Leed's Shoe Store, Valley Fair, Inc.

National Labor Relations Board - Board Decisions

Nov 6, 1964

149 N.L.R.B. 500 (N.L.R.B. 1964)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 you that:
WE WILL NOT encourage or discourage membership in, or activities on
behalf of, Amalgamated Local 453, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any
other labor organization of our employees , by reducing the seniority of any
of our employees for reasons of race or color pursuant to the request of
said union , or in any other manner discriminating against our employees in
regard to their hire or tenure of employment , or any term or condition of
employment, except to the extent permitted by Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed by Section 7
of the Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a) (3) of the Act.
WE WILL restore Hugh McRoberts, Kenneth Morr, Art Cellini, Albert
Pompa, Edward Nowak, and William Faber to the position on our seniority
roster occupied by them- prior to December 7, 1962, or to such other position
to which each of them may be entitled , together with all the rights pertaining
to that position.
MAREMONT CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 176
West Adams Street , Chicago, Illinois, Telephone No. Central 6-9660 , if they have
any question concerning this notice or compliance with its provisions.
Leed's Shoe Store , Valley Fair, Inc.; Edison Brothers Stores,
Inc. and Retail Store Employees Union , Local 428, Retail
Clerks International Association , AFL-CIO. Case No. 2O-CA-
2847. November 6, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Respondents
filed exceptions to the Trial Examiner's Decision and supporting
briefs, and General Counsel filed an answering brief.
- Pursuant to the provisions of Section 3 (b) of the National Labor,
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
149 NLRB No. 52.
LEED ' S SHOE STORE , VALLEY FAIR, INC., ETC. 501
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the Board adopts, as its Order, the Order recommended
by the Trial Examiner and orders that Respondents, Leed's Shoe
Store, Valley Fair, Inc. ; Edison Brothers Stores, Inc., their officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner 's Recommended Order.'
1 The address of the Regional Office stated in the Appendix attached to the Trial
Examiner' s Decision is amended to read: "450 Golden Gate Avenue, San Francisco,
California , Telephone No 556-3197 "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on September 12, 1963, and upon an amended charge
duly filed on January 24, 1964, by Retail Store Employees Union, Local 428,
Retail Clerks International Association, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board, herein called the General
Counsell and the Board , through the Regional Director for Region 20 (San
Francisco , California ), issued an amended complaint 2 dated January 27, 1964,
against Leed 's Shoe Store, Valley Fair Inc., herein called Valley Fair, and against
Edison Brothers Stores, Inc., herein called Edison , alleging that Respondent 3 has
engaged in and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and ( 1) and Section 2 ( 6) and (7) of the National
Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called
the Act.
Copies of the charges , complaints ; and notices of hearing were duly served
upon Respondent and copies of the complaints and notices of hearing thereon
were duly served upon the Union.
More specifically, the amended complaint alleges that Respondent since on or
about August 27, 1963, ( 1) has failed and refused to bargain collectively with
the Union although the Union then was, and at all times since has been, the
duly designated and selected collective -bargaining representative of Respondent's
employees in a certain appropriate unit; and (2) by certain acts and conduct
of certain named individuals , who admittedly were then , and at all times material
have been , supervisors within the meaning of the Act,4 interfered with, restrained,
and coerced its emloyees in the exercise of the rights guaranteed in Section 7 of
the Act.
On February 4, 1964, Respondent duly filed an answer denying the commission
of the unfair labor practices alleged.
Pursuant to due notice , a hearing was held at. San Jose , California , between
February 4 and 24, 1964, before Trial Examiner Howard Myers. All parties were
represented by counsel and participated in the hearing. Full and complete oppor-
1 This term specifically includes counsel for the General Counsel appearing at the
hearing
2 The original complaint, dated November 26, 1963, named Edison Brothers Stores, Inc.,
as sole Respondent.
3 Conjointly Valley Fair and Edison are herein called Respondent.
4 Namely, Roy W. Oscarson , Herman Lifsehiz , Leonard Goerges , Ronald Lyons, and
James Bradford.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tunity was afforded all parties to be heard; to call, examine, and cross-examine
witnesses; to introduce evidence pertinent to the issues; to argue orally on the
record at the conclusion of the taking of the evidence; and to file briefs on
or before March 30, 1964.5 Briefs have been received from each of the parties,
which have been carefully considered.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Edison, a Delaware corporation, has its principal offices and place of business
at St. Louis, Missouri, and operates 497 retail stores within 43 States, the District
of Columbia, and in Puerto Rico. Edison is engaged in, and during all times
material has been engaged in, the sale of women's shoes, hosiery, handbags,
and related merchandise.
During the calendar year immediately preceding the issuance of the complaint
herein, Edison's purchase of goods and merchandise amounted to approximately
$84,000,000, of which amount approximately $17,000,000 was shipped from St.
Louis, Missouri, to its Whittier, California, warehouse. During the same period,
Edison's sales amounted to in excess of $147,000,000.
Valley Fair, a California corporation, owns and operates a store at San Jose,
California, and is a wholly owned subsidiary of Edison. Valley Fair, the employ-
ees of which are the only ones involved in this proceeding, is engaged in, and
during all times material was engaged in, the sale of women's shoes, hosiery,
handbills, and related merchandise.
During the calendar year immediately preceding the issuance of the complaint
herein, Valley Fair's sales exceeded $500,000 and its out-of-State's receipt of goods
and merchandise exceeded $50,000.
Edison and Valley Fair are, and during all times material have been, affiliated
businesses with common officers, common capital stock ownership, and have the
same directors and operators. In addition, the said directors and operators promul-
gate and administer a common labor policy affecting the employees of both com-
panies. Under the circumstances, I find that Edison and Valley Fair constitute
a single integrated business enterprise and as such it is, for the purpose of this
proceeding, a single employer within the meaning of the Act.
Upon the basis of the above facts, I find, in line with Board authority, that
Respondent is engaged in, and during all times material was engaged in, a
business affecting commerce within the meaning of Section 2(6) and (7) of
the Act, and that its business operations meet the standards fixed by the Board
for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
Edison is the sole owner and operator of 497 retail stores engaged in the
business of merchandising women's shoes, hosiery, handbags, etc. These stores
presently operate under trade or brand names of Burt's, Chandler's, and Leed's.
At one time, Respondent also operated under the trade name of Bakers.s
Edison operates three stores in San Jose, California, one under the trade name
of Leed's, located in a market center known as Valley Fair Center,, and two
stores located in the downtown business section of San Jose; one under the trade
name of Leed's and the other under the trade name of Burt's.7
Ultimate control of the formation, promulgation, and administration of Edison's
store operation policies, including industrial and labor relations, is-vested in the
sales division of Edison located at St. Louis, Missouri, which division is headed
by Sales Manager Roy W. Oscarson.
s At the request of Respondent's counsel, the time to file briefs was extended to April 2,
1964.
s See Edison Utah Stores, Inc, d/b/a Bakers Shoe Store, 86 NLRB 1305
7 The Valley Fair Center is about 3 or 4 miles from the"downtown business district of
San Jose.
LEED'S SHOE STORE, VALLEY FAIR, INC., ETC. - 503
Oscarson is in complete charge of the operation of the stores and the personnel
thereof. He is also in charge of all administrative matters pertaining to the
stores, their supervision, the stores' advertising, the stores' window dressings, and
sales designs. In short, Oscarson has complete charge of anything and everything
concerning the operation of the stores.
Oscarson also handles labor relations, not only for Edison but for all its subsid-
iary corporations. In addition to Edison's subscriptions to various legal reporting
services pertaining to labor matters, including CCH, Oscarson directly receives and
studies bulletins and reports from management consultant agencies . As sales man-
ager and top labor relations adviser, Oscarson keeps abreast of all labor relations
decisions affecting retail stores in general.
Edison's stores are arranged nationwide in three geographical divisions which
are respectively identified as the northern, the southern, and the western divisions.
Each division is headed by a divisional manager. Francis Wetta is the manager
for the western division in which division the San Jose stores are a part. Each
divisional manager is directly responsible to Oscarson.
In each division, the stores are arranged in regions. The number of stores
in a particular region varies. The so-called Oakland-East Bay region is comprised
of 15 stores. Three of these stores are located in San Jose. Each region is
headed by a regional director. Herman Lifschiz8 is the regional director for
the Oakland-East Bay region.
Lifschiz has complete supervision of the 15 stores in his region.9 In carrying
out company policy, Lifschiz reports directly to Wetta whose offices are in St.
Louis. As part of his duties as regional director, Lifschiz visits each store in
his region from time to time in order to ascertain whether (a) company policies
are being carried out; (b) store personnel is up to standard; and (c) the store
managers ' various required written reports are made out properly. In short, Lif-
schiz, like all Edison's regional directors, is the chief executive of his particular
region and, as such, he is the immediate supervisor of the store managers. Each
of the 15 stores under Lifschiz' supervision has a store manager and an assistant
manager.10 Normally, each of these 15 stores is operated in conformity with
Edison's policies which emanate from St. Louis. In reference to hiring of personnel,
the store manager makes out a preemployment interview questionnaire, which,
when completed and signed by the applicant, is then sent to Lifschiz. If Lifschiz
approves of the applicant, he so indicates on the questionnaire and then forwards
the application to St. Louis for final approval. While the questionnaire is en
route to St. Louis, via Lifschiz, the applicant, if the store manager is satisfied
that he warrants hiring, is put to work and his name placed on the payroll.
Any store manager in Lifschiz' region may (1) discharge any employee with
less than a year's service; (2) grant time off; and (3) change an employee's
hours of work and change his duties. In addition, the store manager makes
out weekly payrolls; makes out weekly inventory and weekly sales reports; has
complete charge of the store; handles daily cash receipts; has complete charge
of trimming store windows; grants employees time off; and, in cases of emergen-
cies, may order merchandise directly from Edison's St. Louis office.
In the absence of the store manager, the assistant store manager possesses
substantially the same authority as the manager except he may not hire or discharge
an employee.
B. Interference, restraint, and coercion
In the light of my observation of the conduct and deportment at the hearing
of Frank Herbert, James Taggart, Richard McCliman, Douglas D'Amico, David
Austin, Gerald Vaillancourt, and Eugene Valdez, and after a very careful scrutiny
of the entire record, all of which has been carefully read, and parts of which
have been reread and rechecked several times, and being mindful of the contentions
of the parties with respect to the credibility problems involved,. of the fact that
Also referred to in the record as Mr. Herman
0 Fourteen of these stores are located in the following California cities: San Jose, Hay-
ward, Oakland, Berkeley, Richmond, El Cerrito, San Leandro, Salinas. The 15th is located
in Reno, Nevada At the time of the hearing, there were three stores in San Jose, three
in Oakland, two in Reno, and one each in the above-named other cities. The San Jose
stores are geographically separated from the other stores in the region by distances rang-
ing from about 35 miles (to Hayward) to 220 miles (to Reno)
10 Respondent's answer to the amended complaint admits that the manager and the
assistant manager of Valley Fair are supervisors within the meaning of Section 2(11)
and (13) of the Act.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in many instances testimony was given about events which took place many months
prior to the opening of the hearing herein, and of the fact that very strong
feelings have been generated by the circumstances in this case , I am unwilling to,
and therefore do not, give any credence to those portions of Oscarson's, Lifschiz',
Leonard Goerges', and James Bradford's testimony regarding their versions of
their respective conversations with the employees at Valley Fair as more fully
quoted or referred to below. Everything considered, including the fact that Her-
bert, Taggart, McCliman, D'Amico, Austin, Vaillancourt, and Valdez each im-
pressed me as being one who is meticulous in not enlarging his testimony beyond
his actual memory of what occurred and what was said on the occasions in ques-
tion, whereas Oscarson, Lifschiz, Goerges, and Bradford each gave me the distinct
impression that he was studiously attempting to conform his testimony to what
he considered to be in the best interest of Respondent, I find that Herbert's,
Taggart's, McCliman's, D'Amico's, Austin's, Vaillancourt's, and Valdez' versions
of their respective talks with either Oscarson, Lifschiz, Goerges, or Bradford to
be substantially in accord with the facts 11 With respect to Oscarson's entire testi-
mony regarding the issues raised by the pleadings in this case, I give very little
credence to any of it for the reason that, as more fully discussed under the section
dealing with the refusal-to-bargain allegations of the complaint, Oscarson was less
than frank in his testimony concerning Respondent's appropriate unit policies.
Early in August 1963,12 a group of Valley Fair employees discussed among
themselves whether or not they should take up with management certain grievances
which they then had. They finally decided, because in the past management had
never given any serious consideration to their grievances, to seek- assistance of
a labor organization.
On the night of August 16, eight Valley Fair employees13 met at McCliman's
home. There, John Blaiotta, the Union's field representative for the San Jose
area, opened the meeting by 'explaining that his organization would not help
Respondent's employees unless an overwhelming majority of them signed cards
specifically authorizing the Union to represent them for the purposes of collective
bargaining. Whereupon Blaiotta read aloud one of the cards and explained its
meaning. Blaiotta then passed out authorization cards, stating that the Union
would not proceed to request recognition from Respondent unless at least 85
or 90 percent of the employees involved had authorized the Union to represent
them for collective bargaining.
Before the meeting, referred to immediately above, concluded, the eight em-
ployees present signed and delivered to Blaiotta cards specifically authorizing the
Union to represent them for the purpose of collective bargaining. Blaiotta then
gave some employees additional cards to be signed by their coworkers. Within
a day or two of the aforementioned meeting, McCliman and D'Amico received
signed authorization cards from eight of their coworkers.14 These eight cards
were delivered to Blaiotta by D'Amico.
By August 19, the Union had been selected and designated by 17 of the
20 persons then employed at the Valley Fair as their collective -bargaining
representative.'5
On August 26, Assistant Manager James Bradford returned to Valley Fair
from a 2-week vacation McCliman, D'Amico, and Vaillancourt had friendly talks
with Bradford that morning about 11 o 'clock when the store opened for business.
About 11:30 a.m. Bradford remarked to Wright that the other employees were
talking strangely, and asked what was wrong. Wright said that they were a
little upset because the customers had been giving them a bad time.
11 This is not to say that at times the aforenamed seven nonsupervisory employees were
not confused on certain matters or that there were not variations in their objectivity and
convincingness But it also should be noted that the candor with which each of them
admitted, during long and searching examinations, that they could not be certain as to
dates, times, or the exact words used, only serves to add credence to what a careful study
of their testimony shows that they honestly believed to be the facts
l2 Unless otherwise noted all dates hereinafter mentioned refer to 1963
12 Namely, Douglas D'Amico, Richard McCliman, Edward Fuller, Robert de Sonnaville,
Theodore Rodgers, Gerald Vaillancourt, Eugene Valdez, and Stanley Wright.
1* Namely, James Taggart, Dave Bell, Edward Matthews, Sylvia King, Jean Kazlauckas,
Muriel Falcone, Jeanne Duncan, and David Austin.
1•u On August 19, Blaiotta received through the mails an authorization card signed by
employee Joe Mannina.
LEED'S SHOE STORE, VALLEY FAIR, INC., ETC. 5C5
About 1 o'clock that afternoon, August 26, Bradford and Valdez went for
coffee. While at the lunchroom, Bradford remarked about the strange atmosphere
in the store. Valdez then told Bradford that 17 employees had signed authorization
cards for the Union and , in response to, questions from Bradford , Valdez told
Bradford the names of those who had signed cards.
When Bradford returned to the store, his attitude toward the employees changed
considerably.
During the course of the afternoon , Bradford had several whispered conversations
with Store Manager Leonard Goerges, which conversations were abruptly halted
whenever any employee approached them. It was during one of these conversations
that Bradford informed Goerges that 17 employees had signed authorization cards.
Shortly after Bradford had returned to the store, after having coffee with Valdez,
he went to where the store's porter and general utility man, Frank Herbert, was
dyeing shoes. According to Herbert's credited testimony, the following then
ensued:
he [Bradford] said, "Did you sign the card, Frank?" I said, "What
card?" He said, "You have been hearing about this union deal ." I say [sic],
"No, I haven't signed any card," and he said, "Well, I can, I have the power
to fire anybody that did." . . I said, "Bradford, that's not your business,
it isn't your business, but why don't you let Goerges take care of that, he is
the Manager." So he seemed a little upset, he walked out.
About 1:30 that day, August 26, Wright was in the back room with Bradford
when Taggart came off the sales floor and jokingly asked Bradford why the
store did not hire a few more salesmen.16 Bradford replied in -a serious tone
that there was going to be a lot more hiring in the near future.
At approximately 6 p in. on August 26, Bradford and Jeanne Duncan were
joking together on the sales floor when McCliman and D'Amico joined them.
Duncan remarked, still in jest, "Well, I better go pick up my payroll voucher." 17
Bradford continued the joke by saying, "Why don't you." Bradford then turned
to McCliman and D'Amico and, in a serious tone, said, "As a matter of fact,
why don't you two also pick up your payroll vouchers." McCliman walked away
without responding D'Amico, however, asked, "Why," Bradford responded, "We
don't need a reason to fire you."
At approximately 6 p m. on August 26, Goerges telephoned Lifschiz, who was
then in Oakland, and told Lifschiz about the union activity at the store. Lifschiz
said that he would be at Valley Fair the next morning.
At approximately 9:30 a in. on August 27, Lifschiz arrived at Valley Fair. For
the balance of that day and all of the next, Lifschiz did nothing but interview
the employees about their union activities
McCliman, D'Amico, Vaillancourt, Wright, Valdez, and Taggart testified as
to their conversations with Lifschiz. In each case, the employee was called into
Goerges' office by Lifschiz and interviewed; the door was closed during the inter-
view. Although Lifschiz testified that each interview took only 10 or 15 minutes,
Goerges testified they took from 25 to 45 minutes and some employees testified
that some of the interviews took as much as an hour. I find from the amount
of time spent on the interviews they lasted, on the average, between 30 and
60 minutes each
D'Amico credibly testified about his August 27 interviews with Lifschiz as
follows: '
A. Well, we went into the office and he asked me what the problem was,
about the union problem, what the problem was with Mr. Goerges, and, well,
I told him what I thought and-he wrote down a few things; then he asked
me what I thought I would get out of the union , what I thought I could get
out of the union, and I told him a voice, mainly, and he asked me why I
wanted to pay union dues. I told him I thought I paid enough dues to Edison
Brothers previously ....
Mr. INGRAM: 18 What?
A. To Edison Brothers, this was the reason why I said that, is because
sometimes we come in to work before the store opens and then we are just
paid for our commissions.
16 Taggart made the remark in jest because business was extremely slow.
17 This expression is synonymous with quitting.
18 Respondent 's counsel.
506 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. WEINTRAUB.) 19 All right, what else was said, if anything?
A. ,He told me about the store policies, the company policies, some of the
benefits that they had and so on, and he mentioned about a friend of his in
Oakland who had a store, this- was not in the Edison Brothers, who was
manager of the store, a shoe store, and that his salesmen wanted to join the
union and he said, "Fine, go right ahead," so they joined the union, and he
cut down their hours to a bare 40 hours a week, no overtime, and he cut
out the D.H. & P.M.20
A. Well, he said that after that it is going to be people working for this
gentleman were irritable with the manager because their check was lower and
that they couldn't get any extra money, and-
Q. Do you recall anything else in the conversation?
A. Well, we talked a little bit about Mr. Goerges. He said the problem
would be rectified and-
Q. Anything else?
A. He talked about some general things and he did make a statement.
Q. What was that?
A. That he said he wouldn't have the union run any of his stores.
Respecting his interview with Lifschiz, on either August 27 or 28, Vaillan-
court credibly testified as follows:
Well, Mr. Herman [Lifschiz] greeted me, told me that I probably knew
why he was there. He told me that he was quite surprised at the goings on,
that he hadn't really expected anything like this. He also told me that, he
asked me what I felt the union could do for me that Edison Brothers couldn't
do. He also stated that Edison Brothers had always been able to handle their
own relations with their men in the past, and that he also felt bad because
this hadn't been, he hadn't been consulted on this before. . He stated a
case in Seattle, that they had the union up in Seattle in the store there, but
that was for the main reason because Seattle was a union town, that's why they
went along with it. He also stated that in Vallejo they had a union, but that
the employees weren't satisfied with the union and they weren't satisfied with
the way the union operated, and the money they made, and it wasn't that
much better, and he stated that Edison Brothers wasn't going to allow the
union in Leed's Valley Fair, and if necessary they would close the store rather
than have the union in the store.
* * *IN * * IN
A. No, sir, Mr. Herman just asked me to think over what we were doing
very carefully and make sure that we knew what we were doing, and then
that was the end of the conversation....
* * * * * k IN
I am trying to think of the way that it was put. Oh, yes, I recall the
statement now. He asked me if the management problem was solved in the
store, in the Valley Fair Store, would I vote the union out, and my answer
to that was, yes, because the management problem was my particular
complaint.
Regarding his August 27 interview with Lifschiz, Wright credibly testified as
follows:
Mr. Herman [Lifschiz] asked me why I had gone to the union before I
had contacted him. He asked me my main gripes against the company, what
they were, and what not. He pointed out that the disadvantages of the union
and that I couldn't expect to gain anything from the union, and also that he
would close the store for 11 months before he would concede to the wants
of the union. He mentioned the Vallejo Store that was always union, primarily
because it was a tight union town, and that the employees would probably be
making more money without the union now.
19 Counsel for the General Counsel
29 "D H " means a special commission is given the salesman when a customer purchases
two or more pairs of shoes at one time. "P.M." means a special commission is given the
salesman when a customer purchases a discontinued item
LEED ' S SHOE STORE , VALLEY FAIR, INC., ETC. 507
Valdes credibly testified that on August 27 Lifschiz called him .into Goerges'
office,and that there the following took place:
he asked me why we had signed the union cards and I said the
personnel was rather upset, and he asked why we didn't go to him first
about the particular situation, and I said, "Well, we were just upset," and we
were, I guess, sort of afraid to go to him, and prior to that it didn't seem to
have worked before, and then he asked, and then he sat down and he
explained to me about the particular benefits the store gave, hospitalization
benefits and so forth, about the company, what it does for its employees,
and he couldn't understand as to why we would sign the cards, he couldn't
understand what more the union could give us than what the company was
giving us, and that's about the best of my recollection to that particular
conversation we had in the office.
he did say it would be a little difficult to get a promotion because we
would be working for the union, not the company, and if we were under the
union situation....
Regarding his approximately 1-hour closed-door interview with Lifschiz, McCliman
credibly testified that the following took place:
Mr. Herman [Lifschiz] told me that he had found out that there were
union activities in the store, that he was very surprised and shocked that the
men had not gone to him first, and he asked me what the union could offer
us, and I said that I don't know for sure, but that it could be our speaking
representative. He went on to explain various benefits of the company, specif-
ically insurance plan. He told me that be had been speaking to other em-
ployees and that all of the complaints seemed to point to the management, the
manager, as the problem, and he had received no complaints in regard to pay,
hours, working conditions, or on this line. Then he went to enumerate a few
of the complaints he had gotten against Mr. Goerges and I agreed with some
of them and said I didn't know about others.
* * * * * * *
He mentioned that he felt unions were a good thing, but not in the retail
business. He said he didn't feel unions belonged in the retail business. He
said that he had been working with a store in Vallejo, which is in his region,
for about 20 years, and it had been union. He said that the men at Vallejo
hated it. He told me about the Leed's Store in Portland, which had recently
decertified.21 And then he told me about an employer friend of his in
Oakland who had, who was in business for himself, and his men decided to go
union, and they had been working six days a week, and this man cut their
hours down to only five days a week, 40 hours, because he didn't want to pay
them time and a half, and then in their stead, he hired college students, paying
them much more wages, and he told me each store had X number of dollars
on which to operate and that if the union contract would call for pay to go
above the amount of money for each store to operate, that the company
would just have to close, would just have to close the store. He said why
should he pay time and a half for a six-day week when he could just as easily
get college help at lower wages.
Regarding his August 27 interview with Lifschiz, Taggart credibly testified
that Lifschiz, among other things, asked him what he and the other employees
thought the Union could do for the employees; that then Lifschiz said a store
in either Vallejo or Richmond which had been unionized but the employees thereof
were dissatisfied with the wage scale the Union obtained for them and that "after
a year [the employees] voted it out"; and that Lifschiz also asked him what
he thought the Union could obtain for the employees that they themselves could
not obtain directly from Respondent.
On the afternoon of August 27, Blaiotta called on Lifschiz at the Valley Fair.
After introductions had been had, Lifscluz invited Blaiotta into Goerges' private
office. There, Blaiotta handed Lifschiz a letter, dated August 26, which stated,
in effect, that the Union had been designated the collective-bargaining representa-
21 This statement, if It refers to the Portland, Oregon, store, is contrary to the facts.
The decertification petition in that case was dismissed because, as the Board found, it was
filed by management See Pdtson Brothers Stores, Inc, d/b/a Chandler's Shoe Store,
123 NLRB 872
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive by a majority of the stores' employees , excluding the employees in certain
classifications. The letter concluded with a request that a date be set by Respondent
to negotiate a collective -bargaining agreement.
After Lifschiz had finished reading the letter Blaiotta had given him, Lifschiz
remarked , "I heard that there was some union activity going on " among the
store's employees.22 Blaiotta then placed the 17 signed authorization cards on
the desk at which Lifschiz was sitting. Whereupon, Lifschiz picked up the cards
and asked for and received Blaiotta's permission to examine the cards and to
make a list of the names appearing thereon.23
Immediately after Blaiotta had left Valley Fair, Lifschiz telephoned St. Louis
and informed Frank Wetta, Edison's western divisional sales manager and Lifschiz'
immediate superior , about what transpired between him and Blaiotta . Wetta stated
that he would relay the information to Oscarson who was then in Los Angeles.
On August 27, Vaillancourt and Goerges lunched together. During the course
of the meal, Goerges said to Vaillancourt that he was very surprised and felt
badly about the employees' union activities; that the Union being brought into
the store was, no doubt, due to his faulty management; that he did not believe
the employees were making the right move by joining the Union and hence
were hurting themselves; and that Edison could handle any personnel problems
without the benefit of a union. Goerges then asked Vaillancourt if he would
talk to some of the employees and ask them "to vote the Union out." 24
McCliman credibly testified that on August 28, during the course of a conversa-
tion he had with Goerges, Goerges stated, to quote from McCliman's credible
testimony. "He was shocked that the men had gone to the Union for help
.. . that all problems could be solved within the company without going to an
outside source . . . the Union couldn't get us anything and . if this store
did go union, it would be isolated, it would be somewhat isolated in the company,
and that the men would-practically have to stand on their heads to get a promotion."
About 2 weeks after the August 28 Goerges-McCliman conversation, Goerges
told Taggart and Valdez, to quote from Taggart's credited testimony, "If we
ever tried to obtain employment in a retail store we couldn't do so if we had
gone into the union."
On either August 27 or 28, Oscarson, while in Los Angeles, received a telephone
call from someone in his St. Louis office,25 informing him that there was "some
union activity in the Valley Fair store and that . apparently some of the
men had signed cards." Thereupon, Oscarson telephone Lifschiz who told him
of Blaiotta's August 27 visit and the presentation by Blaiotta of the signed authori-
zation cards.
On August 29 the Union filed a petition with the Board seeking to be certified
as the statutory collective-bargaining representative of all Valley Fair's selling
and nonselling employees , excluding guards, watchmen , and supervisors , as defined
in the Act.26 A copy of said petition was received by Respondent the following
day.
On the morning of August 30, Oscarson arrived at the San Francisco airport
from Los Angeles and was met by Lifschiz who drove Oscarson to Valley Fair.
En route to Valley Fair, Lifschiz told Oscarson that on August .27 Blaiotta
handed him a letter wherein the Union demanded recognition, and that Blaiotta
had shown him 17 signed union authorization cards Lifschiz, either on this
trip or later that morning, handed Oscarson a copy of the Union's aforementioned
representation petition.
Oscarson and Lifschiz arrived at Valley Fair about 10 a.m Oscarson remained
at the store the balance of the morning,27 had short conversations with most
of the sales force about labor situations in certain other Edison stores, and about
22 Lifschiz had already questioned Taggart and others about the employees' organiza-
tional activities.
231t is significant to note at this junction that Lifschiz did not then, or at any other
time, question the authenticity of the signatures appearing on the cards, the Union's major-
Ity status, nor the appropriateness of the unit sought.,
24 This incident' occurred after Lifschiz had questioned Vaillancourt about the Union.
zs Oscarson testified that he could not remember who called him but that he thought it
was Edison's president, Irving Edison .
26 Case No 20-RC-5611.
21 Oscarson returned to Valley Fair about mid-afternoon and continued his conversa-
tions with the sales force
LEED 'S SHOE STORE , VALLEY FAIR, INC., ETC. 509
Edison's labor policies in general. For example, Oscarson asked McCliman, "What
is this union business about?" When McCliman made a "noncommittal" reply,
Oscarson stated, while Edison thought very highly of Goerges' honesty and integri-
ty, Edison, nevertheless, was aware that Goerges at times did things which irritated
those under his supervision; that, if given time, Respondent could handle whatever
store problems the employees were then having without going to an outside
source, and that, if McCliman knew Respondent's record, he would like it. Oscarson
also said, to quote from McCliman's credible testimony, "he had just returned
from a vote" at Edison's, the Whittier, California, warehouse, and "the company
had won the vote 33 to 12,28 and he felt that the same thing would happen
at" Valley Fair.
In a discussion with Valdez that day, August 30, about a pay adjustment for
certain Valley Fair employees, Oscarson, in effect, said he would investigate the
existing rates of pay in the San Jose area and see how they compared with
Respondent's. Oscarson remarked to Valdez, "It would be rather hard . . . to
get promoted when you are working under [ a] union." With respect to Oscarson's
remarks about a collective-bargaining contract," Valdez credibly testified that Oscar-
son said, "It would be difficult to get a contract . . . because [Respondent and
the Union] both have to come to an agreement, that it is no easy matter."
Oscarson also told D'Amico on the morning of August 30, during the course
of conversation "about unions and different things," that Edison had taken pickets
for 2 years at its Philadelphia, Pennsylvania, store, "and it hadn't hurt the company
at all " When D'Amico remarked that Blaiotta had made it clear to the employees
that the Union would picket Valley Fair only as a "last resort," Oscarson replied
that he knew that D'Amico was an intelligent young man and therefore Oscarson
was sure "if it came down to a vote" that D 'Amico "would vote right."
C. Concluding findings
The right of employees under Section 7 of the Act "to form, join or assist
labor organizations, to bargain collectively through representatives of their own
choosing . [and] to refrain from any or all of such activities" is effectively
implemented by Section 8(a)(1). This latter provision forbids an employer from
interfering with, restraining, or coercing employees "in the exercise of the rights
guaranteed in Section 7." The employer's economic hold over his employees,
which inheres in their relationship, is 'thereby neutralized by the provisions of
said sections in matters of organization and representation , which are peculiarly
the concern of the employees . Interdiction against employer intrusion in such
matters is essential if employees are to be free from the coercive influence of
their employer, for employees are, as' the courts have repeatedly and uniformly
found , not insensitive to the advantages in their employment that they consider
are likely to flow from their employer, nor to the disadvantages which may attend
their choice of representatives opposed by their employer. And for the same reason,
employees cannot be expected to derive the full benefits from their protected right
of self-organization and the selection of a representative of their own choosing
if they believe, from circumstances which their employer creates or for which
he is fairly responsible , that their representative , however chosen , is subject to
their employer's approval or disapproval.
In open disregard of its duty of neutrality, Respondent, shortly after being,
informed of its employees ' organizational activities and that a majority of them
had selected and designated the Union to be their collective bargaining representa-
tive , embarked upon a campaign to wean the employees away from their chosen
representative.
The credited evidence , as epitomized above , clearly establishes that on the after-
noon of August 26, Bradford was not only informed by Valdez that 17 of the
then 21 persons employed at Valley Fair had signed union authorization cards,
but Valdez also told Bradford the names of the signers thereof ; and that same
afternoon Bradford gave Goerges this information, who, in turn, relayed it to
Lifschiz about 6 p.m. that day. It thus follows that Lifschiz' closed-door interroga-
tion of the signers of the authorization cards, commencing early on the morning
of August 27, was violative of the Act. For, as the Board, with judicial approval,
The Teamsters Union was the labor organization there involved.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has consistently held that when an employer has a legitimate cause to inquire,
he may exercise the privilege of interrogating employees on matters involving
their Section 7 rights without incurring Section 8(a) liability. However, the Board
and courts have confined permissible interrogation to two types, to wit: (1) the
verification of a union's claimed majority status to determine whether recognition
should be extended; (2) to the investigation of facts concerning issues raised
in a complaint case where such interrogation is necessary in preparing the employ-
er's defense for trial.29
An employer's interrogation of his employees' union activities and membership
in permissible circumstances must be surrounded by certain safeguards which have
been established by the Board and the courts in order to minimize the coercive
impact such interrogations may have upon the employees questioned. Thus, the
employee must be given the employer's assurance that no reprisal will take place; 30
the questioning must be conducted only with the employees' voluntary consent;
the questioning must take place free from employer hostility to unions; the question-
ing must not be coercive in nature; and the questioning must be confined to
eliciting permissible, legitimate information.31 When an employer, as here, trans-
gresses the boundaries of these safeguards, he loses the benefits of the privilege.112
It is evident from the statements made by Lifschiz to the employees during
his interrogation of them, as summarized above, Respondent interfered with their
statutory rights. Accordingly, I find by interrogating its employees concerning
their union adherence and activities, Respondent engaged in interference, restraint,
and coercion in violation of Section 8 (a) (1) of the Act.
I further find (a) by Oscarson's August 30 statements to McCliman, Valdez,
and D'Amico which contained elements of coercion prohibited by the statute; (b)
by Goerges' August 27 request of Vaillaincourt to ask the employees "to vote
the Union out"; (c) by Goerges' August 28 statement to McCliman to the effect
that if the Valley Fair went Union, the store would be isolated from the rest
of the Edison chain and the Valley Fair employees "would practically have to
stand on their heads to get a promotion"; and (d) by Goerges' veiled threat
to the effect that those employees who joined the Union would be blacklisted
and hence would be unable to obtain employment at any retail store, Respondent
violated Section 8 (a) (1) of the Act.
D. The refusal to bargain
1. The appropriate unit
The amended complaint alleged, and the answer denied, that all selling and
nonselling employees at Valley Fair, excluding guards, watchmen, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act, with respect to grievances,
rates of pay, wages, hours of employment, and other conditions of employment.
At the hearing, and in its brief, Respondent contended that all the selling
and nonselling employees in the 15 stores comprising the Oakland-East-Bay region-
al area, or, in the alternative, the selling or nonselling employees. in Respondent's
three San Jose stores, exclusive of guards, watchmen, and supervisors as defined
in the Act, constitute an appropriate unit. These contentions will be discussed
seriatim.
Oscarson testified that he had knowledge of the filing of the Union's representa-
tion petition prior to leaving Los Angeles for San Francisco on the morning
of August 30, and that he also knew prior to his arrival at San Francisco airport
20 See Joy Silk Mills, Inc, 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D.C.) ; N.L.RB. v
'Katz Drug Co., 207 F. 2d 168 (C.A. 8) ; N. c6 W. Overall Company, Inc., 51 NLRB 1016;
-May Department Stores Company, a Corporation, d/b/a Famous-Barr Company, 70 NLRB
,94; The Babcock and Wilcox Company, 114 NLRB 1465
30 It is true that Lifschiz did inform the employees that they may join or remain mem-
hers of the Union without fear of reprisal, but those statements considered in the context
in which they were made were not the required assurances called for by the Board and
the courts. -
81 See Gerber Mfg, 111 NLRB 167; Lindsay Newspapers, Inc., 130 NLRB 680, -enfd as
modified 315 F. 2d 709 (C.A. 5) ; Frank Sullivan and Company, 133 NLRB 726; Guild
Industries Manufacturing Corp., 133 NLRB 1719, enfd. 321 F. 2d 108 (C.A. 5).
82 See N.L.R.B. v. Norman H. Stone, at at., 125 F. 2d 752 (C.A. 7).
LEED'S SHOE STORE, VALLEY FAIR, INC., ETC. . 511
about 8 a.m. that day that the petition disclosed that the Union was seeking
to be certified as the collective-bargaining representative for only the Valley Fair
employees.33
Oscarson testified further that he was positive that there was no collective -bargain-
ing contract between any labor organization and Respondent and/or Edison cover-
ing the employees of an individual Edison store where there were more than
one store in the particular city in question or within its immediate vicinity. In
this regard, Oscarson testified at great length about (1) the single store located
in Vallejo, California, where Edison has had a collective-bargaining contract with
a sister local of the labor organization here involved for a great many years;
(2) a collective-bargaining contract which had been in existence for some undis-
closed length of time covering a single Edison store in Tucson, Arizona;34 (3)
the bargaining contracts which have been in existence for a great many years
with a sister local of the Union covering two Edison stores in Tacoma, Washington;
(4) the collective-bargaining contracts which have been in existence with another
sister local of the Union covering the employees in Edison's three or four stores
located in and around Seattle, Washington; - and (5) that his knowledge about
all the collective-bargaining contracts Edison has had for the past 10 or 20 years,
and now has, with labor organizations is based mainly, but not exclusively, on
the fact that he either had personally signed, or had personally authorized the
signing of, said contracts.
Oscarson , who, at the hearing herein , was qualified as an expert in the field
of labor relations law, also testified that in the forepart of the afternoon of Au-
gust 30 , he, accompanied by Lifschiz, conferred with Respondent's counsel and that
he, as Edison's chief labor relations advisor, informed them, among other things,
that since it was against Edison 's policy to enter into collective-bargaining agree-
ments covering the employees of an individual store only where Edison had more
than one store in the same city or within the immediate vicinity, he could not
"buy" the Union's request to be recognized as the bargaining representative exclu-
sively for the Valley Fair employees and that said counsel should resist the Union's
endeavors along that line.
Oscarson , however, during his long and detailed explanations about Edison's
labor policy, about his explicit instructions to Respondent's counsel, and about
the labor practices of the San Jose retail stores, failed to make any reference
to the contracts covering the persons employed at Edison's Chandler and Leeds,
Portland, Oregon, stores.
The facts regarding the collective-bargaining contracts referred to immediately
above are: under date of April 23, 1959, the Board, in Cases Nos. 36-CD-121
and 36-CD-123, issued a Decision and Order, 123 NLRB 872, finding, among other
things, (1) the petition in Case No. 36-CD-121 seeks to decertify a sister local of
the Union at Chandler, and the petition in Case No. 36-CD-123 seeks to decertify
the same local at Leed's; (2) on September 16, 1958, Leed's Assistant Manager
Johnson, whom the Board, over Edison's objection, found in Case No. 36-CD-123
to be a supervisor within the meaning of the Act, filed a petition seeking to
decertify the union as the representative of the employees at the two Edison's
Portland, Oregon, stores; (3) Johnson, after an investigation of the facts presented
by the petition by a Board agent, was informed that, since the union and Edison
had negotiated separate collective-bargaining contracts for the Chandler and Leed's
stores, separate decertification petitions were required, and that Johnson thereupon
33 This , testimony is not credited for as far as this record discloses , Oscarson , while in
Los Angeles, spoke to Lifschiz via long-distance telephone about the Valley Fair employees'
unionization campaign no later than August 28; that Oscarson did not speak with Lifschiz
or with anyone employed at Valley Fair after his aforementioned conversation with
Lifschiz, and prior to Oscarson's arrival at, Valley Fair about 10 a in. on August. 30,
that Oscarson did not speak with anyone connected with Edison's St. Louis offices about
the 'Valley Fair employees' organizational 'activities after his aforementioned telephone
conversation with Lifschiz and prior to August 30; that the representation petition was
only filed with the Board's Region 20 Office (San Francisco) at 8.54 a in. on Aiigdst 29',
that a copy of said petition was not received by Respondent until August 30; and that a
copy of the petition was not received by Oscarson until the morning of August 30 when
Lifschiz handed it to him.
14 Oscarson added: "There was an election there and we lost it . Some years later the
sales people decertified." -
^^1
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrew his petition; (4) Johnson, the same day he had withdrawn his decertifica-
tion petition, informed employee Lloyd Larson about his experience regarding
the filing and the withdrawal of his decertification petition, and then typed a
petition to decertify the union at Chandler, handed the petition to Larson, who
filed it with the Board on October 22, 1958; (5) on October 21, 1958, Johnson
filed another decertification petition concerning the Leed's store; (6) Johnson was
requested by a Board agent to withdraw his second petition because of his classifica-
tion, which Johnson did; (7) Maurice Hill, the then assistant manager of Leed's;
at Johnson's behest, filed a petition with the Board to decertify the union at
Leed's; and (8) based upon Johnson's activities in these matters, the Board granted
the union's motion and dismissed both decertification petitions. -
ISince it appears from the facts as found by the Board in the cases referred
to' immediately above that Edison was represented at the hearing held therein
before Hearing Officer E. G. Strumpf, it is safe to infer, which I do, that the
contents of the Board's Decision and Order in those cases came to Oscarson's
attention in his official capacity as Edison's chief labor relations advisor, in the
regular course of business and prior to Oscarson testifying in the instant proceed-
ing. Under the circumstances, I am convinced, and find, that Oscarson deliberately
withheld the facts regarding the Portland contracts for the purpose of bolstering
Respondent's pretextuous claim of good-faith doubt of the unit appropriateness.35
In furtherance of its good-faith doubt contention of the appropriateness of the
unit sought by the Union on August 27, Respondent points to the fact that
for many, many years it has had, and now has, bargaining agreements with
a sister local of the Union covering the employees at 'all Edison 's'Seattle stores,
including the employees of the store located in the immediate vicinity of Seattle.
Granted that Edison and the Union's Seattle sister local did, in fact, enter into
such contracts, it must be borne in mind, however, that the Board at no time
has ever made any determination of the appropriateness of the unit concerning
Edison's Seattle employees; 36 that management-labor contracts normally arise out
of "give and take" at the bargaining table; that for aught this record discloses
a multistore, or an accretion, clause may represent a concession made by the
labor, organization involved in exchange for Edison's agreement on other matters
involving vital terms of the contracts.37 Thus, under the circumstances, it becomes
evident that whatever agreements the union and Edison reached in Seattle and
elsewhere have very little, if any, probative value in evaluating the unit issue
involved herein. This finding is buttressed by the fact that a two-store Tacoma
contract between Edison and the Tacoma Retail Clerks Union was entered into
only because the local there insisted upon it.
Regarding Respondent's reliance on the California Superior Court's decision
in the Bloom case,38 no lengthy discussion need be had here for I find that
the court's findings in that case have no bearing on the issues here involved. In
Bloom, the Retail Clerks Union had a contract with Bloom covering' Bloom's
downtown San Jose store which provided that the contract would be applicable
to any, new stores opened by Bloom in the San Jose area. When Bloom opened
a store in Valley Fair, it attempted to circumvent the contract by setting up
a separate corporation for that store. The court ruled in favor of the union
and ordered Bloom to bargain with it under the terms of the existing contract
as the representative of the Valley Fair employees. Oscarson's self-serving and
unconvincing testimony that he relied, to a certain extent, upon the decision in
Bloom when he advised Edison and its counsel that a unit consisting only of
the employees of Valley Fair would not constitute an appropriate collective-bargain-
ing unit is not credited. This finding is supported by Oscarson's admission that
the only information about the facts in Bloom was obtained from a short San
Jose newspaper account of what the court decided in that case.
Respondent also argued , in support of its good-faith doubt of unit appropriateness,
that the owners of the multistorey in the San Jose area do not enter into collective-
bargaining agreements on a single -store basis , but only on a multistore basis. The
851 in no way rely upon the facts set forth in the above -mentioned decertification cases
in making any findings of facts, conclusions of law, or recommendations in the instant
proceedings . These cases were merely used to help evaluate Oscarson ' s credibility
se In fact, in no instance has the Board ever been called upon to determine the appro-
priateness of a unit concerning any Edison store employees.
37 See The May Department Stores Company, et at, 59 NLRB 976, enfd. 154 F. 2d 533
(C.A. 8) ; The Procter 5 Gamble Manufacturing Company, 106 NLRB 2
38McLaughlin v. L. Bloom Sons Company, Calif. App. Ct., 1st District, August 1962,
45 CM Labor Cases 50, 624.
LEED 'S SHOE STORE , VALLEY FAIR, INC., ETC. 513
only evidence , documentary or otherwise , offered in support of this contention,
was Oscarson 's self-serving , and unconvincing testimony. Under the circumstances,
I find this contention to be without merit or substance.
Oscarson also testified that when he came to the conclusion, and so advised
Edison and its counsel, that the unit sought by the Union on August 27 was in-
appropriate, he mainly based that opinion and advice upon the Thom McAn case.
Respondent also contended that it, in good faith, withheld recognition of the
Union because of its reliance on Thom McAn (Case No. 2-RC-12752; not reported
in the bound volumes of Board's decisions. because the case never reached the
Board for decision).39
The facts in Thom McAn are distinguishable from those in the instant case. In
Thom McAn, the decision of the Regional Director was based primarily on the
unusual large number of sales help transfers to and from the store which the
union sought to represent. Here, the sales help transfer record is quite different.
Since it would needlessly protract this, Decision to set forth in detail each and
every transfer of personnel to and from Valley Fair since its opening on April 4,
1957, and because whatever transfers were made were mostly of a day or
two duration, on a voluntary basis, or because some of the transferees were related
to a newly appointed store manager, because of the need for additional help
on the store's opening day, or for the,purpose of taking inventory, I am convinced,
and find, that Respondent's contentions that its transfer record warrants 'a finding
that the sales and nonsales personnel of the 15 Oakland-East Bay district stores
or, in the alternative , the sales and nonsales personnel of the three San Jose
stores, constitute an appropriate unit is without merit. In fact, no person is trans-
ferred from one Edison store to another Edison store if he objects to the transfer.
' Upon the basis of the entire record in the case, I find that Respondent's contention
that it withheld recognition from the Union because it doubted, in good faith, the
appropriateness of the unit sought by the Union, to be without merit and substance.
I further find that Respondent withheld union recognition in order to thwart its
employees' protected activities and to destroy the Union 's majority status.
Assuming, arguendo, that Respondent did, in fact, have a good-faith doubt
as to the appropriateness of the unit and because of that fact withheld recognition
from the Union, that fact, standing alone, cannot excuse Respondent from not
obeying the mandate of the Act; -to wit, to bargain collectively with the duly
designated and selected representative of its employees. Here, like in Tom Thumb
Stores, Inc.,40 the employer refused to bargain with the union on the ground
that the unit requested was inappropriate. The Board, finding that the union
was the majority representative of the employees involved and that the unit was
appropriate, held that the employer's obligation to bargain had thus become fixed.
In this regard the Board at pages 834-835, said:
We have imposed considerable risk upon a union which seeks to enforce
its rights under Section 8(a)(5). It must establish that it has been designated
by an uncoerced majority of the employees, that the unit is appropriate, and
that there has been both a demand and a refusal. If there is failure of proof
in any one of these conditions its resort to the Board will have been in vain.
It seems both equitable and in conformity with the statute to impose the
same risk upon the employer who denies his obligation ... In electing to rely
solely on a contention we find to be without merit , it acted at its peril and in
violation of the Act 41
In addition to the above, we have here several important items which, when
considered as a whole, clearly support a finding that the selling and nonselling
employees at Valley Fair constitute an appropriate unit. These items are: (1)
the geographic separation of the stores involved; (2) the individual store operations;
(3) the authority of the store manager ; (4) the employer bargaining history;
and (5) extent of organizational activities.
As to (1), Edison has 15 locations in the Oakland-East Bay region, all under
the general supervision of Lifschiz. Ten of the stores are operated under the
name of Leed's, four under the name of Burt's and one under the name of Chan-
dler. The 15 different stores are located in San Jose, Oakland, Berkeley, Richmond,
El Cerrito, Vallejo, Hayward, San Leandro, and Salinas, California, and Reno,
' The Thom McAn case was a determination by the Regional Director for Region 2
(New York, New York), in which a single-store unit , under the circumstances of that case,
was found inappropriate
40123 NLRB 833
41 See also United Butchers Abattoir, Inc., 123 NLRB 946.
770-076-65-vol. 149-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevada. The San Jose stores are geographically separated from the other stores
in the region by distances ranging from approximately 35 miles (to Hayward)
to 220 miles (to Reno, Nevada).
There are three stores in San Jose, a Leed's downtown, a Burt's downtown,
and the Leed's Valley Fair. The two downtown stores are located on San Jose's
main business thoroughfare and are approximately a block and a half apart. Leed's
Valley Fair is located in the Valley Fair Shopping Center which is 3 or 4 miles
from downtown San Jose, and is in an otherwise residential area.
As to (2), each of the three San Jose stores is a separate corporation and
each has its own bank account. The two Leed's stores advertise jointly, but the
Burt's store advertises separately and the public is not alerted to the fact, through
any means of advertising, that Leed's and Burt's are wholly owned subsidiaries
of Edison. The two downtown stores (Leed's and Burt's) maintain a completely
different set of operating hours than the hours maintained at Valley Fair. In
addition, the two San Jose Leed's stores handle a higher priced dress shoe than
does Burt's.
As to (3), each of the San Jose stores, and presumably each of the stores
in the Oakland-East Bay region, has a store manager and an assistant store
manager. Each manager has authority to hire, to discharge employees who
have been with Edison less than a year, to grant time off, and to assign both
work and specific working hours to each store employee. In addition, the store
manager makes out the weekly payroll, inventory, and sales reports , and has
complete charge in his store with respect to window displays and the handling
of cash. The store manager may also order merchandise directly from St. Louis
if his store is in urgent need of a particular merchandise. In the absence of
the store manager, the assistant store manager possesses substantially the same
authority except that he is not authorized to hire or discharge employees.
As to (4), there is no bargaining history for any of the employees in the
three San Jose stores, nor, for that matter, for any employees in the 15-store
Oakland-East Bay region, other than in Vallejo. There, the Leed's store has
been represented for at least 16 years by Local 373 of the Retail Clerks Union.
As to (5), no labor organization has requested recognition for Respondent in any
unit larger than Valley Fair, the unit the Union has been seeking since August 27.
As a matter of fact, the record is devoid of any evidence that any labor organiza-
tion has ever attempted to organize any of Respondent's San Jose stores 42
Upon the entire record in the case, as summarized above, I find that all
the selling and nonselling employees at Valley Fair, excluding guards, watchmen,
and supervisors as defined in the Act, at all times material constituted, and
now constitute, a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act, with respect to grievances,
labor disputes, wages, rates of pay, hours of employment, and other conditions
of employment. I further find that said unit insures to said employees the full
benefit of the right to self-organization, to collective bargaining, and otherwise
effectuates the policies of the Act.43
2. The Union's majority status in the appropriate unit
At the hearing, there was introduced in evidence by the General Counsel
a list prepared by Respondent containing the names of all Respondent's employees
in the unit hereinabove found appropriate. The list shows that on August 29,
Respondent had in its employ 21 persons in said unit.44 On behalf of the General
43 Naturally, the extent to which the employees have organized cannot be the controlling
factor in determining the appropriateness of a unit since Section 9(c) (5) prohibits such
a finding. The Board,- with court approval, has repeatedly given a limited- consideration
to the extent of employees' organizational activities in making a unit determination. See,
for example, Metropolitan Life Insurance Co. v. N.L R.B., 328 F. 2d 820 (C.A. 3), enfg.
141 NLRB 337, and the cases cited therein., -1 i
-43 See Sav-On Drugs, Inc., 138 NLRB 1032 ; cf. Sea-Way -Distributing, Inc., 143 NLRB
460; Winn-Dixie Stores,,Inc, and Winn-Dixie -Louisville, Inc., 143 NLRB 848 Piggly
Niggly California Company, 144 NLRB 708; Delight Bakery, Inc., 145 NLRB 893; Dixie
Belle Mills, Inc., a Wholly-Owned Subsidiary of Bell Industries, Inc, 139 NLRB 629,
Metropolitan Life Insurance Company v. N.L.R.B., 330 F. 2d 62 (C A. 6) ; Metropolitan
Life Insurance Co. v. N L.R.B., 328 F. 2d 820 (CA. 3).
44A list prepared by Respondent was also received in evidence as a General Counsel
exhibit which discloses that on August 22 Respondent had in its employ 21 persons in
said unit. 1 11
LEED'S SHOE STORE , VALLEY FAIR, INC., ETC. 515
Counsel, there were offered and received in evidence 17 cards 45 expressly authoriz-
ing the Union to represent the signers thereof for the purpose of collective
bargaining . The genuineness of the signatures appearing on the cards was
not challenged.
At the hearing and in its brief, Respondent attempted to show, in one manner
or another, that no weight should be given the cards of Sylvia King, Muriel
Falcone, James Taggart, and Jean Kazlauckas. With respect to the above-men-
tioned contention the record discloses:
King did not believe that the meaning of the authorization card was explained
to her at the time she received it from either McCliman or D'Amico. However,
she did sign the card which states clearly on its face that it is "Authority
for Collective Bargaining," and no misrepresentation with respect to the purpose
of the card was made to her. Thus, the card is not now subject to attack. Peter-
son Brothers, Inc., 144 NLRB 679.
Falcone signed the authorization card she received from McCliman . Although
her card is dated August 16, she handed the card after the August 16 meeting
between Blaiotta and the employees had taken place, and her card was in Blaiotta's
possession and shown to Lifschiz on August 27 when Blaiotta demanded recogni-
tion from Respondent.
Kazlauckas signed an authorization card after having been asked several times
by McCliman to do so. She admitted that McCliman told her on each occasion,
"There would be better working conditions, things like that." Although she
had some reservations about signing at the time she did, and although she
later told Store Manager Goerges that she didn't want to go along with the
Union, this must have been some time after Blaiotta made his recognition demand
inasmuch as no questions were raised by Respondent with respect to her card
when the demand was made. In any event, it is clear that whatever her feelings
may have been, she at no time conveyed them to any representative of the
Union.
Taggart testified that soon after signing an authorization card he asked McCli-
man for its return, but that McCliman told him that he, McCliman, could not
obtain it for him . Taggart , at that time , did not contact any union representative
with respect to revoking his authorization card. Subsequently, at a meeting
held at D'Amico's home on the night of August 24, 3 days prior to the Union's
demand and approximately a week after he had asked McCliman for his card,
Taggart intentionally left a feeling with the employees present that he "wanted
to go union." Thus, when the Union asked for recognition on August 27,
Taggart's card was properly included among those setting forth the Union's
majority status at Valley Fair.
In its brief Respondent refers to the fact that "of those who signed authorization
cards, only five are presently employed by" Respondent. These five are McCliman,
D'Amico, Wright, Duncan, and Kazlauckas. Respondent designates each as
being a part time employee." The brief then argues "there appears to be a
serious question whether a person who may or may not be called to work on
a part-time basis should have a voice in selecting a collective bargaining represen-
tative to negotiate the hours, wages and working conditions of the regular
full-time employees." -
The aforementioned contentions regarding which employees should be included
in any unit found appropriate was belatedly brought in issue toward the close
of the hearing and after Oscarson had testified that the withholding of union
recognition was based solely on the unit question. In fact, prior to the taking
of any evidence in this case, Respondent's counsel stated on the record that
2 days after the Union had demanded recognition, the Union filed a representation
petition. Counsel then added: "The company immediately requested an election,
giving, its views to the Board that the unit requested was inappropriate and
it was the company's opinion that that unit should be all of the three San
Jose stores, or in the alternative of what we will call the East Bay District
comprising 15 stores." Furthermore, Respondent's counsel testified that
during a telephone conversation with the Union's counsel , held about mid-Septem-
ber 1963, he stated that he would agree to- an election if the unit - was not
confined to only the Valley Fair employees.. _17 -
u Eight cards are dated August 16, eight are dated -August 17, and one is dated
August 19: - , , • ;
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the inadequacy and inconsistencies of Respondent's explanations
for withholding recognition from the Union, coupled with Respondent's uncon-
cealed union hostility, I find that Respondent's belated attempt to question which
class of employees should be included in the appropriate unit is but another effort
on its part to thwart its employees' union activities. Accordingly, I find the
contentions referred to immediately above to be without merit.
I have compared the names appearing on the aforesaid authorization cards
with the lists submitted by Respondent and received in evidence and find, as
of August 27, 17 employees in the appropriate unit had signed cards designating
the Union as their collective-bargaining representative. I therefore find that
on August 27 the Union was, and at all times since has been, the duly designated
representative of Respondent's employees in the unit hereinbefore found appropriate.
Accordingly, pursuant to Section 9(a) of the Act, the Union was and now
is the exclusive representative of all the employees in said unit for the purposes
of collective bargaining with respect to grievances, labor disputes, rates of
pay, wages, hours of employment, and other conditions of employment.
3. Refusal to bargain
Uncontroverted credible evidence establishes that as of August 27, 1963, when
Blaiotta handed Lifschiz the Union's letter demanding recognition as the collec-
tive-bargaining representative of Valley Fair selling and nonselling employees
and sought to fix a time to meet with Respondent to negotiate a collective-bargain-
ing agreement on behalf of those employees, the Union, in fact, had been
designated by a majority of said employees as their bargaining representa-
tive The fact that Respondent knew of the Union's majority status is not open
to doubt for Blaiotta, on the occasion referred to above, handed Lifschiz 17
signed authorization cards, and Lifschiz made a list of the names appearing
thereon without questioning the genuineness of the signature appearing on
said cards. Under the circumstances, Respondent was under a statutory duty
to recognize the Union as the exclusive representative of the employees in the
appropriate unit and to deal with it as such representative., However, the credible
evidence, as epitomized above, discloses that instead of fulfilling its obligation
under the Act, Respondent engaged in serious unfair labor practices designed
to destroy the Union's majority status and thus interfered with the employees'
self-organizational and collective-bargaining activities.
Upon the record as a whole, which clearly establishes that at no time did
Respondent attempt to fulfill its statutory obligation to bargain collectively with
the chosen representative of the majority of the employees in the appropriate
unit, I find that on August 27, 1963, Respondent failed and refused, and at
all times thereafter has failed and refused, to bargain collectively with the Union
as the duly designated representative of the employees in the unit hereinabove
found appropriate, in violation of Section 8(a)(5) of the Act, thereby interfering
with, restraining, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and, such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in viola-
tive of Section 8(a)(1) and (5) of the Act, it will be recommended that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent on August 27, 1963, and at all times thereafter,
has refused to bargain collectively with the Union as the duly designated represent-
ative of the employees in an appropriate unit , I will recommend that Respondent,
upon request, bargain collectively with the Union as the exclusive representative
of said employees, and, if an agreement is reached, embody such understanding
in a signed agreement.
LEED 'S SHOE STORE , VALLEY FAIR, INC., ETC. 517
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following: -
CONCLUSIONS OF LAW
1. Retail Store Employees Union, Local 428, Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
2. All Respondent's Valley Fair selling and nonselling employees, exclusive
of guards, watchmen, and supervisors as, defined by the Act, constitute, and
at all times material constituted, a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. Retail Store Employees Union, Local 428, Retail Clerks International Associa-
tion , AFL-CIO, was on on August 27, 1963, and at all times thereafter has
been , the exclusive statutory representative of all the employees in the above-de-
scribed appropriate unit for the purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
4. By refusing on August 27, 1963, and at all times thereafter, to bargain
collectively with Retail Store Employees Union, Local 428, Retail Clerks Interna-
tional Associaton, AFL-CIO, as the exclusive statutory representative of the em-
ployees in the appropriate unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act.
5. By: (a) questioning, in an unlawful manner, its employees regarding their
union membership and activities, (b) threatening to close Valley Fair if its
employees remain members of the Union, (c) threatening its employees with
various reprisals if they remain members of the Union,' (d) threatening its em-
ployees with discharge if they signed union authorization cards, (e) telling
its employees that they will be blacklisted by other retail stores if they remain
members of the Union, (f)` requesting its employees to vote the Union out
of Valley Fair, (g) informing its employees that it would be extremely difficult
for them to secure job promotions if they remain union members, (h) advising
its employees that they would fare far better if they relied solely on Respondent's
generosity rather than relying upon the Union's chances of securing better work-
ing conditions and other benefits for them, and (i) otherwise unlawfully attempt-
ing to wean its employees away from the Union, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. Edison Brothers Stores, Inc., and Leed's Shoe Store, Valley Fair, Inc., are
engaged in, and during all times material were engaged in, commerce within,
the meaning of Section 2(6) and (7) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings` of fact and conclusions of law,
and upon the record as a whole, I recommend that Edison Brothers Stores, Inc.,
St. Louis, Missouri, and Leed's Shoe Store, Valley Fair, Inc., San Jose, California,
their respective officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Store Employees Union, Local
428, Retail Clerks International Association, AFL-CIO, as the exclusive collective-
bargaining representative of the employees in the above-described appropriate
unit with respect to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
(b) Questioning, in an unlawful manner, its employees concerning their union
memberships and activities, threatening to close Valley Fair if its employees remain
members of the Union, threatening its employees with various reprisals if they
remain members of the Union, threatening its employees with discharge if they
sign union authorization' cards, telling its employees that they will be blacklisted
by other retail stores if they remain members of the Union, requesting its em-
ployees to vote the Union out of Valley Fair, informing its employees that
it would be extremely difficult for them to receive job promotions if they remained
members of the Union, advising its employees that they would fare far better
if they relied solely upon Respondent's generosity rather than to rely upon the
Union's chances of securing better working conditions and other benefits for
them, and otherwise unlawfully attempting to wean its employees away from
the Union.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any like or -related manner interfering with, restraining ,-' or -coercing
its employees in the exercise of the right to self -organization , to form, join,
or assist any 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, or to refrain from
any or all such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Upon request, bargain collectively, to the extent and at all times required
by law, with Retail Store Employees Union, Local 428, Retail Clerks International
Association, AFL-CIO, as the exclusive statutory representative of the employees
in the above -described unit , with respect to grievances , labor disputes , wages,
rates of pay , hours of employment , or other conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its Valley Fair store located in San Jose , California, copies of
the attached notice marked "Appendix." 46 Copies of said notice, to be furnished
by the Regional Director for Region 20 (San Francisco, California), shall, after
being duly signed by Respondent 's representative , be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days thereafter , in conspic-
uous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the aforesaid Regional Director, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply therewith.47
It is further recommended that unless on or before 20 days from the receipt
of this Decision Respondent notifies said Regional Director , in writing, that
it will comply with the above Recommended Order, the National Labor Relations
Board issue an order requiring it to take such action.
4e In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
47 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read. "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken in compliance."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 bargain collectively with Retail Store Employees Union, Local
428, Retail Clerks International Association , AFL-CIO, as the exclusive bar-
gaining representative of all employees in the bargaining unit described
below with with respect to grievances , labor disputes , wages, rates of pay,
hours of employment , or other conditions of employment, and, if an under-
standing is reached , embody such understanding in a signed agreement. The
bargaining unit is:
All our Valley Fair store selling and nonselling employees exclusive
of guards , watchmen , and supervisors as defined in the Act.
WE WILL NOT question , in an unlawful manner, our employees regarding
their union memberships or activities ; threaten our employees with the closing
of our Valley Fair store if they remain union members , threaten our employees
with discharge if they sign union authorization cards, tell our employees
that they will be blacklisted by other retail stores if they remain union
members, request our employees to vote the Union out of our Valley Fair
store, inform our employees that it will be extremely difficult for them to
obtain job promotions if they remain union members, advise our employees
that they would fare better if they rely solely on our generosity rather
LOCAL 25, MARINE DIVISION, IUOE 519
than to rely upon the Union 's chances of securing better working conditions
and other benefits for them , or otherwise attempt to wean our employees
away from the Union.
WE WILL NOT in any like or related manner interfere with , restrain,
or coerce our employees in the exercise of the right to self-organization,
to form labor organizations , to join or assist the above -named labor organiza-
tion , or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities , except to the extent that
such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act.
All our employees are free to become or to 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 employment against
any employee because of membership in or activity on behalf of any labor
organization.
EDISON BROTHERS STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LEEDS SHOE STORE, VALLEY FAIR, INC.
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting, and
must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street , San Francisco , California , Telephone No. 556-6721, if they have
any questions concerning this notice or compliance with its provisions.
Local 25, Marine Division, International Union of Operating
Engineers, AFL-CIO and American Dredging Company. Case
No. 4-CB-941. November 6, 1964
DECISION AND ORDER
On May 27, 1964, Trial Examiner Harold X. Summers issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent, the Charging Party, and the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and
supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
149 NLRB No. 51.