National Labor Relations Board v. JL Brandeis & Sons

• Decision Date: 06 November 1944
• Docket Number: No. 12891.,12891.
• Citation: 145 F.2d 556
• Parties: NATIONAL LABOR RELATIONS BOARD v. J. L. BRANDEIS & SONS.
• Court: U.S. Court of Appeals — Eighth Circuit

145 F.2d 556 (1944)

NATIONAL LABOR RELATIONS BOARD v. J. L. BRANDEIS & SONS.

No. 12891.

Circuit Court of Appeals, Eighth Circuit.

November 6, 1944.

Malcolm F. Halliday, Associate Gen. Counsel, of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, David Findling, and Mozart G. Ratner, all of Washington, D. C., on the brief), for petitioner.

Ralph E. Svoboda, of Omaha, Neb. (J. A. C. Kennedy, Yale C. Holland, George L. DeLacy, and Harry R. Henatsch, all of Omaha, Neb., Frederick S. Jack, of Tekamah, Neb., and Kennedy, Holland, DeLacy & Svoboda, of Omaha, Neb., on the brief), for respondent.

Before GARDNER, THOMAS, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order in which it found respondent J. L. Brandeis & Sons guilty of certain unfair labor practices, in that it had interfered with, restrained and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157. Respondent resists enforcement.

J. L. Brandeis & Sons, respondent herein, operates a department store in Omaha, Nebraska. On July 8, 1943, its employees voted on the question of designating a collective bargaining agent. The issue as submitted to vote of the employees was whether or not the Joint Council of Retail Clerks, International Protective Association, L.U.616, Building Service Employees, L.U.226, Sign, Scenic and Pictorial Painters, L.U.752, and Hotel Restaurant Employees L.U.644, all affiliated with the American Federation of Labor and designated in this record as the Joint Council, should be designated as the collective bargaining agent for the employees. The election resulted in a vote of 352 for and 359 against designating the four unions as the bargaining agent. The election was held under the supervision of the Regional Director of the 17th Region and was certified by his agents to have been fair and secret.

After the election had been held the Joint Council filed objections alleging that respondent had engaged in unfair labor practices which affected the result of the election. In the meantime the Joint Council had filed charges of unfair labor practices and the Board issued an order consolidating the charges of unfair labor practices and those involved in the objections filed to the election. The Board found that respondent had engaged in unfair labor practices consisting of: (1) anti-union statements by buyer Florence La Boschin and assistant buyer Raymonda Anderson; (2) permitting the circulation within its store during working hours of an anti-union petition; (3) employing detectives to engage in surveillance of union representatives while in its store; (4) anti-union statements of its president, George Brandeis, and of its general merchandise manager, Karl Louis; (5) publishing anti-union articles in the May, June and August, 1943, issues of its house newspaper; (6) distributing anti-union bulletins and pamphlets from June 16, 1943, through July 3, 1943.

Prior to July, 1942, the history of respondent in labor matters was negative and uneventful, but in July of that year a campaign for the organization of unorganized employees of respondent was initiated. The solicitation for membership was at that time unproductive of results. The Joint Council published a paper, the "Unionist" and various special bulletins, which emphasized the advantages of collective bargaining through the unions. In January, 1943, representatives of the unions sought to have them recognized as collective bargaining agents. Respondent requested proof of majority representation and this the unions refused to produce. At that time the unions had about 90 signed cards authorizing representation, out of approximately 1,000 employees. From that time on the efforts of the unions to organize the employees increased in intensity and in hostility toward respondent. A slow-down strike in a heating plant of a company affiliated with respondent was called in January, 1943, by an engineers' union, which resulted in shutting off the heat from respondent's store and twenty-one other downtown buildings, and a sit-down strike of elevator operators in two downtown office buildings not affiliated with respondent was called. In February, 1943, the heat in respondent's store was again turned off and the operators of the elevators in the office building which also gave elevator service to respondent's store walked out. About 100 of respondent's employees walked out at that time. The unions reasserted that they represented a majority of the employees but declined to check authorization cards against pay-roll. They vigorously attacked respondent for denying them recognition. Some of the statements in the publications issued and circulated by the unions, referring to respondent and its officers, are as follows: "un-American attitude of the Brandeis Company"; "intolerable working conditions"; "Wages were shameful;" the Brandeis Company was "dodging or evading"; Mr. Pettis (secretary-treasurer of respondent) "slashed a contract" and it was "garbled up by Mr. Pettis to suit his selfish desires"; actions of the company referred to as "discrimination and exploitation tactics"; a statement by Mr. Brandeis, president of respondent, was denounced as "a sugar-coated piece of the same poison used by labor baiting employers"; that employees were "at the mercy of their employer and his arrogant straw bosses"; that the Brandeis Company was "union hating"; that promises of respondent "will not be kept"; the Brandeis management was referred to as "management's program of intimidation and stooge tactics"; that "Brandeis management and its agents have been and are now striving to poison your minds against the American Federation of Labor"; that respondent paid "a low starvation wage"; that respondent continued to "rob the employees of their lunch and rest periods"; that the Brandeis Company "has proven its inability to speak truthfully"; that "all the odorous, dirty actions of the Brandeis Company in their labor relations will be brought to the attention of the government"; that "352 loyal employees were not afraid of the J. L. Brandeis Company and its agents and the big black whip which they have held over the heads of their employees for so many years."

Respondent was in various of these publications openly challenged to answer the many charges made against it and it was stated that if there was no answer it was because respondent knew that the statements were true. But respondent did make answer, and in March, 1943, it commenced the publication of the "Brandeis Service Men's News," as a means of communication between former employees in the armed forces and the civilian employees of respondent. In April, 1943, it was announced that the publication would be distributed generally among employees as a "house organ."

The intermediate report of the trial examiner set forth matters which he held to be coercive and to restrain and interfere with freedom of choice by the employees. In the April, 1943, issue of the "News" appeared the following:

"Recently some of you have been asked to sign what are termed `authorization cards.' Some of you have told us that you signed these cards after having been advised that your signature was merely a matter of attendance at a meeting. It is probable that when you sign such a card you give the particular organization named in the card the right to `act for you' or represent you for a year unless you withdraw the card in writing, which is sometimes difficult to do. You should always read and make certain that you know what you are signing.

"The store has never told any of you that you could not or should not join any organization or that it was necessary to belong to any organization to be employed here. This has been and always will be the store policy. * * *"

In the issue of the "News" for May, 1943, there was a reprint of an article by Westbrook Pegler, which had been published in an Omaha newspaper. It was prefaced by a statement that it concerned former members of a retail clerks' union in Chicago. The article stated that in Miami recently a federal court jury convicted Max Pollack, alias Max Caldwell, of conspiring to violate the draft act and thereby "removed from circulation a filthy underworld racketeer who had enjoyed a long spell of prosperity and terroristic power in the political slum of the party of humanity, the field of labor organization in Chicago. Caldwell, as he calls himself, had been a muscleman in a number of typical crooked Chicago unions of the American Federation of Labor and had persuaded Michael Savachka, his secretary-treasurer, to go into hiding in June, 1941, after a group of retail store employes summoned the nerve to revolt and demand an accounting of their money. There is no way of ascertaining how much Caldwell stole because Savachka was supposed to have custody of the membership books and accounts and they have disappeared. The membership is believed to have been somewhere between eight and ten thousand clerks earning around $25 a week on the average and the initiation fee was $25 and the dues were $2 a month." The union was Local 1248 of the Retail Clerk's International Protective Association. The balance of the article is severe in criticism of Caldwell, and also of the American Federation of Labor for giving him countenance.

In the same issue of the "News" appeared a statement signed by George Brandeis, president of respondent, in which he said:

"The management of our store recognizes the right of every employee to join any union or any other organization. Such membership will not affect any employee's position with the store.

* * * * *

"During the past three years, however, efforts have been made to have you join various unions. Once each week in the past six or eight months, leaflets have been distributed to employees as they left the store. These have...