NLRB v. Big Ben Department Stores, Inc.

• Decision Date: 22 May 1968
• Docket Number: Dockets 31640,No. 383 and 384,31641.,383 and 384
• Citation: 396 F.2d 78
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG BEN DEPARTMENT STORES, INC., Respondent.
• Court: U.S. Court of Appeals — Second Circuit

396 F.2d 78 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BIG BEN DEPARTMENT STORES, INC., Respondent.

Nos. 383 and 384, Dockets 31640, 31641.

United States Court of Appeals Second Circuit.

Argued April 3, 1968.

Decided May 22, 1968.

J. Richard Thesing, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Lawrence M. Joseph, Washington, D. C.), for petitioner.

Martin H. Scher, Mineola, N. Y., of counsel (Harry H. Rains, Mineola, N. Y.), for respondent.

Before MOORE, WOODBURY^* and SMITH, Circuit Judges.

WOODBURY (Senior Circuit Judge):

The respondent operates a department store in Poughkeepsie, New York.¹ It operates some of its departments itself. Other departments, including the shoe department, are operated by lessees. The trial examiner for the Board found, and it is admitted, that Big Ben and each operator of a leased department are joint employers of the employees in the leased departments and that Big Ben and all operators of leased departments together constitute a single employer for the purposes of the Act.

On July 20, 1965, Local 888, Retail Clerks International Association, AFL-CIO, began to organize the employees in the respondent's store, including the employees in the leased departments. The union organizers carried on their campaign openly, at first without let or hindrance by the management. Management only asked the union organizers to refrain from interfering with employees at their work, which seems to have been more honored in the breach than in the observance, for the trial examiner found that the union organizers in fact solicited employees on and off the selling floor during work time as well as non-work time.

On July 21 the lessee of the shoe department, Morton's Shoe Stores, Inc., hired one Peter Papastrat as a clerk, and on the next day, July 22, he accosted a young woman employed by Big Ben as she approached the time clock to check in after her lunch period and solicited her to sign a union card. She refused and promptly reported the incident to Big Ben's personnel manager who at once discharged Papastrat saying that a more experienced man was required.

The testimony of the participants in the incident differs substantially. The personnel manager testified that the young woman came to him emotionally upset and in tears, told him that Papastrat had "maneuvered" her into a corner and had tried to "force" her to join the Union against her will and appealed to him to get Papastrat "off her back." The young woman testified that Papastrat had stopped her in the hall and "explained the Union" to her and, when he persisted in his solicitation in spite of her rebuff, she left him. She admitted that she was visibly agitated as a result of the encounter but denied that she was reduced to tears. Papastrat testified that he talked to the young woman only a moment or so and used no undue persuasion. The trial examiner found that Papastrat did not in fact resort to any improper tactics. Crediting the young woman's version he found that all the testimony shows is that Papastrat persisted in his solicitation despite his rebuff and that the young woman became disturbed over the incident persumably because of her youth and inexperience.

The trial examiner found that by discharging Papastrat Big Ben had violated § 8(a) (1) and (3) of the Act. But, finding no evidence that Morton's Shoe Stores, Inc., was in any way responsible for Papastrat's discharge, he recommended dismissal of the complaint as to it.

On August 10 company management met by appointment with Union officers who submitted about 40 signed union authorization cards and requested union negotiation.

The testimony is conflicting as to details, but it is clear that the company officers looked at the cards, did not directly question either their authenticity or that 40 constituted a majority of the appropriate bargaining unit² and agreed to arrange by telephone on August 14 for a further meeting to discuss recognition. On August 14 one of the Union officers telephoned the Company's secretary-treasurer and principal negotiator but was told that he was not in town. On August 15 a Union officer sent a telegram to the respondent reciting some of the events of August 10 and asking for an appointment to meet to negotiate a contract. The respondent did not reply to this telegram and on August 18 the Union officer called the respondent's secretary-treasurer on the telephone again for an appointment but was told by the latter that no decision as to bargaining had yet been reached. On August 25 the Union officer wrote the secretary-treasurer a letter reciting past efforts to meet and requesting a meeting on August 30. This letter was not answered and on August 30 the respondent filed a petition for an election with the Board which the Board dismissed on December 17 because of the pendency of the present case.

The trial examiner resolving conflicting testimony on the basis of relative credibility found (1) that at the August 10 meeting the respondent's secretary-treasurer and principal bargaining representative acknowledged by his inspection of the union authorization cards then submitted to him that the Union appeared to have a card majority, (2) that he did not otherwise raise any question as to the Union's majority status, (3) that while there was discussion on August 10 of a Board election as an alternative to recognition based upon cards, neither the respondent nor the Union proposed that there be an election, and (4) that the respondent did not agree to open contract negotiations with the Union on August 10 or at any time thereafter. On the basis of these findings the trial examiner concluded that the respondent had no reasonable doubt of the Union's majority status and that its refusal to bargain was in bad faith. He accordingly found that the respondent had violated § 8(a) (5) of the Act.

During the summer of 1965 the respondent's management increased holiday pay from time and a half to double time. The exact date when this decision was made is in dispute. The respondent contends that decision was reached sometime before the Union began its organizing campaign and there is some evidence to support this contention. There is, however, persuasive evidence that the decision to raise holiday pay was not reached until after August 10. Moreover, there is no evidence that the decision, whenever it was reached, was announced to employees until some time after that date. The trial examiner found that the decision to increase holiday pay was made after August 10 and was prompted solely by the employees' adherence to the Union and in hope of allaying some of the discontent which led to that adherence. He accordingly found that the increase in holiday pay constituted an interference with employee rights in violation of § 8(a) (1) of the Act.

During the late summer and fall of 1965 several employees were interrogated as to their union sentiments. They were called by name over the store loudspeaker and asked to report to a Mrs. Edith Bernard in the president's office on the second floor. There they were questioned by Mrs. Bernard and on a few...