The J. L. Hudson Co.

National Labor Relations Board - Board Decisions

Jan 25, 1944

54 N.L.R.B. 855 (N.L.R.B. 1944)

In the Matter of THE J. L. HUDSON COMPANY and UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMMERICA
(C. 1. 0.)
Case No. 7-0-120I.-Decided January 05, 1944
DECISION
AND
ORDER
On November 4, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist from the unfair labor
practices found and take certain affirmative action, as set out in the
copy of the Intermediate Report attached hereto. Thereafter the
respondent filed exceptions to the Intermediate Report. None of the
parties requested oral argument before the Board. The Board has
considered the rulings of the Trial Examiner at the hearing and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
respondent's exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
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, The J. L. Hudson Com-
pany, Detroit, Michigan, and its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Retail, Wholesale
and Department Store Employees of America, affiliated with the
Congress of Industrial Organizations, as the exclusive representative
of all paint sprayers, cabinet makers and furniture finishers, em-
ployed on the third and sixth floors of the respondent's warehouse
No. 1 at Detroit, Michigan, excluding supervisory and clerical
employees ;
54 N. L. R. B., No. 128.
855
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Engaging in any like or related acts or conduct interfering
with, restraining, or coercing its employees in the exercise of the
right to self-organziation, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Retail, Whole-
sale and Department Store Employees of America, affiliated with the
Congress of Industrial Organizations, as the exclusive representative
of all paint sprayers, cabinet makers and furniture finishers, em-
ployed on the third and sixth floors of the respondent's warehouse
No. 1 at Detroit, Michigan, excluding supervisory and clerical em-
ployees, in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) Post immediately in conspicuous places throughout its Detroit,
Michigan, store and warehouses and maintain for a period of at
least sixty (60) consecutive days from the date of posting, notices to
its employees stating: (1) that the respondent will not engage in
the conduct from which it is ordered to cease and desist in paragraphs
1 (a) and (b) of this Order; and (2) that the respondent will take
the affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Flank L. Danello, for the Board.
Messrs. Beaumont , Smith and Harris , by Mr . Albert E. Meder , of Detroit , Mich.,
for the respondent.
Messrs. Tucker P. South and Frank Achterkerch, of Detroit, Mich., for the
Union.
STATEMENT OF THE CASE
Upon a charge duly filed by the United Retail, Wholesale and Department Store
Employees of America, (C. 1. 0.), herein called the Union, the National Labor
Relations Board, herein called the Board , by the Regional Director for the
Seventh Region (Detroit, Michigan), issued its complaint dated September 23,
1943, against The J . L. Hudson Company , herein called the respondent , alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 ( 1) and ( 5) and Section
2 (6) and (7) of the National Labor Relations Act, '49 Stat. 449, herein called
the Act. A copy of the complaint accompanied by notice of hearing was duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint alleged, in substance,
(1) that all paint sprayers , cabinet makers , and furniture finishers employed
THE J. L. HUDSON COMPANY 857
on the third and sixth floors of the respondent's warehouse No. 1, excluding
supervisory and clerical employees, constitute a unit appropriate for the purposes
of collective bargaining; (2) that on June 5, 1943, the Board certified the Union
as the exclusive representative of the employees of the respondent in such unit;
(3) that on or about June 5, 1943, and at all times thereafter, the respondent,
although duly requested, refused to bargain collectively with the Union as the
exclusive representative of all of its employees in the said appropriate unit ; and
(4) that by such refusal the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
On October 12, 1943, the respondent filed its answer admitting certain allega-
tions of the complaint concerning its business operations, the proceedings of the
Board leading to the certification of the Union, and the allegations concern-
ing the request and refusal to bargain, but denying that the unit certified is an
appropriate bargaining unit and also denying that it was committing any un-
fair labor practices!
Pursuant to notice a hearing was held at Detroit, Michigan, on October 21,
1943, before Henry J. Kent, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The Board, the respondent and the Union were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the close of the hearing mo-
tions, by counsel for the Board and the respondent, to conform the pleadings
to the proof were granted. Pursuant to leave granted briefs have been re-
ceived from the Board and the parties.
.Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The J. L Hudson Company, a Michigan corporation having its principal of-
fices in Detroit, Michigan, -is engaged in the purchase and resale of various
types of goods and commodities at a retail department store in Detroit.
During the fiscal year ending January 31, 1942, the Company purchased
goods at a cost of approximately $43,000,000, more than 80 percent in value of
such goods being shipped to Michigan from points outside the State of Michigan.
During the same period, the total sales of the Company were in excess of
$71,000,000, one and six-tenths percent in value being shipped to customers out-
side the State of Michigan.
During the same period, the Coirepany's sales through its Mail Order De-
partment were in excess of $500,000, approximately 15 percent in value being
made to customers outside the State of Michigan. ,
The Company uses several interstate commerce carriers to import and ex,
port goods from and to points outside the State of Michigan
I Matter of J. L. Hudson Co., and United Retail, Wholesale and Department Store Em-
ployees of America, ( C. 1. 0.), 49 N. L. R . B. 273.
2 The answer also denied that the respondent was engaging in commerce within the
meaning of the Act, but the respondent conceded at the hearing that the Board has juris-
diction of the cause by reason of the Court's approval of the Board 's finding in another
case that the respondent was engaging in cotnmerce within the meaning of the Act. See
Matter of J. L. Hudson Co and United Retail, Wholesale and Department Store Employees
of America, et al ., 42 N. L R B. 536, enf 'd in N. L. R. B v J. L. Hudson Co ., 135 F. (2d)
380 (C. C. A. ), cert. denied 64 S. Ct. 40.
858 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the same fiscal period, the Company advertised its business and mer-
chandise through newspapers, periodicals, radio, and direct mail, at a cost
in excess of $1,500,000; several of said newspapers and periodicals are published
outside the State of Michigan, and each of said radio stations has a coverage
of, and carries advertising to several States other than the State of Michigan +
The respondent concedes that it is engaged in commerce within the meaning
of the Act.
II THE ORGANIZATION INVOLVED
United Retail, Wholesale and Department Store Employees of America, is a
labor organization, affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the respondent.
III. 1HE UNFAIR LABOR PRACTICES
A. Background
On March 18, 1942, the Board issued its complaint against the respondent, the
complaint being grounded upon separate charges filed by United Retail, Whole-,
sale and Department Store Employees of America, C. I. 0, and Fred L. Young.`
On May 12, 1942, all of the parties in the cause entered into a stipulation of settle-
ment, subject to the approval of the Board.' On June 1, 1942, the Board approved
the said stipulation, and on June 23, 1943, the respondent and the Union appeared
before the Board to present oral arguments and briefs, on the commerce issue
only. Thereafter on July 16, 1942, the Board entered its decision finding, among
other things, that the respondent is engaged in commerce within the meaning of
the Act and ordered the respondent to cease and desist from committing unfair
labor practices within the meaning of Section 8 (1) and (3) of the Act, which
findings were subsequently approved by the United States Circuit Court of Appeals
for the Sixth Circuit.°
B. The refusal to bar°ain
1. The appropriate unit
On April 29, 1943, following a hearing held on April 7, 1943, to take evidence
concerning the issues, the Board issued its Decision and Direction of Election'
In the said decision the Board found, among other things, that all paint sprayers,
cabinet makers and furniture finishers employed on the third and" sixth floors of
the Company's warehouse No. 1, excluding supervisory and clerical employees.
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
The respondent, in the said representation case, contested the appropriateness
of the unit found therein by the Board and thereafter the subsequent certifica-
tion of the Union therefor. As stated in the Board's decision, the respondent, in
substance, contended : that the cabinet and finishing department employees do not
These findings are based on a stipulation entered into by and between the parties.
Matter of J. L. Hudson Company and United Retail, Wholesale and Department Store
Employees of America, et al., 42 N. L. R. B. 536.
5 The stipulation- also provided that should the Board find that the respondent was en-
gaging in commerce within the meaning of the Act, the question of jurisdiction might be
further litigated.
6 Matter of J. L. Hudson Company and United Retail, Wholesale and Department Store
Employees of America, et al., 42 N. L. R. B. 636, enf'd in N. L. R. B. v. The J. L. Hudson
Company, 135 F. (2d) 380 (C. C. A. 6) ; cert. denied 64 S. Ct. 40.
' Matter of J L. Hudson Company and United Retail, Wholesale and Department Store
Employees of America, (C. I. 0.), 49 N. L. R. B. 273.
THE J. L. HUDSON COMPANY 859'
constitute a clearly identifiable homogeneous group of employees ; that if the
Board found the said departmental unit to be appropriate, it would follow that
separate departmental units would thereafter be set up for each of its numerous
departments ; and urged that the Board find a company-wide unit to be appro-
priate. The Board considered these contentions but rejected them and, in effect,
found that by reason' of the limited extent of organization then existing among
the respondent's employees, the present determination of a company-wide unit
would prevent those employees, who had Organized, from bargaining collectively
for an indefinite period. The Board decided that under the circumstances therein
the above found unit would best serve to effectuate the purposes of the Act.
The Union herein has recently filed two other petitions for investigation and
certification of representatives concerning the employees and the respondent.
The first was for a unit of 11 shift and maintenance engineers and the other
was for a unit consisting of 6 plumbers and steamfitters. Other than that
submitted in respect to these 2 groups, no evidence was offered at the instant
hearing which tended to show that any other employees of the respondent
had been organized for the purposes of collective bargaining, since the Union
was certified as the representative of the employees involved in these pro-
ceedings. The factual surroundings' which led the Board to find the above
unit appropriate has not materially changed, excepting that presently there is
one less employee in the unit. The respondent made no showing warranting
a deviation from the unit found to be appropriate by the Board.'
The undersigned finds, in accordance with the Board's previous deternmina-
tion of the unit question, that all paint sprayers, cabinet makers and furniture
finishers employed on the third and sixth floors of the Company's warehouse
No. 1, at Detroit, Michigan, excluding supervisory and clerical employees, con-
stitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
2. The Union's majority ; the refusal to bargain
On May 26, 1943, an election was held pursuant to the above mentioned direc-
tion of election. Later on the same day the Regional Director issued and served
upon the parties his Election Report with respect to the balloting. This report
shows that there were 33 eligible voters in the unit ; that 31 ballots were cast ;
that 18 were cast in favor of the Union and 13 against. No objection to the
said report, or to the conduct of the ballot have been filed by any of the parties
On June 5, 1943, the Board issued its Certification of Representatives, certifying
the Union as the representative for the purposes of collective bargaining of
the employees, in the unit hereinabove referred to. No evidence was intro-
duced in the present proceedings to rebut the presumption arising from the
certification that the Union is still the representative of the majority of the
employees of the respondent in the said appropriate unit. The undersigned
finds that•the Union is still the representative of a majority of the employees
in the said unit.
On June 7, 1943, the Union in a letter to the respondent requested it to
bargain with the Union, as follows,:
A majority of your employees in the Department of Cabinet Makers
and Furniture Finishers have designated this Union as bargaining agent.
8 Cf N. L. R. B. V. Botany Worsted Mills , 133 F. ( 2d) 876 (C C A. 3 ), enf'g. as modified
41 N. L. R. B. 218; cert. denied 311) U. S. 751. Mattel of May Department Stores and
Retail Clarks International Protective Association, Retail Shoe Salesmen, Local Union 'Vo
420, A F. of 7., 39 N. L. R. B. 471.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They have requested us to arrange an early meeting to negotiate an agree-
ment with the Company.
Please indicate to us an early date that would be convenient for you
to open said negotiations.
On June 14, 1943, the respondent made the following reply :
Answering yours of the 7th to our client, The J. L. Hudson Company, we
assume that your request has reference to the certification of the National
Labor Relations Board of June 5, 1943, in case No. R-5126. Therefore please
note the following:
The Company continues in its position that the National Labor Relations
Act is not applicable to it. A petition is about to be filed by the company
in the United States Supreme Court requesting that court to review the
recent decision of the Circuit Court of Appeals for the Sixth Circuit, involv-
ing The J. L. Hudson Company.°
Further, and without waiving the foregoing, the company does not
agree that the point [sic] sprayers, cabinet makers and furniture finishers
employed by it on the third and sixth floors of its warehouse No 1, constitute
a unit or an appropriate unit for the purpose of collective bargaining.
Because of all the foregoing, our client must decline to comply with your
request. [Italics supplied.]
At the hearing, counsel for the respondent stated, in substance, that the re-
spondent still refuses to bargain with the Union for the reason that the unit
certified by the Board is not an appropriate collective bargaining unit.
On all the above the undersigned finds that on June 5, 1943, and at all times
thereafter the Union was, and now is, the duly designated representative of a
majority of the employees in the above appropriate unit. Pursuant to Section
9 (a) of the Act the said Union was, and now is, the exclusive representative of
the employees in said unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions of employment.
The undersigned further finds that on June 14, 1943, and at all times there-
after, the respondent refused to bargain collectively with the Union as the ex-
clusive representative of its employees in the appropriate unit, and that the
respondent has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of, the respondent set forth in Sec-
tion III above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial relation-
ship 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 has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
°
The respondent in this paragraph was referring to its former contention, averred in
its answer, that it was not engaged in commerce within the meaning of the Act. This
defense was abandoned at the hearing See footnote 2, sepia.
THE J. L. HUDSON COMPANY 861
The undersigned has found that the respondent refused to bargain collectively
with the Union as the exclusive representative of its employees in the appropriate
unit. In order to effectuate the policies of the Act the undersigned will recom-
mend that the respondent , upon request, bargain collectively with the Union
as the exclusive representative of its employees within the unit herein found to
be appropriate.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CONCLUSIONS of LAW
1. United Retail , Wholesale and Department Store Employees of America,
affiliated with the Congress of Industrial Organizations , is a labor organization
within the meaning of Section 2 ( 5) of the Act.
2. All paint sprayers, cabinet makers and furniture finishers , of the respondent
at Detroit , Michigan , employed on the third and sixth floors of the respondent's
warehouse No. 1, at all times material herein have constituted a unit appropriate
for the purposes of collective bargaining within the meaning of Section 91 (b)
of the Act.
3. United Retail , Wholesale and Department Store Employees of America , affili-
ated with the Congress of Industrial Organizations , was on June 5, 1943, and at all
times thereafter has been, the exclusive representative of all employees in said
unit for the purposes of collective bargaining , within the meaning of Section 9 (a)
of the Act.
4. By refusing on June 14 , 1943, and at all times thereafter, to bargain collec-
tively with United Retail , Wholesale and Department Store Employees of America,
Affiliated with the Congress of Industrial Organizations , as the exclusive repre-
sentative of its employees in the appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices , within the meaning of Section 8 (5)
of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act , the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section g (1)
of the Act.
6. The aforesaid unfair labor practices , are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
The J. L. Hudson Company , Detroit, Michigan, and its officers , agents, successors
and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Retail, Wholesale and De-
partment Store Employees of America , affiliated with the Congress of Industrial
Organizations , as the exclusive representative of all paint sprayers , cabinet
makers and furniture finishers employed on the third and sixth floors of the
respondent 's warehouse No. 1 at Detroit, Michigan.
(b) Engaging in any like or related acts or conduct interfering with, re-
straining , or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
862 , DECISIONS bF NATIONAL LABOR RELATIONS BOARD
0
(a) Upon request, bargain collectively with United Retail, Wholesale and
Department Store Employees of America, of Bated with the Congress of Indus-
trial Organizations, as the exclusive representative of all paint sprayers, cabinet
makers and furniture finishers, employed on the third and sixth floors of the
respondent's warehouse No 1 at Detroit, Michigan, in respect to rates of pay,
wages, hours of employment and other conditions of employment ;
(b) Post immediately in conspicuous places and maintain for a period of at
least sixty (60) consecutive days from the date of posting, notices throughout
its Detroit, Michigan, store and warehouses stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a) and (b) of these recommendations, and (2) that'
the respondent will take the affirmative action set forth in paragraph 2 (a)
of these recommendations ;
(c) Notify the Regional Director for the Seventh Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 19,
1943-any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D C. an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding (including rulings upon all mo-
tions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
the same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must'be made in writing within ten (10) days from the date of the
order transferring the case to the Board.
HENRY J. KENT
Trial Examiner
Dated November 4, 1943.