Lerner Shops of Alabama, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1950

91 N.L.R.B. 151 (N.L.R.B. 1950)

In the Matter of LERNER SHOPS OF ALABAMA, INC., AND LERNER STORES
CORPORATION and RETAIL, WHOLESALE AND DEPARTMENT STORE
UNION, C. I. O.
Case No. 10-CA-531.Decided September 8, 1950
DECISION AND ORDER
On October 31, 1949, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the Intermediate
Report, and the Respondent filed a brief in support of its exceptions.
The Respondent also requested oral argument. This request is here-'
by denied as the record, exceptions, and brief, in our opinion, ade-
quately present the issues and the positions of the parties.,
The Board has reviewed the rulings made by the Trial Examiner'
and finds that no prejudicial error was committed.2 The rulings :
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 Trial Examiner's findings, conclusions, and
recommendations, except insofar as they are inconsistent with the
findings, conclusions, and order herein.3
' On June 26 , 1950, the Respondent filed a motion to reopen the record , asserting that,
at the time of the complaint herein, the Congress of Industrial Organizations , parent fed-
eration of the Union, and its officers , had not complied with the filing requirements of the
Act, and therefore, that the Board was without authority to issue the complaint . For the
reasons stated in J. II. Rutter-Rea: Manufacturing Coinpangt, Inc., 90 NLRB 130, and
Bethlehem Steel Company, 89 NLRB 1476, the motion is hereby denied.
2 In his exceptions , the General Counsel contends , in substance , that the Respondent
improperly refused to make more specific its answer alleging intimidation and coercion by
the Union, and that the Trial Examiner , therefore, erred in denying the motion of the
General Counsel to strike all testimony relating to such allegations . However, the Gen-
eral Counsel has not asserted , nor does it appear , that the testimony concerning the alleged
acts of intimidation and coercion resulted in surprise , or that he was deprived of his right
fully to litigate the matter . Accordingly, in view of the absence of prejudice to the General
Counsel, we find it unnecessary to pass upon the propriety of this ruling by the Trial
Examiner.
3In asserting jurisdiction over the Respondent , the Trial Examiner based his deter-
mination solely upon the operations of the Respondent , considered as an individual entity.
91 NLRB No. 22.
151
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in violation
of Section 8 (a) (1) of the Act.
In so finding, we rely exclusively upon the following conduct
attributable to the Respondent: (a) Division Manager Birk's ques-
tioning of employee Benefield concerning her membership in the
Union; and (b) Store Manager Woodall's interrogation of employees
Farrell, Yates, and Henson as to whether they had joined the Union.'
2. We do not agree with the finding of the Trial Examiner that,
on and after July 20, 1948, the Respondent violated Section 8 (a) (5)
of the Act. In our opinion, the record fails to establish that, during
this period, the Union represented an uncoerced majority of the
employees in the appropriate unit.5
The Trial Examiner's finding as to the Union's majority status is
based on evidence that, of the approximately 14 employees in the
appropriate unit, 8 had submitted authorization cards to the Union
at the time of its request for recognition on July 20, 1948. However, at
least 2 of these cards, namely those of employees Swain and Farrell,
were obtained after employee Benefield, the principal solicitor on
behalf of the Union at the Respondent's store, had threatened these
employees with economic reprisal if they failed to join. According
to Swain's uncontroverted testimony, she was warned by Benefield,
before signing a card, that "If I didn't join I'd be one of the first to
go out." Similarly, Farrell. testified, without contradiction, that,
before she signed, Benefield warned her that "it is sign, or else," which
Farrell understood to mean "that I didn't work if I did not sign."
Benefield's remarks were thus not confined to mere predictions of
the consequences of a future authorized union-security agreement,6
However , we rely , in addition , on the facts that the Respondent is wholly owned by Ler-
ner Stores Corporation, a Maryland corporation which is a holding company, owning
corporations similar to the Respondent in many States ; that there is almost a complete
identity of officers and directors of these two corporations ; and that labor relations policies
of the Respondent are apparently determined by Associated Lerner Shops of America, Inc.,
another subsidiary of Lerner Stores Corporation , which serves in a managerial capacity for
all the operating subsidiaries. Cf. Collins Baking Company, 83 NLRB 599.
4 While Woodall remarked to employees Benefield and Yates that she had been "stabbed
in the back ," we are of the opinion , unlike the Trial Examiner , that such remarks were
too equivocal in nature to constitute unlawful restraint and coercion . We also find,
contrary to the Trial Examiner , that the wage increases granted by the Respondent on or
about October 20, 1948, to the employees in almost all its 40 southern division stores,
including Gadsden , were not, under all the circumstances , violative of the Act.
'We find, substantially as did the Trial Examiner , that the appropriate unit embraces
all employees at the Respondent ' s Gadsden , Alabama, store, including extra sales em-
ployees , but excluding guards, professional employees , and supervisors . We do not pass
upon whether the assistant manager, whose status is not determinative under our dispo-
sition of the case , should properly be excluded from the unit as a supervisor.
8 The instant case is clearly distinguishable from Tennessee Coach Company, 84 NLRB
703, relied upon by the Trial Examiner . There the remarks in question constituted mere
predictions of the effect of an authorized union-shop agreement.
LER'\IER SHOPS OF ALABAMA, INC. 153
but constituted clear threats of present loss of employment if the em-
ployees refused to become members. Such remarks by the Union's
chief proponent were manifestly calculated to restrain and coerce the
employees, concerned and, in our opinion, raise substantial doubt as to
whether the. Union, which relies on its authorization cards rather than
the results of ballots cast at a secret election, represented the free
choice of the Respondent's employees.
Accordingly, as the threats made to at least two of the employees
who submitted authorization cards impaired the Union's majority
status, we find that the Respondent's refusal to bargain was not viola-
tive of the Act.7
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 , Lerner Shops of Alabama,
Inc., Gadsden , Alabama, and its officers , agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union member-
ship, activities , or sympathies;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations , to join or assist Retail, Wholesale and De-
partment Store Union , CIO, or any other labor organization , to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection , or to refrain from any or 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 , 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) Post at its store in Gadsden , Alabama, copies of the notice
attached hereto, marked Appendix A.$ Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent 's representative , be posted by
' See N. L. R. B. v. Dadourian Export Corporation, 138 F. 2d 891 (C. A. 2) ; of. High-
land Park Manufacturing Company , 84 NLRB 744, and Lancaster Garment Company, 78
NLRB 935.
8In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice before the words, "Decision and Order," the words,
"Decree of the United States Court of Appeals Enforcing."
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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;
(b) Notify the Regional Director for the Tenth Region, in writing,,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent otherwise violated the Act, be, and it hereby is,,
dismissed.
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Decision and Order.
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 interrogate our employees concerning their union
membership, activities, or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist RETAIL,.
WHOLESALE AND DEPARTMENT ST011E UNION, CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and. to engage in concerted activities for the.
purposes of collective bargaining or other mutual aid or protec-
tion, or 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,
.as authorized in Section 8 (a) (3) of the National Labor Relations
Act.
All our employees are free to become, remain, or refrain from becom-
ing or remaining members of the above-named union or any other labor
organization, except to the extent that this right may be affected by an_
agreement in conformity with Section 8 (a.) (3) of the Act.
LERNER SHOPS OF ALABAMA, INC.,
Employer.
Dated---------------- By--------------------------------------
(Representative ) (Title)
LERNER SHOPS OF ALABAMA, INC. 155
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
Shally O. Wise, Esq., of Atlanta, Ga., for the General Counsel.
Frank A. Constangy, Esq., of Atlanta, Ga., and Irving H. Dale, Esq., of New
York City, for the Respondent.
John J. Schulter, of Birmingham, Ala., and W. E. Connell, of Alabama City,
.Ala., for the Union.
STATEMENT OF TIIE CASE
Upon charges duly filed by Retail, Wholesale and Department Store Union,
C. I. 0., herein called the Union, the General Counsel of the National Labor Rela-
-tions Board (herein called the General Counsel and the. Board, respectively), by
the Regional Director for the Tenth Region (Atlanta, Georgia), issued his com-
_plaint•dated March 4, 1949, against Lerner Shops of Alabama, Inc., and Lerner
Stores Corporation, herein called the Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the
.National Labor Relations Act, as amended June 23, 1947, by Public Law 101, 80th
Cong., Chap. 120, 1st Sess., herein called the Act. Copies of the charges, the
complaint, and notice of hearing were duly served upon the Respondent and the
-Union.
With respect to unfair labor practices, the complaint as amended, alleged, in
substance, that the Respondent :
(1) On or about July 17, 1948, and thereafter, refused to recognize and bargain
with the Union as the exclusive representative of its employees in an appropriate
unit.
(2) On or about July 17, 1948, and thereafter, by certain named officers, agents,
and employees interfered with, restrained, and coerced their employees by (a)
making statements to them containing threats of reprisal or force or promise of
benefit pertaining to their union activity; (b) interrogating their employees
regarding their union activity ; (c) urging, persuading, threatening, and warning
its employees to refrain from joining the Union; (d) promising and granting its
employees an increase in pay and better working conditions ; and (e) ordering its
,employees to withdraw from,the Union.
In its answer Respondent denied the commission of any unfair labor prac-
tices and as a defense alleged. that the alleged unit was not appropriate for bar-
gaining and that the Union never represented an uncoerced majority of the
employees because a number of the employees were "intimidated, coerced,
.threatened and interfered with" by the Union in the exercise of rights guaranteed
under Section 7 of the Act.
Pursuant to notice, a hearing was held at Jasper, Alabama, May 24 and 25,
1949, before the undersigned Trial Examiner, duly designated by the Chief Trial
-Examiner. The General Counsel and the Respondent were represented by
counsel and the Union by representatives. Opportunity to be heard and to
examine and cross-examine witnesses was afforded all parties.
Prior to the hearing a motion for a bill of particulars by the. Respondent was
granted in part and denied in part. At the hearing amendment of the com-
plaint with respect to the wording of the unit allegation was allowed without
-objection. A motion by the General Counsel to strike paragraph 13 of the
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer alleging intimidation and coercion on the part of the Union in viola-
tion of Section 8 (b) (1) of the Act was granted only to the extent of striking
that part of the allegation which alleged a violation of Section 8 (b) (1) of the
Act. Another motion by the General Counsel to answer more specifically para-
graphs XII, XIII, and XIV of the complaint was denied but a motion requiring
Respondent make more specific paragraph XIII of the answer alleging intimida-
tion and coercion on the part of the Union was granted. Respondent refused
to comply with this motion, whereupon the General Counsel moved to strike
any testimony that might be adduced pertaining to the alleged intimidation and
coercion by the Union. Ruling on this motion was reserved.'
At the close of the General Counsel's case, Respondent moved to strike from
section 14 of the complaint as particularized by paragraph II and III of the bill
of particulars, any reference to Assistant Store Manager Hix which motion was
granted without objection. Also granted without objection was Respondent's
motion to strike from paragraph XIV of the complaint, as amended by section
5 of paragraph III of the bill of particulars, the allegation that Division Man-
ager Birk on September 17, 1948, ordered employees to withdraw from the
Union. Also stricken upon motion by Respondent were the allegations of sub-
section 3 of paragraph III of the bill of particulars pertaining to the activities
of the division manager, Birk, on September 17, 1948. Ruling was reserved
on the motion by the Respondent to strike from paragraph IV of the bill of
particulars the allegation that Store Manager Woodall promised or granted an
increase in pay or better working conditions ; the motion is hereby denied.
At the close of Respondent's case, ruling was reserved on Respondent's motion
to strike from the complaint the Lerner Stores Corporation as a Respondent.
The motion is hereby granted. Various other motions by Respondent upon
which rulings were reserved are disposed of by the findings and conclusions
herein.
An oral argument was made at the end of the hearing by the General Counsel.
Permission was granted to file briefs and proposed findings and conclusions.
A brief was duly filed by 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
Lerner Shops of Alabama, Inc., is a corporation organized under and existing
by virtue of the laws of the State of Alabama and qualified to do business in
the State of Alabama. The corporation is and has been for a number of years
engaged in the business of operating retail stores for the sale of ladies apparel
and ready-to-wear, in Gadsden, Birmingham, Montgomery, and Mobile in the
State of Alabama. In the course of the conduct of the corporation's operations
during the calendar year 1948, at the aforesaid stores, the corporation purchased
1 At the time the undersigned granted the above motion, he was aware of the ruling of
the Board in Columbus Manufacturing Co., Case No. 10-C-2056, dated November 30, 1948,
involving an appeal from a ruling of a Trial Examiner to make more specific a general
denial in an answer in connection with a charge of violation of Section S (a) (1) of the
Act, wherein the Board reversed the Trial Examiner. The situation here where a defense
was alleged but not explained appeared at the moment to be distinguishable. Upon
reflection, however, I am of the opinion that there is no substantial difference between the
Columbus Manufacturing case and the situation herein. Accordingly , the General Coun-
sel's motion is hereby denied.
LERNER SHOPS OF ALABAMA, INC'. 157
in excess of $1,000,000 worth of merchandise consisting principally of women's
wearing apparel, approximately 99 percent of which was purchased outside the
State of Alabama and shipped in interstate commerce to the four stores mentioned
above. During the same period, the corporation, through these same four stores,
sold merchandise for dollar value in excess of $1,000,000, less than 1 percent of
which was sold and shipped to customers outside the State of Alabama. Dur-
ing the same period in the operation of its store at Gadsden, Alabama, the cor-
poration purchased merchandise consisting principally of women's 'wearing
apparel at a dollar value in excess of $100,000, approximately 99 percent of
which was purchased outside the State of Alabama and shipped in interstate
commerce to the Gadsden, Alabama, store. During the same period, in the opera-
tion of the Gadsden, Alabama, store the corporation sold merchandise for dollar
value in excess of $200,000, less than 1 percent of which was sold and shipped to
customers outside the State of Alabama. Upon the basis of the foregoing, I find
that the Respondent, Lerner Shops of Alabama, Inc., is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union, C. I. 0., is a labor organization
within the meaning of the Act, admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
On Saturday , July 17, 1948 , Woodall, Respondent's store manager , was informed
by officials of the Union that a majority of Respondent 's employees in the Gadsden
store had designated the Union as their bargaining representative . This in-
formation Woodall conveyed that night by means of a long distance telephone
call to Rosenbloom , Respondent 's district manager at Atlanta. The following:
Monday, Rosenbloom and Birk, Respondent ' s division manager, arrived from,
Atlanta, the former in the morning and the latter not until after the store had
closed at 6 p. in.
At about 8 : 30 that night , Rosenbloom , Birk, Woodall, and His, the assistant
store manager , drove to the home of Harris , a few miles out of Gladsden . Harris,
together with Benefield , was the principal advocate of the union movement in
Respondent 's store . Woodall testified that it was her suggestion that Harris be
questioned, the purpose being to find out if there were any grievances or com-
plaints on the part of the employees . It was Birk's decision to go out immediately
rather than to make the inquiry the following day. Harris ' testimony in part
as to this visit is as follows : z
Q. Well, what happened when they came out there , Mrs. Harris?
A. Well, when they walked in, Mrs. His came to the door and said Mr.
Birk wanted to talk to me a few minutes and asked me if I wanted to talk
to him ; and I said, "come on in ." When Mr. Birk walked in I shook hands
with him ; and I said, "If you come to ask me if I signed a card", I said,
"Yes, I did." And he said if I were happying working at the store.
Q. Said what?
2 Harris was called as a witness under subpoena by the General Counsel . At the time of
the hearing she was no longer employed by Respondent . When Harris slid not testify as
expected the General Counsel claimed surprise and was permitted to cross-examine her.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He asked me if I was happy working at the store ; and then we talked
a little bit after that; and he said, "You did sign a card?" and I said,
"Yes"; and he said, "I want you to feel free to do anything that's best" ; and
from there on I can't remember anything. It was just a general conver-
sation.
Nowhere in Harris' testimony is there any indication that she was asked
.about grievances or complaints of the other employees. Nor does Woodall's
testimony throw much light as to the accomplishment of the avowed purpose of
the visit to Harris. Asked by the General Counsel if Birk had asked Harris
"whether the girls had any complaints of any kind at the store," she replied that
she did not remember. On cross-examination by Respondent Woodall (having
been called by the General Counsel as a witness under Rule 43 (b) of the Rules
-of Civil Procedure for the District Courts) acquiesed in the suggestion that Birk
.discussed with Harris "exactly what he had come to see her about, to see whether
or not there were dissatisfactions ;" and to see "whether she had complaints or
she knew of complaints."
The next day, Tuesday, before the store opened for business, Birk spoke briefly
to the employees as a group. He complimented them on their record of achieve-
ment and assured them of Respondent's desire that they be happy in their work.
He indicated that it was their privilege to join any organization of their own
choosing and encouraged them to feel free to come to their supervisors with any
of their problems. Somewhere during the course of this talk, Benefield suggested
that the union representative be called in or that the union adherents walk out.
Birk told them he did not want them to do that.
This same morning prior to the time Birk addressed the employees Benefield
was introduced individually to him. It was her uncontradicted and credited
testimony, 3 that Birk at this time asked her if she had joined the Union and
.also asked her what the Union could do for the employees that the Company
could not do.
Sometime on the same day Woodall called Farrell on the telephone and asked
'her if she had joined the Union. As testified by Farrell, Woodall said, "Mrs.
Farrell, all the girls down here-I understand all the girls down here have signed
union cards and Mr. Birk and Mr. Rosenbloom want to know if you signed one?" 4
Either the same day, July 20, or the next, Woodall called Yates on the tele-
phone and asked her if she "was in that bunch that joined the Union." In-
formed by Yates that she was, Woodall said, "I wouldn't have thought about (sic)
it. You just stabbed me in the back."
Sometime shortly after the incident with Birk, Woodall called Benefield
to the back of the store and talked to her about the Union. She told Benefield
she did not think Benefield "would have done that" and also said that Bene-
field stabbed her in the back. Although the substance of this conversation is
not too clear, it is apparent that it was charged with considerable emotionalism.
Woodall was in tears. Benefield warned her that her remarks might subject
Woodall to a $10,000 fine.
3 Birk did not testify although he was present all during the hearing.
4 While admitting that she called Farrell and asked her if she had joined the Union,
Woodall denied that she said Birk and Rosenbloom wanted that information. In my opin-
ion Woodall was an unreliable witness. In not crediting Woodall's denial in this instance,
I am further persuaded by Woodall's testimony regarding the reason she called Farrell
and Yates to the effect that because they were not in attendance when Birk made his
speech to the employees, she "thought that the other girls might like to know that he had
been there."
LERNER SHOPS OF ALABAMA, INC. 159
Woodall also asked Henson if she had joined the Unions Henson's testimony
to this effect was not definite as to when it occurred. She testified it was after
she signed the union card and at a time when she had not worked for a week
or two. In view of Woodall' s admission on the witness stand that she knew
who had joined the Union within a couple of weeks after the union officials'
visit, I find that Woodall's interrogation of Henson took place no later than the
end of July.
In its brief Respondent argues that the interrogations of its employees about
their union membership were so inconsequential as to be excusable under the
rationale of various Board and court decisions cited by Respondent holding that
by reason of the isolated or perfunctory nature of the Employer's interrogations
or remarks they did not under the circumstances of those cases amount to inter-
ference, restraint, or coercion of the employees' rights in violation of the Act-
The record does not justify Respondent's contention. Here we have not 1 or
2 sporadic remarks or interrogations out of a group of two or three hundred
employees emanating from a low supervisory level without the knowledge of
top management. Instead we-have interrogations as to the union membership of
4 out of some 14 employees, the direct effect of which is so serious as to be
considered, per se, violative of Section 8 (a) (1) of the Act,' instigated and
indulged in by high officials. Nor can a telephone call from the store manager
to an employee wherein an affirmative reply to an interrogation by the manager
as to union membership is countered with a statement by the manager that the
employee has stabbed her in the back be' considered a perfunctory incident..
In the same vein is Woodall's remarks to Benefield coming in an intense discus-
sion about the Union wherein Benefield's union activities -are described, with
tears, as "stab in the back."'
As indicated by Woodall in her testimony, the reason there was not more suclq
interrogations was that various of the employees had volunteered information
about their own union activities and apparently that of their fellow-employees.
Thus, it appears that Fluker, Lynn, and Carpenter told Woodall they had
joined the Union. A conversation with Davis about the Union revealed that
she had not been asked to join. The information volunteered by Harris in
Woodall's presence has already been mentioned. In addition, whether the in-
formation was volunteered or otherwise, Woodall also knew that His had not
joined and that Douval had joined the Union, the latter information being in
Woodall's possession either Monday night or Tuesday morning.
The foregoing reveals that there was nothing isolated or innocuous about
Respondent's unlawful remarks to and interrogation of its employees , nor was
it innocent, accidental, or lacking in purpose as is shown by the undenied credited
testimony of Dot Vandergift Shaw, at the time pertinent herein, manager of the
Betty Gay Shop, another women's wear store in Gadsden. It was Shaw's testi-
mony that Birk and Rosenbloom came into her store about the latter part of
July 1948 and in the course of the conversation with her Birk told her that "he
had heard the girls were joining the Union, and that the stores should get to-
gether and cooperate to keep them from joining," that they did not want the
Union. Birk attempted at this time to ascertain what the Betty Gay Shop was.
5 Woodall denied this. I do not credit the denial.
For a restatement of the coercive effect of such interrogations, see Standard-Coosa-
Thatcher Company, 85 NLRB 1358.
'Cf. N. L. R. B. v. Jahn and Oilier Engraving Company, 123 F. 2d 589 (C. A..7) enf'g.
24 NLRB 893.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paying its girls so ws "to see if his girls were in line with the girls up and down
the street."
Respondent also contends, as testified by Woodall, that her interest in the
employees' union activity was purely personal, having been viewed by her as
a reflection on her direction of the store during her short period as manager.
Such a defense would be of doubtful validity under the best of circumstances.
Here Woodall's admission to Farrell that Birk and Rosenbloom wanted to know
if Farrell joined the Union negatives Respondent's contention. This is particu-
larly true where Respondent's purpose to "keep the girls from joining the Union"
is shown by the testimony of a former manager of another Gadsden store. In
any event, to give effect to Respondent's theory on the facts herein would merely
serve to accentuate in the employees minds the Respondent's opposition to the
Union and make more pronounced the coercive effect of the remarks and inter-
rogations. If joining the Union reflected so seriously on the management's
attitude toward the store manager as to cause her to describe such conduct to
the employees as a "stab in the back," the employees certainly could reasonably
view with apprehension the Respondent's attitude toward their concerted
activity.
It is true that in his speech to the employees Birk stated that they had the
right to join any organization they wanted to and that he also told Harris the
same thing. It also appears that Woodall in ordering the girls not to talk
about the Union in the store (adding that outside the store she had nothing to
say) also told them it was their privilege to join a union but that they had to
do it outside the store. Respondent contends that these protestations effectively
neutralize any possible coercive effect of the above interrogations. I do not agree.
"It is firmly established that (an employer's) duty under the Act is not to give
mere lip service to it with proclamations and instructions but to use its authority
to make its policy effective-." 8 This is particularly true where high officials
indulge in the coercive acts as here.
In view of the foregoing, I find that Birk's interrogation of Benefield as to
her union membership and Woodall's interrogation of Farrell, Yates, and Hen-
son as to their union membership and Woodall's "stab in the back" remarks
to Yates and Benefield interfered with, restrained, and coerced the Respondent's
employees in the exercise of rights guaranteed them in the Act.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that all employes of the Respondent's "Gadsden store,
excluding guards, professional employees, and supervisors as defined .in the Act
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act." The Respondent contends that the
unit should properly exclude the casual' intermittent workers as distinguished
from the regular part-time employees and should include the assistant store
manager.
BBirmingham Post Company v. N. L. R. B., 140 F. 2d 638 (C. A. 5) ; see also Colonial
Life Insurance Company, 76 NLRB 653; Fulton Bag and Cotton Company , 75 NLRB 883;
Wadesboro Full-Fashioned Hosiery Company , 72 NLRB 1064.
LERNiER ;SHOPS! OF ALABAMA, INC. 161
(a) Part-time employees
At the time pertinent herein, the Respondent's payrolls ° show, in addition
to the classifications of manager, assistant manager, cashier, display, maid and
porter, certain regular sales positions as well as a group designated as "extra
sales" positions. The regular sales people are compensated on a weekly salary
basis plus a percentage of sales as a bonus. The extra sales people, while all
doing the same type of work as each other and as the regular sales people; namely,
selling merchandise to the store's customers, are paid on an hourly basis and
do not receive a bonus. While an attempt was made by Dale to draw a dis-
tinction between what he called regular part-time employees whom he described
as those who work less than a full-time schedule and extra part-time employees
whom he described as working on Saturdays only and generally coming in then
only when called in advance, it appears that the distinction, if any, is purely
a matter of personal opinion existing in Dale's mind, since the Respondent makes
no official distinction and carries all the employees in one group on the regular
payroll as "extra sales" and refers to them indiscriminatorily in company
parlance as "part time extras."
After identifying all of the extra employees as "part time extras when needed,"
Woodall, the store manager, testified she had one such employee, Yates, who
had regular reporting days each week, the rest being told every night when to
return or being so instructed by telephone. Elsewhere in her testimony, Woodall
indicated that Farrell, Yates, and Henson (carried on the summary of the pay
rolls received in evidence as "extra sales") all had similar jobs, coming in from
Saturday to Saturday and afternoons as needed, and working several days in a
stretch during the busy seasons such as Easter, Christmas, and Mother's Day.
There is nothing in the record to show that any of the other extra sales people
carried on the payrolls were considered by Respondent to have had a different
status from those above mentioned. From the foregoing, it appears to the
undersigned that there is little or no distinction as to the relative status of
the various people carried on Respondent's payrolls as "extra sales" classifica-
tions. Accordingly, in view of the similarity of duty of all the sales people in
Respondent's store at Gadsden, Alabama, the similarity of the method of pay-
ment of all of the extra sales people, and the fact that all of the extra sales
people are carried on Respondent's regular payroll, the undersigned finds that
the extra sales people have an identity of interest with the regular sales people
in the terms and conditions of their employment that permits their being included
in the same unit for the purpose of collective bargaining in respect to hours,
wages, and conditions of employment.10
(b) The assistant manager
The store hours at all times pertinent herein were from 9 to 5: 30 with 1
hour for lunch. In the absence of the manager, the assistant manager is in
ll Neither the original nor copies of Respondent's payrolls were offered in evidence. A
stipulation was entered wherein the names of employees and their payroll classifications
for the weeks ending on July 17, 24, and 31 and August 7 and 21, were read into the rec-
ord. There is no indication of the number of hours or days worked by any of the employees
during these periods.
1U Burrows and Sanborn, Inc., 81 NLRB 1308: Spencer Shoe Company, 61 NLRB 1058
Florsheim Retail Boot Shop, 80 NLRB 200; Province Public Market, 79 NLRB 1482.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. Thus for a period not exceeding an hour and 20 or 30 minutes a day
during the manager's lunch hour and other short absences for refreshments or
otherwise, the assistant manager is in charge of the store. She is also in
charge of the store during the manager's vacation. When the store manager
is present, the assistant manager's chief duty is to sell, but she sometimes has
detailed work to do such as billing out merchandise. She also okays checks and
directs the activities of the other employees. Like the other regular employees,
she receives a straight salary, but unlike them she does not receive a bonus for
sales made. Woodall's testimony as to the duties of the assistant manager
while undenied in the record, nevertheless is somewhat contradictory. Thus,
she at first testified that His the assistant manager, had no right to hire or
fire, but later on, on cross-examination by Respondent, she testified that laying
off or disciplining employees was part of the assistant manager's duty or re-
sponsibility only when the manager was out of the store. In any case, in view
of the limited nature of the authority and responsibility of the assistant man-
ager, I find she was not a supervisor within the meaning of the Act and conse-
quently should be included in the unit." In making this finding, the under-
signed is cognizant of the Board's recent decision in The Texas Company,
Salem Gasoline Plant, 85 NLRB 1211, where an employee performing duties of
a nonsupervisory capacity for 4 days of the workweek and performing duties
of a supervisory capacity a fifth day of the workweek was held to be ineligible
to vote in a representation election because his interests were "closely tied with
those of management." The undersigned does not believe that this decision
is controlling on the facts herein.
(c) The miscellaneous employees
. The parties apparently are not in conflict on the inclusion in the unit of the
cashier who, like the assistant manager, receives a straight salary, is entitled
to sell on the floor, but receives no bonus on sales. Nor is there any question
about the inclusion, of the display employee (who also sells), or the maid and
porter. Accordingly, in keeping with Board precedents as to the inclusion of
such employees in one bargaining unit, the undersigned finds their interests are
sufficiently similar to the interest of the other employees in the unit to warrant
their inclusion therein' In view of the foregoing, based on the record as a
whole, I find that at all times material herein all employees of Respondent's
Gadsden, Alabama, store, excluding guards, professional employees, and super-
visors as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
2. REPRESENTATION BY THE UNION OF A MAJORITY IN THE APPROPRIATE UNIT
The Respondent's payroll for the week ending July 24, 1948,13 lists 15 em-
ployees, of whom 14 are within the unit found to be appropriate. Authorization
11 Western Union Telegraph Company, 41 NLRB 1051; Gulf Refining Company, 67
NLRB 1299 ; Florsheinz Retail Boot Shop, supra.
13 Providence Public Market, supra; Denver Dry Goods, 74 NLRB 1167 ; Phelps-Dodge
Mercantile Company, 78 NLRB 179; Piers Reins Retail Boot Shop, supra.
13 Testimony that representatives of the-Union called on Woodall, the store manager,
on July 17, informing her that a majority of the employees had designated the Union as
their bargaining representative does not clearly show that a demand for recognition and
bargaining was made at that time. Accordingly, I find that such demand was not made
until July 20 in a telephone conversation between Schulter, the Union's international
representative, and Dale, Respondent's labor relations director.
LERNiER .SHOPS! OF ALABAMA, INC. 163
cards signed by 8 of Respondent's employees listed on the July 24 payroll des-
ignating the Union as their collective bargaining agent were admitted in the
evidence." In the absence of any vitiating defect in the authorizations they
constitute a valid majority for the Union in an appropriate unit. Respondent
contends such defects exist-that 4 people who signed authorizations were "co-
erced into joining the Union by threats of discharge and discrimination." The
testimony regarding these incidents, all of which is undenied and credited, is
set forth as follows :
F=-,ER:
Q. Did she (Benefield) say anything to you about joining the Union?
A. Yes, she did.
Q. What did she say to you about it?
A. She asked me if I wanted to join, and I asked her "they going to join,"
and she said they were and I said I would join too.
Q. Was there any discussion as to what might happen, if anything, if you
did not join?
A. Well, she said it was understood that if I did not join,- that if the
store became a union store, I would automatically be fired if the Union
came into the store.
Q. When did she tell you that? Was that before or after you told her
you would join?
A. That was after.
Q. That was after you told her you would join.
A. Yes.
SWAIN :
Q. (By Mr. CONSTANCY.) Mrs. Swain, did you have any conversations
with Mrs. Benefield about signing a union card before you signed this one,
this 2-c?
A. I did.
Q. Can you tell us when those conversations occurred?
A. Well, I don't remember what day it was on but she took me by the arm
and took me to the fitting room and told me most of the girls had joined the
Union and , if I didn't join, I'd be one of the first to go out.
DUVALL :
Q. Did Mrs . Benefield say anything to you about signing a union card?
A. Yep.
Q. When did she say anything to you about signing the union card?
A. I went in one morning and said "All of them signed" ; and said "You
just as well get yourself ready to sign" and I said, "They won't stick to-
gether" and she said, "They would" and I said, "They won't," and her and
Mrs. Harris were back at the water cooler and I asked Mrs. Harris , "Do you
reckon they'll all stick if they sign a card" and she said they thought so.
Q. Did you have any conversation with Mrs. Benefield about signing a
card in which she mentioned, or you mentioned, that you wanted to wait
awhile.
A. I sure did. I said, "We had better not do this."
"Some of the cards were admitted over objections on the 'grounds that the dates or
other information on them had not been filled in at the time they were signed. One card,
that of Tommy Williams , was rejected as not having been properly identified. It was.
Connell 's credited testimony that he had all nine cards signed by the Union with him when
he and Parker called on Woodall on July 17.
917572-51-vol. 91-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. What did she do then?
A. Said, all that didn't sign, they would pitch them out.
Q. Who would pitch them out?
A. I don't know. She said, "If they don't sign, pitch them out."
Q. "If they don't sign, we'll pitch them out'?"
A. Yes, Sir.
Q. Was there any conversation with anybody about that time about having
to be signed or you would be fired?
A. Well, I don't know anything about that-anything said to me about
being fired-but said, "All that didn't sign was pitched out."
Q. Was that Mrs. Benefield?
A. That's true.
Q. Was that before or after the meeting at Mr. Willard's house?
A. I believe it was before.
Q. Before the meeting at Mr. Willard's house?
A. I'm not positive. I think it was.
FARRELL:
Q. And I believe you testified the first clay you heard about the Union
was when Mrs. Benefield talked to you?
A. That is right.
Q. The morning you signed your card?
A. That is absolutely right.
Q. Tell me exactly what Mrs. Benefield said to you?
A. Well, I came in and went into the dress department, where I work; and
she said, "Mrs. Farrell, everybody in the store has signed union cards this
morning; and its sign or else."
Q. "And it is sign or else?"
A. Yes.
Q. What did that mean?
Mr. WISE. I object to that as calling for a conclusion.
Trial Examiner DIXON. Objection sustained.
Q. (By Mr. CONSTANGY.) What did you understand by that?
A. Well, it seemed to me like that I didn't work if I didn't.
Q. Was that what you understood?
A. That was my understanding.
Q. What did she say then, Dirs. Farrell?
A. She didn't say anything. I didn't speak because I was absolutely
knocked senseless. I had no idea such a thing was brewing in the store.
Q. Did she say anything about Mrs. Harris then?
A. She said, "Mrs. Harris wants to see you in the back," and I went di-
rectly to the back and that's where Mrs. Harris gave me the card and that's
when I signed it.
Q. And you left the card with Mrs. Harris?
A. I did.
Q. Now, have you been to any union meetings or participated any further,
other than that day?
A. I have been to two union meetings.
Q. When were they?
A. They were sometime later. I went to Mrs. Yates' house to a union
meeting and still later I went to one at Mrs. Benefield's house.
These remarks and these alone are the only basis for the contention that the
employees were coerced into signing cards. There is no evidence that force of
LERXER SHOPS OF ALABAMA, INC. 165
any kind was used or threatened. Nor is there anything in the record other
than the employee's own interpretation of the remarks to add to, augment, or
explain them.
In: support of its contention that the above remarks had a coercive effect
on the employees in question in the exercise of their free choice of a bargaining
representative, Respondent relies on three cases : G. H. Hess, Inc., 82 NLRB
463, where the Board set aside an election because of coercive remarks made
prior thereto by a union official to an employee; Smith Cabinet Manufacturing
Company, 81 NLRB 886; and Cory Corporation, 84 NLRB 972, where threats
of a loss of jobs by union agents were found to be coercive and in violation of
Section 8 (b) (1) (A) of the Act. These cases are distinguishable from the
case at hand. In each of the above cases there was an element of force or
possible violence present which was adverted to by the Board in each case and
which is entirely lacking in this case. More important in each of the above
cases, the remarks held to be coercive were made by union officials or agents
as distinguished from rank-and-file employees. The distinction in this respect
has recently been made by the Board in the Tennessee Coach Company, 84
NLRB 703, wherein a remark similar to those held to be coercive and in violation
of Section 8 (b) (1) (A) in the Smith Cabinet case, supra, and in the Seamprufe,
Inc., 82 NLRB 892, were held not to be coercive on the basis that the latter two
cases involved statements by authorized union agents while in the Tennessee
Coach case, the remark was not by a union representative or agent but by an
ordinary rack-and-file employee. Respondent's contention that the remarks
in question here were coercive or calculated to have that effect is unfounded
in the light of the ruling in the Tennessee Coach case.
In any case assuming that the above were not true, the fact is that the record
herein does not reveal that the employees in question were coerced.
Fluker's testimony was that she had indicated that she would join the Union
before the alleged coercive remark was made to her. Obviously, it had no effect
on her decision to designate the Union as a bargaining agent.
Swain attended the organizational meeting of the Union on July 15 and three
other meetings which constituted the total number of meetings the Union held.
In referring to a conversation about the organizational meeting she testified,
"I think she told me we were to meet over there but I don't remember when we
were supposed to meet." Asked if she was threatened by anyone else, Swain
testified, "Mrs. McKay said she thought it would be awful if we didn't swing
along after we got it started." The interest Swain showed in the Union as
evidenced by her attendance at all its meetings and indeed by the manner
by which she identified herself on the witness stand with the Union and its
initial efforts certainly does not support Respondent's contention that her au-
thorization to the Union was derived as a result of intimidation or coercion.
In addition Swain did not sign the card at the time of the remark but at a
meeting which took place later. Actually, and most fatal to Respondent's con-
tention, Swain herself did not testify that but for the alleged coercive remark she
would not have joined the Union.
With respect to Duvall's authorization, it appears that she raised questions
as to the ripeness of the time and the method of proceeding with the union
organization and expressed doubt as to whether the employees would stick to-
gether in the absence of a man to head the organization. Rather than demon-
strate an antiunion attitude on the part of Duvall, such observations indicate
a thoughtful participating interest in the Union. Like Swain she attended the
organizational meeting on July 15, as well as all the other meetings held by the
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Like Swain she ,did not testify that but for the alleged coercive remar1c
to her she would not have joined the Union, having not signed at the time of"
the remark but later.
Farrell testified that after the organization meeting Benefield told her "We•
all signed cards, and either sign, or else" which Farrell interpreted to mean if:
she did not sign she would not be working. Farrell attended two union meet-
ings after signing the card, one at Mrs. Yates' home and one at Benefield's.
She also testified that on being told by Harris and Benefield that everybody
had joined the Union she did not think there was anything to do but to join too.
Like the others, Farrell did not testify that but for the alleged coercive remark
she would not have joined the Union.
In view of the foregoing and based on the record as a whole, I find that on
July 17, 1948, and at all times pertinent herein, the Union represented a majority
of Respondent's employees in an appropriate unit.
3. The question of recognition and bargaining
There is no question that Respondent refused to recognize and bargain with-
the Union. The sole question is whether or not the Respondent's refusal was=
justified under the circumstances herein.
As indicated and found above, the Union notified Respondent on July 17, 1948,.
that the Union represented a majority of Respondent's employees but did not
crystalize at that time a demand for recognition and bargaining.' Such demand
was made, however, by Schulter in a long distance telephone conversation to
Dale in New York City on July-20. This conversation amounted to no more
than an introduction of the two people, the utterance of some amenities involving
mutual friends, the notification to Respondent of the majority designation and
the request for a bargaining conference, and the acknowledgment of the same,.
together with information that Dale was just about to leave on a business trip
of some 10 days or 2 weeks but would take the matter up on his return.
On July 23, Schulter wrote Dale confirming their conversation of the 20th and
reiterating that the Union represented a majority of Respondent's Gadsden
employees. On the same day, the Union filed with the Board a petition for
certification in the matter. Thereafter, on Monday, August 2, 1948, Schulter
wired Dale in New York that he would call him at 4 p. in. the following day
regarding the Gadsden store. Dale wired back that he would not be there but
suggested that he call at 4 p. m. Thursday, August 5, which Schulter did. As
to this conversation, it was Dale's testimony that he told Schulter that he had,
heard "reports about how some of the people had come to join the Union, or
signed cards" ; that he had received a copy of the R petition and told Schulter
that under the circumstances that was the right way to proceed; that Schulter
argued against an election and mentioned the possibility of a strike : that Dale
retorted that if Schulter felt a strike was preferable to a consent election, he
supposed there would have to be a strike ; that he felt the right thing to do was
to have a consent election quickly ; and that he would cooperate with Schulter
in working out the unit, time, and place ; that they then discussed how soon
they could get together ; that Schulter was anxious for Dale to come to Birming-
ham but that Dale could not do so because he had to go on another business
trip the latter part of August; that he was ready to meet with Schulter before
then but that they could not find a mutually convenient time.
On cross-examination Dale admitted he was not sure he mentioned a consent
election to Schulter in the August 5 conversation but added that he had mentioned
LERNIER SHOPS OF ALABAMA, INC. 167
-it in conversations he was having with Kay and Kaplan, New York officials of
the Union with whom Respondent had dealings, so that he knew that "the word
got back to" Schulter. On redirect examination, however, he was unable to say
that he had mentioned it to the New York officials before his August 5 conversa-
tion with Schulter but did testify that within a week of that conversation he did
-communicate to Kay or Kaplan or "some other officer" of the Union that the
Respondent would agree to a consent election.
Schulter at first testified that Dale did not mention in the August 5 conversa-
tion anything about an election or the R petition. On cross-examination he
admitted that receipt of the R petition may have been mentioned. I find that
the R petition was mentioned and that in all probability an election pursuant
-thereto was also brought up. But in view of Dale's uncertainty, even with the
.aid of leading questions, as to the mention of a consent election I find that
subject was not mentioned at that time.
On August 17, at the request of a Board field examiner, Schulter signed an
amended R petition at which time they discussed the matter of setting up a
hearing, Schulter pointing out that relations with the Respondent were good ;
that the Board should contact the Respondent as to its wishes.
On September 1 a meeting for September 22 in New York between Schulter
and Dale was arranged by the New York officials of the Union. On September 3
Prowell, a Board attorney, called Schulter about setting up the Lerner case for
hearing. Schulter told hits that he had a meeting arranged with the Respondent
on the twenty-second and that it was his feeling they would be able to work out
a contract and that they would let him know the result of that meeting at that
time. In this conversation Prowell indicated that he was going to call the
Respondent the same day. The results of these conversations between Prowell
and the parties were summarized in a letter from, him copies of which went
to Dale and Schulter. This letter referred to the coming meeting and the hope
of the parties that an agreement as to a consent election or recognition would
be reached. Also mentioned was the agreement of the parties to the date of
September 29 for a hearing in the event no satisfactory solution of the matter
-was arrived at in the September 22 meeting. Thereafter, Dale went on a vaca-
tion and nothing more appears until the September 22 meeting.
In this meeting it appears that an earnest plea was made by Schulter for
-recognition and a contract. This was countered by Dale with an assertion of
doubt as to the wisdom of such a course of action. Among other things the
internal affairs of the Union were brought up, the number of employees in the
unit as reflected by the R petition was questioned, and the alleged coercive tactics
of the Union were mentioned. On this basis a consent election was offered by
Dale which Schulter reluctantly and disappointedly agreed to subject to the
agreement of his field representatives.
The only material conflict as to what took place in this meeting arises in
connection with Respondent's policy, if any, regarding consent elections. Schul-
ter's testimony was that Dale told him that up to the Gadsden case all the
Respondent's labor relations matters had been handled on a case-to-case basis
but that with the proposal of a consent election to Schulter, Dale was going
to meet with Respondent's Board of Directors and recommend that Respondent
adopt a Nation-wide policy of agreeing to consent elections.
Dale admitted he did meet at that time with representatives of top manage-
ment but he denied it was for the purpose testified by Schulter. It was Dale's
testimony that the policy referred to above was already in existence having been
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established prior to the Gadsden matter; that he was meeting with them "just
to see if they wanted to make any suggestions about it."
On its face, Dale's testimony in this respect does not impress me as being
credible. Certainly, if the policy was already in effect as claimed by Dale, an
executive of his standing would have no need or desire to consult his Board 15
Accordingly I find that Respondent had no established policy with respect to
consent elections prior to the meeting of September 22 with the Union.
Schulter was to have confirmed the agreement to proceed with a consent elec-
tion the day following the September 22 meeting which was on Wednesday. Dale
did not hear from him until Friday when Schulter called to tell him that the
agreement was off and that the Union was going to file unfair labor practice
charges against the Respondent. Thereafter, charges were filed and the R pe-
tition withdrawn.
4. The wage increase
On or about October 20, 1948, the Respondent put into effect at its Gadsden
store as well as practically all its other southern stores a wage increase which,
at Gadsden, amounted to $3 per week for the salaried employees and an increase
from 50 cents to 65 cents per hour for the hourly employees. There is no evi-
dence that the employees had requested a wage increase at any time. Actually,
in spite of numerous instances in the record of Respondent's stated purpose to
ascertain if there were any grievances or complaints on the part of the employees
there is not one word of a grievance or complaint in the entire record. Nor is
there any evidence to show that the wage increase grew out of anything but the
advent of the Union. In fact the only testimony throwing any light on the
subject is Dale's to the effect that on October 14 he told the Board's Regional
Director that he had been holding up a wage increase for a period of a month
and a half to two months due to the pending charges. He further testified that
after that he and Birk discussed and worked out a series of wage increases for
the southern stores. Certainly the wage increase had not been very crystalized
or definite if it had to be worked out at that late date.
While it is true that the increases were for the entire 40 of Respondent's
southern stores with a possible exception of 1 or 2, it appears that not one
of these stores was unionized. It also appears that in the Gadsden campaign
the employees were informed by the Union of the wage increases resulting from
the recent conclusion of an agreement between the Union and Respondent in
New York. This same information was broadcast to all CIO offices throughout
the entire south with instructions to contact all Lerner stores in their jurisdiction.
In view of the circumstances herein I am unable to conclude that the Respond-
ent's action in granting the wage increase to its employees was motivated by
necessity or altrusim. On the contrary, it would seem that the sole motivation
for the increase was the union activity of its employees and that the sole intent
was to prove to the employees that they could get along without the Union thus
offsetting any further efforts by them along that line. "Wages which employees
are paid and the duties which they perform are the very heart of the employ-
ment contract, whether such contract is established by individual bargaining
or by the collective bargaining which it is the purpose of the Act to encourage.
"' Supporting this conclusion is the following statement by Dale in reply to a ques-
tion by the General Counsel as to how he usually responds to a request for recognition :
"Well, Dlr. Wise , I just want to tell you that I don ' t have any usual rules about these
things. Each case is a case. The last few we have had I have sat down with the Union
and tried to work out an election : then that ' s what happened."
LERNiER SHOPS OF ALABAMA, INC. 169
Hence to take unilateral action with respect to wages after a union has been
designated by (an employer 's) employees in an appropriate unit is a violation
of the Act." 16 Accordingly , I find that the wage increase granted to its employees
at its Gadsden, Alabama, store by Respondent on or about October 20, 1948,
without request or solicitation by the employees was calculated to and did
interfere with the rights guaranteed the employees under Section 7 of the Act.
5. Concluding findings
It is well established "that an employer may in good faith insist on a Board
election as proof of the Union's majority but that it unlawfully refuses to bar-
gain if its insistence on such an election is motivated not by any bona fide
doubt as to the Union's majority but rather by a rejection of the collective bar-
gaining principle or by a desire to gain time within which to undermine the
Union."" The question of good faith in these cases turns upon the relevant
facts including any unlawful conduct of the employer. Respondent has con-
tended that it has indulged in no unlawful conduct and that its refusal to bargain
was grounded in a good faith doubt as to the majority. Having found that the
Respondent did interfere, restrain, and coerce its employees in the exercise of
rights guaranteed them in the Act, the sole question remaining is whether in
the light of such conduct and the course of events herein it can be said that
the Respondent demonstrated good faith sufficient to overcome the coercive
effect of its acts and absolve it from the obligation to bargain. I am unable to
answer that question in the affirmative.
About the middle of July immediately upon learning that its store is organized,
high officials of Respondent arrive from out of the city and embark on and direct
a course of interrogation of its employees of sufficient intensity to give Respond-
ent the knowledge it seeks about the employees' concerted activities and to
effectively interfere with the rights guaranteed them in the Act. At the same
time another official of the Respondent in New York is replying to a union
request for bargaining and recognition (a distance of a thousand miles separating
them) with the assertion that the Union "will have no trouble" with the Respond-
ent, but that a coming business trip of a week or two prevents a meeting at that
time. Two weeks pass and the Union seeks to make a telephone contact with
Respondent but is unable to do so until 2 days later because Respondent's
official is tied up in conferences. Then, the telephone conversation takes place
(August 5) where nothing is accomplished, the Respondent being "unable" to
go to Alabama in the first part of the month and claiming another business trip
as an excuse for not being able to go the latter part of the month.18
The meeting finally takes place as scheduled. Recognition is not granted, but a
consent election is offered which is conditionally agreed to by the Union only
to be repudiated a day or two later. Respondent claims that, from the start, the
Union was aware of Respondent's willingness to agree to a consent election.
Respondent also maintains that it had a national policy at this time to agree to
consent elections. I have found that Respondent did not have such a policy, I
have also found that up through the August 5 telephone discussion between the
16 Allis Chalmers Mfg. Co., 162 F. 2d 435, 440 (C. A. 7) enfg. 70 NLRB 348. See
also Georgia Twine et Cordage Co., 76 NLRB 84; and W. W. Holmes, 72 NLRB 39.
17 Joy Silk Mills, Inc., 85 NLRB 1263 and Artcraft Hosiery Company, 78 NLRB 333.
"I find that this trip was merely a pretext at the time it was mentioned to Schulter
in the August 5 conversation on the basis of Dale's testimony on cross-examination to the
effect that he had not planned that trip until after he had the August 5 conversation with
Schuller.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties the Respondent did not offer to agree to a consent election. Whether or
not such an offer was thereafter made prior to the September 22 meeting is of
little importance herein. By that time the seeds of Respondent's previous inter-
ference with its employees' rights had long since germinated and were bearing
fruit. Indeed, it seems to me that had the Respondent offered a consent election
at the very start, its studied refusal to meet with the Union to effectuate such an
agreement would have belied the bona fides of the offer.
Respondent cites Clem D. Johnston d/b/a Roanoke Public Warehouse, 72 NLRB
i282 and Cltiammberlain Corporation, 74 NLRB 1189 as, controlling on the facts
herein. I believe they are clearly distinguishable. In the Roanoke case the
incidents of interference on the part of the employer are not as numerous or
as serious as herein. Moreover, as distinguished from the facts herein, there
the employer offered immediately to agree to a consent election.
In the Chamberlain case it was found that although interference did occur it
did not reflect the policy of the employer toward the Union. Moreover,. the
employer, when it learned of the interference on the part of the supervisor, took
immediate steps to reprimand the supervisor and to correct the conduct. Here,
.not only was,the interference carried on with the knowledge and at the instigation
of top officials of Respondent but one such official himself indulged in such
conduct.
The evidence shows that when Schulter conditionally agreed to the. consent
election, he stated he had not been in touch with the Gadsden situation for about
3 weeks. Since the unfair labor practices charged against Respondent which were
:alleged to have occurred either before the 3-week period to which Schulter alluded
(with which he presumably was familiar) or after the September 22 meeting
,(which played no part in the decision to file charges) Respondent contends.that
.some kind of an equitable estoppel has been created that prevents a finding of
unfair labor practice herein. The contention is without merit. Nor is there any
merit in the contention that by reason of the convenience that might accrue to the
Respondent from a certification. The Respondent is entitled to insist on such a
certification in derogation of its duty to recognize and bargain with the Union.
In view of the foregoing and based on the record as a whole it is my opinion
that the preponderance of the evidence established that the Respondent's conduct
-herein negatives its claim of a good faith doubt as to the majority of the Union
thus rendering it liable for its refusal to bargain therewith." I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above , occurring in
connection with the operations of Respondent described in Section I, hereof,
have a close , intimate , and substantial relation to trade, traffic, and commerce
among the several States and such of them as have been found to constitute
unfair labor practices, tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor
practices, I will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies and purposes of the Act.
1e Joy Silk Mills , Inc., 85 NLRB 1263; Cuf7man Lumber Company, Inc ., 82 NLRB 296;
and Nubone Company, 62 NLRB 322 and cases cited therein.
LERNEER SHOPS' OF ALABAMA, INC. 171
Having found that since July 20, 1948, Respondent has failed to bargain in
good faith with the Union as the exclusive representative of its employees in
an appropriate unit, it will be recommended that upon request Respondent
bargain collectively with the Union.
Having found that Respondent has engaged in interrogation of its employees
concerning their union membership and has granted a wage increase to them
thereby interfering with, restraining, and coercing them in the exercise of rights
guaranteed them in Section 7 of the Act, it will be recommended that it cease
and desist therefrom.
By conduct found to constitute interference, restraint, and coercion and by
its studied refusal to bargain with the majority representative of its employees,
Respondent has demonstrated a determination not to accord to employees rights
which the Act was designed to protect. It is reasonably to be assumed that
further unfair labor practices of the same or different character may be ex-
pected to occur unless Respondent is ordered to refrain from in any manner
transgressing employees' statutory rights. I will recommend, therefore, that
Respondent be ordered to cease and desist from interfering with, restraining,
or coercing its employees in any manner, in the exercise of the right to self-
organization, to form, join, or assist labor organizations to join, or assist the
Union, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities, as
guaranteed in Section 7 of the Act.
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, Wholesale and Department Store Union, C. I. 0., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. All employees at Respondent's Gadsden, Alabama, store, excluding guards,
professional employees, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. Retail, Wholesale and Department Store Union, C. I. 0., was on July 20,
1.948, and at all times since has been, the exclusive representative of all the
employees in Respondent's Gadsden, Alabama, store in the appropriate unit for
the purposes of collective bargaining within the meaning of, Section 9 (a) of
the Act.
4. By refusing to bargain with Retail, Wholesale and Department Store
Union, C. I. 0., on July 20, 1948, and thereafter, as the exclusive representative
of employees in the apppropriate unit, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) and
(5) of the Act.
5. By interrogating employees concerning their union membership and by
granting them a wage increase on or about October 20, 1948, Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and has thereby violated 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.]