Miller Mercantile Co., Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1957

118 N.L.R.B. 835 (N.L.R.B. 1957)

MILLER MERCANTILE COMPANY, INC. 835
Miller Mercantile Company, Inc. and Retail Clerks International
Association , Local Union No. 631, AFL-CIO. Cases Nos.19-CA-
1389 and 19-CA-1393. July 26,190-7
DECISION AND ORDER
On January 29, 1957, Trial Examiner James R. Hemingway 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting 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 proceeding to a three-member panel [Members Murdock, Rodgers,
and Bean].
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 Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner 3
I The Respondent's request for oral argument is hereby denied as the record, exceptions,
.and brief, in our opinion, adequately present the issues and positions of the parties.
2 The Trial Examiner finds that the 1955 sales for the stores in the State of Washington
amounted to $2,764,501.66 rather than, as the record shows, $2,864,501.66. This inad-
vertence does not affect the Trial Examiner's findings or our concurrence therein.
3 The Respondent limits its exceptions to the following contentions : (1) The Trial
Examiner, in finding that the Respondent's business meets the Board's jurisdictional stand-
ards, improperly cites the Greenberg Mercantile Corporation case, 112 NLRB 710. The
Respondent contends that the Board's decision in that case is in conflict with the criteria
for interstate and intrastate retail chains set forth in Hogue and Knott Supermarkets,
110 NLRB 543, upon which the Respondent relies ; (2) the Union should have filed a repre-
sentation petition Instead of unfair labor practice charges in order to secure the Board's de-
termination of the jurisdictional issue ; and (3) the Respondent's refusal to bargain with
the Union in August 1956 was justified for the reason that a "Right-to-Work" bill was to
be voted on by the people of the State of Washington the following November. As to
(1), we do not agree that the Greenberg Mercantile decision, wherein the Board applied the
.standards for intrastate retail chain enterprises to those stores of a multistate chain which
were located in one of the States, is inapplicable to the instant cases. Moreover, that case
was issued in May 1955, and was available for the guidance of the Respondent long before
the commission of the unfair labor practices herein. We further note that the standards
recently promulgated by the Board for all retail or service enterprises in The T. H. Rogers
Lumber Company, 117 NLRB 1732, also furnishes the basis for taking jurisdiction in the
instant cases. As to (2), there is no requirement that a union, which seeks redress with
respect to unfair labor practices, must first ascertain through a representation petition
whether the Board will assert jurisdiction over the employer. As to (3), the possibility
of the passage of a State law pertaining to union security does not relieve an employer of the
,duty to bargain.
In the absence of exceptions thereto, we adopt all of the Trial Examiner's other findings
pro forma.
118 NLRB No. 104.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in these cases, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that Miller Mercantile Company, Inc.,
Portland, Oregon, its officers, agents, successors, and assigns shall.:
1. Cease and desist from :
(a) Interrogating its employees about their union views, syni-
pathies, or membership in Retail Clerks International Association,
Local Union No. 631, AFL-CIO, or any other labor organization,
in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act, or in any other manner interfer-
ing with, restraining, or coercing its employees at its Yakima, Wash-
ington, store in the exercise of their right to self-organization, to form
labor organizations, to join or assist Retail Clerks International .sso-
ciation, Local Union No. 631, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection; or to refrain
fr;orn. any, or all such activities except to the extent that such a 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.
(b) Discouraging membership in Retail Clerks International Asso-
ciation, Local Union. No. 631, AFL-CIO, or in any other labor or-
ganization of its employees, by discharging any of its employees at
its Yakima, Washington, store because of their union membership,
sympathies, activities, or organizational efforts, or in any other manner
discriminating in regard to their hire or tenure of employment or
any term or condition thereof.
(c) Refusing to bargain with Retail Clerks International Associa-
tion, Local Union No. 631, AFL-CIO, as the exclusive representative
of all sales and nonsales employees employed by the Respondent at
its Yakima, Washington, store, including janitorial employees but
excluding office clerical employees, guards and/or watchmen, and
supervisors as defined in the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Retail Clerks Inter-
national Association, Local Union No. 631, AFL-CIO, as the exclu-
sive representative of all its employees at the Yakima, Washington,
store within the unit heretofore found appropriate, with respect to
rates of pay, wages, hours of employment, and other terms and con-
ditions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
MILLER MERCANTILE COMPANY, INC. 837
(b) Offer James Frisque immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges previously enjoyed, and make
whole said Frisque for any loss he may have suffered as a result of the
discrimination by. payment to him of a sum of money equal to that
which he would have earned in the Respondent's employ between
August 13, 1956, the date of his discriminatory discharge, and the
date of the Respondent's offer of reinstatement, less his net earnings
elsewhere in said period of time, computed in the customary manner.'
(c) Upon request, make available to the Board and its agents for
examination and reproduction all payroll records and other data
necessary to analyze and compute back pay and reinstatement rights
required by the order.
(d) Post at its store at Yakima, Washington, copies of the notice
attached to the Intermediate Report marked "Appendix." I Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region of the Board (Seattle, Washington), shall, after having
been duly signed by the Respondent or its representative, be posted
by the Respondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days, thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order what steps
the Respondent has taken to comply herewith.
4 F. TV. Woolworth Company, 90 NLRB 289.
5 This notice , however , shall be, and hereby is , amended by striking from the first
paragraph thereof the words "The Recommendations of The Trial Examiner " and substitute
in lieu thereof the words "A Decision and Order ." In the event that this Order is enforced
by decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree by the United States
Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On August 24 and September 5, 1956, Retail Clerks International Association,
Local Union No. 631, AFL-CIO, herein called the Union, filed separate charges
against the Respondent , Miller Mercantile Company, Inc.' On the basis of these
charges, a consolidated complaint was duly issued on November 29, 1956, by the
Regional Director for the Nineteenth Region of the National Labor Relations Board
(herein called the Board) on behalf of the General Counsel of the Board, alleging
violations of Section 8 (a) (1), (3 ), and (5) of the Labor Management Relations
Act of 1947, 61 Stat . 136, herein called the Act.
In substance the complaint alleges that the Respondent by certain acts and words
(including surveillance and a unilateral wage increase after the date of the Union's
request to bargain ), interfered with, restrained , and coerced its employees on July 23
and 24, 1956; that on August 13, 1956, it discharged its employee , James F. Frisque,
1 The first charge named the Respondent as Miller 's Department Store. The Respondent
was duly served with a copy of this charge and did not object to the misnomer . The defect
is therefore waived.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter refused to reinstate him, and caused Lloyd-Friesen Company to refrain
from hiring said Frisque in premises leased by said Company from the Respondent,
because of Frisque's membership in, and activities on behalf of, the Union; and
that the Respondent refused to bargain collectively with the Union as the exclusive
representative of the Respondent's employees in an appropriate unit although the
Union was, on July 20 and still is, the majority representative, and although the
Union on about July 20, 1956, requested the Respondent to bargain collectively.
The Respondent's answer, dated December 8, 1956, denies that it is an employer
within the meaning of the Act, denies that it is engaged in commerce within the
meaning of the Act, denies that the unit (alleged in the complaint ) is an appropriate
one, and denies the several alleged unfair labor practices. The answer does not deny
the Union's majority or request to bargain.2
On December 17, 1956, the Respondent filed an amended answer to complaint
(rather than an amendment to the answer) in which it sets forth certain facts
concerning the extent of its business and cites two Board decisions from which it
deduces that the Board would not assert jurisdiction in the instant case. The
amended answer does not go to the unfair labor practice charges. In legal effect,
the amended answer would be a substitute for the original answer, and as it does
not deny the unfair labor practices, the latter might be taken to be admitted.
However, the Respondent's representative is not a lawyer and may not have intended
to waive the denial of the unfair labor practices. Furthermore, the unfair labor
practice issues were fully litigated. I shall therefore treat the amended answer as
an amendment to the answer.
Pursuant to notice, and following due service of copies of the charges and
complaint, a hearing was held before me at Yakima, Washington, on December 18
and 19, 1956, and at Portland, Oregon, on December 20, 1956. Full opportunity
was afforded to examine and cross-examine witnesses and to introduce evidence
bearing on the issues. At the close of the hearing the General Counsel and the
Respondent requested, and I granted, time in which to file briefs. Briefs were
received from them and have been considered.
From my observation of the witnesses, and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the answer does not deny (therefore it admits), and
I find that the Respondent is an Oregon corporation with its principal office and place
of business in Portland, Oregon, and that it is engaged in operating a chain of retail
stores, either directly or through wholly owned subsidiaries, in the States of
Washington and Oregon, such stores being located in 9 cities in Oregon and 6 cities
in Washington.3
In the course and conduct of its business, the Respondent annually purchases goods
and materials valued in excess of $6,000,000, of which more than 90 percent are
shipped directly to Respondent's stores in Washington and Oregon.4
The net purchases of the six Washington stores for 1955, amounted to
$1,892,298.12, 90 percent of which represented goods shipped directly to the
Washington stores from points outside that State.
Sales for all stores in both States in 1955 amounted to about $7,500,000. Sales
for stores located in the State of Washington only in 1955 amounted to $2,764,501.66..
Purchases for the Yakima store alone, in 1955, amounted to $383,768.50 (of which
amount about 90 percent was shipped to it from points outside the State). Its sales
for the same year amounted to $575,546.92.
On these facts the General Counsel contends that the Board's jurisdictional
standards are met. The Respondent contends that they are not. The General
Counsel and the Respondent rely on the same Board decisions in support of their
contentions.
When the Board adopted new jurisdictional standards in 1954, it outlined its new
jurisdictional standards for retail stores in Hogue and Knott Supermarkets, 110 ,
NLRB 543. It set forth its standards for companies operating (1) a single retail
2 The answer improperly denies the allegations of the charges, which are not pleadings
and require no answer.
3 Oregon : Albany, Eugene, Klamath Falls, McMinnville, Newberg, Portland, Roseburg,
Salem , and Vernonia. Washington : Mount Vernon, Everett, Olympia, Port Angeles,
Wenatchee, and Yakima.
4 This finding is based on the undenied allegation of the complaint.
MILLER MERCANTILE COMPANY, INC . 839
store or service establishment ; ( 2) intrastate chains of retail stores or service estab-
lishments ; and (3 ) multistate chains of retail stores or service establishments. The-
Board announced its intention to assert jurisdiction of a company operating a single
retail store or service establishment only where that store
(1) has made annual purchases directly from out-of -State of at least
$1,000,000 in value ( direct inflow), or
(2) has made annual purchases indirectly from out -of-State of at least
$2,000,000 in value ( indirect inflow), or
(3) has made annual sales directly out-of-State of at least $ 100,000 in value
(direct outflow);
to continue to assert its jurisdiction over intrastate chains on the basis of totaling
direct inflow , indirect inflow, or direct outflow of all stores in the chain and
If the totals satisfy any one of these standards , we will assert jurisdiction over
the entire chain or over any store or group or stores in it as in the past;
and to assert jurisdiction over multistate chains of retail stores or service establish -
ments
if the annual gross sales of all stores or establishments in the chain amount to
at least $10 ,000,000. Otherwise we will assert jurisdiction only over those
individual stores or establishments comprising integral parts of the chain which
independently satisfy the inflow or outflow standards set forth above.
The last sentence in the quotation could have occasioned some doubt because the
Board did not specifically state that it would assert jurisdiction in a case involving
one or more stores in one State in a multistate chain where all the stores in that
one State meet the jurisdictional test for an intrastate chain as well as in a case in-
volving an individual store in such multistate chain which meets the test for as-
serting jurisdiction over a company operating a single retail store. However, in
Greenberg Mercantile Corporation, 112 NLRB 710, any confusion that might have
existed was dispelled , because there the case involved a unit of employees at a
single store in a multistate chain, but the Board totaled the direct inflow for all stores
in the same State in which that one store was located and found that the direct inflow
exceeded the jurisdictional requirements for intrastate retail enterprises and asserted
jurisdiction on that basis 5 The Respondent , as well as the General Counsel , relies
on the Greenberg decision, but it fails in its brief to point to any ambiguity or to
explain how that case supports its contention . The only explanation I can find is
that Respondent assumes that it comes under the indirect inflow test only. But
under the intrastate chain standard , if goods of a value of $1 ,000,000 or more are
shipped to all stores directly from points out of State, the value of goods received in-
directly from out of State need not be considered . It is only when the standard of
direct inflow or outflow is not met that the $2,000,000 standard for indirect inflow
(or a combination of direct and indirect inflow ) needs to be considered. In the
case at hand , the stores in Washington purchase a substantial part of their mer-
chandise from Millers Bros. Company , a wholesale business , apparently related
to the Respondent through its officers. The Respondent may be confusing direct
and indirect inflow under the Board 's standards with direct or indirect delivery of
merchandise to the Washington stores from the manufacturer located in another
State. It is true that merchandise comes to the Respondent 's stores indirectly from
the manufacturers by way of Miller Bros. Company . However, the goods shipped
to the Washington stores by Miller Bros. Company come from Portland , Oregon.
Under the Board 's standards , this is still direct inflow . For the Respondent's stores
located in Oregon, goods supplied by Miller Bros. Company might be deemed to
be indirect inflow, but as the shipments made by Miller Bros. Company to the
Washington stores cross the State line and do not go through the hands of other
wholesalers or suppliers before reaching the Washington stores, they are to be in-
cluded within the Board 's direct inflow standard.
Because the Board has made it plain that it will assert jurisdiction over a single
store of a multistate chain on the basis of direct inflow to all stores of the chain
located in the same State ( the intrastate chain standard ) even though the inflow or
outflow from the one store alone would be insufficient to meet the Board 's announced
jurisdictional standards , I find that such standards are met in this case, as the direct
inflow to all the Washington stores exceeds $ 1,000,000.
Consequently, I find that the Board has jurisdiction and that it will effectuate the
policies of the Act to assert jurisdiction.
6 A similar case is B. G. Wholesale, Incorporated , 114 NLRB 1429.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the Respondent's answer denies that it is an employer within the mean-
ing of Section 2 (2) of the Act, the evidence amply shows that the Respondent has
employees (whom it pays on a monthly basis) at all its stores, including the one here
involved. I find that the Respondent is an employer within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , Local Union No. 631 , AFL-CIO, herein
called the Union , is a labor organization within the meaning of the Act.6
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
(1) Organizational history
In the first half of June 1956, Paul Rickman, secretary-treasurer of the Union,
went to the Respondent's Yakima store, hereinafter called the Store, made the
acquaintance of James Frisque, a salesman in the men's wear department, and
thereafter interested Frisque in a possible organization of employees at the Store.
Frisque got a couple of other employees interested and the three met with Rickman.
At this meeting, they decided that Rickman would be invited to speak at the next
employees' get-together. The employees had what was called a party once a month,
and the next one, in mid-June, was held at the Corral, a cafe, bar, and dance hall.
About 16 of the employees attended and, after hearing Rickman and discussing the
matter they took a vote on whether to continue or drop the idea of organizing.
The vote was unanimously in favor of continuing and to present the matter to the
rest of the employees. Thereafter meetings were set up for every Tuesday night at
the Donnelly Hotel. At a meeting on July 3, •1956, about 14 employees signed ap-
plications for union membership and authorization cards. More signed at the
meetings of July 10 and 17. By the latter date, the Union had a majority, and on
July 23 the Union delivered a letter requesting bargaining negotiations. On the
same day, Rickman, accompanied by a man from the Central Labor Council,
called on Earl Lee, manager of the Store, and offered to prove the Union's majority
by a card check. Lee referred Rickman to the Respondent's Portland office.
(2) Questioning employees
At about 4:30 on that afternoon, after Rickman had left, Lee went around the
Store and began asking employees if they belonged to the Union. He began by
questioning his assistant manager and his office manager, both of whom answered
negatively. Then he questioned 15 salesclerks, of whom all but 2 answered nega-
tively although in fact all but 2 of the clerks questioned had signed union authoriza-
tions. Lee wrote 17 names, those questioned, on the back of Rickman's letter with
the answers given. He testified that that was all he had time to question that
afternoon.
Some of those questioned he called into his office. Among these were salesclerks
Nellie Baker, Leona Wiles, and Margaret Schwinkendorf. He called Baker to
his office from her station on the second floor and asked her if she had been con-
tacted about union activities and said that if she had not signed anything it would
be best not to. Wiles, who was on vacation on July 23, went to the hair dressing de-
partment at the Store and, on leaving, she encountered Lee, who asked her to come
into his office. There he asked her if she had signed a card for the Union, and she
answered "No" although she had. Lee said if she had signed it would not make
any difference, that, with the wages, bonus, and insurance that they were being paid,
the employees were getting as much as union rates. When Lee questioned Schwin-
kendorf, he asked if anyone in the Store had contacted her about the Union.
Schwinkendorf answered negatively although she had signed an authorization card.
Lee then told her in effect to be careful what she did because whatever gain she
got in wages by joining the Union would be offset by dues and initiation fee. Lee
questioned Ila Hedrick, a salesclerk, at her station, and asked if she had signed a
union card. She answered that she had. He then asked her what benefit she ex-
pected to get. After she told him, he said that there probably would be an election
and the employees could still vote against the Union if they desired.
0 The Respondent's answer fails to admit or deny this allegation of the complaint. I
therefore take it to be admitted.
MILLER MERCANTILE COMPANY, INC. 841
On the morning of August 18, before the Store opened, Lee read a speech to the
employees , the first part of which dealt with sales and store business . Then he
continued:
Another matter I would like to bring up, is the past month or so. We have
had a different feeling among Employees , where in the past, we have all been
as one friendly family, and I think you all know what we mean.
Our Company likes each one of you , that is the reason we hired you, the
reason we keep you on the Payroll . We want you to be happy, enjoy your
work and we hope you like the things we try to do for you, such as your In-
surance, suitable working hours , time off when needed and you all know the
Manager's door is always open for any suggestions for the good of the store
Employees and we are sorry to advise you that as long as you work for Miller's
Store, we don 't believe any one is going to pay your salary other than Miller's.
We, as a Company feel this is a free Country , and if any one is not happy
here or is dissatisfied and thinks they can do better else where , it would not be
our policy to keep you from taking a position where you would do better.
Trusting we can have your confidence and respect in all future relationships.
After finishing his speech Lee handed to employees copies of the following letter
and questionnaire:
To Our Employees:
A Mr. Paul Rickman, Secretary of the Local Retail Clerks Union, addressed
a letter to us stating that the majority of our employees had become members
of the union and that he desired a meeting for the purpose of verifying bargaining
cards and entering into collective bargaining on behalf of the employees of this
store.
In order that I may report to the Portland office , a questionnaire has been
prepared for you to fill out and drop in a questionnaire box which will be
passed amongst you.
It is not the desire of myself or of the firm to participate in any labor
dispute or to create any act that could cause a labor dispute.
The questionnaire does not require your signature , but you may sign same if
you care to . It is information that I believe is only fair that it should be
transitted [ sic] to the Portland office for their council and advice.
Your cooperation will be appreciated.
Very truly yours,
(Signed) EFL.
EARL F. LEE,
Manager-Miller's.
QUESTIONNAIRE
1. Do you desire to be represented in collective bargaining by a union?
Yes ------ No ------
2. Do you find the working conditions at this store Fair ------ Favor-
able ------ Sub-standard ------
3. Have you authorized any union to represent you in collective bargaining?
Yes ------ No ------
4. Do you know if the majority of department stores of a similar nature
to Miller's, Yakima, are under a union agreement ? Yes ------
No ------
5. Do you enjoy working under the present conditions and personnel
policies of this store? Yes ------ No ------
Signature ------------------------------------
(Optional)
NOTE: Please check your view of this questionnaire and turn in to office
when questionnaire box is passed amongst you.
Use this space for any suggestions you may wish to offer:
One employee telephoned to Rickman for advice as to whether or not to fill out
the questionnaire . He advised that the employees not fill them out, because , unless
they signed them, it would be possible to substitute falsely answered questionnaires
to show that the Union did not have a majority.
At the time of Lee's speech on August 18, according to several employees, all
but a few employees there were wearing union buttons. I make no finding that
Lee necessarily saw these because unless he was already familiar with the appearance
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,of the union button, he might not have recognized it unless he was within reading
distance from one. This was not shown to be a fact.
Although I find nothing in Lee's statements of fact to employees to be coercive,
.the questioning of employees about their membership, signing of authorization
cards, and what benefit they expected to get out of the Union stands on a different
footing. The fact that questioning was not casual but was intended to be a complete
and businesslike interrogation of all employees, so far as time permitted, and the
fact that Lee did not limit himself to a mere question about authorization cards
from which he might ascertain the truth of the Union's claim to majority repre-
sentation, taken together with evidence of other unfair labor practices as hereinafter
related, lead to the conclusion that such questioning was designed to learn the
identity of union proponents and was of a character tending to interfere with,
restrain, and coerce the employees in the exercise of the rights guaranteed in Section 7
.of the Act. The use of the questionnaire, coming after a period in which the
Respondent obviously was putting the Union off, not because of doubt as to majority
but because it did not wish to be the first store in Yakima to be under union contract,
-conduct tantamount to a refusal to bargain, likewise had no justifiable purpose and
constituted interference, restraint, and coercion.7
(3) The alleged threat to discontinue the Christmas bonus
On about July 26 Lee called Employee Audrey Sipes into his office. There he
told her that he was going to give a few of the girls a raise and that she would
.get a raise of $5 per month. Lee had a copy of the 1953-54 union contract for the
Respondent's Olympia store on his desk. In it he showed Sipes that the contract
called for $1.11 to $1.17 an hour, and then he told Sipes that the employees at the
Yakima store were better off with their Christmas bonus and discount on purchases
than were the employees at the Olympia store. Sipes asked if the employees at
-Olympia did not get a Christmas bonus. Lee answered, "No," and Sipes asked
if they had received one before they had their contract. Lee answered, "No," again.
Sipes noticed the date on the contract and asked Lee if the wage rates would
not currently be different. She was not asked about Lee's reply.
The first part of Lee's conversation with Sipes suggests that Lee was giving Sipes
to believe that, if the employees at the Store were represented by a union and got
a collective-bargaining contract, they would lose their Christmas bonus, but his state-
ment loses any coercive appearance with Lee's second answer of "No." I find that Lee
made no threat to deprive employees of their Christmas bonus if the employees got a
union contract.
(4) The general wage increase
The paychecks issued early in August for work done in July included an increase
for 35 (or about 81 percent) of a total of 43 employees in all departments (excluding
only Lee) of the Store in amounts of $5, $10, or $15 a month. Part-time, extra, and
:hourly-paid employees were not included in the increase. This was the first general
increase at the Store in 2 or 3 years, although some individual increases had been
.given. Although Lee could give individual increases, a general increase required
approval of the Millers. Lee testified that the general increase was approved by
them in June. Lee testified that about 8 or 10 employees asked him "toward the
first of June" when they might be getting a raise. He presumably gave no definite
answer because the general increase was not announced in advance. Lee testified,
"We don't tell the employees when we are giving them a raise generally." The last
word of the quotation is ambiguous. It could mean "usually" or it could refer to
giving a general increase. In view of Sipes' testimony that Lee told her on July 26
that she would be receiving an increase, I am inclined to construe Lee's answer
-to mean that it was not the practice of the Respondent to give advance notice of
general wage increases.
At one point Lee testified that the increase had been "talked over" in "our board
meeting" in the first of June, but when it appeared that no minutes were in existence
which would show a decision to grant a wage increase, he testified that it was not
a practice to make records of such matters. "We generally talk between ourselves
down there, two or three in the office . outside of the meeting." I infer that he
meant the two Millers and himself. (Lee is the treasurer of the Respondent.)
Franklin Miller testified that he and Floyd Miller, after a discussion with Lee, made
the suggestion for the general wage increase, that Lee then went over his payroll and
:made notations of increases which he showed to the Millers, and the Millers approved
7 See it. L. Gilbert Company , 110 NLRB 2067.
MILLER MERCANTILE COMPANY, INC. 843
them . Although Franklin Miller's testimony regarding the increase was not as
clear as it might have been, he testified that the raises which Lee showed him
were indicated on a payroll being prepared by Lee for the bookkeeper. This would
identify the payroll which Miller saw as the July payroll, which would be mailed
to the Portland office on the last day of July or first of August. Lee's copy of the
June payroll (which is not in evidence) bore marginal notes of increases made by
Lee, and it is probable that he used his copy of that payroll as a working sheet
when making up his July payroll.8
Although the general increase was made effective as of the first of July (that
.is, it was for July work that the increased rate was paid), three regular employees
were not included in the increase. One was Doris Martin, an office clerk, who left the
Respondent's employ at the end of July. Another was James Frisque, whose ter-
mination on August 13 is hereinafter related. The third, Peggy Young, had just
entered the Respondent's employ in June. Miller testified that after Lee made up
the list of increases no changes were made in it. The suggestion from this evidence is
that increases were withheld from the first two named employees because Lee knew,
at the time he prepared the list of increases, that they would not be continuing
in the Respondent's employ. From all the evidence, I find reason to doubt Lee's
testimony that the general wage increase was a decided matter in early June. The
preponderance of the evidence leads me to the conclusion that it was not a decided
matter until after the Respondent learned of the organization of the employees
sometime in.July.
In view of the Respondent 's concern over poor profits and its letter to managers
,dated August 2 urging economies, sent out at the very time when it was paying the
increased rates at the Yakima store for the first time, the conclusion is justified that the
motivation for the general increase was stronger than the desire for economies. A
Respondent 's exhibit in evidence shows the relative number of increases given at
the other stores of the Respondent.9 In no other instance had so great a percentage
,(81 percent given at the Yakima store ) of increases been given in any one month
,of 1956 as at the Yakima store. Up to July, the only stores at which increases were
.given to more than 70 percent of the employees in any one month were stores where
the employees were represented by a union. In the light of all the evidence, including
that of the Respondent's refusal to bargain with the Union, I conclude that the
general increase was motivated by the Respondent 's desire to discourage the em-
ployees in their efforts to get union representation . Thus, the giving of such increase
at the time the Respondent chose to give it constituted interference , restraint, and
coercion of employees in the exercise of the rights guaranteed in Section 7 of the
Act.lo
(5) Surveillance
At 8 p. m., Tuesday, July 24, the employees were to have a regular union meeting
at the Donnelly Hotel. At about 10 minutes before 8, some of the employees
arriving at the Donnelly Hotel observed that Manager Lee and his wife were sitting
in a car parked in front of one of the entrances to the hotel , that leading to the
,elevators. A little later two of the employees who were about to enter the hotel
noticed Lee parked there, and, being reluctant to enter in front of Lee, walked on
'down the street to a point near a motion picture theater where they encountered
Frisque, who had previously been elected shop steward, coming from the opposite
direction. The girls told Frisque about Lee's being parked in front of the hotel.
Frisque suggested that if they were embarrassed they could go in the back way and
that he would go to talk with Lee. As a consequence, Frisque did go to Lee's car and
after greeting him asked in a jocular vein if Lee was trying to scare the girls away.
Frisque got into the back seat of Lee's car and had a conversation with him for
about 5 minutes. Lee did not remember very much of this conversation, but Frisque
9 The Respondent's representative at the hearing apparently assumed that the marginal
notes on the June payroll established that they were made in May or June. This, of course,
does not follow, since the June payroll would not have been prepared in final form until the
last day of June or first of July. It appears likely, therefore, that Lee made the marginal
notes in July. He was not asked when he made them.
9The figures on this exhibit (especially the percentages) cannot be taken to be completely
accurate. Other errors may also have been made, for the exhibit shows that 34 of 48 em-
ployees at the Yakima store were given increases. But other and more reliable evidence
shows that the total number of employees was 43 instead of 48. This changes the per-
-centage computation shown on the exhibit.
's Herald Publishing Company of Bellflower, 114 NLRB 71 ; Milham Products Company,
Inc., 114 NLRB 1441 ; Pyne Moulding Corporation, 110 NLRB 1700.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his testimony related it in some detail, and I find his account to be reasonably
accurate. According.to this account, after Frisque had made his original remark,
Lee said he just wanted to see how many employees were attending the meetings,
and he asked Frisque what he had done to "deserve this treatment." Frisque told
Lee that it was nothing that Lee had done. Frisque said that Lee belonged to the
Chamber of Commerce and the Retail Credit, "everything to benefit your end of
the business, and now the Retail Clerks have their own organization and we feel
that we are entitled to join it." Lee said, "Well, it's a union," and Frisque said, "Yes,
it's a union, and, I also think that most of the stores in Yakima will have union
clerks." Lee said that he did not want to be the first one. Frisque said that he had
been reading an article in a business magazine which stated that, with the coming
inflation, the group that would be hurt the most would be the unorganized retail
clerks and the unorganized white-collar workers, and that he felt that this was
their opportunity to protect themselves. Lee asked whether or not Frisque 'belonged
and Frisque replied that he did, saying, "We have all joined, and if you will come
up to the meeting we would be very glad to have you sit in with us." During the
conversation, employees continued to arrive at the Donnelly Hotel. Lee testified
that he did not notice the employees that went in but that he did see Rickman as he
entered. When Frisque got out of the car to go up to the meeting, Lee moved his
car out of the parking space. According to Frisque, Lee had said that he was going
home, but Lee testified that he drove to the next block north, parked again, and
crossed the street to go to the Store for the purpose of checking some mail.
Lee testified that he parked where he did in the first place because he was on
his way to the Store to check accumulated mail and that he had parked in front
of the Donnelly Hotel because that was the first open place that he saw and that
he later moved to the next block, closer to the Store, partly, because of the meeting
and partly to see whether or not he could find a closer parking place.
Because of the relative locations of the hotel and the Store, I find it difficult
to believe that Lee parked in front of the hotel expecting to go to the Store. The
Store is at the northwest corner of Yakima Avenue and Second Street. The hotel is
close to the northeast corner of Second and Chestnut, one block south of the Store and
on the opposite side of the street. Miller had approached the area from Chestnut
Street, going in an easterly direction. Normally when a driver has a known objective
he tries to find a parking place on the same side of the street as that objective. If Lee
had done this he would have turned off Chestnut Street a block earlier than Second
Street, would have gone north past Yakima Avenue (the main street) to the next
street, turned east one block and come back on Second Street in a southerly direc-
tion toward Yakima Avenue, continuing on until he found an open parking place.
Thus, he would have been able to park on the west side of Second Street closer
to the Store than the point where he had been parked. The buildings on the east
side of Second Street appeared much more likely to catch early evening parking
than the west side because of the fact that, in the block on Second Street south of
Yakima, both the hotel and an adjoining moving picture house would attract the
parking of cars. In the block on Second Street north of Yakima on the east side
of the street, the Percolator, a restaurant, attracted a good deal of parking early
in the evening until the diners left there in the neighborhood of 8 o'clock. But
even so, Lee testified that it was easier to find parking spaces north of the Percolator
than it was in front of the Donnelly Hotel. The Percolator is in the same block
as the Store and a parking space even north of the Percolator would have been
closer to the Store entrance used by Lee than would the Donnelly Hotel parking
space. According to Lee, when he did move his car he found a parking place
in front of the Percolator restaurant diagonally across the street from the Store.
According to Lee, he had been parked in front of the Donnelly Hotel only 2 or 3
minutes before Frisque came to speak with him. There was testimony which placed
him there as much as 5 minutes before Frisque came to speak with Lee. However,
even if Lee's estimate of time were accurate and if Lee had parked in front of
the hotel with the object of going to the Store to check his mail, he would not
have required 2 or 3 minutes to get out of the car, and start toward the Store.
I would estimate a half minute to be ample time for such purpose. On all the
evidence, including Frisque's testimony of his conversation with Lee, according
to which Lee admitted he came to see how many were attending "these meetings,"
I find that Lee parked in front of the Donnelly Hotel on the night of July 24 with
the object of watching the employees go to the union meeting. I do not credit
Lee's testimony that he did not know or have reason to believe that the meeting
was a union meeting or that he did not see employees enter the hotel.
MILLER MERCANTILE COMPANY, INC. 845
B. The termination of James Frisque
James Frisque was employed by the Respondent at the Yakima store on June 1,
1954, as a salesman in department 13, men's wear. In addition to his selling duties,
Frisque did some of the buying, marked merchandise, and put it on display.
Although one other salesman, Thomas Layfield, did some of the buying, most of
it was done by Frisque and Manager Lee, but all orders were subject to Lee's
approval.
As previously stated, Frisque became interested in the Union in the early part
of June, and at a meeting in the first part of July he was elected shop steward
and it was customary for him to preside at the union meetings.
On the Saturday following the meeting of July 24 at the Donnelly Hotel, the
one before which he had conversed with Lee about the Union, Frisque started a
2-week vacation. When he returned on Monday, August 13, Lee asked him to
come into his office. There Lee handed him a mimeographed letter dated August 2,
addressed to all managers, and signed by F. E. Miller. This letter notified the
managers that profits for the first 6 months of 1956 were disappointing. It
urged economies and suggested various ways in which economies could be effected
and profits increased. One of these suggestions was, "It may be necessary to do
less business and use less help. We can't have people in our employ today who
are not producing. No doubt you could double up a little in one or two places
so each girl could sell a little more." Another was a suggestion for increasing
prices. After Frisque had read the memo, Lee asked him for suggestions. Frisque
said that maybe they could raise prices on some of the items and get a better
profit. Lee said, according to Frisque, "I have another idea. I have decided that
Mr. Merritt [assistant manager] and I will take over your department .and do away
with your position." According to Lee, when Frisque, commenting about the
memo, said that he would raise prices, Lee said, "Well, we have competition so
we have to watch that too." Lee denied that he said he had a better suggestion.
He said that he told Frisque, "We had come to the conclusion that we was
going to have to cut down on some of our expense and we had decided that we
was going to eliminate his position, and Mr. Merritt and I were going to try to
spend a little more time over there."
Frisque picked up his paycheck and left. Later he received a check for 1 week's
termination pay.
The shoe department of the Store is under lease to another company, Lloyd-
Friesen Shoe Company. The manager of that department, an employee of Lloyd-
Friesen, was Clay Carter. On about September 1, 1956, Frisque encountered
Carter in a coffeeshop. Carter asked Frisque why he was let out and Frisque
told him a reduction in force. Carter said that he needed a man and asked Frisque
if he wanted to sell shoes. Frisque gave an indefinite reply, but a week or so
later he saw Carter in the same coffeeshop and asked if the job was still open.
Carter said that it was, and Frisque said that he would like the job. Carter indicated
that he was agreeable to this.il Frisque suggested that Carter check with Lee first
before hiring him. Carter asked why he should since he did his own hiring
and firing, and Frisque merely said that he thought Carter should do so.
Frisque did not hear from Carter for about a week. Then as Frisque passed the
Store he stopped and spoke with Carter, and Carter said that Lee had told him he
would rather that Carter did not hire Frisque. As a consequence Frisque did not
get the job. Lee did not corroborate the exact language used by Carter. Ac-
cording to his testimony he had told Carter that he should consult Friesen before
hiring Frisque. Carter did his own hiring and firing and Lee could give no satis-
factory explanation as to why Carter should talk to Friesen about Frisque. I find
that Lee told Carter substantially what Carter testified he said. Furthermore the
Respondent stipulated that it did not want Frisque hired by the shoestore, although
it did not include its reason in the stipulation. The concessionaire was obligated
not to hire anyone who was disapproved of by the Respondent, but Lee had only
once previously deterred Carter from hiring an employee, and that was when the
Respondent questioned the honesty of the person Carter was going to hire.
Frisque was never rehired by the Respondent, even when it began taking on
additional regular and extra help for the fall and Christmas-rush business. Lee
testified that he did not do so because Frisque did not apply. In view of Lee's
11 Carter testified that his company did not offer jobs, but discussed the situation.
Apparently it would have been necessary for Frisque to fill out an application blank before
he could be hired by Lloyd-Friesen.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attitude expressed to Carter, and the stipulation, I find that Lee would not have
rehired Frisque even if he had applied.
Manager Lee testified to no serious faults that he had found with Frisque's work.
He testified that he terminated Frisque for economic reasons and he gave no reason
for Frisque's termination other than that. The only criticism of Frisque which he-
testified to was that one of the Millers had commented that Frisque was overstocked.
This is a criticism which I find should rest as much on Lee as on Frisque, since it
was Lee who had to approve all purchase orders and the amount of them. A
store of 40 employees is not so large that the manager is unable to keep personally
informed as to the stock in each department. Furthermore Lee authorized pur-
chases in the men's department for July 1956 in the amount of $5,123, which
appears to be an unusually large purchase authorization in view of the current
inventory and the amount of sales. The reason for such a large order is not shown,
but presumably Lee knew what he was doing.
In December 1955 Lee received from a clothing manufacturer a letter com-
mending Frisque's work and enclosing a wristwatch to be delivered to Frisque if Lee
approved. Lee delivered the watch and a copy of the letter to Frisque with a re-
mark about keeping up the good work. In June 1956 when Lee handed Frisque the
customary weekly comparison slip (a slip on which the total sales of the depart-
ment for the week were compared with the same week of the year previous), Lee
remarked that "Finally this department is doing what it is supposed to do." The
comparison slip for the last week in June indicated that there had been a rise in
sales over the same period of the previous year of almost a thousand dollars for
the department. According to Frisque, his department had exceeded its sales for
the like period of the year before in each of the months he had been there. Sale&
for his department in the first half of 1956 showed the most substantial increase,
dollar-wise, of any of the departments. Although the evidence does not establish
that this increase was attributable to Frisque any more than others in the depart-
ment, at least it would indicate that there was no cause for criticizing him.
Franklin Miller testified that from the first time he saw Frisque in the summer
of 1954 his impression of him was poor and he told Lee that he thought he would
not be happy with Frisque. However, he apparently left the matter of employment,
just as he left the matter of correction or discipline of employees, in Lee's hands
and for 2 years he did not require Lee to discharge Frisque. But Miller testified
that the decision to discharge Frisque in August 1956 was "as largely mine and
Mr. Floyd Miller's as anybody's" and that the largest part of the reason therefor
was economy. Aside from that, Miller testified, Frisque "wasn't doing the job and
he was just a square peg in a round hole." Miller did not know, however, if
Frisque was doing better or worse than other salespeople.
Miller belittled the increased sales of the men's department (department 13)
which, for the first 7 months of 1956 were more than $5,000 higher than in 1955,
an increase of about 20 percent, pointing out that the inventory of that department
was up $6,000 in the same period and that the sales increase should be 3 times the
increase in inventory. If such standard was the desired goal, however, I notice
that only 2 of the departments showed a proportionate increase in sales over inven-
tory, and I notice that in 1 department (Coats, department 9) the inventory increase
in comparison with the year before was nearly 100 percent, but sales of that de-
partment were several hundred dollars lower than in the 1955 period. Of those
departments which had an inventory increase over the same period of the year
before (15 out of a total of 21 departments) only the boys' department (department
15) and the umbrella department (department 30) increased sales three times or
more over the increase in inventory. Of the 15 departments which showed an in-
crease in inventory, 8 showed an actual decrease in sales. The men's department
was not, therefore, necessarily the most logical department in which to effect
economies.
The letter of August 2 about effecting economies was issued at almost the identical
time that a general wage increase was reflected in the paychecks. If the Re-
spondent knew, as it must have,12 before August 2 that it was going to issue that
letter, it could have effected economies by holding up the wage increase, since only
one employee had been told she would get an increase, but the Respondent did not
see fit to do this.
No one but Frisque was terminated at the Store in the Respondent's attempt to
effect economies. Lee explained that Frisque was a natural selection because he
'a Profits for the first 6 months of 1956 should have been known well before August 1 and
the subject matter of the letter gives evidence of deliberation requiring time.
MILLER MERCANTILE COMPANY, INC. 847'
was the youngest man on the staff in point of seniority. However, it should be
observed that, aside from the assistant manager, Frisque and Thomas Layfield were
the only male salesclerks; the rest, some 31 or 32, were female salesclerks, 1 of
whom had been hired as recently as June 11, 1956; so Frisque was not the em-
ployee with the least seniority.
Lee testified that he terminated Frisque because of the letter from the Portland
office about the need for economies, but this letter was dated August 2. This would
place the decision to discharge Frisque as after that date, but Miller testified that the
decision to terminate Frisque was made before Frisque left on his vacation. This
would place the decision to terminate him as before July 28. No explanation was
forthcoming as to why, if the decision had been made that early, Frisque was not
terminated at the beginning of his vacation rather than at the end of it so that he
would have had more time to seek other employment. Miller testified that he did
not know of Frisque's union activities until some time after his termination when
the Union sent him a telegram saying that the Respondent had discharged the
Union's shop steward. Apparently Miller equated "union activities" with activities
in an organized union, rather than activities in organizing a union, because he
acknowledged the fact that, within a few days after the occurrence, Lee had in-
formed him of his conversation with Frisque in front of the Donnelly Hotel on the
night of July 24.
Aside from the implausibility of the reason given by the Respondent for termi-
nating Frisque, cogent evidence is found for concluding that the Respondent was
motivated by some reason other than economy. If Frisque had been laid off only
for economic reasons, Lee would have had no cause for interfering with Frisque's
employment in the shoe department by Carter. The fact that he did stop Carter
from hiring Frisque is evidence that Lee objected to Frisque because of something
he knew about him which he believed would make Frisque an undesirable em-
ployee from the Respondent's point of view. But the Respondent made no effort
to explain what this was. In the absence of any explanation by the Respondent,
I can only conclude that the reason was the one which is most obvious-Frisque's
outspoken support of the Union and the fact that he was shop steward for the
Union, information which the Union conveyed to the Respondent after Frisque's
discharge. Although I find that the sum of the evidence sufficiently establishes a
discriminatory discharge without the evidence of the Respondent's interference with
Frisque's subsequent employment in the shoe department, the latter evidence re-
moves any possibility of doubt which even the most cautious minded might
entertain.
I conclude and find, therefore, that the Respondent discharged James Frisque
on August 13, 1956, because of his union membership, sympathies, activities, and
organizational efforts, thereby discriminating in regard to his hire and tenure of
employment and discouraging membership in the Union.
C. Refusal to bargain
(1) The appropriate unit
The complaint alleges that the unit appropriate for the purposes of collective bar-
gaining is:
All sales and nonsales employees employed by Respondent at its Yakima,
Washington, store including janitorial employees but excluding office clerical
employees, guards and/or watchmen and supervisors as defined in the Act,
as amended.
The Respondent's answer "denies that the unit is now and at all times an appropriate
unit within the meaning of Section 9 (b)" of the Act. The Respondent offered no
explanation as to why it considered the unit inappropriate or as to what employees
should be included or excluded from an appropriate unit. It is impossible to deter-
mine with certainty therefore whether or not the Respondent is taking issue with the
inclusion of janitorial employees and elevator operators, whether it is taking issue
with the exclusion of office employees, or whether it is taking issue with a unit of
employees of a single employer. It is not unusual to find janitorial employees and
elevator operators in the same unit with department store salesclerks, and decisions
are to be found in which the Board has either included or excluded office employees
from units of department store employees.13
13 Excluded in Robertson Brothers Department Store, Inc., 95 NLRB 271 : Herbert den's
Shops Corporation , 94 NLRB 842 ; included in Marin County Employers' Council , 87 NLRB.
296, and other cases.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the Respondent's letter to the Central Labor Council, in which it stated that
. . it is our opinion that any such meeting as you have requested is one that should
be called for all employers in the City of Yakima who are engaged in the mercantile
industry and not directed exclusively to our store at Yakima," it may be inferred
that the Respondent's chief objection to the unit is based on a contention that it
should be a multiemployer unit rather than a single employer unit. Such evidence
as there is in the record indicates that the stores of other employers are unorganized,
there is no indication that such employers are associated together for the purpose
of collective bargaining, and more important, there is no evidence that the employees
of other employers in Yakima desire to be represented by a single bargaining agent.
Under the circumstances, I find no basis for the Respondent's inferred contention
that a multiemployer unit would be appropriate; in fact, such a unit would be
inappropriate, 14
Since the unit claimed by the Union to be appropriate is an appropriate unit, I find
that a unit composed of all sales and nonsales employees employed by the Respondent
at its Yakima, Washington, store including janitorial employees, but excluding office
clerical employees, guards, and/or watchmen and supervisors as defined in the Act,
constitutes an appropriate unit within the meaning of Section 9 (b) of the Act.
(2) The Union's majority in the appropriate unit
On July 23, 1956, when the Union served upon the Respondent its request to
bargain, the Union held authorization cards signed by 30 of the Respondent's em-
ployees at the Store. One of these was signed by an office employee, Ila Adler, and
will not be counted. In June or sometime in July, Muriel Maring was transferred
from the sales force to the office in place of an office employee whose last month of
service was July. In view of the uncertainty of Maring's location on July 23, I shall
not count her card. The remaining cards are all conceded to be valid authorization
cards signed by employees then in the employ of Respondent. On the same date,
July 23, the employer had 37 employees in the appropriate unit.15 I find, therefore,
that 28 of the 37 employees in the bargaining unit had, as of July 23, signed valid
authorization cards for the Union; therefore, I find that the Union on July 23, 1956,
and at all times material thereafter was the exclusive representative of all the
Respondent's employees in the appropriate unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
(3) The refusal to bargain
As previously related, when Rickman called on Lee following the delivery to Lee
of the Union's request to bargain, Lee referred Rickman to the Respondent's head
office in Portland. Thereafter, in the latter part of July, Rickman telephoned Floyd
Miller, the Respondent's president in Portland, and asked that the Respondent send
a representative to Yakima to sit down and discuss the terms of a contract. Miller
referred Rickman to Dan Hay, its labor relations consultant. When Rickman
telephoned Hay, the latter said that he was not authorized to go to Yakima. Rick-
man testified that Hay was supposed to telephone him after getting such authoriza-
tion, but never did. After several unsuccessful attempts by Rickman to get the
Respondent to open contract negotiations, the Central Labor Council of Yakima
and East Klickitat County wrote a letter on August 23, 1956, to President Miller.
After stating that the Union had requested that Council's assistance in furtherance
of their desire to negotiate an agreement and after stating that "authentic reports
to our council meetings for the past 6 weeks" showed that the Union represented a
majority of the employees at the Store, the secretary of the Labor Council noted the
fact that the Respondent had repeatedly refused to recognize the Union and "taken
a disinterested attitude in granting an audience with duly authorized representatives of
the Union." The letter then stated that "After deliberate consideration of this mat-
ter our Council is presently withholding any action to place your firm on the UN-
FAIR LIST of Organized Labor in Yakima; pending information from you that it is
the honest intention of your Company to enter formal negotiations with Local
No. 631 prior to September 4, 1956." A reply was requested.
On August 29, 1956, the Respondent replied by letter, as follows:
In answer to your communication requesting a meeting before the Central
Labor Council of Yakima of our manager of Miller Mercantile, Yakima, Wash-
11 Dlohawck nusiness Machines Corporation, 116 NLRB 248; Transformer Engineers, 114
NI.RP. 1325.
1G This includes all sales employees, both full and part time, alteration women, an ad-
vertising display man, an elevator operator, anda janitor. The assistant manager and
office employes are excluded.
MILLER MERCANTILE COMPANY, INC. 849
ington, it is our opinion that any such meeting as you have requested is one that
should be called for all employers in the City of Yakima who are engaged in the
mercantile industry and not directed exclusively to our store at Yakima.
We have a respect for organized labor and its influence in communities and
certainly are not flattered with the thought expressed in your communication that
our firm is being singled out to be placed on the official unfair list by the
Central Labor Council of Yakima because we have refused to enter into collective
bargaining with the local Retail Clerks Union.
It has been our policy that where the mercantile industry in other cities is
under a labor contract representing the majority of the industry our local
managers have been advised to go along with our local competitors, and by this
same logic, we do not feel that in Yakima it would be a good policy for us to
enter into collective bargaining unless the majority of the employees in the
mercantile industry are requesting union negotiations.
We call to your attention that in the State of Washington at the November
elections is a ballot, measure Initiative 198, which would seem to us to have a
bearing at this time because if the measure is passed by the people it will be un-
lawful for an employer, by an agreement or otherwise, to require any person, as a
condition of employment or continuation of employment, to be or to become a
member of or to abstain from becoming or from remaining a member of, any
labor organization.
We are engaged in the mercantile business, and to succeed we desire to main-
tain good public relations with the general public of Yakima. This initiative
issue, 198, will certainly focus attention and there certainly will be those who
are for it and those who are against.
We do not desire our store to be caught in the midst of a statewide controversy,
especially on a question that can become quite heated in the fall campaign by
both the opponents and proponents of this measure.
We desire to have good employee-employer relations with our personnel at
Yakima; and 'likewise, we desire to have good relations with our competitors
in the industry.
If employees of our store at Yakima have designated the Retail Clerks as their
bargaining agent and we sit down to bargain an agreement, we realize from
experiences in other cities in Washington that a union security clause will be
required by the union in any contract arrived at, regardless of how much
"give and take" is discussed on the issues of wages, hours and working conditions.
With initiative 198 in the picture and from our reports in the City of Yakima
where the mercantile industry is not organized by union labor, we have advised
our manager to refrain from any meeting unless all the management of all the
department and variety stores are included.
The Respondent's answer clearly states its position of refusal to bargain without
questioning the Union's majority. Since the reasons given for the Respondent's
refusal to bargain are insufficient in law, I find that it refused to bargain in violation of
Section 8 (a) (5) of the Act.
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 its business operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Since it has been found that the Respondent has committed certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Because the Respondent has been found to have discriminatorily discharged James
Frisque, it will be recommended that it reinstate him to his former or substantially
equivalent 16 position without prejudice to his seniority or other rights and privileges
and make him whole for any loss of pay which he may have suffered by reason of the
Respondent's discrimination against him, by payment to him of a sum of money
equivalent to that which he would normally have earned between the date of his
16 See Chase National Bank of the Citly of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827, for meaning of "substantially equivalent."
450553-58-vol. 118-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge (August 13, 1956) and the date of the Respondent's offer to reinstate him,
less his net earnings during said period, such back pay to be computed in the manner
heretofore established by the Board.17
As it has been found that the Respondent has refused to bargain with the Union,
it will be recommended that it bargain with the Union upon request, and if an under-
standing is reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2 (2) of the
Act.
2. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
3. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
4. By interfering with, restraining, and coercing its employees at its Yakima,
Washington, store, in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of James
Frisque, thereby discouraging union membership, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the Act.
6. All sales and nonsales employees employed by the Respondent at its Yakima,
Washington, store, including Janitorial employees, but excluding office clerical em-
ployees, guards and/or watchmen, and 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.
7. On July 23, 1956, and at all times thereafter material hereto, the Union was
and now is the collective-bargaining representative of all employees in said ap-
propriate unit by virtue of having been designated as such representative by a
majority of the employees in said unit, within the meaning of Section 9 (a) of the Act.
8. By refusing, on and after July 23, 1956, to bargain with the Union as the
collective-bargaining representative of all its employees in the unit described above,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (5) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
'IF. 1V. Wool worth Company, 90 NLRB 289.
APPENDIX
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, as amended, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist Retail Clerks International Association, Local Union No.
631, AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid 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.
WE WILL bargain collectively, upon request, with Retail Clerks International
Association, Local Union No. 631, AFL-CIO, as the exclusive representative of
employees in the bargaining unit described herein, with respect to wages, rates
of pay, hours of employment, or other terms or conditions of employment, and
if an understanding is reached, we will embody such understanding in a signed
agreement.
BEECHNUT FOODS DIVISION 851.
The bargaining unit is: all sales and nonsales employees employed at our
Yakima, Washington , store, including janitorial employees , but excluding
office clerical employees , guards and/or watchmen , and supervisors as de-
fined in the aforesaid Act.
WE WILL offer James Frisque immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges , and we will make him whole for any loss he may have
suffered as a result of the discrimination.
All our employees are free to become , or to refrain from becoming , members of
the above -named union or any other labor organization , except to the extent that
this right may be affected by an agreement made in conformity with Section 8 (a)
(3) of the Act.
MILLER MERCANTILE COMPANY, 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.
Beechnut Foods Division of The Beechnut Life Savers Co., Inc.
and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, AFL-CIO, Local No.
182, Petitioner . Case No. 3-RC-1790. July 96,1957
SECOND SUPPLEMENTAL DECISION AND
CERTIFICATION OF REPRESENTATIVES
Pursuant to a Supplemental Decision and Direction of Election
issued herein on June 10, 1957,'. an election by secret ballot was con-
ducted on June 21, 1957, under the direction and supervision of the
Regional Director for the Third Region in a voting group of truck-
drivers. Following the election, the parties were furnished a tally of
ballots which showed that the four eligible voters all cast ballots for
the Petitioner.
On June 25, 1957, the Employer filed timely objections to the election
in which it alleged, in substance, that the election had been directed
in an inappropriate unit. On June 28, 1957, the Regional Director
issued and served on the parties his report on Objections in which he
found that the Employer's objections did not raise any substantial or
material issues with respect to the conduct of the election and recom-
mended that the objections be overruled and that the Petitioner be
certified as the exclusive representative of the employees in the appro-
priate unit. Thereafter, on July 5, 1957, the Employer filed timely
exceptions to the Regional Director's report.
Essentially, the Employer's exceptions are grounded upon its con-
tention that the Board's unit finding herein is erroneous. In support
of this contention, the Employer seeks to relitigate issues which were
11.18 NLRB 123.
118 NLRB No. 106.
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