Bonwit Teller, Inc. v. National Labor Relations Bd.
| Citation | 197 F.2d 640 |
| Decision Date | 17 June 1952 |
| Docket Number | Docket 22208.,No. 250,250 |
| Parties | BONWIT TELLER, Inc. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Drechsler & Leff, New York City, (David Drechsler and Mortimer Horowitz, New York City, of counsel), for Bonwit Teller, Inc., petitioner-appellant.
George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Mozart G. Ratner, Assistant General Counsel, and Duane Beeson, Washington, D. C., for National Labor Relations Board, respondent.
Sheppard, Mullin, Richter & Balthis and George R. Richter, Jr., Los Angeles, Cal., for National Retail Dry Goods Ass'n, amicus curiae.
Schlesinger & Bloom, New York City, for Intervenors, Retail Clerks International, A. F. L.
Before SWAN, Chief Judge, and AUGUSTUS N. HAND and FRANK, Circuit Judges.
Bonwit Teller, Inc., has petitioned to review and set aside an order of the National Labor Relations Board, and the Board has cross-petitioned for enforcement of its order. The proceedings before the Board were initiated by the Retail Clerks International Association, AFL (hereinafter called the "Union"), which filed objections with the Board to the effect that Bonwit Teller had interfered in an election held by the Board to determine the bargaining representative of Bonwit's employees. The Union subsequently filed a charge of violation of Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1), by Bonwit Teller, based substantially on the conduct previously asserted as constituting interference with the election. This charge was consolidated with the representation proceeding.1
The present controversy is for the most part concerned with inferences to be drawn from and the application of the Act to facts which are substantially undisputed. Bonwit Teller, Inc., owns and operates several retail stores in various cities throughout the eastern United States, its principal store being located at 721 Fifth Avenue in New York City where it employs about 900 people. During the early part of 1949 campaigns were conducted by rival unions to organize Bonwit's employees at its New York City store and at its branch store in White Plains, New York, the latter having approximately 90 employees. On June 30, 1949, the Board held an election at both stores at which the employees were given a choice of voting for no union, or the R. C. I. A., or the Amalgamated Clothing Workers of America, C. I. O. However, the election proved inconclusive, with neither the R. C. I. A. which polled 446 votes, the Amalgamated Clothing Workers which received 146 votes, nor the 305 employees who voted for no union, obtaining a majority of the votes. The Board, therefore, directed that a run-off election be held and eliminated the Amalgamated Clothing Workers from the ballot. The second election — from which stem the charges of unfair labor practices — was held on September 15, 1949 and resulted in a vote for no union by a majority of 668 to 225.
Throughout the period leading up to the election of September 15, 1949, Bonwit Teller maintained a policy of forbidding all solicitation by union organizers in its stores either during the employees' working time or when they were off duty.2 Organizers who entered the stores were asked to leave as soon as they were detected. The organizational drive by the Union was conducted by distribution of leaflets to employees as they entered or left the stores and at meetings which were held at Union headquarters or in halls rented by the Union for that purpose. While there is some dispute as to how successfully the no solicitation rule was enforced by Bonwit we do not consider that fact of importance since it is undisputed that Bonwit had a no solicitation rule in effect and attempted to enforce it whenever violations came to the attention of supervisory personnel.
On Friday, September 9, six days before the run-off election was to be held, the employees at the New York City store were informed that an employees' meeting was to be held on the main selling floor at 5 P. M., one-half hour before the store's normal closing time.3 The Board made no finding that the employees were compelled to attend this meeting and we may assume that employees were urged to go to the meeting, although they were free to leave the store if they wished to do so.
After the employees were assembled, Roy Rudolph, the president of Bonwit's, delivered a speech in which he strongly urged the employees to vote against the Union at the coming election. The Board found nothing wrong with this speech, except for the last paragraph, in which Rudolph answered a Union assertion that Bonwit's employees were entitled to a pay increase as follows:
The speech was repeated the following morning to the employees of the White Plains store and copies of the speech were mailed to employees of both stores. Thereafter, and until September 15 — the day of the election — Rudolph met informally with groups of employees in departmental meetings and discussed with them working conditions then prevailing in the stores and continued to urge them to vote against the Union. According to the witness Barnes, Rudolph told employees at one of the meetings that "the increase in wages would come after the union, after the affair with the union was over with."
The Board found that
On September 12, which was the Monday following Rudolph's store-wide speeches, the Union's vice-president, Samuel Meyers, notified Bonwit Teller by registered mail that he desired an opportunity to address all of Bonwit's employees at the New York store No answer to the request was ever received by the Union, and the Board held that Bonwit's refusal to honor this request was a violation of Section 8(a) (1).
The other unfair labor practices found by the Board consisted of statements made to employees by two supervisory employees, Neimark and Burchett. On one occasion following a departmental speech by Rudolph, a group of employees were having a discussion and, according to the testimony of Dorothy Dercole, "Mr. Neimark came over and asked us if we had any questions * * * And he said if the union was voted out we would get the increase immediately and if it was voted in we would not get it for nine months or even a year, because it would take that long to negotiate a contract with them." Burchett, who was head of the alteration department, told several employees in his department that if the Union was voted in, Bonwit would have to change its system of layoffs (which in the past had been based on family conditions and need rather than on seniority) and that its existing wage and promotion policies based on merit "would go out the window." These statements the Board found to contain threats of reprisal.
Bonwit Teller contends that the whole proceeding should be set aside because the Board lacked a General Counsel during part of the hearing before the Trial Examiner. The Board overruled this contention, based on a literal reading of Section 3(d) of the Act, 29 U.S.C.A. § 153(d), which vests in the General Counsel exclusive authority to prosecute complaints. Before his resignation the General Counsel had delegated to his representative at the hearing authority to prosecute the complaint. We find no impropriety in such a procedure and hold that the objection to it was properly overruled.
The conclusion of the Board that the speeches of Rudolph and the statements of supervisors Niemark and Burchett involved promises of benefit or threats of reprisal seems to us to have been erroneous. As to Rudolph, his remarks to the effect that wage increases were waiting for the employees were nothing more than an explanation of why Bonwit's policy of semi-annual wage reviews and recommendations had stopped. The Trial Examiner in his intermediate report described that policy and the events leading up to the speeches of Rudolph, Niemark and Burchett as follows:
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