Macy's Missouri-Kansas Division v. NLRB

• Decision Date: 16 February 1968
• Docket Number: No. 18699.,18699.
• Citation: 389 F.2d 835
• Parties: MACY'S MISSOURI-KANSAS DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Amalgamated Clothing Workers of America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Eighth Circuit

389 F.2d 835 (1968)

MACY'S MISSOURI-KANSAS DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Amalgamated Clothing Workers of America, AFL-CIO, Intervenor.

No. 18699.

United States Court of Appeals Eighth Circuit.

February 16, 1968.

COPYRIGHT MATERIAL OMITTED

Harry L. Browne and Jack L. Whitacre of Spencer, Fane, Britt & Browne, Kansas City, Mo., for petitioner.

John I. Taylor, Atty., N. L. R. B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy and George B. Driesen, Attys., N. L. R. B., were on the briefs.

Jacob Sheinkman, New York City, and John E. Philbin, Chicago, Ill., on brief for intervenor.

Before MEHAFFY and GIBSON, Circuit Judges, and STEPHENSON, District Judge.

FLOYD R. GIBSON, Circuit Judge.

This case is before us on a petition by an employer, Macy's Missouri-Kansas Division, to review a decision and order of the National Labor Relations Board. The Board cross-petitions for the enforcement of its order. The decision and order of the Board are reported at 162 N.L.R.B. No. 70.

Our original opinion in this case was withdrawn and Macy's Petition for a Rehearing was granted on the issue of a § 8(a) (5) violation, which in turn was concerned with the eligibility of permanent replacements for economic strikers to vote in a representation election where the economic strikers had returned to work and the strike was not current on the election date. This present opinion covers the issues decided in the original opinion and the modifications made thereon as a result of the rehearing.

Petitioner, Macy's is a division of a national retail organization engaging in the sale of merchandise through department stores. Macy's operates a main store in downtown Kansas City, Missouri, and four branch stores in the Kansas City metropolitan area.

These proceedings were originally initiated by the Amalgamated Clothing Workers of America, AFL-CIO (Union). The charges arose following the Union's attempt to organize employees of Macy's Ladies' Alteration Department beginning in August 1965. Based upon charges filed by the Union, the Board found that Macy's violated § 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (1)) by threatening employees and by promising and unilaterally granting certain wage increases. The Board found that by transferring Lydia Schmidt from the Ladies' Alteration Department to the Men's Alteration Department in its main store, Macy's had practiced unlawful discrimination in violation of § 8(a) (3) and (4) of the Act (29 U.S.C. § 158(a) (3) (4)). Finally, the Board found that Macy's refused to bargain with the Union after it had been duly certified as the exclusive bargaining representative of the ladies alteration employees in violation of § 8(a) (5) of the Act (29 U.S.C. § 158(a) (5)).¹

The scope of our review is limited to a determination of whether the findings of the Board are supported by substantial evidence on the whole record. If the record discloses substantial evidence in support of the findings of an unfair labor practice, the order of the Board must be enforced. Universal Camera Corporation v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). With this in mind we examine each of the Board's findings.

THREATS, PROMISES AND WAGE INCREASES IN VIOLATION OF § 8(a) (1)

Gertrude Cooper was the manager of Macy's main store Ladies' Alteration Department and was stipulated to be a supervisor within the meaning of 29 U.S.C. § 152(11). While Cooper was on vacation in August 1965 various employees in the department began supporting the Union and signed union cards. Upon her return Cooper made her dislike of unions known. We believe the totality of her expressions could validly be considered coercion, interference, and restraint of employees in the full exercise of their rights guaranteed under the Act.

On numerous occasions Cooper discussed the Union with employee Ola Franklin. Cooper asked why the employees had contacted the Union and indicated the employees would be better off without a union. Later she stated that the girls were "kind of stupid because there would be layoffs." Cooper indicated that if the employees supported the Union the company might decide not to do the alteration work on the Trans-World Airlines uniforms as contracted and there would be layoffs. On another occasion Supervisor Cooper advised employee Franklin that she "would be better off if * * * she let the union go" as she was not "indispensable".

Supervisor Cooper questioned employee Hinman as to why the girls had joined the Union and complained that the girls had gone behind her back to sign the cards. She berated a fellow employee of Hinman, one Lydia Schmidt, as being the instigator of the Union and told Hinman that Schmidt was the "biggest troublemaker in that department."

Cooper told employee Zagar that she had been "stabbed in the back" by the employees. Cooper said that a union would bring about layoffs in slack times, and that had there been a union they probably wouldn't have gotten the TWA contract.

Cooper approached employee Jakofcich and asked her what she thought about the Union. Later Cooper remarked that there might be layoffs in the future and that the company might not want the TWA contract. Cooper indicated that Jakofcich would be the third in line for layoff.

In summary, on at least five occasions it appears that Cooper threatened employees with possible layoff, and, at least by intimation, placed the blame for such layoff on the Union. Cooper was obviously angry at the employees who were supporting the Union and repeatedly indicated that she had been stabbed in the back and betrayed by these employees. She interrogated employees and vilified to others an employee who was a leader in the unionization drive. Finally, on at least one occasion Cooper intimated that an employee would be fired if she did not cease her union activity.

Though not disputing the statements made by Cooper, Macy's contends that the statements were but mild expressions of opinion protected by the right of free speech. We cannot agree. These were clearly coercive remarks, repeatedly made during the course of an organization drive. In their totality these statements constitute what could be considered coercive activity in violation of § 8(a) (1) of the Act. Jas. H. Matthews & Co. v. N. L. R. B., 354 F.2d 432, 439-440 (8 Cir. 1965), cert. denied 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966); N. L. R. B. v. Byrds Manufacturing Corp., 324 F.2d 329 (8 Cir. 1963).

In addition to these threats Cooper made certain promises of benefits. It has often been held that promises of benefit that are calculated to induce employees to forsake the union are unfair labor practices in violation of § 8(a) (1). N. L. R. B. v. Grand Foundries, Inc., 362 F.2d 702, 708 (8 Cir. 1966); N. L. R. B. v. Soft Water Laundry, Inc., 346 F.2d 930 (5 Cir. 1965).

The evidence indicates that Cooper told employee Franklin that she couldn't do anything about wages at that time "but later on maybe she could do something." Cooper told employee Hinman that the Union couldn't do anything for the employees that Macy's couldn't do. To employee Butler, Cooper said, "If you will just trust me, Macy's will do more for you than the union."

Though the Board has certainly not made a strong showing that these statements were unfair inducements, we think that taken in the context of the unionization drive, the strong contemporaneous expressions of antiunion sentiment, and the wage increases that were subsequently granted, these statements are a sufficient promise of reward to constitute an unfair labor practice in violation of § 8(a) (1).

In addition to the threats and promises the Board found that the granting of $5 to $7 wage increases to three employees were made to discourage union membership in violation of § 8(a) (1). The evidence indicates that these raises amounted to about a 10 per cent to 15 per cent increase in salary and were two to three times the average periodic increase.

Macy's argued that these increases were an attempt to keep the salary spreads of senior workers in line with the new minimum wage required to be paid to new workers. The trial examiner was not impressed with this explanation,² and pointed to the "meteoric raise" in pay scale enjoyed by Harris and Wood that gave them two substantial wage increases within six months. The trial examiner also pointed to the unusual timing of the raises that coincided with the unionization drive and followed assurances from Cooper that Macy's would take care of the employees. Though the employer has presented a plausible justification for the wage increases, we think the Board was presented with a factual issue which was resolved in favor of the General Counsel. As such we believe the finding, having substantial support in the record, is entitled to acceptance by us. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 490, 71 S.Ct. 456, 95 L. Ed. 456 (1951).

It is well established that the timely and unilateral granting of a wage increase is an unfair labor practice when it results in employees being induced to forsake the union. "Interferences, accomplished by allurements, are as much condemned by the Act as is coercion." N. L. R. B. v. Douglas and Lomason Company, 333 F.2d 510, 514 (8 Cir. 1964). See also, N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409-410, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964).

TRANSFER OF SCHMIDT

On October 7, 1965, employee Lydia Schmidt was transferred from the Ladies' Alteration Department where she was "lead fitter" to the Men's Alteration Department. Schmidt was a leading proponent of the Union in her department, a fact known to Macy's. The Board found that Macy's transferred Schmidt to the Men's Alteration Department because of her union activities and because of testimony given during prior...