Leeds Shoe Stores, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1957

117 N.L.R.B. 585 (N.L.R.B. 1957)

LEEDS SHOE STORES, INC. 585
both the operating and maintenance divisions, excluding all other em-
ployees, guards, supervisor pipefitters, assistant foremen, pipefitter
foreman in the pipefitting section of the maintenance division, and all
other supervisors as defined in the Act.
5. If a majority in a voting group vote "YES" in the election
directed herein for such group they will be taken to have indicated
their desire to constitute a separate appropriate unit, and the Regional
Director conducting the election is instructed to issue a certification
of representatives to the petitioner involved in that election for the
voting groups described in paragraph 4, which the Board, under such
circumstances, finds to be a unit appropriate for the purposes of col-
lective bargaining. In event a majority of employees in a voting
group do not vote "YES," the employees in such group shall remain
a part of the existing unit and the Regional Director will issue a
certification of results of election to such effect.
[The Board dismissed the petitions in Cases Nos. 20-RC-3050,
30.51, and 3052.]
[Text of Direction of Elections omitted from publication.]
Leeds Shoe Stores, Inc. and Retail Clerks Union , Local 1439,
AFL-CIO. Case No. 19-CA-1W8. March 13,1957
DECISION AND ORDER
On August 2, 1956, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent fled ex-
ceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by 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 this
case 1 and, finding merit in the exceptions, rejects the Trial Examiner's
recommendations and adopts his findings and conclusions only insofar
as they are consistent with our decision herein.
1. The Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (5) of the Act by refusing to bargain with the Union as the
exclusive representative of its employees in the appropriate unit, and
1 The Respondent's request for oral argument is hereby denied, as the record, exceptions,
and brief, in our opinion, adequately reflect the issues and positions of the parties.
117 NLRB No. 90.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also violated Section 8 (a) (1) by unilaterally changing the hours of
employment of the women employees, in an attempt to defeat the
unionization of its employees, after it had been notified that the Union
was such representative.
The uncontradicted testimony at the hearing establishes that in
January 1956 most of the large Spokane retail stores placed their
female employees on a 5-day workweek. Immediately thereafter, the
Respondent's women employees in the Spokane store involved herein
began inquiring of Harold Robison, the store manager, as to when
they would get a similar reduction in hours of employment from the
51/2 days per week they were then working. Robison discussed this
situation with Tom Moore, the Respondent's northwest regional man-
ager, who told Robison to take the matter up with the home office
in St. Louis, Missouri, on his next business trip to the home office
shortly thereafter. Before he left for that trip, Robison informed
Pearl Zarkin, senior saleslady and apparent spokesman for the women
employees, that he would try to get the 5-day week for them on his
trip.
In St. Louis, on February 20,1956, Robison spoke to Roy Oscarson,
the vice president of the Respondent's parent corporation, Edison
Brothers, about the situation and Oscarson approved the shorter work-
week. The latter said that he would contact Moore and inform him
that he could authorize the establishment of the new workweek as soon
as it could be arranged. This procedure was in accordance with the
normal chain of command channels under which the Respondent and
its parent operated. Oscarson telephoned Moore on February 22 and
informed him of his decision.
On the morning of Friday, February 24, 1956, after Robison had
returned to Spokane the previous evening, he went to the store and
told Pearl Zarkin that it was definitely set that the girls would get the
5-day week.' Later that Friday, Robison received a telephone can
from Moore, who told Robison that he had had confirmation about
the 5-day week from Oscarson and therefore it "was O. It'd to put
it into effect, and [Robison] should go ahead and put it into effect
immediately." In turn, Robison told Moore that he had already in-
formed the women employees that they were going to get their 5-day
"There is a conflict in testimony as to whether Robison made no statement to Zarkin
concerning the timing of the change , or whether he told her in substance that there would
be some delay ; in our opinion , it is unnecessary that this conflict be resolved. As set
forth in the text, the record establishes that Oscarson delegated to Moore, but not to
Robison , the authority to determine when the change would be effectuated ; that at the
time of this conversation with Zarkin , Robison knew that the change would be made but
had not been informed as to the timing ; and that Moore subsequently reached his decision
and informed Robison before either was aware of the Union's organizational activity.
Under these circumstances , the expression by Robison of his personal opinion as to the
possibilities of delay would not be probative evidence that the Respondent accelerated
the timing of the change or that such timing was in any way affected by the Union's
bargaining request.
LEEDS SHOE STORES, INC. 587
week and, as he now had received the go-ahead signal, Robison stated
to Moore that "I would tell the girls on Monday and that it would be
installed on the 2nd of March." 3 The women employees were so in-
formed by Robison on Monday, February 27.
In the interim, on Saturday, February 25, the Union sent a letter
to Moore, addressed to his Seattle, Washington, office, stating that the
Union represented a majority of the employees employed in the Re-
spondent's Spokane store and requesting that he or some other repre-
sentative of the Respondent meet with representatives of the Union
for the purpose of negotiating an agreement for the employees in-
volved. The letter, which Moore received the following Monday,
also stated: -
We request that the Company refrain from granting wage
increases, making promotions, shortening workday and work
week, laying off employees, or taking any other actions that
would influence the thinking of the employees as to being repre-
sented by the [Union], until the question of representation is
resolved.
That Saturday afternoon, Charles Kelleher, an international repre-
sentative of the Union and E. C. Vawter, union secretary-treasurer,
went to the Respondent's store and gave Robison a copy of the
letter.4 After informing Robison that the Union claimed to repre-
sent a majority of the employees, Kelleher and Vawter left. Robison
made a hurried telephone call to Moore that afternoon, as he was very
busy, and merely informed Moore that the letter was being sent to
him. No mention was made of the 5-day week.
About May 21, 1956, after the Respondent had received a letter
from the Union requesting a bargaining conference, its attorney,
Lyle Keith, met with the union representatives and informed them
that the Respondent did not believe that the Union represented a
majority of its employees and therefore could not negotiate with it,
but would be willing to bargain with the Union if it established such
majority representation. About a week later, in reply to another
union request for a bargaining session, the Respondent's attorney
sent a letter to the Union in which the Respondent again stated its
position and declined to meet with the Union.
We do not agree with the Trial Examiner's conclusion that the
record herein demonstrates that the Respondent did not act in good
faith when it declined to recognize and bargain with the Union. In
finding that the Respondent was not acting in good faith, the Trial
s March 2, 1956, fell on a Friday , the beginning of the workweek . All employees
worked on Fridays and Saturdays and received time off other days. The testimony as to
this conversation between Robison and Moore is not reflected in the Intermediate Report.
I ljncontradicted testimony establishes that, prior to this time, the Respondent was
unaware of any attempt to organize its employees.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner relied on the institution of the shorter workweek imme-
diately following receipt by the Respondent of the Union's request
for recognition, an action which the Trial Examiner concluded was
taken for the purpose of defeating the unionization of its employees.
However, the sequence of events, as set forth above, establishes that
before the Respondent was aware of the organizational activity
among its employees, it had determined to institute a shorter work-
week; had informed an employee of that determination; and had
decided when formal notice would be given the employees and when
the change would become effective.5 The mere fact that, in accord-
ance with this predetermined timetable, the Respondent announced
and put into effect the shorter workweek at a time after the Union
had requested recognition does not, in our opinion, establish any
relationship other than temporal coincidence between the Respond-
ent's actions and its employees' organizational activities, and we are
therefore unable to find in such action any evidence that the Respond-
ent was acting in bad faith or was unlawfully seeking to defeat the
unionization of its employees.6 Nor do we find evidence of bad faith
solely in the Respondent's contemporaneous failure to express its posi-
tion or its subsequent refusal to bargain with the Union without proof
of majority status.' We note in this connection that the record is
devoid of evidence that the Union at any time offered to prove to the
Respondent that it represented a majority of the Respondent's em-
ployees. We find, accordingly, that the Respondent did not unlaw-
fully refuse to bargain with the Union in violation of Section 8 (a)
(5) of the Acts and did not violate Section 8 (a) (1) by instituting
the shorter workweek.
2. The Trial Examiner found, contrary to the Respondent's conten-
tion, that Lochead is a supervisor within the meaning of the Act. He
also found that on June 7, 1956, 4 days prior to the opening of the in-
stant hearing, Lochead stated to an employee, Jack Hamilton, in the
presence of Store Manager Robison, that "When the hearing start[s]
on Monday they would find out who the [people] were that signed
authorization cards for the Union and that it would be pretty hard on
5 Contrary to our dissenting colleague , the evidence as to the telephone conversation
between Robison and Moore, set forth above , establishes , as we have found , that on Febru-
ary 24 prior to the Union 's bargaining request, the Respondent had decided that the
change would become effective on March 2
9 A. L Gilbert Company, 110 NLRB 2067 , 2072-2073 ; The Walmac Company , 106 NLRB
1355 Contrary to our dissenting colleague, we agree with the Trial Examiner's con-
clusion , to which no exception was taken , that Robison 's statements to employees that
joining the Union would result in a reduction in their salary were predictions rather
than threats , they therefore do not constitute evidence of bad faith
I Ibid . Lochead's alleged threat to Hamilton , infra , is in our opinion too remote in time
from the Union's bargaining request of February 25 to establish by itself that the Re-
spondent 's conduct with respect to that request was motivated by bad faith
I In view of this determination , we find it unnecessary to pass upon the Respondent's
contentions concerning the Union 's majority status
LEEDS SHOE STORES, INC. 58.9
those people," and that therefore the Respondent violated Section 8
(a) (1) of the Act.
Even assuming that this single, isolated instance of misconduct did
occur and that it did constitute an unfair labor practice, we do not be-
lieve that a cease and desist order is warranted in this case, as there
is no other evidence of misconduct on the part of Respondent .9 Ac-
cordingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER Muu ooK , dissenting :
I find no justification for reversing the Trial Examiner's findings of
violations of Section 8 (a) (5) and (1) of the Act. The Trial Ex-
aminer correctly stated the law when he said : "Respondent's refusal
to recognize and bargain with the Union, especially before announcing
the return to the 5-day workweek, was a clear violation of Section 8 (a)
(5) of the Act, unless at that time [when the Union demanded recogni-
tion February 25] Respondent had a bona fide doubt that the Union
represented a majority." [Emphasis supplied.] The correctness of
the Trial Examiner's factual finding that Respondent did not have a
bona fide doubt of the Union's actual majority is evident from the
following circumstances : The Respondent made no contemporaneous
expression of doubt or even a reply to the Union's February 25 request
for recognition and a bargaining conference. Significantly, it waited
3 months to reply, during which time the Union even resorted to picket-
ing Respondent, and then replied only after the General Counsel's
complaint had issued. Meanwhile, immediately after receipt of the
Union's request, Robison, the store manager, announced in effect an
acceleration of the date for instituting a 5-day workweek which em-
ployees had repeatedly demanded.1° Robison later told employees
that if they joined the Union their weekly salary would be $25 less
than they were receiving, such statement constituting in my view an
implied threat designed to undermine the union majority. Assistant
Store Manager Lochead, in the presence of Store Manager Robison
and therefore with his sanction, told employee Hamilton 4 days be-
o Price Electric Corporation , 107 NLRB 1474
io My colleagues , in reversing the Trial Examiner 's finding of an announced acceleration
by the Respondent of the effective date of the reduced workweek, have necessarily over-
turnen the Trial Examiner on credibility without justification and contrary to Board
policy Standard Dry Wall Products, 91 NLRB 544, enforced 188 F 2d 363 (C A. 3). In
affirmatively setting forth "the credited evidence," the Trial Examiner in necessary effect
discredited Robison's denial of employee testimony that he, Robison , told Zarkin on Feb-
ruary 24 that the 5-day week "would not be put into effect immediately" and that "no
date had been set," and discredited as well the testimony of a telephone conversation later
on Februaiy 24 in which Moore stated that Robison "should go ahead and put it into
effect immediately " In light of the whole record, including Robison's clearly apparent
mangge,ment authority on the subject of employee working hours; and the dubious ele-
ment of "temporal coincidence" in the alleged instructions from Moore on February 24,
these findings of the Trial Examiner based on credibility cannot be regarded as eironeous
or unjustified.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore the hearing in this case began, that "When the hearing starts on
Monday they would find out who the people were that signed authoriza-
tion cards for the union and that it would be pretty hard on those
people." These circumstances are not consistent with a good-faith
doubt of the Union's majority, but rather reflect a determination to
destroy the Union's majority 11
11 See, e. g., N. L. R B. v. Top Mode Mfg. Co., 203 F. 2d 482 (C. A. 3), cert. denied
347 U . S 912 ; N. L. R. B. v. Lunder Shoe Corp ., 211 F. 2d 284 ( C. A. 1); Joy Silk
Mills, Inc. v. N . L. R. B., 185 F. 2d 732 (C. A., D. C.) and the several other cases In point
cited in footnote 15 of the Intermediate Report.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Retail Clerks Union, Local
1439, AFL-CIO, herein called the Union, the General Counsel of the National Labor
Relations Board , herein called respectively the General Counsel i and the Board,
issued a complaint, dated May 15, 1956, against Leeds Shoe Stores, Inc.,2 herein
called Respondent , alleging that Respondent had engaged in, and was engaging in,
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act.
More specifically, the complaint , as amended at the hearing, alleged that ( 1) since
February 25, 1956, Respondent has refused to bargain collectively with the Union
although the Union previously had been designated and selected the collective-
bargaining representative by Respondent 's employees in 'a certain appropriate unit;
and (2) since February 27, 1956, Respondent has, by certain stated acts and con-
duct, interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
Respondent duly filed an answer denying the commission of the unfair labor
practices alleged.
Pursuant to due notice, a hearing was held on June 11 and 12, 1956, at Spokane,
Washington, before the duly designated Trial Examiner. The General Counsel and
Respondent were represented by counsel; the Union by an official thereof. Full op-
portunity was afforded the parties to be heard, to examine and cross-examine wit-
nesses, to introduce relevant evidence, and to file briefs and proposed findings of fact
and conclusions of law on or before July 2, 1956.3 A brief has been received from
Respondent's counsel which has been duly considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS OPERATIONS
Respondent, a wholly owned and controlled subsidiary of Edison Brothers Stores,
Inc., has its principal offices and place of business at St. Louis, Missouri, and operates
267 shoe stores in 38 States of the United States, the District of Columbia, and in the
Hawaiian Islands. During 1955, the net sales of Edison Brothers Stores, Inc., ex-
ceeded $87,000,000.
Respondent, during 1955, purchased goods and merchandise valued in excess of
$1,000,000, all of which originated at points outside the State of Washington and
were shipped to Respondent from points located outside of said State. During the
same year, Respondeent's gross retail sales, within the State of Washington, exceeded
$1,000,000.
Upon the above admitted facts, and upon the record as a whole, the Trial Examiner
finds that Respondent is engaged in commerce within the meaning of the Act.
I This term specifically Includes counsel for the General Counsel appearing at the
hearing.
z.The name of Respondent was corrected at the hearing to read as stated above.
' At the request of Respondent's counsel the time to file briefs was extended to July 16,
1956.
LEEDS SHOE STORES, INC. 591
II. THE ORGANIZATION INVOLVED
Retail Clerks Union , Local 1439 , AFL-CIO, is a labor organization admitting to,
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion ; the refusal to bargain collectively
1. The appropriate unit
The complaint, as amended at the hearing, alleged that , during all times material,
herein , all employees at Respondent 's store located at West 606 Riverside , Spokane,
Washington ,4 including the porter , regular part-time stockmen and regular part-time-
sales personnel , but excluding the manager, all guards, all professional employees, and
all supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 ( b) of the Act . Respondent's.
answer averred that it was "without knowledge" with respect to said allegation.
Upon the entire record in the case, the Trial Examiner is of the opinion and
finds that all persons employed at Respondent's West 606 Riverside, Spokane,
Washington, store, including the porter, regular part-time stockmen, and regular
part-time sales personnel , but excluding the manager, all guards, all professional
employees , and all supervisors as defined by the Act, at all times material herein
constituted, and now constitutes, 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, rates of pay, wages, hours of employment, and other conditions of-
employment. The Trial Examiner further finds that said unit insures to said em-
ployees the full benefit of their right to self-organization, to collective bargaining,
and otherwise effectuates the policies of the Act.
2. The Union's majority status in the appropriate unit
At the hearing, the General Counsel and counsel for Respondent stipulated that-
there were employed on February 25, 1956,5 in the store here involved 15 persons,
exclusive of Stuart Lochead whose employee status is discussed below, in the unit-
hereinabove found appropriate. On behalf of the General Counsel there were
offered and received in evidence nine signed cards 6 expressly authorizing the Union
to represent the signers thereof for collective bargaining. The genuineness of the
signatures appearing on the cards was not challenged.
At the hearing and in its brief Respondent contended that (1) Stuart Lochead,_
during all times material herein, was a nonsupervisory employee and hence should
be included in the unit; (2) Jack Van Lippeloy "signed his designation card under
coercion or duress"; and (3) the designation card bearing the name of H. Jeanne
Schubach should not be counted for "Schubach never knowingly signed an authoriza-
tion for representation." These contentions will be discussed seriatim:
Section 2 (11) of the Act defines a supervisor as:
... any individual having authority, in the interest of the employer, to hire,-
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or dis-
cipline other employees, or responsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in connection with the fore-
going the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment. [Emphasis added.]
Where the evidence shows, as here, that a person possesses one or more of the-
necessary statutory requisites, such a person must be classified as a supervisor within
the meaning of the statutory definition.'
* The employees of R hich are the only ones involved in this proceeding.
5 Unless otherwise noted all dates refer to 1956
9 Two were dated February 16, 3 dated February 17, 3 dated February 24, and 1 dated-
February 25.
4 The Senate In reporting its amendment to include a definition of a supervisor clearly
showed its intention to be the drawing of a line between supervisors that are truly man-
agement and minor supervisors having no such connections. Senate Report No. 105 on
S 1126 said •
In drawing an amendment to meet this situation, the committee has not been un-
mindful of the fact that certain employees with minor supervisory ditties have prob-
lems which may justify their inclusions in that act . It has therefore distinguished
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The credible evidence clearly discloses that Lochead, whose title is assistant store
manager, has, in the absence of Store Manager Harold Robison, complete charge of
the store and over the persons therein employed; that he has the exclusive authority
to assign employees to certain tasks; that' he has the exclusive authority to grant the
employees permission to leave the store before the regular closing time or leave the
store any time during working hours; that he has the exclusive authority to discipline
the employees; that he possesses the only set of store keys; that he banks the store
receipts; and presides over the weekly salesmen's meetings. Furthermore, his com-
pensation is computed on a basis different from that of the other salesmen. In addi-
tion, the credible evidence further discloses that his recommendations to Robison
with respect to the hiring of certain applicants for employment has been considered
and often favorably acted upon; that Robison on occasions has sought Lochead's
opinion as to the ability of certain employees and as to the qualifications and poten-
tialities of certain newly hired salesmen.
Upon the record as a whole, the Trial Examiner finds, contrary to Respondent's
contention, that Lochead, during all times material, has been, and still is, a super-
visor within the meaning of the Act and therefore should be excluded from the
appropriate unit.
Van Lippeloy testified, and the Trial Examiner finds that: For about 14 years 8
he has been a fireman for the city of Spokane; for about 13 years he has been
employed in the store in question as a part-time stockman; Vawter, a former union
representative, telephoned to him on 4 occasions at the firehouse where he works
asking him to sign a union-authorization card; he was reluctant to do so because he,
being a part-time employee, did not believe he should be included in the appropriate
unit, during 2 telephone calls and 1 personal visit he had with Kenneth Miller,
the president of the local of the International Fire Fighters Union to which he
belonged, Miller told him, in effect, that if he did not sign the union designation card
he could "hurt" him with the Fire Fighters Union; on February 25, Vawter came
to the firehouse, told him a majority of the store's employees had designated the
Union their bargaining agent and then asked him to sign a designation card;
he then telephoned the store, asked Arnold Rosenberger,9 the most active union
adherent in the store, "what the deal was," and was told by Rosenberger that several
of the employees had "signed up" with the Union; and that he thereupon executed
a union designation, card-which he handed 'to Vawter.
Respondent's contention that Van Lippeloy would not have executed a union
designation card had he not been coerced by the Union into doing so is not supported
by the record. There is not a scintilla of evidence that anyone connected with the
Union coerced Van Lippeloy into signing the card. Furthermore, the credible evi-
dence reveals that he signed it after being assured by Rosenberger that several of
the other employees had already signed up. Moreover, he testified that the reason
he hesitated at all about signing the card was because, "I felt that I was part-time
help, I didn't have a right to decide on the regular help, as long as it wasn't bilateral
I didn't feel I should take part in it. I wanted to stay neutral. I wanted to stay
completely uninvolved . . . . I [now ] feel, as a part-time man , I have no part in
a vote on this. It is my own conviction, maybe I am right or maybe I am wrong,
but it is still my conviction,",
Whether Miller's remarks to Van Lippeloy was the deciding factor which brought
about the execution of the designation card can not play any part in determining
whether the Union coerced Van Lippeloy into signing the card for the simple reason
that there is no evidence in the record to show that: (1) Miller acted at the behest
of the Union; (2) the Union was aware of Miller's talks with Van Lippeloy or of
the contents thereof; (3) the Union was ever advised that Van Lippeloy claimed
that he was coerced into signing the designation card; or (4) the Union ratified,
approved, or acquiesced in, Miller's purported coercive threats to Van Lippeloy.
Under the circumstance, and upon the entire record in the case, the Trial Ex-
aminer finds that by signing the card Van Lippeloy duly designated the Union as his
collective,bargaining representative.
Rosenberger testified that on February 17, he handed Schubach, the wife of an
official of a labor organization which is in no way connected with the Charging
Party, a designation card and requested her to sign it; that after Schubach took
between straw-bosses, badmen, set-up men, and othei minor supervisory employees
on the one hand, and the supervisor vested nsth,genuine management prerogatives as
the right to hoe or file, discipline, or make EFFECTIVE recommendations with
respect to such action [Emphasis added I
9 Erroneously stated in the stenographic transci ipt of the hearing as 4 years
0 Also known as Arnold Ross
LEEDS SHOE STORES, INC. 593
the card he left her ; and about an hour later he again saw Schubach at which time
she returned the card duly filled out and signed by her.
Schubach testified that: she was first employed as a hosiery saleslady on August
26, 1955; on the following March 1, she became the store 's bookkeeper ; the desig-
nation card which Rosenberger testified she handed to him appears to bear her
signature , but she did not recall signing it ; the written portion appearing on the
card appears to be in her handwriting ; and the only card she could remember re-
turning to Rosenberger was a membership card.
In the light of the Trial Examiner 's observation of the conduct and deportment
at the hearing of Schubach and Rosenberger , and after a very careful scrutiny
of the record , all of which has been carefully read, and parts of which have been
reread and rechecked several times, and being duly mindful of the fact that Respond-
ent strongly disputes the majority status of the Union , the Trial Examiner is con-
vinced, and finds, that Schubach in fact signed the designation card on February
17, and that she did so with the expressed intention of designating the Union as
her collective-bargaining representative.
Upon the basis of the entire record, the Trial Examiner finds that the Union was
on February 24,i0 and at all times thereafter has been, and still is, the duly selected
and designated representative of the majority of the employees in the appropriate
unit, and that , by virtue of Section 9 (a) of the Act , it was on February 24, and
since that date has been , the exclusive representative of all the employees in said
unit for the purposes of collective bargaining in respect to grievances , rates of pay,
wages, hours of employment , and other conditions of employment.
3. The refusal to bargain
a. The pertinent facts
In the latter part of January or the fore part of February , Rosenberger, at the
request of a union representative , called at the union headquarters and, after some
discussion with Vawter, the former secretary -treasurer of the Charging Party, and
Charles Kelleher , an international representative of the Union , he was given about
10 designation cards for the purpose of having them signed by Respondent's
employees.
About 2 or 3 weeks after Rosenberger 's visit to the Union he began soliciting his
coworkers to sign the designation cards and , as found above , by February 24, a
majority of them had favorably responded.
The credited evidence establishes that: In January 1956, most of the large Spokane
retail stores placed their female help on a 5-day workweek ; immediately thereafter
Respondent 's female employees in the Spokane store inquired of Robison when
they would return to a 5-day workweek ; ii during January and February , Robison
was queried repeatedly by his female help, especially by Pearl Zarkin , the senior sales-
lady, with respect to returning to the shorter workweek ; to each inquiry , Robison
replied that eventually the girls would be on the shorter workweek; on two occasions
in February , Robison discussed this grievance of the female help with his immediate
superior , Tom Moore, Respondent 's Northwest regional manager ; shortly before
Robison left for Respondent 's St. Louis , Missouri , headquarters, on or about Feb-
ruary 19, he was advised by Moore to discuss the matter with Roy Oscarson, vice
president and sales manager of Edison Brothers ; several days before leaving for
St. Louis, Robison assured Zarkin that one of the matters he would discuss with
his St. Louis superiors was the requested return of the 5-day workweek for the female
employees ; on February 20, Oscarson approved the return to the 5-day workweek
and instructed Robison to put it into effect after consultation with Moore; and
when Zarkin reported for work on February 24, she asked Robison, who had returned
to Spokane the previous evening, what he had to report about the 5-day workweek,
to which he replied that it had received official approval .but it would not be put into
effect immediately.
On February 25, the Union sent Moore a letter to his Seattle , Washington , offices
stating that the Union represented a majority of the employees employed in
10 The record is manifestly clear that on or before February 24, 8 of the 15 persons
found to be included in the appropriate unit had signed cards designating the Union their
collective -bargaining representative and that on or before that date said cards had been
delivered to a duly authoiized representative of the Union.
11 On February 13, 1953 , the female employees of Edison Brothers , including each of its
subsidiaries , were placed on a 5 -day workweek . About 6 months later , said employees
were returned to a 51/2-day l; oi kweek
4 2 3 7 84--5 7--vol 117-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's Spokane store and requested that he or some other representative of
Respondent meet with representatives of the Union for the purpose of negotiating an
agreement for the employees involved. The letter also stated:
We request that the Company refrain from granting wage increases, making
promotions, shortening work day or work week, laying off employes, or taking
any other actions that would influence the thinking of the employes as to being
represented by the [Union], until the question of representation is resolved.
The same day, February 25, Kelleher, accompanied by Vawter and another person,
went to Respondent's store and handed Robison a copy of the Moore letter. Re-
spondent made no reply to said letter.
During the afternoon of February 27, without prior discussion, negotiation, or
consultation with the Union, Robison informed Zarkin and other female employees
that commencing the following payroll week, March 2, the female help would return
to a 5-day workweek.
In response to the Union's written request, Respondent's counsel and Kelleher met
on or about May 21, at which time Respondent's counsel stated that Respondent
would not recognize the Union's representative status until that status had been estab-
lished (presumably by an election).12
Under date of May 28, Respondent's counsel wrote Kelleher a letter wherein he
again stated that Respondent would not recognize the Union as the collective-bar-
gaining representative of the employees here involved until the question of the
Union's right to such status had been established to Respondent's complete satisfaction.
b. 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 choos-
ing ... [and] to refrain from any or all such activities" is effectively implemented
by Section 8 (a) (1) and (5). These provisions forbid an employer to "interfere
with, restrain, or coerce employees in the rights guaranteed in Section 7," and like-
wise prohibit an employer from refusing to recognize or bargain collectively with
the majority representative of his employees in the appropriate unit. The employer's
economic hold over his employees, which inheres in their relationship, is thereby
neutralized in matters of organization and representation, which are particularly 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 held, 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 representative
opposed by their employer. And for the same reason, employees cannot be expected
to derive the full benefit from their protected right of self-organization and to the
selection of a representative of their own choosing if they believe, "from circumstances
which their employer created or for which he was fairly responsible," 13 that their
representative, however chosen, is subject to the employer's approval or disapproval.
In open disregard to its duty under the Act Respondent embarked upon a cam-
paign to defeat the unionization of its employees as soon as it was apprised that
they had selected the Union as their collective-bargaining representative. Thus,
Robison's announcement of the return to a 5-day workweek on the first work day
after receiving the Union's demand for recognition, on the second day after notifying
Moore of such demand, and on the third day after informing Zarkin that no date had
been set for the institution of the 5-day workweek, was, in the opinion of the Trial
Examiner, adroitly and strategically timed to impress upon the employees that con-
tinued adherence was a fruitless gesture, would bring them naught, and they could
rely on their employer's unilateral generosity to attain their needs.14 This finding is
buttressed by the fact that when Rosenberger asked Zarkin on the morning of February
17 It is significant to note that Respondent's request that the Union establish its repre-
sentative status by means other than by designation cards comes about 5 days after the
issuance of the complaint herein and about 2 months after the service upon Respondent
of the original charge herein
11 N L R B v Link-Belt Co , 311 U S 584, 588
14 See Cold Spring Granite Company, 101 NLRB 786, Paramount Textile Machinery Co ,
97 NLRB 691; N L R B v Crown Can Co, 138 F 2d 263 (C. A 8) ; May Department
Stores v N. L. R B., 326 U S. 376; N. L R B. v. Mt Clemens Pottery Co, 147 F. 2d 262
(C A 6) ; F W Woolworth v N L R B , 121 F 2d 658 (C A 2) ; Southern Colorado
Power Co v N L R B , 111 F 2d 539 (C A 10) ; N. L. R B. v. Wytheville Knitting Mills,
Inc, 175 F 2d 238 (C. A 3).
LEEDS SHOE STORES, INC. 595
27, to sign a designation card she replied that he should come to her home that
evening and there the two of them would discuss the matter with her husband and
that later that day Zarkin told Rosenberger she would not sign the card "because Mr.
Robison had [gotten the girls] the five-day week."
On February 25, when the Union demanded to be recognized and dealt with on
behalf of the employees in the appropriate unit, the Union, in fact, was the duly
designated collective-bargaining representative of the majority of said employees.
Respondent's refusal to recognize and deal with the Union, especially before announc-
ing the return to the 5-day workweek, was a clear violation of Section 8 (a) (5) of the
Act, unless at that time Respondent had a bona fide doubt that the Union represented
a majority.
Respondent's conduct and activities, as epitomized above, following the Union's
demand for recognition reveal Respondent's want of good faith. Normally, the
Board does not hold an employer in violation of the Act if he in good faith questions
the union's majority status. But here Respondent, upon learning of the majority
status, immediately resorted to a serious unfair labor practice thereby transgressing
the bounds of permissible conduct to a sufficient extent to warrant a conclusion that its
refusal to recognize and deal with the Union was as ill-intentioned as its other
actions.l5
Upon the record as a whole, the Trial Examiner finds that on February 27, 1956,16
and at all times thereafter, Respondent, in violation of Section 8 (a) (5) of the Act,
failed and refused to bargain collectively with the Union as the duly designated
and selected representative of the majority of the employees in the unit hereinabove
found appropriate, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
4. Violation of Section 8 (a) (1)
Jack Hamilton, the former assistant store manager of, and presently a shoe sales-
man in, Respondent's Spokane store, testified that on June 7, 4 days prior to the
opening of the instant hearing, during a conversation between Robison, Lochead,
and him, Lochead said, to quote Hamilton, "When the hearing start(s) on Monday
they would find out who the people 17 were that signed authorization cards for the
union and that it would be pretty hard on those people."
Lochead denied that he made said statement. He testified, however, "I have
made the statement numerous times that sooner or later the whole thing would come
to light and when it came to the hearing that the people who signed cards would be
known."
Robison testified that he could not recall any conversation on June 7 between
himself, Lochead, and Hamilton wherein Lochead made the remarks attributed
to Lochead by Hamilton. He specifically denied ever hearing Lochead make
any such or similar statement.
Upon the record as a whole, specifically Lochead's above-quoted admission, the
Trial Examiner is convinced, and finds, that Lochead made the statement June 7
which Hamilton attributed to him. The Trial Examiner further finds that said state-
ment is violative of Section 8 (a) (1) of the Act.
5. Alleged violation of Section 8 (a) (1)
Hamilton testified that in the latter part of April, after the Union had placed
pickets in front of the store, Robison, on 2 or 3 occasions, said that if Hamilton
joined the Union his weekly salary would be $25 less than he was then receiving.
Rosenberger testified that Robison had made similar statements to him on more than
one occasion.
Despite Robison's denials, the Trial Examiner finds that Robison made the state-
ments referred to in the paragraph immediately above. However, contrary to
the General Counsel's contention, the Trial Examiner finds that Robison's remarks
15 Joy Silk Mills, Inc v N L R B , 185 F 2d 732 (C A, D C.) , Frank Bi os - Co v
N L R B , 321 U. S. 702; N. L R. B v Federbush Co Inc, 121 F 2d 954 (C. A 2) ,
N. L. R B v Louisville Refining Co, 102 F 2d 678 (C A 6) ; Dahistiom Metallic Co. v
N. L R B, 112 F 2d 756 (C A 2) ; Solvay Process Co v N L. R B, 117 F 2d 83
(C A 5) ; N L R. B v Inter-City Advertising Co, 190 F 2d 420 (C. A. 4) ; N L R B v
W. T Grant Company, 199 F 2d 711'(C A 9) , N L R B. v Motorola, Inc, 199 F. 2d 82
(C. A 9) , N. L R B v Poultry Enterprises, 207 F 2d 522 (C A 5).
ie The date when Respondent unilaterally changed the workweek for its female employees
17 Hamilton testified that Lochead did not use the word "people" in the above quoted
statement but had actually used an obscene word in its place.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were but predictions that if the Union were to represent the employees they would re-
ceive the same compensation called for in the contract which Respondent then had
with the Union covering Respondent's Seattle employees. Under said contract Re-
spondent's Seattle shoe salesmen earned $25 less than their Spokane shoe salesmen.
Such predictions of future events have been held by the Board to be protected by
Section 8 (c) of the Act, as mere expressions of opinion.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the sev-
eral 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, violative 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 February 27, 1956, and at all times thereafter,
has refused to bargain collectively with the Union as the representative of a majority
of the employees in an appropriate unit, the Trial Examiner will recommend that
Respondent, upon request, bargain collectively with the Union as the exclusive
representative of all employees in the unit heretofore found appropriate, and if an
agreement is reached, embody such understanding in a signed agreement.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure the employees here involved their
full rights guaranteed by the Act it will be recommended that Respondent cease
and desist from in any manner interfering with, restraining, and coercing its em-
ployees in their right to self-organization.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local 1439, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All employees at Respondent's West 606 Riverside, Spokane, Washington, store,
including the porter, regular part-time stockmen and regular part-time sales person-
nel, but excluding the manager, all guards, all professional employees, and all super-
visors as defined in the Act, constitute, and during all times material herein consti-
tuted, a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. Retail Clerks Union, Local 1439, AFL-CIO, was on February 24, 1956, and at
all times thereafter has been, and now is, the exclusive representative of all the em-
ployees in the above-described appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing on February 27, 1956, and at all times thereafter, to bar-
gain with the Union, as the exclusive representative of all the employees in the ap-
propriate unit, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By changing the hours of employment of its female employees without prior
consultation, negotiation, or discussion with the Union, by threatening its employees
with reprisals because of their Union adherence thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
is Cary Lumber Company, 102 NLRB 406; Safeway Stores, Inc, 99 NLRB 48, The
Jackson Press, Inc, 96 NLRB 897; A. L Gilbert, 110 NLRB 2067.
MITCHELL PLASTICS, INC.
APPENDIX A
597
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL bargain collectively upon request with Retail Clerks Union, Local
1439, AFL-CIO, as the exclusive representative of all employees in the bar-
gaining unit described herein, with respect to grievances, labor disputes, wages,
rates of pay, hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All persons employed at our West 606 Riverside, Spokane, Washington,
store, including the porter, regular part-time stockmen, and regular part-
time sales personnel, but excluding the manager, all guards, all profes-
sional employees, and all supervisors as defined in the Act.
WE WILL NOT threaten our employees with reprisal if they join or remain
members of the above-named Union or change the employment hours of our
employees without prior consultation, negotiations, or discussion with the
Union.
WE WILL NOT interfere with the Union's efforts to organize our employees,
or refuse to bargain with the Union as the exclusive representative of the
employees in the above-described bargaining unit, or in any other manner
interfere with, restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist Retail Clerks
Union, Local 1439, AFL-CIO, 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, or to refrain from any and all of such activities except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
8 (a) (3) of the National Labor Relations Act.
All our employees are free to become or remain members of the above-named
Union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended Act.
LEEDS SHOE STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Mitchell Plastics, Inc. and Local 743, International Union , United
Automobile, Aircraft, and Agricultural Implement Workers of
America, AFL-CIO. Case No. 7-CA-1297. March 14,1957
DECISION AND ORDER
On April 4, 1956, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, The General Counsel filed exceptions and a
supporting brief, the Charging Party filed exceptions and a supporting
117 NLRB No. 93.