National Shirt Shops of Florida, Inc.

National Labor Relations Board - Board Decisions

May 29, 1953

105 N.L.R.B. 116 (N.L.R.B. 1953)

1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as wages from the date of the discrimination to the offer of reinstatement , less his net
earnings during said period . 7 Back pay due shall be computed in accordance with Board
policy set out in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent , from September 19, 1952 , has unlawfully re-
fused to bargain with the Union as the exclusive representative of employees in an appropri-
ate unit. The Trial Examiner will therefore recommend that the Respondent , upon request,
bargain collectively with the Union as such representative and, in the event that an under-
standing is reached, embody such understanding in a signed agreement
In view of the nature of the unfair labor practices committed , the commission by the Re-
spondent of similar and other unfair labor practices may reasonably be anticipated. The
remedy should be coextensive with the threat . It will therefore be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steel Workers of America, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2 All production and maintenance employees at the Respondent's Charlotte, Norih Carolina,
plant, excluding office clerical employees, guards, professional employees, and supervisors
within the meaning of the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3 United Steel Workers of America, CIO, was on August 14, 1952, and at all times since
then has been the exclusive representative of all employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on September 19, 1952, and at all times thereafter to bargain collectively
with the aforesaid Union as the exclusive bargaining representative of its employees in the
aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Paul E. McNatt and
Dominick Cordaro, and thereby discouraging membership in the above-named labor organi-
zation, the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practiees affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8: The Respondent has engaged in no unfair labor practices within the meanfiig of the Act
as to Elbert L. Eagle, Jr., Walter G. Cooper, and Brady E. Johnson.
[Recommendations omitted from publication.]
7Crossett Lumber Company, 8 NLRB 440.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. AND NATIONAL
SHIRT SHOPS OF MIAMI, INC. and DEPARTMENT AND
SPECIALTY STORE EMPLOYEES UNION, LOCAL NO. 1666,
RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. of
L. Case No. 10-CA- 1387 . May 29, 1953
DECISION AND ORDER
On March 25, 1953, the Board issued its Proposed Findings
of Fact , Proposed Conclusions of Law, and Proposed Order in
the above - entitled proceeding , a copy of which is attached
105 NLRB No. 24.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 117
hereto . ' Thereafter , the Respondents filed exceptions thereto
and a supporting brief . 2 In addition , the Respondents requested
oral argument . However , because the record and the Respond-
ents' exceptions and brief , in our opinion , adequately present
the issues and positions of the parties, the Respondents' re-
quest for oral argument is hereby denied.
The Board has considered the Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, the
exceptions and brief filed by the Respondents, and the entire
record in the case, and hereby adopts as its final Decision
and Order herein the said Proposed Findings of Fact,3 Proposed
Conclusions of Law, and Proposed Order.
ORDER
U on the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
i As the Trial Examiner who heard the testimony in this case was not available to prepare
an Intermediate Report herein, we find no merit in the Respondents' exception to the Board's
issuance of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed
Order. See Administrative Procedure Act, Section 5 (c), 5 U.S.C. Sec. 1004 (c); Section
102.36 of National Labor Relations Board Rules and Regulations, Series 6, as amended;
N L. R. B v. Stocker Manufacturing Company, 185 F 2d 451 (C. A. 3); National Electric
Products Corporation. 80 NLRB 995.
2 The contention by the Respondents in their exceptions and brief that they were denied
due process in this case is plainly without merit, even if, as alleged in this connection, the
Respondents were precluded from presenting evidence both at and after the hearing in
support of their contention that the Union had not complied with the filing requirements of
he Act. For the Board has uniformly held that the fact of compliance by a labor organization
which is required to comply with the filing requirements of the Act is a matter for adminis-
trative determination and is not litigable by the parties. W. L. Hoge & Co , Incorporated,
103 NLRB 20; Poultry Enterprises, Inc., 102 NLRB 211. Moreover, even considering the
contents of the proposed exhibit alluded to in footnote 4 of the Proposed Findings of Fact,
the Board is administratively satisfied that at all pertinent times herein, as well as in the
representation proceeding referred to hereinafter, the Union was, and now is, in full com-
pliance with Section 9 (f), (g), and (h) of the Act
3The record shows that Peter L. Hall was trustee and receiver of the Union after April 10,
1952, rather than its trustee and business agent, as stated in the Proposed Findings of Fact
This correction does not affect any of our ultimate conclusions in this case.
In their exceptions, the Respondents argue in effect that the Board should not adopt certain
of the proposed findings of fact relating to their business operations for the reason that there
is no substantial evidence to support those findings. We find no merit in the Respondents'
position. Thus, with respect to the finding that the Respondent Florida owns and operates
eight retail stores in the State of Florida, it is noted that an allegation in the complaint to
the same effect was admitted by the Respondents in their answer. Moreover, even were we
to assume arguendo that the Respondent Florida "operates but one ... retail store and owns
the capital stock of seven ... other corporations each of which operates a retail store in
the State of Florida," as alleged in the exceptions, we would still conclude that the Respondent
Florida is engaged in commerce within the meaning of the Act As for the other findings
involved in the instant connection, namely, that NationalShirt Shops of Delaware, Inc , controls
the operations of the Respondents through National Shirt Shops, Inc., a subsidiary, and that
the latter corporation acts generally as the servicing agent for the Respondents, we note that
identical findings, of which official notice was taken in the Proposed Findings of Fact, were
made in National Shirt Shops of Florida, Inc. and National Shirt Shops of Miami, Inc., 97 NLRB
924, a representation proceeding pertaining to the Respondents' operations involved in this
case Although our reliance upon those findings in the Proposed Findings of Fact was made
evident to the Respondents, nothing to show the contrary thereof has been offered by the
Respondents.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board hereby orders that Respond-
ents, National Shirt Shops of Florida, Inc . and National Shirt
Shops of Miami , Inc., their officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Department and
Specialty Store Employees Union, Local No. 1666, Retail Clerks
International Association , A. F. of L., as the exclusive repre-
sentative of their employees in the following appropriate unit:
All salespersons , tailors, porters , stockmen, and cashiers at
the Miami , Florida, stores of Respondents , excluding managers,
assistant managers, professional employees , watchmen,
guards, and supervisors.
(b) Discouraging membership in Department and Specialty
Store Employees Union, Local No. 1666, Retail Clerks Inter-
national Association , A. F. of L ., or in any labor organization
of their employees , by refusing to reinstate any of their em-
ployees because of their union membership or activity, or in
any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-
organization , to form, join , or assist any labor organization,
to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of 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 Department and
Specialty Store Employees Union, Local No. 1666, Retail Clerks
International Association , A. F. of L., as the exclusive rep-
resentative of the employees in the above - described unit,
with respect to rates of pay , hours of employment , and other
conditions of employment , and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Make whole the complainants listed in ' Appendix A for
any loss of pay they may have suffered by reason of Respond-
ents' discrimination against them, in the manner set forth in
the section of the Proposed Findings of Fact , Proposed Con-
clusions of Law, and Proposed Order entitled " The Remedy."
(c) Upon request make available to the National Labor
Relations Board or its agents , for examination and copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary for a determination of the amounts of back pay due
under the terms of this Order.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 119
(d) Post at their stores in Miami , Florida , copies of the
notice attached hereto, marked "Appendix B."` Copies of such
notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by Respondents' rep-
resentative, be posted for sixty (60) consecutive days there-
after in conspicuous places , including all places where notices
to employees customarily are posted . Reasonable steps shall
be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that Respondents have violated Section 8 (a) (1) of the
Act by conduct other than that found to be violative herein, be,
and it hereby is, dismissed.
Chairman Herzog and Member Murdock took no part in the
consideration of the above Decison and Order.
4In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
Ambal Artiga
Louis Castro
Louis Cohen
Thomas Duncan
John Freedman
Greenville A. Gibbs
Bob Lynn
John A. Mann
Peter Pages, Jr.
Mango Reaves
Andy Roth
Willard Seymore
Sam Stone
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify our
employees that:
WE WILL bargain collectively upon request with Depart-
ment and Specialty Store Employees Union, Local No. 1666,
Retail Clerks International Association, A. F. of L., as the
exclusive representative of all employees in the bargain-
ing unit described herein, with respect to rates of pay,
hours of employment, and other conditions of employment,
and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is:
All salespersons, tailors, porters, stockmen, and cashiers
at our Miami, Florida, stores, excluding managers, as-
291555 0 - 54 - 9
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistant managers , professional employees , watchmen,
guards, and supervisors.
WE WILL NOT discourage membership in Department
and Specialty Store Employees Union, Local No. 1666, Re-
tail Clerks International Association, A. F. of L., or in
any labor organization of our employees , by refusing to
reinstate any of our employees because of their union
membership or activity, or in any other manner dis-
criminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
right to self-organization , to form, join, or assist any
labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
WE WILL make whole the following employees for any
loss of pay suffered because of the discrimination against
them:
Ambal Artiga
Louis Castro
Louis Cohen
Thomas Duncan
John Freedman
Greenville A. Gibbs
Bob Lynn
John A. Mann
Peter Pages, Jr.
Mango Reaves
Andy Roth
Willard Seymore
Sam Stone
All our employees are free to become or remain, or re-
frain from becoming or remaining, members of the above-
named union , or any other labor organization , except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act. We
will not discriminate inregardtohtieortenure of employment,
or any term or condition of employment , against any employee
because of membership in or activity on behalf of any labor
organization.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. and
NATIONAL SHIRT SHOPS OF MIAMI, 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.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 121
PROPOSED FINDINGS OF FACT, PROPOSED CONCLUSIONS
OF LAW, AND PROPOSED ORDER
STATEMENT OF THE CASE
Upon charges filed by Department and Specialty Store Em-
ployees Union, Local No. 1666, Retail Clerks International
Association, A. F. of L., herein called the Union, the General
Counsel of the National Labor Relations Board, herein called
the General Counsel' and the Board; respectively, through the
Regional Director for the Tenth Region (Atlanta, Georgia),
issued his complaint dated November 26, 1952,E against
National Shirt Shops of Florida, Inc:, herein called Respondent
Florida, and National Shirt Shops of Miami, Inc., herein called
Respondent Miami, and collectively herein called Respondents,
alleging that Respondents had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, as arnended(61 Stat. 136), herein
called the Act. Copies of the charges and complaint, together
with the notice of hearing, were duly served upon the parties.
With respect to the unfair labor practices, the complaint
alleged in substance that: (1) Since on or about February 1; 1952,
Respondents have refused to bar ain with the Union in violation
of Section 8 (a) (5) of the Act; (2) on or about March 20, 1952,
and at all times thereafter until April 15, 1952, Respondents
failed and refused to reinstate 13 named employees because
of their membership in and activities on behalf of the Union,
in violation of Section 8 (a) (3) of the Act; and (3) by the fore-
going , and by various other actions specified in the complaint,
Respondents , from August 4, 1951, have interfered with, re-
strained , and coerced employees , in violation of Section 8 (a)
(1) of the Act. Respondents duly filed their answer admitting
certain allegations of the complaint but denying the commission
of any unfair labor practices.
Pursuant to notice,, a hearing was held in Miami, Florida, on
December 10 , 1952, before James J: Fitzpatrick, a Trial
Examiner duly designated by the Chief Trial Examiner. The
General Counsel and Respondents were represented by counsel
and the Union by two representatives. All parties were offered
full opportunity to be heard, to examine and cross-examine
witnesses , to introduce relevant evidence, to argue orally, and
to file briefs: A brief has been received from Respondents.
At the hearing, counsel for Respondents moved for a dis-
missal of the complaint on the ground that the Union was not
in compliance with the filing requirements of Section 9 (f), (g),
and (h) of the Act when it filed the charges in this case. Said
motion was denied without prejudice to its renewal. During
the course of the hearing, the Trial Examiner made rulings
i This term specifically includes the counsel for the General Counsel appearing at the
hearing.
2 An earlier complaint , dated August 29, 1952, was withdrawn by the Regional Director on
November 25, 1952.
1 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on objections to the admission of evidence and on other motions,
including the granting of Respondents ' motion at the conclusion
of the General Counsel ' s case to dismiss , for want of proof,
the "independent " violations of Section 8 (a) (1) alleged in the
complaint.
On January 22, 1953, Trial Examiner Fitzpatrick died.
Thereafter, on January 30, the Board , acting pursuant to Sec-
tion 102 . 36 of National Labor Relations Board Rules and
Regulations , Series 6, as amended , issued an order that the
case be transferred and continued before the Board ; that no
Trial Examiner ' s Intermediate Report be issued in the case;
and that Proposed Findings of Fact , Proposed Conclusions of
Law, and a Proposed Order be issued . Pursuant to said Rules
and Regulations , any party may, within 20 days from the date
of these Proposed Findings of Fact , Proposed Conclusions of
Law, and Proposed Order , file exceptions , with a supporting
brief, thereto . Should any party desire to argue orally before
the Board , request therefor must be made in writing to the
Board simultaneously with the statement of any exceptions
filed.
The Boards has reviewed the rulings of the Trial Examiner
made during the course of the hearing and finds that no pre-
judicial error was committed . The rulings are hereby af-
firmed .* At the conclusion of the hearing, counsel for Re-
spondents renewed his motion to dismiss the complaint in its
entirety . The Trial Examiner reserved ruling on this motion.
In view of the findings and conclusions herein , this motion is
hereby denied.
Upon the entire record in the case , the Board makes the
following:
3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel [ Members Houston , Styles, and
Peterson].
4 In their brief filed herein, Respondents contend , as they did at the hearing , that the
complaint issued in this case on November 26, 1952 , should be dismissed for reasons
relating to the Union 's compliance status at the time the charges herein were filed. This
contention is without merit . The Act only requires compliance with its filing provisions at
the time of the issuance of a complaint . See N. L . R. B. v Dant R. Russell , Ltd., 73 S. Ct.
375 As we are administratively advised that the Union was in full compliance with Section
9 (f), (g), and (h) on November 26, 1952, the issuance of the complaint on that date was proper,
whatever the Union 's compliance status when it filed any of the charges . Under the circum-
stances, we find immaterial the exhibit referred to by Respondents in their brief " for the
purpose of calling to the Board ' s attention the fact that there was some question as to
whether or not the Union was in compliance with all of the requirements of Section 9 (f), (g),
and (h ) of the Act at the time the charges were filed against Respondents ." In view thereof,
we find no occasion to consider the exhibits attached to the General Counsel's motion filed
on January 12, 1953, in the aforementioned connection.
Nor do we find merit in Respondents' further contention that the complaint should be
dismissed on the ground that no proof of compliance with Section 9 (f), (g), and (h) of the Act
was adduced in the record by the General Counsel . The Act does not, as a condition to the
exercise of its jurisdiction , require pleading and proof by the Board that the union has
complied with the filing requirements of the Act. N. L. R. B. v Greensboro Coca-Cola Co.,
180 F . 2d 840 (C. A. 4); N. L R. B v Red Rock Co., 187 F 2d 76 (C. A 5).
NATIONAL SHIRT SHOPS OF FLORIDA, INC
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
123
Respondent Florida Shirts is a Florida corporation engaged
in the sale of shirts in the State of Florida . It owns and op-
erates 8 retail stores within the State, including a store
located in Miami, Florida . During 1950, which period is repre-
sentative of all times material herein, Respondent Florida
purchased outside the State merchandise valued in excess of
$227,000 . Respondent Florida is a wholly owned subsidiary
of National Shirt Shops of Delaware , Inc., aDelaware corpora-
tion whose principal offices are located in New York City,
which owns allthe stock of 103 subsidiary corporations through-
out the country, each of which operates retail shirt stores.
Respondent Miami owns and operates a retail shirt store
located in Miami , Florida . During 1951 , which period is
representative of all times material herein, Respondent Miami
purchased outside the State of Florida merchandise valued in
excess of $ 116,000 . Respondent Miami is a wholly owned
subsidiary of Respondent Florida.
Respondents and National Shirt Shops of Delaware , Inc., the
parent corporation , have common officers . The parent organi-
zation controls the operations of Respondents through still
another subsidiary , National Shirt Shops, Inc ., hereinafter
referred to as National Shirt Shops, which shares its offices
in New York City and which acts generally as purchasing and
servicing agent for all its other subsidiaries , supervising
their operations through area district managers. Changes in
wages and other conditions of employment are subject to ap-
proval of the district managers and the president of the parent
corporation . The Miami , Florida, operations of Respondents,
which are the only stores involved in this proceeding , are as-
signed to the same district manager . Any profits resulting
from the operations of those stores are ultimately received
by the parent corporation.
The findings herein are based on the allegations of the
complaint, Respondents ' answer, and the findings in National
Shirt Shops of Florida , Inc. and National Shirt Shops of Miami,
Inc., 97 NLRB 924, hereinafter called the representation case.
In the latter case, the Board concluded that Respondents con-
stitute a single employer within the meaning of the Act and that
they are integral parts of a multistate enterprise and hence
engaged in commerce within the meaning of the Act. On the
basis of all the facts recited above , we reach the same con-
clusions here.
II. THE LABOR ORGANIZATION INVOLVED
Respondents deny that the Union is a labor organization
within the meaning of the Act. For the reasons set forth here-
inafter, this contention is found to be untenable, and it is hereby
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that Department and Specialty Store Employees Union,
Local No. 1666, Retail Clerks International Association, A.
F. of L., is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES 5
A. The refusal to bargain collectively
1. The appropriate unit
On December 29, 1951 , the Board handed down its Decision
and Direction of Election in the representation case , finding
to be an appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act all sales-
persons , tailors , • porters , stockmen , and cashiers at Re-
spondents ' Miami , Florida , operations , excluding managers,
assistant managers , professional employees , watchmen,
guards , and supervisors . Respondents have offeredno evidence
to controvert this unit finding. Accordingly, on the basis of our
previous decision in the representation case, we find , as alleged
in the complaint , that the above -described unit is appropriate
for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
2. The Union' s representative status
Pursuant to the Decision and Direction of Election issued
by the Board in the representation case , an election was held
on January 17, 1952, among the employees in the appropriate
unit . The employees voting in said election designated the Union
as their bargaining agent. Thereafter, on January 25, 1952,
the Regional Director for the Tenth Region, on behalf of the
Board , duly issued the Board's certification of representa-
tives, certifying that the Union, pursuant to Section 9 (a) of
the Act, was the exclusive representative for the appropriate
unit.
Respondents argue in effectthatthe certification issued to the
Union on January 25 was invalid, and therefore cannot be relied
upon to establish the Union ' s representative status, because of
the Union' s noncompliance with the filing requirements of the
Act during the representation proceeding . This contention is
without merit . During the hearing in the representation matter,
Respondents moved for dismissal of the petition on grounds
relating to the Union ' s compliance status. This motion was
denied by the Board in the Decision and Direction of Election
referred to above , for the Board was administratively satisfied
5The testimony at the hearing bearing on the unfair labor practice allegations of the
complaint was virtually undisputed.
6Of the 18 votes cast in the election , 14 were for, and 1 against , the Union , and 1 was
challenged.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 125
that the Union was in compliance. We are administratively
satisfied also that , during the pendency of the representation
proceeding following the issuance of the aforementioned deci-
sion , the Union was at all times in compliance with Section 9
(f), (g), and (h). From all the foregoing , it is clear, and we
find , that the Union's certification is not vulnerable on the
ground here alleged by Respondents.
Respondents nevertheless contend that, in any event, at no
time after April 10, 1952, was the Union entitled to the benefits
of the certification, because (a) the Union has not functioned
as a labor organization within the meaning of the Act since
April 10, and (b) for reasons not attributable to them, the Union
has not represented a majority of the employees in the certified
unit since April 10.' In the latter connection , Respondents rely
mainly on N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927
(C. A. 6). For the reasons appearing below, we find Respond-
ents' position here also to be without merit.
On April 10, following several unsuccessful attempts by him
to gain recognition of the Union by Respondents, Moe Levine
was dismissed as business agent of the Union for reasons un-
related to the issues in this case . Levine testified that shortly
after his dismissal , and because of it, all the employees in
the certified unit, who were members of the Union, sent letters
to the Union' s parent organization , herein called the Inter-
national , announcing their resignation from the Union.8' At about
the same time , the members of the Union who were not in
Respondents ' employ stopped paying their union dues.
Since April 10, the Union has continued to function mainly
through Peter L. Hall, a regional organizer for the Inter-
national , who became its trustee and business agent after
Levine' s ouster,o and William M. Kemp, southern director for
the International . As more fully detailed hereinafter, requests
for recognition by Respondents have been made on behalf of
the Union by Hall and Kemp," and the amended charges in this
case filed on June 2 and August 29, 1952, like the charges
filed by Levine before April 10, bear the Union's name . It also
appears that the Union was represented at the hearing in this
matter held on December 10, 1952, wherein Hall testified that
it existed in whole or in part for the purpose of bargaining
with Respondents concerning the working conditions of their
employees.
On the basis of all the foregoing , and the entire record, we
are satisfied that the Union now exists , and has existed during
'Neither the existence of the Union as a labor organization nor its majority status among
the employees involved herein , during the critical period in this case prior to April 10, is
challenged by Respondents.
$ The Union currently regards these employees as "honorary members."
oAlthough Hall testified with some uncertainty as to the date on which he became trustee
and business agent of the Union, the record as a whole indicates that he assumed these
responsibilities upon Levine 's removal as business agent.
toSignificantly , on none of these occasions was the Union' s existence as a labor organi-
zation questioned by Respondents ; in fact, it appears that Respondents regarded the Union
as capable of representing their employees.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all times material herein , for the purpose of admitting em-
ployees to membership and of dealing with Respondents on
matters relating to wages and other working conditions. Con-
trary to Respondents , therefore , we find that the Union now is,
and, during the whole of the critical period in this case, has
been, a labor organization within the meaning of the Act."
As for the effect of the alleged loss of the Union's majority
on the Union ' s representative status, the Board has con-
sistently held, with the approval of the great weight of court
decisions , that, in the absence of special circumstances, a
certification of representatives must be honored for a reason-
able period , usually at least a year following the certification,
despite some evidence of repudiation of the Union or loss of
majority.12 The alleged repudiation of the Union in this case,
even assuming it was in no way due to unfair labor practices
on the part of Respondents , does not constitute such "special
circumstances " within the certification year as to impair the
Union's representative status."
Accordingly , we find that on January 25, 1952, and at all
times thereafter , the Union was, and now is, the exclusive
bargaining representative of the employees in the afore-
mentioned appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours, and
other conditions of employment.
3. The refusal to bargain
As already noted, the Union was certified on January 25, 1952.
On February 1, its representative , Levine, addressed the fol-
lowing letter to the New York City office of National Shirt Shops:
As exclusive representative of all of your employees
in such units as was reflected by the decision handed down
by the National Labor Relations Board, Case No. 10-RC-
1595, on January 25, 1952, we are hereby advising you that
this organization stands ready to meet with you through
your representative duly authorized to act to negotiate a
contract with you with respect to rates of pay, wages,
hours of employees , and other conditions of employees
with regard to employment of such unit.
Time being of the essence , we respectfully request that
you meet with us at the Offices of our Attorney . . . in
Miami , Florida, to facilitate such negotiations; and in
order to culminate the negotiations within a reasonable
time, we request that such meeting be held at no later date
than five days from the receipt of this letter."
ti See the Mountain Copper Company, Ltd., 96 NLRB 1018 ; White Sewing Machine Cor-
poration , 89 NLRB 1284 . Fostoria , Ohio, Works of the National Carbide Division , 89 NLRB
460.
12See Mid-Continent Petroleum Corporation , 99 NLRB 247 , and the cases cited therein
islbid.
14A copy of this letter was sent to each of the Respondents.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 127
About a week after this letter was written, no reply thereto
having been received, Levine contacted National Shirt Shops by
telephone and was told by Harry Sneider, its general counsel
and vice president, that the Union's bargaining request was
being taken up with counsel and that he "would eventually
hear from them." By letter dated February 12, Sneider re-
jected the bargaining request in the following language:
We have your registered letter of February 1st, the
contents of which have been carefully noted.
At the present time the matter of the validity of the
certification of your Union is being studied by our counsel
and we cannot take any action at this time with respect to
your demand for an appointment.
This communication was received by the Union on about
February 15, 2 days after Respondents' employees went out on
strike, as appears hereinafter.
During the latter part of February, Levine again telephoned
Sneider, this time requesting that he "sit down and negotiate
contracts." Sneider's reply was that he "would not do anything
until the strike was settled, and it was being taken up through
the proper channels." On several occasions thereafter, while
still business agent of the Union, Levine made further requests
of Sneider to "sit down to talk contract," but on each occasion
Sneider's reply was to the same effect, namely, that the matter
was being taken up "legally" and that if the Union was "right"
he would enter into contract negotiations.lt
On April 10, as appears above, Levine was dismissed as
business agent of the Union. On that same day, Kemp called
the offices of National Shirt Shops and asked to speak to
Sneider. Sneider was then out of town and Kemp's call was re-
ferred to a Mr. Marks.16 After identifying himself, Kemp
thereupon requested a bargaining conference. He was asked
"about Levine." When Kemp replied that Levine was no longer
connected with the Union, Marks said, "That is fine. That is
the best thing that could ever have happened for you, and for
the people down there . . . . You call Mr. Marchant . . . . and
give him your name and tell him that you have talked to me
and I have referred you to him, and he will make the recom-
mendation."
Thereafter, on about April 17, Kemp and Hall called on
Marchant. When the union representatives asked Marchant to
negotiate a contract, Marchant expressed doubt as to the Union's
majority status;l but promised to contact Sneider and attempt
15 Also to the same effect was the reply of Jeptha P. Marchant, Miami counsel for Respond-
ents, when, during a chance street meeting with Levine during the latter part of February or
early in March, he was asked to bargain with the Union
16Referring to Marks, counsel for Respondents stated at the hearing: "... I believe he is
the Chairman of the Board of Directors, or the President of the respondents, but I am not
sure . I do know that he is a person in authority."
17AIthough Hall testified that he did not remember any reference to the Union's majority
status at this meeting, Marchant's testimony in this connection, which we have credited, was
in substance corroborated by Hall
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to arrange for an early meeting between the Union ' s repre-
sentatives and officials of Respondents . On about April 28, Hall
inquired of Marchant as to when the aforementioned meeting
was to take place; he was told that either Sneider or Marks
would get in touch with Kemp.
Sneider telephoned Kemp on May 2. During this conver-
sation, Kemp asked for a bargaining conference . Sneider's
response was that " The people don't belong to the Union in
Miami. They all resigned , or they are all going to resign."
Early in May, Hall again communicated with Marchant. Upon
asking whether there were any further developments regarding
the promised meeting with Sneider or Marks, he was told,
"No new developments."
There is no evidence of any further communications between
the parties.
Contentions ; Conclusions
It is apparent from all the foregoing that Respondents have
refused to bargain with the Union since about February 1, 1952.
Respondents contend , however, that they did not violate Section
8 (a) (5) of the Act at any time during the period covered by
the complaint because ( a) they were not required to honor the
Union ' s certification for reasons relating to the Union's com-
pliance status; (b) they were not obliged to bargain with the
Union after April 10 because of the Union ' s alleged defunctness
and loss of majority after that date ; and (c ) they were "pre-
cluded" from bargaining with the Union lefore April 1Q while
Levine was its business agent, because Levine insisted, as a
condition precedent to the holding of any bargaining conferences,
that Respondents reinstate one Elmo Vilardebo , who had been
discharged by them in the fall of 1951 .11 The first two grounds
relied upon by Respondents have already been considered in
effect and decided adversely to Respondents. The third ground
urged -as a defense by Respondents is also without merit.
It appears from the record that both prior to and after the
representation election held on January 17, Levine made several
requests for Vilardebo ' s reinstatement , all of which were re-
jected . Although the record shows that , in conversations on this
subject held with representatives of Respondents just after
Vilardebo ' s discharge , Levine stated that "we could do nothing
until Elmo was put back to work " and that he "would sit down
with them if they put Elmo to work , " i• it does not establish that
Levine, when asking for Vilardebo ' s reinstatement after the
Union ' s certification , advised Respondents that Vilardebo's
reinstatement was a condition precedent to bargaining negotia-
18 Although the original charge , as well as the first and second amended charges , alleges
that VAardebo 's discharge was unlawful, a similar allegation is not contained in the complaint,
and the validity of Vilardebo 's discharge was not raised as an issue or litigated at the
hearing . For purpose$ of this case, therefore , we must assume that Vilardebo was lawfully
discharged.
to Prior thereto, Levine had advised Respondents that the Union represented a majority of
their employees and was promised a "look into the matter."
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 129
tions . tQ Moreover , as the facts recited above indicate , none of
the bargaining conferences requested by Levine during the
period covered by the 8 ( a) (5) allegations of the complaint was
in any way conditioned upon Vilardebo ' s reinstatement . In fact,
a finding is warranted that Vilardebo ' s name was not even
mentioned by Levine at any time when he requested bargaining
during this period , except on the occasion of his street meeting
with Marchant.
We deem significant in the instant connection the fact that the
reason which Respondents now claim "precluded" bargaining
with the Union was at no time mentioned by Respondents in
their rejection of the bargaining requests upon which the com-
plaint is founded . Indeed, Levine's alleged insistence upon
Vilardebo ' s reinstatement as a condition precedent tobargain-
ing is not even asserted as a defense in Respondents ' answer
filed herein . In our opinion , this position now taken by Respond-
ents is a mere afterthought designed to bolster their case.
On the basis of all the foregoing , and the - record as a whole,
we find that the bargaining conferences requested by Levine
during the critical period in this case were neither conditioned
upon Vilardebo ' s reinstatement nor rejected by Respondents
because of any bona fide belief that such was the case.
We find that Respondents , since about February 1, 1952,
have refused to bargain with the Union as the exclusive bar-
gaining representative of employees of Respondents in an
appropriate unit, in violation of Section 8 (a) (5) of the Act,
and have thereby interfered with, restrained , and coerced em-
ployees in the exercise of their statutory rights in violation of
Section 8 (a) (1).
B. The refusal to reinstate
On February 11, 1952, at a meeting called for the purpose,
Levine advised Respondents ' employees of the Union ' s February
1 request for bargaining and of the fact that no "definite"
answer had been received thereto, and suggested that "we
ought to stop fooling around with them and put a picket line
and perhaps we will get action that way." The employees
thereupon voted to strike Respondents. The strike was called on
February 13, and all the employees of Respondents immedi-
ately responded and began picketing the stores involved in this
proceeding.
During the latter part of February, or early in March, on the
occasion of their street meeting already referred to, Levine
made the following suggestion to Marchant : " Put Elmo
[Vilardebo] back to work and we will call the pickets back to
20 The only such request testified about in any detail at the hearing was made during
Levine's chance meeting with Marchant while the strike was current . Although, as indicated
in footnote 15, Levine also requested bargaining during this meeting , the satisfaction of his
request for Vilardebo 's reinstatement was not made a prerequisite to the commencement of
bargaining negotiations
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work and we will set a date for negotiations ." Although Levine's
testimony as to precisely what he said on the occasion in
question is not altogether clear, it would appear that Levine
also advised Marchant that he, Levine , would not "do anything
until . . . [Respondent] put . . . Vilardebo back to work." 21
On March 20 , the 13 complainants whose names are listed
in Appendix A hereto sent the following letter to W. E. Chesson,
manager of Respondents ' Miami stores:
We, the undersigned employees of National Shirt Shop of
Florida, Inc . at 156 East Flagler Street , and National Shirt
Shops of Miami, Inc., 33 East Flagler Street, Miami,
Florida, who are presently on strike against the company's
unfair labor practice in refusal to bargain with Depart-
ment of Specialty Store Employees Union, Local 1666, af-
filiate of Retail Clerks International Association , A.F.L.,
now, as of March 21, 1952 , unconditionally offer to return
to work, and to our jobs , with the companies above re-
ferred to.
By letter dated March 25, G . W. Friberg , secretary of
National Shirt Shops , replied to the foregoing communication
as follows:
Mr. Chesson has forwarded to us your letter of March
20, 1952, purporting to be an offer signed by various em-
ployees offering to return to work.
Inasmuch as this letter presents certain legal questions
we have submitted same to our counsel for advice and will
communicate with you after the matter has been considered
by counsel,
Levine called Sneider early in April regarding Respondents'
reply of March 25. On that occasion Sneider inquired of Levine
as to whether there were any conditions attached to the March
20 proposal of the employees to return to work. Although
Levine assured him that there were none, no offer to reinstate
the employees was forthcoming from Sneider.
As previously indicated , on April 10, after Levine's dis-
missal as business agent of the Union, Kemp asked Marks to
recognize the Union . At that time, Kemp also asked Marks to
reinstate the striking employees because it would "create a
better atmosphere for bargaining ." He was told by Marks that
"the people would be returned to the job when the company was
positive that they had renounced the union, and were no longer
members of the Union."
As appears hereinafter , between April 15 and June 2, all the
complainants were either offered or granted reinstatement to
their former or substantially equivalent positions.
21 As already indicated, Levine nevertheless made it abundantly plain to Marchant on this
occasion that he was ready to bargain with Respondents whenever they were willing to meet
with him.
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 131
Contentions ; Conclusions
On the basis of all the foregoing , and the entire record, we
find that the complainants went out on strike on February 13
and thereafter , during all times material to this case, con-
tinued on strike because of Respondents ' refusal to bargain with
the Union. As we have found that this refusal to bargain was
unlawful , it follows that as of March 20, the date upon which
they requested unconditional reinstatement , the complainants
were unfair labor practice strikers and therefore entitled to
reinstatement upon proper application therefor. zz
Respondents do not, of course , contend that the application
for reinstatement made by the complainants on March 20 itself
contained anything that would justify its rejection ; in it, the
complainants unconditionally offered to return to work in clear
and unequivocal terms . What Respondents do contend , however,
is that they were not required to take any action thereon for
the reason that it was not a "legal demand, because it was not
made in good faith, and was mailed only for the purpose of
harassing the respondents ." With this contention we do not
agree. Levine ' s testimony , a portion of which Respondents quote
in their brief in support of their contention , is to the following
effect when considered in its entirety : The request for rein-
statement was decided upon because the Union was "short on
funds" and "didn't have enough funds to continue picketing"; "
the letter requesting reinstatement was sent with " good in-
tentions "; and, if, after the letter was sent, the strikers had
been offered , or denied , reinstatement, a meeting of the em-
ployees would have been held to discuss Respondents' reply.
This testimony , we find, in no way impugns the bona fides of
the complainants ' written offer to return to work. Under all
the circumstances , we conclude that on March 20 the com-
plainants made effective application for reinstatement . Because
of their membership in the Union , however, and for no other
reason, so far as the record shows , they were, on March 25,
refused reinstatement.
In the light of the foregoing , and the entire record, we find
that on March 25, 1952, Respondents discriminated against
the complainants listed in Appendix Awithrespectto their hire
and tenure of employment, in violation of Section 8 (a) (3), there-
22Even were we to assume , arguendo , as Respondents suggest in their brief, that the
strike was an economic one because the "real" reason for it was Respondents ' refusal to
reinstate Vilardebo, we would still find that , as of March 20, all the complainants were
entitled to reinstatement upon proper application therefor , for it is not contended, and the
record does not show, that any complainant was replaced , or his job abolished , by March 20
See Brown and Root , Inc., et al ., 99 NLRB 1031.
23Levine's actual testimony was as follows:
the letter was sent ... to the company .. because we were short of funds. We
didn't have enough money in our local union to take care of our pickets Therefore, I
thought the best thing to do was if we could get the men back to work and continue from
the legal end of it, then we will continue that way. That was one of the points at that
particular time, because we didn't have enough funds to continue picketing. We had
seventeen people out on strike at that particular time.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by violating Section 8 ( a) (1) of the Act by interfering with,
restraining , and coercing their employees in the exercise of
rights guaranteed them in Section 7.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of Respondents set forth in
section III, above, occurring in connection with the operations
of Respondents described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor dis-
putes burdening or obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondents have engaged in the unfair
labor practices set forth above, we shall order that they cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondents have refused to bargain
collectively with the Union as the exclusive representative of
their employees in an appropriate unit. We shall therefore
order that Respondents , upon request , bargain collectively with
the Union.
It has also been found that on March 25, 1952, Respondents
discriminatorily refused reinstatement to the complainants
named in Appendix A. The record shows, however, that the
following complainants were subsequently reinstated by Re-
spondents : Louis Castro and John A. Mann on April 17; Peter
Pages , Jr., and Willard Seymore on April 18; Louis Cohen,
Thomas Duncan, and Greenville A. Gibbs on April 21; Sam
Stone on May 10; Bob Lynn on May 19; and Andy Roth on June
2, 1952 . It also appears that Respondents , offered reinstate-
ment to complainants Mango Reaves and John Freedman on
April 15 and to complainant Ambal Artiga on April 17, 1952,
and that these complainants declined to return to work for
Respondents because they had other employment . In these cir-
cumstances , we shall not direct the reinstatement of any of the
complainants herein . However , we shall order that Respondents
make each of the complainants whole for any loss of pay he may
have suffered 'by reason of the discrimination against him, by
payment of a sum of money equal to the amount he would have
earned as wages from the date of such discrimination to the
date of Respondents ' offer of reinstatement, less his net
earnings during such period. Such loss of pay shall be computed
in accordance with the formula adopted by the Board in F. W.
Woolworth Company, 90 NLRB 289.
We shall also order Respondents to make available to the
Board, upon request, payroll and other records to facilitate
the checking of the amounts due as back pay.
Because of Respondents' unlawful conduct and its underlying
purpose, we are convinced that the unfair labor practices
NATIONAL SHIRT SHOPS OF FLORIDA, INC. 133
found are persuasively related to other unfair labor practices
proscribed by the Act, and the danger of their commission in
the future is to be anticipated from Respondents' conduct in
the past. The preventive purposes of the Act will be thwarted
unless our order is coextensive with the threat . In order , there-
fore , to make more effective the interdependent guarantees
of Section 7, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and
obstructs commerce , and thus effectuate the policies of the Act,
we shall order Respondents to cease mad desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of
the amended Act.
On the basis of the above findings of fact and the entire record
in the case . we make the following:
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2 (5) of the Act.
3. All salespersons, tailors, porters, stockmen, and cashiers
at the Miami, Florida, stores of Respondents, excluding
managers, assistant managers, professional employees , watch-
men, guards, and supervisors, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. The Union was on January 25, 1952, and at all times
since has been the exclusive representative within the mean-
ing of Section 9 (a) of the Act of all the employees in the
aforesaid unit for the purposes of collective bargaining.
5. By refusing to bargain collectively with the Union as the
exclusive representative of the employees in the appropriate
unit , Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By discriminating in regard to the hire and tenure of
employment of the employees named in Appendix A, thereby
discouraging membership in a labor organization , Respondents
have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
7. By said unfair labor practices Respondents have interfered
with, restrained, and coerced their employees in the exercise
of rights guaranteed them in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
8. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2 (6) and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended , the National Labor Relations Board
hereby orders that Respondents , National Shirt Shops of Florida,
Inc. and National Shirt Shops of Miami, Inc ., their officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Department and
Specialty Store Employees Union, Local No. 1666, Retail Clerks
International Association , A. F. of L., as the exclusive repre-
sentative of their employees in the following appropriate unit:
All salespersons , tailors, porters , stockmen, and cashiers at
the Miami, Florida, stores of Respondents , excluding managers,
assistant managers, professional employees , watchmen, guards,
and supervisors.
(b) Discouraging membership in Department and Specialty
Store Employees Union, Local No. 1666, Retail Clerks Inter-
national Association , A. F. of L., or in any labor organization
of their employees, by refusing to reinstate any of their em-
ployees because of their union membership or activity, or in
any other manner discriminating in regard to their hire or
tenure of employment , or any term or condition of employ-
ment.
(c) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-
organization, to form, join , or assist any labor organization,
to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of 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 Department and
Specialty Store Employees Union, Local No. 1666, Retail
Clerks International Association , A. F. of L., as the exclusive
representative of the employees in the above -described unit,
with respect to rates of pay, hours of employment , and other
conditions of employment and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Make whole the complainants listed inAppendixAfor any
loss of pay they may have suffered by reason of Respondents'
discrimination against them, in the manner set forth in the
section entitled "The Remedy."
(c) Upon request make available to the National Labor Rela-
tions Board or its agents, for examination and copying, all
payroll records, social - security payment records , timecards,
personnel records and reports , and all other records neces-
sary for a determination of the amounts of back pay due under
the terms of this Order.
(d) Post at their stores in Miami, Florida, copies of the
notice attached hereto, marked "Appendix B." Copies of such
notice, to be furnished by the Regional Director for the Tenth
RELIANCE CLAY PRODUCTS COMPANY 135
Region, shall, after being duly signed by Respondents' repre-
sentative, be posted for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that Respondents have violated Section 8 (a) (1) of the
Act by conduct other than that found to be violative herein be,
and it hereby is, dismissed.
RELIANCE CLAY PRODUCTS COMPANY and UNITED STONE
& ALLIED PRODUCTS WORKERS OF AMERICA, CIO. Case
No. 16-CA-442. May 29, 1953
DECISION AND ORDER,
On March 11, 1953, Trial Examiner Reeves R. Hilton 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 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 Act, the
Board has delegated its powers in connection with this case to
a three-member panel [Members Houston, Murdock, and
Peterson].
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the Respondent' s excep-
tions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions and modifica-
tions.2
I The Employer's request for oral argument is hereby denied, as the record and the
Employer's brief adequately present the issues and positions of the parties.
2As the Trial Examiner reported, Foreman Ernest Gilbert questioned employee Veatch
about certain union meetings. Because no exceptions were filed to the Trial Examiner's
conclusion that Gilbert did not thereby commit an unfair labor practice, we hereby adopt
his conclusion. We do not, however, adopt his rationale with respect to this incident.
In adopting, in the absence of exceptions, the Trial Examiner's finding that the General
Counsel did not prove discriminatory motivation in McClenny's discharge, we are not to be
taken as endorsing as relevant his observations that Foreman Clyde Gilbert's remarks to
the Sittons were made to persons not employees and not communicated to employees.
105 NLRB No. 26.
291555 0 - 54 -10