S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Jul 11, 1962

137 N.L.R.B. 1244 (N.L.R.B. 1962)

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively ; upon request , with International Guards Union
of America, as the exclusive representative of all the employees in the bargaining
unit described below, with respect to rates of pay, wages , hours of employment,
or other conditions of employment , and, if an agreement is reached , embody
it in a signed contract . The bargaining unit is:
All guards employed by the Respondent at the Mead Offutt Air Force
Base Missile Complex , excluding all other employees and supervisors as
defined in the Act.
WE WILL, upon request , furnish International Guards Union of America, with
such statistical and other information as will substantiate our position as to our
ability to pay any requested wage increase and will enable the aforesaid Union
to discharge its functions as the statutory representative of the employees in the
above-described unit.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named Union, or any other labor
organization , to bargain collectively through representatives of their own
choosing , to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection , or to refrain from any or all such
activities.
Tim WILLIAM I. BURNS INTERNATIONAL
DETECTIVE AGENCY, 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.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone Number
Baltimore 1-7000, Extension 731, if they have any questions concerning this notice
or compliance with its provisions.
S. H. Kress & Co . and Teamsters , Chauffeurs , Warehousemen &
Helpers, Local 439, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America. Case No.
20-CA-2102. July 11, 1962
DECISION AND ORDER
Upon charges duly filed by Teamsters, Chauffeurs, Warehousemen
& Helpers, Local 439, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein called Local
439, the General Counsel of the National Labor Relations Board, by
the Regional Director for the Twentieth Region, issued a complaint
dated October 26, 1961,' against S. H. Kress & Co., herein called the
Respondent, alleging that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8(a) (1) and Section 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the charge, complaint, and notice of
hearing before a Trial Examiner were duly served upon the Respond-
ent and the Charging Party.
I Unless otherwise specified, all dates herein refer to 1961.
137 NLRB No. 126.
S. H. KRESS & Co. 1245
With respect to the unfair labor practices, the complaint alleges,
in substance, that the Respondent interrogated its employees at its
retail store in the city of Stockton, California, concerning their union
membership, activities, and desires, and sought to induce its em-
ployees to revoke authorizations they had previously signed desig-
nating Local 439 as their collective 'bargaining representative, for the
purpose of undermining Local 439 and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
On January 17, 1962, all parties to this proceeding entered into a
stipulation of facts, and on January 19, 1962, jointly moved to trans-
fer this proceeding directly to the Board for findings of fact, con-
clusions of law, and decision and order. The motion states that the
parties have waived their right to a hearing before a Trial Examiner,
and to the issuance of an Intermediate Report. The motion also pro-
vides that the charge, complaint, and stipulation of facts constitute
the entire record in the case.
On January 22, 1962, the Board granted the parties' motion to
transfer the case to the Board. Briefs were thereafter filed by the
General Counsel and the Respondent. Upon the basis of the parties'
stipulation of facts, the briefs, and the entire record in the case, the
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, is engaged in retail sales
of general and variety merchandise in some 30 States of the United
States. During the year prior to October 26, 1961, a representative
period, Respondent, in the course and conduct of its business opera-
tions, sold and distributed products, the gross value of which ex-
ceeded $500,000. During the same period of time, Respondent re-
ceived goods valued in excess of $50,000 transported to its place of
business in Stockton, California, in interstate commerce directly from
points outside the State of California.
Respondent admits, and we find, that it is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers, Local 439, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization as defined in Section 2(5)
of the Act.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The facts as stipulated show that on August 2, Local 439 filed a
petition (Case No. 20-RC-4706, not published in NLRB volumes)
seeking an election in a 60-employee unit of "all selling and non-
selling employees" at the Employer's place of business in Stockton,
California. On August 9, Local 439 filed charges, alleging certain
acts of interrogation by Respondent to have been unlawful. These
charges were withdrawn on August 24, with the approval of the
Regional Director.
On August 31, the Regional Director submitted a proposed agree-
ment for consent election to the parties. On September 6, at the
request of the Respondent, the Regional Director withdrew the pro-
posed consent-election agreement, and submitted to the parties a
stipulation for certification upon consent election. Local 439 refused
to sign the stipulation because it disagreed with Respondent's pro-
posed unit exclusions. Thereupon, on September 12, the Regional
Director issued notice of hearing in the representation case, to be held
on September 27.
On or about September 15 and 16, Respondent's Labor Relations
Representative Charles G. Barry, and its store manager, Glenn E.
Greenbank, interviewed 46 of the employees included in the proposed
unit. Each of the employees was called separately into a storeroom
area, unconnected with the manager's office, and was there interviewed
by Greenbank and Barry.
The interviews were conducted during working hours, and the em-
ployees were paid for the time spent at the interviews. Each employee
was told that the Company wanted only to determine whether the
Union had obtained enough signatures, 30 percent, to support its
petition. Each was assured that his job was not endangered, and
that he could speak freely, and was further advised that it was not
Respondent's intention to inquire into their feelings for or against the
Union. Rather, they were advised that they were under no obligation
to discuss their feelings, that they were not required to furnish any
information to Respondent, and that they were free to leave at any
time.
Each employee was then handed a mimeographed form which read
as follows :
S. H. KRESS & CO.
Stockton, California
I have not signed a card for the union to represent me as an
employee of S. H. Kress & Co.
Dated--------------- Signed----------------------------
(Employee )
S. H. KRESS & CO. 1247
Each employee was asked to read the form, and was then told that
he could sign it or not, as he wished, that the matter was confidential,
and that it would not affect his job. Forty employees signed such
forms. One stated she had not signed an authorization card, but would
not sign the form. Five, upon stating that they had signed authoriza-
tion cards, were asked by Respondent if "they were sure what it
meant." All replied in the negative, and Respondent thereupon sug-
gested that, if they wished to revoke their authorizations, they could
so indicate on the mimeographed form. Four signed the form, adding
the following note : "I signed a card but would like to have it revoked."
One signed, adding : "At the time I signed the card I was unaware of
the purpose of the card." None of these "revocations" was communi-
cated to the Union, then or thereafter.
During the interviews, Respondent expressed no opinion about the
Union, or union organization, and none of the employees interviewed
made any protest or indicated any objections to any statements made
or questions asked.
On September 19, Barry forwarded the 45 signed forms to the
Regional Director, requesting him to reinvestigate Local 439's showing
of interest. The Regional Director conducted a reinvestigation and
concluded that some of the signed forms were false, and Respondent
was notified that the Regional Director was satisfied the showing was
adequate and proper. On September 25, the Regional Director noti-
fied all parties that : "Upon the basis of newly discovered evidence,
the withdrawal request heretofore approved August 24, 1961, is hereby
revoked and the case is re-opened for further investigation." A com-
plaint was issued by the Regional Director on October 26, alleging
that Respondent violated Section 8(a) (1) by its interrogation on or
about September 15 and 16 and scheduling a hearing for December 5.
This hearing was later rescheduled for January 16, 1962. Subse-
quently, the parties notified the Board of their intention to enter into
a stipulation of facts, and to waive their right to a hearing. As
stated above, their motion to transfer the case to the Board was
granted on January 22, 1962.
Respondent states that the interviews took place after approximately
13 employees "voluntarily reported" to Greenbank and other super-
visors, on or about August 5 and 7, that they did not believe 30 percent
of the employees had signed authorization cards. It contends that,
on the basis of this information, and in view of the Board's decisions in
Blue Flash Express, Inc., 109 NLRB 591, General Shoe Corporation,
114 NLRB 381, and John Pratto and Frank Pratto d/b/a Globe Iron
Foundry, 112 NLRB 1200, it was justified in conducting interviews
for the purpose of showing that Local 439 did not have a proper show-
ing of interest. It asserts that its ultimate purpose was to determine
the Union's majority status.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find no merit in Respondent's arguments. The Blue Flash case
is clearly inapposite, for there the matter investigated by the respond-
ent employer through systematic interrogation of employees as to their
union allegiance, was the question of the union's claimed majority
status. The Board there held that such interrogation, conducted for
a "purpose legitimate in nature," i.e., to determine whether the em-
ployer had an obligation to recognize and bargain with the union,
and explained to the employees on that basis, did not tend to restrain
or interfere with employees' exercise of rights guaranteed by the Act
simply because of the systematic nature of the interrogations.
Here the Union simply filed a petition and submitted sufficient au-
thorization cards to satisfy the Board's showing-of-interest require-
ments, so as to obtain a Board-conducted representation election. The
Board's showing-of-interest rule was adopted as an administrative
expedient to enable the Board to determine for itself whether or not
the filing of a petition warrants the holding of an election, and to avoid
needless dissipation of the Governmment's time, effort, and funds a
The Board's authority to conduct the necessary investigation of the
question concerning representation raised by the petition is not de-
pendent upon a petitioner's showing of interest of any specific per-
centage; nor does the showing of interest determination in any way
affect an employer's obligations with respect to the Union. It is the
election, not the petitioner's showing of interest, which decides whether
the employer is obligated to recognize the petitioner as the exclusive
bargaining representative of the employees.
An integral and essential element of the Board's showing-of-
interest rule is the nonlitigability of a petitioner's evidence as to such
interest. The Board reserves to itself the function of investigating
such claims, and in its investigation it endeavors to keep the identity
of the employees involved secret from the employer and from other
participating labor organizations. It does so, first, because the Act
places upon it the responsibility for investigation of questions concern-
ing representation when raised by a petition filed under 9 (c) ; second,
because the disclosure of the identity of the employees involved to
other parties tends to destroy the secrecy of the ballot, and the integ-
rity of the Board's process; and third, because the Board cannot,
in good conscience, permit a rule adopted for its own convenience as
an administrative expedient, to be turned into a procedure by which
an employer can inform itself of the identity of employee leaders of
organizational campaigns. The cases are commonplace in which em-
ployer knowledge of such leaders has been but the first step to retalia-
tory and discriminatory action against employees for the patent
purpose of restraining, interfering with, and thwarting their organ-
2 See 0. D Jennings & Company, 68 NLRB 516; Terminal System , Inc, et at., 127
NLRB 979, 981.
S. H. KRESS & CO. 1249'
izational activity; 3 especially is this so during the incipient stages
of organizational campaigns.
It follows that the Board's requirement that petitions be supported
by a 30-percent showing of interest gives rise to no special obligation
or right on the part of employers to interrogate employees as to their
participation in the petitioner's organizational campaign. Interroga-
tion, conducted for such purpose, serves no useful function and is not
conducted for a purpose "legitimate in nature." The fact that the
Board consented, in the cases cited by Respondent, to reinvestigate
showing of interest submissions upon claims of fraudulent or other-
wise improper showings, supported by evidence, does not serve to,
validate the Respondent's conduct in this case. In fact, those cases
reinforce the observation made earlier, that the Board reserves to it-
self the right and responsibility for the investigation of such matters,
and serve to illustrate that the Board takes pains to insure the in-
tegrity of its election processes. Respondent herein conducted its
systematic interrogation after 13 employees voluntarily informed it
of their doubts as to the adequacy of the showing of interest submitted
in support of the Union's petition. Respondent could have imparted
that information to the Regional Director and requested a reinvesti-
gation of the matter. Instead it usurped the Board's function by in-
terrogating the employees itself. In so doing, it infringed upon the
employees' right to privacy in their union affairs, a right necessary
to the full and free exercise of the organizational rights guaranteed
to employees by Section 7 of the Act.
That such invasion of their privacy interfered with and restrained
the employees in the exercise of their Section 7 rights, is shown by the
effects of the Respondent's conduct, effects produced notwithstanding
the Respondent's assurances to the employees that it was not its
intention to inquire into the employees' feelings for or against the
Union; that their participation was voluntary; and that their jobs
were not in danger. Four of the five employees were plainly induced
to attempt a revocation of their authorization to the Union to represent
them.' Further, the Regional Office on the basis of its investigation
concluded that some of the signed forms, wherein the employees stated
that they had not signed authorization cards for the Union, were false.
Whether this was the result of a disinclination on the part of the em-
ployees to inform their employer of the extent of their union activities,
or of the fact that the form submitted to them by Respondent plainly
invited a negative answer to the question posed, the fact that they
3 See, e g, Wilbur, Chester and John Ford, d/b/a Ford Brothers , 73 NLRB 49; Texas
Miller Products, Inc, 83 NLRB 616; Willard's Shop Rite Markets, Inc., 132 NLRB 1146;
Ken Lee, Inc, 133 NLRB 1598; Tak Trak, Inc, 128 NLRB 876; Starkville Mills, Inc,
and its successor Buck Creek Cotton Mills , Starkville Division, 129 NLRB 1474.
'Apart from any other factors, we find that such inducement violated Section 8(a) (1)
of the Act
649856-63-vol. 137-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were individually interrogated, that there was lack of secrecy, or
because of other factors, they nevertheless serve to illustrate the policy
and practical considerations which support our conclusion that no use-
ful or legitimate purpose is served, or can be served, by systematic
employer interrogation undertaken for the purpose of investigating
the adequacy of a petitioner's showing of interest.
In view of all the foregoing, we conclude that conduct of the type
engaged in by Respondent herein necessarily tends to interfere with
and restrain employees in the exercise of their Section 7 rights, and to
interfere with the election processes of the Board. By engaging in
such conduct, therefore, Respondent has violated Section 8(a) (1) of
the Act.
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 its operations as 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
Having found that the Respondent unlawfully interrogated its
employees on or about September 15 and 16, by questioning them con-
cerning their union membership, activities, and desires, and by seeking
to induce its employees to revoke authorizations they had previ-
ously signed designating Local 439 as their collective-bargaining
representative, we shall order that the Respondent cease and desist
therefrom and take certain affirmative action designed to effectuate the
policies of the Act. We shall also order that the Respondent cease
and desist from in any like or related manner infringing upon the
rights of its employees guaranteed them by Section 7 of the Act.
CONCLUSIONS OF LAW
1. S. H. Kress & Co. is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. Teamsters, Chauffeurs, Warehousemen & Helpers, Local 439,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, is a labor organization within the meaning of
the Act.
3. By interrogating its employees on or about September 15 and
16, 1961, concerning their union membership, activities, and desires,
and by seeking to induce its employees to revoke authorizations they
had previously signed designating Teamsters, Chauffeurs, Warehouse-
men & Helpers, Local 439, International Brotherhood of Teamsters,
S. H. KRESS & Co. 1251
Chauffeurs, Warehousemen & Helpers of America, as their collective-
bargaining representative, the Respondent has interfered with and
restrained its employees in the exercise of the rights guaranteed them
by Section 7 of the Act, and has thereby engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
4. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this 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., Stockton,
California, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their union member-
ship, activities, and desires, in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act, and
seeking to induce its employees to revoke authorizations previously
signed by them designating Teamsters, Chauffeurs, Warehousemen &
Helpers, Local 439, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, as their collective-
bargaining representative.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Post at its Stockton, California, place of business, copies of the
notice attached hereto marked "Appendix." 5 Copies of such notice, to
be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for at least 60 consecutive days thereafter, in
conspicuous places, including all places, where notices to employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for the Twentieth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
5In 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 "
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union
membership, activities, and desires, under circumstances consti-
tuting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
WE WILL NOT seek to induce our employees to revoke authoriza-
tions previously signed by them designating Teamsters, Chauf-
feurs, Warehousemen & Helpers, Local 439, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, as their collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
S. H. DRESS & Co.,
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.
Employees may communicate directly with the Board's Regional'
Office, Room 703, 830 Market Street, San Francisco 2, California, Tele-
phone Number, Yukon 6-3500, Extension 3191, if they have any ques-
tion concerning this notice or compliance with its provisions.
The Gabriel Company Automotive Division and International
Brotherhood of Teamsters, Chauffeurs , Warehousemen, and
Helpers of America , Teamsters Union Local No. 293, Peti-
tioner. Case No. 8-RC-4217. July 11, 1962
SECOND SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF THIRD ELECTION
Pursuant to a stipulation for certification upon consent election,.
executed July 27, 1961, an election by secret ballot was conducted on
September 19, 1961, under the direction and supervision of the Re-
gional Director for the Eighth Region among the employees in the.
stipulated unit. At the conclusion of the election the parties were,
137 NLRB No. 130.