Saks and Co.

National Labor Relations Board - Board Decisions

Aug 26, 1966

160 N.L.R.B. 682 (N.L.R.B. 1966)

6S2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive action designed to effectuate the policies of the Act. I shall recommend a
broad order because of the past history of antiunion activities engaged in by the
Respondent.
I shall also recommend that the Respondent offer reinstatement to Brady Ald-
ridge to his former or substantially equivalent position , without prejudice to his
seniority or other rights and privileges , and make him whole for any loss of earn-
ings or other benefits he may have suffered by reason of the Respondent's discrimi-
nation against him Backpay shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and shall include interest in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]
Saks and Company and Retail , Wholesale , Department Store
Union, AFL-CIO ; International Ladies' Garment Workers
Union , AFL-CIO. Case 13-CA-7337. August 26,1966
DECISION AND ORDER
On May 31, 1966, Trial Examiner Paul E. Weil issued his Decision
in the above-entitled proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, exceptions were filed by Respondent and the
Charging Party.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
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 and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order].
i Respondent excepts to the Timl Examiner's finding that no evidence was oltered in
the instant pioceeding indicating th,it physical knout changes within Respmident's build-
ings weie not planned piior to the e nclnmon of the caiher representation hearing, While
the record shows that these were some minor changes made, including the expansion and
relocation of a few dcpartmenty, these cli,ince, cle.uh had no sianific.Uit impact upon the
validity of the initial determination ac to the appropriate unit We therefore agree with
the Tiial Examiner's ultimate conclusion that the Respondent violated Section S(a) (5)
by failing to bargain with the certified Union
160 NLRB No. 59.
SAKS AND COMPANY 683
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On a charge duly filed February 7, 1966, by Retail, Wholesale Department Store
Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO,
herein collectively called the Union, the General Counsel of the National Labor
Relations Board by the Regional Director for Region 13 issued a complaint together
with a notice of hearing alleging in substance that Saks and Company, herein
called the Respondent, or the Employer, refused to bargain with the Union in viola-
tion of Section 8(a)(5) of the Act.
Respondent filed its answer admitting certain allegations but denying that the
unit set forth in the complaint was appropriate for purposes of collective bargain-
ing and that the Union was and is the exclusive collective -bargaining representa-
tive of the employees in the unit, and alleging that the representation proceedings
were unfairly and improperly conducted by the Board. The General Counsel filed
and served a motion for judgment on the pleading as did the Charging Party. The
motions were considered by Trial Examiner Thomas N. Kessel who denied them
and ordered a hearing limited to the litigation of newly discovered or previously
unattainable evidence, which Respondent represented that it had.
Thereafter, General Counsel moved for a more definite statement, seeking infor-
mation concerning the newly discovered or previously unavailable evidence sought
to be introduced by Respondent. Respondent voluntarily responded to General
Counsel's motion describing the physical nature of new construction which had
taken place at Respondent's store in Chicago, but no more. Trial Examiner Paul E.
Weil opened a hearing on April 11, 1966, in Chicago, Illinois.
At the opening of the hearing, General Counsel renewed his motion for judg-
ment on the pleadings. Respondent opposed the motion, indicating that there had
been changes in the plans concerning which testimony had been taken in the repre-
sentation hearing and proposing also to attempt to demonstrate that the bargaining
unit as found by the Regional Director was inappropriate. I denied General Coun-
sel's motion, but ruled that I would not take evidence other than newly discovered
or previously unavailable evidence in accordance with Trial Examiner Kessel's
ruling.
The Charging Party then renewed its motion for judgment on the pleadings and
moved for additional relief that I should order retroactively any benefits that may
be bargained as a result of the hearing, that the retroactivity be set to the date of
November 19, the date of the Union's demand, and that the benefits should include
any raise in pension benefits granted, grievances or arbitration proceedings which
may have been included by the Employer and the employees and the Unions. I
denied the motion insofar as it pertained to judgment on the pleadings and with-
held ruling as to the latter. Now, in consideration of the record and the authorities,
I deny the Charging Party's motion as to retroactivity. I am aware of no Board
precedent for such a motion, and I have been furnished none ' by the Charging
Party. I am aware of no case where the Board has ordered benefits which have not
been bargained by the Union. If and when the Union negotiates a contract, pre-
sumably it will negotiate for retroactivity in such respect as it then feels retroac-
tivity is necessary. The Board processes may not be substituted for the collective
bargaining of the parties.
The General Counsel then rested on the pleadings.
The Respondent's Evidence
The Respondent produced witnesses who described the physical layout of the
new building which Respondent had constructed contiguous to its old five-story
building. The new building comprises nine stories of which three stories and the
basement contain departments which had previously been located in an adjoining
building, in leased space which had been connected with Respondent's five-story
building by a walkway. The first five stories of the new building either already con-
tained or were planned to contain selling departments which had previously occu-
pied the five-story building and a one-story building which had been removed to
build the nine-story building. It is clear from the evidence that no new depart-
ments, either selling or nonselling, had been formed or were under consideration at
the time of the hearing. The impact of the changes was to approximately double
the selling space and, hence, to expand the space available for the selling depart-
ments which had theretofore existed and to relocate the nonselling space which
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had previously been located in the leased quarters in a separate building, expand-
ing them slightly. No evidence was offered that any of the changes made were not
planned at the time of the representation hearing or that as a result of the reloca-
tion and expansion that had taken place since the representation hearing, any
employees' duties were changed.
As far as the relocation of the nonselling departments is concerned, the only
change apparently would be that personnel instead of going back and forth across
a walkaway would go up and down in elevators in the nine-story building. This is
a matter that was in the contemplation of the parties at the time of representation
hearing.
During the hearing, Respondent attempted to adduce testimony relating to prob-
lems Respondent anticipated it might have in the event it commenced bargaining
with the Union in the unit as found by the Board. When I sustained an objection,
Respondent offered to prove that the unit as found was "ethnically unbalanced" in
that it had a higher percentage of Negro employees included in the unit than was
included in the entire store complement. I rejected the offer. Respondent also
attempted to adduce evidence that the unit was not like units presumably sought by
this Union at another store in Chicago. I sustained an objection to such evidence.
In summary, Respondent attempted to adduce and adduced no evidence in the
nature of newly discovered or previously unavailable evidence as I understand those
expressions. It appears obvious from the record that Respondent sought a hearing
in this matter solely for the purpose of relitigatmg the representation case. Accord-
ingly, no new or previously undiscovered evidence having been adduced, the allega-
tions in the complaint with respect to the unit, and the representative status of the
Union must be found to be true, and my findings of fact and conclusions are based
thereon.' Accordingly, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent , a corporation , maintains a place of business in Chicago , Illinois,
where it is engaged in the sale of men's and women's wearing apparel and related
merchandise at retail. During the past year, Respondent had gross revenues from
sales in excess of $500,000 and caused to be shipped to its store in Chicago goods
valued in excess of $50,000 from points outside the State of Illinois. Respondent is
and at all times material herein has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
1. All nonselling employees of the Respondent's Michigan Avenue, Chicago,
Illinois, retail store and St. Clair Building Annex including stockwomen, stockmen,
selling department clericals, floor cashiers, wrappers and inspectors, elevator opera-
tors, doormen, drivers, display employees, general maintenance employees, store
engineer and assistants, fitters in the alteration departments, alteration clerks, sec-
tion managers, and employees in the supply, marking room, millinery workroom,
corset alteration , receiving , shipping and delivery , and returned goods departments
but excluding all selling employees , office clerical employees , employees represented
by other labor organizations, guards, managerial employees, confidential employees,
and all supervisors, as defined in the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section 9(b) of the Act.2
'After the hearing the General Counsel filed a motion to correct the tianscript No
objections having been filed theieto, and it appearing proper, the motion is granted and the
record is corrected as prayed therein
2 The record reveals that the St. Clair Building Annex is no longer occupied, the depart-
ments therein having been moved to the basement, (ith, 7th, and 8th floors of the new
building. To that extent the unit changed from that alleged in the complaint and found
in the representation hearing However, the Respondent has 2 years to run on its present
lease at the St. Clair Building Annex ; the space is presently unoccupied and the Respond-
ent has no plans for the occupancy thereof In the event that Respondent reestablishes
any presently existing activities in the space In the St Clair Building Annex, the em-
ployees engaged therein will remain in the unit if they are within the unit as it is
presently constituted
SAKS AND COMPANY 685
2. On or about November 19, 1965, the Regional Director for Region 13 issued
his Supplemental Decision and Certification of Representative certifying that the
Union had been designated and selected by a majority of the employees of the
employees of the Respondent in the unit set forth above as the collective-bargaining
representative of the employees in the said unit and the Union continues to be
such representative.
3. On or about December 3 and January 26, the Union has requested and is
requesting Respondent to bargain collectively with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment as the
exclusive collective-bargaining representative of all the employees in the said unit.
At all times Respondent has refused and. continues to refuse to bargain collectively
with the Union as the exclusive bargaining representative of all the employees in
the unit described above. By. this refusal I find Respondent violated Section 8 (a) (5)
and. (1) of the Act. ,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, occurring. in connection
with its operations set forth in section I, 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 foregoing findings' of fact and the entire record in the case, including
the representation proceedings, I make the following:
- CONCLUSIONS OF LAW
1. The Respondent is an employer 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 nonselling employees of the Respondent's Michigan Avenue, Chicago,
Illinois, retail store and St. Clair Building Annex including stockwomen, stockmen,
selling department clericals, floor cashiers , wrappers and inspectors , elevator opera-
tors, doormen, drivers, display employees, general maintenance employees, store
engineer and assistants, fitters in the alteration departments, alteration clerks, sec-
tion managers, and employees in the supply, marking room, millinery workroom,
corset alteration, receiving, shipping and delivery, and returned goods departments
but excluding all selling employees, office clerical employees and employees repre-
sented by other labor organizations, guards, managerial employees, confidential
employees, and all supervisors, as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. Since on or about' December 3, 1965, the Union has been and is the exclu-
sive representative for the purpose of collective bargaining of the employees in
the unit described above.
5. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on December 3, 1965, and thereafter,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5)and (1) of the Act.
6. The 'aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and' (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in this case, and in the representation proceedings, I recommend that the
Respondent, Saks and Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail, Wholesale Department Store
Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO,
as the exclusive bargaining representative of its employees in the following unit:
All nonselling employees of the Respondent's Michigan Avenue, Chicago, Illinois,
retail store and St. Clair Building Annex including stockwomen, stockmen, selling
department clericals, floor cashiers, wrappers and inspectors, elevator operators,
doormen, drivers, display employees, general maintenance employees, store engineer
and assistants, fitters in the alteration departments, alteration clerks, section man-
agers, and emloyees in the supply, marking room, millinery workroom, corset
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alteration , receiving , shipping and delivery , and returned goods departments but
excluding all selling employees , office clerical employees , employees represented by
other labor organizations , guards, managerial employees , confidential employees,
and all supervisors , as defined in the Act.
(b) Interfering with the efforts of Retail, Wholesale Department Store Union,
AFL-CIO, and International Ladies' Garment Workers Union, AFL-CIO, to negoti-
ate for or represent the employees in the said appropriate unit as the exclusive
bargaining agent.
2. Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Upon request bargain collectively with Retail , Wholesale Department Store
Union, AFL-CIO, and International Ladies' Garment Workers Union , AFL-CIO,
as the exclusive representative of all the employees in the appropriate unit described
above, with respect to rates of pay, wages , hours of employment , and other condi-
tions of employment ; and if an understanding is reached embody such understand-
ing in a signed agreement.
(b) Post at its store in Chicago , Illinois, copies of the attached notice marked
"Appendix." 3 Copies of said notice to be furnished by the Regional Director for
Region 13, immediately upon receipt thereof after being duly signed by Respond-
ent's representative , shall be posted by it and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by Respondent to insure
that notices are not altered , defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in writing , within 20 days from
the receipt of this Decision , what steps Respondent has taken to comply herewith.4
3In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
' In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read : "Notify said Regional Director, in writing , within 10 days from
the date of this Order, what steps the Respondent has taken to comply hereisith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
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 refuse to bargain collectively with Retail, Wholesale Depart-
ment Store Union, AFL-CIO, and International Ladies' Garment Workers
Union, AFL-CIO, as the exclusive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT interfere with the effort of Retail Wholesale Department Store
Union, AFL-CIO, and International Ladies' Garment Workers Union, AFL-
CIO, to negotiate for or represent as the exclusive bargaining agent the
employees in the bargaining unit described below.
WE WILL, upon request, bargain with the above-named Union as the exclu-
sive representative of all the employees in the bargaining unit described below
with respect to rates of pay, wages, hours of employment and other conditions
of employment, and if an understanding is reached embody such understanding
in a signed statement.
The bargaining unit is:
All nonselling employees of the Respondent's Michigan Avenue, Chicago,
Illinois, retail store and St. Clair Building Annex including stockwomen,
stockmen, selling department clericals, floor cashiers, wrappers and inspec-
tors, elevator operators, doormen, drivers, display employees, general main-
tenance employees, store engineer and assistants, fitters in the alteration
departments, alteration clerks, section managers, and employees in the sup-
JUSTESEN'S FOOD STORES, INC. 687
ply, marking room, millinery workroom, corset alteration, receiving, shipping
and delivery, and returned goods departments but excluding all selling em-
ployees. office clerical employees, employees represented by other labor
organizations, guards, managerial employees, confidential employees and all
supervisors, as defined in the Act.
SAKS AND COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois 60604, Telephone 828-7597.
Justesen 's Food Stores, Inc., Justesen 's Rosedale, Inc., and
R. J. Agerton' and Butchers Union Local 193, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO. Case 31-CA-74 (formerly 21-CA-6662). August 26, 1966
DECISION AND ORDER
On March 28, 1966, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Charging Party and the General Counsel filed exceptions
to the Trial Examiner's Decision, and briefs in support of said excep-
tions, and the Respondents filed cross-exceptions and exceptions to
said Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Jenkins, and Zagoria].
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 entire rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions, cross-exceptions, and briefs, and hereby adopts the Trial Exam-
} As explained in the remedy section of the Trial Examiner 's Decision , his Order, which
we adopt, is directed only against the two corporate Respondents.
160 NLRB No. 52. - -