Wertheimer Stores Corp.

National Labor Relations Board - Board Decisions

Mar 3, 1954

107 N.L.R.B. 1434 (N.L.R.B. 1954)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WERTHEIMER STORES CORP. and SAMUEL WEISS. Case
No. 2-CA-2571. March 3, 1954
DECISION AND ORDER
On October 15, 1953, Trial Examiner Herbert Silberman
issued his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning of Section
8 (a) (1) and ( 3) of the Act , and recommending that it cease and
desist therefrom 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 , a supporting brief , and a motion to remand the case
to the Regional Director for the purpose of taking additional
testimony . Local No . 1499, Retail Clerks ' International Asso-
ciation , AFL, herein called the Union , moved for permission
to intervene herein for the limited purpose of filing exceptions
to the Intermediate Report . The General Counsel filed a
"motion ' in opposition thereto.
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 Intermediate Report , the exceptions , the briefs,
the motions of the Union and the Employer , and the entire
record in the case , and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner with the following
additions.'
1. The Union has moved to intervene for the limited purpose
of filing exceptions to the Intermediate Report . The General
Counsel opposes the motion . As the time for filing exceptions
to the Intermediate Report had expired before the receipt of
the motion and no adequate reason has been given for the delay
in filing , the motion is hereby denied.2
2. The Respondent has filed a motion to remand the case
to the Regional Director for the purpose of taking testimony,
excluded by the Trial Examiner , as to an arbitration proceed-
ing which allegedly sustained the discharge of employee
Weiss . The motion is denied.
It is clear as a matter of law that the Board is not bound
by an arbitration award .3 Section 10 (a) of the Act provides
that the Board ' s power to prevent unfair labor practices
affecting commerce "shall not be affected by any other means
of adjustment or prevention that has been or may be established
i The Respondent has requested oral argument . The request is denied as the record,
including the briefs and exceptions , adequately presents the issues and the positions of
the parties.
2In denying the motion on the above ground, the Board finds it unnecessary to pass upon
the other reasons urged by the General Counsel in opposition to the motion.
3Stibbs Transportation, Inc., 98 NLRB 422, 427 ; Monsanto Chemical Co., 97 NLRB 417,
520.
107 NLRB 291.
WERTHEIMER STORES CORP. 1435
by agreement, law, or otherwise. ..." As the Court of Appeals
for the Ninth Circuit has said:4
Clearly, agreements between private parties cannot re-
strict the jurisdiction of the Board . We believe the Board
may exercise jurisdiction in any case of an unfair labor
practice when in its discretion its interference is necessary
to protect the public rights defined in the Act.
Moreover, the circumstances connected with Weiss' involve-
ment in the arbitration proceedings are not such as would
warrant the Board in the exercise of its discretion to decline
to assert its jurisdiction.' The arbitration proceedings were
initiated and carried through by the Union over the opposition
of Weiss, who immediately upon his discharge declared his
intention of resorting to the Board for redress of his wrongful
discharge and did so by filing an unfair labor practice charge
a week later. The arbitration award was handed down sometime
after proceedings had been instituted with the Board. This is
not therefore a case of a charging party who has "concurrent-
ly utilized two forums for the purpose of litigating the matter
here in dispute."' Accordingly, we find that the Trial Examiner
did not commit prejudicial error in refusing to admit testimony
concerning the arbitration proceedings.
3. The Respondent contends that the Trial Examiner was
biased and prejudiced and did not act in a judicial manner. We
have carefully examined the record and find no evidence that
the Trial Examiner was either biased or prejudiced or con-
ducted himself, despite provocation, in other than a judicial
manner. The Trial Examiner did eject one witness from the
hearing room, but he did so because she was prompting
another witness, and also properly admonished several wit-
nesses who were acting in an argumentative and insulting
manner. These actions by the Trial Examiner were part of
a justifiable attempt to maintain order and dignity in the
hearing room.
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 , Wertheimer
Stores Corp., New York, New York, its officers , agents,
successors , and assigns , shall:
4N.L.R B. v Walt Disney Productions, 146 F 2d 949 (C. A. 6), cert. denied 65 S. Ct. 1025.
5 Cf. The Timken Roller Bearing Company, 70 NLRB 500, set aside on other grounds in
161 F. 2d 949 (C. A. 6).
6 The Timken Roller Bearing Company, supra at p. 501.
7In his closing argument, to Respondent's counsel stated as follows:
Mr. Examiner, you have been very patient. I may not say you have been very favorable,
but I want to say that I thank you for the courtesy you have extended me in hearing my
argument.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Encouraging or discouraging membership in any labor
organization of its employees by discriminating in regard to
hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
any labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or
all of 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, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer to Samuel Weiss immediate and full reinstatement
to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges.
(b) Make whole Samuel Weiss for any loss of pay he may
have suffered by reason of the Respondent's discrimination
against him, in the manner provided in the section of the
Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the National Labor
Relations Board or its agents, for examination or copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary for a determination of the amounts of back pay
due under the terms of this Order.
(d) Post at its store in New York, New York, copies of the
notice attached hereto marked "Appendix A." 9 Copies of said
notice, to be furnished by the Regional Director for the Second
Region, shall, after being signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply therewith.
Member Beeson took no part in the consideration of the
above Decision and Order.
BIn the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
WERTHEIMER STORES CORP. 1437
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT encourage or discourage membership
in any labor organization of our employees by discrimi-
nating in regard to hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right
to self-organization , to form labor organizations , to join
or assist any labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities except
to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a)
(3) of the Act.
WE WILL offer Samuel Weiss immediate and full rein-
statement to his former or a substantially equivalent
position without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole
for any loss of pay suffered by reason of his discharge.
WERTHEIMER STORES CORP.,
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
STATEMENT OF THE CASE
Upon a charge duly filed by Samuel Weiss, an individual, the General Counsel of the
National Labor R;;lations Board, I by the Regional Director for the Second Region (New York,
New York), on April 24, 1953, issued a complaint against the Respondent. Wertheimer Stores
I The term General Counsel, as used herein, includes the attorney representing the General
Counsel at the hearing. The National Labor Relations Board is referred to herein as the
Board.
337593 0 - 55 - 92
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corp., alleging that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge,
complaint, and notice of hearing thereon were duly served upon the parties
With respect to the unfair labor practices, the complaint alleges, in substance, that the
Respondent, in violation of Section 8 (a) (1) and (3) of the Act, on or about June 21, 1952,
discharged Samuel Weiss because of his union and concerted activities, and thereafter has
failed and refused to reinstate him to his former or a substantially equivalent position
The Respondent in its answer, dated May 21, 1953, admits the allegations in the complaint
relating to the jurisdiction of the Board, admits it terminated Samuel Weiss' employment
on or about June 21, 1952, but denies the commission of auy unfair labor practices, and
affirmatively asserts that: (1) In accordance with the provisions of a collective-bargaining
agreement between the Respondent and the union representing its employees, the dispute
involving the discharge of Samuel Weiss was submitted to arbitration and the arbitrator
issued an award affirming the Respondent's action, (2) Weiss was discharged for cause
because he attempted by threats and intimidation to coerce the Respondent to perform an
act in contravention of and proscribed by its collective-bargaining agreement, (3) Weiss
was discharged for cause because he threatened Respondent with a failure of negotiations
concerning certain grievances and modifications in the event Respondent did not give Weiss
certain conditions not included in the 'collective-bargaining agreement. (4) Weiss bypassed
and violated the grievance procedure provided for in the said collective-bargaining agreement
and attempted to bargain individually with the Respondent, and (5) the Respondent was required
by its collective-bargaining agreement to submit to arbitration the issue relating to Weiss'
discharge and Respondent has complied with the arbitrator's award, dated August 22, 1952.
Pursuant to notice, a hearing was held on July 27, 28, and 29 and August 3, 4, and 5, 1953,
at New York, New York, before Herbert Silberman, and undersigned Trial Examiner. All
parties were represented at the hearing by counsel. Full opportunity to be heard, to examine
and cross-examine witnesses, to introduce evidence pertinent to the issues, and to present
oral argument was afforded all parties The parties waived their right to submit briefs
and proposed findings of fact and conclusions of law to the undersigned The Respondent's
motions, made at the conclusion of the General Counsel's case-in-chief, to dismiss the
complaint were denied. At the conclusion of the entire case, the Responent made various
motions to dismiss the complaint. Decision on these motions were reserved and they are
disposed of by the findings, conclusions, and recommendations in this Intermediate Report
and Recommended Order.
On cross-examination of the witness, Marshall M. Miller, the General Counsel asked the
following question: "Do you recall Mr. Just testifying that you never told him any of the
reasons why Weiss shouia be dischargea or the result of what you should check? " Respondent
objected to the question on the ground that the testimony of just was "just the reverse "
The Trial Examiner reserved ruling on the objection. Upon reading the transcript of the testi-
mony of just, the undersigned finds that the General Counsel's question fairly paraphrased
Just's testimony Respondent's objection to the aforesaid question is therefore overruled.
During the hearing, the General Counsel petitioned the Trial Examiner to revoke a us baena
duces tecum, bearing number B-24683, which had been served upon him by the Respondent
and required the production of seven documents described as affidavits given to Geller (a
field examiner employed by the Board) by the following named persons, all of whom testified
as witnesses in this proceeding: McKeon, Rich, Bennett, Miller, Weiss, Just, and Cohen.
The General Counsel and the Respondent were afforded opportunity to present orally their
respective arguments in support of and in opposition to the petition. Decision was reserved
with respect to the relief requested in the petition.2
The affidavit given by Miller to Geller was produced and admitted in evidence. For this
reason the petition to revoke thesubpena insofar as it requires the production of this document
will be granted The remaining documents whose production are required by the subpena are
affidavits alleged to have been given to an agent of the Board by Rich, Bennett, and Just,
witnesses who testified on behalf of the Respondent, and Weiss and Cohen, witnesses called
by the General Counsel. In accordance with Section 102.86 (b) of the Board's Rules and
Regulations, Series 6, these documents, if they exist, are field confidential and are not
P A prior petition to revoke the subpena was granted only insofar as it required the pro-
duction of the affidavit given by McKeon to Geller.
WERTHEIMER STORES CORP. 1439
available to public inspection The affidavits alleged to have been given by Weiss and Cohen
to Geller were not referred to by any testimony given in this proceeding. The General Counsel
in his cross-examination of witnesses Rich, Bennett, and just inquired whether they had made
certain oral statements to Geller. In this connection, the General Counsel neither referred
to any affidavit executed by any of these witnesses nor showed any affidavit to these witnesses.
At no time during the trial of the case did the General Counsel reveal the alleged affidavits.
Respondent's principal argument in opposition to the petition consisted of an unsupported
charge that the General Counsel was suppressing evidence. Respondent's counsel in explaining
his purpose for subpenaing the alleged documents stated: "I was not asking for that document
for any particular purpose, other than to show that the Board was taking isolated statements
in those documents, out of context, and attempting to cross-examine on them...." Thus,
as to the alleged affidavits of Rich, Bennett, and Just, the Respondent's argument amounts
to no more than that possession of the documents might enable it to bolster the credibility
of these witnesses. No argument by the Respondent discloses the reason for its desire to have
the alleged affidavits of Weiss and Cohen produced. The only inference that can be drawn,
especially in view of Respondent's accusation that the General Counsel was suppressing
evidence, is that the Respondent nurses the hope that the alleged affidavits might contain
information which could be used to its advantage. Respondent did not indicate what the
evidence might be which it has accused the General Counsel of suppressing. In the absence
of any support for this accusation, it would appear that the Respondent obtained and served
the subpena in question only on the chance that it might discover some evidence favorable
to its defense.
It is now well established that a litigant for purely exploratory purposes may not compel the
production of confidential documents from the files of the Board or its General Counsel.
The persons whose alleged affidavits are the subject of the subpena appeared and testified
at the hearing Respondent was given full opportunity to interrogate these witnesses on
direct or cross-examination and there is no reason for believing that these witnesses
withheld relevant information Respondent has made no showing of necessity for the pro-
duction of any of the affidavits alleged to have been given by these witnesses to Geller 3
Accordingly, the petition of the General Counsel to revoke the subpena duces tecum, numbered
B-24683, is hereby granted.4
Upon the record in the case and from my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Wertheimer Stores Corp., a New York corporation, operates a retail department store
at 617 West 181st Street, New York, New York. During the year ending June 1, 1952, which
period is representative of all times material herein, Respondent purchased products valued
in excess of $1,000,000, of which approximately 50 percent was transported to its store
from points outside the State of New York. During the same period, Respondent sold at its
store products valued in excess of $1,000,000, of which approximately 5 percent was trans-
ported from its store to points outside the State of New York. Respondent admits that it is
engaged in commerce within the meaning of the Act
IL THE UNFAIR LABOR PRACTICES
Samuel Weiss, who had been employed as a salesman in Respondent's department store,
was discharged on June 21, 1952. The Respondent stipulated that Weiss was not discharged
for any reason related to the performance of his duties. The single issue in this case, there-
fore, is whether the activities in which Weiss had been engaging and for which he was dis-
charged are within the scope of the protection afforded employees by Section 7 of the Act.
9See Hickman v. Taylor, 329 U. S. 495, 509; N. L. R. B. v. Quest-Shon Mark Brassiere
Co., 185 F. 2d 285 (C. A. 2), cert den, 342 U. S. 812.
4N. L. R. B v. Bank of America National Trust & Savings Association, 130 F. 2d 624
(C. A. 9), cert. den. 318 U. S 791; N L R. B. v. Quest-Shun Mark Brassiere Co., supra
Jamestown Sterling Corporation, 106 NLRB 466; international Broadcasting Corporation
(KWKH). 102 NLRB 1434; H. N. Thayer Company, 99 NLRB 1122; Connecticut Chemical
Research Corporation, 98 NLRB 160.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Background
In early 1950, Local 1499, Retail Clerks International Association, AFL, herein referred
to as the Union, and District 65, Distributive , Processing and Office Workers of America,
Independent , began competing for designation as the representative of the employees at
Respondent's store. This contest was not resolved until July 26, 1951, when the Board
certified the Union as the employees' exclusive representative. (Case No. 2-RC-2144.)
Weiss had actively supported District 65 during the period that the question of representation
was pending . Thereafter , he joined the Union as he was required to do under the terms of
the union-security provision of a collective -bargaining agreement between the Respondent
and the Union. As a conciliatory gesture toward those employees who had favored District
65, Weiss and Abe Feldman, another employee who had supported District 65, were elected
to the union grievance committee for the Wertheimer employees . Weiss was a member of
the grievance committee during all times material herein. The members of the grievance
committee also functioned as the Union ' s negotiating committee . William Bennett , president
of the Union , customarily chaired all meetings of the union membership and assisted and guided
the grievance committee in its dealings with the Respondent.
The membership of the Union, at a meeting held on October 31, 1951, voted that their
objectives in forthcoming negotiations with the Respondent should include a 40-hour, 5-day
week for employees working more than 40 hours per week (this involved about 14 out of
approximately 130 employees covered by the existing collective-bargaining agreement) and
a general wage increase . The membership also voted against accepting any proposal to
reschedule their working hours. This subject was raised because the employees had been
informed that the Respondent desired to keep the store open 2 evenings each week. To do this
it was necessary for the Respondent to reschedule employees ' working hours so that most
employees would be required to work 1 evening each week . s At the time of the vote, the
store customarily was open for retail business 1 night each week and most employees
were required to work 1 evening every second week. A substantial majority of the employees
opposed any change in their working hours' schedule which would involve additional evening
work.
The Discharge
In March 1952 , several issues in controversy between the Union and the Respondent
were submitted to arbitration . The principal question submitted by the Respondent was
whether it had the right to reschedule the employees' working hours so that the employees
would be required to work more than 1 night every other week. On the part of the Union,
the questions submitted were whether the workweek should be reduced to 40 hours per week
for those employees who were working more than 40 hours per week and whether adjustments
in wages and fringe benefits should be granted. The arbitrator issued an award denying
most of the proposals , including Respondent 's proposal to reschedule the employees' hours
of work and the Union's proposal for a 5-day , 40-hour week for all employees.
On May 2, 1952 , there was a meeting between representatives of the Respondent and
the union grievance committee. This was their first meeting following the arbitrator ' s award.
Despite the award , at this meeting the Respondent again proposed that it be permitted to
reschedule the employees ' hours of work in order to permit the store to remain open an
additional night each week. Because of Respondent 's insistence , Bennett agreed to submit
its proposal to the union membership for their consideration.6
5 The Respondent's objective of obtaining the Union's permission to reschedule the employees'
working hours so that employees would be required to work 1 evening each week in order that
the store could remain open 2 evenings per week will be referred to herein as "Respondent's
proposal" or "its proposal."
6 There is some conflict in testimony as to whether Bennett made the arrangements for
the employees to vote on the Respondent ' s proposal at the May 2 meeting or later in the
same month. It is unnecessary to resolve this conflict because there is no dispute that a
union membership meeting, at which the employees voted as to whether they would accept
Respondent's proposal, was held on May 21, 1952.
WERTHEIMER STORES CORP 1441
A few days later Weiss made an appointment to visit Marshall M. Miller, Respondent's
labor relations adviser, at the latter ' s office on May 7 . 7 Weiss told several of his fellow
employees about the appointment and that he (Weiss ) believed he would be able to get a
40-hour week for those employees who were working longer hours The meeting between
Weiss and Miller was friendly . Weiss began by telling Miller why considerable bitterness
existed among the employees towards the Respondent . Weiss specifically referred to the
refusal of the Respondent to reduce the hours of work to 40 hours per week for the handful
of employees who were working longer hours Miller said there might be difficulty in obtaining
approval of the Wage Stabilization Board for a reduction in hours, but he thought a 44-hour
week was a distinct possibility and he would recommend it to the firm. Miller raised the
subject of rescheduling the employees ' working hours and said the Respondent had to remain
open an additional evening each week in order to improve its financial position Miller said
that the employees were very stubborn and inconsiderate of the Respondent ' s needs in refusing
to approve the proposed rescheduling of working hours. Weiss replied that he had a great deal
of influence among the employees in the store and that in exchange for a 40-hour week he
believed that he could persuade the employees to vote in favor of the Respondent ' s proposal.
Miller pointed out that there was such opposition among the employees against working
an extra night that Weiss would have difficulty getting them to change their minds. Weiss
acknowledged that Miller might be correct . Weiss also said that if the 40-hour week was not
granted he would continue to oppose the rescheduling of working hours and would do so with
all his energy . The meeting , which lasted about an hour , ended cordially
The foregoing summary of the May 7 meeting is based upon Weiss' testimony which I
credit. According to Miller 's testimony , after the usual salutations and some explanation by
Miller of various pictures hanging on the walls of his office , Weiss explained the purpose of
his visit . Weiss said there were 6 or 7 people who were working more than 40 hours per
week and that there certainly was no reason for him (Weiss ) in, the haberdashery department,
to work more than 40 hours Weiss further said:
Look, Mr . Bennett is not the union , and if I can work out a deal, you will never have
any grievances , because it is up to me. I can make grievances for the company or I
can avoid the grievance . It is not up to Bennett . Bennett never does anything anyway.
This . is, a pure and simple business proposition The store will not be hurt You give
me the"'40 hours, otherwise you continue to have trouble in the Wertheimer Department
Store.
Miller replied that wage- stabilization controls were in effect and he doubted that the Company
had authority to grant a reduction in hours and furthermore that Weiss ' attitude was not one
of intimidation . Miller ' s testimony does not indicate that any animosity was shown by himself
or Weiss during their meeting or that they parted on an unfriendly basis. Miller did not
impress me as being a reliable witness. During his cross-examination he was argumentative
and evasive , his memory as to many events in issue was poor , his testimony in some respects
was implausible and in at least one other respect was inconsistent with statements contained
in an affidavit he gave to a Board field examiner in December 1952. Accordingly , I do not
credit those portions of Miller ' s testimony relating to his conversation with Weiss on May 7
which are in conflict with Weiss ' testimony
On May 15, Miller told Weiss that the Respondent would not grant any reduction in working
hours to the employees . On May 21 , 1952, at a membership meeting of the Union , the Respond-
ent's proposal was voted upon and was decisively defeated . Prior to the meeting , Weiss had
engaged in an active campaign among the employees at the store to induce them to vote againt
the Respondent 's proposal.
Another meeting between representatives of the Respondent and the union grievance
committee took place on June 18, 1952. At this meeting, Miller asked Bennett what had
occurred at the union membership meeting Bennett replied that almost all the employees,
with very few exceptions , voted against accepting the Respondent ' s proposal . Thereupon
7 There was considerable testimony as to whether Miller had invited Weiss to see him or
whether Weiss initiated the meeting . I shall not resolve the various conflicts in testimony
in this regard because , in my view, it makes no difference to the case whether Weiss or
Miller initiated the meeting.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller blamed Weiss for the defeat of the Respondent ' s proposal.' He mentioned Weiss'
visit to his office on May 7 and said that if Weiss was correct when Weiss said he controlled
the shop , then perhaps the Respondent should deal with Weiss and not with the Union . Miller
further stated , " I think Mr Weiss has done enough harm for us to go ahead and see if we
can't discharge this man." 9 Finally , Miller announced that he was going to examine the
law and if his beliefs were correct Weiss was going to be fired ii The foregoing summary is
based upon the testimony of Weiss and upon the testimony of Arthur B. Just , Respondent's
general manager, William Bennett , and Frances McKeon , who were called as witnesses by
the Respondent.
On Saturday , June 21, 1952 , just called Weiss into his office and discharged him The
following Monday . June 23, Weiss and Benett had a converstation with Miller concerning the
discharge . Miller refused to consider Weiss' reinstatement . During this conversation,
according to Weiss' uncontradicted testimony:
I told him (Miller) what are you going to do about the people in the store about my
getting fired9 He [Miller] said , " There you go, threatening us again. Anybody in the
store who gets out of line is going to find himself out on his ear We are going to get
the people in that store to cooperate, if I have to dump some men like you."
Concluding Findings
Respondent ' s defense to the complaint hereinii is that Weiss was discharged because
of his conduct in meeting with Miller on May 7, 1952, and that neither the meeting itself
nor the remarks Weiss made to Miller are within the scope of the protection of Section 7
of the Act. The Respondent contends that Weiss ' statements on that occasion constituted
adequate cause for the termination of his employment and, therefore , Weiss' discharge
for that reason does not violate Section 8 of the Act. It is unnecessary to consider the
questions raised by this defense because I find that Weiss was not discharged by the Respond-
ent for the reason asserted by it.
The Respondent was keenly desirous that the Union accept its proposal Therefore, despite
the fact that the issue had been submitted to arbitration in March 1952 and the arbitrator had
denied the employer' s request , nevertheless , on May 2, 1952, the Respondent again pressed
the Union to accept its proposal . The Union agreed to submit the matter to a membership
vote.
Weiss actively campaigned among the employees to vote against accepting the Respondent's
proposal and the Respondent was aware of Weiss' activities - On May 7, Weiss put Miller on
notice that he would vigorously oppose the Respondent ' s proposal Miller testified that the
s Arthur B Just, Respondent 's general manager, testified that Miller said to Weiss, "Do
you know what you have is grounds for discharge , because, by not granting the extra night,
the store loses money . You defeated the request for the extra night
9 The quotation is from the testimony of Arthur B. Just.
10 William Bennett , president of the Union , who was called as a witness on behalf of the
Respondent testified that:
Mr. Miller stated that he feld the contract permitted the Company to make changes,
regardless of the agreement of the employees ; that it was only a courtesy on his part
that he asked for agreement from the committee and the employees . I argued that
courtesy or not, the people who had to work the additional night were the ones to make
the decision.
In return , Mr. Miller Haired up and said , " if that was the case , if one man is going
to make threats and tell me what I am supposed to do , and violate the terms of the
contract , I am notifying you that Weiss will be fired on Saturday ." I believe he made
a statement to the effect that he was going to check his rights in the matter, and that
if his beliefs were correct , he was going to fire Weiss.
uOn objection offered by the General Counsel at the hearing , the Trial Examiner ruled
that the allegations in those portions of the Respondent ' s answer which are labeled "as a
first defense" and "as a fifth defense," and which interpose an arbitrator ' s award as
defenses , are insufficient in law to constitute a defense to the complaint herein . Therefore,
the Trial Examiner sustained objections to testimony offered to prove these allegations.
WERTHEIMER STORES CORP 1443
Respondent ' s general manager had told him that Weiss was agitating the employees to
oppose any rescheduling of their working hours . This is corroborated by Miller ' s affidavit
which was admitted in evidence) Finally. Weiss testified without contradiction that at the
June 18 grievance meeting both Bennett and Mr Moses, the Respondent ' s treasurer, asked
him whether he had actively opposed acceptance of the Respondent ' s proposal and Weiss
admitted that he had done so.
At the June 18 grievance meeting, when Miller was told that the employees had rejected
the Respondent ' s proposal , he became angry, openly blamed Weiss for the defeat of the
Respondent 's proposal , and threatened Weiss with discharge Weiss was discharged 3 days
later . Just credibly testified that he discharged Weiss because Miller , on June 21 , telephoned
him and recommended that he do so.
The only evidence supporting the Respondent ' s contention that Weiss was discharged solely
because of the May 7 incident is derived from the testimony of Miller . According to Miller,
he began considering Weiss' discharge after their May 7 conversation , but did not reach
a final conclusion as to whether he should recommend Weiss' discharge until June 18
at a conference with just and Moses immediately following the meeting with the union
grievance committee. Miller explains the delay of 6 weeks in reaching his conclusion by
testifying that he is a busy man and had to make an investigation concerning the lawfulness
of the proposed action. The alleged investigation made by Miller , however , appears to
have consisted only of conversations with 2 attorneys (Miller did not testify as to the length
of his conversations with these attorneys ) and finding certain material in a loose- leaf publica-
tion on labor relations matters to which he subscribes Miller , at the hearing , read from
2 or 3 pages of this publication and stated that he based his recommendation to discharge
Weiss upon the quoted matter and the advice he received from the persons he had consulted.
Miller did not state in his testimony what the advice was that he had received from his
consultants Miller further testified that on June 18 he made his recommendation to Just
and Moses that Weiss be discharged and just replied that he would discharge Weiss on Satur-
day, June 21.
Miller 's testimony that it took him 6 weeks to reach a final conclusion as to whether it
would be lawful to discharge Weiss is unconvincing especially in view of his further testimony
12 During the General Counsel's cross-examination of Miller , an affidavit executed by
Miller on December 3, 1952 , and mailed to Geller, a field examiner employed by the Board,
was introduced in evidence as General Counsel's Exhibit No . 4. Although the entire document
consisting of eight typewritten pages was physically received in evidence , the General Counsel's
offer of the document in evidence was limited to the last paragraph appearing on page 5 of
the affidavit for two specified purposes : ( 1) To prove by admissions contained in this paragraph
that the Respondent had knowledge prior to the date on which it discharged Wesis of the latter's
activities in opposing the Respondent 's proposal ; and (2) as a prior inconsistent statement
to impeach the testimony of Miller that he had not made his final decision to recommend
Weiss' discharge until June 18 , 1951 . The Respondent offered no objection to the admission
of the document in evidence for the purpose of impeaching the credibility of Miller, but
objected to the use of the document for the purpose of sustaining portions of the General
Counsel 's case. Respondent subsequently offered the entire document in evidence for the
purpose of showing that the entire affidavit is consistent. Decision on Respondent ' s objection
and offer was reserved . Miller was retained by the Respondent as its labor relations con-
sultant and appears to have been continuously in its employ in such capacity during all
times material to this proceeding , including the date on which the aforesaid affidavit was
executed and the dates of the hearing herein . The affidavit, explaining the circumstances
leading to the discharge of Weiss , was transmitted by Miller to the agent of the Board who
was investigating the charge in this case . Because Miller was the person who effectively
recommended Weiss ' discharge and was clothed with apparent authority to speak for the
Respondent with respect to its labor relations problems , the verified statement of Miller
given to a Board agent investigating an unfair labor practice charge against the Respondent
is binding upon the Respondent and any admission contained therein concerning knowledge
on the part of the Respondent of Weiss' activities has independent testimonial value. ( Trafford
Coach Lines , 99 NLRB 399.) Accordingly , Responent 's objection to the use of Miller's
affidavit for such purpose is overruled. The paragraph of the affidavit offered in evidence
by the General Counsel is not qualified or explained by any other parts of the document.
Therefore , Respondent 's offer of the entire document in evidence is rejected.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, although he had not reached a final conclusion by the time the June 18 meeting with the
union grievance committee began, he was able to reach a final conclusion during a half-hour's
discussion with Just and Moses immediately after the meeting In this regard, the conflict
between the testimony of Miller and just is significant. Miller testified that he had had two
conferences with Just and Moses on June 18, one before the other after the meeting with
the Union. During the latter conference, he reached a final decision that Weiss should be
discharged, and made such recommendation to just and Moses. On the other hand, Just
testified that he had had no knowledge that Miller was contemplating Weiss' discharge until
Miller made the statements, referred to above, at the June 18 meeting with the Union.
Then, according to just, on Saturday, June 21, Miller telephoned him and recommended
that Weiss should be discharged. Furthermore, although Miller testified that he had had
extensive discussions with Just and Moses on June 18 concerning the discharge of Weiss,
Just testified that he had had no such conversation with Miller Moses was not called upon
to testify. I credit Just's testimony that prior to the meeting with the Union on June 18 he
had no knowledge that Miller was contemplating Weiss' discharge 13 that he never had any
discussion with Miller about discharging Weiss, and that Miller did not recommend Weiss'
discharge to him until June 21.
In view of the timing of Weiss' discharge (3 days after the Respondent was advised that
the employees had rejected its proposal), Respondent's knowledge of Weiss' activities in
opposing its proposal, Miller's placing the blame upon Weiss for the unfavorable employees'
vote, Miller's threat to discharge Weiss which was made immediately upon learning the
result of the employees' vote, and the implausibleness of Miller's testimony that he was
considering Weiss' discharge since May 7 (and presumably it was mere coincidence that
he arrived at his final decision only after having been informed, on June 18, of the result
of the employees' vote), I find that the Respondent discharged Weiss because of his activities
in urging employees to vote against the Respondent's proposal
This conclusion is reinforced by 2 events which occurred after June 21 and reflect upon
Respondent's motive for discharging Weiss. These are (1) Miller's statement to Weiss and
Bennett, on June 23, that: "We are going to get the people in that store to cooperate, if I have
to dump some men like you", and (2) that in the fall of 1952, about 3 or 4 months after
Weiss' discharge, the Respondent was successful in obtaining the Union's approval of sub-
stantially the same proposal that the employees had overwhelmingly rejected in May 1952.
These events are consistent with and support the conclusion that when the Respondent
discharged Weiss it had not abandoned its proposal, despite the unfavorable award in the
March 1952 arbitration proceeding and the Union's further rejection of its proposal on
June 18, 1952, and Weiss was discharged as part of the Respondent's strategy to obtain
eventual union acceptance of its proposal
The final subject for consideration is whether Weiss' discharge violated the Act The
rights granted employees by Section 7 of the Act include within their scope the right to
engage in legitimate intraunion activities Thus, among other things, the Act protects employees
who attempt by persuasion to induce their designated representative to follow a particular
course of action or to adopt a particular attitude towards a subject of collective bargaining
or a matter relating to terms and conditions of employment. An employer who interferes with
employees' exercise of their right to engage in such intraunion activities violates Section 8
(a) (1) of the Act. Furthermore, an employer who discriminates against employees for
having engaged in such protected activities discourages participation by employees in union
business and affairs and thereby discourages membership in any labor organization in
violation of Section 8 (a) (3) of the Act. (Nu-Car Carriers. Inc., 88 NLRB 75, enfd. 189 F
2d 756 (C. A. 3), cert. den 342 U. S. 919, American Shuffleboard Comnanv, 92 NLRB 1272,
enfd. 190 F. 2d 898 (C.A. 3)) In this case, the Union had advised the employees that on
May 21, 1952, it was going to conduct a poll of its membership as to whether the Union
should accept or reject the Restpondent's proposal Weiss' conduct in urging the employees
to vote against the Respondent's proposal at the union poll was an activity protected by
Section 7 of the Act. Therefore, the Respondent by discharging Weiss for having engaged
in such protected activity violated Section 8 (a) (1) and (3) of the Act.
13Just testified that on May 8 or 9 Miller telephoned him and told him about the conversation
with Weiss on May 7. Miller also said he would like to discuss the matter with Just sometime.
WELLS DAIRIES COOPERATIVE 1445
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, 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 thereof.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Whether the discriminatory discharge of Samuel Weiss is viewed as a violation of Section
(8) (a) (3) or Section 8 (a) (1) of the Act, in order to effectuate the policies of the Act, it
will be recommended that the Respondent offer Samuel Weiss immediate and full reinstatement
to his former or a substantially equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have suffered by reason
of said discrimination by payment to him of a sum of money equal to that which he normally
would have earned from the date of his discharge to the date of the Respondent's offer of
reinstatement , less his net earnings during said period. Said loss of pay shall be computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289 . It will also be recommended that the Respondent , upon request , shall make
available to the Board payroll and other records to facilitate the determination of the amount
due.
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. Wertheimer Stores Corp . is, and at all times relevant herein was , engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. By discharging Samuel Weiss and thereafter failing and refusing to reinstate him to
his former or a substantially equivalent position , the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
WELLS DAIRIES COOPERATIVE and RETAIL, WHOLESALE
AND DEPARTMENT STORE UNION, CIO, Petitioner. Case
No. 10-RC-2598. March 3, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Frank E.
Hamilton, Jr., hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.'
1 The hearing officer referred to the Board the Employer's motions to dismiss the petition
on the grounds that: (1) The Petitioner has not made a sufficient showing of interest; and
(2) the Petitioner's waiver of pending unfair labor practice charges against the Employer
was not placed in evidence at the hearing.
107 NLRB No. 298.