W. T. Grant Co.

National Labor Relations Board - Board Decisions

Jun 7, 1951

94 N.L.R.B. 1133 (N.L.R.B. 1951)

W. T. GRANT COMPANY 1133
therefore, why she should have concluded that this letter was not in-
tended personally for Evans.
In view of the foregoing, I am satisfied that the'refusal to accept
the Intervenor's letter under the particular circumstances of this
case was justified. Because the Employer had neither actual nor
constructive notice of the Intervenor's letter before September 2, 1950,
I would find that the Intervenor had failed to give timely notice to
the Employer of its intention to terminate Ole contract, and that the
contract by its terms was automatically renewed on that date. Ac-
cordingly, I would find that the contract constitutes a bar to this pro-
ceeding and would, therefore, dismiss the petition.
MEMBER ]REYNOLDS took no part in the consideration of the above De-
cision and Direction of.Electlon.
W. T. GRANT COMPANY and RETAIL CLERKS UNION, LOCAL 428, AFL.
Case No. 20-CA78. June 7, 1951
Decision and Order
On November 30, 1950, Trial Examiner William E. Spencer issued
his Interiliediate Report in the libove-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the modifications and additions set forth below.2
1. The Trial Examiner found, and we unanimously agree, that the
Union represented a majority of the Respondent's employees in a
certain appropriate collective bargaining unit on and after January
'Pursuant to the provision of Section 3 (h) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Houston and Reynolds]
a The Respondent's unopposed motion to col rest the stenographic transcript of the heal -
ing is hereby granted. Its request for oral aiguinent is denied because the record, excep-
tions and briet, in the opinion of the Board, adequately reflect the issues and positions
of the parties.
94 NLRB No. 145.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25, 1950,3 and that on and after that date the Respondent refused to,
bargain collectively with the Union, in violation of Section 8 (a) (1)
and (5) of the Act. Thus, on January 25, 1950, the Respondent's
counsel, Eugene M. Foley, during a meeting with the Union, rejected
the Union's several proposed methods for quickly substantiating its
majority and insisted that a petition for certification be filed with
the Board. There would have been nothing unlawful in the Respond-
ent's insistence upon a Board election if it had been motivated by a,
genuine doubt that the Union represented a majority of its em-
ployees. However, we cannot find that this was the case. During
the week ending February 23, less than a month later, the Respondent,
without consulting the Union and for the purpose of discouraging
union affiliation by its employees, gave alleged merit wage increases
or promotions to 23 of the 36 girls on its payroll and reduced the work-
week from 6 days to the more desirable 5-day week for 13 of its em-
ployees' Further, as the Trial Examiner found, the Respondent, in
violation of Section 8 (a) (1) of the Act, interrogated its employees
concerning the wearing of union buttons. In these circumstances we
must conclude, as did the Trial Examiner, that the Respondent's,
insistence upon a Board election was not motivated by a good-faith
doubt concerning the Union's majority status, but rather by,a desire
to gain time to undermine the Union and destroy its majority.5
2. A majority of the Panel also agrees with the Trial Examiner
that the Respondent violated Section 8 (a) (1) of the Act by notifying
its employees in the way it did that it would never agree to a union
shop. On February 11, 1950, Store Manager Kihs posted a notice on
the store bulletin board advising the employees that the Respondent
operated its San Jose store as an open shop and that this policy would
not be changed. More important, late in April Kills specifically'
emphasized the Respondent's determination to adhere to this policy,
when he called certain individual employees into his office and showed
them a letter from Foley which stated that "if we can't do business in
San Jose on an open-shop basis, we just won't do business in San Jose."
Like the Trial Examiner, we do not believe that the Board's decision
in M. T. Stevens c6 Sons Company ,6 is controlling here. In that case
the Board, in the complete absence of any other unfair labor practice,
was concerned solely with statements on company policy contained
'The record reveals, contrary to the Trial Examiner' s findings , that the Union first
established its majority on January 6, 1950, not January 5, 1950.
4 The granting of these benefits, without consulting the Union, constitutes an independent
violation of Section 8 (a) (5) of the Act even without regard to the Respondent' s purpose.
The Valley Broadcasting Company, 87 NLRB 1144.
6 See Houston and North Texas Motor Freight, 88 NLRB 1462, and the cases cited
therein
6 68 NLRB 229 (1946).
W. T. GRANT COMPANY 1135 '
in a letter from the company's treasurer in answer to one written by an
attorney who represented a group of employees opposed to unions.
These employees reproduced the company's letter in pamphlet form
and distributed it in front of the plant 3 days before a Board election.
On these facts the Board' held that, although the Respondent had
taken the position in its letter that it would not compel an employee
to join a union or consent to a check-off against his wishes, "a policy,
however strongly held, may, and often does, yield at the bargaining
table." In the Stevens decision, the Board further said that even if
the Respondent's. statements amounted to a fired determination not
to bargain on a bargainable subject, in the complete absence of any
other unfair labor practice such statements, isolated as they were, did
not tend to coerce employees within the meaning of the Act.'
That is not the case here. Here the Respondent posted the notice
of February 11 on its own initiative. Before that notice was posted,,
the Respondent, as found above, had already violated Section 8 (a)
(1) and (5) of the Act by refusing to bargain with the Union. After
February 11, the Respondent committed further violations of the Act,
by interrogating employees concerning their union activities and at-
tempting to dissipate the Union's majority. This was not the law-
abiding atmosphere present in the Stevens case. Equally important,,
here the Respondent backed up its statement of policy with a threat
to close its store rather than have a union, shop, and it engaged in a
course of conduct which was designed to relieve it of the necessity of
ever having to yield to the Union on any point or even meet the
Union across a bargaining table. In these circumstances we conclude
that the posting of the notice on February 11, 1950, and the subsequent
threat to close the store rather than grant a union shop, coerced the
Respondent's employees in the exercise of the rights guaranteed by
Section 7 of the Act .9
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent W. T. Grant Com-
pany, its officers, agents, successors, and assigns, shall :
Member Houston dissenting.
e The complaint in the Stevens case did not allege an unlawful refusal to bargain.
e See Bergmann's Inc., 71 NLRB 1020, 1034, where the Board , in adopting the Trial
Examiner's Intermediate Report upon facts like those in the instant case , distinguished
its ruling in the Stevens case See also United States Gypsum Company, 90 NLRB 964,
and Augusta Bedding Company, 93 NLRB 33.
Our dissenting colleague's references to the anticipatory character of the Respondent's
conduct in the absence of a Section 9 (e) election would seem to us more pertinent here
if the allegation involved in this portion of the case went to a violation of Section 8 (a),
(5) rather than, as it does, only Section 8 (a) (1)
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain collectively with Retail Clerks Union,
Local 428, AFL, as the exclusive representative of all employees at
its San Jose, California, store, excluding supervisors, with respect to
rates of pay, wages, hours of employment, or other conditions of
employment.
(b) Conferring benefits on its employees for the purpose of in-
ducing them to refrain from union affiliation and activities; question-
ing its employees concerning their union activities; threatening to
.close its San Jose store rather than accede to a union shop; or in any,
,other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organ-
izations, to join or assist Retail Clerks Union, Local 428, AFL, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any and all such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, a-
authorized in Section 8 (a) (3) of the National Labor Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Retail Clerks Union,
Local 428, AFL, as the exclusive representative of all the aforesaid
employees 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 agreement.
(b) Post at its San Jose, California, store, copies of the notice at-
tached hereto, marked Appendix A.10 Copies of the said notice, to
be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by the Respondent's representative, be
posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees customarily
are posted. Reasonable steps shall be taken by the Respondent to
insure that such notices are not altered, defaced, or covered by other
material.
(c) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) clays from the date of this Order, what steps
it has taken to comply herewith.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted in the notice before the words "A Decision and Order,
the words "A Decree of the United States Court of Appeals Enforcing "
W. T. GRANT COMPANY 1137
MEMBER REYNOLDS, concurring separately and dissenting in part :
I concur in all the findings and conclusions of the majority opinion
except as it finds that "the Respondent violated Section 8 (a) (1) of
the Act by notifying its employees that it would never agree to a
union shop." In my opinion, the Respondent's pronouncements re-
specting the union shop constitute expressions of "views, argument,
or opinion" within the meaning of Section 8 (c) of the Act, and as
such should be protected.
I do not believe that under the circumstances of this case, the
Respondent's statements can be construed as reflecting an anticipatory
refusal to bargain concerning a union shop, and therefore beyond the
pale of Section 8 (c). In my opinion, and the Board has not held
to the contrary, an employer is under no obligation to bargain con-
cerning a union shop absent the holding of a Section 9 (e) (1) union-
shop authorization election among its employees." Here, no such
election had been held, nor has the Union at any time sought such
an election.12 For that matter, it does not anywhere appear that the
Union is desirous of negotiating a union-shop agreement. Shrouded
by this uncertainty, it is unrealistic to say that the Respondent's pro-
nouncements now amount to a fixed determination not to bargain at
a future appropriate time concerning the union shop. In this situa-
tion, therefore, no reason exists for not holding as the Board did in
the Stevens case (63 NLRB 229) that "a policy, however strongly'
held, may, and often does yield at the bargaining table."
In distinguishing this case from the Stevens case, the Board in
effect holds that if the Respondent here had not been guilty of other
unfair labor practices, its pronouncements apropos the union shop
would not in and of themselves violate the Act. Yet, the Act pro-
vides 13 that expressions which themselves contain "no threat of re-
prisal or force or promise of benefit" shall not constitute unfair labor
practices, and the Board has construed this to mean 14 that "surround-
ing circumstances" should not be used to establish "the coercive char-
acter of the otherwise unobjectionable conduct." 15 Indeed, the Board
has held that employer statements which "positively" assured em-
See United States Gypsum Company, 94 NLRB 27, footnote 9
For this ieasou, United States Gypsum Company, 90 NLRB 964, cited in the majority
opinion, is distinguishable, as there the iespondent's statements were made during the
pendencv of a petition for a Section 9 (e) (1) union-shop authorization election. Cf, also,
F. IV Woolworth Co , 93 NLRB 173
11 Section 8 (c)
14 The Babcock & Wslcok Co , 77 NLRB 577, and cases cited
11 Id at 578 For this reason the Bergmann case (71 NLRB 1220) cited in the majority
opinion is apposite That case was decided before the enactment of Section 8 (c).
Tloieover , there the threats concerning union security were made immediately preceding
an election, which at that time would have enabled the union, if selected, to bargain for
union security In connection with this latter point, see cases cited'in footnote 2, supra.
953841-52-vol. 94-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees that they would not have to join a union to work, were not
per se violative of the Act.1e The Board has also held that an em-
ployer's statements that it would not be "a party to any agreement"
embodying union security did not establish "such a fixed determina-
tion by the respondent not to bargain later concerning union security
as can reasonably be regarded as constituting interference with the
rights of employees within the meaning of Section 8 (1) of the
Act"; 17 this finding was made despite the fact that the employer had
been guilty of independent violations of Section 8 (a) (1) of the
Act.
For the foregoing reasons, I would not find that the Respondent
violated Section 8 (a) (1) of the Act by its conduct with respect to
the union shop.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT confer benefits upon our employees for the pur-
pose of inducing then] to refrain from union affiliation and
activities.
WE WILL NOT question our employees concerning their union
activities, or threaten to close our San Jose store rather than accede
to a union shop.
WE WILL N1 T in any other manner interfere with, restrain or
coerce our ell,ployees in the exercise of their right to self-
organiration, to form labor organizations, to join or assist RETAIL
CLERICS UNION, LOCAL 428, AFL, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other inutual aid or protection, or to
refrain from any and all such activities except to the extent that
such right may be affected by an agreement which requires mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
16 Wadesboro Full-Fashioned Hosie, it Mills, Incorporated, 72 NLRB 1064. 1068. 1072
11 LaSalle Steel Company, 72 NLRB 411 , 413 See also Tygart Sportswear Company,
77 NLRB 613, 614, 624, where the Board found that a statement by an employer that
the plant would remain an "open shop " did not violate Section 8 (a) (1) ; and Brown and
Root, Inc. 86 NLRB 520, 521, 526, where, despite violations of Section 8 (a) (1) and (5),
the Board found that the employer ' s statement that it had not worked and would not
work under a union contract" was not violative of the Act Cf Westinghouse Pacific
Coast Brake Company, St) NLRB 145 '
W. T. GRANT COMPANY 1139
W`WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein 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 agreement. The bargaining unit is : -
All employees of our San Jose store excluding supervisors
as defined by the Act.
All of our employees are free to become, remain or refrain from
becoming or remaining members of Retail Clerks Union, Local 428,
AFL, or any other labor organization, except to the extent that their
right may be affected by a lawful agreement which requires member-
ship as a condition of employment.
W. T. GRANT COMPANY,
Employer.
Dated ---------------------- By -----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Eugene K Kennedy, E.cq, for the Genetal Counsel.
Eugene M Foley, Esq., New York, N Y., for the Respondent.
Messrs Dreyfus, McTernan cd Lubimer, by Francis J. McTernau, Jr., San
Francisco, Calif., and Messrs James 1'. McLoughlin and Victor Lazzaro, San
Jose. Calif, for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed by Retail Clerks Union, Local 428, AFL,
herein called the Union, the General Counsel of the National Labor Relations
Board,' by the Regional Director of the Twentieth Region (San Francisco,
California), issued his complaint dated August 31, 1950, against W. T. Grant
Company, San Jose, California, 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 S (a) (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. Copies of the charge, the complaint, and a notice of hearing
were duly served on the Respondent and the Union.
With respect to unfair labor practices, the complaint alleged in substance
that the Respondent refused to bargain with the Union, the duly designated
representative of a majority of its employees in an appropriate unit, in violation
of Section 8 (a) (5) of the Act, and thereby, and because of specifically enu-
merated acts, statements, and conduct, interfered with, restrained, and coerced
3 The General Counsel and his representative at the hearing will be called herein the
General Counsel , the National Labor Relations Board , the Board.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees in violation of Section 8 (a) (1) of the Act. In its duly filed
answer the Respondent denied the commission of the alleged unfair labor prac-
tices. The Respondent's motion for a bill of particulars, referred to the under-
signed for ruling prior to the hearing, was granted in part, denied in part.
Pursuant to notice a hearing was held at San Jose, California, on November
13 and 14, 1950, before William E. Spencer, the undeisigned duly designated
Trial Examiner All parties were represented at and participated in the hear-
ing where full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence hearing on the issues was afforded them
At the close of the General Counsel's case-in-chief, the Respondent moved to
dismiss certain allegations of the complaint because of failure of proof The
motion was denied. Upon the completion of the evidence, the General Counsel's
unopposed motion to conform the pleadings to the proof in formal matters, was
granted. The parties waived oral argument before the undersigned but par-
ticipated in a discussion of issues in response to questions asked by the Trial
Examiner. Memorandum briefs have been received from the General Counsel
and the Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
W. T. Grant Company is a Delaware corporation with an office in Delaware
and its executive offices in New York, New York. It is engaged in the business
of selling and distributing merchandise in various States of the United States,
including the State of California. It operates approximately 495 retail stores
which are located in 39 States of the United States. Only its retail store located
in San Jose, California, is involved in this proceeding.
During the fiscal year ending January 31, 1950, the Respondent purchased
merchandise for sale at its San Jose, California, store valued in excess of
$100,000, of which amount approximately 90 percent was shipped to said store
from points located outside California.
The Respondent admits that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 428, AFL, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The complaint alleges, the Respondent admits, and it is found, that all em-
ployees at the Respondent's San Jose, California, store, excluding supervisors
as defined in the Act, at all times material herein constituted and now consti-
tute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
B. The Union's majority
As of the payroll week ending January 25, 1950, there were 40 employees in
the appropriate unit at Respondent's San Jose store. Of these, 21 signed the
W. T.- GRANT, COMPANY 1141-
Union's authorization cards on or before January 5, 1950. Those authorizations
were never revoked. Respondent's counsel asserted at the hearing that the
Union employed coercion in obtaining its majority, but offered no evidence to
support the contention. It is immaterial in determining the Union's majority
status that some of those signing authorization cards attended no or few union
meetings or otherwise indicated a lack of interest in union activities. Accord-
ingly, it is found that on January 25, 1950. and at all times material herein, the
Union was, and now is, the exclusive bargaining representative of all the em-
ployees in the unit described above.
C. The scope and character of the issue
On January 5, 1950, the Union, having obtained authorizations from a ma-
jority of Respondent's employees, notified Respondent's store manager, Francis
J. Kihs, of its designation as bargaining representative and requested a meeting
for the purpose of negotiating a contract. A meeting of the parties was held
on January 25, and at this meeting, Respondent's counsel, Eugene M. Foley,
declined the Union's proposals for substantiating its majority, and insisted
that the Union file a petition for certification with the National Labor Relations
Board Foley stated that this was Respondent's standard procedure in matters
concerning representation, and referred to the Respondent' s manual which con-
tains the following instructions to store managers :
e. UNION'S DEMAND FOR RECOGNITION
If a union representative claims that he represents employees of our
store, Manager informs him that he should submit his evidence to the Na-
tional Labor Relations Board and petition for an election . If, when mak-
ing his claim, he hands Manager a form of contract, Manager is to forward
it to Personnel Department, New York Office.
Manager is not to examine employes' union membership cards, nor is he
to make any attempt to ascertain -whether or not a majority of employes
have signed cards or to find out what demands will be made by the union.
Detailed report of union representative's claims is to be made to Regional
Manager and to Personnel Department, New York Office.
The Union agreed to Foley's proposal and on January 31 filed a representation
petition with the Board. The Respondent thereafter refused to enter into a
consent-election agreement for the purpose of expediting the determination of
the representation issue, and insisted on a formal hearing on the Union' s peti-
tion, although there was no substantial dispute as to appropriate unit. The
hearing was held on March 3, and on April 4 the Board issued its Decision and
Direction of Election! The election was thereafter scheduled for May 3, but
prior thereto the Union withdrew its petition for certification and filed the
unfair labor practice charge upon which this proceeding is predicated.
The basic, though not sole, issue to be determined here is whether the Re-
spondent's refusal on January 25 to recognize the Union until its majority had
been established through a Board election was made in good faith, or was a
tactical maneuver to afford the Respondent time in which to undermine the
Union and destroy its majority.
D Piouiotions, wade mereases, and changes in the workweek
During the week ending February 23, of the 36 girls then on Respondent's
payroll, 23 received merit increases ; in some instances promotions, also, were
2 Case No. 20-RC-780.
1142 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
involved. At the same time 13 employees were changed from a 40-hour, 6-day
week to a 40-hour, 5-day week, a change considered desirable by most of the
female employees. An announcement of this change was made some 2 weeks
earlier. The Union was not consulted on any of these matters.
Kihs, Respondent's store manager, admitted that lie had never previously
in his experience as manager of the San Jose store granted so many merit
increases at one time, and was unable to recall specifically any prior occasion
when such increases had been granted on a group basis 3 His testimony affords
no plausible explanation for the timing of these increases.
As to the promotions, Kills testified that these were made to fill vacancies
and that more than a normal number of vacancies had arisen due to marriages
and pregnancies among the female employees His further testimony, how-
ener, failed to establish that more than a negligible number of vacancies had
arisen at the time the promotions were made effective He testified that several
of the girls who were promoted had been on a "relief" or probational basis for
weeks or months before the promotions were made effective
As to the change in the workweek from 6 to 5 days, it appears that all of
the female employees, except the 13 affected by the action on the week of
February 23, were already working the 5-day week Kihs testified that he
normally honored the request of a female employee to change from a 6- to
5-clay week, after she had been in his employ for a time, but he could recall
but 1 employee who had made such a request at the time this change affecting
13 employees was made
Ittis clear from Kills' testimony that his action during the week of February
23 in bestowing substantial benefits on a majority of his female employees was
without parallel in his experience as manager of the San Jose store. Inasmuch
as his testimony affords no plausible or convincing explanation for the timing
of these benefits, the explanation must be sought elsewhere On January 31 the
Union had filed its petition for certification There was a reasonable expecta-
tion amounting to practically a certainty that in due course an election would
be held to determine the issue of representation It, in the interim, the em-
ployees received many of the benefits which they would hope to gain through
union representation. there would lie correspondingly less incentive for them
3 Kihs' testimony :
Q. Well, now, limiting the scope of my question to the San Jose store, have you
ever granted that many merit increases, or more. at any one time previous to February
1950"
A Not to my knowledge.
Q. Did you ever grant as many as a dozen at one time previous to February 1950?
A It is possible that I did.
a x s a s r s
Q Now, what has been your practice in the San Jose store, have you normally
announced merit increases, one at a time, or more than one at a time" What has
been your normal practice over the entire time that you have been at the San Jose
store
A I would say generally they would he in a group
Q Well, can you be a little more specific'+ Do you have a recollection, in other
words, of a group that you gave out any time poor to February 1950"
A No, sir
* Kits' testimony
Q. Do you have any particular explanation-there may be none required-as to
why you made this effective as to 13 girls qt one time"
A. No, sir.
Q Do you recall whether or not these paitiqular 13 girls had all requested the
five-day week at about this time"
A. No, sir. I can remember one girl distinctly having requested it, but I couldn't
remember any more than that one
W. T. GRANT COMPANY 1143
to work and vote for the Union . That the bestowal of benefits for the purpose
of inducing employes to refrain from or disavow their union affiliation and activ-
ities is violative of the Act is firmly established ' in decisions of the Board and
the courts . That such was Respondent 's purpose in granting benefits to a
majority of its female employees during the week ending February 23 is the
only reasonable conclusion that can be reached on the basis of the evidence
offered in this proceeding . Accordingly , it is found that by the granting of
benefits to its employees for the purpose of discouraging union affiliation, the
Respondent interfered with, restrained , and coerced its employees within the
meaning of Section 8 (a) (1) of the Act.
E Declarations on the anion shop ,
On February 11, 19-50, Kilis posted the following notice on the bulletin board
at the San Jose store:
T7nere is it runior that soon or later you will be required, as a condition of
employment, to join a labor anion THERE IS NOT A GRAIN OF TRUTH
IN THIS RUMOR YOU DON'T HAVE TO JOIN, NOR NEED YOU RE-
FRAIN FROM JOINING ANY UNION TO WORK AT GRANTS. THIS
STORE IS AN OPEN SI-IOP IN THE TRUE SENSE OF THE WORD IT
IS OUR POLICY TO EMPLOY MEMBERS OF UNIONS AS WELL AS
NONMEMBERS AND NEITHER IS FAVORED OVER THE OTHER IN
ANY ASPECT OF EMPLOYMENT. THIS POLICY WILL NOT BE
CHANGED
This notice was copied almost verbatim from Respondent's manual of instruc-
tions to its store managers
Late in April, Kilts called several employees to his office and showed them
a letter he had received from Respondent's counsel, Foley. The text of the
letter, dated April 27, follows.
I received your letter this mornnig.' and my inclination was to write to you
immedaately to the effect that it is settled Company policy that we will
not operate a union shop in San .Jose or elsewhere However, in order
to make assurance doubly sure, I decided to "check" with Dir. Lustenberger,
but I wasn't able to reach him until a new minutes ago.
As a result of my conversation with him I think we can take a definite
position to the effect that we will not agree to a union shop in San Jose
under any cncunistances, and further that if we can't do business in San
Jose on an open shop basis, we just won't do business in San Jose. I
trust that you still have posted the notice to the effect that no one need
join the union in order to work in Grant's It by chance that notice was
taken down I suggest you put it up again.
It is the General Conusel's position that the publication of the aforesaid
notice and letter to the employees was violative of the Act inasmuch as they
represented a fixed intention not to bargain on a bargainable subject, and had
-the necessary eltect of threatening to deprive the employees of one of the
legitimate goals of unionization, the union shop.
51-Zihs' letter to Folev was in the nature of a report on a union meeting It stated
inter alia "I have received the following information regarding the meeting Five of
my people attended They wcie told that in spite of my statement I had made that f)
the Union gets in this store will be a Union shop and not an open .shop" The letter
further stated, inter (ilia, "The above covers pretty much what took place in the meeting
Of course my intoiniation is second hand so I am just quoting another person's word"
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It can hardly be disputed that upon compliance with the requirements of
Section 8 (3) of the Act by a labor organization, the union shop is a proper
subject for collective bargaining It follows that where these requirements
have been met, an employer is under the same duty to bargain in good faith
on the union shop as on the subject of wages, hours, or any other condition of
employment. It is also true, I think, that, any declaration by an employer to
his employees that he will not bargain on this or any other proper subject of
collective bargaining, amounts to coercion within the meaning of the Act. Our
inquiry is now narrowed to the significance of the combined language of the
notice and the letter, set forth above, and its reasonable effect on the minds of
the employees, with proper reference to such authorities as exist in the matter.
In M. T. Stevens ct Sons Company, 68 NLRP. 229, relied on by the Respondent,'
the Board decided that the following statements contained in a letter which
was written by an employer to certain of his employees in answer to inquiries
addressed to him by those employees, were not violative of the Act:
. , at no time will the Company compel an employee to become a member
of any particular union as,a condition of employment."
". . . under no condition will the Company agree to deductions in wages
against any employee's wishes to cover dues or assessments."
The Board in reaching this conclusion stated, inter atte:
While we agree with the Trial Examiner that the closed-shop' and
check-off are proper subjects of collective bargaining. we do not believe
that, by it statements quoted above, the Respondent did in fact indicate to
its employees a fixed determination not to baiganr on these matters. The
Respondent declared, in response to the inquiries of employees, what its
"policy" would be. But a policy, however strongly held, may, and often
does, yield at the bargaining table Thus, in announcing such a policy, the
Respondent cannot be regarded as having foreclosed the possibility of future
bargaining with respect to the subject matters in question.
But even if we accept the interpretation placed by the Trial Examiner
upon the Respondent's statements we do not concur in his conclusion that,
in the complete absence of any other unfair labor practice, such statements,
isolated as they were, tend to eoep cc employees within the meaning of Sec-
tion 8 (1) of the Act
In the case at bar, there is no evidence of probative worth that the Respond-
ent's notice and letter were prompted by inquiries from interested employees,'
and they do not constitute "isolated" statements, inasmuch as the Respondent's
other conduct during the same period of time is found to have constituted unfair
'Other decisions considered in reaching the conclusions herein ate Rergmann's Inc,
71 NLRB 1020, Julius Cohn d/h/a Comas Manufacturing Company, 59 NLRB 208;
Cameron Can Machinery Company, 57 NLRB 1768; Tampa Electric Company, 56 NLRB
1270; Young's Motor Freight Lines, 91 NLRB 1430; Tygart Sportswear Company, 77
NLRB 613
This case arose under the Wagner Act
There is no evidence to support Respondent counsel's contention that the Union "threat-
ened" the employees with its declarations on the union shop Doubtless, it was held out
to the employees as one of the goals of unionization Respondent in its brief filed with
the undersigned, appears to attempt to link the Foley letter with alleged misconduct on
the part of a representative of the Union in entering the Grant store and disarranging
some of its merchandise Assuming, erguendo, that the misconduct occurred, it would
have no possible bearing on the issue of the union shop.
W. T. GRANT COMPANY 1145
labor practices. These distinguishing factors may be regarded as slight, but
are not entirely irrelevant in determining whether the Respondent's notice and
letter were coercive, inasmuch as the presence or absence of the element of
coerciveness here depends upon the reasonable impact of the combined language
of the notice and letter upon the minds of the employees under all attendant
circumstances. Thus considered, I am of the opinion that they were coercive
and therefore not privileged under Section 8 (c) of, the Act.
It can hardly be questioned that an employer is as free to state to his employees
his opposition to the union shop as a labor organization is free to advocate it
But the Respondent here has done more than inform its employees on its
general policy in such matters In the February 11 notice, after setting forth a
general policy, it stated, unequivocally : 1'his policy will not be changed. The
notice standing alone would probably not be violative of the Act, as it is subject
to the interpretation that it referred to the closed shop and, in any event, has
language that is little stronger, if any, than that found harmless in the M. T.
Stevens & Sons Company case But in the Foley letter of April 27, specifically
called to the attention of several employees by Kihs, this further supplementary
language appeals: "[1Ve] will not agree to a union shop in San Jose under any
circumstances, and further . . if we can't do business in San Jose on an open
shop basis, we just won't do business in San Jose." If the combined language
of this notice and this letter does not portray a fixed intention not to bargain
on a bargainable subject. I shall henceforth be somewhat skeptical of language
as aflorcling a proper vehicle for the expression of man's thoughts and inten-
tions. I am also of the opinion that it was intended to and had the reasonable
effect of depriving union-minded employees of any hope of achieving union
security in the form of a union shop. Illustrative of its impact on the minds
of the employees, is the unrefreshed recollection of the witness Evelyn De Janvier,
a witness who on the whole appeared favorably inclined toward the Respondent,
of the contents of the Foley letter shown her by Kihs: "As I recall it, it was
that the San Jose store would close before it would be unionized ; it would take
its business elsewhere." Efforts to obtain the union shop being one of the familiar
and legitimate forms of union activities, it is not unusual that the witness
should have identified the union shop as unionization itself.
It is true that the Respondent's policy on the union shop might change,' as
might its policy on any other bargamnable matter, but its announcement of a
fixed intention not to change is none the less coercive because of that. Employee
reliance on the imponderables in the face of such pronouncements, would require
an act of faith not contemplated by the Statute.
It is found that the publication to the employees of the February 11 notice
and the Foley letter of April 27 constituted interference, restraint, and coercion
within the meaning of Section 8 (a) (1) of the Act.
° It appeals from statements of counsel that a union-shop clause is incorporated in a
contract covering the employees at one of Respondent's stores whether this indicates
that Respondent's policy on the open shop is not a "fixed" one, is heat considered in the
light of its counsel's statement at the hearing* "As I say, I can negotiate a union shop;
I think I hale heard all the arguments in favor of a union shop and I have nevei heard
a good one, but inhere I have negotiated union shops we have come to an agreement, made
contracts with unions. none of them contained a union shop agreement except the one
in East St Louis, which is a community contract and which I inlieiited in 1940 " Ob-
viously, we ate not concerned here with the merits or demeiits of the union shop, but
solely with the issue of whether Respondent's declarations on the matter were such that
the employees would reasonably believe that the Respondent would refuse to bargain in
good firth on the issue Negotiating on an issue and bargaining in good faith, needless
to say, do not always amount to the same thing
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Interrogation of employees concerning their union activities
After the first union meeting certain of the employees wore union buttons
while performing their duties at the San Jose store
The assistant store manager, Mrs Kleidon, commented to Evelyn De Janvier,
one of those who had attended the union meeting, that she "had one of those
pretty buttons, too." Be Janvier testified that the remark was made "kiddingly."
When Nellie Putney wore her union button in the store after returning from
her vacation of Febiuary 27, Kleldon asked her if she was the only girl in the
store that was in the union. Putney testified concerning the incident: "Mrs.
Kleidon-just kiddingly, I guess, to keep me from getting embarrassed-asked
me if I was the only girl in the store that was in the union-jokingly, you know
The following examination ensued:
Q. And what did you say''
A. I didn't know what to say I just took the button off.
In April Kleidon asked Martha Nis why she was still wearing her button.
The following examination ensued :
Q And did you make any reply'?
A. I said I don't know, because she said it in kind of a joking way.
Nevertheless, thereafter when Nixx wore her union button she wore it "on the
underneath side" of her sweater.
The wearing of union buttons is a protected form of union activity, and an
employer has no more license to interrogate its employees on their wearing of
these buttons than on their other union activities. Such questioning can be,
and frequently is, coercive. Fi oin the testimony of these witnesses it may be
assumed that Kleidon was a very cordial supervisor There is no reason to
doubt that they were on friendly terms with her There is good reason to doubt
that either Putney or Nix actually regarded Kleidon's rema i ks and interroga-
tions as merely pleasantries, for following Kleidon's comments they promptly
removed their buttons The testimony of De Janvier, Putney, and Nix that these
comments or interrogations, as the case may be, were made "jokingly," was by
no means convincing and can best be understood in the light of the pi oinotions
which each of them received during the week of February 23.10
It is found that by Kleidon's questiorrng of employees concerning their union
activities, the Respondent interfered with, restrained, and coerced its employees
within the meaning of Section 8 (a) (1) of the -Act.
G. Other alleged, acts of totemference, restiamit, and coercion
After Victor J Lazzaro. the Union's business representative, had visited the
Grant store in San Jose on one or more occasions, and handed out authorization
cards to some of the employees, Kihs issued instructions that thereafter the
distribution of cards in the store was to be prohibited. The General Counsel
argues that such action was violative of the Act. I do not agree. The dis-
tribution of such cards in the store has the reasonable effect of interfering with
salesgirls in the performance of their duties, and customers in making their
purchases, thereby constituting a potential disruption of services. I find that
the Respondent's action, in this respect, was not violative of the Act.
H. Conclusions on the i efusal to bargain
At the meeting of representatives of the parties on January 25, the Respond-
ent, in effect, refused to recognize and bargain with the Union until its majority
10 Each was promoted to a department manager position.
W. T. GRANT COMPANY 1147
had. been established through a Board election. A Board election is only one
of several ways in which the majority status of a labor organization may be
determined, and, where only one labor organization is claiming representative
status, an employer has no absolute right to have -the matter determined by
an election. If the Respondent had a bona fide doubt of the Union's majority
it might very properly have asked for proof of such majority, and refused proof,
might properly have withheld recognition until proof, in one form.or another,
was furnished it. There is no evidence here that the Respondent had a bona,
fide doubt of the Union's majority status, and it made its position clear that it
would accept no proof of such majority except through a Board election. The
Union complied with its proposal and filed a petition for certification. There-
after, it sought to expedite a determination of the issue of representation, by
offering to enter into a consent election. The Respondent refused to sign such
an agreement. Inasmuch as the Respondent did not question the Board' s juris-
diction and there was no dispute between the parties on the appropriate unit,
its refusal, under the circumstances, was indicative of a desire and intention
to delay the determination of the issue. Its purpose in seeking delay. became
clear when, during the week ending February 23, it conferred substantial bene-
fits on a majority of its employees without consulting the Union, thus under-
mining the Union as the designated representative of a majority of its employees.
Its declarations of a fixed intention never to accede to the union shop and
threat. that it would close its San Jose store before it would do so, was also
deliberately aimed at undermining the. confidence of union adherents. These
acts of delay, interference, and coercion, when related to its refusal to recognize
and bargain with the Union on January 25, are conclusive of its lack of good
faith on that occasion.
It.is found that by refusing to recognize and bargain with the Union on
January 25, 1950, the Respondent violated Section 8 (a) (5) of the Act, and
thereby interfered with, restrained and coerced its employees in violation of
Section S (a) (1) of the Act.
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations_ of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices violative
of Section 8 (a) (1) and (5) of the Act, the undersigned will recommend that it
cease and desist therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Having found that, the Respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit,
the undersigned will recommend that the Respondent, upon request, bargain
collectively with the Union as such representative, and if an understanding
is reached, embody such understanding in a signed agreement.
The Respondent's refusal to recognize and bargain with the Union, and its
efforts to undermine the Union and destroy its majority through acts of inter-
ference, restraint, and coercion,' portray an intention to interfere generally with
the rights of its employees guaranteed by the Act. It will therefore be recom-
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that the Respondent cease and desist from in any manner interfering
with, restraining, and coercing its employees in their right to self-organization "
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local 428, AFL, is a labor organization within the
weaning of Section 2 (5) of the Act.
2. All employees at Respondent's San Jose, California, store, excluding super-
visors as defined by the Act, constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. On January 25, 1950, Retail Clerks Union, Local 428, AFL was, at all times
since has been and now is, the representative of a majority of Respondent's
employees in the appropriate unit described above for purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on and after January 25, 1950, to bargain collectively with
Retail Clerks Union, Local 428, AFL, as the exclusive representative of all its
employees in the appropriate unit, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
5. By said refusal, by conferring benefits on its employees for the purpose of
inducing them to refrain from union affiliation and activities, by questioning
employees concerning their union activities, and by threatening to close its San
Jose store rather than assent to the union shop, the Respondent has engaged
in, and is engaging in, unfair labor practices within the meaning of Section
8 (a) (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.
[Recommended Order omitted from publication in this volume.]
11 May Department Stores , 326 U. S. 376.
STOR-ALL CORPORATION and NEW FURNITURE & APPLIANCE DRIVERS,
WAREHOUSEMEN & HELPERS LOCAL UNION No. 196, INTERNATIONAL.
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELP-
ERS OF AMERICA, A. F. or L. Cases Nos. 21-CA-867 and 21-RC-
1188. June 7, 1951
Decision and Order Remanding Case 1
On February 8 and 9, 1951, a hearing was held in the above-en-
titled consolidated proceeding before Trial Examiner James R.
Hemingway, who issued his Intermediate Report on March 6, 1951,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices in violation of Section 8 (a) (1) and
(5) of the Act, and recommending that it cease and desist therefrom
and take certain affirmative action.
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Murdock and Styles].
94 NLRB No. 168.