Gimbel Brothers, Inc, 870 (1952)
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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 shipments 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 WORKERS 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 recommending 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 complaint, and recommended dismissal of the complaint in those respects. Thereafter, the Respondent Union and the General Counsel filed exceptions 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 exceptions. 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 rulings 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 Administrative 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 settlement 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 Furthermore, we do not believe that the General Counsel's attitudes as to the terms upon which he will settle various types of cases, attitudes announced only to parties to Board proceedings in the course of discussions 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 therefore 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 longstanding 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 congressional 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 General Counsel's settlement procedures satisfy the requirements of the Administrative Procedure Act. aware of that fact. At a meeting of another local of this Union's international 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, unsuccessfully 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 Gimbel'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 outside 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 contrary, 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 officials, 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 VicePresident Broido, who called a special meeting of store executives and won their general assent to his decision that Longman be discharged. 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 discharge 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...
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