S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Jun 30, 1954

108 N.L.R.B. 1615 (N.L.R.B. 1954)

S. H. KRESS & CO. 1615
exercise of rights guaranteed them in Section 7 of the Act , and thereby has engaged in unfair
labor practices within the meaning of Section, 8 (a) (1) of the Act.
4. 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.
APPENDIX A
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 Relations Act, we hereby
notify our employees that:
WE WILL NOT interrogate our employees regarding their union membership , sympa-
thies or activities.
WE WILL NOT discourage membership in International Union, United Automobile
Workers of America, AFL, or any other labor organization of our employees, by dis-
charging any of our employees , or in any other manner discrimina ting against them in
regard to their hire, tenure of employment , or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the
exercise of the right to self-organization , to form labor organizations , to join or assist
International Union, United Automobile Workers of America, AFL, or any other labor
organization , to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Lera M. Crabtree immediate and full reinstatement to her former or
a substantially equivalent position without prejudice to her seniority or other rights and
privileges , and make her whole for any loss of pay suffered by reason of her discharge.
BOWLING GREEN MANUFACTURING COMPANY,
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.
S. H. KRESS & CO. and RETAIL CLERKS UNION, LOCAL
1167, A.F.L. Case No. 21-CA-1703. June 30, 1954
DECISION AND ORDER'
On October 9, 1953, Trial Examiner William E. Spencer
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative
'Member Beeson joins in this decision, being bound by the majority decision in the previous
case of Whitin Machine Works, 108 NLRB 1537.
108 NLRB No. 229.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.2
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 Intermediate Report , the exceptions and
brief , and the entire record in the case, and hereby adopts
the Trial Examiner's findings , conclusions , and recommenda-
tions.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent , S.H. Kress
& Co., Riverside , California , its officers , agents, successors,
and assigns , shall:
1. Cease and desist from refusing to bargain collectively
with Retail Clerks Union , Local 1167, A.F. L., as the exclusive
representative of the following appropriate unit of its employees:
All employees in the Riverside , California , store, including
all regular part-time employees , but excluding guards, watch-
men, the cashier , assistant cashier, manager , assistant
manager or learner , floorladies , and supervisors as defined in
the Act, by failing and refusing to furnish the said Union with
the names, job classifications , if any, and wages of the individ-
ual employees in the said unit.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Furnish , on request , to Retail Clerks Union , Local 1167,
A.F.L., the names, job classifications, if any, and wages of
the individual employees in the above -described unit.
(b) Post at its store in Riverside , California , copies of the
notice attached hereto as an "Appendix ." 3 Copies of said notice,
to be furnished by the Regional Director for the Twenty-first
Region , shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty ( 60) con-
secutive 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.
2 The Charging Union moved for special leave to file a reply brief in answer to the Respond-
ent's exceptions and brief, and submitted copies thereof together with its request. As the
Union has failed to give sufficient reason for granting such special leave , its motion is hereby
denied and its reply brief is hereby rejected.
3In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words " Pursuant to a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
S. H. KRESS & CO. 1617
(c) Notify the Regional Director for the Twenty - First Region,
in writing , within ten ( 10) days from the date of this Order, as
to the steps the Respondent has taken to comply herewith.
APPENDIX
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, we hereby notify our
employees that:
WE WILL furnish, on request, to Retail Clerks Union,
Local 1167, A.F.L., the names, job classifications, if
any, and wages of all employees in the appropriate unit
at our Riverside, California, store.
The unit is:
All employees in our Riverside, California, store,
including all regular part - time employees , but exclud-
ing guards , watchmen , the cashier , assistant cashier,
manager, assistant manager or learner , floorladies,
and supervisors as defined in the Act.
S. H. KRESS & CO.,
Employer
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for sixty ( 60) days from the
date hereof, and must not be altered, defaced, or covered by
any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On the General Counsel's complaint alleging that S. H. Kress & Co., herein called the
Respondent , has engaged in and is engaging in unfair labor practices violative of Section
8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act, a hearing upon due notice was held before the undersigned Trial
Examiner at Los Angeles, California, on September 15, 1953. All parties were represented
at the hearing, were afforded full opportunity to be heard, to examine and cross-examine
witnesses , to introduce evidence bearing on the issues , to argue the issues orally upon the
record, and to file briefs and/or proposed findings. Oral argument was waived . Briefs have
been filed by the Respondent and Retail Clerks Union, Local 1167, A.F.L., herein called the
Union.
With respect to unfair labor practices the complaint alleged in substance , and Respondent's
duly filed answer denied, that the Respondent violated Section 8 (a) (1) and (5) of the Act by
refusing to bargain with the Union, the duly certified representative of its employees in an
appropriate unit, in that it refused to furnish the Union with job classifications and wage rates
of employees in the appropriate unit.
339676 0 - 55 - 103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon consideration of the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation maintaining its principal office in New York
City, operates a chain of retail stores throughout the United States, including a store at
Riverside, California, its sole operation involved in this proceeding, where it is engaged in
retailing low-priced variety merchandise.
It annually purchases for resale in the Riverside store merchandise of the value not in
excess of $ 100,000, approximately 90 percent of which is purchased outside the State of
California. It annually sells merchandise in an amount over $ 100,000 in value, all of which is
sold within the State of California
As a multistate enterprise the Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 1167, affiliated with the American Federation of Labor, is a
labor organization within the meaning of the Act, admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
The Facts
On or about November 15, 1952, by secret ballot, the Union was designated bargaining
representative of Respondent ' s employees in an appropriate unit. Its certification followed on
December 3. The Respondent does not question its representative status.
On December 20, the Union submitted to Respondent a copy of a contract proposal, and on
January 6, representatives of the parties met at the Union's office and discussed generally
the Union's proposal. On January 13, the Respondent submitted a counterproposal. Subse-
quently various modifications were made by both parties of some original proposals. Further
bargaining meetings were held on February 27, April 23, and May 29. All meetings were held
at the Union's office or the office of the Union's attorney, and present at all of these meetings
representing Respondent was John E. Kearns, Respondent's employee relations representative,
and, representing the Union, Ted Phillips, the Union's executive secretary, the latter accom-
panied at times by other union representatives. Kearns and Phillips were the sole witnesses
to testify at the hearing. The sole issue is whether Respondent violated Section 8 (a) (1) and
(5) of the Act by refusing to supply certain wage and classification data requested by the Union.
By letter dated January 26, 1953, Phillips made the following request of Kearns concerning
wage and classification data:
I would like to request, for the Union's purposes in negotiations, that you furnish the
Union with the present individual wages now being paid at the Kress Store in Riverside
and such individual names together with classifications or designations of individual
jobs, in other words, job classifications. Or, if no "legal" classifications, the "common"
classifications for the particular duties performed by any one individual. I have come to
the conclusion that the above is necessary in order that I may intelligently bargain in
regard to rates and classifications for the Riverside Store.
Kearns, while authorized generally to negotiate on behalf of Respondent, testified that this
request, which he understood to be a request for the names of individual employees, their
rate of pay, and their job classifications, was novel in his experience in negotiating contracts
for the Respondent and for that reason he referred the Union's request to Respondent's New
York office for a "legal ruling." By letter dated March 4, Kearns informed Phillips:
The payroll data you recently requested can not be made available until we receive
authorization from our Legal Department in New York.
S. H. KRESS & CO. 1619
Respondent 's New York office inquired of Kearns why the Union wanted this data, and in
various telephone conversations occurring in March and April , Larkin, director of Respond-
ent's legal department , indicated, as Kearns testified , that he did not think the Union needed
this information , did not consider the Union ' s request for this data "of much importance,"
and did not think the request "worthwhile answering."
Phillips at the meeting of February 3, In which admittedly wages and classifications were
discussed , asked Kearns about the Union's letter of January 26, and Kearns informed him
then, as later in the letter of March 4 , that he would have to obtain authorization from the
New York office before submitting the requested data.
By letter dated April 3, Phillips wrote to Kearns with respect to the Union's request for
wage and classification data:
In regard to your letter of March 4th that the pay roll data can not be made available
until you receive authorization from New York , this is hardly the answer which we
require. We want to know will the Company or will the Company not, give us the classi-
fications and wage data which it becomes increasingly apparent that we need in order to
reach any intelligent conclusion on the wage question . Just a yes or no.
At the April 23 meeting , Phillips admittedly told Kearns that he still wanted the data as
requested and reminded Kearns of the Union ' s second letter of March 4 in which it had
reiterated its request . Kearns replied that he had not been authorized to furnish the data.
Kearns testified that if there was discussion of the wage issue at the May 29 meeting he
did not recall it but admitted that there might have been " in passing"; according to him most
of the discussion at that meeting was on the topic of union security and on that topic an
impasse was reached inasmuch as the Union refused to modify its original proposal . Phillips
testified that he asked Kearns at this meeting if Respondent had changed its mind on furnish-
ing the wage data and that Kearns replied that it had not . Kearns admitted that at this meeting
he informed Phillips that he had not yet received authorization for supplying the data.
Following the May 27 meeting , the Union filed the charge which initiated this proceeding
and no further bargaining conferences were held.
Conclusions
It is clear that the Union twice in writing, on January 26 and April 3, requested that the
Respondent furnish it with wage and classification data, and in at least two bargaining meet-
ings, April 23 and May 29, inquired of Respondent 's representative , Kearns , whether the
request would be complied with
It is equally clear , in my opinion, that there was a definite refusal of the Union ' s request. i
There was a definite refusal because at no time from the date of the first written request,
January 25 , to the final bargaining conference , May 29, a period of slightly more than 4
months , was this data supplied and at no time was Kearns , Respondent ' s representative at
all the bargaining conferences , authorized to supply it. It is an idle play on words to say that
the refusal was not final , that at some unspecified time in the future the Respondent might
have changed its mind about furnishing the data . If the Respondent was under a legal com-
pulsion to supply this data at all, it was bound to supply it within a reasonable period after
receiving the request, and a delay of 4 months with no intimation then that the Respondent
would ever change its mind about supplying the data , under the circumstances of this case was
not a reasonable delay . The rationale for the requirement that wage data be furnished is
that it is essential to collective bargaining on the issue of wages , and the issue of wages
normally is, and was in this case , one of the foremost subjects of collective bargaining.
All this being true, any delay in the furnishing of wage data beyond that reasonably required,
at the least impedes collective bargaining and at the most renders it futile.
iExcerpt from Kearns ' testimony on cross-examination:
Q. During the course of the conversation with Mr. Larkin in April, he told you not
to give the information to the union
A. Well, you might say that. He said he did not know why this information should be
given out.
Q. So, you understood you could not give it?
A. I had no authorization.
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A request having been made and the request having been refused, we turn to the Respond-
ent's several defenses.
I find no merit in Respondent ' s contention that it regarded the Union ' s request as nominal,
of not much importance, not"worthwhile answering." Thefact that the Union put its request in
writing is indicative of something more than a nominal interest in the matter , and the Union
could hardly have expressed its position in stronger but still polite language than it did in
its letter of January 26 when Phillips stated that he had "come to the conclusion" that the
data was necessary in order thathemight " intelligently bargain in regard to rates and classi-
fications," and in its letter of April 3 when it was stated: "We want to know will the Company
or will the Company not , give us the classifications and wage data which it becomes in-
creasingly apparent that we need in order to reach any intelligent conclusion on the wage
question." Assuming the fact is as stated by Kearns in his testimony , that not a great deal
of time was taken for the discussion of wages during the negotiations which occurred, this
is reasonably indicative not of the Union ' s lack of interest in obtaining the wage data but of
a disposition to forego extensive negotiations on the topic of wages until the data had been
supplied . I do not profess to know to what further extent the Respondent would have had the
Union press the matter in order that it be persuaded to take the Union ' s request seriously.
Other defenses argued in Respondent ' s brief are that the Union itself refused to bargain
collectively and that an impasse had been reached in contract negotiations . Assuming without
finding that such defenses are maintainable upon a proper showing , where the duty to furnish
wage and classification data is the issue , we turn to a discussion of these matters.
It is true that aside from the wage issue , the Respondent did not agree to all of the Union's
proposals for a contract and the Union did not agree to all the Respondent ' s counterproposals.
Certain matters of some substancewere agreed upon , some were partially agreed to , and as of
the last meeting of May 27 , a number of important issues were still being negotiated . Among the
Union ' s proposals which the Respondent had rejected , was its proposal that the International
with which the Local was affiliated, be made a party to the contract. Z At the meeting of April
23, Phillips , according to Kearns , indicated that he could not agree to Respondent ' s counter-
proposal that the contract be executed by the Local and the Respondent , without bringing In
the International as a party to it , until he had cleared with his superior . This [natter was not
discussed at the May 27 meeting and it is clear that Phillips ' position at the April 23 meeting
had left the entire issue open for further discussion . Therefore there was neither an impasse
nor a refusal to bargain in the matter . Admittedly , the Union ' s position on this proposal was
not related to Respondent ' s refusal to supply wage and classification data.
In the matter of union security, Kearns testified that the Union was adamant in insisting
that its proposal be accepted without modification and that he regarded this, and not the wage
issue , as the chief stumbling block to a successful termination of contract negotiations.
According to him most of the discussion at the May 27 meeting centered on this topic. Phillips
denied that he took an adamant position in the matter . Assuming without finding that at no
time did the Union agree to modify its proposal on union security , this at most represented
no more than a failure of the parties to agree on a single clause of a contract proposal which
contained some 20-odd clauses , and represents neither a refusal to bargain nor an impasse
in contract negotiations . With the wage and classification data at hand and real bargaining
on wages thereby instituted, it might well be that the Union would have modified its union-
security demands as a measure of obtaining concessions elsewhere , but this is speculative,
as speculative as Kearns ' conclusion that only the matter of union security barred agreement
on a contract , and need not concern us here. It is sufficient to state that a refusal to waive or
modify a proposal does not per se constitute a refusal to bargain since under the Act parties
are not required to agree or io make concessions in order to prove their good faith , and with
the Respondent withholding wage aqd classification data essential to good-faith bargaining on
the wage issue, the claim of an impasse is at most premature.
Finally, it may be argued that the Union could have obtained all the information needed
for bargaining on the wage issue from the employees , and that it was in effect informed on
classifications by testimony given by Kearns at the representation proceeding which preceded
21t appears that the Union wished to sign any contract agreed on as agent of its International.
The Board certification reads: Retail Clerks Union Local No. 1167 of Retail Clerks Inter-
national Association. A. F. of L.
S. H. KRESS & CO, 1621
the bargaining election , and by information given by Kearns orally at the bargaining con-
ferences. Phillips testified that the Unionhad obtained some of this information from employees
but indicated that not all employees approached were willing to divulge such facts. Be that as it
may, if I have read the decisions correctly, the supplying, on request, of wage and classifica-
tion data essential to negotiations , is a sine qua non of true collective bargaining and not
itself a bargainable subject, any more than recognition of a certified union is bargainable.3
It is immaterial that the Union might have gathered the bulk of this needed material through
a series of interviews with members and employees: it was entitled to that complete, accurate,
and authoritative statement of the facts which only the employer was in position to make.
Here, also, it is immaterial that certain information on classifications was given at the repre-
sentation hearing and, orally, by Kearns- what the Union sought was not only a complete
statement of current classifications but the name of each individual employee together with
his classification, if any, and his current wage rate. Kearns understood this. Such complete
and current information was supplied neither orally by Kearns nor by the testimony given
at the representation hearing; such complete and current information the Union was entitled
to. Its denial constituted a violation of Section 8 (a) (1) and (5) of the Act.4
IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection with
the operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned
makes the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union , Local 1167, A.F.L., is a labor organization within the meaning of
Section 2 (5) of the Act.
2. With its certification on December 3, 1952, the Union was , and at all times since has
been, the exclusive representative of Respondent ' s employees in an appropriate unit.
3. By failing and refusing at all times since January 26, 1953 , to furnish the Union with the
names, job classifications if any, and wages of all employees in the appropriate unit, the
Respondent has failed and refused to bargain collectively with the Union as the exclusive
representative of the said employees , and has thereby engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and ( 5) of the Act.
4. 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
9 "Since the employer has an affirmative statutory duty to supply relevant wage data, his
refusal to do so is not justified by the Union's failure initially to show the relevance of the
requested information. The rule governing disclosure of data of this kind is not unlike that
prevailing in discovery procedures under modern codes. There the information must be dis-
closed unless it plainly appears irrelevant." (Emphasis supplied.) N. L. R. B. v. Yawman &
Erbe Manufacturing Co., 89 NLRB 881, enfd. 187 F. 2d 947 (C. A. 2). See also, Reed and
Prince, 96 NLRB 850; Aluminum Ore Co. v. N. L. R. B., 131 F. 2d 485 (C. A. 7); J. H.
Allison & Co., 70 NLRB 377, enfd. 165 F. 2d 766 (C. A. 6), cert. denied 335 U. S. 814.
4 While the burden was not on the Union to show the relevancy to contract negotiations of
the requested data, as a condition precedent to Respondent's duty to furnish it, it had grounds
for believing that in some instances the wage schedules offered by Respondent in its counter-
proposal were less than wages currently being paid and its expressed concern in this matter
alone was sufficient to indicate the relevancy of the requested data. N L. R B. v. Yawman &
Erbe Manufacturing Co., supra