testified that he came in at the
"tail end" of the conversation as everybody was leaving, but admitted that someone present
mentioned that Belland had "signed up the boys." Upon the basis of the foregoing, a
reconciliation of all the conflicting testimony, and an evaluation of the credibility of the
persons involved , the undersigned finds that the incident occurred , and the statements
were made , substantially as stated above.
L. B. HARTZ STORES 865
think it was you that signed them up " Belland replied , "well, it might as
well be me as somebody else " 35
Later the same evening, Seaverson met Belland at Hilly ' s Tavern, and, in
the presence of employees Hilbert Johnson and Joel Hovden, related his en-
counter earlier that evening with Hartz and the others who had been present.
According to Belland 's credible testimony , Seaverson told him that lie had been
"called on the carpet" before Hartz and the supervisors , whom he named. He
then repeated to Belland what had transpired, substantially as has already been
relat ed.3B
On about October 25. Supervisor Alfred Johnson engaged Belland in a con-
versation in which, according to Belland , Johnson "pumped " him about the
Union. Johnson asked him what percentage of employees he had signed up
in the Union . Belland stated that he had about 70 percent of the warehousemen
and truck drivers signed up as union members 31
Belland was one of the few employees who declined to sign the statement
renouncing the Union . He was not requested to sign nor did he sign the request
to the Conciliator for reconsideration of the certification.
On the night of December 12, 194 5, Supervisor Alfred Johnson informed
Belland that former employee Olson was returning to work, and that Belland
had "two nights left to work ." Belland protested that Johnson had discharged
Olson and had hired Belland to replace him when he returned to work in
January . Belland asked for an explanation 38 Johnson replied, "well , that's
Mr. Hartz ' orders I can ' t do nothing about it " According to Johnson, he
thereupon gave Belland 2 weeks' notice of termination.
Prior to that time , Belland had worked alone on the night shift. The follow-
ing week, however , Richard Olson worked with him. On the night of December
23, soon after Belland started work , Supervisor Johnson informed him that he
was not to have reported for work, that his employment was to have termi-
nated that night. Johnson gave him the option of completing the night 's work,
or leaving when Richard Olson reported for work, informing him that he would
be paid for that night in either event. Belland elected to leave when Olson
reported . Belland has not since been reemployed, nor has he been offered rein-
statement . He registered with the United States Employment Service, and
has since obtained unemployment compensation
Late in January 1946, following his discharge , Belland called on Supervisor
Johnson at his home, and told him that the Union intended to file unfair labor
practice charges because Harts had broken every "labor law under the sun,"
35 Johnson admitted the encounter with Belland , although he indicated that he had not
been looking for him , but had just happened upon him casually at Hilly's Tavern , which,
according to Johnson , Belland frequented The undersigned rejects Johnson's testimony
that this was a casual meeting and finds, in view of the findings made above, that he
purposely sought out Belland. Johnson admitted , however , that he made the statements,
in substance , attributed to him by Belland , and explained that it had struck him as odd
that Belland should have signed the men up in the Union, in view of the fact that Belland
had previously mentioned that his father and brother had been "dealt out of a job" as a
result of an experience with a union.
3° See footnote 34
ii Johnson admitted that sometime in October 1945, upon his return from a trip, he
learned that Belland had been "signing the boys up" for the Union ; that he "might
have" asked Belland how many he had signed up; and that Belland "might have" told
him that he had signed up 70 percent.
3s It is apparent that Johnson and Belland were referring to two different peisons, each
named Olson Belland assumed that Johnson was referring to Kenneth Olson, who had
in fact been discharged and replaced by Belland . Johnson was referring to Richard Olson,
a former employee and returning veteran.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adding, "you know darn well that you laid me off on account of union activity "
Johnson, while not denying Belland's assertion that he had been discharged for
union activity, slated that he had merely been obeying Hartz' orders Belland
"apologized" to Johnson, and assured him that he had no personal grudge against
hum Johnson replied, "I'ni glad you understand the position I'm in.""
The "-espondent's contentions regarding Belland's discharge
The respondent denies that Belland was discharged for union considerations,
and asserts that the primary reason for his discharge was the necessity foe rein-
stating Richard Olson, a returning veteran of World War II, and former employee.
As a secondary, and more remote reason, the respondent contends that it decided
to discharge him because of his proclivity toward taking extended lunch periods,
absenting himself from work, and di iving into town in a company truck when he
was required to be on duty. This resulted, according to the respondent, in con-
siderable mcom enience to the warehouse crews and interfered with loading
operations at the clocks, requiring truck drivers to maneuver the trucks at the
loading docks themselves, an operation which Belland was normally required to
perform as part of his duties. With respect to his other duties, however, both
Hartz and Johnson agreed that he was "a very good workman" and "could be
relied upon to do his work in a workmanlike manner."
Belland testified without contradiction, that as part of his duties, he was
required to leave the plant nightly to call for, and return, drivers to their homes
in a company truck, and admitted that during these trips he would stop for a beer.
Once or twice a niontli, however, he admitted, he would leave the plant on per sonal
errands, and would stop for a beer, absenting himself from the warehouse from
15 to 30 minutes at a time. According to his undisputed and credited testimony,
however, this was a common practice among the emplo"ees °0 and slid not result in
their being disciplined. Furthermore, Belland testified that he could anticipate
the arrivals of trucks and that at no time did he leave the plant when trucks were
expected at the loading docks of before his work had been completed "for the time
being."
Contiary to Hartz' and Johnson's testimony, Belland denied that lie had been
reprimanded or disciplined, except possibly during the first period of his employ-
ment in 1941, and in 1943, when Johnson cautioned him against taking the trucks
uptown too often because of gas rationing The respondent further contended
that it had received complaints from the local police that Belland had been leaving
a company truck standing in the street with the motor running "in front of beer
tai erns " Belland admitted that lie had on occasion left the truck standing with
the motor running during the winter time, and that lie had heard rumors that
complaints had been made by the police, but testified that this had occurred in
1943, and that the complaints had related to his failure to have a "chauffeur's
badge" to drive a truck According to the respondent, these matters were called
to Bella nil's attention. and lie agreed to discontinue the practice There is no
e% idence that he failed to do so Inasmuch as neither Hartz nor Johnson estab-
lished the time of these complaints and consequent warnings, the undersigned
finds, neon the basis of Belland's uncontradicted testimony, that these events
occurred due ing his first period of employment
'° The above findings are based upon the undisputed testimony of Belland
40 Substantial corroboration of this testimony is found in the testimony of Lloyd Allies
at the hearing before the State Labor Conciliator Allies testified at that hearing that it
was not unusual for employees to take a half hour, morning and afternoon , in addition to
the regular lunch period , for coffee which the respondent provided According to Allies'
testimony , " The Company has been very free on that For instance , maybe a fellow
has to take a little time off to go up town. As a rule unless it runs to one half hour or
one hour, it is not deducted from his time . . .
L. B. HARTZ STORES 867
It is significant that, notwithstanding these complaints, Belland was reem-
ployed in January 1945, and, although the undersigned is not unmindful of the fact
that the respondent may not have been in a position to be as discriminating in
its choice of employees at the time because of the acute manpower shortage, it is
improbable that it would have rehired Belland if his shortcomings were as serious
as it contended. Even during his earlier employment, Belland was not disciplined
beyond a mere reprimand, despite his allegedly habitual misconduct. The infer-
ence is warranted that, either the respondent did not consider the misconduct as
serious as it later contended at the hearing, or that the respondent condoned
the misconduct when it subsequently rehired him. Also significant is the fact that
at no time prior to the hearing did the respondent advance his previous mis-
conduct as a ground for discharge. Johnson, who notified Belland of his discharge,
admitted that the only reason he gave him for his discharge was that "Olson was
coming back and wanted to go on the old job and there was no other place for him."
Upon the basis of the foregoing, and upon the entire record, the undersigned con-
cludes and finds that Belland's misconduct was not a material or substantially
contributing cause for his discharge; that the respondent placed no reliance upon
It in arriving at the decision to discharge him ; and that it resorted to the alleged
misconduct to fortify its position in discharging him.
Turning to the primary reason asserted by the respodent for discharging
Selland, namely, the necessity for reinstating a returning veteran, the respondent
contends that it has pursued a policy of reinstating all returning veterans, who
were formerly employed by it, to their former positions; that Belland was dis-
placed in this procedure; and that there was no other job available for which
Belland was qualified.91
It is significant that, although Olson had been employed as a truck driver for
several months immediately prior to his induction, when he applied for his
former job, he was informed by the respondent that it had no job available for him
as a truck driver. That was the job held by him when he was inducted, and that
was the job he desired The rate of pay for a truck driver was substantially
higher than that of the night service man. Yet, the respondent dismissed Belland
and assigned Olson to his job No explanation was offered by the respondent as to
why, if the respondent intended to restore Olson to his former job, it did not
dismiss a truck driver, and assign Olson to that job 42
Olson continued in the job of night service man for about 5 weeks, until Janu-
ary 31, 1946, when he was finally transferred to a job as truck driver Charles
Wold, a returning veteran, who had been in the respondent's employ for only
1 month, from May to June 1944, at the time of his induction, was simultaneously
given the job of night service man, replacing Olson Belland was not considered
for, nor offered the job as night service man at this time.
41 Hartz testified that Belland was not considered a mechanic ; that in his capacity as
a night service man or "grease monkey," he had performed only minor repairs or adjust-
ments; that although he had worked as a warehouseman for a few weeks during his prior
employment with the respondent , he nad complained that he was unable to perform heavy
woik because of a physical disability, that while he had woiked temporarily in the fruit
department, he had complained that he was unable to withstand the change in temperature
occasioned by going in and out of the refrigerator; and that he was not a truck driver,
such driving as lie performed being confined to maneuvering trucks at the loading docks
and carrying truck drivers to and from the warehouse
42 The record indicates that Ed DeLap, a returning veteran who had been employed by
the respondent as a truck driver for about 5 years at the time of his induction, was rein-
stated to his job as truck driver on December 18, 1945 Hartz was unable to state whether
DeLap displaced anyone, although lie furnished similar information respecting other
employees who were reinstated to their former positions.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 18, 1946, Raymond Olson," a veteran, formerly employed by the
respondent as a mechanic, was reinstated to his former job as a day mechanic,
assisting Supervisor Alfred Johnson. The respondent had theretofore employed
only one day mechanic, aside from Johnson In order to restore Olson to his
former job, the respondent transferred the mechanic who had held Olson' s job in
his absence to a newly created job as mechanic on the night shift 44
The respondent asserts, in sum, that, as of March 1946, it had reinstated, or
employed as new employees in all its departments, a total of 22 veterans,4D of
whom 4 were new employees, 1 of whom was hired as a warehouse employee.
In accomplishing this, it was necessary to discharge or transfer a total of 17
employees. Veterans were apparently reinstated without reference to their length
of service, seniority, and, in some instances, without relation to their former jobs,
or other relevant criteria One veteran had never previously been in the employ
of the respondent, and another had been in the employ of the respondent for
only 1 month.
However laudable and patriotic the respondent's purpose in attempting to
provide reemployment to returning veterans formerly in its employ, as well as
those never previously employed by it, the primary issue here is whether or not
the respondent discharged Belland. for the reason advanced, in good faith, or
utilized it as a pretext in order to eliminate the most active union adherent.46
In attempting to ascertain the underlying motive of the respondent in dis-
charging Belland, it is significant that, while the respondent asserted that it had
maintained a policy of reinstating veterans to the positions formerly held by
them at the time of their induction, it failed to reinstate Richard Olson to his
most recent position as a truck driver, a position which he desired, which paid
a substantially higher rate of pay, and one to which he was presumably entitled
under the Selective Service Act. True, he was subsequently transferred from
the job as night service man to a job as a truck driver The explanation, how-
ever, that there was no position available as a truck driver at the time he applied
for reinstatement, and that he was offered, instead, the job of night service man,
completely evades the question as to why a truck driver was not dismissed to
make available to him the job to which he was entitled.
When all the circumstances are considered in the light of Belland's union
activity and his part in the organizational campaign ; the transparent attempt
of the respondent to undermine and circumvent the Union ; the explicit threat
to discharge him almost immediately upon the discovery of the extent of his
part in the organizational campaign, and all the other factors which have been
"Not to be confused pith Richard Olson, who displaced Belland.
"Until this time, the respondent had employed only a garage service man or "grease
monkey," the position formerly held by Bel]and, on the night shift At the time of this
transfer, Charles Weld held the job of night service man. The respondent contended that
it created the new job of night mechanic because Supervisor Johnson, who was in charge
of the department and performed major mechanical repairs , was absent a great deal of
the time installing and servicing refrigeration equipment for retail store outlets of the
respondent ; that Johnson had been greatly overworked ; and that because of the ob-
solescence of the respondent's trucks, additional help was required to maintain normal
operations
46 Among these , the respondent apparently included three veterans who were hired in
the bakery department.
4QAlthough the respondent adduced uncontroverted evidence that, in providing em-
ployment for returning veterans , it displaced an equal number , five, of union and non-
union employees , and that some of these union employees had left voluntarily, while all
the non-union employees were discharged , such evidence is insufficient to meet the more
positive showing of discrimination in connection with Belland ' s discharge.
L. B. HARTZ STORES 869
related, it becomes apparent that the respondent was not motivated, in dis-
charging Bel]and, by the reasons which it asserted, but seized upon the necessity
for reinstating a returning veteran as a pretext for discharging an active union
adherent.
Upon the basis of the foregoing, and upon the entire record, the undersigned
therefore finds that the respondent discharged Omer Belland because of his
union membership and activity, and thereby discouraged membership in the
Union, and interfered with, restrained, and coerced its employees in the rights
guaranteed under the Act °'
C. The refusal to bargain
1. The appropriate unit
The complaint' alleged that all warehousemen, truck drivers, and garage
mechanics of the respondent, excluding supervisory and office employees, con-
stitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act.
Although the respondent contended, in effect, for a plant-wide unit of all its
employees, above the rank of working foremen, among whom it originally
sought to include employees Alfred Johnson and others of comparable status,"
no evidence was introduced in support of this contention. Moreover,' the record
indicates no cogent basis for including such a heterogeneous group of employees
in one unit. The Union does not admit to membership, nor does it seek to
represent, any of the employees in the various categories, apart from the ware-
housemen, truck drivers, garage mechanics, and service men. ,
Accordingly, upon the basis of the foregoing, and upon the entire record, the
undersigned finds that all warehousemen, truck drivers, and garage mechanics,
including garage service men, excluding all office employees and supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of said employees, or effectively recommend such
action, constitute an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act, and that such unit will insure
to the employees involved the full benefit of their right to self-organization, and
otherwise effectuate the policies of the Act 60
2. Representation by the Union of a majority in the appropriate unit; the refusal
to bargain
The record discloses, as has already been found, that 20 warehouse employees
and truck drivers signed membership application cards with the Union on
"The undersigned has considered the record of conviction of Omer Belland in 1932 for
violation of the liquor laws, which was offered solely for the purpose of impeaching his
credibility Apait from its remoteness and the fact that it occurred long before Belland's
original employment with the respondent , the undersigned finds that his credibility has
been unimpaired by the said record.
98 As amended at the hearing.
It was later stipulated that employees Alfred Johnson , Freedolph Johnson, John
Erickson and Harold Rasmussen were all supervisory employees within the Board's usual
definition , and, as such , are to be excluded from any unit found to be appropriate
61 No evidence was offered to afford a basis for including the egg packers , who are ap-
parently employed at the warehouse, in the unit alleged and found to be appropriate. For
reasons indicated above, these employees have not been included in the unit.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 19, 1945 n According to the pay roll as of October 19, there were 39
warehousemen and truck drivers including Freedolph Johnson, produce depart-
ment foreman, John Erickson, warehouse department foreman, and Alfred John-
son, trucking department foreman u2 Excluding these three supervisory em-
ployees, it is clear that the Union, on October 19, had a membership of 20 among
36 of the respondent's employees within the appropriate unit, and hence a clear
majority G3
The undersigned therefore finds, upon the basis of the foregoing and upon
the entire record, that the Union was, on October 19, 1945, the duly designated
representative of a majority of the employees in the unit heretofore found to have
been appropriate, and that by virtue of Section 9 (a) of the Act, was, on October
19, 1945, the exclusive representative of all the employees in the said unit for the
purposes of collective bargaining with respect to rates of pay, wages, hours, and
other conditions of employment.
On or before October 25, 1945, Business Agent Henderson called upon Hartz,
asserted the Union's claim of majority representation, and requested that he
negotiate a contract Hartz did not question either the Union's majority or the
appropriateness of the unit, but iequested several weeks within which to consider
the matter, at the end of which he would give him his answer. At the end of that
time, however, Hartz made no reply 64 It is apparent, from time foregoing, and
the undersigned finds, in view of the subsequent unfair labor practices in which
it engaged, commencing soon after the Union's demand, that the respondent at no
time intended to bargain in good faith, and resorted to and utilized the request
for time within which to consider the Union's demand, to hinder, delay, and
prevent the Union from fulfilling its role as duly designated collective bargaining
representative.
On NoNember 13, 1945, following the certification of the Union by the State
Conciliator, Henderson wrote the respondent requesting a conference for the
puipose of negotiating a contract This letter was ignored by the respondent.`
6z Except for Belland, whose uncontradicted testimony indicates that he signed his
membership application on October 18 Beliand further testified credibly, and without
contiadiction, that the application of David Drotts, which is undated, was also signed on
October 19 The respondent's contention that the signing of the membership application
blanks was ineffective to designate the Union as collective bargaining representative, in
view of the fact that, as it offered to prove, at least 50 percent of those signing the applica-
tions had failed to pay either initiation fees or membership dues, or both, has been hereto-
foie considered by both the Courts and the Board, and found to be without merit
N L R B v. Bradford Dyeing Assn, 310 U S 318, N L R B v Somerset Shoe Co,
111 F. (2d) 681 (C. C. A 1) , N. L R. B v. Fargo Foundii/ Comnanij, 141 F (2d) 462
(C. C A. 8) ; Lebanon Steel Foundry v N L. R B, 76 App D C. 100, 130 F (2d) 404,
cert den 317 U S. 6,19 see also Matter of Consolidated Machine Tool Cot potation,
67 N L R B. 737 The undersigned therefore rejects this contention
>z These three foremen are listed on the pay-roll record as working foremen As has
already been found, and in accordance with the stipulation of the paities, these three
foremen aie supervisory employees, and are hence excluded from the computation of
majority
c' while the Board is not bound by the certification of the Union by the State Labor
Conciliator, the certification supports the deteimination of the Union's majority on
October 19. 1945
54 According to Hartz, Hendeison ietuined several days after October 25, and stated
that lie was there "on the formality" of charging Hartz with having engaged in unfair
labor practices. A disagreement ensued and Hartz ordered hum from the office
as Two additional employees had previously signed membership application blanks on
.T lily 8 and July 30, 1945, respectively, and, later, on November 16, 1945, another employee
signed a similar blank. Counsel for the Board contends that, in addition, five "over-the-
road" truck drivers, employed by the respondent, including the two who had signed
applications on July 8 and 30, who, at all times material, were members of a different local
of the union with which the charging union is affiliated, should be included in computing
L. B. HARTZ STORES 871
Later, on March 16, 1946, Henderson again wrote to the respondent, requesting a
conference, and suggesting a definite date for the commencement of negotiations
This letter was similarly ignored by the respondent, and on Match 21, the date
suggested for the conference, Henderson telephoned Hartz, but, so far as the
record discloses, nothing resulted from this attempt.
The respondent contends, in effect, that it refused to bargain with the Union
for the reason that it had never been properly designated as the bargaining agent
of the employees involved; that the employees had informed the respondent that
the Union did not represent their choice of representative, that the employees had
assumed that they would be given an opportunity to determine in an election
whether or not they desired to be represented by the Union or any other bargaining
representative; that they had never been afforded an opportunity to do so; that
they did not in fact desire to be represented by the Union or any other labor
organization, and had so indicated by the various petitions renouncing the Union
as their collective bargaining representative, requesting the Conciliator to recon-
sider the older of certification, and revoking their designation.
The Act is clear in intent, and it has been too well-established to require
extended discussion, that election and certification proceedings are not the only
method of determining majority representation, and that an employer may not
require certification as a condition precedent to bargaining where the employer
entertains no real doubt as to the Union's majority, or where reasonable proof is
available and the employer makes no eftoit to ascertain whether the Union has
a majority.60
Moreover, in the circumstances disclosed, the respondent may not rely upon the
asserted revocation of designation of the bargaining representative since "An
employer cannot be heard to say that lie enteitains an honest doubt as to the
union's majority status where he conducts a campaign to destroy that majouty." 5T
The record abundantly establishes that, apart from the respondent's refusal to
bargain on October 25, 1945, itself an unfair labor practice, the respondent there-
after on October 26, offered its employees a concession in the form of a stock
bonus, in consideratiton of which the employees within the unit renounce their
membership in the Union
It has been held that the mere granting of conditions requested by individual
employees with the knowledge that this would lead them to ieuounce then
bargaming agent constitutes an unlawful inducement by the employer for the
unseating of the bargaining agent and the telinquishinent by the employees of their
basic rights under the Act. Moreover, once such a representative has been chosen
and until its designation has been effectively and lawfully revoked, the employer
must refrain fionr negotiating with the individual employees in the unit and must
confine his dealings to their representative, even to the extent of remisting the
overtures of a majority of the employees in the unit that lie deal with them instead
of their collective agent G8 Especially is this true where, as here, the respondent
the Union's majority Inasmuch as it is found that the Union had a clear malonty from
and after October 19,- apart fiom these employees, it is unnecessary to pass upon the
contention
66 See , e g, N. L R. B V. Remington Rand , Inc, 94 F (2d) 862. 868, 869 (C C A
2) ; N. L R. B. v. Federbnslz Co., 121 F. (2d) 954 (C C A 2) ; N L R B v Dahlstrom
Metallic Door Co , 112 F (2d) 756 (C C A 2)
6Y Matter of Consolidated Machine Tool Corporation, 67 N L R B 737, where it was
held that an employer 's Qefusal to recognize or otherwise bargain with the union until its
majority status was established in an election, after having engaged in unfair labor
practices directed toward the dissipation of the union's majority Status, constituted a
refusal to bargain in violation of Section 8 (5) of the Act
11 Dledo Photo "apply Corp v N L R Ii . 321 U S 678.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
itself initiated the proposal which resulted in the rejection of the bargaining
representative.a9
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that the attempted revocation of the designation of the Union
was ineffectual in dissipating the Union's majority, or in affecting its status as
collective bargaining representative; that the Union was, on October 19, 1945, and
at all times material thereafter, the duly designated representative of a majority
of the employees within the aforesaid appropriate unit, and that by virtue of
Section 9 (a) of the Act, was on October 19, 1945, and has since been, at all times
material herein, the exclusive representative of all the employees in the said unit
for the purposes of collective bargaining with respect to rates of pay, wages, hours,
and other conditions of employment 60
It is conceded that the respondent granted its employees, including the employ-
ees involved herein, general wage increases between December 1945 and April
1946. In view of the determination respecting the Union's status as representa-
tive from and after October 19, 1945, the undersigned finds that by the granting of
such unilateral wage increases, without consulting with the Union, the respondent
has refused to bargain with the Union respecting wages, a proper and appropriate
subject of collective bargaining.
In view of the fact that, as has been found, the operation of the stock bonus plan
contemplated and resulted in increased earnings to such employees as were
entitled to the bonus ; that eligibility for participation in the plan was determined
by such matters as length of service; that the plan was inaugurated after the
Union had been duly designated as collective bargaining agent by a majority of
the employees in an appropriate unit, and without prior consultation with it, the
undersigned further finds that, by such unilateral action respecting a matter
which is an essential and appropriate subject of collective bargaining, the respond-
ent has refused to bargain in violation of Section 8 (5) of the Act.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that, by the respondent's entire course of conduct, as herein-
before more fully related, including its refusal to bargain with the Union upon
demand on or about October 25, November 13, 1945, and March 16, 1946, the
announcement and establishment of the stock bonus plan, and the granting of
unilateral wage increases, following the designation of the. Union without prior
consultation with it, the respondent has, since October 25, 1945, and at all times
thereafter, failed and refused to bargain with the Union as the exclusive repre-
sentative of the employees within the appropriate unit with respect to rates of
pay, wages, hours, and other conditions of employment, in violation of Section 8
(5) of the Act, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The undersigned further finds that, by the announcement of the said plan to its
employees shortly after the Union had been designated as the exclusive collective
69 The Board has recently held that even assuming that some employees who renounced
the union were motivated in part by factors other than the discouraging effects of the
unfair labor practices committed by the respondent, any attempt to disentangle other
factors from these unfair labor practices is impossible so long as the unfair labor practices
are unremedied Under the circumstances, such defection as a matter of law does not
impair the union's pieviously established majority. (Cases cited) Matter of Wilson of Co.,
Inc, 67 N. L R B. 662.
61 In view of the foregoing findings it is unnecessary to pass0upon the contention of
counsel for the Board, that the certification of the Union by the State Labor Conciliator,
on November 9, 1945, following an investigation, is decisive upon the question of the
Union's majority on that date , or that the principle of presumption of continuance of
majority following a Board certification, should be accorded to a certification by a State
labor agency.
L. B. HARTZ STORES 873
bargaining representative ; by the statements of Office Manager Simons and the
respondent Hartz to the employees on October 26, 1945, in connection with the
announcement of the stock bonus plan, in which they explicitly, or implicitly urged
them to renounce the Union and reject any other bargaining representative; by the
participation of the said Simons and Hartz, as well as employee Lloyd Alnes, in
the preparation of the document by means of which the employees rejected the
Union; by the participation in and signing of the said document by Supervisors
,Carlson, Gulseth, Simons, Alfred Johnson, and employee Lloyd Alnes; by the
interrogation by Supervisor Alfred Johnson of employees Harold Pierce and Omer
Belland respecting their union membership and activity; by the participation by
the said Supervisor Johnson in the effort to obtain reconsideration of the certifica-
tion by the State Labor Conciliator, including consultation of an attorney, signing
the letter requesting the same and soliciting the signatures of the employees
thereto ; by the signing of the said letter by Supervisor Freedolph Johnson ; by the
conduct of Supervisors John Erickson, Alfred Johnson, Freedolph Johnson, and
Clarence Gulseth, in participating and joining in signing the petition to the
respondent Hartz requesting him to refrain from negotiating with any labor
organization ; by the participation of Supervisors Alfred and Freedolph Johnson
in the election held at the warehouse on January 12, 1946, and the granting of
permission by Supervisor Gulseth to conduct the said election upon respondent's
premises; by the interrogation by the respondent Hartz of Lloyd Seaverson on
October 19, 1945, in the presence of Supervisors Erickson, Simons, and Alfred
Johnson regarding the employees' union activity, concerning Seaverson's member-
ship in the Union, Belland's part in the organizational activities, and the threat
to discharge Belland. by Supervisor Alfred Johnson's interrogation, later the saine
evening and again on October 25, 1945, of Omer Belland regarding his union
activity ; by the discharge of Omer Belland because of his membership in, and
activity in behalf of the Union, thereby discriminating in regard to the hire and
tenure of employment of its employees, and discouraging membership in the
Union, all as heretofore found ; and by the other acts and statements of the
respondent's supervisors and agents, hereinbefore more fully detailed, the respond-
ent has interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed under the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the respondents 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
It having been found that the respondents have engaged in certain unfair
labor practices , it will be recommended that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act
It has been found that the respondents have refused to bargain collectively
with the Union as the exclusive representative of their employees in an appro-
priate unit. It will, accordingly , be recommended that they bargain collectively
with the said Union upon request.
It has been further found that the respondents have discriminated in regard
to the hire and tenure of employment of Omer Belland. It will, therefore, be
recommenced that the respondents offer the said employee immediate and full
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement to his former or substantially equivalent position, without prej-
udice to his senioiity or other rights and privileges, and make him whole for any
loss of pay he may have suffered by reason of the disciiniination against him,
by paiiuent to him of a stun of looney equal to that which he would normally
have earned from December 23, 1945, the date upon which he was discriimna-
torile discharged, to the date of the otter of i cinstatement, less his net earnings 6'
during said petiod
In view of the extensive and pervasive nature of the respondents' unfair
labor practices, including discumnnatioi in regard to the hire and tenure of
emplo.Nnieat, one of the most effective means of intimidation calculated to defeat
and frustrate the employees in their iight to self-organization,62 by which the
respondents have manifested an attitude of opposition to the poi poses of the
Act, it will also be recommended, in order to protect the rights of the employees
generally, that the respondents be required to cease and desist front in any
mariner interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed under the Act.0'
Upon the basis of the foregoing findings of tact, and upon the entire record
in the case, the undersigned makes the following.
CONCLUSIONS OF LAW
1 International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, General Drivers and Warehouse Employees Local Union
# 581, affiliated with the Amer lean Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2 All the respondents warehousemen, truck drivers, and garage mechanics,
including garage service men, excluding office euiplo^ ees, and supervisory
employees with authority to lure, promote, discharge, discipline, or otherwise
effect changes in the status of said employees, or effectively recommend such
action, constitute it unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, General Drivers and Warehouse Employees Local Union
#581, affiliated with the American Federation of Labor, was, on October 19, 1945,
and has been, at all times thereafter, the exclusive representative of all the
employees in the aforesaid unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing, on or about October 25, 1945, and at all times thereafter,
including on or about November 13, 1945, and on or about March 16, 1946, to
bargain collectively with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, General Drivers and Warehouse Employees
Local Union #581, affiliated with the American Federation of Labor, as the
exclusive representative of the employees in the aforesaid unit, the respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (5) of the Act.
01 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and boaid, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N L It B 440 Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects shall be considered as
earnings See Republic Steel Corporation v N L R B , 311 U S 7
02 See N L R B v Automotive Maintenance Machinery Co , 116 F (2d) 350, 353
(C C A 7)
','See N L R B v Express Publishing Company, 312 U. S 426 ; May Department
Stores v. N. L. R B , 326 U. S. 376
L. B. HARTZ STORES 875
5. By discriminating in regard to the hire and tenure of employment of Omer
Belland, thereby discouraging membership in a labor organization, the respond-
ents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
7. 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 foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondents L. B. Hartz, Bernard J.
Hartz, Mrs Bernard J Hartz, Louise K Hartz, and Harriet L Hartz, co-partners,
doing business under the firm name and style of L B. Hartz Stores, their agents,
successors, and assigns , and the respondent, United Industries, Inc., its officers,
agents, successors , and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Drivers
and Warehouse Employees Local Union #581, affiliated with the American
Federation of Labor, as the exclusive representative of all its employees within
the aforesaid appropriate unit, and from taking any unilateral action, without
prior consultation with the said Union, with respect to rates of pay, wages, hours,
and other conditions of employment, and with respect to the stock bonus par-
ticipation plan hereinabove referred to affecting the said employees;
(b) Discouraging membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, General Drivers and Ware-
house Employees Local Union #581, affiliated with the American Federation of
Labor, by discharging or refusing to reinstate any of the employees, or in any
other manner discriminating in regard to their hire and tenure of employment,
or any term or condition of employment ;
(c) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the rights to self organization, to form labor of gaui-
zations, to join or assist International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, General Drivers and Warehouse Employees
Local Union #581, affiliated with the American Federation of Labor, or any
other labor organization, to bargain collectively through representatives of their
own choosing. and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid and 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) Upon request, bargain collectively with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Drivers
and Wai ehouse Employees Local Union #581, affiliated with the American
Federation of Labor, as the exclusive representative of all the employees within
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the aforesaid appropriate unit in regard to any terms and conditions of employ-
ment affecting the said employees,
(b) Offer Omer Belland immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other
rights and privileges;
(c) Make whole the said Omer Belland for any loss of pay he may have
suffeied by reason of the respondent's discrimination against him, by payment to
him of a sum of money equal to that which he normally would have earned from
December 23, 1945, the date upon which he was discriminatorily discharged, to
the date of the offer of reinstatment, less his net earnings' during said period;
(d) Post at its warehouse at Thief River Falls, Minnesota, copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be furnished by
the Regional Director of the Eighteenth Region, shall, after being duly signed by
the respondents, be posted by the respondents immediately upon receipt thereof
and maintained by them for sixty (00) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondQnts to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Eighteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what steps
the respondents have taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondents to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D C., an original and four copies
of a statement in writing, setting forth such exceptions to the Intermediate
Report 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 four
copies of a brief in support thereof Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director As further provided in said Section 33, 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 the order trans-
ferring the case to the Board Any party desiring to submit a brief in support
of the Intermediate Report shall do so within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, by filing with the Board
an original and four copies thereof, and by immediately serving a copy thereof
upon each of the other parties and the Regional Director
IRVING ROCOSIN,
Trial Examiner.
Dated July 2, 1946.
11 See footnote 61, saps a.
L. B. HARTZ STORES
APPENDIX A
NOTICE TO ALL EMPLOYEES
877
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 employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, General Drivers and Warehouse Employees
Local Union No. 5S1, affiliated with the American Federation of Labor, 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
We will offer to Omer Belland immediate and full reinstatement to his
former position or substantially equivalent position, without prejudice to his
seniority and other rights and privileges
We will bargain collectively upon request with the above-named Union as
the exclusive representative of all the employees in the bargaining unit
described herein with respect to rates of pay, wages, hours, and other condi-
tions of employment and, if an understanding is reached, embody such under-
standing in a signed agreement The bargaining unit is:
All the respondents' warehousemen, truck drivers, and garage mechan-
ics, including garage service men, excluding office and supervisory
employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of the said employees, or effectively
recommend such action.
We will not take any unilateral action, without prior consultation with the
above-named Union, with respect to rates of pay, wages, hours, and other
conditions of employment, or with respect to the stock bonus plan, affecting
the employees in the aforesaid unit
All our employees are free to become or remain members of the above-
named Union or any other labor organization We will not discriminate in
regard to 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 such labor organization
L B. HARTZ STORES,
By ------------------------------
(Representative)
Dated
------------------------------
(Title)
UNITED INDUSTRIES, INC.,
By ------------------------------
(Representative) ,
------------------------------
(Title)
NOTE: Any of the above-named employees presently serving in the Armed Forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the Armed Forces
This notice must remain posted for 60 days from the date hereof, and must hot
be altered, defaced, or covered by any other material.
so