Gimbel Brothers, Inc

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the affirmative action stated below, which it is found is necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and entire record in the case, I make the following: CONCLI7sIONs OF LAw 1. General Warehousemen & Employees Union, Local 636, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By inducing and encouraging employees of Frank & Seder to engage in a strike or concerted refusal in the course of their employment to handle ship- ments of Roy Stone Transfer Corporation, with an object of requiring Frank & Seder to cease doing business with Stone,,the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] GIMBEL BROTHERS, INC., and ALBERT E. LONGMAN UNITED DEPARTMENT STORE WORKERS OF Nji3W YORK, LOCAL 2, DISTRICT 65, AFFILIATED WITH DISTRIBUTIVE, PROCESSING AND OFFICE WORK- ERS or AMERICA' and ALBERT E. LONGMAN. Cases Nos. 2-CA-1479 and 2-CB-454. August 28,19-52 Decision and Order On September 5, 1951, Trial Examiner Sidney L. Feiler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recom- mending that Respondent United Department Store Workers of New York, Local 2, herein called the Union, cease and desist from the unfair labor practices in which it was found to have engaged, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondents did not engage in certain other unfair labor practices alleged in the com- plaint, and recommended dismissal of the complaint in those respects. Thereafter, the Respondent Union and the General Counsel filed ex- ceptions to the Intermediate Report. Respondent Gimbel Brothers, Inc., herein called Gimbel's, filed a brief in support of the Intermediate Report; the General Counsel also filed a brief in support of his ex- ceptions. The Respondents' request for oral argument is denied because the record and briefs adequately set forth the positions of the parties. ' The name of the Respondent Union appears as amended at the hearing 100 NLRB No. 114, GIMBEL BROTHERS, INC. 871 The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications, corrections, and additions : 1. Like the Trial Examiner, we conclude that the Union's affirmative defenses based upon alleged violations by the General Counsel of the offer of settlement 2 and publication of rules 3 provisions of the Admin- istrative Procedure Act are without merit. Nothing in that Act or in the Board's own Statement of Procedure requires the General Counsel to take the initiative in broaching settlement; he need only be receptive to settlement overtures made by parties respondent .4 The Union made none in this case. Assuming, arguendo, that more was required of the General Counsel, he did in fact suggest efforts at settle- ment on the first day of the hearing, soon enough to meet all possible requirements of the Administrative Procedure Act.5 His insistence upon a consent decree as an indispensible part of a settlement with the Union, moreover, was a proper exercise of his discretion.6 Further- more, we do not believe that the General Counsel's attitudes as to the terms upon which he will settle various types of cases, attitudes an- nounced only to parties to Board proceedings in the course of discus- sions of settlement, constitute "rules" required to be published by Section 3 (a) of the Administrative Procedure Act.T 2. The complaint alleges that Longman was discharged by Gimbel's because the Union insisted upon it, and that his dismissal was there- fore a violation of the Act both by Gimbel's and by the Union. In defense, the Respondents assert that Longman was discharged because he persisted in engaging in outside selling activities in violation of company rules and because he flouted the authority of the store's top management. The Trial Examiner concluded that this defense was supported by the record. He therefore recommended dismissal of this allegation. We do not agree. The record shows, and it was admitted, that the Union had a long- standing antipathy toward Longman, and that Gimbel's was well ' 5 U. S. C. A. Sec. 1004 (b). 1 5 U. S. C. A. Sec. 1002 (a). 41nternationaZ Typographical Union and Baltimore Typographical Union, 87 NLRB 1215, 1224 ° Bibb Manufacturing Co., 82 NLRB 338, 339. ° Settlements providing for consent decrees were expressly contemplated by the con- gressional sponsors of the Administrative Procedure Act. See Leg. Hist. of the Admin. Proc. Act, Sen Doe. No. 248, 79th Cong., 2d Sess ., p. 361. See also Attorney GWeral's Manual on the Administrative Procedure Act, p. 49. 'We do not concur in the Trial Examiner 's view that Section 3 ( d) of the National Labor Relations Act, as amended , precludes the Board from -inquiring whether the Gen- eral Counsel's settlement procedures satisfy the requirements of the Administrative Proce- dure Act. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aware of that fact. At a meeting of another local of this Union's in- ternational in 1947, Longman had demanded that Carnes, president of that local and of the Department Store Joint Board (with which the Respondent Union was affiliated), declare whether or not he was a Communist. When Longman applied for employment with Gimbel's in 1948, the Joint Board's executive secretary, Michelson, unsuccess- fully attempted to dissuade General Manager Werber from hiring him. In January 1949 Longman took a concession to sell tables in his spare time at a small gift shop in Baldwin, Long Island. His venture had the approval of his superior, Furniture Merchandise Manager Tripp. In January 1950 Michelson, acting for the Union, complained to Werber about Longman's outside activity. It was thus the Union which took the initiative to set in motion the events which culminated in Longman's discharge. The record contains affirmative and persuasive evidence that Gim- bel's did not consider Longman's small after-hours business as of any importance and would have ignored it but for the Union's persistence in pressing the matter. Because of the Union's complaint, a complete investigation was made of Longman's activities both inside and out- side the store. By February 1, 1950, General Manager Werber was in full possession of the facts. Yet neither he nor the other company officials who were consulted took any action whatever. On the con- trary, all of them at that time gave Tripp the impression that, in their opinion, the Union was trying to use Longman' s spare-time business as a pretext to eliminate him from the store. Among those who gave -Tripp this impression was Labor Relations Specialist Melvin Levy, who consulted with Executive Vice-President Broido practically every day on labor matters." It was Broido who made the final decision to discharge Longman. Gimbel's having shown no interest in doing anything about the Longman case, the Union renewed its complaint in March or April 1950. Meeting with Levy this time instead of with Werber, the union officials demanded that Gimbel's state its policy regarding outside activities like Longman's. In mid or late April the Company came to a decision that Longman would be required to give up his outside business. When Levy so informed the Union, Chief Organizer Anna Blanck replied, ". . . do you think that is why we have been talking to you all these weeks? We want Longman out of here." At about the same time, as found below, the Union demonstrated its power in the store by a number of disruptive and illegal acts aimed at forcing other employees into the Union. There followed several more 8 The Trial Examiner erroneously reported that Levy knew nothing about the Longman matter until sometime in March. Levy testified , and we find, that he learned about It before February 3, 1950. GIMBEL BROTHERS, INC. 873 protests by the Union against Longman's continued employment, the last occurring the first week of June. Finally, on June 9 Levy swung over to the Union's position and recommended Longman's dismissal. Personnel Director McCarthy objected to that action and apparently accused Levy of appeasing the Unions Intensifying the disagreement among the Company's offi- cials, Vice-President Eckhouse (who was the chief executive of the 83d Street Store) and Merchandise Manager Dugan both supported McCarthy. So Levy appealed to Eckhouse's superior, Executive Vice- President Broido, who called a special meeting of store executives and won their general assent to his decision that Longman be dis- charged. During this meeting one of the executives present remarked : "This Commie union has been gunning for this guy a long time." Despite the foregoing facts, Gimbel's insists that its motive was solely to maintain company discipline and to enforce an established company policy prohibiting outside business activity by its employees. In weighing this defense we do not presume to decide whether such a policy would operate in Gimbel's best interests or whether Gimbel's might reasonably adopt such a policy. Nor do we hold that lack of any policy in the matter would necessarily make unlawful the dis- charge of an employee for engaging in outside selling activities. The sole issue here is whether Longman was in fact discharged because of his spare-time business or at the instigation of the Union and because of Gimbel's desire to smooth its relations with the Union. The record does not support Gimbel's assertion that it had a general policy prohibiting the sort of activity in which Longman was engaged, much less requiring the discharge of employees in such cases. To begin with, the alleged policy was never reduced to writing or com- municated orally to the employees 10 As noted above, when Werber, Dugan, and Levy learned about Longman's outside activities early in February, they took no action whatever. Werber merely commented to Dugan, in writing, that the Longman matter "may be something we may want to make a decision on." The store's indifference supports the credited testimony of Dugan and Tripp that during their more than 10 years' service with Gimbel's neither had ever heard of such a policy. It was not until about 2 months later, when the Union's second complaint injected new life into a matter apparently forgotten by the Company, that Gimbel's decided to take some kind of action. And then it did not discharge Longman but merely asked that he discon- tinue his spare-time work. Moreover, it did not accompany this action by any kind of general announcement to employees or supervisors. 0 Although McCarthy had frequently made this accusation against Levy and Broido in the past, other Gimbel officers generally accepted Levy's recommendations regarding labor matters without question. 10 Failure to announce an alleged policy is evidence of its nonexistence . N. L. R. B. v. Ford Brothers, 170 F. 2d 735 (C. A. 6), enfg. 73 NLRB 49. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is further proof that the alleged policy did- not exist. In March 1950 Personnel Director McCarthy personally checked and approved the contents of an issue of the Company's house organ, The Gimbelite, which contained an article congratulating two Gimbel salesmen upon their successful outside business activities. It was also undisputed that two of Longman's fellow furniture salesmen, garner and Siegel, who were still in Gimbel's employ at the time of the hear- ing, had been buying and selling furniture on the outside during the time when Longman was doing so, and that they had made no secret of their activities 11 It was not shown that before the Longman case Gimbel's had ever stopped a salesman from doing what Longman was doing, let alone dismissed one for any such reason. A vague reference to one instance in 1948 when a buyer-as distinguished from a salesman-of lingerie was discharged for engaging in the 'lingerie business on the outside is hardly analogous. Nor are those cases in point in which Gimbel salesmen, while on duty at the store, were found to have been sending Gimbel customers to outside dealers. Disloyalty of this kind was never attributed to Longman.12 It is true that one piano salesman was warned by his supervisor in March or April 1950 that he would be discharged if he accepted part-time work as a salesman at a neighbor- hood music store. Considering the way the Company had previously ignored the Longman case, however, this one incident obviously does not prove the existence of any general policy. Accordingly, we find that Gimbel's had no general policy against outside selling activities by employees, and that by its instructions to Longman to give up his outside business it discriminated against him in violation of Section 8 (a) (3) and (1) of the Act. Furthermore, on all the facts we find, contrary to Gimbel's contention, that it did not dismiss Longman because of his spare-time selling activity." 11 Gimbel' s attempt to dispel the obvious significance of these facts is unconvincing. True, Berkowitz' spare-time business was on the wholesale level, not the retail level like Longman's . However, although Broido claimed that wholesaling activities by employees were equally violative of the alleged company policy , neither Berkowitz' supervisor nor the Gimbel buyer who purchased from Berkowitz for the store , both of whom knew the facts, voiced any objections. Warner and Siegel dealt in antique furniture, which Gimbel's at that time was not selling . Like them, however, Longman also sold a line of tables not handled by Gimbel's 12 The report of the January 1950 investigation of Longman showed that Gimbel special investigators , in the guise of customers, tempted Longman to divert trade in this fashion, but that he remained loyal to Gimbel's. 13 Apparently, Gimbel 's also argues that it was justified in discharging Longman, and that it did so in order to preserve Gimbel's position in future arbitration proceedings involving disciplinary action against other employees who might compete with the store after hours . However, the Longman case, which was dealt with at a time when no gen- eral policy on this subject existed, could not be precedent for future arbitration cases arising after a general policy might be established . As stated above, there is nothing to prevent Gimbel's from establishing such a policy at any time. Levy and Broldo, both lawyers, must have known that the rules of arbitration do not require that 1'iersonn61 poli- cies be immutably frozen. ' - GIMBEL BROTHERS, INC. 875 Equally without merit is the defense that Longman was discharged because he contumaciously disregarded the authority of certain store officials by not disposing of his part-time business or finding work else- where promptly. As set forth in greater detail in the Intermediate Report, Longman was first told on May 1 that he should dispose of his business, and he was given 60 days' grace until July 1 in which to do so. This solution of the problem raised by the Union's demands was acceptable to Executive Vice -President Broido. Shortly thereafter, Longman agreed to seek employment elsewhere and to resign within a few weeks . However, no definite new deadline was assigned him for this purpose. True to his word, he did seek work at Altman's; in fact, Furniture Merchandise Manager Tripp interceded with Alt- man's in his behalf . When this effort proved unsuccessful , Tripp told Longman to forget about the whole thing and to remain with Gimbel's. Following further union protests ,'' Levy decided on June 9 that Longman should be asked to resign immediately without waiting for the end of the month. When Tripp received Levy's recommendation to that effect on June 12, he called in Longman and gave him a new and earlier deadline, namely, June 17. Although Levy, not satisfied even with that foreshortened grace period, continued to insist upon immediate discharge, other high management officers agreed with Tripp and Longman that such action was unwarranted. Neverthe- less, on June 15 the store finally decided to dismiss Longman. He was told of the decision on Monday, June 19, 2 days after he had sold his local business in accordance with the last instructions he had received. On these facts we are not convinced either that Longman conducted himself improperly in the light of the vacillating attitudes expressed to him by his superiors, or that the decision to dismiss him resulted from any fancied impression that he had been disrespectful. He did as he was told , and he attempted to carry out his promise to find work elsewhere. Conduct by one employee that might jeopardize the au- thority of management throughout a store the size of Gimbel 's could hardly provoke the sort of disagreement among the highest officers of the Company that preceded their final decision to discharge. In fact, Levy himself admitted that Broido paid little attention to the alleged disciplinary aspect of the Longman case. As it thus appears that Longman was discharged neither because of his alleged contumacious behavior nor because of his outside selling 11 In connection with its last protest , in early June, the Union complained that Longman was using the company telephones to conduct his outside business . The union official who made the accusation testified that he had no personal knowledge about the telephoning and could not remember who told him about it. Levy himself, in the letter which he wrote to Tripp afterwards , showed full awareness of the possibility that the charge was untrue. We find that this accusation was unfounded and that it was not seriously cred- ited by Gimbel's. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, we are satisfied that the evidence indicating inducement by the Union amply supports the complaint's allegation of discrimina- tory discharge. Accordingly we find, on the record,as a whole, that the Union demanded Longman's discharge, that Gimbel's dismissed him for that reason, and that by such conduct the Union violated Sec- tion 8 (b) (2) and 8 (b) (1) (A) of the Act and Gimbel's violated Section 8 (a) (3) and (1)." 3. At the same time that the Union was attempting to have Long- man removed from the store, it staged a vigorous campaign to achieve 100 percent unionization of all employees. As set forth in detail in the Intermediate Report, its most intense activity occurred on May 11, 1950, referred to by company officials as the day of the "blitz." On this and preceding days a number of instances of unlawful coercion occurred, either to force employees to join the Union or to prevent their working because they wished to refrain from assisting it. The Trial Examiner found, and we agree, that a listed number of these acts constituted separate violations of Section 8 (b) (1) (A) of the Act. Thus union officers or agents were responsible for : (1) Threats to telephone operators Coleman and Clouse,16 sales clerks Greeley and Parker, and interior decorator Bobes; (2) an attempt to pull employee Martin from her office chair and physically eject her from her office; and (3) group interference with the work of Bobes and of a number of salespeople, including Isler, Greeley, Herganahan, Holly, and Morton. This last technique for pressuring the nonunion sales clerks into ad- hering to the Union was to surround them on the selling floor-to- gether with the customers they were trying to serve-and to maintain a loud, continuing commotion, including name-calling. As to two employees, executive trainee Griffin and elevator operator Harrison, the Trial Examiner found nothing illegal in the Union's coercive conduct. He based his conclusion in those instances on the fact that these employees were both contractually excluded from the unit represented by the Union, that the Union was not seeking to enroll them as members, and that the coercion used against them was only "collateral" and "indirect." We do not agree with the Trial Examiner's conclusions as to these incidents. The Act guarantees to all employees the right to refrain from assisting labor organizations. 16 Red Star Exp,ess Lines v. N. L. If. B. 196 F. 2d 17 (C. A. 2.), enfg. New York State Employers Assn., 93 NLRB 127 ; Shell Oil Co. v. N. L. if. B., 196 F. 2d 637 (C. A. 10), enfg. 95 NLRB 102. We find no merit in Respondent Gimbel's contention that the discrimination against Longman in this case did not encourage membership in a labor organization within the meaning of Section 8 (a) (3) of the Act. N. L. R. B. v. Gaynor News Co., 197 F. 2d 719 (C. A. 2), enfg, 93 NLRB 299; N. L. R. B. v. Radio Officers' Union, 196 F. 2d 960 (C. A. 2), enfg 93 NLRB 1523. 16 Union steward Weber warned Clouse that unless she donned a union button, (1) Clouse could not work and (2) the other switchboard operators would go on strike. do not regard the, latter warning as a violation of the Act. We GIMBEL BROTHERS, INC. 877 It is clear that both Griffin and Harrison were coerced into assisting the Union. Griffin was forced to stop work so that the Union's objective of preserving all packing work for regular packers could be achieved, and Harrison was forceably removed from the controls of her elevator so that union emissaries could take it on a special trip on union business 17 This being so, it is irrelevant whether the coercion was for the purpose of enrolling new members. The prohibitions of Section -8 (b) (1) (A) are not limited to purely organizational situations18 Like the Trial Examiner, we find that the harassment of sales per- sonnel on the selling floors violated Section 8 (b) (1) (A) even though it was unattended by any actual physical obstruction." We believe that this kind of indoor picketing is the equivalent of physical coer- cion. The function of selling cannot be carried on without some degree of rapport and relatively undisturbed oral communication between customer and salesperson. By subjecting this relationship to serious psychological and auditory handicaps, union members were forcing fellow employees to stop work almost as effectively as if they had placed gags over their mouths or had pinioned their arms. This is very different from mere moral pressure orally exerted upon non- striking employees by a picket line at a plant entrance. CONCLUSIONS OF LAW We adopt the Trial Examiner's conclusions of law except for paragraph 7; and we make additional conclusions of law as follows : (a) By discriminating against Albert E. Longman in regard to his tenure, terms, and conditions of employment, Respondent Gimbel 17 The Trial Examiner made no finding respecting the Union 's responsibility for the Harrison incident. Although the evidence is circumstantial, no other plausible explana- tion is offered as to the possible identity of the offenders . It was undenied that Reitz- feld, head steward for Gimbel's packers , recruited 9 packers the same morning to accom- pany him on a union mission to Gimbel's telephone switchboard department and that the groups signed out at 1 30 , half an hour earlier than usual The 10 employees who coerced Harrison boarded her car at about 1:30. Another elevator operator who fol- lowed the commandeered elevator to the ninth floor saw 5 or 6 men, including at least 1 or 2 known to be packers , departing toward the telephone switchboards . Reitzfeld had played a leading role a few weeks before in the coercion of Griffin, in the presence of salaried union officials. On these facts we find that the persons who forced Harrison to surrender her elevator were acting for the Union "House Conference Report No . 510 on H. R. 3020, 80th Cong., 1st Sess , p. 42; H. R. 3020, as passed House, p. 47 ; 93 Cong. Rec. 3535 (remarks of Congressman Hartley) ; Id. at 4562 (remarks of Senator Taft ). N. L. R: B. v. United Mine Workers of America, District 31, 190 F. 2d 251 (C. A. 4), enfg. Bitner Fuel Co., 92 NLRB 953; Progressive Mine Workers v. N. L. R B., 187 F. 2d 298 ( C. A. 7), enfg. in this respect 89 NLRB 1490; N. L R B. v. Radio Officers Union , 196 F. 2d 960 (C A. 2), enfg 93 NLRB 1523; Fox Mid- west Amusement Corp., 98 NLRB 699; Cory Corporation, 84 NLRB 972, 987. e We also agree with the Trial Examiner that the work stoppages involved in this har- assment, the reason for which was unmistakably communicated to the Company, consti- tuted an attempt to cause the Company discriminatorily to remove nonunion employees from the selling floors, and that by this conduct the Union violated Section 8 ( b) (2) of the Act. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brothers, Inc., has engaged in unfair labor practices within the mean- ing of Section 8 (a) (3) and (1) of the Act. (b) By causing Gimbel's to discriminate against Albert E. Long- man in violation of Section 8 (a) (3) of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. Order Upon the basis of the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : 1. Respondent Gimbel Brothers, Inc., its officers, agents, successors, and assigns, shall : (a) Cease and desist from: (1) Encouraging membership in United Department Store Workers of New York, Local 2, District 65, DPOWA, or encouraging or dis- couraging membership in any other labor organization, by discriminat- ing against its employees in regard to their hire or tenure of employ- ment, or any term or condition of employment. (2) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Offer to Albert E. Longman immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. (2) Permit the posting on all employee bulletin boards at its 33d Street store in New York City of the notices required to be posted by the Union pursuant to section 2 (b) (3) of this Order, and inform the Union of this permission. (3) Post at its 33d Street store in New York City copies of the notice attached hereto as Appendix A.20 Copies of this notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Gimbel Brothers' official representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Gimbel Brothers to insure that these notices, and those posted by Respondent Union at the 33d 20 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 "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." GIMBEL BROTHERS, INC. 879- Street store pursuant to section 2 (b) (3) of this Order, are not altered, defaced, or covered by any other material. (4) Upon reasonable 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 all other records pertinent to an analysis of the amounts due as back pay under the terms of this Order. 2. Respondent United Department Store Workers of New York, Local 2, District 65, DPOWA, its officers, representatives, agents, successors, and assigns shall : (a) Cease and desist from : (1) Causing or attempting to cause Gimbel Brothers, Inc., its officers, agents, successors, or assigns, to discriminate against Albert E. Longman or any other employee in violation of Section 8 (a) (3) of the Act. (2) Restraining or coercing employees of the said Employer in the exercise of their right to refrain from joining or assisting the above- named Union or to form, join, or assist, or refrain from forming, joining, or assisting any other labor organization, by (a) threatening them with violence or with loss of employment, (b) blocking ingress to or egress from• their work stations, (c) physically removing or attempting physically to remove them from their work stations, or (d) obstructing them in their efforts to carry on their sales duties by congregating around them and their customers, talking at them, and calling them -names. (3) In any other manner restraining or coercing employees of the said Employer in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Take the following -affirmative action, which the Board finds will effectuate the policies of the Act : (1) Notify Respondent Gimbel Brothers, Inc., that it withdraws its objection to the employment of Albert E. Longman. (2) Notify Albert E. Longman that it has withdrawn its objections to his employment by Gimbel Brothers, Inc. (3) Post in conspicuous places in its offices in New York City, and on all employee bulletin boards of Gimbel Brothers' 33d Street Store, and wherever notices to its members are customarily posted, copies of the notice attached hereto and marked "Appendix B." 21 Copies of this notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by Respondent Union's official representative, be posted by it immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter. 21 See footnote 20, above, which shall apply here as well 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the Respondent Union to insure that these notices are not altered, defaced, or covered by any other material. 3. The Respondents Gimbel Brothers, Inc., and United Department Store Workers of New York, Local 2, District 65, DPOWA, their officers, representatives, agents, successors, and assigns, shall : (a) Jointly and severally make whole Albert E. Longman for any loss of pay he may have suffered because of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as salary and commissions from the date of his dis- criminatory discharge to the date of the offer of reinstatement or, in the case of Respondent Union, to, the date when the Union notifies Gimbel Brothers in writing that it has no objection to his'reinstate- ment. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof during the period from the date of discharge to the date above mentioned. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which he would normally have earned for each quarter or portion thereof, his net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.22 (b) Notify the Regional Director for the Second Region, in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. CHAIRMAN HERZOO took no part in the consideration of the above Decision and Order. 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, we hereby notify our employees that : WE WILL NOT encourage membership. in UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCAL 2, DISTRICT 65, DPOWA, or encourage or discourage membership in any other labor organi- zation, by discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employ- ment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right In accordance with the Board's usual practice, the period from the date of the Inter- mediate Report to the date of the Decision and Order herein is to be excluded in com- puting the amount of back pay awarded. GIMBEL BROTHERS, INC. 881 to form, join, or assist labor organizations or to refrain from such activities, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL offer Albert E. Longman immediate and full rein- statement to his former or to a substantially equivalent position without prejudice to his seniority and other rights and privileges; and we will make him whole for any loss of pay suffered as a result of the discrimination against him. GIMBEL BROTHERS, 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. Appendix B NOTICE TO ALL MEMBERS OF UNITED DEPARTMENT STORE WORKERS OF NEW YORK, LOCAL 2, DISTRICT 65, DPOWA AND To ALL EMPLOYEES OF GIMBEL BROTHERS, INC., NEW YORK CITY 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 you that : WE WILL NOT cause or attempt to cause GIMBEL BROTHERS, INC., its officers, agents, successors, or assigns, to discriminate against Albert E. Longman or any other employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of the said employer in the exercise of their right to refrain from joining or assisting our union or to form, join, or assist, or refrain from joining or assisting, any other labor organization, by (1) threatening them with violence or with loss of employment, (2) blocking ingress to or egress from their work stations, (3) physically removing or attempting physically to remove them from their work sta- tions, or (4) obstructing them in their efforts to carry on their sales duties by congregating around them and their customers, talking at them, and calling them names. WE WILL NOT in any other manner restrain or coerce employees of the said employer in the exercise of their right to form, join, or assist labor organizations or to refrain from such activities, except to the extent that such right may be affected by an agree- 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL make Albert E. Longman whole for any loss of pay suffered as a result of the discrimination against him. UNITED DEPARTMENT STORE WORKERS OF NEW YORK , LOCAL 2, DISTRICT 65, DPOWA By ----------------------------------------- (Representative ) (Title) Dated ---------------------- This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed by Albert E. Longman against Gimbel Bros., Inc., and an additional charge filed by Longman against Department Store Workers Union, Local No. 2, affiliated with Distributive Workers Union ,' herein referred to as the Company and the Union respectively or the Respondents when referred to jointly, the General Counsel of the National Labor Relations Board 2 by the Regional Director for the Second Region ( New York, New York ), on March 19, 1951, issued an order consolidating both cases for the purpose of hearing and also issued a complaint against the Respondents alleging that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act, and further alleging that the Union had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. With respect to unfair labor practices the complaint alleges in substance that: (1) The Union by its officers , agents, organizers , and representatives had caused and/or attempted to cause and is causing and/or attempting to cause the Com- pany to discriminate against certain of its employees in regard to hire and tenure of employment and terms and conditions of employment because of the non- membership of said employees in the Union by, on or about February 1, 1950, and thereafter, demanding and requiring that the Company withdraw permission which it had granted to Albert E. Longman, an employee and a nonmember of the Union, to engage in a separate business while in the employ of the Company, demanding the discharge of Longman and on or about April 12, 1950, and there- after demanding that the Company discharge or refuse to assign work to em- ployees who were not members of the Union; (2) the Union by its officers, agents, organizers, and representatives has restrained and coerced and is restraining and coercing employees of the Company in the exercise of their rights guaranteed by Section 7 of the Act, for the purpose of causing and compelling them to join or 1 At the time of the filing of the original charge herein against the Union it was known as Department Store Workers Union, Local No. 2, affiliated with Distributive Workers Union. In October 1950 , the name of the 'Union was changed to that shown in the cap- tion herein and a motion to so change the name of the Union in the pleadings was granted at the hearing. 2 The General Counsel and the attorney representing him at the hearing are referred to as the General Counsel The National Labor Relations Board is referred to as the Board. GIMBEL BROTHERS, INC. 883 assist the Union by, on or about April 12, 1950, and thereafter, threatening to inflict or inflicting bodily injury upon certain employees, on or about April 12, 1950, and thereafter by force, threats of force, mass demonstrations, and by other means attempting to prevent and preventing the performance of assigned duties by certain said employees ; and on or about April 12, 1950, and thereafter, by force and threats of force attempting to compel and compelling certain of said employees to wear union buttons and otherwise to assist in activities of the Union; (3) the Company pursuant to and because of the demands of the Union did on or about May 1, 1950, withdraw from employee Albert E. Longman permission which it theretofore had granted him to engage in a separate business while in the employ of the Company and did thereafter and on or about June 20, 1950, discharge him and thereafter failed and refused and continued to refuse to employ him because of the demands of the Union and because he was not a member of the Union. The Union filed a demand for a bill of particulars as to the allegations in the complaint. This application was referred to Trial Examiner Thomas S. Wilson who issued an order granting the application in part. The General Counsel filed the required bill of particulars. Thereafter the Respondents filed their answers to the complaint. The Com- pany in its answer dated April 11, 1951, admits certain jurisdictional allegations and admits that on or about May 1, 1950, it instructed Longman to cease engaging in a separate business while in its employ and did thereafter discharge him on or about June 20, 1950, but denies the commission of any unfair labor practices The Union in its answer received April 16, 1951, denies that it made any demands upon the Company with respect to Longman and denies the commission of any unfair labor practices. Pursuant to notice a hearing was held at New York, New York, between April 30 and May 23, 1951, before the undersigned, Sidney L. Feiler, the Trial Examiner designated by the Chief Trial Examiner. All. the parties were represented by counsel. Full opportunity to be heard and to examine and cross- examine witnesses was afforded all parties. At the opening of the hearing the General Counsel, pursuant to a notice of motion previously served upon the other parties, moved to amend the complaint by adding an allegation thereto that the Union caused the Company to dis- criminate against employees who were nonmembers of the Union by demanding and requiring the Company to exclude Longman from sharing in a distribution of mail orders received in his department and that the Company pursuant to the demand did from on or about December 29, 1949, to on or about June 20, 1950, exclude Longman from sharing in the distribution of those mail orders. This motion was granted without objection and the Union amended its answer to extend its denials to the new allegations. At the conclusion of the General Counsel's case-in-chief the Respondents moved to dismiss the complaint for failure of proof. These motions were denied. The Respondent Union then amended its answer to add three affirmative defenses. These defenses are treated below. At the conclusion of the hearing the motions to dismiss were again renewed. Decision was reserved on these motions and they are disposed of by the findings, conclusions, and recommendations herein. The General Counsel also moved to conform the pleadings to the proof as to formal matters. This motion was granted as to all pleadings without objection. Oral argument-was then presented on behalf of all the parties. An opportunity was also afforded for the filing of briefs and/or proposed findings of fact or conclusions of law or both. Briefs were received from the General Counsel, the Company, and Longman. 227260-53-vol. 100-57 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Affirmative Defenses of the Union At the beginning of the hearing, after the introduction of the pleadings, the General Counsel stated that on checking through his file he failed to find any memorandum of any opportunity offered the Respondents to settle the case and suggested that a recess be taken for that purpose. A recess was had and after it was over, the General Counsel, when asked if there had been any success, replied, "No sir, we were unable to arrive at a settlement, because of the fact that there are outstanding instructions to the effect that where employees have been bodily interfered with settlement may not be entered into with anything less than a Board order and a court decree." Counsel for the Union remarked that the Administrative Procedure Act required discussion of adjustment of disputes prior to administrative proceed- ing and also expressed doubt that the inflexible "rule" enunciated by the General Counsel complied with either the spirit or the letter of that Act, but reserved the point. The undersigned remarked that he would not permit litigation of the course of settlement negotiations and the positions of the parties therein. The hearing then proceeded. At the opening of the third session of the hearing, the General Counsel again reported that there had been further unsuccessful settlement negotiations and then there was a colloquy concerning the General Counsel's position on terms of settlement. Counsel for the Union contended that a blanket rule for settling 8 (b) (1) allegations for nothing less than full relief was a rule which made negotiations in good faith impossible. The General Counsel denied that there was any such rule applicable to all 8 (b) (1) (a) cases, but that settlement in the present case would not be effected absent a court decree "because of the exist- ence in this office of cases involving constituent locals of this International, cases in which Board decisions have been made, and cases in which decisions are pending and cases in which simply charges are on file in cases which have not been tried. In view of the situation involved in such cases, in this case there will be no settlement absent a decree." This statement did not meet with the unqualified approval of counsel for the Union. He contended that the General Counsel had now asserted a special rule applicable to an undefined "organization," a party to a proceeding should be judged only on the basis of the evidence in that proceeding, that there had not been extensive litigation against this local or other constituent locals, a general rule by the General Counsel barring settlement of cases involving constituent locals of the District or International was a violation of the Administrative Procedure Act and other principles of law. No evidence on this issue was presented at the hearing nor was there any further discussion except in closing argument The Union has pleaded three affirmative defenses relating to this issue. The first defense alleges in substance that at no time prior to the issuance of the complaint and the opening of the hearing did the Regional Director afford the Union an opportunity for consideration of offers of settlement or proposals of adjustment, in violation of the Administrative Procedure Act and the Statements of Procedure of the Board, particularly Section 101.7 thereof. Section 5 (b) of the Administrative Procedure Act provides, in part: The Agency shall afford all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment where time, the nature of the proceeding, and the public interest permit. . . . The Union does not contend that it sought an opportunity to discuss settlement with the General Counsel but was rebuffed. There is no evidence that it ever GIMBEL BROTHERS, INC. 885 made such an effort The argument of the Union revolves around the meaning of the word "afford" as used in Section 5 (b). The Union maintains, in effect, that under this section there was an affirmative duty on the General Counsel or the Regional Director to invite the Union to. discuss settlement possibilities before the issuance of the complaint. The under- signed is not persuaded that this interpretation is correct. Dictionary definitions of "afford" are not conclusive of the question. They define the words as "To give, grant, or confer . . . to provide, furnish" (Web- ster's New International Dictionary 1033 ed.). The legislative history of the Act does shed 1ig'it on the intent of Congress in enacting this section Thus the Senate Judiciary Committee Print, June 1945k contains this explanation of the section: Subsection (5) provides that even where formal hearing and decision procedures are available to parties, the agencies and the parties are au- thorized to undertake the informal settlement of cases in whole or in part before undertaking the more formal hearing procedure . . . The statutory recognition of such informal methods should both strengthen the adminis- trative arm and serve to advise private parties that they may legitimately attempt to dispose of cases at least an part through conferences, agreements or stipulations. It should be noted that the precise nature of informal proce- dures is left to development by the agencies themselves (emphasis added) 2' Additional material bearing on the interpretation of Section 5 (b) is con- tained in the "Attorney General's Manual on the Administrative Procedure Act." It is pointed out therein that the agencies have been left free to develop the precise manner in which opportunities for informal settlement shall be afforded parties to administrative proceedings and that there is no requirement in the Act that such opportunities be afforded before the issuance of a complaint. The undersigned concludes that Section 5 (b) of the Administrative Procedure Act does not require an agency to take the initiative in calling to the attention of parties that it is willing to discuss settlement of the issues. It is enough when it affords any party, upon.his request, an opportunity for such discussion. Nor is there a requirement in the statute that such discussions take place before the issuance of a complaint. The Union's first affirmative defense, therefore, insofar as it alleges a violation of the Administrative Procedure Act, falls on either or both those grounds since the General Counsel did initiate settlement negotia- tions at the outset of the hearing. Section 102.51 of the Board's Rules and Regulations (Series 6) provides that at any stage of a proceeding prior to hearing, where possible, all interested par- ties "shall have opportunity to submit to the regional director with whom the charge was filed, for consideration, facts, arguments, offers of settlement, or proposals of adjustment." There is no proof that the Union did not have that opportunity. Section 101 7 of the Board's Statements of Procedure goes further and it is this section which the Union claims has been violated. It provides: Before any complaint is issued or other formal action taken the regional[ director affords an opportunity to all parties for the submission . .. of offers of settlement . . . Normally prehearing conferences are held, the principal purpose of which is to discuss and explore such submissions and proposals of adjustment. 'Administrative Procedure Act Legislative History, Senate Doe. No 248, 79th Cong 2d sess, p. 24. See also pps 202. 261, 316, and 360 for additional material relating to that section. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If the undersigned's interpretation of the meaning of the word "afford" as used in the Administrative Procedure Act is correct, then there has been no violation of this section for at no time either before or after the issuance of the complaint did the Union seek to discuss settlement with the Regional Director nor is there any evidence that he would not have undertaken such discussions upon request' To the extent that Section 101.7 of the Statements of Procedure is in conflict with Section 102.51 of the Rules and Regulations, the undersigned is of the opinion that the latter should govern as being the more definitive statements of specific Board rules rather than the general summary contained in the State- ments of Procedure. In any event, even if the General Counsel was under an affirmative obligation to offer to enter into settlement negotiations with the Union either before the issuance of the complaint or prior to the hearing, the under- signed concludes that there has been no substantial prejudice to the rights of the Union which would warrant the dismissal of the complaint in view of the fact that the Union, as far as the record shows, at no time attempted to initiate settle- ment negotiations, it raised this defense for the first time after the General Coun- sel had offered to confer with it, and such a conference was held before any witness was called.` The Union, for its second affirmative defense, alleges, in substance, the offer of the General Counsel to consider any proposal of settlement was not made in good faith in that the General Counsel stated that he was bound by an absolute rule providing that complaints alleging violations of Section 8 (b) (1) (A) could never be settled for less than a court decree providing for full relief, regardless of the circumstances of the particular case, the General Counsel, therefore, had no discretion to effect a settlement, the rule had never been published or otherwise announced publicly, and the General Counsel and the Regional Director have denied to the Union rights guaranteed under the Act and the Administrative Procedure Act. The third affirmative defense alleges, in substance, that the offer of settlement was not made in good faith for the reason that the General Counsel was bound by a policy decision that no offer of settlement would be made or entertained in any case alleging a violation of Section 8 (b) (1) (A) of the Act, in which the Union or other locals affiliated with the parent organization was named as a respondent, and that the policy decision "is discriminatory and is in violation of both the letter and spirit of the Administrative Procedure Act and the National Labor Relations Act as amended ; that said policy violates the rights of the Respondent Union to equal treatment in a nondiscriminatory and impartial fashion ; that said policy decision deprives the Respondent Union of liberty and property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States." Under the Act the General Counsel has final authority in respect to the investi- gation of charges, the issuance of complaints, and the prosecution of those com- plaints before the Board. (Section 3 (d).) The Board, itself, has no power to enter into settlement negotiations of unfair labor practice charges, although it can and does review the terms of a proposed settlement once a complaint has been issued and hearing held .6 However, neither the Board nor any of its Trial Examiners has any power or right to inquire into the course of settlement negotia- tons held off the record to decide whether they were fair. This would be a ' The "Attorney General's Manual on the Administrative Procedure Act" does contain the statement that if an opportunity to settle is to be made available before the issuance of formal proceedings, advance notice should be given the parties and they should be informed that they have an opportunity to adjust the matter. The position is not taken that this is required by the Act. It is merely recommended as good procedure, which it is. 5 Bibb Manufacturing Company, 82 NLRB 338. 6 United Aircraft Corporation, Pratt & Whitney Aircraft Division, 91 NLRB 215 GIMBEL BROTHERS, INC. 887 gross violation of law. The General Counsel, appearing as a litigant before the Board, has full freedom to enter into such negotiations. The General Counsel must weigh all relevant factors in deciding whether and on what terms he shall offer to settle a case. Since many charges are filed during a year (5,809 in the fiscal year 1950),7 he undoubtedly has formulated broad settlement policies of general application and does make distinctions according to different types of violations and the prior history of the other litigants in the case. He must determine in the first instance whether a settlement would effectuate the policies of the Act. The General Counsel has the power to make the distinctions which the Union has charged he had made, if he in his discretion feels that he should make them. It is no violation of law for him to do so. These settlement policies ,are not "substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public . . ." which are required to be published by the terms of Section 3 (a) of the Administrative Procedure Act. The Board has only limited power of review of the actions of the General Counsel in settlement negotiations in unfair labor practice cases. It cannot orig- inate settlement negotiations or dictate what terms he shall offer. • It can only review a settlement agreement once a case has gone to hearing. The under- signed concludes that the affirmative defenses interposed by the Union are not tenable and rejects the Union's application that the complaint be dismissed on those grounds. Upon the entire record and from his observation of the witnesses, the under- signed makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, whose full name is Gimbel Brothers, Inc., although it is also known as and does business under the name of Gimbel Bros., is a New York corporation having its principal office and place of business in New York, New York, where it is engaged in the retail sale of general merchandise. In addi- tion to two department stores in New York City the Company maintains depart- ment stores in Philadelphia and Pittsburgh, Pennsylvania, and Milwaukee, Wis- consin. This proceeding deals solely with events at the Company's store on 33d Street in New York City. During the year 1950 the Company's purchases and sales for this New York store were substantially in excess of $1,000,000 each. Approximately 25 percent of its purchases and 15 percent of its sales were in interstate commerce or foreign commerce. The Company concedes that it is engaged in commerce within the meaning of the Act and the undersigned so finds. II. THE LABOR ORGANIZATION INVOLVED United Department Store Workers of New York, Local 2, District 65, affiliated with Distributive, Processing and Office Workers of America, is a labor organiza- tion admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Acts of restraint and coercion by the Union 1. Introduction - The complaint as amplified by the bill of particulars submitted by the Gen- eral Counsel alleges that the Union restrained and coerced employees of the 7 Fifteenth Annual Report of the Board , p. 218. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company in the exercise of their rights guaranteed by the Act for the purpose of causing and compelling those employees to join or assist the Union. These activities are alleged to be in violation of Section 8 (b) (1) (A) of the Act which provides: It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guar- anteed in Section 7... . Section 7 in turn provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of 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 employment as authorized in section 8 (a) (3). The acts alleged by the General Counsel to have been in violation of the above provisions of the Act occurred in April and May 1950. At that time the Union had a written contract with the Company under which it was recognized as col- lective bargaining representative for office, sales, and other employees in the 33d Street store. The Union did not represent all the employees in the store. For instance, elevator operators were represented by another union. Also excluded from the contract was the executive training squad, a group of em- ployees who receive training for supervisory and executive positions. The con- tract between the Company and the Union did not contain a union-security provision and expressly provided that employees of the Company were free to join or not join the Union. 2. The refusal to permit Bette McNelis Griffin to work in the packing department' In April 1950, Bette McNelis Griffin was a member of the executive training squad. Her assignments included attendance at lectures and working in different store departments for short periods of time so that she could familiarize herself with actual store operation. She was not a member of the Union and as pre- viously mentioned employees on the executive training squad were excluded from the unit which the Union represented. In mid-April she was assigned to a unit of packers working on the eighth floor. In the late afternoon of that day she saw James Bohannon, one of the packing employees and union-shop steward for those packers, make a telephone call. He then called the packers together and said, "If this girl continues to pack, you are not to pack, you are to stop work." Griffin continued working but the other packers stopped. Ap- proximatelly 20 minutes later, two supervisory officials, George H. Lloyd and Emil Costa, nonselling superintendent and head • of the packing department respectively, then came to the section and explained to Bohannon that Griffin was there merely to learn how to pack and was not there to take work away from any of the employees. The packers then returned to work. In a conversation later that day, Bohannon told Griffin that he had called the Union on prior instructions from union officials and that in the telephone conversation he had s The findings as to the incidents in April and May 1950 are based upon the testimony or the witnesses produced by the General Counsel. The Union produced no witnesses in rebuttal but as to each of the incidents it maintains that the evidence does not establish a violation of the Act. GIMBEL BROTHERS, INC. 889 been instructed to tell the packers to stop work with her and had also been instructed to have them try to make her feel uncomfortable. There were no further incidents that day. The next day Mrs. Griffin was assigned to the liquor packing unit. Shortly after she had begun packing, an employee introduced himself as Paul Reitzfeld, head shop steward of all the packers, and asked her to stop packing. Griffin refused. Reitzfeld walked away and all the packers in that unit, approximately 30, stopped work and gathered behind Mrs. Griffin. Reitzfeld returned and addressed them and stated that she was taking away the jobs of packers who had been laid off recently and that all they wanted to do was to protect their jobs. In a few minutes packers from the rest of the store, to a total of 80 or 90, came into the room and surrounded Mrs. Griffin. Lloyd and Costa also came into the room and stood between Mrs. Griffin and the group. They soon moved her to another packing, table where she would face the group rather than have them at her back. Then supplies were surreptitiously taken from her table and she was unable to keep working. Reitzfeld continued to address the group from time to time stating that she was taking away their jobs. Irving Wodin and Eli Halpern, full-time union officials, were present and told Lloyd that the packers would not continue to pack until Mrs. Griffin was taken off the job. At about 3: 30 p. in. Reitzfeld received a phone call and he then told the group that they were to go across the street to union headquarters where they would receive lunch. At that point the group that was surrounding Mrs. Griffin left. Mrs. Griffin also took her relief period then and returned to work at 4: 30 p. m. At 4: 30 p. in., Mrs. Griffin was assigned by Costa to work in another unit directly outside his office. Reitzfeld again asked her if she would stop packing and Mrs. Griffin replied that she would at 5 o'clock since she then had to go to supper and after that attend a training class. Mrs. Griffin stopped packing at 5 o'clock. However, on further instructions she returned to packing work at 6 p. in. When Mrs. Griffin again started packing the other employees stopped, and in 5 or 10 minutes all the employees on that store level gathered behind her again. One of the group, a shop steward, remarked, "Miss, if you don't stop packing, we won't be responsible for what happens to you." Also Mrs. Griffin's packing supplies began to disappear from her table. Costa then told Mrs. Griffin to sit in his office. She did no work for the balance of the working day which ended at9p.m. The next morning Mrs. Griffin was again assigned to the packing department. When she attempted to go to Costa's office, Reitzfeld and 30 or 35 packers barred her way and told her that they would not let her in. Costa came up and ex- plained to Reitzfeln that Mrs. Griffin was only there to learn how to pack and asked the group to let her in, but they refused. One of the group suggested that she be thrown in the store incinerator. Mrs. Griffin then left. Mrs. Griffin reported what had happened to her supervisors and was again ordered to go back to the packing unit. However, when she went there one of the members of the store's protective department ordered her out and she did not receive any further assignments in the packing department. Mrs. Griffin was first hired by the Company in August 1948 and had worked there continuously until the incidents in April 1950. At no time in her different assignments bad she been requested by any of her fellow employees to join the Union. Nor during any of the above incidents was she asked to join the Union or was she told that the packers would not work with her because she was not a member of the Union. In fact, Mrs. Griffin quoted Reitzfeld as stating to the employees in several speeches that they did not want her in the packing depart- 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment because she was taking away the jobs of people who had been recently laid off and that all they wanted for themselves was job security. The incident at the eighth floor packing unit was on April 12, 1950 . The other incidents occurred on April 13 and 14. On April 14, aft- • Mrs. Griffin had been barred from entering the packing department by anion adherents , John J. McCarthy , then assistant general manager, told Al Gatti, a union shop steward, that he was going to bring Mrs. Griffin back into the packing department . Gatti replied that if that was attempted, Mrs. Griffin would be physically thrown out. Mrs. Griffin was not returned to her job there. Melvin Levy is assistant to Louis Broido, executive vice president of the Company. Levy also, during 1950, met with union representatives in grievance meetings involving the 33d Street store. According to Levy, about 3 weeks before the Griffin incident, Anna Blauck, vice president and chief organizer for the Union, stated in a grievance meeting that the Unioti took the position that the Company should refrain from assigning trainees to any department where there had been a recent layoff or where one was contemplated. Miss Blanck described the situation in the packing department as being more volatile than in others and asked that no assignments be made to that department since there was tension among the employees. She contended that the assignment of trainees when a layoff had occurred or was contemplated was a threat to the job security of union members and they were not satisfied with the explanation that the trainees did not take away the jobs of regular employees. Levy took the position that trainees had to do some productive work and that the Company would continue its trainee system. Levy further testified that there had been a layoff just prior to the Griffin incident and that the Union did not voice objection to the trainees because of their nonmembership in the Union nor did it seek to have them forced to become members of the Union. Conclusions There is no doubt that the packers were engaging in concerted activities in their action against Mrs . Griffin, they were led by key union officials, and they effectively prevented Mrs. Griffin from working by the use of coercive tactics. Yet there was no violation of the Act as alleged in the complaint. The evidence establishes that the packers were not motivated by Mrs. Griffin's membership or nonmembership in the Union . They did not seek to enroll her in the Union . They took the position that the assignment of trainees to work in the packing department was a threat to their job security and had taken away jobs from packers who had been laid off. Rightly or wrongly, they wanted the practice stopped. There was no effort to restrain or coerce Mrs. Griffin in her right to join or not to join the Union and to exercise the other rights guaranteed under the Act. The General Counsel argues that the packers were engaged in concerted activities (which they were), Mrs. Griffin had a right to refrain from joining in or assisting in those activities ( which is true), and that coercive tactics were used in an effort to have her cease work in the packing department and thus join in and support their concerted activities which coercive tactics were violative of the Act. The packers did force Mrs. Griffin to stop work , but any support she thereby gave to the concerted activities was indirect and collateral. The undersigned concludes that there was no violation of the Act in the packing department incidents. GIMBEL BROTHERS, INC. 891 3. Incidents in the telephone department on May 10, 1950 On the morning of May 10, 1950, the Union distributed a leaflet announcing a membership meeting for that night and also a special stewards' meeting "to discuss strike situation." The Company, in view of the possibility of a strike and a walkout of telephone operators, assigned an operator from its warehouse, Gertrude Coleman, to the 33d Street store switchboard? Neither Miss Coleman nor Miss Catherine Monahan, the chief operator, were told the reason for the assignment. During the morning, Miss Monahan worked with Miss Coleman and instructed her in the operation of the switchboard and continued to work with her when she returned from lunch sometime after noon. Shortly thereafter, Eillen Weber, a telephone operator and union shop steward, spoke with Miss Monahan over the switchboard lines and asked her whether Miss Coleman would wear a union button. Miss Monahan replied that she did not know yet whether Miss Coleman would be satisfactory in that work. Miss Weber then came over and asked Miss Coleman whether she would wear a button or join the Union. Miss Coleman replied that she already belonged to a union. At that point, two or three men came into the room. Their spokesman asked for Miss Coleman and identified himself as Irving Wodin (a full-time union cfficial). He said to Miss Coleman, "We don't want any scabs working here at the board. If you don't want any trouble, take your hat and coat and let's go." Miss Coleman went with the men and they insisted on taking her downstairs. They left when Miss Coleman recognized an acquaintance on the store staff and burst into tears. She did not return to the switchboard. At about 1 p. in. a group of people, who might have been store employees, came into the switchboard room led by Anna Blanck, vice president of the Union. Miss Blanck asked whether there was any trouble and the group left in about 15 minutes without further incident. About that time Miss Monahan felt the need of lunch and told that to the operators. However, there was a delay. Miss Weber told Miss Monahan that she had better stay until an operator, Nellie B. Clouse, came back from her lunch, that she was going to be asked to put on a union button. When Mrs. Clouse returned from her lunch Miss Weber asked her whether she would wear a union button. Mrs. Clouse refused, stating that she was not a union member. Miss Weber then said, "Well, Mrs. Clouse, if you don't put on a union button, you can't sit at the board. . . ." Mrs. Clouse accused Miss Weber of coercive tactics, but Miss Weber denied this and went away. Later, in the course of further argument, Miss Weber said to Mrs. Clouse, "you can't sit down to the board . . . unless you put •a button on, because if you do, the union girls will all strike." Mrs. Clouse testified, "By that time the board was ablaze (with unanswered calls). It was a crime, really and I thought to myself, the business has gone to the dogs long enough." Mrs. Clouse then agreed and another woman pinned a button on her. Conclusions The undersigned finds that the Union, by the conduct of Wodin, violated Sec- tion 8 (b) (1) (A) of the Act in that Miss Coleman was escorted from her place of work under threats of violence because she was not a member of the Union. 9 There had been negotiations between the Union and the Company over the inclusion of telephone operators within the coverage of the current contract . On May 10, these nego- tiations were completed and the operators were included. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was a further violation of the Act when Miss Weber, a union shop steward, threatened that Mrs. Clouse could not resume work, and that the other employees would strike unless she put on a union button. A threat to an employee that she will not work if she does not engage in or support union activities is an infringement of her right guaranteed under the Act not to engage in such activities at her option and is as violative of the Act as a similar threat that an employee could not continue working unless she joined a union or paid union dues, absent an authorized union-security agreement io 4. The elevator incident On May 10, 1950, at about 1: 30 p. m., Emil Costa, head of the packing depart- ment, heard Paul Reitzfeld, a packer and union steward, tell a number of packers that he had received word from Anna Blanck that there was trouble on the eighth floor of the adjoining Cuyler Building (where the telephone switchboard was located), and that she needed some packers immediately. Thereupon, Reitzfeld and nine other packers signed out for lunch instead of waiting for their usual and assigned hour of 2 p. m. Mary Harrison was operating an employees' elevator that day. At about the time the packers had signed out she took an elevator down to the second base- ment level, where part of the packing department is located, and about 10 employees got into the elevator. When they reached the main floor, one of the group demanded that she take them up express to the ninth floor (on which there was a ramp leading to the Cuyler Building). Mrs. Harrison refused and one of the men pushed her aside and started to take the controls. Mrs. Harrison began crying and another operator, a Miss Donovan, came over and took over. One of the men demanded that she take them up, but Miss Donovan left the car with Mrs. Harrison on the third floor. Then one of the men asked Patrick McBride, another elevator operator who was in the car, to take them up. When McBride refused, the man operated the elevator himself and took it to the ninth floor. In a short while, Helen Kane, an elevator operator and relief starter, took an elevator up to the ninth floor. She saw a group of men walking towards the Cuyler Building. She went up to them and said it was unfair for them to interfere with elevator operators because they had nothing to do with their dispute. One of them told he, in effect, to mind her own business and the men walked away. Conclusions The General Counsel here, as in the case of Mrs. Griffin in the packing depart- ment, argues that the Union sought to force Mrs. Harrison to assist them in their concerted activities when a group of packers sought to have her take them up quickly to an upper floor while they were engaged in concerted activities. Even if he conceded that the group involved was properly identified as a group of packers who were on their way to assist Anna Blanck, an official of the Union, in union business and that there was coercion exerted against Mrs. Harrison, the undersigned concludes that there was no violation of the Act, but merely an indirect or collateral effect of the concerted activities of the packers. 10 Pinkerton'8 National Detective Agency, Inc., 90 NLRB 205, 211 ; Local No. 1150, United Electrical, Radio t Machine Workers (Cory Corporation), 84 NLRB 972, 973; Slamprufe, Incorporated, 82 NLRB 892, 894, enforced, 186 F. 2d 671 (C. A. 10). GIMBEL BROTHERS, INC. 5. Events of May 11, 1950 a. On the eighth floor 893 May 11, 1950, was referred to by some of the store executives as the day of the blitz. On that day, the Union made a determined effort to sign up certain recalcitrant nonunion employees. This effort was accompanied by a good deal of turmoil which at times reduced store operations to chaos. The worst situation occurred on the eighth floor. In the morning, Anna W. Isler, a nonunion sales clerk, was approached by two of her fellow employees and one of them told her, "We are going to have 100 percent union, and you must join." Miss Isler refused. Then several employees, including the shop. steward in her section, walked back and forth in front of her counter but did not otherwise molest her. Mrs. Mary Greeley, another nonunion sales clerk, was asked to sign a union card that day, but refused to do so. A group which included three shop stewards came up to her and called her a strikebreaker or scab. The section manager ordered them to break it up and Mrs. Greeley walked away, but they followed her and said there would be a union shop and she would be dismissed if she did not join the Union. They continued to surround her and talk to her as she attempted to make sales. Eugene Kevorkin, superintendent on the eighth floor, received a report from a section manager that groups of union members were surrounding nonunion mem- bers trying to persuade them to join the Union. Kevorkin went to a group and asked them what they were doing. One of the group, employee Marion Ball, said that they were trying to get the employees to join the Union. Kevorkin replied that it was against store rules to carry on union business during store hours. Miss Ball declared that they would not work with nonunion employees, but she agreed that they would disperse and that she would telephone Miss Blanck. Robert Riesner, an assistant to the personnel director, spoke to a group wear- ing union buttons and tried to persuade them to return to work. They main- tained that they had instructions from Maxwell Schneider, a steward on another floor, that they should stop work if nonunion employees were not removed from the selling floor. Kevorkin received a report from another sales clerk, a Miss Herganahan, that a group of employees was trying to persuade her to join the Union and that when she refused, they followed her while she was waiting on customers making it impossible for her to take care of customers. Kevorkin went out on the sales floor and found a group surrounding Mrs. Greeley and making remarks to her while she tried to help a customer. They refused to disperse and one of them stated that they would refuse to work as long as any of the nonunion employees remained on the floor. Five employees were specified as being such nonmem- bers-Miss Herganahan, Mrs. Greeley, Mrs. Holly, Mrs. Morton, and Miss Isler. In the group which took that position were four employees with whom Kevorkin had dealt as union shop stewards. Kevorkin summoned the five nonunion em- ployees to his office and after they were reassured, they were sent to lunch. On their return from lunch, the 5 nonunion employees attempted to continue selling, but were subjected to a repetition of the tactics which were used earlier. Each of them was surrounded by a group of employees shouting epithets while the clerks attempted to serve customers. The clerks were taken off the floor and then sent back again. The groups which would surround them were esti- mated to vary from 12 to 100. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the later afternoon, the 5 sales clerks were told to stop attempting to work and were seated in a dinette section under protection of store police. They were surrounded by # group of about 120 employees who indulged in name- calling until the 5 were escorted from the floor. During the afternoon Union Officials Wodin , Blanck, Cayton , and Halpern were observed on the floor and Blanck and Wodin addressed employees. Union stewards from other floors also joined those on the eighth floor during the day. During the afternoon , Abe Rosen , a union shop steward, told John J . McCarthy, assistant general manager, that he could stop the commotion by taking non- union employees off the floor. McCarthy refused. In the early evening, normal operations were resumed when nonselling per- sonnel were removed from the floor . The five nonunion sales clerks did not return to work that day. b. On the tenth floor Helen Bobes was employed as an interior decorator on May 11, 1950. Her job was to assist furniture salesmen who referred customers to her for advice and also to help customers who came to her directly . She was not a member of the Union. When she reported for work at noon on May 11, one of the furniture salesmen, Siegal, told her that there was going to be some trouble about the Union and would she join and forget about "this nonsense." Miss Bobes refused. Then five men, led by Max Greenberg , a union shop steward in the furniture department , came up to her while she was on the selling floor. Greenberg said that he understood that she wanted to join the Union. Miss Bobes said he was mistaken . The men then shouted at her that she would either join the Union or get off the selling floor , that they refused to work with her, and if she did not join the Union she would not be working at the store longer. Miss Bobes then went to her desk which was located in a model room behind an enclosure. The men followed her and Greenberg threw a union card on her desk and demanded that she sign it . When she refused, he gave her until 3 p. m. to sign. By this time, it was approximately 2 p. m. Miss Bobes reported this incident to her supervisors and then broke down. She was given some sedatives and she then returned to her desk . One or two employees sought unsuccessfully to persuade her to join the Union. Then Miss Bobes saw Maxwell Schneider , another union steward, raise his hand and beckon employees to him. Schneider , all the furniture salesmen from the ninth and tenth floors, and employees from the decorating department on the seventh floor, to a total of about 70, grouped around the enclosure in front of Miss Bobes' desk and blocked the passageway to her desk . They shouted names, such as "scab," and demanded that she join the Union . This demonstration continued from approximately 4 p. m. until 6 p. m. Joseph W. Feehan , super- intendent of the furniture department, pushed through the crowd and stayed with Miss Bobes from approximately 5 p. m. Greenberg announced that she would either sign or get off the floor . Schneider threatened to go in the en- closure and get her by the neck and throw her off the floor. At about 6 p. m. Miss Bobes suggested to Feehan that she might as well go home. She was given protection by the store police and left the store. The accounting department is also located on the tenth floor. On May 11, at about noon, about 25 employees in this department left their desks and grouped 'around 1 employee , a Miss Lee Martin. When Charles DeChants, their super- visor, asked them what they were doing, one of them replied that they had received orders from the Union that employees who were not members of the Union should not be allowed to work . They refused to return to work and grouped around Miss Martin telling her to join the Union and asking why she GIMBEL BROTHERS, INC. 895 had not joined. In the group there were 3 employees with whom DeChants had dealt as union-shop stewards. One of these stewards, Florence Lancaster, tried to pull Miss Martin off her chair and said, "She is going out of here. We won't work here as long as she is here." DeChants took Miss Martin to his office and suggested that she go home for the rest of the day. Miss Martin did so. c. On the third floor Linda Parker was employed as a sales clerk on the third floor. She was not a member of the Union. She had previously been asked by Adelaide Kramer, another employee and union shop steward, to join the Union, but had replied that she wanted to think it over. At about 7: 30 p. m. Miss Kramer again asked Miss Parker when she was going to join the Union and Miss Parker replied that she wanted more time to think it over. Miss Kramer then asked her if she knew what had been happening that day and shouted that if she did not join the Union she would lose her job. This incident took place on the selling floor in the pres- ence of customers. Miss Parker started to cry and her supervisor, a Miss Martin, told Miss Kramer to go away. Miss Kramer shouted that she would see Miss Parker in the locker room and left. Two cashiers told Miss Parker that Miss Kramer had told them not to take cash from her sales, but they did not follow these instructions. Miss Martin reported to Lawrence Russo, acting floor superintendent, that Miss Parker was too distressed to continue working. She was excused and was escorted out of the store by store police. d. On the fourth floor In the women's shoe department, on the fourth floor, a group of 15 to 17 sales- men, under the leadership of a shop steward named Pecerello, refused to work unless a nonunion employee at the handbag counter left the department. They stood in front of her with their hands folded while other personnel tried to help customers. Finally the nonunion employee asked to be reassigned to her regular station on the main floor. This was done. Conclusions The Union contends that the incidents which occurred on May 11, 1950, do not constitute violations of the Act, that there was an effort to get employees to join the Union, there was some name-calling, the methods used might not have been in the best taste or wise or effective, but there was no violence or threat of vio- lence and thus no violation of the Act. The undersigned rejects this argument, both on the facts and the law. Section 8 (b) (1) (A) of the Act was designed not only to eliminate the use by unions of physical violence and coercion but threats of economic action against specific individuals in an effort to compel them to join or assist a union " The undersigned also finds that action taken by a union which has the effect of preventing an employee from carrying out his assigned tasks and which con- duct is undertaken in an effort to compel an employee to join or assist a labor organization, is also violative of Section 8 (b) (1) (A) of the Act. The following conduct which was led, directed, or ratified by union officials and stewards was violative of this provision of the Act : 1. Massing around nonunion employees on the eighth floor while they were attempting to wait on customers, shouting at them and calling them names, and preventing them from carrying on their duties in a normal manner. "Clara-Val Packing Company, 87 NLRB 703, 704. See also cases cited in footnote 10. 896 DECISION S OF NATIONAL LABOR RELATIONS BOARD This conduct far exceeded the bounds of conversation and persuasion which Congress had in mind as permissible under the Act. (Legislative History of the Labor Management Relations Act, 1947, vol. 2, pp. 1138-1139, 1018-1033.) 2. Telling employee Greeley that there would be a union shop and she would be dismissed if she did not join the Union." 3. Threatening to stop work and stopping work in an effort to force the Company to remove nonunion employees from the selling floors. This conduct was also violative of Section 8 (b) (2) of the Act as an attempt to cause the Company to discriminate against employees because of their non- membership in the Union." 4. Telling employee Bobes that she would have to join the Union or get off the selling floor. 5. Massing in front of Miss Bobes, blocking ingress and egress to her desk, shouting epithets, and threatening her with violence because of her refusal to join the Union. 6. Grouping around employee Martin at her place of work and during working time demanding to know why she had not joined the Union, attempting to pull her out of her chair in an attempt to forcibly eject her from her place of work, and threatening to cease working as long as she remained-at work. 7. Threats to employee Linda Parker by Union Shop Steward Adelaide Kramer that if she did not join the Union she would lose her job and that if she did not join, incidents which had occurred on other floors that day would be repeated against Miss Parker. 8. Massing in front of a nonunion sales clerk in the women's shoe department and refusing to work until that employee left the department. B. The discharge of Albert E. Longman 1. Introduction Albert E. Longman began working for the Company on July 16, 1948. He left his position as a furniture salesman in another department store, Loeser's, to accept a similar position at the Company at the urging of Roland B. Tripp, then a furniture buyer, and later, furniture merchandise manager. At Loeser's Longman was a member of Local 1250 which, with Local 2 and other department store units, was then affiliated with a Department Store Joint Board. William Michelson, a former president of Local 2, was executive secre- tary of his board ; Nicholac Carnes, president of Local 1250, was its chairman. 2. The hiring of Longman in 1948 Sometime in June 1948, Michelson went to Charles H. Werber, Jr., general manager of the store, and told him that he had heard that the Company was planning to hire Longman, that Michelson wanted to object to Longman being hired, and that the best thing that could be done in the interest of good relations between the Union and the Company would be not to hire him. Michelson made these representations, he testified, because he had been told by an organizer in Local 1250 that he believed that Longman was connected with certain forces in their union which Michelson, Carnes, and the leadership in both locals opposed. Longman testified, in effect, that the basis of the opposition to him was, among other things, his advocacy in Local 1250 meetings that the leaders in the Local sign the non-Communist affidavits required in the Act. It is not necessary to 12 Seaniprufe, Incorporated, supra. 13 Pappas and Company, 94 NLRB 1195. GIMBEL BROTHERS, INC. 897 resolve that issue here in view of the fact that throughout the proceeding the Union conceded that it had an antipathy towards Longman. While neither Werber nor Michelson could recall whether Michelson gave Werber any reason for his request, they were in agreement that Werber rejected Michelson's protest and declared that the Company would hire any applicant it chose. Werber checked with Tripp and ascertained that he wanted Longman hired. Longman was employed. The date of this conference could not be fixed exactly by Michel- son or Werber, but Werber was fairly certain that it took place before Longman was hired. - -Longman was not told of that conference until 1950.14 He testified that on July 12, he told Tripp that he would accept a position with the Company. Tripp then took him to a Mr. Vassely, the personnel manager. After some conversation Vassely assured Longman that he was hired and could report for work on July 26, a date set by Longman. Longman thereupon returned to Loeser's and resigned his position and told his supervisors of• his new position. However, 2 days later, Vassely told Longman that he was sorry but the Company could not employ him because of an arrangement with Loeser's that they would not hire each other's salesmen. Longman protested he had already been hired and threatened legal action. Vassely replied that the executive board was in session and since the persons he had to consult were there, he could do nothing further that day. The next day Vassely told Longman he was sorry for the incident and that the Company had decided to employ him despite the agreement with Loeser's. Longman then told Tripp of his dealings with Vassely and Tripp asked him whether he had had any trouble with the union at Loeser's. Longman described several incidents and then Tripp told him he need- only do a good job and he would be protected. They agreed that Longman would report the next day. In later testimony, Longman stated that Tripp also told him that he understood the Union did not want him in the store and that was the reason for the decision not to hire him and not the one given by Vassely. Tripp testified that he could not recall making the above statement to Long- man, but he would not deny that it was said. He further testified he did not know of any arrangement with Loeser's to the effect that each store would not hire salesmen employed by the other store. His testimony in general corroborated Longman's as to what Longman reported to Tripp concerning his dealings with Vassely. Vassely did not testify. At the time of the hearing he was not in the Company's employ and, according to the Company, was not a resident of New York City. Both Werber and Longman were in agreement that they discussed Longman's original hiring at a later conference in May 1950. Longman testified that the following discussion took place then : I said to Mr. Werber, "I want you to let me know what happened from the time I came in this store up to now." He said, •'Mr. Longman, the first I knew about your coming in here is when Mr. Michelson, president of the union, came in here and said to me, "Mr. Werber, I understand you have a man by the name of Mr. Longman coming over here from Loeser's. I want you to understand he can't come in here." 14 For the purpose of obtaining a complete picture of the circumstances of L"ngman's discharge, it is necessary to consider and evaluate conferences and talks between company officials and union officials at which Longman was not present . In fact, Longman was not present at important conferences at which decisions concerning him were made and it is the validity of those decisions which is in issue here. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "Did you ask him why?" - He said, "No. He said you just couldn't come in here, and that is all there is to it. Period." I said, "You mean to tell me you let the head of the union tell you that you can't employ somebody?" He said, "After all, Mr. Longman, let's acknowledge it. Mr. Michelson is my boss." I said, "Mr. Werber, you mean to sit there and tell me that the general manager of a store as large as Gimbel's will sit there and tell an employee that the head of the union is his boss?" He said, `Look, Longman, I would rather be a live coward than a dead hero." I said, "I can't subscribe to that line of thinking. I guess I have a little more red blood in me." In later testimony, Longman asserted Werber had told him that after Michel- son had demanded Longman not be hired, Werber issued orders to Vassely or to the employment office that Longman could not be hired and that this decision was rescinded after Longman threatened to sue. Werber denied that he ever spoke to Vassely about Longman's hiring. He maintained that he told Longman that the fact he was engaged was evidence that the Union could not dictate who should be hired. Werber denied that he told Longman that Michelson was his boss and contended that he explained to Longman that the existence of a labor contract took away full freedom of action by the Company and required it to bargain with the Union and its leaders. Later on, Werber testified that he did not recall whether or not he did say in the course of the conversation that Michelson was his boss, but doubted it. Conclusions The General Counsel and the dischargee contend that Longman was refused employment in 1948 at the demand of the Union and that this decision was changed only because Longman threatened a lawsuit. It is further contended that such conduct in 1948 is indicative that there would be and was a yielding to similar union pressure in 1950. The undersigned does not agree with the con- tention that Longman was refused a position in 1948 at the demand of the Union. The only direct evidence that there was such an abject surrender is Long- man's testimony that in 1950 Werber admitted to him that pursuant to Michel- son's demand he had directed that Longman not be hired and only changed this order when Longman threatened a lawsuit. In his original description of his conversation with Werber, Longman made no mention of such an admission. According to him, he expressed amazement when Werber told him that Michel- son had demanded that he not be employed, but there is nothing in that testimony that Werber acquiesced in Michelson's demand. Also, Longman's later testimony is contradicted by that of Werber and Michelson. It is also contended that statements by Werber that Michelson was his boss and that he would rather be a live coward than a dead hero as well as the gen- eral concession that the Company had difficulties with the Union from time to time, all tend to prove that the Company was afraid of reprisal and agreed to Michelson's demand. This contention proves too much. If the Company were in such great fear of the Union a lawsuit with one individual would undoubt- edly have seemed a better alternative than a clash with the Union. In fact, Longman was put to work and there was no effort to have.the Company take any action against him for 1i/2 years. When a complaint was made against him, the admitted sequence of events shows that the Company did not jump to com- ply with the Union's request then. GIMBEL BROTHERS, INC. 899 Tripp did remark to Longman that he thought the Union was the cause of his difficulties in employment. This is not surprising in view of Werber's testi- mony that after his talk with Michelson, he checked with Tripp to find out about Longman and he then may have told Tripp of the Union's demand. Vassely's claim of an agreement with Loeser's not to, raid each other' s sales force was not corroborated by other witnesses. However, as far as the record indicates, his actions and statements did not indicate that he or the Company were discriminatorily motivated and the undersigned does not believe that such an inference is justified. Under all the circumstances, including an appraisal of the testimony of the witnesses, the undersigned is not persuaded that it has been established by a pre- ponderance of the evidence that the Company yielded to Michelson 's demand in 1948 that Longman not be hired. 3. Longman's relations with union members The evidence is clear that the antipathy of the Union towards Longman ex- pressed by Michelson to Werber in 1948, continued during his employment. There were approximately 50 furniture salesmen who worked on the 2 furniture floors. They were under the joint supervision of Tripp (from a merchandising standpoint) and Joseph W. Feehan, superintendent of the furniture division (in charge of personnel matters). Except for a few salesmen, all the sales- men were divided into 2 squads or teams. During the time here relevant, Fee- han had designated Maxwell Schneider and Max Greenberg as team captains. Both were union shop stewards. Schneider also served as executive store chair- man or chief of all the shop stewards for about 4 years until sometime in 1950. Greenberg was captain of Longman's group. The 2 captains did not exercipe any supervisory authority and chiefly took care of certain records. They did have certain duties in connection with the distribution of mail orders which will be described in detail later. At the time of Longman's employment there was a collective bargaining agreement in existence which required employees in the unit (including fur- niture salesmen) to join the Union within 60 days of their employment. After August 22, 1948, there was a new clause in effect which provided that no one was eligible for membership in the Union until they had •been employed 60 days, but could join afterwards. Schneider was told by Michelson, shortly after Longman was hired, that the Union had had trouble with Longman while he was employed at Loeser's. Schneider told Greenberg and other salesmen that Longman was antiunion. About a month after he was employed, Longman told Greenberg that he wanted to become a member of the Union, but Greenberg told him that he was busy and would talk to Longman when he got good and ready'5 Neither Greenberg nor Schneider even asked Longman to join the Union. Both testified that they considered it a privilege to belong to the Union and expected Longman to take the initiative. Longman testified that he waited for some word from the Union since he had originally expressed his desire to join the Union and he was the only nonunion employee among the furniture salesmen. When the Union put on a drive to sign up nonunion employees on May 11, 1950, Longman was not approached. During the period of his employment, Longman was subjected to certain harassments which could only be attributed to his nonmembership in the Union. u Greenberg testified that he directed Longman to the Union's offices but Longman never did anything about it. The undersigned credits Longman's version. 227260'-53-vol. 100-58 900 DECISIONS OF NATIONAL LABOR• RELATIONS BOARD All the salesmen had "partners" who helped each other on incidental matters. Longman could not persuade any salesman to make such an arrangement with him. When he did persuade a new salesman , Turner, to become his partner, Turner soon told him that he would no longer be his partner. Later, Turner told Longman that the Union had forced him to break the partnership. Long- man then formed a partnership with another salesman , Edward Siegal. Siegal shortly afterward told Longman he would continue to be his partner , but would not talk to him because the men had received instructions from the Union not to do so. Longman further testified , and the undersigned credits his testimony, that he on occasion was not spoken to by the salesman and that on other occasions there seemed to be deliberate efforts to prevent him from getting customers on the selling floor or orders on the telephone. In April or May 1950, Schneider told a bedding buyer, Herbert Kahn, that the rest of the salesmen would not attend a promotional dinner if Longman was invited. The dinner was canceled. A more concrete demonstration of union animus occurred in the distribution of orders received by the Company by mail. Not all mail orders were sent to the furniture department ; only those on which there were less than 250 items in stock. Company records show that in the period from February 1949 until June 1950, mail and telephone orders on which commissions were paid to salesmen totaled $21,164, of which telephone orders constituted 37 to 41 percent. Mail orders for the furniture department were sent to Feehan. He tried to make an equal division between the two teams and sent proportionate shares to the team captains. According to Feehan, whose testimony is credited, mail orders were supposed to be distributed in numerical order to the salesmen and each one was supposed to receive an equal share without requesting it, and the captains knew of this procedure which had been established for about 4 years. Greenberg, who was team captain of Longman's team and a union shop stew- ard, admitted he never gave Longman any mail orders or offered to give him any and that all the other salesmen in his squad, except one who told Greenberg he did not want any, received their approximate proportionate share. Green- berg maintained that Longman did not ask for any orders, but according to Fee- ban's credited testimony, this was not necessary . Longman admittedly did not complain either to Greenberg or Feehan and Feehan did not know that Longman was not sharing in the distribution. It is further contended that the proportionate share of each salesman in the mail orders was small . While company figures indicate that this was so, it was not so small an amount or so insignificant a form of discrimination as would warrant disregarding the practice. Longman was being discriminated against in the distribution of mail orders and to that extent was working under condi- tions different from those applicable to other salesmen. Greenberg was respon- sible for this discrimination which the undersigned concludes .was based on Longman's nonmembership in the Union. The undersigned finds that by the above conduct of Union Shop Steward Greenberg, the Union caused the Com- pany to discriminate against Longman in the terms and conditions of his em- ployment because of his nonmembership in the Union and in violation of Section 8 (b) (2) of the Act. While there was discrimination in fact against Longman the undersigned credits Feehan's testimony that he did not know there was such discrimination. Nor did Longman complain to any of his supervisors. Under these circumstances the undersigned concludes that while the Company technically violated Section 8 (a) (3) of the Act, it is not necessary to require it to take specific remedial action in view of other action which will be required of the Union. GIMBEL BROTHERS, INC. 4. Longman engages in an outside business 901 In November 1949, Longman was offered a concession to sell furniture tables in a gift shop owned by M. D. Clapp at Baldwin, Long Island, a town about 25 miles from New York City. Longman went to Tripp and outlined the proposal and asked Tripp whether he had any objections. Tripp had none and gave him permission to go ahead . Tripp testified that he gave his permission because from Longman's description he considered the proposed business to be too small to be of any concern to the Company and that at that time he knew of no rule prohib- iting an employee from engaging in an outside business . In January 1949, Long- man entered into an agreement with Clapp whereby they agreed on a percentage distribution of the proceeds of sales of any furniture supplied to the store by Longman. This arrangement continued in effect throughout Longman's em- ployment with the Company. Longman stocked the Baldwin store with occasional tables and novelty items. The tables were manufactured by the Ferguson Company, a concern with whom the Company did not do business . While there is a dispute between Tripp and Longman as to whether Tripp actually suggested Longman deal with the Ferguson Company, they are agreed that they discussed Longman's using that line and Tripp told him whom he could deal with at that company. The Ferguson line of tables differed in styling and price range from those sold at Gimbel's but Gimbel's did sell similar tables which served the same functional purposes . Longman spent no time at the Baldwin store except to take care of an occasional difficult customer. He would deliver tables to the store from the stock he kept at his home in Baldwin and would polish tables prior to their delivery to customers. In addition to the business at the Baldwin store, Longman, sometime in 1950, furnished two model homes near Baldwin after first suggesting to Tripp that Gimbel's do it and being told by Tripp that the Company was not interested in such a venture. It is undisputed that Gimbel's also does business on Long Island and is in competition with stores on Long Island which sell items which are the same or similar to items it carries . The Company has charge accounts in Baldwin, maintains United Parcel Service to that area, and has a special tele- phone office in nearby Hempstead, Long Island, where orders may be placed for merchandise. Voluminous records presented by the Company indicate that it does a substantial business on Long Island and in the Baldwin area , although- it could not present a detailed breakdown of furniture or table sales and deliveries in the Baldwin area. Gimbel's, of course, sells occasional tables and has in the past had special promotional sales of these tables. In addition, the store service bureau of Gimbel's receives and investigates complaints by customers that merchandise can be bought cheaper at certain stores than at Gimbel's and that the store's slogan, "Nobody, but nobody, undersells Gimbel's:" has not worked out in their case. Investigations are made and if the com- plaints are found justified, adjustments are made. Prices in stores on Long Island are matched by the Company regardless of the size of the store involved. 5. Complaint by the Union concerning Longman and the sequence of events Michelson testified that at the beginning of 1950, he began receiving reports from salesmen that Longman was engaged in an outside furniture buisness. Michelson , who had been employed by Gimbel's as a furniture salesman from 1934 to 1938, considered this a violation of store rules and regulations and a practice which the Union opposed as a matter of policy . He went to Werber 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sometime in January, told him of the reports he had received about Longman, and wanted to know what the company policy was with respect to employees engaging in outside business. Werber replied that company policy was that employees could not engage in outside business and he would investigate the Union's charge as to Longman. Werber then asked a Mr. Brown, chief of the store's bureau of investigation, to investigate. Brown, in a report dated February 3, 1950, reported in substance: Longman had a table and lamp concession at the store of M. D. Clapp, Baldwin, New York, and devotes his time off there selling tables and lamps. It is a small store and the selling space for the concession is smaller than the workshop space used by Mr. Clapp, who makes custom built lamps. Longman employs a girl to handle his business, and should he be needed, she makes appointments for when he will be there. All tables and lamps delivered to the store are consigned to M. D. Clapp. It seems to be common knowledge around the store that Longman has this concession. He himself makes no effort to conceal it. Mr. Tripp is aware of Longman's connection at Clapp's and that Longman has this concession for about a year. According to Tripp, Longman has an investment of about $700 in Fer- guson tables and last year only cleared a profit of about $400. Tripp is of the opinion that this is a hobby of Longman's and Tripp sees no real harm in it in so far as Gimbels is concerned. According to Tripp any question of Longman's diverting of Gimbel cus- tomers to his Baldwin store is "ridiculous." Tripp notes in this con- nection that Longman carries only Ferguson tables, and also that Long- man is running one of the highest sales records of his department. Tripp stated that if management objected, he felt certain Longman would dis- continue if it was a question of his not being able to serve two masters faithfully. Shoppers who told Longman they were from a-Long Island town near Baldwin and asked to see some Ferguson tables which Gimbels does not carry, were told by Longman that Gimbels does not carry Ferguson tables, and Longman endeavored to interest them in other tables on the floor. Longman has resided in Baldwin for quite some time, has a son at Yale College, and apparently enjoys an excellent reputation. It might be of some interest that there is no indication on Longman's application that he is a member of the union So far as could be deter- mined, he has never paid any dues to date. From this point on other store executives played a part and it becomes important to note their positions in the Company's heirarchy. The 33d Street store, the only one involved in this proceeding, is one of a group operated by the Company. Joseph Eckhouse is a vice president in direct charge of store operations. Of the four main and coequal divisions in the store organi- zation, one, service and general operations, was directed by Charles H. Wer- ber, Jr., as general manager. John McCarthy then was an assistant general manager in charge of personnel relations. Another division, the merchandis- ing division, was headed by Donald Dugan, general merchandise manager. Ro- land Tripp was then furniture merchandise manager. The central management also has its offices in the 33d Street store building. It sets policy for the stores and its staff, generally, does not take part in store operations. - Louis Broido is executive vice president of the Company. In con- GIMBEL BROTHERS, INC. 903 nection with union problems at the 33d Street store, Broido has since 1937 par- ticipated directly in the negotiation of union contracts and in the settlement of disputes and grievances that could not be adjusted on a lower level. Melvin Levy is an assistant to Broido. In 1950, he met regularly with union representatives in grievance meetings concerning the 33d Street store. His job, in this connection, was to free Broido and Werber from direct negotiations with the Union in the first instance. Levy kept Broido posted on problems. Levy and Broido were responsible for the ultimate decision to discharge Longman. Their conduct and motives were closely examined at the hearing and will be treated in detail here. Werber after receiving Brown's report sent it to Dugan with the following note: FEBRUARY 8TH, 1950. To : Mr. D. DUGAN. I am sending you herewith a copy of a report from Mr. Brown with reference to the investigation he made regarding the Longman situation. This was done at my request because Mr. Michelson paid me a visit and brought to my attention the fact that Mr. Longman was in the furniture business for himself and Michelson wanted to know whether or not the firm countenanced in principle such activities as this. I have not given Mr. Michelson any information as to my findings as yet but thought you would like to have this. It may be something we may want to make a decision on. C. H. WERBER, Jr., General Manager. Werber testified that he ended the note as he did because he did not wish to try to dictate a solution to Dugan. Werber took no further action until May 1, nor did Dugan. Tripp spoke with Longman in February and told him that the Union wanted to know how the Company let him run a business and still work for it.16 Long- man reminded Tripp that the latter had given him permission. The next day Longman showed Tripp pictures of the Clapp store and gave him figures showing the extent of the business. Total sales in 1949 were under $2,000. From January 1 to June 17, 1950, they totaled about $900. Total inven- tory was around $900. Tripp stated the business was not competitive with Gimbel's, the Company was not interested in it, but the Union had brought the matter up. He advised Longman to forget the whole thing and he would let him know if there were further developments. Tripp testified he discussed Longman's business with McCarthy, Dugan, Brown, Feeban, Werber, and Levy and while he could not relate a specific con- versation he obtained from each of them the reaction that this was an oppor- tunity to dispense with Longman's services. Tripp could not remember the trend of any conversation. The undersigned is convinced from a study of the testimony that Tripp was quoting the reason the store executives gave him for the Union taking the action it did. This is shown by the fact that Tripp named McCarthy who had a dislike of the Union and who, as the evidence shows, opposed his discharge. 11 It is not clear how Tripp learned of the Union's complaint. He denied seeing Werber's note to Dugan. Tripp's recollection of his conversations with Longman and other circum- stances was very hazy. In general, the undersigned has credited Longman's testimony as to his dealings with Tripp except as otherwise noted. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the witnesses were unable to fix a definite date, the Union first raised Longman's case at a grievance meeting sometime in March. Anna Blanck, the chief union representative at that meeting, told Levy of Michelson's conversation with Werber in January that no reply had been received to the Union's request for a statement of store policy, and asked whether the Company really had a policy against employees engaging in outside competitive business. Levy re- plied that he had correctly stated store policy but that he would check into the matter further. This was the first information Levy had about any difficulty concerning Longman in 1950. He testified that he may have heard of the Union's objection to Longman in 1948 from Vassely, but he was not certain. Levy discussed the Longman case with Werber, read the Brown report, and became fully informed as to Longman's prior difficulties with the Union. Sometime before another grievance meeting with the Union, Levy had a dis- cussion with Werber in which it was agreed that the policy be reaffirmed and Longman would be instructed to give up his outside business. Broido also directed that course of action in a conversation with Levy. When Levy reported this decision to the Union at an April grievance meeting they objected. Anna Blanck testified that she took the position that union mem- bers would have been discharged instantly if the Company discovered that they had engaged in business and that Longman was being given special treatment because he was not a member of the Union. She mentioned the case of a union member who was advised by the Union to resign when he went into a business. She also mentioned a piano salesman, William Brest, who had been warned by his buyer that if he took a part-time selling job, he would be discharged. She warned Levy that she would tell employees that if they were caught engaging in an outside business the Union would fight to get them as much consideration as Longman. Miss Blanck further testified : We wanted to know whether that policy applies equally to union men and non-union men. It was no secret to Mr. Levy or to anybody else that we considered Longman anti-union and would have liked to have seen him dis- charged, and we felt that if any of our union people had been in business, they would have been discharged instantly and not been given the same consideration that Mr. Longman was being shown by the company. Levy's version of the conference differed only in detail from that of Miss Blanck. He testified that the Union took the position that existing company policy required Longman's discharge, if he were given time to wind up his busi- ness the Union would fight for like treatment for its members. Other significant portions of his testimony are: Q. When on the first occasion was something said to you concerning the the discharge of Longman? Trial Examiner FEII.ER. By Miss Blanck? Q. By Miss Blanck? A. Well, sometime I think around April, when I advised her that I had checked again on the policy of the company and the policy was as I thought it was, and described it to her and told her that it was to prohibit any employee from engaging in an outside competitive business, that that was it. Her reply, in substance, was, do you think that is why we have been talking to you all these weeks? We want Longman out of here. s s * s s s n The WrrNESS. I think Ann Blanck was the chief spokesman for the union at this meeting. Mr. Halpern may have been there and he may have GIMBEL BROTHERS, INC. 905 contributed to the conversation. There may have been other officials at the time. I remember very clearly being asked whether I thought that was the purpose of the union in coming to me, in order to get this kind of answer, now that the man has been caught and that he has been in business for a long time, that we would now give him an opportunity to close his business rather than discharge him. The position that I took with the union was that they were not in a position , and not-had not told us who we were going to hire, and they were not going to tell us who we were going to fire. We had the policy. It was an important policy to us. We would propose to enforce the policy by telling the man to get out of the business , and we were not going to discharge him. A. Yes. I have to point out to you that in the early conversations with the union , the union requested a statement, and more than a statement. The union requested either a reaffirmation of our policy or a statement to the union that the policy was no longer in effect with respect to prohibiting outside business on the part of our employees. That when I undertook to reaffirm the policy by advising the union that we were going to insist upon Longman 's giving up his business , it then became evident to me that the union was interested in two things : they were interested in knowing what our policy was for reasons which I will describe a little later ; and they were also interested to get Mr . Longman out of Gimbels . There is no question about that . There had been a ques- tion in my mind on that up until around the end of April when I believe, on the basis of our conversation , that what the union wanted was a state- ment of policy for good and legitimate reasons, in my opinion , which I will describe subsequently. At the end of April, it became clear to me, that while that was a matter of paramount interest to them, to know what the policy was and to know whether we were going to enforce the policy, they had another objective in mind in this particular case, and that is they did not like Mr. Longman and they wanted him out of our employment. Levy refused the demand of the Union to discharge Longman and stated that the policy would be enforced by requiring Longman to give up his outside business. Levy then went to Werber and asked that action be taken to implement the decision which had been announced to the Union. On May 1, Werber sent the following note to Dugan and Tripp: MAY 1sT, 1950. To Mr. DUGAN, Mr. TRIPP : Under date of February 8th, 1950, I sent you memorandum with refer- ence to an investigation by Mr. Brown regarding salesman, Albert Longman, 601-21, whom the union claimed was in business for himself and wanted an expression of opinion from us as to our policy in this regard. It has been brought to my attention that this matter will be again brought up on behalf of the union as to an expression of policy. Since we feel that our policy is not to have anyone on their free time engage in the identical business, I would suggest that Mr. Longman be spoken to by Mr. Tripp and an explanation given to him that he will either have to discontinue this outside endeavor or resign from our employ. C. H. WERBER, Jr. cc Mr. Eckhouse, Mr. Broido, Mr. Levy. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tripp spoke with Longman on receipt of the note and sent the following communication to Werber : MAY 1, 1950. To Mr. C. WERBER, Jr. cc Mr. D. DUGAN. From R. B. TRipp. In accordance with yours of May 1st, Albert Longman-601-21 has been advised by me that it will be necessary for him to "discontinue his outside endeavor or resign from our employ." He has agreed to discontinue this outside business within the next sixty days and is writing me to this effect. (S) R. B. Titipp. Broido sent Werber this letter on May 2 approving his action : MAY 2ND, 1950. To Mr. CHARI.E:s H. WERBER, Jr. From Louis BROIDO. I have a copy of your memorandum of May 1st to Mr. Dugan and Mr. Tripp, and accompanying document regarding Mr. Albert Longman, 601-21. I am certain that you have come to the right conclusion regarding Mr. Longman. I think you should continue to have this matter investigated by Mr. Brown, and if Mr. Longman does not discontinue his business he should be asked to resign. I think if we permit this sort of thing you will open up Pandora's Box and you will have every salesman engaged in the furniture business outside. You will recall that some years ago we found one or two salesmen dis- tributing cards to discount houses to whom they were referring our own customers-probably because they were getting a bigger commission there than we were paying them. I do not see how we can control these practices unless we exercise firm discipline in this matter. Louis BROIDO. cc: Messrs Joseph L. Eckhouse, Donald Dugan, Melvin Levy. On May 5, Longman at his own request had an interview with Werber. Levy came in after the conference had started and stayed at Werber's request until the end. While Longman and Werber agreed that Levy entered shortly after the conference had started it could not be precisely determined how much of the conversation, if any, Levy missed. Longman testified that after he and Werber had discussed the circumstances of his hiring in 1948, which testimony has been considered in another part of this Report, the conversation continued : I said, "Be that as it may, if I did give up this business , would that be the end of it? Could I continue in employment here peacefully?" He said, "Mr. Longman, I don't think so. This union is going to pursue you until you get out. My advice to you would be to try and find another job." 1k I told Mr. Werber then that I felt the same way about it, had already made an application at Altman's, and was hoping for a call from there. I told him that I told Tripp about it and Tripp said he would try to inter- vene there at Altman's and try to get me this job. Q. (By Mr. Geltman) Had Tripp said that to you? A. Yes. GIMBEL BROTHERS, INC. 907 Q. Was this shortly before you saw Werber? A. Yes. I said to him, "Will you please just let this thing stay for a while until I can make some sort of arrangement, either getting the new job or getting rid of this business?" He said, "Yes, we will let it go So I left his office. Longman and Werber were in agreement that Longman did tell Werber he had had permission from Tripp to engage in business. Werber stated, accord- ing to his testimony, Tripp had been in error and there had been a violation of store policy, but that since he had had permission it explained the length of time given him to make up his mind. Werber denied that the conversation ended on the basis of Longman having additional time to make up his mind whether to resign or give up his business. According to Werber, the under- standing was that Longman was to have more time to make another connection and was resigning from the Company. Levy corroborated Werber on this point and added that a period of 3 or 4 weeks was mentioned. In view of later events and the discussion on May 5 of the possibility of Longman obtaining another position, the undersigned credits the testimony of Werber and Levy that they understood Longman was resigning at a not too distant, but unspecified date. Approximately 3 weeks after the May 5 conference, Longman asked Tripp whether he had done anything about the Altman matter and Tripp replied, according to Longman's credited testimony, that he should forget about the whole thing, it would probably blow over, and he should just do his job. Longman also spoke with Robert Riesner, field review supervisor respon- sible to McCarthy and Overcash, the personnel director. While both agreed at the hearing that they had spoken with each other, their respective versions differed sharply. Longman testified that Riesner summoned him a day or two after the conversation with Werber and Levy on May 5, told him he had a fine record, but the Union had told the store he could not have outside business and suggested Longman put it in his wife's name. Longman refused that suggestion. Riesner then stated, according to Long- man, the store did not want him to give up his business, the Union was only trying to use it as an excuse to have Longman discharged, and he should go about his business until Riesner gave him further instructions. Longman also testified that he did not know Riesner's position with the Company at that time, but assumed he had been sent by Werber and that Riesner's statements superseded what Werber had told him on May 5. It was on that basis, Longman asserted, that he did nothing further about giving up his business. Riesner never returned, according to Longman. They met briefly on June 20, the day Longman was discharged, and then Riesner refused to speak to him. Riesner placed his first conversation with Longman in January or February. At that time, Riesner explained, an assistant buyer suggested he talk to Long- man about the latter's problems. On this first occasion, Riesner testified he merely listened to a recital of Longman's difficulties with the Union and that there was a problem about an outside business conducted by Longman. Riesner promised to check further and talk with Longman again. Riesner then went to McCarthy and was told by McCarthy that operating a business in competition with Gimbel's was a violation of store policy, but Riesner should "reassure" Longman and tell him McCarthy would look into the matter," 17 McCarthy testified at the hearing but was not asked any questions relating to Lone- man's discharge. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the latter part of February, according to Riesner, he told Longman about the store policy, that there would be further investigation, and suggested that possibly one way of "getting around the thing" would be to transfer the business to a relative. This suggestion was strictly his own idea, Riesner testified, and he so told Longman. There were no further talks between them, Riesner stated, except that in May or June, Longman told him in passing that things had gone awry. Whether they had one talk or two, Riesner's suggestion to Longman that he maintain his business through the use of a dummy transaction carried the very definite implication that the Company was not vitally concerned in Longman's outside business. In view of evidence in the record of McCarthy's attitude of opposition to the Union and his opposition to the later discharge of Longman, it is more than likely that Riesner "reassured" Longman by making the statements attributed to him by Longman. The undersigned credits Longman's testimony including his fixing of the date of this conversation. Both Riesner and Longman are agreed in their testimony that Riesner did not purport to relay instructions from Werber and that they had no further discussions before' the day of the discharge. After the grievance meeting Levy had with the Union prior to May 1, concern- ing the Longman case, there was no further consideration of his case in any formal grievance meeting. Thereafter, Levy had several informal discussions with Schneider who' then was acting for the Union in grievance negotiations. Levy testified that before the May 5 meeting with Longman, he told Schneider Longman was being given 60 days to wind up his business (this statement was based on Tripp's memorandum to Werber on May 1). Schneider replied that that was not good, there was discrimination against a union piano salesman who had been forbidden to take an outside job. He also made clear that the Union had never liked Longman. After May 5 Levy told Schneider, in view of his under- standing that Longman was leaving, that the entire problem would soon be resolved. Between June 1 and 9, Schneider complained to Levy that not only had there not bieen a definitive reply on company policy, 'but that Longman was actually using store telephones on matters for his outside business. Levy then telephoned Werber and complained that the situation was' intolerable since Longman had not yet left and was still operating his outside business. Werber suggested that Levy take the matter up with Tripp. On June 9, Levy sent the following letter to Tripp: JUNE 9, 1950. To Mr. R. B. TxuPP. cc Mr. D. DUGAN, Mr. C. WERBER, Jr., Mr. L. Bitorno, Mr. J. ECKHOUSE. From MELVIN LEvY. You will recall that on May 1, 1950, and earlier, Mr. Werber wrote to you about a salesman, Albert Longman, 601-21, suggesting that you speak to Mr. Longman concerning the discontinuance of his outside business. Shortly thereafter Mr. Werber and I met with Mr. Longman and confirmed our policy that it is not permissible to have an employee engage in a similar business on his free time. Mr. Longman's reply was that he did not wish, in the im- mediate future, to discontinue his outside business and that he expected that within a few weeks, he would successfully conclude an attempt to find em- ployment in another store. As you know, Mr. Longman has not yet left our employ. It is reported by representatives of Local 2 that he is continuing to carry on this outside business and that he is using our telephones on our time openly to place orders and to carry on other business connected with his outside endeavor. GIMBEI.' BROTHERS;- INC. 909 It is of course not possible for me to ascertain whether the Union's alle- gations are truthful. In any case, however, in view of Mr. Longman's un- willingness to close his outside business promptly, I should like to suggest that you might wish to advise him immediately that his very early departure is desirable. Pending that, he should certainly refrain from using our facilities in any way to assist him in carrying on his outside business, if, in fact, he has been doing so. I would appreciate very much hearing from you whether you concur in this view and, if you do, whether your conversation with Mr. Longman succeeds in setting a very early date for his resignation. MEIvIN LEvY. ML/m On June 12, Tripp called Longman to his office and said, according to the latter's credited testimony : The WITNESS. Mr. Tripp said, "Al, this is it. Here is a letter from Broido's office." Q. (By Mr. Geltman). Who was Broido? A. Executive vice-president for the store. Trial Examiner FELLER. Go ahead. THE WITNESS. Mr. Tripp said, "Here is a letter from Mr. Broido. He said you have to give up this business immediately or be fired, or you may resign." I said, "We have been through this so many times. You think they mean it this time, huh?" He said, "I guess we can't go any higher than this. You know, he is the works around here." So I said, "Well, I guess that is it, then. The only thing for me to do is to give it up. But how the hell am I going to do all this right away?" Longman suggested the Company buy his stock. Tripp took this suggestion to Dugan who rejected it on merchandising grounds. Longman also decided to see Broido and tried to arrange an appointment later that week, but was referred by Broido's office to Levy. Tripp also went to Levy on June 12 or 13 and, according to the latter's credited testimony, said Longman was now willing to give up his business and wanted to remain in the Company's employ.1B Levy replied that Longman had changed positions several times and it was doubtful whether he would be given another opportunity. Levy also said that it was necessary to enforce company policy, otherwise the Union could maintain later that Longman had been given prefer- ential treatment. Tripp left the matter in Levy's hands, but stressed Longman's ability as a salesman. Levy then communicated with McCarthy and told him that in his opinion Longman should be discharged. McCarthy opposed this move. A meeting of store executives was then arranged for June 14 to consider the Longman case. In addition to McCarthy and Levy, Eckhouse, his assistant, Osterweis, and Dugan were present. Levy stated his position stressing policy arguments but all the others, with perhaps one exception, were in favor of giving Longman another opportunity to resign or dispose of his business. Levy took the initiative in attempting to arrange another meeting. Levy testified that he was dissatisfied with the results of the June 14 meeting because in future arbitrations the Union would have additional ammunition in view of IsTripp could not recall such a conversation , but did recall discussing company policy with Levy in some conversation. Levy's testimony is credited. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what was being done in the Longman case, that there was a disciplinary problem caused by Longman's flouting of a store rule, and lastly personal annoyance with Longman. Levy reported to Broido who agreed with him and told' him that the Longman matter would be added to the agenda of matters he would take up with Eckhouse. A meeting was arranged for the next day, June 15, a Thursday. Levy notified Gordon, company counsel , and Werber of the scheduled meeting. The June 15 meeting was attended by Broido, Levy, Gordon , Eckhouse, Mc- Carthy, Osterweis, Werber, Pierce, an assistant to Werber, and Dugan. When the Longman case was reached, Levy was given another opportunity to restate his arguments. Levy testified that the Union had charged that the Company was discriminating in favor of nonunion employees and it would defend its members in future arbitration proceedings, but nevertheless the Company had given Longman a chance to conform with store policy. Now he had "flip-flopped" and instead of resigning seemed to want to give up his business and stay in the Company's employ. Levy also contended that he would be faced withi an impossible situation with respect to future cases, and that it was necessary for the maintenance of discipline to show that the Company could not be "pushed around" by an employee who would do what he liked. Levy maintained that the Company had tried to preserve Longman's employment because he was a good salesman, but it could not do it any longer . According to Levy, Werber took the position that Longman should be discharged for violation of the policy (and Werber so testified ). Pierce agreed . Gordon agreed and stressed diffi- culties in future arbitrations unless action was taken . Dugan stated he would like to keep Longman but would bow to the judgment of the group. McCarthy took a similar position . Eckhouse stressed the need of a quick decision. Broido, according to Levy, declared that it was necessary to follow Levy's recommenda- tion and referred to his memorandum of May 2, in which he had said that employees could not be permitted to be in business with Gimbel's, he had had trouble with this problem before and did not propose to have additional trouble in the future. Levy recalled that someone said "this commie union had been gunning for this guy for a long time," to which Levy replied : A. In substance I said , this is not a matter of the union's wanting this guy out. Of course they want him out. And of course they have wanted him out. We have kept him in . We have been mindful of the merchandise people's desire to keep a good salesman . We have been mindful of other considerations. This is a matter of the store's own operation and its own interests. Eckhouse bowed to Broido's judgment and thus committed the store to Long- man's discharge. Although he was not instructed to do so, Levy took it upon himself to direct Personnel Director Overcash to discharge Longman. Levy testified that he telephoned Overcash on June 15 after the meeting broke up at about 5: 30 p. m. Overcash testified that he first received instructions on June 19. This conflict was not resolved. Actually, Overcash first tried to reach Long- man on the 19th and the discharge was made on June 20. Broido testified at length concerning his part in the Longman case. He testified he told Levy on May 2 that he was sending a memorandum to Werber approving his statement of policy because he was not sure the matter was being pursued vigorously and he wished to indicate it should be carried out. Broido received reports from Levy from time to time, including Levy's report that Longman might get a job elsewhere . Broido did not clearly recall these reports in any detail. GIMBEL BROTHERS, INC. 911 Continuing his testimony, Broido stated that Levy told him in June that Longman was still in the store. When Broido asked him why Longman had not been discharged, Levy told him the case had not been finally settled . Broido declared that the matter had gone on too long, it was serious , it was not receiv- ing the proper attention of the 33d Street staff, and he would add it to a list of items he would discuss with Eckhouse Broido knew of the Union's dislike of Longman. Broido summarized his position at the June 15 meetings as follows: Well, I stated to Mr. Eckhouse and his associates in the 33d Street man- agement that it was inconceivable to me that they should let this thing go on. This was something that was fundamental to the conduct of a retail store. This was no special rule of ours. Everybody in the retail business has the same attitude. You cannot have four thousand employees in competition with you. This is a fundamental principle and it was a singular want of intelligence on the part of Mr. Tripp to have a man working for him engaging in that kind of business if he knew it. Since we had determined that he should dispose of it, he -should either dispose of it or leave. I thought the matter should not be trifled with. They would ruin this business if they keep on palliating with this thing and just playing ball with it; and, I thought Mr. Longman had received sufficient opportunity to dispose of this small business and that he should now be discharged. Mr. Eckhouse said, "Is that your opinion? I will do anything you say." I said, "That is my opinion. He should be discharged." He said, "All right, we will discharge him," and that was a settled matter as far as I was concerned, and we went on to other things. There was an effort by some of those at the meeting to have Longman given an- other chance, but Broido took the position that he had had enough chance and another chance which would drag into the summer would not cure things and if he were not discharged there would be a repetition, with a resulting breakdown in the policy. On Friday, June 16, McCarthy summoned Longman to his office. Dugan was also present. McCarthy insisted on an immediate answer as to whether Longman intended to give up his business or resign. Longman replied that he would sell his stock to Clapp on a deferred payment basis. McCarthy or Dugan said that it was all right, if he sold it at cost 19 Longman then decided to see Broido having in mind that if he explained the entire matter to top management the decision might be different. He was re- ferred to Levy, but did not go to Levy. Longman, on thinking matters over, felt he was not being dealt with properly and that`the Company had changed position and confused him. On Saturday, June 17, Longman asked Tripp for a week's leave of absence so that he could get legal advice. Tripp referred him to McCarthy. McCarthy told Longman he had agreed to sell the business but now was changing his mind. Longman replied that he wanted to find out whether he had to sell. McCarthy said if he was going to talk that way lie had better quit. Longman then said that he would sell the business but needed a leave of absence to help Clapp take it over. Longman was given a week's leave and signed an agreement of sale with Clapp that day. 10 These findings are based on Longman's testimony . McCarthy did not testify as to this phase of the case . Dugan testified and maintained that he recalled very little of the Longman case except that he would not have insisted Longman resell his stock at cost. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 20, Overcash told Longman-that he had orders to discharge Longman unless he resigned. Upon his refusal to resign, Overcash told him he was dis- charged for violating a store rule by operating an outside business. 6. Company policy against employees engaging in outside business The Company contends that Longman was violating a rule or policy forbidding employees to engage in outside businesses . The General Counsel and the dis- chargee contend that there either was no such rule or that if there had been one, it was not in force or effect at the time it was applied in Longman's case. Much testimony was presented as. to the scope of the policy and its application. The policy, it is admitted, was never set down in writing nor was there any general announcement of it to employees . Werber testified that the store policy was that employees were not permitted to engage in outside business and that it was not formally announced because it is a matter of common knowledge that an employee would not be expected to go into business in competition with his employer. The penalty for violation of the rule according to Werber was discharge unless the employee gave up his business or resigned. Werber further testified he considered Longman's business as competitive with Gimbel's and thus in violation of store policy because it was in a trading area served by Gimbel's and he sold furniture tables. The fact that Longman sold a brand of tables different from any sold at Gimbel's made no difference , accord- ing to Werber, since the Company sold tables which would serve the same purpose. Broido similarly testified that there is a policy that employees should not be in the retail business. Otherwise, he declared , all employees would be in busi- ness and competing with Gimbel's. Other points he made in his testimony were : The Company has watched carefully to see that buyers are not in business in - competition with the Company and do not have relatives in a manufacturing business from which Gimbel's make purchases. The Company has refused to sanction small investments by executives in busi- ness which sell products to the Company. The Company faces severe competition in an area of hundreds of square miles and does not want its employees to add to that competition. There are gradations in the application of the policy, but a substantial in= terest in a competing store would be considered by Broido as violative of the policy. The store expects to be the beneficiary of business from friends and relatives so that the policy forbids employment in other retail establishments. The policy applies to all departments in the store nor is it restricted as to the location or the size of the competing business. The policy is predicated on the idea that if every employee engaged in retail business within the 250-mile area Broido considered competitive with Gimbel's, a lot of business would be diverted from the store. Broido further testified he relied on Levy's report to him that Longman was in some kind of furniture business . Broido declared the exact nature of the business was unimportant because it would be competitive since he considered every retail establishment within 250 miles of New York City in competition with the store. - Evidence was presented by the parties and arguments made as to whether in certain instances the policy was or was not applied. The following instances were presented as instances where the policy was not applied : 1. The Company issues an employee paper called "The Gimbelite." In March 1950, McCarthy, as assistant general manager , was respon§ible for checking each GIMBEL BROTHERS, INC. 913 issue as to content, structure , and makeup . The issue, of March 10, 1950, con- tained the following items : 2ND FLOOR TRIO BUSY AFTER SIX By Cedell Friedman and Marie Bischoff Sam Cramer of Children 's Shoes, has as his constant companion his sketch pad; Sam is an art major at Pratt Institute . Ben Berkowitz, also of Children's Shoes, acts as part-time salesman for his father's blouse manu- facturing company ; he has sold many department stores-including, of course, his first love, Gimbels, both tot's wear and teen-age items. Con- tinued good luck to these two fellows. Some others of us quite busy after hours, too : E. Boehm of the Boy Scout Shop has a very prosperous stamp approval business , and handles more than twenty-five hundred accounts . ( Note: A member of Gimbels stamp club?) There is a leased department for the sale of stamps in the store operated on a profit-sharing basis. Boehm was later discharged , but for a reason not connected with his outside activities. Berkowitz assisted his father who manufactured children 's blouses by acting as a salesman from November 1949, on the 1 day a week he was off from work. Berkowitz, a union shop steward, maintained he did this because his father was ill and he stopped selling when the business was liquidated in February 1951. Berkowitz then was a salesman in the children's shoe department. Both his supervisor and the buyer he dealt with knew of his connection with the store and his outside activities , but he was not told to stop. Other employees , including readers of The Gimbelite, knew of his activities. Longman called Tripp's attention to the above item and Tripp promised to investigate. Tripp testified he never investigated and did not mention it to any of his supervisors . Longman did not mention it to Werber or other officials. Broido maintained lie had never seen the item prior to the hearing, the activi- ties of Boehm and Berkowitz were in violation of the policy , and employees in the personnel department showed a lack of comprehension if they had anything to do with its publication. Broido admitted that nothing had been done about putting employees on notice concerning the policy and maintained that it was known by everyone . He also asserted that The Gimbelite does not express company policy. 2. Longman testified , without contradiction , that two other furniture salesmen were engaged in the antique furniture business during the period of his employ- ment, but that no penalty was imposed upon them. 3. Some company officials , like Tripp, did not know of any store policy prior to the Longman case, and Riesner, of McCarthy's office, stated the store was not interested in his outside business and suggested he keep on with his business under another name. On the other hand, Werber cited a case of a buyer discharged in 1948 for engaging in business , Broido and Werber recalled the case of salesmen who were stopped from diverting trade to discount houses, Schneider and Michelson also maintained that approximately 10 years ago , two furniture salesmen had been discharged for engaging in an outside business , and Anna Blanck cited the dis- charge of a salesman in 1949 for diverting trade. Then too, in 1950, William Brest, a salesman in the piano department , was told by his supervisor that he would be discharged if he took a part -time job as a salesman in a music store in New York City. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contentions of the parties; conclusions It might be argued that some of the above examples are distinguishable from Longman's case, but the undersigned is persuaded that the evidence does establish that the Company had a genuine and legitimate interest in preventing its em- ployees from engaging in competition with it. It cannot be argued, in the state of the record, that Gimbel's would have looked on with complacency if Longman had established a business across the street from its store. Basically, the argument on this issue is one of degree, the General Counsel and the dischargee contending, in effect, that Longman's business was so small and so far away from Gimbel's that it could not be considered competitive.. Certainly, the evidence shows that almost all the executives at the 33d Street store took that position including Tripp, Riesner, and McCarthy. Or, stated another way, they did not feel that Longman's business, even if it was com- petitive, was serious enough to warrant taking action against Longman except to give him new opportunities to dispose of his business. This was the deci- sion on June 14. The evidence also indicates that even after the decision to discharge Longman was made on June 15 (obviously under pressure from Broido and Levy), McCarthy and Dugan sought to avoid the discharge of Long- man by trying to force him to give up his business quickly, It is also apparent that Werber did not attempt to take positive action from January until May 1950, when Levy told him of the Union's grievance. Employees also, as in the case of Boehm and Berkowitz, felt free to engage in outside business. It is very clear that Broido was in error when he testified that everyone understood the policy except Longman. There is plenty of evidence that some executives and employees did not understand there was such a policy. Like other rules which are presumed to be part of normal conduct, it was not known throughout the staff, its precise terms were not understood, nor, as a result, was there uniform application. The proof does indicate that, in the eyes of some supervisors, engaging in small outside businesses or selling at wholesale were not grounds for censure. On the other hand, there were other instances where the policy against engaging in outside businesses competitive with Gimbel's had been applied. The evidence does establish an uneven application of the policy. There also were clear and cogent business reasons for the establishment and application of the policy to businesses such as Longman's, which indi- vidually were not much of a competitive threat or capable of much trade diver- sion from Gimbel's, but would be if employees were perfectly free to engage in retail business. In view of the history of uneven application of the policy, if there had been precipitate action by the Company in Longman's case, it would be a sus- picious circumstance in view of the known animus of the Union towards Long- man. The timetable of events shows that there was anything but hasty action here. The Union presented its original complaint concerning Longman in January 1950. In February, Werber informed Dugan and Tripp of the Brown report and Tripp, in turn, passed the information on to Longman. In April, the Union took the position that the penalty for Longman's violation of the policy should be his discharge. The Company refused this demand and stated Longman would be given an opportunity to give up his outside business. On May 1, Werber wrote a memorandum suggesting that Longman give up his business or resign. On May 5, Longman indicated that he was obtaining another position and resigning, although Longman also testified he asked for and received additional time to wind up his buisness if he wished. Longman did nothing thereafter. . He testified he relied on statements by Tripp that things would blow over and Riesner's statements that the Company was not GIMBEL BROTHERS, INC. 915 really interested in his outside business and he need not do anything for the time being. If the record did not definitely establish that Tripp and McCarthy (Riesner's supervisor) were Longman's best friends in the organization, a ques- tion might have arisen as to whether there was a kind of entrapment here, but the record clearly indicates that'Tripp, McCarthy, and Riesner wanted to help Longman and misled him by their under-evaluation of the significance of the policy question to top management. Certainly, neither Werber nor Broido retracted their written statements of company policy. An additional factor was that even though it was argued that Longman's business was picayune and almost a hobby, Longman clung to it from February and was reluctant to give it up as late as June 17. There is no dispute as to the antipathy of the union representatives towards Longman and their hope that Longman would be discharged. It also is reason- ably certain that they would not have demanded the discharge of one of their members for violation of the policy. On the other hand, they did have a legiti- mate interest in seeking a definition of the policy which would be applicable to all employees and they did have a grievance submitted by William Brest concerning refusal of permission to him to engage in an outside sales job while Longman was engaged in an outside business. The question as to the Union is whether a union pressing for a definition and application of a policy relating to a condition of work violates the Act when it contends that its interpretation of past practice requires the discharge of a nonunion employee. The undersigned finds that such conduct, under the circumstances of this case, was not violative of the Act since it was not an attempt to cause the Company to discriminate against Longman but an"effort to formulate and apply working rules under which all employees would work. The General Counsel argues that "it was not for economic reasons that Broido pushed Longman's discharge ; it was only in response to, and appeasement of Local 2's demand, and in order to improve relations with Local 2. . ." Or, as the dischargee has put it, "It all adds up to this, that with the knowledge of the lawlessness of the union and the disruption of the Gimbel business there was no hope of immunity from total destruction of its business without appease- ment of the union ; and so at the degrading sacrifice of principle, manhood, honor and patriotism, Gimbel succumbed to the union pressure and made its deal to grant its every demand, including the discharge of Longman." The undersigned is not persuaded that these charges have been established in the record. The evidence establishes that the Company rejected the demand of the Union that Longman be discharged. It it were so cowed by the Union, it would hardly have given Longman the opportunity he did have. There was a conflict among the company officials as to what to do about the Longman case, but Broido and Levy fully and reasonably explained the basis of the conflict and the reasons for their position. The fact that the Union had initiated the complaint against Longman and, absent its protest, Longman might have been able to continue his outside business indefinitely, also does not establish a case of discrimination. It is not violative of the Act for a union to call attention of an employer to an alleged infraction of a working rule or policy by a nonunion employee in the hope that fie will be penalized thereby. The Act would only be violated if it sought the imposition of a penalty that was not applicable to the violation or different from that imposed on other employees. In view of the past history on the application of the policy,, it has not been established that such was the case here. In addition, Longman was not discharged solely for a violation of the policy, but other factors also influenced the decision on. June 15, and these were of a non- discriminatory nature. The undersigned concludes that it has not been esta- blished that either the Union or the Company violated the Act in the discharge of Longman. 227260-53-vol. 100--59 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent Union has engaged in unfair labor practices within the meaning of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Union attempted to cause and did cause the Company to discriminate against its employees in vidlation of-Section 8 (b) (2) of the Act and did restrain and coerce employees in violation of Section 8 (b) (1) (A) of the Act. In view of the nature and extent of the violations, the undersigned concludes that the unfair labor practices committed evidence a purpose to defeat the rights guaranteed by the Act and that there is danger of commission in the future of other and similar unfair labor practices. In order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, it will be recommended that the Respondent Union cease and desist from in any manner restraining or coercing the em- ployees at the 33d Street store in the exercise of the rights guaranteed in the Act. The Respondent Company was technically in, violation of the Act in that the discrimination against Longman in the distribution of mail orders was. made by one of its employees to whom it had delegated the function of distribution. Under all the circumstances, the undersigned does not consider it necessary or appropriate to direct that the Company take any remedial measures in view of the other relief directed. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS-OF LAW 1. United Department Store Workers of New York, Local 2, District 65, af- filiated with Distributive, Processing and Office Workers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Gimbel Bros., Inc., also known as Gimbel Brothers, is engaged in com- merce within the meaning of the Act. 3. By causing and attempting to cause the Company to discriminate against employees in violation of Section 8' (a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 4. By restraining and coercing employees of the Company in the exercise of the rights guaranteed in Section 7 of the Act, the,,Respondent Union has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The Respondent -Company has discriminated against its employees in the distribution of mail orders, in violation of Section 8 (a) (3) of the Act. A. & M. KARAGHEUSIAN, INC . 917 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The Respondents did not violate the Act in regard to the hire and tenure of employment of Albert E. Longman. [Recommendations omitted from publication in this volume.] A. & M. KARAGHEUSIAN , INC., PETITIONER and TEXTILE WORKERS UNION OF AMERICA, CIO and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. 4-RM 110. August 28, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Fred G. -Krivonos, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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, Styles, and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. The question concerning representation : Textile Workers Union of America, CIO, herein called TWUA- CIO, contends that no question concerning representation exists be- cause the present petition seeks an election only among the employees in the Freehold, New Jersey, plant of the Employer, which constitutes an inappropriate unit. The unit described in the petition conforms with that sought in the initial request for recognition by United Tex- tile Workers of America, AFL, herein called UTWA-AFL. While, as set forth in paragraph numbered 4, below, the Board finds that only a unit of the Employer's Freehold and Roselle Park, New Jersey, plants is appropriate, UTWA-AFL, at the hearing, in effect, alter- nately requested any unit that the Board finds appropriate. Also, TWUA-CIO itself has requested continued recognition by the Em- ployed in the multiplant unit, which the Employer has refused pend- ing Board determination. Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sectiori'9 (c) (1y and Section 2 (6) and (7) of the Act. 100 NLRB No. 140.