Foreman and Clark, Inc.

FOREMAN & CLARK, INC. 333 FOREMAN AND CLARK, INC. and AMALGAMATED CLOTH- ING WORKERS OF AMERICA, C.I.O., LOCAL 297. Case No. 21-CA-1621. June 3, 1953 DECISION AND ORDER Upon a charge filed on February 26, 1953, by Amalgamated Clothing Workers of America, C.I.O., Local 297, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued his complaint on March 23, 1953, against Foreman & Clark, Inc., 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 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Copies of the complaint and charge, accompanied by notices of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that: (1) All employees in the men's and women's alteration departments at the Respondent's Los Angeles, Long Beach, Hollywood, Huntington Park, San Diego, Pomona, Burbank, and San Bernadino, California, retail es- tablishments, including tailors, bushelmen -fitters, finishers, operators, rippers, and pressers, excluding all 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; (2) since on or about January 19, 1953, the Union has been and now is the exclusive bargaining representative of all employees in the above-described ap- propriate unit; (3) from on or about February 25, 1953, to the date of the complaint, the Respondent has refused upon request of the Union to bargain collectively with the Union as the ex- clusive representative of the employees in the aforesaid ap- propriate unit; and (4) by the foregoing conduct, the Respondent has engaged in and is engaging in unfair labor practices violative of Section 8 (a) (1) and (5) of the Act. The Respondent filed its answer , in substance, denying all allegations of unfair labor practices and asserting certain affirmative defenses. Pursuant to notice, a hearing was held at Los Angeles, California, on April 6 and 7, 1953, before William E. Spencer, the Trial Examiner duly designated by the Associate Chief Trial Examiner. The General Counsel, the Respondent, andthe Union were represented by counsel, who participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witne sses , and to introduce evidence bearing upon the issues . The Board' has reviewed 1 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 Murdock, Styles, and Peter- son]. 105 NLRB No. 43. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. On April 7, 1953, the Trial Examiner issued his Intermedi- ate Report, copies of which were duly served upon the parties. Z He found that the Respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint and recommended that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has considered the Intermediate Report, the ex- ceptions and brief, and the entire record in the case. Because of the nature of the Intermediate Report, we make our own findings, conclusions, and order, as follows: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT The Respondent, Foreman & Clark, Inc., a Delaware corpora- tion engaged in the retail sale of men's and women's clothing, hats, shoes and furnishings, accessories and related com- modities, operates 12 retail stores within the State of Califor- nia, 1 in the State of Washington, and 1 in the State of Missouri. The Respondent annually purchases for resale in all its stores commodities valued in excess of $4,000,000, of which com- modities valued in excess of $3,000,000 are purchased for the retail business of the Respondent's stores within the State of California. Approximately 75 percent of the purchases of commodities for resale in California are direct purchases made by the Respondent outside the State of California. The Respondent's annual sales are in excess of $6,000,000, of which approximately 85 percent is made within the State of California. The Respondent admits, and we find, that "the Respondent is and, at all times material herein, has been engaged in com- merce within the meaning of the Act." IL THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, C.I.O., Local 297, is a labor organization within the meaning of the Act. It admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction; the representation proceeding The sole issue in the instant case is whether the Respondent has refused to bargain collectively with the Union and has Y The Trial Examiner read his intermediate Report into the transcript of the hearing, The General Counsel and the Respondent stipulated that "the reading of the report here by the Trial Examiner shall also be deemed to be a service of the report upon the company and all parties ,.. " The Union made no objection to this procedure. FOREMAN & CLARK, INC. 335 thereby violated Section 8 (a) (1) and (5) of the Act. On January 19, 1953, in Foreman and Clark, Inc., Case No. 21 - RC-1836, a prior representation proceeding, the Board, pur- suant to Section 9 (a) of the Act, certified the Union as the exclusive representative of all employees in the unit described in the complaint herein as appropriate, for the purposes of collective bargaining with the Respondent with respect to rates of pay, wages, hours of employment, and other conditions of employment. The Respondent admits in its answer that, on or about February 25, 1953, it refused to bargain collectively with the Union. In substance, the Respondent raises two contentions as a defense to its refusal to bargain: (1) The unit alleged to be appropriate is inappropriate; and (2) the Board's certification was invalid and of no force or effect, and thus the Union was not the duly designated representative of the employees. In support of these contentions, the Respondent relies on grounds previously asserted by it in the representa- tion case and which were rejected by the Board as without merit. In the instant case, the Respondent offered no evidence in defense not introduced in the representation case and raised no contention not previously considered by the Board in that proceeding.' The Board has examined the record in the repre- sentation proceeding, Case No. 21 -RC-1836, and finds no merit in the Respondent ' s defenses to its refusal to bargain. We hereby affirm our rulings, findings, conclusions, determina- tions, orders , and certification made in the representation case, and hold that our "Certification of Representatives" therein was not invalid. B. The refusal to bargain 1. The appropriate unit The complaint alleges, the Board found in Case No. 21 -RC- 1836, and we now find for the reasons indicated in our Supple- mental Decision and Direction of Election in that case,4 that all employees in the men's and women's alteration depart- ments at the Respondent's Los Angeles, Long Beach, Hollywood, Huntington Park, San Diego, Pomona, Burbank, and San Bernardino, California, retail establishments, including tailors, bushelmen-fitters, finishers, operators, rippers, andpressers, excluding all supervisors within the meaning of the Act, con- stitute an appropriate unit for the purposes of collective bargaining within the meaning of the Act. 3In the representation case, referred to above, theBoard set aside an election conducted on April 4, 1952. We hereby affirm this order. As that election was invalid for the reasons set forth in the Board's Supplemental Decision, Order, and Second Direction of Election, 101 NLRB 40, we find no merit in the Respondent's contention that Section 9 (c) (3) precluded the Board from directing, on October 21, 1952, the second election which underlies the certifica- tion in this case. See, for example, NAPA New York Warehouse, Inc., 76 NLRB 840; Central Swallow Coach Lines, Inc., 82 NLRB 487. 4Foreman & Clark, Inc., 97 NLRB 1080. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the representation case, the Board found "thatthe altera- tion employees constitute a basically highly skilled , distinct, and homogeneous departmental group which , in the absence of any past or present representation on a broader basis, con- stitutes a unit appropriate for the purposes of collective bargaining ." Contrary to the Respondent ' s contention , our unit finding in the representation case was not , and is not now, based on extent of employee self-organization . By the words , "in the absence of any past or present representation on a broader basis ," mentioned above, we referred then, as we refer now, to the fact indicated in our decision in the representation case, namely, that the Respondent has never bargained collectively with respect to the alteration employees on a basis broader than the unit found to be appropriate. 2. Representation by the Union of a majority in the appropriate unit The Union won the second election on January 9, 1953. As stated above , the Union was certified by the Board on January 19, 1953, as the exclusive representative of all employees in the above -described appropriate unit for the purposes of collective bargaining . We have, above , rejected the Respondent's defense that the Board ' s certification was void and of no force or effect. Accordingly , we find that , on and after January 19 , 1953, the Union was the duly designated bargaining representative of the employees in the aforesaid appropriate unit and , pursuant to Section 9 (a) of the Act , the Union was on January 19, 1953, and still is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of em- ployment, and other conditions of employment. 3. The refusal to bargain As indicated above, the Respondent admits that, on or about February 25, 1953, it refused the request of the Union to bargain collectively with the Union. We have, above , rejected the Respondent ' s defenses that the Union was never the duly designated collective -bargaining representative of its em- ployees and that the Board ' s certification in the representation proceeding was invalid and of no force or effect. Accordingly , we find that , on February 25, 1953, and at all times thereafter , the Respondent has refused and is refusing to bargain collectively with the Union as the exclusive rep- resentative of its employees in an appropriate unit, in viola- tion of Section 8 (a) (5) of the Act, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , in violation of Section 8 (a) (1) thereof. FOREMAN & CLARK, INC. 337 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, have a close, inti- mate, 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 Having found that the Respondent has engaged in certain unfair labor practices , we shall order that the Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having also found that the Union represented and now represents a majority of the employees in an appropriate unit and that the Respondent has refused to bargain collectively with the Union , we shall order that the Respondent , upon request , bargain collectively with the Union. Upon the foregoing findings of fact and upon the entire record in the case , the Board makes the following: CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America , C.I.O., Local 297, is a labor organization within the meaning of Section 2 ( 5) of the Act. --2. All employees in the men's and women's alteration departments at the Respondent ' s Los Angeles, Long Beach, Hollywood , Huntington Park , San Diego , Pomona, Burbank, and San Bernardino , California , retail establishments , including tailors, bushelmen -fitters, finishers , operators , rippers, and pressers , excluding all 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. Amalgamated Clothing Workers of America, C.I.O., Local 297, was on January 19 , 1953, and all times thereafter has been, and is, 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 February 25, 1953, and at all times there - after, to bargain collectively with Amalgamated Clothing Workers of America, C.I .O., Local 297 , as the exclusive repre- sentative 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 the aforesaid refusal to bargain , the Respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (a) (1) of the Act. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The aforesaid 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 foregoing findings of fact and conclu- sions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Foreman & Clark, Inc., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Cloth- ing Workers of America, C.I.O., Local 297, as the exclusive representative of all employees in the men's and women's alteration departments at the Respondent's Los Angeles, Long Beach, Hollywood, Huntington Park, San Diego, Pomona, Burbank, and San Bernardino, California, retail establish- ments, including tailors, bushelmen-fitters, finishers, oper- ators, rippers, and pressers, excluding all supervisors within the meaning of the Act. (b) In any manner interfering with the efforts of Amal- garnated Clothing Workers of America, C.I.O., Local 297, to bargain collectively with it in behalf of the employees in the aforesaid appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Amalgamated Clothing Workers of America, C.I.O., Local 297, as the ex- clusive representative of all employees in the aforesaid ap- propriate unit with respect to wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at each of its retail establishments in Los Angeles, Long Beach, Hollywood, Huntington Park, San Diego, Pomona, Burbank, and San Bernardino, California, copies of the notice attached hereto and marked "Appendix A."6 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed by the Re- spondent's representative, be posted by the Respondent im- mediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. s In 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 "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS 339 APPENDIX A 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 Amal- gamated Clothing Workers of America ., C.I.O., Local 297, as the exclusive representative of all employees in the bar- gaining unit described below with respect to wages, rates of pay, hours of employment , or other terms or conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All employees in the men's and women's alteration departments at the Respondent ' s Los Angeles, Long Beach, Hollywood , Huntington Park, San Diego, Pomona, Burbank, and San Bernardino , California, retail establishments , including tailors, bushelmen- fitters, finishers , operators , rippers, and pressers, excluding all supervisors within the meaning of the Act. WE WILL NOT in any manner interfere with the efforts of the above -named union to bargain collectively with us, or refuse to bargain with said union as the exclusive repre- sentative of the employees in the bargaining unit set forth above. FOREMAN & CLARK, INC., Employer. Dated .. ............... By................................................... (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date hereof , and must not be altered , defaced, or covered by any other material. LOCAL 13, INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS , IRON SHIP BUILDERS , AND HELPERS OF AMERICA, AFL: AND JOHN KENNEDY , Its Business Agent and FRANK H. DONLON, Jr . and THE BABCOCK & WILCOX CO. Case No . 4-CB-129. June 4, 1953 DECISION AND ORDER On January 15, 1953, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled pro- 105 NLRB No. 31.