National Labor Relations Board v. National Shoes

• Decision Date: 15 December 1953
• Docket Number: No. 70,Docket 22787.,70
• Citation: 208 F.2d 688
• Parties: NATIONAL LABOR RELATIONS BOARD v. NATIONAL SHOES, Inc. et al.
• Court: U.S. Court of Appeals — Second Circuit

208 F.2d 688 (1953)

NATIONAL LABOR RELATIONS BOARD v. NATIONAL SHOES, Inc. et al.

No. 70, Docket 22787.

United States Court of Appeals, Second Circuit.

Argued November 4, 1953.

Decided December 15, 1953.

COPYRIGHT MATERIAL OMITTED

Samuel M. Singer, George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Elizabeth W. Weston, Washington, D. C., John C. Rohrbaugh, Zanesville, Ohio, for petitioner, National Labor Relations Board, Washington, D. C.

Conrad & Smith, New York City, for respondents, Samuel Rubin, Seymour J. Ugelow, Isadore Fried, New York City, of counsel.

Before CHASE, Chief Judge, CLARK, Circuit Judge, and BRENNAN, District Judge.

BRENNAN, District Judge.

The National Labor Relations Board by petition, pursuant to Section 10(e) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, 29 U.S.C.A. § 151 etc., seeks enforcement of its order of March 11, 1953 (103 N.L.R.B. No. 58). The order requires respondents to cease and desist from refusing to bargain collectively with the United Wholesale, Retail and Department Store Union of America, C. I. O., Local 586, as the exclusive representative of employees at respondent's store at Syracuse, New York, and grants other related relief.

The order is based upon findings and conclusions of the Trial Examiner adopted by the Board to the effect that the respondents may properly be considered as a single employer in the proceeding before the Board, and that they refused to bargain collectively with the Union, in violation of Section 8(a) (5) of the Act, and thereby interfered with, restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a) (1). The application is opposed by respondents generally upon the contention that the evidence affords no proper basis for petitioner's order, in that respondent National Shoes, Inc. is not shown to be an employer within the meaning of the Act, and that the evidence is insufficient in law to sustain the Board's findings as to respondents' refusal to bargain collectively. The evidence is undisputed. The litigants differ only in the conclusions to be drawn therefrom. The pertinent facts will be concisely stated.

National Shoes, Inc. is a corporation with its principal place of business at the city of New York. It is engaged in the distribution of shoes and related products, and has about eighty retail outlets; all of which it owns and operates. Such outlets are located in several states. Its products are also distributed through other retail outlets, among which is the respondent, National Syracuse Corporation, which was apparently organized about 1951, and which maintains a retail store at Syracuse, New York. Commencing about July, 1951, the Union undertook to organize the employees at the National Syracuse Corporation, Syracuse, New York. About August 9, 1951, at a conference in New York City, the Union was recognized as the bargaining agent, and negotiations looking to the signing of a labor contract were begun. The negotiations were friendly, but were actually nonproductive. Agreement appeared to be imminent on several occasions, but obstacles to the actual signing of the contract were raised by the employer. On November 29, 1951, the Union filed a charge with the Board, which in effect related to respondent's refusal to bargain with the Union. Further negotiations were attempted, and the charge was withdrawn. Negotiations proceeded intermittently but without conclusion. The present complaint was issued on September 24, 1952. A hearing was held on October 20, 1952. The general counsel called two witnesses; Mr. Mac Siegel, who testified generally as to the corporate set-up and business relationships of the two respondents, and Mr. Maurillo, a regional director of the Union, who gave evidence as to the details of the negotiations. The respondents offered no evidence. The Trial Examiner filed an intermediate report containing his findings, conclusions and recommendations, which were adopted by the Board. The order challenged here was signed, and the petition for the enforcement thereof was later filed in this court.

An examination of the record discloses that the business and inter-corporate relationships of the respondents are closely integrated. Both corporations have the same president and secretary-treasurer. These two individuals were the organizers and sole stockholders of the National Syracuse Corporation. The Board of Directors of National Syracuse is composed of the same individuals, who are the officers of National Shoes. The labor policy of the National Shoes, Inc. is determined by the officers among whom is witness Mac Siegel, who determines the labor policy of the respondent, National Syracuse Corporation. Some employees of National Syracuse have been hired at New York City. Counsel for both corporations conducted the bargaining negotiations here, some of which were held at New York City. National Syracuse purchases its merchandise from National Shoes, Inc. The relationship between the two corporations, as disclosed above, amply supports the conclusion that the two respondents here involved may be considered as a single employer. N. L. R. B. v. Stowe Spinning Co., 336 U.S. 226, (See note 2, page 227), 69 S.Ct. 541, page 542, 93 L.Ed. 638; N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U.S. 261, 58 S.Ct....