Department Store Employees Union

In the Matter of DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250, INDEPENDENT (FORMERLY KNOWN AS DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250, C. I. 0.) 1 and OPPENHEIM COLLINS & CO., INC. Case No. 2-CC-62.-Decided May 4, 19/ 9 DECISION AND, ORDER On January 7, 1949, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Union had engaged in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report .2 • The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed., The Board has considered the Inter- mediate Report, the Respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial- Examiner, with the modifications and addi- tions noted below. 1. The Respondent contends that the Board's certification of Retail Clerks is invalid because the Respondent, admittedly not in compliance with Section 9 (f), (g), and (h) of the Act, was denied a hearing in the representation proceeding.. We do not agree, but find, as did the Trial Examiner, that the certification is valid .3 1 The Respondent was designated in the complaint by its former name. At the bearing, the complaint was amended without objection to designate it by its present name. 2 For reasons appearing below, we find it unnecessary to rule upon the Company 's motion to dismiss the Respondent 's exceptions . The Respondent's request for oral argument is denied, as the record and exceptions, in our opinion , adequately present the issues and the positions of the parties. 8 The Respondent advanced no arguments relative to the validity of this certification that were not considered and rejected by the Board in the representation proceeding, following a consent election won by,another union Matter of Oppenheim Collins 4 Co., Inc., 79 N. L. R. B. 435. We have reconsidered that proceeding and conclude now, for the reasons set forth in that proceeding , that the Respondent was properly refused inter- vention. See also N. M. U. v. Herzog, 334 U. S. 854 ; Fay v. Douds, 172 F. (2d) 720 (C. A. 2, Feb. 11, 1949 ) ; Douds v. Local 1250, 170 V. (2d) 695 ( C. A. 2, Nov. 8, 1948). 83 N. L. R. B., No. 47. 355 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In its pleadings and at the hearing , the Respondent specifically admitted that if the Board's certification of Retail Clerks was valid and if Section 8 (b) (4) (C) was constitutional , it had violated Section 8 (b) (4) (C ) by, in part, ordering its members to engage in concerted activities to obtain recognition, and by urging and encouraging employees concertedly to request the Company to grant such recognition. Contrary to this position , however, the Respondent now excepts to the Trial Examiner's conclusion that it thereby violated Section 8 (b) (4) (C). We do not rely upon these particular activities in finding that the Respondent violated Section 8 (b) (4) (C), and therefore find it unnecessary in this case to pass 'upon the propriety of filing exceptions which for the first time take a position contrary to repeated admis- sions previously made throughout the proceeding. We rely upon the strike itself, the pickting by the Respondent, and the other instances of inducement and encouragement of employees of the Company to join the strike. ORDER Upon the entire record in the case, and liursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Department Store Employees Union, Local 1250, Independent (formerly known as De- partment Store Employees Union , Local 1250 , C. I.O.) , and its agents, shall : 1. Cease and desist, during the effective period of the certification issued by the National Labor Relations Board on September 1, 1948, in case No. 2-RC-562, or any other certification of a labor organiza- tion other than Department Store Employees Union, Local 1250, Independent (formerly known as Department Store Employees Union', Local 1250, C. I. 0.), from engaging in, or inducing and encouraging the employees of Oppenheim Collins & Co., Inc., to engage in, a strike or a concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials , or commodities, or to perform services, where an object thereof is to force or require Oppenheim Collins & Co., Inc., to recognize or bargain with the Respondent as the representative of any employees of Oppenheim Collins & Co., Inc., in the collective bargaining unit of employees covered by such certification. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at -its business office in New York City, including all places where notices or communications to mem- bers are: customarily posted, a copy of the notice attached hereto DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250 357 as an Appendix.4 Copies of the notice, to be furnished by the Re- gional Director for the Second Region, shall, after being signed by a representative of the Respondent, be posted immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material; (b) Mail to the Regional Director for the Second Region signed copies of the notice for posting, the Company willing, on the bulletin boards of the Company, in its stores in Brooklyn, N. Y., and New York City, where notices to employees are customarily posted, such notices to be posted and maintained for a period of sixty (60) con- secutive days after receipt by the Company. Copies of the notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by Respondent's representatives, be forthwith re- turned to the Regional Director for said posting; (c) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date' of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members and the employees of Oppenheim Collins & Co., Inc., that : During the effective period of the certification issued by the National Labor Relations Board on September 1, 1948, in Case No. 2-RC-562, or any other certification of a labor organization other than Department Store Employees Union, Local 1250, In- dependent , (formerly known as Department Store Employees Union, Local 1250, C. I. 0.), we will not engage in, or induce or encourage the employees of Oppenheim Collins & Co., Inc., to en- gage in, a strike or a concerted refusal in the course of their em- ployment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform services, where an object is forcing or requiring Oppenheim Collins & Co., Inc., to recognize or bargain with us as the representative of any employees of Oppenheim Collins & Co., Inc., in the collective bargaining unit of employees covered by such certification. 4In the event this Order is enforced by a decree of a Court of Appeals, there shall be inserted, before the words: "A DECISION AND ORDER ," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 844340-50-vol. 83-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250, INDEPENDENT ( FORMERLY KNOWN AS DEPART- MENT STORE EMPLOYEES UNION, LOCAL 1250, C. I. 0.). By ----------------------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other mate- Tiah- INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. John J..Cuneo, for the General Counsel. Mr. Leonard B. Boudin, of Neuberger, Shapiro, Rabinowitz, and Boudin, of New York City, for the Respondent. Mr. Jesse Freidin, of Poletti, Diamond, Freidin, and Mackay, of New York City, for the Company. STATEMENT OF THE CASE Upon an amended charge filed on September 3, 1948, by Oppenheim Collins & ,Co., Inc., herein called the Company, the General Counsel of the National Labor Relations Board,' by the Regional Director for the ,Second Region (New York ,City) issued a complaint dated September 14, 1948, against Department Store Employees Union, Local 1250, C. I. O.,' herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (C) and Section 2 (6) and (7) of the National Labor Relations Act as amended,' herein called the Act. Copies of the complaint, the amended charge, a notice of hearing, and -various orders postponing hearing were duly served on the Respondent and the Company. With respect to the unfair labor practices, the complaint alleged in substance that since September 1, 1948, the Respondent, by various specifically described acts in violation of Section 8 (b) (4) (C) of the Act, has engaged in a strike .and has induced and encouraged, and is inducing and encouraging, the employees ,of the Company to engage in a strike or a concerted refusal in the course of their ,employment to transport or otherwise handle or work on any goods, articles, materials or commodities, or to perform services for the Company, an object -thereof being, to force or require the Company to recognize or bargain with the Respondent as the representative of the Company's employees at its New York and Brooklyn stores in an appropriate unit for the purposes of collective bar- gaining, notwithstanding the fact that the Board had, on September 1, 1948, certified the Retail Clerks International Association, AFL, herein called the Retail Clerks, as the exclusive bargaining representative of these employees pur- suant to the provisions of Section 9 of the Act. I The General Counsel and his representative are herein referred to as the General (Counsel ; and the National Labor Relations Board , as the Board. ' See footnote 1 .of, Decision. 161 Stat . 136. DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250 359 In its answer, the Respondent denied the allegations of the complaint con- icerning the acts of unfair labor practices and also asserted by way of affirmative defenses (1) that the Board's certification of the Retail Clerks was invalid be- cause the Respondent , its International Union, and one Belle White (although interested parties ) were not permitted by the Board to intervene in the repre- sentation proceeding in which the certification was issued ; (2) that the Com- pany is not engaged in an industry affecting commerce within the meaning of the Act ; (3) that the Board's certification of the Retail Clerks is invalid because the unit of employees covered by the certification is not an appropriate bargaining unit within the meaning of the Act; (4 ) that Section 8 (b) (4) (C) of the Act is unconstitutional since it contravenes the First, Fourth, Fifth, Ninth, and Tenth Amendments of the Constitution of the United States; and (5) that, the acts charged against the Respondent having ceased, the present proceeding is now moot. On September 14, 1948, the United States District Court for the Southern District of New York, on the petition of the General Counsel made pursuant to Section 10 (1) of the Act, issued an injunction against the Respondent engaging in certain conduct violative of Section 8 (b) (4) (C) of the Act. On October 8, 1948, the District Court, on the petition of the General Counsel alleging specific acts committed by the Respondent after September 14, 1948, found the Re- spondent and several of its agents to be in contempt of the injunction. At the time of the hearing in the present case, the Respondent 's appeal from the con- tempt order was pending in the United States Circuit Court of Appeals for the Second Circuit. Pursuant to notice , a hearing on the complaint in the present case before the Board, was held in New York City on December 15, 16, and 17 , 1948, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing, Counsel for the Respondent made a motion to amend its answer (1) to admit its commission before September 14, 1948, (but not thereafter ) of the acts alleged in the complaint ; and (2 ) to strike from the answer all affirmative defenses except those challenging the validity of the Board's certification of the Retail Clerks , and the constitutionality of Section 8 (b) (4) (C). Counsel for the Respondent stated that he made this motion on the express condition and understanding , which was confirmed by the Gen- eral Counsel , that there would be no evidence introduced in support of the com- plaint as to any acts on the • part of the Respondent after September 1948. Counsel for the Respondent further stated in substance that, by the proposed amendment of the answer , it was the Respondent 's intention to concede that its admitted conduct prior to September 14, 1948, as described in the complaint, violated the literal provisions of Section 8 (b) • (4) (C ) and would have been unlawful if the Board's certification of the Retail Clerks were valid and the statutory provision were constitutional. Counsel for the Company objected to the elimination of proof as to conduct on the part of the Respondent after Sep- tember 14 , 1948.. He conceded , however, that the Respondent 's acts after Sep- tember 14, 1948, so far as evidence thereof was available, were of the same type as those which occurred prior to September 14, 1948, and that they would not require or justify any • broader or different remedial order . The under- signed " thereupon overruled, the Company's -objection to the limitation of proof, approved the procedure suggested by the General Counsel and the Respondent, and granted the Respondent's motion to amend its answer. Counsel for the Company then made a detailed offer to prove the commis- sion by the Respondent after September 14, 1948, of certain specific acts , which, as the General Counsel conceded , were alleged in the General Counsel's petition 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the District Court for the contempt order against the Respondent. The undersigned rejected the offer of proof as to all acts by the Respondent which were clearly of the same type as those which the Respondent admitted having committed before September 14, 1948, but ruled that evidence would be received on several elements of the Company's offer of proof, which, in his opinion, raised slightly different questions of fact and law. Counsel for the Company, however, stated that, in view of the rejection-by the undersigned of the other elements of its offer of proof, he would not introduce the limited evidence per- mitted by this ruling. As a result, no evidence was taken at the hearing. De- cision was reserved upon motions by the General Counsel and the Company to strike various portions of the Respondent's amended answer. At the con- clusion of the hearing the General Counsel and Counsel for the Respondent waived oral argument but Counsel for the Company presented a brief oral argument. Although advised at the hearing of their right to file briefs with the undersigned, none of the parties has done so. Upon the entire record in the case, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Oppenheim Collins & Co., Inc., a Delaware corporation with its principal office and place of business in New York City, is engaged in the purchasing and retail selling of women's, misses', and children's apparel and sundry items, with stores and places of business in New York City, Brooklyn, White Plains, Buffalo, and Garden City, Long Island, all in the State of New York, and at Morristown and East Orange in the State of New Jersey, and at Philadelphia and German- town in the Commonwealth of Pennsylvania. In the year preceding the issuance of the complaint, Oppenheim Collins & Co., Inc., in the course and conduct of its business operations, caused to be purchased, transferred and delivered to its New York and Brooklyn stores merchandise of a value of approximately $8,000,000, of which approximately 40 percent was transported to these stores from States of the United States other than the State of New York. During the same year, the sales of Oppenheim Collins & Co., Inc., at its New York and Brooklyn stores were approximately $12,000,000, of which more than 10 per- cent represented merchandise sold and shipped by it to customers outside the State of New York, including merchandise shipped to its places of business located at East Orange and Morristown, New Jersey. Upon these facts, which are alleged in the complaint and admitted by the Respondent in its amended answer, the undersigned finds that Oppenheim Collins & Co., Inc., is engaged; in an industry affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED - Department Store Employees Union, Local 1250, Independent (formerly known as Department Store Employees Union, Local 1250, C. I. 0.) and also Retail Clerks International Association, AFL, are labor organizations within the mean= ing of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Board's certification of the Retail Clerks In its answer as amended at the hearing, the Respondent asserts that the Board's certification of the Retail Clerks on September.1, 1948, as the exclusive bargaining representative of an appropriate unit of the Company's employees is DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250 361 invalid in that neither the Respondent, Belle White, nor Retail , Wholesale, and Department Store Union, C. I. O. (the International with which the Respondent was affiliated and which is hereinafter called the International ), was not per- mitted to intervene in the proceeding before the Board resulting in the certifica- tion , although each of them had an interest in that proceeding . The General Counsel stated in the hearing in the present case that, in spite of the Board's determination of these questions in its Decision and Certification in the Repre- sentation Case (Case No. 2-RC-562), he would not object to the production by the Respondent of any evidence in support of its attack upon the certification. Counsel for the Respondent replied that he would submit no evidence but would rest upon the formal record in the representation case. Therefore, upon the record in that case and in accordance with the Board's Decision and Certification therein, the undersigned makes the following findings : On July 19 and 23, 1948, respectively, the Retail Clerks filed a petition and an amended petition alleging that a question affecting commerce existed concerning the representation of employees of the Company in its New York and Brooklyn stores. On July 29, 1948, the Retail Clerks, the Company, and the Regional Director entered into a "Stipulation for Certification upon Consent Election." Before the election , the Respondent, its International , and Belle White, an indi- vidual employee of the Company , each moved to intervene in the representation proceeding for the purpose of having their respective names placed on the ballot. The Regional Director denied these motions because his administrative investiga- tion disclosed (1) that the Respondent had not complied with the filing require- ments"of Section 9 (f), (g), and (h) of the Act; (2) that, under its constitution, the International's membership functioned only through its local unions, one of which was then the Respondent which had until recently been the bargaining agent of the Company 's employees in the stipulated unit ; and ( 3) that the author- ization cards submitted on behalf of Belle White, an active member of the Respondent and of its negotiating committee, were signed in an office used by the Respondent and at the request of its officials, by employees who believed that Belle White and the Respondent were in effect one and the same. As a result of the Regional Director 's denial of these motions to intervene, the only name to appear on the ballot in the election was that of the Retail Clerks. The election was conducted by secret ballot on August 2, 1948. According to a tally of the ballots, furnished to the parties, 393 of 475 eligible voters cast their ballots, of which 276 were for the Retail Clerks, 108 were against the Retail Clerks, and 9 were challenged. Following the election, the Respondent, the International, and Belle White, each filed objections to the conduct of the election and to conduct affecting the results of the election. In his report on these objections , dated August 11 , 1948, the Regional Director refused to consider the merits of the objections because none of the objectors had been allowed to intervene , and, therefore , none of them was a proper party to file objections. The International filed no exceptions to the Regional Director 's report, but the Respondent and Belle White, in exceptions filed by them , asserted that the Regional Director erred in excluding each of them from the representation pro- ceeding by arbitrarily denying their respective motions to intervene for the purpose of having their names placed on the ballot , without first according them a hearing as provided by Section 9 (c) of the Act, and as required by the consti- tutional guarantee of due process of law. In its Decision and Certification issued on September 1, 1948, the Board dis- cussed and rejected the arguments of the Respondent , the International, and Belle White, that they had a constitutional right to a hearing both on their original applications to intervene and on their objections to the conduct of the 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, and that they had been deprived of this right by the Regional Director- Furthermore, the Board noted that neither the Respondent, the International, nor Belle White had excepted to the Regional Director's administrative determi- nations of fact upon which he had denied their pre-election applications to inter- vene in the Representation proceedings. Accordingly the Board accepted the Regional Director's uncontested administrative determinations (1) that the Respondent had failed to comply with the filing requirements of Section 9 (f), (g), and (h) of the Act; (2) that Belle White--and-the Respondent were, in effect, one and the same;' and (3) that the International, under its own constitu- tion, was ineligible itself to represent employees in collective bargaining, but undertook to do so only through its local unions. On these bases and also in view of the absence of any contention that the Respondent, the International, or Belle White had any contractual interest in the representation of the Company's em- ployees, the Board sustained the Regional Director's denial of the applications by the Respondent, Belle White, and the International to intervene in the repre- sentation proceeding; his exclusion of their names from the ballot used in the election ; and his dismissal of their objections to the election. Finally, in accordance with the "Stipulation for Certification upon Consent Election," and with the results of the election, the Board found the stipulated unit to be appro- priate for the purposes of collective bargaining and certified the Retail Clerks as the exclusive bargaining representative of the employees in that unit. In the present proceeding, the Respondent has presented no arguments perti- nent to the validity of the Board's certification' of the Retail Clerks, which were not raised and rejected by the Board in the representation proceeding. Moreover, the Respondent presented no evidence in the present proceeding to rebut the findings made administratively by the Regional Director and previously accepted by the Board, although as has been noted the General Counsel stated that he would not object to the acceptance of any such evidence. The undersigned, there- fore, perceives no reason on the present record why the Board should reconsider its findings, conclusions, and certification in the representation proceeding. The undersigned accordingly concludes that, notwithstanding the contentions of the Respondent to the contrary, the Retail Clerks were validly certified by the Board on September 1, 1948, as the exclusive bargaining representative of an appropriate unit of the Company's employees at its New York and Brooklyn stores consisting of: All sales employees including part-time employees who work every day or a portion of the day ; all employees in the Bureau of Adjustments and Will Call Department, Mail Order. Department,,, General Accounting De- partment, Auditing Department, Accounts Payable Department, Accounts Receivable Department, Credit Office, Cashiers Department, Buyers', Cleri- cals, Stock Help (Delivery, Receiving and Packing Department employees in the Brooklyn store only), Matrons, Alteration Department, Display Depart- ment Trimmers, Addressograph and Advertising employees in the New York store only, but excluding shoe clerks in the Women's Shoe Department in the New York store, the Secretary to the Advertising Manager, the Copy Writer, Lay-out Man, Artists, Production Manager, and Manager of the Advertising Department, Executives, all those employed in a confidential capacity and their secretaries, all Pay Office Employees, all Delivery, Re- ceiving,andPackiW,,Department Ei loyees in the New York store only, all store detectives and other protective employees, all maintenance employees, porters, elevator operators, electricians, carpenters and painters, all switch- 'In making this finding, the Board specifically stated that it found it unnecessary to pass upon the question of whether or not the employees who signed Belie White 's author- ization cards in fact regarded her as being identical with the Respondent. DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250 363 board employees, all buyers and assistant buyers, all section managers, those heads of stock who spend a major portion of their time in performing super- visory duties, all Display Department Employees except trimmers, stylists, tube room supervisor, personnel department employees, employees of all departments operated by independent contractors or under a lease, and all extras, contingents, and seasonal employees, also guards, watchmen, pro- fessional employees and supervisors. B. The acts of the Respondent As has been noted the Respondent in its amended answer and by the statement of its counsel at the hearing, admitted that from.September 1, 1948, until Sep- tember 14, 1948, it committed the acts attributed to it in the complaint and that were it not for the invalidity of the Board's certification of the Retail Clerks and the unconstitutionality of Section 8 (b) (4) (C) of the Act, these acts would be unlawful as unfair labor practices within the meaning of Section 8 (b) (4) (C) of the Act. The undersigned has already found that the Board's certifica- tion of the Retail Clerks was valid. Furthermore, the undersigned rejects the argument of the Respondent that Section 8 (b) (4) (C) of the Act is unconstitu- tional, upon the normal, proper assumption by an administrative agency, unless and until instructed to the contrary by the courts, that Congressional Acts prescribing the agency's powers and duties and functions are constitutional.5 The undersigned therefore, finds and concludes, in accordance with the Re- spondent's admissions of the allegations of the complaint, that from September 1, 1948, until September 14, 1948, the Respondent, in violation of Section 8 (b), (4) (C) of the Act, engaged in a strike and induced and encouraged employees of the Company to engage in a strike or a concerted refusal in the course of their employment to transport or otherwise handle or work on any goods, articles, materials or commodities, or to perform services for the Company, an object thereof being, to force or require the Company to recognize or bargain with the Respondent as the representative of employees of the Company in the unit found above to be appropriate, notwithstanding the fact that the Retail Clerks were certified by the Board as the representative of said employees pursuant to. the provisions of Section 9 of the Act, in that the Respondent did: (a) Sanction, authorize, and support a continuation of the strike called on or about August 2, 1948, at the New York and Brooklyn stores of the Company in furtherance of said object; (b) Order, direct, and instruct its members to engage in concerted activities in its behalf, in furtherance of said object ; (c) Distribute handbills to employees of the Company urging rand encourag- ing them concertedly to request the Company to negotiate with the Respondent as a representative of the employees in the aforesaid appropriate unit, in further- ance of said object ; (d) Picket the premises of the Company urging and encouraging said em- ployees concertedly to refuse to perform services for the Company, in furtherance of said object; and (e) Visit the homes of and cause to be transmitted letters, circulars , and ap- plications for membership to, employees of the Company, urging, inducing, or encouraging said employees to join the strike in furtherance of said object. IV. THE ' EFFECTS OF THE UNF'AIR'LABOR' PRACTICES -UPON,COMMERCE . The activities of the Respondent, set forth in Section III, above, occurring in connection with, the operations of the Company described in Section I, above, Matter of Rite-Form Corset Company, Inc. and United Steel Workers of America, C. I. 0., 75 N. L. R. B. 174. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (b) (4) (C) of the Act, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the above findings of fact and upon the entire record in the case the under- signed makes the following: CONCLUSIONS OF LAW 1. Oppenheim Collins & Co., Inc., a Delaware corporation, is engaged in com- merce within the meaning of Section 2 (6) and (7) of the Act. 2. Department Store Employees Union, Local 1250, Independent (formerly known as Department Store Employees Union, Local 1250, C. I. 0.), and also Retail Clerks International Association, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. At all times material herein, the following employees of the Company at its New York and Brooklyn stores have constituted and now constitute an ap- propriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All sales employees including part-time employees who work every day or a portion of the day; all employees in the Bureau of Adjustments and Will Call Department, Mail Order Department, General Accounting Department, Auditing Department, Accounts Payable Department, Accounts Receivable Department, Credit Office, Cashiers Department, Buyers', Clericals, Stock Help (Delivery, Receiving and Packing Department employees in the Brook- lyn store only), Matrons, Alteration Department, Display Department Trim- mers, Addressograph and Advertising Employees in the New York store only, but excluding shoe clerks in the Women's Shoe Department in the New York store, the secretary to the Advertising Manager, the Copy Writer, Lay- out Man, Artists, Production Manager and Manager of the Advertising Department, executives, all those employed in a confidential capacity and their secretaries, all pay office employees, all Delivery, Receiving and Pack- ing Department employees in the New York store only, all store detectives and other protective employees, all maintenance employees, porters, elevator operators, electricians, carpenters, and painters, all switchboard employees, all buyers and assistant buyers, all section managers, those heads of stock who spend a major portion of their time in performing supervisory duties, all display department employees except trimmers, stylists, tube room super- visor, personnel department employees, employees of all departments oper- ated by independent contractors or under a lease, and all extras, contingent and seasonal employees, also guards, watchmen, professional employees and supervisors. 4. On and since September 1, 1948, Retail Clerks International Association, AFL, has been certified by the Board as the exclusive bargaining representative of the employees in the aforesaid appropriate unit in accordance with the pro- visions of Section 9 of the Act. 5. From September 1, 1948,' until September 14, 1948, the Respondent engaged in unfair labor practices within the meaning of Section 8 (b) (4)' ('C)- of the Act, by engaging in a strike and inducing and encouraging the employees of the DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250 365 Company to engage in a strike and a concerted refusal in the course of their employment to transport or otherwise handle work on goods, articles, materials, commodities, and to perform services for the Company, an object thereof being, to force or require the Company to recognize or bargain with Respondent as the representative of the employees of the Company in the appropriate unit above described, notwithstanding the fact that Retail Clerks International Association, AFL, had been certified by the Board as the exclusive representative of said employees under the provisions of Section 9 of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that Department Store Employees Union, Local 1250, Independent (formerly known as Department Store Employees Union, Local 1250, C. I. 0.), its officers and agents, shall : 1. Cease and desist, during the operative and effective period of a certain certification of employee-representatives issued by the National Labor Relations Board on September 1, 1948, in Case No. 2-RC-562, from engaging in a strike and from inducing and encouraging the employees of Oppenheim Collins & Co., Inc., to engage in a strike or a concerted refusal in the course of their employment to transport or otherwise handle or work on any goods, articles, materials or com- modities, or to perform services for Oppenheim Collins & Co., Inc., where an object of such strike, acts or conduct is to force or require Oppenheim Collins & Co., Inc., to recognize or bargain with Respondent as the representative of employees of Oppenheim Collins & Co., Inc., in the collective bargaining unit of employees covered by the aforesaid certification of employee-representatives. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Post in a conspicuous place at its business office in New York City, where notices or communications to members are customarily posted a copy of the notice attached hereto as "Appendix A." Copies of the notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the representatives of the Respondent, be posted and maintained for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that the posted notice shall not be altered, defaced, or covered by any other material; (b) Mail to the Regional Director of the Second Region, signed copies of the notice attached hereto as "Appendix A" for posting, the Company willing, on the bulletin boards of the Oppenheim Collins & Co., Inc., in its stores in Brooklyn and New York City, where notices to employees are customarily posted, where such notice shall be posted and maintained for a period of sixty (60) consecutive days thereafter. Copies of the notice, to be furnished by the Regional Director of the Second Region, shall after being signed by Respondent's representatives, be forth- with returned to the Regional Director for the said posting ; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is further recommended that, unless the Respondent shall, within ten (10) days from the receipt of this Intermediate Report, notify the Regional Director for'the-SLcorid'Region in'writing'that it will comply, with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Im- mediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if- mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclu- sions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 7th day of January 1949. WILLIAM F. SCHARNIKOW, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members and employees of Oppen- heim Collins & Co., Inc., that : During the operative and effective period of a certain certification of employee-representatives issued by the National Labor Relations Board on September 1, 1948, in Case No. 2-RC-562 we will not engage in a strike nor induce nor encourage the employees of Oppenheim Collins & Co., Inc., to engage in a strike or a concerted refusal in the course of their employ- ment to transport or otherwise handle or work on any goods, articles, materials or commodities, or to perform services for Oppenheim Collins & Co., Inc., for the purpose of forcing or requiring Oppenheim Collins & Co., Inc., to recognize or bargain with us as the representative of employees of Oppenheim Collins & Co., Inc., in the collective bargaining unit of employees covered by the aforesaid certification of employee-representatives. DEPARTMENT STORE EMPLOYEES UNION, LOCAL 1250, INDEPENDENT (FORMERLY KNOWN'A8 DEPARTMENT STORE EMPLOYEES UNION, LocAL 1250, C. I. 0.) By •------------------------------------- (Representative ) (Title) Dated: ------------------