National Shirt Shops of Florida, Inc.

1 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as wages from the date of the discrimination to the offer of reinstatement , less his net earnings during said period . 7 Back pay due shall be computed in accordance with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. It has also been found that the Respondent, from September 19, 1952, has unlawfully re- fused to bargain with the Union as the exclusive representative of employees in an appropri- ate unit. The Trial Examiner will therefore recommend that the Respondent , upon request, bargain collectively with the Union as such representative and, in the event that an under- standing is reached, embody such understanding in a signed agreement In view of the nature of the unfair labor practices committed , the commission by the Re- spondent of similar and other unfair labor practices may reasonably be anticipated. The remedy should be coextensive with the threat. It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Steel Workers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2 All production and maintenance employees at the Respondent's Charlotte, Norih Carolina, plant, excluding office clerical employees, guards, professional employees, and supervisors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3 United Steel Workers of America, CIO, was on August 14, 1952, and at all times since then has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on September 19, 1952, and at all times thereafter to bargain collectively with the aforesaid Union as the exclusive bargaining representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Paul E. McNatt and Dominick Cordaro, and thereby discouraging membership in the above-named labor organi- zation, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practiees affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8: The Respondent has engaged in no unfair labor practices within the meanfiig of the Act as to Elbert L. Eagle, Jr., Walter G. Cooper, and Brady E. Johnson. [Recommendations omitted from publication.] 7Crossett Lumber Company, 8 NLRB 440. NATIONAL SHIRT SHOPS OF FLORIDA, INC. AND NATIONAL SHIRT SHOPS OF MIAMI, INC. and DEPARTMENT AND SPECIALTY STORE EMPLOYEES UNION, LOCAL NO. 1666, RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. of L. Case No. 10-CA- 1387 . May 29, 1953 DECISION AND ORDER On March 25, 1953, the Board issued its Proposed Findings of Fact , Proposed Conclusions of Law, and Proposed Order in the above -entitled proceeding , a copy of which is attached 105 NLRB No. 24. NATIONAL SHIRT SHOPS OF FLORIDA, INC. 117 hereto . ' Thereafter , the Respondents filed exceptions thereto and a supporting brief . 2 In addition , the Respondents requested oral argument . However , because the record and the Respond- ents' exceptions and brief , in our opinion , adequately present the issues and positions of the parties, the Respondents' re- quest for oral argument is hereby denied. The Board has considered the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, the exceptions and brief filed by the Respondents, and the entire record in the case, and hereby adopts as its final Decision and Order herein the said Proposed Findings of Fact,3 Proposed Conclusions of Law, and Proposed Order. ORDER U on the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the i As the Trial Examiner who heard the testimony in this case was not available to prepare an Intermediate Report herein, we find no merit in the Respondents' exception to the Board's issuance of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. See Administrative Procedure Act, Section 5 (c), 5 U.S.C. Sec. 1004 (c); Section 102.36 of National Labor Relations Board Rules and Regulations, Series 6, as amended; N L. R. B v. Stocker Manufacturing Company, 185 F 2d 451 (C. A. 3); National Electric Products Corporation. 80 NLRB 995. 2 The contention by the Respondents in their exceptions and brief that they were denied due process in this case is plainly without merit, even if, as alleged in this connection, the Respondents were precluded from presenting evidence both at and after the hearing in support of their contention that the Union had not complied with the filing requirements of he Act. For the Board has uniformly held that the fact of compliance by a labor organization which is required to comply with the filing requirements of the Act is a matter for adminis- trative determination and is not litigable by the parties. W. L. Hoge & Co , Incorporated, 103 NLRB 20; Poultry Enterprises, Inc., 102 NLRB 211. Moreover, even considering the contents of the proposed exhibit alluded to in footnote 4 of the Proposed Findings of Fact, the Board is administratively satisfied that at all pertinent times herein, as well as in the representation proceeding referred to hereinafter, the Union was, and now is, in full com- pliance with Section 9 (f), (g), and (h) of the Act 3The record shows that Peter L. Hall was trustee and receiver of the Union after April 10, 1952, rather than its trustee and business agent, as stated in the Proposed Findings of Fact This correction does not affect any of our ultimate conclusions in this case. In their exceptions, the Respondents argue in effect that the Board should not adopt certain of the proposed findings of fact relating to their business operations for the reason that there is no substantial evidence to support those findings. We find no merit in the Respondents' position. Thus, with respect to the finding that the Respondent Florida owns and operates eight retail stores in the State of Florida, it is noted that an allegation in the complaint to the same effect was admitted by the Respondents in their answer. Moreover, even were we to assume arguendo that the Respondent Florida "operates but one ... retail store and owns the capital stock of seven ... other corporations each of which operates a retail store in the State of Florida," as alleged in the exceptions, we would still conclude that the Respondent Florida is engaged in commerce within the meaning of the Act As for the other findings involved in the instant connection, namely, that NationalShirt Shops of Delaware, Inc , controls the operations of the Respondents through National Shirt Shops, Inc., a subsidiary, and that the latter corporation acts generally as the servicing agent for the Respondents, we note that identical findings, of which official notice was taken in the Proposed Findings of Fact, were made in National Shirt Shops of Florida, Inc. and National Shirt Shops of Miami, Inc., 97 NLRB 924, a representation proceeding pertaining to the Respondents' operations involved in this case Although our reliance upon those findings in the Proposed Findings of Fact was made evident to the Respondents, nothing to show the contrary thereof has been offered by the Respondents. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board hereby orders that Respond- ents, National Shirt Shops of Florida, Inc . and National Shirt Shops of Miami , Inc., their officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks International Association , A. F. of L., as the exclusive repre- sentative of their employees in the following appropriate unit: All salespersons , tailors, porters , stockmen, and cashiers at the Miami , Florida, stores of Respondents , excluding managers, assistant managers, professional employees , watchmen, guards, and supervisors. (b) Discouraging membership in Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks Inter- national Association , A. F. of L ., or in any labor organization of their employees , by refusing to reinstate any of their em- ployees because of their union membership or activity, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self- organization, to form, join , or assist any labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively with Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks International Association , A. F. of L., as the exclusive rep- resentative of the employees in the above -described unit, with respect to rates of pay , hours of employment , and other conditions of employment , and if an understanding is reached, embody such understanding in a signed agreement. (b) Make whole the complainants listed in ' Appendix A for any loss of pay they may have suffered by reason of Respond- ents' discrimination against them, in the manner set forth in the section of the Proposed Findings of Fact , Proposed Con- clusions of Law, and Proposed Order entitled " The Remedy." (c) Upon request make available to the National Labor Relations Board or its agents , for examination and copying, all payroll records, social-security payment records, time- cards, personnel records and reports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Order. NATIONAL SHIRT SHOPS OF FLORIDA, INC. 119 (d) Post at their stores in Miami , Florida , copies of the notice attached hereto, marked "Appendix B."` Copies of such notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondents' rep- resentative, be posted for sixty (60) consecutive days there- after in conspicuous places , including all places where notices to employees customarily are posted . Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that Respondents have violated Section 8 (a) (1) of the Act by conduct other than that found to be violative herein, be, and it hereby is, dismissed. Chairman Herzog and Member Murdock took no part in the consideration of the above Decison and Order. 4In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX A Ambal Artiga Louis Castro Louis Cohen Thomas Duncan John Freedman Greenville A. Gibbs Bob Lynn John A. Mann Peter Pages, Jr. Mango Reaves Andy Roth Willard Seymore Sam Stone APPENDIX B NOTICE TO ALL EMPLOYEES 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, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with Depart- ment and Specialty Store Employees Union, Local No. 1666, Retail Clerks International Association, A. F. of L., as the exclusive representative of all employees in the bargain- ing unit described herein, with respect to rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All salespersons, tailors, porters, stockmen, and cashiers at our Miami, Florida, stores, excluding managers, as- 291555 0 - 54 - 9 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistant managers , professional employees , watchmen, guards, and supervisors. WE WILL NOT discourage membership in Department and Specialty Store Employees Union, Local No. 1666, Re- tail Clerks International Association, A. F. of L., or in any labor organization of our employees , by refusing to reinstate any of our employees because of their union membership or activity, or in any other manner dis- criminating in regard to their hire or tenure of employ- ment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their right to self- organization , to form, join, or assist any labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL make whole the following employees for any loss of pay suffered because of the discrimination against them: Ambal Artiga Louis Castro Louis Cohen Thomas Duncan John Freedman Greenville A. Gibbs Bob Lynn John A. Mann Peter Pages, Jr. Mango Reaves Andy Roth Willard Seymore Sam Stone All our employees are free to become or remain, or re- frain from becoming or remaining, members of the above- named union , or any other labor organization , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. We will not discriminate inregardtohtieortenure of employment, or any term or condition of employment , against any employee because of membership in or activity on behalf of any labor organization. NATIONAL SHIRT SHOPS OF FLORIDA, INC. and NATIONAL SHIRT SHOPS OF MIAMI, INC., Employer. Dated ................. By .................................................. (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced , or covered by any other material. NATIONAL SHIRT SHOPS OF FLORIDA, INC. 121 PROPOSED FINDINGS OF FACT, PROPOSED CONCLUSIONS OF LAW, AND PROPOSED ORDER STATEMENT OF THE CASE Upon charges filed by Department and Specialty Store Em- ployees Union, Local No. 1666, Retail Clerks International Association, A. F. of L., herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel' and the Board; respectively, through the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated November 26, 1952,E against National Shirt Shops of Florida, Inc:, herein called Respondent Florida, and National Shirt Shops of Miami, Inc., herein called Respondent Miami, and collectively herein called Respondents, alleging that Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as arnended(61 Stat. 136), herein called the Act. Copies of the charges and complaint, together with the notice of hearing, were duly served upon the parties. With respect to the unfair labor practices, the complaint alleged in substance that: (1) Since on or about February 1; 1952, Respondents have refused to bar ain with the Union in violation of Section 8 (a) (5) of the Act; (2) on or about March 20, 1952, and at all times thereafter until April 15, 1952, Respondents failed and refused to reinstate 13 named employees because of their membership in and activities on behalf of the Union, in violation of Section 8 (a) (3) of the Act; and (3) by the fore- going , and by various other actions specified in the complaint, Respondents , from August 4, 1951, have interfered with, re- strained , and coerced employees , in violation of Section 8 (a) (1) of the Act. Respondents duly filed their answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice,, a hearing was held in Miami, Florida, on December 10 , 1952, before James J: Fitzpatrick, a Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondents were represented by counsel and the Union by two representatives. All parties were offered full opportunity to be heard, to examine and cross-examine witnesses , to introduce relevant evidence, to argue orally, and to file briefs: A brief has been received from Respondents. At the hearing, counsel for Respondents moved for a dis- missal of the complaint on the ground that the Union was not in compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act when it filed the charges in this case. Said motion was denied without prejudice to its renewal. During the course of the hearing, the Trial Examiner made rulings i This term specifically includes the counsel for the General Counsel appearing at the hearing. 2 An earlier complaint, dated August 29, 1952, was withdrawn by the Regional Director on November 25, 1952. 1 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on objections to the admission of evidence and on other motions, including the granting of Respondents ' motion at the conclusion of the General Counsel ' s case to dismiss , for want of proof, the "independent " violations of Section 8 (a) (1) alleged in the complaint. On January 22, 1953, Trial Examiner Fitzpatrick died. Thereafter, on January 30, the Board , acting pursuant to Sec- tion 102 . 36 of National Labor Relations Board Rules and Regulations , Series 6, as amended , issued an order that the case be transferred and continued before the Board ; that no Trial Examiner ' s Intermediate Report be issued in the case; and that Proposed Findings of Fact , Proposed Conclusions of Law, and a Proposed Order be issued . Pursuant to said Rules and Regulations , any party may, within 20 days from the date of these Proposed Findings of Fact , Proposed Conclusions of Law, and Proposed Order , file exceptions , with a supporting brief, thereto . Should any party desire to argue orally before the Board , request therefor must be made in writing to the Board simultaneously with the statement of any exceptions filed. The Boards has reviewed the rulings of the Trial Examiner made during the course of the hearing and finds that no pre- judicial error was committed . The rulings are hereby af- firmed .* At the conclusion of the hearing, counsel for Re- spondents renewed his motion to dismiss the complaint in its entirety . The Trial Examiner reserved ruling on this motion. In view of the findings and conclusions herein , this motion is hereby denied. Upon the entire record in the case , the Board makes the following: 3Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Houston, Styles, and Peterson]. 4 In their brief filed herein, Respondents contend , as they did at the hearing, that the complaint issued in this case on November 26, 1952 , should be dismissed for reasons relating to the Union 's compliance status at the time the charges herein were filed. This contention is without merit . The Act only requires compliance with its filing provisions at the time of the issuance of a complaint . See N. L. R. B. v Dant R. Russell , Ltd., 73 S. Ct. 375 As we are administratively advised that the Union was in full compliance with Section 9 (f), (g), and (h) on November 26, 1952, the issuance of the complaint on that date was proper, whatever the Union's compliance status when it filed any of the charges . Under the circum- stances, we find immaterial the exhibit referred to by Respondents in their brief "for the purpose of calling to the Board 's attention the fact that there was some question as to whether or not the Union was in compliance with all of the requirements of Section 9 (f), (g), and (h) of the Act at the time the charges were filed against Respondents ." In view thereof, we find no occasion to consider the exhibits attached to the General Counsel's motion filed on January 12, 1953, in the aforementioned connection. Nor do we find merit in Respondents' further contention that the complaint should be dismissed on the ground that no proof of compliance with Section 9 (f), (g), and (h) of the Act was adduced in the record by the General Counsel. The Act does not, as a condition to the exercise of its jurisdiction , require pleading and proof by the Board that the union has complied with the filing requirements of the Act. N. L. R. B. v Greensboro Coca-Cola Co., 180 F . 2d 840 (C. A. 4); N. L R. B v Red Rock Co., 187 F 2d 76 (C. A 5). NATIONAL SHIRT SHOPS OF FLORIDA, INC FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS 123 Respondent Florida Shirts is a Florida corporation engaged in the sale of shirts in the State of Florida . It owns and op- erates 8 retail stores within the State, including a store located in Miami, Florida . During 1950, which period is repre- sentative of all times material herein, Respondent Florida purchased outside the State merchandise valued in excess of $227,000 . Respondent Florida is a wholly owned subsidiary of National Shirt Shops of Delaware , Inc., aDelaware corpora- tion whose principal offices are located in New York City, which owns allthe stock of 103 subsidiary corporations through- out the country, each of which operates retail shirt stores. Respondent Miami owns and operates a retail shirt store located in Miami , Florida . During 1951 , which period is representative of all times material herein, Respondent Miami purchased outside the State of Florida merchandise valued in excess of $ 116,000 . Respondent Miami is a wholly owned subsidiary of Respondent Florida. Respondents and National Shirt Shops of Delaware , Inc., the parent corporation , have common officers . The parent organi- zation controls the operations of Respondents through still another subsidiary , National Shirt Shops, Inc ., hereinafter referred to as National Shirt Shops, which shares its offices in New York City and which acts generally as purchasing and servicing agent for all its other subsidiaries , supervising their operations through area district managers. Changes in wages and other conditions of employment are subject to ap- proval of the district managers and the president of the parent corporation . The Miami , Florida, operations of Respondents, which are the only stores involved in this proceeding , are as- signed to the same district manager . Any profits resulting from the operations of those stores are ultimately received by the parent corporation. The findings herein are based on the allegations of the complaint, Respondents ' answer, and the findings in National Shirt Shops of Florida , Inc. and National Shirt Shops of Miami, Inc., 97 NLRB 924, hereinafter called the representation case. In the latter case, the Board concluded that Respondents con- stitute a single employer within the meaning of the Act and that they are integral parts of a multistate enterprise and hence engaged in commerce within the meaning of the Act. On the basis of all the facts recited above , we reach the same con- clusions here. II. THE LABOR ORGANIZATION INVOLVED Respondents deny that the Union is a labor organization within the meaning of the Act. For the reasons set forth here- inafter, this contention is found to be untenable, and it is hereby 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks International Association, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES 5 A. The refusal to bargain collectively 1. The appropriate unit On December 29, 1951 , the Board handed down its Decision and Direction of Election in the representation case , finding to be an appropriate unit for purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act all sales- persons , tailors , •porters , stockmen , and cashiers at Re- spondents ' Miami , Florida , operations , excluding managers, assistant managers , professional employees , watchmen, guards , and supervisors . Respondents have offeredno evidence to controvert this unit finding. Accordingly, on the basis of our previous decision in the representation case, we find , as alleged in the complaint , that the above -described unit is appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. The Union' s representative status Pursuant to the Decision and Direction of Election issued by the Board in the representation case , an election was held on January 17, 1952, among the employees in the appropriate unit . The employees voting in said election designated the Union as their bargaining agent. Thereafter, on January 25, 1952, the Regional Director for the Tenth Region, on behalf of the Board , duly issued the Board's certification of representa- tives, certifying that the Union, pursuant to Section 9 (a) of the Act, was the exclusive representative for the appropriate unit. Respondents argue in effectthatthe certification issued to the Union on January 25 was invalid, and therefore cannot be relied upon to establish the Union' s representative status, because of the Union' s noncompliance with the filing requirements of the Act during the representation proceeding . This contention is without merit . During the hearing in the representation matter, Respondents moved for dismissal of the petition on grounds relating to the Union' s compliance status. This motion was denied by the Board in the Decision and Direction of Election referred to above , for the Board was administratively satisfied 5The testimony at the hearing bearing on the unfair labor practice allegations of the complaint was virtually undisputed. 6Of the 18 votes cast in the election , 14 were for, and 1 against, the Union, and 1 was challenged. NATIONAL SHIRT SHOPS OF FLORIDA, INC. 125 that the Union was in compliance. We are administratively satisfied also that , during the pendency of the representation proceeding following the issuance of the aforementioned deci- sion , the Union was at all times in compliance with Section 9 (f), (g), and (h). From all the foregoing , it is clear, and we find, that the Union's certification is not vulnerable on the ground here alleged by Respondents. Respondents nevertheless contend that, in any event, at no time after April 10, 1952, was the Union entitled to the benefits of the certification, because (a) the Union has not functioned as a labor organization within the meaning of the Act since April 10, and (b) for reasons not attributable to them, the Union has not represented a majority of the employees in the certified unit since April 10.' In the latter connection , Respondents rely mainly on N. L. R. B. v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6). For the reasons appearing below, we find Respond- ents' position here also to be without merit. On April 10, following several unsuccessful attempts by him to gain recognition of the Union by Respondents, Moe Levine was dismissed as business agent of the Union for reasons un- related to the issues in this case . Levine testified that shortly after his dismissal , and because of it, all the employees in the certified unit, who were members of the Union, sent letters to the Union' s parent organization , herein called the Inter- national , announcing their resignation from the Union.8' At about the same time , the members of the Union who were not in Respondents ' employ stopped paying their union dues. Since April 10, the Union has continued to function mainly through Peter L. Hall, a regional organizer for the Inter- national , who became its trustee and business agent after Levine' s ouster,o and William M. Kemp, southern director for the International . As more fully detailed hereinafter, requests for recognition by Respondents have been made on behalf of the Union by Hall and Kemp," and the amended charges in this case filed on June 2 and August 29, 1952, like the charges filed by Levine before April 10, bear the Union's name . It also appears that the Union was represented at the hearing in this matter held on December 10, 1952, wherein Hall testified that it existed in whole or in part for the purpose of bargaining with Respondents concerning the working conditions of their employees. On the basis of all the foregoing , and the entire record, we are satisfied that the Union now exists , and has existed during 'Neither the existence of the Union as a labor organization nor its majority status among the employees involved herein , during the critical period in this case prior to April 10, is challenged by Respondents. $ The Union currently regards these employees as "honorary members." oAlthough Hall testified with some uncertainty as to the date on which he became trustee and business agent of the Union, the record as a whole indicates that he assumed these responsibilities upon Levine's removal as business agent. toSignificantly, on none of these occasions was the Union' s existence as a labor organi- zation questioned by Respondents ; in fact, it appears that Respondents regarded the Union as capable of representing their employees. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all times material herein , for the purpose of admitting em- ployees to membership and of dealing with Respondents on matters relating to wages and other working conditions. Con- trary to Respondents , therefore , we find that the Union now is, and, during the whole of the critical period in this case, has been, a labor organization within the meaning of the Act." As for the effect of the alleged loss of the Union's majority on the Union ' s representative status, the Board has con- sistently held, with the approval of the great weight of court decisions , that, in the absence of special circumstances, a certification of representatives must be honored for a reason- able period , usually at least a year following the certification, despite some evidence of repudiation of the Union or loss of majority.12 The alleged repudiation of the Union in this case, even assuming it was in no way due to unfair labor practices on the part of Respondents , does not constitute such "special circumstances " within the certification year as to impair the Union's representative status." Accordingly , we find that on January 25, 1952, and at all times thereafter , the Union was, and now is, the exclusive bargaining representative of the employees in the afore- mentioned appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 3. The refusal to bargain As already noted, the Union was certified on January 25, 1952. On February 1, its representative , Levine, addressed the fol- lowing letter to the New York City office of National Shirt Shops: As exclusive representative of all of your employees in such units as was reflected by the decision handed down by the National Labor Relations Board, Case No. 10-RC- 1595, on January 25, 1952, we are hereby advising you that this organization stands ready to meet with you through your representative duly authorized to act to negotiate a contract with you with respect to rates of pay, wages, hours of employees , and other conditions of employees with regard to employment of such unit. Time being of the essence , we respectfully request that you meet with us at the Offices of our Attorney . . . in Miami, Florida, to facilitate such negotiations; and in order to culminate the negotiations within a reasonable time, we request that such meeting be held at no later date than five days from the receipt of this letter." ti See the Mountain Copper Company, Ltd., 96 NLRB 1018; White Sewing Machine Cor- poration, 89 NLRB 1284 . Fostoria , Ohio, Works of the National Carbide Division , 89 NLRB 460. 12See Mid-Continent Petroleum Corporation , 99 NLRB 247, and the cases cited therein islbid. 14A copy of this letter was sent to each of the Respondents. NATIONAL SHIRT SHOPS OF FLORIDA, INC. 127 About a week after this letter was written, no reply thereto having been received, Levine contacted National Shirt Shops by telephone and was told by Harry Sneider, its general counsel and vice president, that the Union's bargaining request was being taken up with counsel and that he "would eventually hear from them." By letter dated February 12, Sneider re- jected the bargaining request in the following language: We have your registered letter of February 1st, the contents of which have been carefully noted. At the present time the matter of the validity of the certification of your Union is being studied by our counsel and we cannot take any action at this time with respect to your demand for an appointment. This communication was received by the Union on about February 15, 2 days after Respondents' employees went out on strike, as appears hereinafter. During the latter part of February, Levine again telephoned Sneider, this time requesting that he "sit down and negotiate contracts." Sneider's reply was that he "would not do anything until the strike was settled, and it was being taken up through the proper channels." On several occasions thereafter, while still business agent of the Union, Levine made further requests of Sneider to "sit down to talk contract," but on each occasion Sneider's reply was to the same effect, namely, that the matter was being taken up "legally" and that if the Union was "right" he would enter into contract negotiations.lt On April 10, as appears above, Levine was dismissed as business agent of the Union. On that same day, Kemp called the offices of National Shirt Shops and asked to speak to Sneider. Sneider was then out of town and Kemp's call was re- ferred to a Mr. Marks.16 After identifying himself, Kemp thereupon requested a bargaining conference. He was asked "about Levine." When Kemp replied that Levine was no longer connected with the Union, Marks said, "That is fine. That is the best thing that could ever have happened for you, and for the people down there . . . . You call Mr. Marchant . . . . and give him your name and tell him that you have talked to me and I have referred you to him, and he will make the recom- mendation." Thereafter, on about April 17, Kemp and Hall called on Marchant. When the union representatives asked Marchant to negotiate a contract, Marchant expressed doubt as to the Union's majority status;l but promised to contact Sneider and attempt 15 Also to the same effect was the reply of Jeptha P. Marchant, Miami counsel for Respond- ents, when, during a chance street meeting with Levine during the latter part of February or early in March, he was asked to bargain with the Union 16Referring to Marks, counsel for Respondents stated at the hearing: "... I believe he is the Chairman of the Board of Directors, or the President of the respondents, but I am not sure. I do know that he is a person in authority." 17AIthough Hall testified that he did not remember any reference to the Union's majority status at this meeting, Marchant's testimony in this connection, which we have credited, was in substance corroborated by Hall 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to arrange for an early meeting between the Union' s repre- sentatives and officials of Respondents . On about April 28, Hall inquired of Marchant as to when the aforementioned meeting was to take place; he was told that either Sneider or Marks would get in touch with Kemp. Sneider telephoned Kemp on May 2. During this conver- sation, Kemp asked for a bargaining conference . Sneider's response was that " The people don't belong to the Union in Miami. They all resigned , or they are all going to resign." Early in May, Hall again communicated with Marchant. Upon asking whether there were any further developments regarding the promised meeting with Sneider or Marks, he was told, "No new developments." There is no evidence of any further communications between the parties. Contentions ; Conclusions It is apparent from all the foregoing that Respondents have refused to bargain with the Union since about February 1, 1952. Respondents contend , however, that they did not violate Section 8 (a) (5) of the Act at any time during the period covered by the complaint because (a) they were not required to honor the Union' s certification for reasons relating to the Union's com- pliance status; (b) they were not obliged to bargain with the Union after April 10 because of the Union ' s alleged defunctness and loss of majority after that date ; and (c ) they were "pre- cluded" from bargaining with the Union lefore April 1Q while Levine was its business agent, because Levine insisted, as a condition precedent to the holding of any bargaining conferences, that Respondents reinstate one Elmo Vilardebo , who had been discharged by them in the fall of 1951 .11 The first two grounds relied upon by Respondents have already been considered in effect and decided adversely to Respondents. The third ground urged -as a defense by Respondents is also without merit. It appears from the record that both prior to and after the representation election held on January 17, Levine made several requests for Vilardebo ' s reinstatement , all of which were re- jected . Although the record shows that , in conversations on this subject held with representatives of Respondents just after Vilardebo ' s discharge , Levine stated that "we could do nothing until Elmo was put back to work " and that he "would sit down with them if they put Elmo to work, "i• it does not establish that Levine, when asking for Vilardebo ' s reinstatement after the Union' s certification, advised Respondents that Vilardebo's reinstatement was a condition precedent to bargaining negotia- 18 Although the original charge , as well as the first and second amended charges , alleges that VAardebo 's discharge was unlawful, a similar allegation is not contained in the complaint, and the validity of Vilardebo 's discharge was not raised as an issue or litigated at the hearing. For purpose$ of this case, therefore, we must assume that Vilardebo was lawfully discharged. to Prior thereto, Levine had advised Respondents that the Union represented a majority of their employees and was promised a "look into the matter." NATIONAL SHIRT SHOPS OF FLORIDA, INC. 129 tions . tQ Moreover , as the facts recited above indicate , none of the bargaining conferences requested by Levine during the period covered by the 8 ( a) (5) allegations of the complaint was in any way conditioned upon Vilardebo ' s reinstatement . In fact, a finding is warranted that Vilardebo ' s name was not even mentioned by Levine at any time when he requested bargaining during this period , except on the occasion of his street meeting with Marchant. We deem significant in the instant connection the fact that the reason which Respondents now claim "precluded" bargaining with the Union was at no time mentioned by Respondents in their rejection of the bargaining requests upon which the com- plaint is founded . Indeed, Levine's alleged insistence upon Vilardebo ' s reinstatement as a condition precedent tobargain- ing is not even asserted as a defense in Respondents ' answer filed herein . In our opinion , this position now taken by Respond- ents is a mere afterthought designed to bolster their case. On the basis of all the foregoing , and the -record as a whole, we find that the bargaining conferences requested by Levine during the critical period in this case were neither conditioned upon Vilardebo ' s reinstatement nor rejected by Respondents because of any bona fide belief that such was the case. We find that Respondents , since about February 1, 1952, have refused to bargain with the Union as the exclusive bar- gaining representative of employees of Respondents in an appropriate unit, in violation of Section 8 (a) (5) of the Act, and have thereby interfered with, restrained , and coerced em- ployees in the exercise of their statutory rights in violation of Section 8 (a) (1). B. The refusal to reinstate On February 11, 1952, at a meeting called for the purpose, Levine advised Respondents ' employees of the Union ' s February 1 request for bargaining and of the fact that no "definite" answer had been received thereto, and suggested that "we ought to stop fooling around with them and put a picket line and perhaps we will get action that way." The employees thereupon voted to strike Respondents. The strike was called on February 13, and all the employees of Respondents immedi- ately responded and began picketing the stores involved in this proceeding. During the latter part of February, or early in March, on the occasion of their street meeting already referred to, Levine made the following suggestion to Marchant : " Put Elmo [Vilardebo] back to work and we will call the pickets back to 20 The only such request testified about in any detail at the hearing was made during Levine's chance meeting with Marchant while the strike was current. Although, as indicated in footnote 15, Levine also requested bargaining during this meeting, the satisfaction of his request for Vilardebo's reinstatement was not made a prerequisite to the commencement of bargaining negotiations 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work and we will set a date for negotiations ." Although Levine's testimony as to precisely what he said on the occasion in question is not altogether clear, it would appear that Levine also advised Marchant that he, Levine , would not "do anything until . . . [Respondent] put . . . Vilardebo back to work." 21 On March 20 , the 13 complainants whose names are listed in Appendix A hereto sent the following letter to W. E. Chesson, manager of Respondents ' Miami stores: We, the undersigned employees of National Shirt Shop of Florida, Inc . at 156 East Flagler Street , and National Shirt Shops of Miami, Inc., 33 East Flagler Street, Miami, Florida, who are presently on strike against the company's unfair labor practice in refusal to bargain with Depart- ment of Specialty Store Employees Union, Local 1666, af- filiate of Retail Clerks International Association , A.F.L., now, as of March 21, 1952 , unconditionally offer to return to work, and to our jobs , with the companies above re- ferred to. By letter dated March 25, G . W. Friberg , secretary of National Shirt Shops , replied to the foregoing communication as follows: Mr. Chesson has forwarded to us your letter of March 20, 1952, purporting to be an offer signed by various em- ployees offering to return to work. Inasmuch as this letter presents certain legal questions we have submitted same to our counsel for advice and will communicate with you after the matter has been considered by counsel, Levine called Sneider early in April regarding Respondents' reply of March 25. On that occasion Sneider inquired of Levine as to whether there were any conditions attached to the March 20 proposal of the employees to return to work. Although Levine assured him that there were none, no offer to reinstate the employees was forthcoming from Sneider. As previously indicated , on April 10, after Levine's dis- missal as business agent of the Union, Kemp asked Marks to recognize the Union . At that time, Kemp also asked Marks to reinstate the striking employees because it would "create a better atmosphere for bargaining ." He was told by Marks that "the people would be returned to the job when the company was positive that they had renounced the union, and were no longer members of the Union." As appears hereinafter , between April 15 and June 2, all the complainants were either offered or granted reinstatement to their former or substantially equivalent positions. 21 As already indicated, Levine nevertheless made it abundantly plain to Marchant on this occasion that he was ready to bargain with Respondents whenever they were willing to meet with him. NATIONAL SHIRT SHOPS OF FLORIDA, INC. 131 Contentions ; Conclusions On the basis of all the foregoing , and the entire record, we find that the complainants went out on strike on February 13 and thereafter , during all times material to this case, con- tinued on strike because of Respondents ' refusal to bargain with the Union. As we have found that this refusal to bargain was unlawful , it follows that as of March 20, the date upon which they requested unconditional reinstatement , the complainants were unfair labor practice strikers and therefore entitled to reinstatement upon proper application therefor. zz Respondents do not, of course , contend that the application for reinstatement made by the complainants on March 20 itself contained anything that would justify its rejection ; in it, the complainants unconditionally offered to return to work in clear and unequivocal terms . What Respondents do contend , however, is that they were not required to take any action thereon for the reason that it was not a "legal demand, because it was not made in good faith, and was mailed only for the purpose of harassing the respondents ." With this contention we do not agree. Levine ' s testimony , a portion of which Respondents quote in their brief in support of their contention , is to the following effect when considered in its entirety : The request for rein- statement was decided upon because the Union was "short on funds" and "didn't have enough funds to continue picketing"; " the letter requesting reinstatement was sent with " good in- tentions "; and, if, after the letter was sent, the strikers had been offered , or denied , reinstatement, a meeting of the em- ployees would have been held to discuss Respondents' reply. This testimony , we find, in no way impugns the bona fides of the complainants ' written offer to return to work. Under all the circumstances , we conclude that on March 20 the com- plainants made effective application for reinstatement . Because of their membership in the Union, however, and for no other reason, so far as the record shows , they were, on March 25, refused reinstatement. In the light of the foregoing , and the entire record, we find that on March 25, 1952, Respondents discriminated against the complainants listed in Appendix Awithrespectto their hire and tenure of employment, in violation of Section 8 (a) (3), there- 22Even were we to assume , arguendo, as Respondents suggest in their brief, that the strike was an economic one because the "real" reason for it was Respondents ' refusal to reinstate Vilardebo, we would still find that , as of March 20, all the complainants were entitled to reinstatement upon proper application therefor , for it is not contended, and the record does not show, that any complainant was replaced , or his job abolished, by March 20 See Brown and Root, Inc., et al., 99 NLRB 1031. 23Levine's actual testimony was as follows: the letter was sent ... to the company .. because we were short of funds. We didn't have enough money in our local union to take care of our pickets Therefore, I thought the best thing to do was if we could get the men back to work and continue from the legal end of it, then we will continue that way. That was one of the points at that particular time, because we didn't have enough funds to continue picketing. We had seventeen people out on strike at that particular time. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by violating Section 8 (a) (1) of the Act by interfering with, restraining , and coercing their employees in the exercise of rights guaranteed them in Section 7. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of Respondents set forth in section III, above, occurring in connection with the operations of Respondents described in section 1, above, have a close, intimate, and substantial relation to trade, traffic , and com- merce among the several States and tend to lead to labor dis- putes burdening or obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondents have engaged in the unfair labor practices set forth above, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondents have refused to bargain collectively with the Union as the exclusive representative of their employees in an appropriate unit. We shall therefore order that Respondents , upon request , bargain collectively with the Union. It has also been found that on March 25, 1952, Respondents discriminatorily refused reinstatement to the complainants named in Appendix A. The record shows, however, that the following complainants were subsequently reinstated by Re- spondents : Louis Castro and John A. Mann on April 17; Peter Pages , Jr., and Willard Seymore on April 18; Louis Cohen, Thomas Duncan, and Greenville A. Gibbs on April 21; Sam Stone on May 10; Bob Lynn on May 19; and Andy Roth on June 2, 1952 . It also appears that Respondents , offered reinstate- ment to complainants Mango Reaves and John Freedman on April 15 and to complainant Ambal Artiga on April 17, 1952, and that these complainants declined to return to work for Respondents because they had other employment . In these cir- cumstances , we shall not direct the reinstatement of any of the complainants herein . However , we shall order that Respondents make each of the complainants whole for any loss of pay he may have suffered 'by reason of the discrimination against him, by payment of a sum of money equal to the amount he would have earned as wages from the date of such discrimination to the date of Respondents ' offer of reinstatement, less his net earnings during such period. Such loss of pay shall be computed in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. We shall also order Respondents to make available to the Board, upon request, payroll and other records to facilitate the checking of the amounts due as back pay. Because of Respondents' unlawful conduct and its underlying purpose, we are convinced that the unfair labor practices NATIONAL SHIRT SHOPS OF FLORIDA, INC. 133 found are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from Respondents' conduct in the past. The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat . In order , there- fore , to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, we shall order Respondents to cease mad desist from infring- ing in any manner upon the rights guaranteed in Section 7 of the amended Act. On the basis of the above findings of fact and the entire record in the case . we make the following: CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. All salespersons, tailors, porters, stockmen, and cashiers at the Miami, Florida, stores of Respondents, excluding managers, assistant managers, professional employees , watch- men, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. The Union was on January 25, 1952, and at all times since has been the exclusive representative within the mean- ing of Section 9 (a) of the Act of all the employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of the employees named in Appendix A, thereby discouraging membership in a labor organization , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7. By said unfair labor practices Respondents have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed them in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended , the National Labor Relations Board hereby orders that Respondents , National Shirt Shops of Florida, Inc. and National Shirt Shops of Miami, Inc ., their officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks International Association , A. F. of L., as the exclusive repre- sentative of their employees in the following appropriate unit: All salespersons , tailors, porters , stockmen, and cashiers at the Miami, Florida, stores of Respondents , excluding managers, assistant managers, professional employees , watchmen, guards, and supervisors. (b) Discouraging membership in Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks Inter- national Association , A. F. of L., or in any labor organization of their employees, by refusing to reinstate any of their em- ployees because of their union membership or activity, or in any other manner discriminating in regard to their hire or tenure of employment , or any term or condition of employ- ment. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self- organization, to form, join , or assist any labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Department and Specialty Store Employees Union, Local No. 1666, Retail Clerks International Association , A. F. of L., as the exclusive representative of the employees in the above -described unit, with respect to rates of pay, hours of employment , and other conditions of employment and if an understanding is reached, embody such understanding in a signed agreement. (b) Make whole the complainants listed inAppendixAfor any loss of pay they may have suffered by reason of Respondents' discrimination against them, in the manner set forth in the section entitled "The Remedy." (c) Upon request make available to the National Labor Rela- tions Board or its agents, for examination and copying, all payroll records, social - security payment records , timecards, personnel records and reports , and all other records neces- sary for a determination of the amounts of back pay due under the terms of this Order. (d) Post at their stores in Miami, Florida, copies of the notice attached hereto, marked "Appendix B." Copies of such notice, to be furnished by the Regional Director for the Tenth RELIANCE CLAY PRODUCTS COMPANY 135 Region, shall, after being duly signed by Respondents' repre- sentative, be posted for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that Respondents have violated Section 8 (a) (1) of the Act by conduct other than that found to be violative herein be, and it hereby is, dismissed. RELIANCE CLAY PRODUCTS COMPANY and UNITED STONE & ALLIED PRODUCTS WORKERS OF AMERICA, CIO. Case No. 16-CA-442. May 29, 1953 DECISION AND ORDER, On March 11, 1953, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, 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 and a supporting brief.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Peterson]. The Board has reviewed the rulings made by the Trial Ex- aminer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent' s excep- tions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifica- tions.2 I The Employer's request for oral argument is hereby denied, as the record and the Employer's brief adequately present the issues and positions of the parties. 2As the Trial Examiner reported, Foreman Ernest Gilbert questioned employee Veatch about certain union meetings. Because no exceptions were filed to the Trial Examiner's conclusion that Gilbert did not thereby commit an unfair labor practice, we hereby adopt his conclusion. We do not, however, adopt his rationale with respect to this incident. In adopting, in the absence of exceptions, the Trial Examiner's finding that the General Counsel did not prove discriminatory motivation in McClenny's discharge, we are not to be taken as endorsing as relevant his observations that Foreman Clyde Gilbert's remarks to the Sittons were made to persons not employees and not communicated to employees. 105 NLRB No. 26. 291555 0 - 54 -10