S. Klein Department Stores, Inc.

National Labor Relations Board - Board Decisions

Nov 5, 1964

149 N.L.R.B. 466 (N.L.R.B. 1964)

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct by its members not to' work with people regarded as nonunion and refusals
to work by its members employed by Kammer, notwithstanding, other similar
conduct by its members in May and July 1962, September' 13 and 14, 1962, the last
part of September 1962, January 17 and 21 and early February 1963, February 4,
1963. By the aforesaid conduct, and, by instructions to members, given prior to
February 1963, not to work with Dade or to recognize any right of Dade to
perform sound work, Respondent induced and encouraged individuals employed by
Kammer not to work. By the aforesaid conduct, Respondent threatened, re-
strained, and coerced Pan American, Coker, and Kammer. An object of all the
aforementioned conduct was to force or require the aforesaid contractors or persons
to cease doing business with Dade. This conduct was in violation of Section
8(b)(4)(i) and (ii)(B) of theAct. 61
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth above, occurring in connection with the
operations described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in viola-
tion of Section 8(b)(4)(i) and (ii)(B) of the Act, it is recommended that it cease
and desist therefrom and take certain affirmative action designed to remedy the
unfair labor practices and to effectuate the purposes of the Act. The nature of the
violations makes a broad order appropriate although, as noted previously, there is
an outstanding order of the Board that is a broad order and a court of appeals
decree that is equally broad.
CONCLUSIONS OF LAW
1. The Employers as described in section I, above, are employers engaged in
commerce, and Respondent is a labor organization, all within the meaning of the
Act.
2. By the conduct described in section III, above, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section
8(b) (4) (i) and (ii) (B) of the Act.
[Recommended Order omitted from publication.]
6'MacMillan of Dade had been a member of IBEW for about 9 years, principally In
White Plains, New York He had worked out of Local 349 for about a year and then went
Into business as a contractor. As a contractor he had had a contract with Local 349 for
1i/ or 2 years. A former IBEW cardholder had some kind of a dispute with MacMillan
about some money allegedly owed None of the Local 349 members Involved in the in-
stant case were parties to the aforesaid dispute and there is no evidence that they were
aware of MacMillan's past or were motivated by any feelings in that regard
Subsequent to the close of the hearing, the General Counsel and the Respondent filed
separate motions to correct the record The General Counsel's motion is granted, with
the following exception, On item 1 the motion is granted except that the word "didn't,"
on line 5, page 134, is not changed to "don't." Respondent's motion is granted.
S. Klein Department Stores, Inc.' and Local 1390, Retail Clerks
Union, AFL-CIO and Retail, Wholesale and Department
Store Union, AFL-CIO, Party to the Contract. Case No. 4-CA-
3053. November 5, 196.
DECISION AND ORDER
On July 27, 1964, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
1 The name of the Respondent is shown as amended at the hearing.
149 NLRB No. 49.
S. KLEIN DEPARTMENT STORES, INC. 467
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a brief in support thereof. The Charging Party filed exceptions
and a statement in support thereof; the Respondent filed an answer-
ing brief to exceptions filed by the' General Counsel and the Charging
Party; and the Party to the Contract filed a brief in reply to briefs of
the General Counsel and the Charging Party.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs, and the entire record in
the case, and hereby adopts the, Trial Examiner's findings,2 conclu-
sions, and recommendations.3
[The Board dismissed the complaint.]
2 The General Counsel and the Charging Party have excepted to the credibility findings
made by the Trial Examiner . It Is the Board ' s established policy, however , not to over-
rule a Trial Examiner's resolutions with respect to credibility insofar as they are based on
demeanor unless , as is not the case here , the clear preponderance of all relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc.,
91 NLRB 544 , enfd. 188 F 2d 362 ( CA. 3). -
3 The Board specifically disavows the Trial Examiner ' s statement that the assertions
made by the General Counsel in his brief to the Trial Examiner find no support in the
record The General Counsel is a party to an unfair labor practice proceeding and can
be expected to stress in his brief the evidence which is most favorable to his position.
That is all the General Counsel did in this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed July 29, 1963, and amended charges filed October 18, 1963,
by Local 1390, Retail Clerks Union , AFL-CIO, herein called Local 1390 or the
RCIA,1 against S . Klein Department Stores, Inc.,2 herein called S. Klein or the
Respondent , the General Counsel issued a complaint and an amendment to the
complaint alleging Respondent gave unlawful aid and assistance to Retail , Whole-
sale and Department Store Union, AFL-CIO,- herein called RWDSU, and entered
into a contract with RWDSU which provided for union security and a checkoff
of dues at a time when RWDSU did not represent an uncoerced or unassisted
majority of its employees, and that by such conduct Respondent violated Section
8(a)(1), (2 ), and (3 ) of the Act.3
The answer and amended answer of Respondent denied the commission of any
unfair labor practices.
i The name of the Respondent is shown as amended at the hearing..
2 The Charging Party is referred to as the RCIA In the briefs of the parties although
the initials stand for the designation of the International.
3 The complaint was amended at the hearing to add paragraph 4(c).
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This proceeding , with all parties represented , was heard before Trial Examiner
John F . Funke at Philadelphia , Pennsylvania, on February 5, 6, and 7 and March
5 and 9 , 1964 .4 Briefs were received from the Respondent ; the General Counsel,
and RWDSU on May 4, 1964.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation maintaining its principal office in New
York, New York. It is engaged in the operation of retail department stores,
the store in Philadelphia being the only one involved in this proceeding . During
a representative year the Philadelphia store has gross sales in excess of $500,000
and purchases goods valued in excess of $50,000 outside the Commonwealth of
Pennsylvania.
Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
H. LABOR ORGANIZATIONS INVOLVED
Local 1390 and RWDSU are labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. Background
Prior to the opening of Respondent 's Philadelphia store its employees at other
stores were covered by collective-bargaining contracts . Employees at the New
York stores were represented by the RWDSU and employees at the Newark, New
Jersey, store by the RCIAS so that competition for representative status had already
been established
Jacob Shufro , director of industrial relations for S . Klein , was a candid and
credible witness . He testified that prior to the opening of the Newark store the
RCIA had picketed the premises and construction had been halted . Shufro was
anxious not to have a repetition of picketing at the Philadelphia store and to
eliminate the rivalry between the two unions in organizing the Philadelphia store
A meeting was therefore arranged between Shufro and Earl McDavid , director
of organization for the Metropolitan New York Division of RCIA, for Septem-
ber 7, 1962. Shufro proposed that the RWDSU and the RCIA stop fighting each
other over the individual stores and was told by McDavid that the RCIA would
organize at Philadelphia.
A subsequent meeting was held on November 1, 1962, attended by McDavid,
William McGrath , organizing director of the central division of the RCIA, and
George Meisner, who represented the New Jersey local of RCIA. At this meeting
Shufro informed the union representatives that S. Klein contemplated opening
stores in Washington and Boston and suggested that some territorial division
be arranged between the two rival unions . More specifically he suggested that
RWDSU organize the Philadelphia and Boston stores and RCIA organize the
new Woodbridge store and the Washington store. McDavid stated that the RCIA
did not recognize the jurisdiction of any other international union over any stores
in the country.
4 After the close of the hearing the Respondent and the General Counsel moved to cor-
rect the record in certain respects These motions are hereby granted. On his own motion
the Trial Examiner orders the record further corrected as follows:
Page 49, line 25, change "can" to "had" , page 120, line 14, strike "was" , page 125,
line 17 , strike "parking" ; page 149 , line 18, change "another" to "either" , page 180,
line 10, change " that" to "when " ; page 185, line 1, change "the home" to "this
time" ; page 212 , line 17, change "will" to "were " : page 212 , line 23 , change " letting"
to "let go" ; page 220, line 13, change "a" to "8 ( a) (3) " ; page 346, line 1 , change
"conador" to " candor" ; page 387 , line 6 , change "before" to "again" ; page 405,
line 4, change "evidence" to "allegation " ; page 414, line 19, change "effect" to
"attack" ; page 419, line 9, change "time" to "type."
5 The Newark contract with RCIA had an accretion clause which would cover a new
store Respondent was constructing at Woodbridge , New Jersey.
S. KLEIN DEPARTMENT STORES, INC. 469
McDavid testified that at the September 7 meeting Shufro told him he had com-'
mitted the Philadelphia and Boston stores to Max Greenberg, international president
of RWDSU, and asked McDavid to stay away and that again at the meeting
on November 1 Shufro asked McGrath to stay away from the Philadelphia and
Boston stores and again met refusal. There were further meetings between Shufro
and McGrath but no agreement on territorial jurisdiction was reached. (The
testimony indicates that agreement had been reached between RWDSU and RCIA
with respect to the New York and New Jersey stores but I find such agreement
irrelevant to the issues here.)
McGrath testified that he had never met Shufro and arranged to meet him
on November 1. McGrath wanted to know if S. Klein intended to fight the
RCIA in Philadelphia and stated that he had, at that time, no knowledge the
RWDSU intended to organize at Philadelphia.
While counsel in their briefs have pointed to discrepancies between the testimony
of Shufro on the one hand and McDavid and McGrath on the other, I do not
regard these as serious. The conclusion I reach is that Shufro would have been
happy if the two unions could reach agreement and that he thought that a
reasonable basis for such agreement was the one he suggested, a suggestion
which met with complete rejection by the RCIA.
2. Respondent's assistance to the RWDSU
a. The testimony of the RCIA organizers
Both the RWDSU and the RCIA began their organizing activities at the Phila-
delphia store before the store opened on March 13, 1963. The paid organizers
for the RCIA were Doris Quinn, Jean Rooney, Marvin Jaffe, and Hyman Sloan
and the General Counsel contends they were harrassed by Respondent in legitimate
efforts to organize the employees while the RWDSU was given free rein.
S. Klein is located in a residential area in northeast Philadelphia. It is oiv
a large plot and the building itself is set back some 200 feet from the street
and this area, surrounding the building on three sides is used as a parking,
lot for customers and employees.
Jean Rooney, a business agent for Local 1390, testified that she, together with
Harry Gesana and Mr. McLaughlin, also business agents for the Local, visited
the store about a week before it opened "looking the situation over, giving
out literature." (Employees were already working in the store.) After the store
opened she would walk around the store, then go to Linton's restaurant where
she signed up employees and visited them in the evenings at their homes. Her
first contact with management came on a rainy day before the opening when
she and other RCIA organizers were distributing literature in the door in front
of the store. Michael Weil, security manager of the store, came out and told
them' to move to the sidewalk. (The sidewalk was adjacent to the street, 200
feet from the store and, naturally, unsheltered.) Rooney told Weil it was raining
and he could not do that to them and the organizers remained at the doors. Roon-
ey testified that when the organizers entered the store during working hours
bells would ring and a detective would follow them until they left the store.6 Roon-
ey did not solicit within the working areas of the store because she did not
think it proper but was, on one occasion, asked to leave the store. This took
place when a store detective named Emma Toczydlowski followed her into the
powder room and told her she would have to leave the store. Rooney told her
she was shopping "the same as anybody else" and nothing further was said.?
Rooney recalled an incident which occurred on the parking lot when distribution
of literature was taking place. The literature was contained in an RCIA bag
which was placed at the building wall. Some store "executives" came out and
one of them grabbed the bag and Rooney took it away from him. Rooney
then walked toward the parking lot where her husband was to pick her up. Accord-
ing to Rooney, Weil and Sackman, the store manager , followed her and Weil
wrote down her husband's license number (her husband was not an S. Klein
6 Well testified that he instructed the security personnel to keep paid organizers under
surveillance while they were in the store to prevent solicitation of employees in working
areas. If they engaged in solicitation the guards were to ask them to leave. On April 1,
however, the rules were changed and paid organizers who solicited on any company park-
ing lot were to be asked to leave.
7 There is testimony that Rooney spoke to Well about this incident and was told she
had the right to stay in the store.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee) .8 At this time a police car arrived, an officer spoke to Weil and
then came over to Rooney and told her she could not distribute literature on
the parking lot-she would have to go to the pavement. Rooney experienced
one further incident, testifying that at one time a guard put his arms around
her and Doris Quinn and told them to leave the store. She protested and went
to Weil's office where Weil told her she would be followed while in the store
but admitted the guard had had no right to harass her. Rooney, who visited
the store almost daily from its opening until her assignment was changed in
January 1964, admitted that she had been told by Personnel Manager Gregory
Schultz that she could stay in the store as long as she did not talk to or bother
the employees.
Marvin Jaffe, international representative of the RCIA, testified that he was
assigned to S. Klein on June 10, 1963. Jaffe stated that he was told the RCIA
organizers could not solicit on the parking lot but would have to use the sidewalk
and that if they did not leave the lot the police would be called. Jaffe's response
was that he had his job to do and the store could call the police. When this
occurred the police would enter the store when they arrived and return with a
store executive and tell the organizers to leave.
At one time Jaffe was in the cafeteria with Hyman Sloan, another international
representative, when Sloan told Well that the RWDSU had paid organizers on
S. Klein's payroll. Weil's reply was that he knew it and the RCIA had the
same opportunity.°
On another occasion in the middle of July, Jaffe saw two organizers for the
RWDSU, Max Greenberg and Frank Meloni, enter the store and go into S.
Klein 's office area.
Weil, according to Jaffe, told him that he had no objection - to any of the
RCIA organizers except Doris Quinn, and his objection to her was the foul and
abusive language she used in and about the store. (Jaffe agreed that Quinn
was foulmouthed and abusive to the store executives.) Jaffe was never asked
to leave the store and testified that Weil had told him he had no objections
to his presence so long as he did not solicit. Jaffe made no effort to organize
the employees' cafeteria although he had not been ordered to refrain by any
representative of S. Klein.
Hyman Sloan was assigned to the S. Klein store on July 8. He attempted
to sign up employees on the parking lot and the first night he met Weil who
was introduced to him by Doris Quinn. Testifying with respect to the majority
of occasions Sloan stated that the procedure would be for an S. Klein representative
to ask the organizers to leave, the police would then arrive, enter the store and
return, and order the organizers to leave the parking lot.
The organizational routine, according to Sloan, was for the organizers to arrive
when the employees were reporting for work and distribute literature to them.
Then the organizers would make "home calls" and return at the lunch hour and
talk to the employees leaving for and returning from lunch. The afternoon was
devoted to more home calls, returning to the store for the shift changes at
5 p.m. The organizers spent 15 to 30 minutes each day walking about the
store (occasionally shopping) for such psychological effect as their presence might
have on the employees.
Sloan stated that the only time he saw any representatives of the RWDSU
on the premises was at 5 p.m. on July 30 when he saw Rita Merlino and Meloni
"gathering up people" on the parking lot.
b. The testimony of the S. Klein employees
Rita Merlino, called by the General Counsel, was employed by S. Klein in
March 1963 as a cashier. In October 1963 she left S. Klein and became a paid
organizer for RWDSU. Prior to her employment at S. Klein, she had been
a member of the RWDSU and Meloni recognized her when he was passing
out pamphlets at S. Klein and later called her and asked her if she would help
in organizing the store. Merlino agreed to help and stated that she distributed
cards at lunch hour and estimated she signed up 45 percent of the employees. All
of her organizing work was done during her and the other employees' nonworking
time. Merlino was emphatic that she was not paid for the work she performed
in helping the RWDSU at S. Klein despite the General Counsel's efforts to impeach
her on this point. - ' • I
s Well, and I credit''him, testified that he was merely taking notes.
9 ,Corroborated by Sloan. '
S. KLEIN DEPARTMENT STORES, INC. 471
On cross-examination Merlino testified that a meeting was held at the Bellevue-
Stratford Hotel at 2 p.m. on July 30 between representatives of the RWDSU, Shufro,
and Wachs, representing S. Klein. She was a member of the negotiating commit-
tee together with six other employees'0 Before the meeting began, Frank Meloni
advised them that a card check had established that the RWDSU had a majority
and negotiations were then commenced which lasted for either 3 or 4 hours
before agreement was reached. At 6 p.m. buses took the store employees from
S. Klein's parking lot to Local 1390's office where the contract terms were read
to them and the contract was ratified.
Merlino, although obviously an advocate of the RWDSU, was a credible and
intelligent witness and I credit her testimony as substantially truthful.
Emma Toczydlowski testified she was employed by S. Klein as a store detective
about 2 weeks before the store opened " Toczydlowski was a highly emotional
witness,12 manifesting a hostility toward the Respondent which could best be
described as virulent. She stated that she received instructions from Weil to follow
the RCIA organizers when they entered the store and prevent them from solicit-
ing. She testified that about 2 weeks after the store opened she saw Merlino and
other employees obtaining signatures to RWDSU cards from other employees,
that Merlino and other RWDSU sympathizers had "the run of the store," signing
employees in the bathrooms and at their counters and that Weil told her that
"there is a law out that she could get them into a lot of trouble if they stopped
the people from signing cards." Toczydlowski's testimony is so confused and
contradictory to the testimony of the General Counsel's other witnesses that I
find it worthless.
Margaret Verdeur testified that she was employed as a stock clerk at S. Klein,
that she was given an RWDSU card by an employee named Dee in the employees'
cafeteria and that she saw other RWDSU cards distributed there She also testified
that she saw Doris Quinn "run out" of the boy's department by a supervisor
although on further examination she admitted that Quinn told the supervisor she
had a right to be there and did not leave. On another occasion she saw Meloni
talking to the employee named Dee but she also stated that no supervisor was
present or heard the conversation.
Verdeur suffered great confusion as to dates and I cannot find her reliable
where dates are in question. She stated that after the contract with the RWDSU
was signed, she was told by Thomas Marchini, assistant personnel manager, she
would have to sign within 1 week of the date of their conversation, but in her
pretrial affidavit she stated that Marchini told her she would have to sign by
August 29, the 30th day after the signing of the contract.13 I credit Marchini's
testimony that he told employees they would have to join the RWDSU pursuant
to the union-security clause of the contract.
Regina Ciabattoni, a salesgirl in the boys' department, testified that about 2
weeks after the store opened "everybody was talking union" and that her cashier
asked her to join the Union. (The Union was unidentified.) Later she signed
cards for both Unions and in the latter part of August she signed a checkoff
authorization for the RWDSU. (She also testified that dues were never deducted
from her pay.) The balance of her testimony was meaningless.
Catherine Beckett, employed in the girlswear department at S. Klein, testified
that she signed a card for the RCIA and that later she was sent to- the personnel
department and was "told" to sign a checkoff card for the RWDSU. She testified
that at one time she was asked to sign an RWDSU card by "Dee" and that
later in the lunchroom "the guards" saw a , yellow card in her hand and "said
something to the effect that they thought I was trying to get members for
the other union .. She explained that by the other union she meant the
Philadelphia Union (the RCIA) and they told her the New York Union (the
RWDSU) was a good Union. The day after the RWDSU contract was signed
another employee told her she would have to join the RWDSU so she went to
Shultz and Marchini and protested to them. Schultz told her the Union "was
a closed union" and she would have a certain number of days in which to sign. A
pretrial statement given by her to Doris Quinn was introduced as past recollection
- 10 S. Harry Galfand, Frank Melons, Max Greenberg, and Morris Malmonetti represented
Local 1390
11 Toczydlowski was discharged by S. Klein on May 18.
12 At one point her interrogation had to be interrupted to allow her to gain her composure.
13 The contract (Joint Exhibit No. 1) f contained the usual` 30-day union-security clause.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recorded in which she stated that Marchini told her the RWDSU was a better
Union. Her testimony was so vague on both her statement and her conversations
with Marchini and Schultz that I am giving no weight to this testimony.
Ruth Goldstein was employed by S. Klein as a detective and testified that she
was instructed by Weil to follow the union organizers when they entered the
store but that she was not to say anything to them unless they made efforts
to solicit employees in working areas. On one occasion when she was informed
by an employee that Rita Merlino was passing-out cards, she went to the employees,
took the cards and gave them to Weil. The cards had been obtained in the
cafeteria and subsequently she was directed by Weil to return the cards to the
employees, explaining that she was new and did not understand the rules. Later
she had an argument with Merlino and informed Marchini that she knew who
the instigator for the Union was and Marchini told her they knew all about Mer-
lino.14 Prior to her experience with Merlino, Goldstein had taken two cards which
had been given employees by Quinn in the cafeteria. She turned these cards over
to Weil, who said nothing.15
Three security guards testified but it cannot be said that their testimony makes
any significant contribution to the merits of the case. James Mouraview testified
that he received instructions from Sergeant Grube to keep Doris Quinn and her
union out of the store (he never kept anyone out); 6 that he once saw an uniden-
tified employee passing out union cards in the cafeteria; 17 that some time after
the election Weill made a special trip to Washington to induce the guards to
join the RWDSU and that Weil told him he would get a 7.5-cent raise if he
joined.18 (The contract provided for such a raise )
James Foley testified that he was told to keep Doris Quinn off the parking
lot, that on one occasion she refused to leave so he returned with Sergeant Grube
and she still refused. The guards retreated. Foley stated that on more than one
occasion he saw Merlino and an unidentified union organizer enter the office area
of the store but his testimony is too unclear to carry any meaning. Sometime
after the contract was signed Foley was asked by Marchini to join the RWDSU
and later by Gregory Schultz. He also had a conversation with Weil in which
he was told he would get a 7.5-cent raise when the contract was signed.
Harvey Butler, a security guard, testified that he was given no instructions
respecting union organizers. Sometime before the Christmas holidays in 1963
he was called to Weil's office where he was told it was advantageous for him
to join the RWDSU and that he would get a 7.5-cent increase. Butler never
joined the Union. On another occasion he had a conversation with Marchini
in which he was told it would be advantageous for him to join the RWDSU.
B. Conclusions
I do not find it necessary to set forth at length the testimony of Respondent's
witnesses for when the credibility issues have been resolved I do not believe the
General Counsel has a prima facie case. With respect to both groups of paid
organizers I find that both were permitted to enter the store but were not permitted
to solicit employees in the working areas. Both were permitted to solicit in the
cafeteria. As to the minor alleged infractions of this policy on the part of either
detectives or guards they were isolated and did not serve in any way to impede
the organizational efforts of the union agents 19
I find that sometime in April the Respondent decided to stop the distribution
of literature on parking lots adjacent to the store. I find nothing in the circum-
stances of this case which removes this action from the protection of Babcock
14 In a pretrial affidavit Goldstein stated that Marchini added "We are waiting."
15 Well explained that he returned the cards received from Merlino because they had
signatures on them. As to other material received from Goldstein, it consisted of fake
dollar bills, pamphlets, or unsigned cards
1e Since this testimony contradicts the testimony of all the witnesses with respect to the
rights of RCIA organizers to enter the store I find that Mouraview misunderstood his
instructions
17 The General Counsel does not contend that solicitation in the cafeteria was unlawful
unless it could be established that the RCIA did not enjoy equal privileges.
18 Security guards were covered by the contract.
19 While the RCIA organizers were in the store daily over a period of months only two
instances of alleged harassment of RCIA organizers in the store are contained in the
record . Both were minimal in impact.
S. 'KLEIN DEPARTMENT STORES, INC. 473
& Wilcox.20 As the RCIA organizers 'testified, they were permitted to solicit
on the sidewalks which adjoined the parking lots and in the cafeteria. They
also solicited and held meetings at adjacent restaurants and met with the employees
at their homes. In other words, they enjoyed the normal means of communication
with the employees and were far from unlawfully inhibited. There is no evidence
of discrimination between the Unions in the parking lot rule.
With respect to the contentions of the General Counsel that the postcontract
urgings on the 'part of Respondent's supervisors have induced employees to join
the RWDSU were unlawful, I cannot so find in view of the admittedly lawful
union-security clause. If an employer may not advise his employees that his contract
with the labor organization which represents them requires that they join the
union within 30 days, and cannot advise them of the beneficial terms of the
contract then the law has indeed been changed without legislative action by the
Congress 2'
This case illustrates a microscopic search for evidence upon which to convict
a respondent of unfair labor practices. If all of .the isolated and trivial incidents
were found to have occurred as alleged , I do not believe the Board would be
warranted in setting aside an established bargaining relationship approved by
a majority of the employees. I cannot refrain from commenting on the fact
that the General Counsel has seen fit to assert in his brief the following contentions
which find no support in the record:
(1) The statement that Respondent knowingly employed Rita Merlino, a paid
RWDSU organizer, in the store. Merlino was the General Counsel's witness and
testified that she.was not paid.
(2) That Respondent allowed Frank Meloni to organize its restaurant. The
credible testimony in this case, including that of the General Counsel's witnesses,
indicates that both Unions were permitted to organize in the restaurant. The
RCIA, for reasons of its own, did not elect to do so.
(3) That Respondent permitted Rita Merlin and other employees free reign
to roam the store and solicit employees to join the RWDSU. Again the testimony
of Merlino specifically rebuts this allegation.
(4) The testimony that Respondent discharged employees who signed authoriza-
tion cards for the RCIA is contained in the completely discredited testimony of
Emma Toczydlowski. If the General Counsel believed her testimony, violation
of Section 8(a)(3) was required to be alleged. If he did not believe it and
investigation showed it was false, then it should not have been alleged.
(5) The statement that all of the RCIA organizers were prohibited from entering
the employees' dining room.
(6) The statement that the contract between S. Klein and the RWDSU was
a sweetheart contract.
It is disturbing to a Trial Examiner to find so many assertions in a brief
which are either unsupported by credible testimony or are totally contradictory
to the testimony of counsel's own witnesses . The case is not worthy of further
comment. I find that Respondent did not unlawfully assist the RWDSU in its
efforts to organize the Philadelphia store nor did it engage in any conduct which
violated Section 8(a)(1) and (2) of the'Act. It therefore follows that the execution
and enforcement of the contract did not violate Section 8 (a)(1) and (3) of the
Act.
Upon the foregoing findings of fact, and upon the entire record in this case,
I make the following:
1. Respondent
the Act.
2. The RCIA
of the Act.
is an
CONCLUSIONS OF LAW
employer engaged in commerce within the meaning of
and the RWDSU are labor organizations within the meaning
3. Respondent has not engaged in
of Section 8 (a) (1) and (3) of the Act.
unfair labor practices within the meaning
m N.L.R B v. Babcock & Wilcox Company, 351 U.S. 105.
21 It might be noted that there was some laxity in the enforcement of the contract, for
Foley, a witness called by the General Counsel , testified that he did not join the RWDSU
until January 16 and Butler , also called by the General Counsel , testified that he never
joined the RWDSU.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
It is recommended that the complaint and amendment to the complaint be dis-
missed in their entirety.
The General Tire & Rubber Company, Chemical Plastics Divi-
sion and United Rubber, Cork, Linoleum & Plastics Workers
of America, AFL-CIO. Case No. 26-CA-1726. November 5,
1964
DECISION AND ORDER
On August 3, 1964, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the
amended complaint and recommending dismissal of the amended
complaint in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the Respond-
ent filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings,' conclusions, and
recommendation of the Trial Examiner.
[The Board dismissed the amended complaint.]
i The General Counsel excepted to the credibility findings made by the Trial Examiner.
It Is the Board 's established policy , however, not to overrule a Trial Examiner ' s resolu-
tions with respect to credibility unless, as is not the case here , the clear preponderance of
all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry
Wall Products , Inc., 91 NLRB 544 , enfd. 188 F. 2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M. Singer at Columbus,
Mississippi , on May 12 and 13, 1964, pursuant to charges and amended charges
filed on' various dates between January 27 and April 3, 1964, and an amended
complaint issued April 6, 1964. The complaint, as amended , alleged that Respond-
ent (herein sometimes called the Company) violated Section 8(a)(1) and (3) of
the Act. Respondent , in its answer , denied commission of the alleged unfair labor
practices. All parties appeared and were afforded full opportunity to be heard,
and. to: examine and cross-examine witnesses .. Briefs were received from General
Counsel and Respondent.
149 NLRB No. 53.