The J. L. Hudson Company And United Retail, Wholesale And Department Store Employees Of America, Cio, 1403 (1946)

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In the Matter of THE J. L. HUDSON COMPANY and UNITED RETAIL,

WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA,

CIO Case No. 7-C-12-8.--Decided May 15, 1946 DECISION AND ORDER On January 29, 1946, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report and a supporting brief.

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 respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below.

The Trial Examiner found that the respondent's no-solicitation rule was violative of the Act because 'the prohibition applied...

to the employees' free time on the respondent's premises' and because of its 'applicability only to elevator operators.' We do not agree, and the Trial Examiner's finding in this respect is hereby reversed.

The respondent operates a retail department store and, as we have previously held, could, therefore, properly prohibit union activity at all times on the selling floors, where customers are normally present.1 That the prohibition was unlawfully extended, as the Trial Examiner found, to cover union discussion off the selling floor during non-working hours is not established by the record. The Trial Examiner found the rule in question to be ambiguous on its face, but nevertheless concluded, from Superintendent Hall's oral interpretation, that the rule was too broad in scope. However, the testimony Matter of May Department Stores Company, etc., relating to Hall's interpretation fails to convince us that the respondent intended to restrict such union activity in the lunch and rest rooms or that the employees reasonably so understood the prohibition especially since no attempt was made by the respondent to enforce the rule in those places. Nor do we believe that the fact that the rule was directed against the elevator operators exclusively is, of itself, sufficient to warrant finding discrimination in the promulgation of the rule.

ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The J. L. Hudson Company,

Detroit, Michigan, and its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Discouraging concerted activities and membership in United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of their employment;

(b) Refusing to bargain collectively with United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all the passenger elevator operators and starters at the respondent's retail department store on Woodward Avenue, Detroit, Michigan, excluding freight elevator operators and all supervisory employees with the authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employment;

(c) In any other manner interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.

2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act:

(a) Upon request, bargain collectively with United Retail, Wholesale and Department Store Employees of America, affiliated with the 1405 Congress of Industrial Organizations, as the exclusive representative of all the passenger elevator operators and starters at the respondent's retail department store on Woodward Avenue, Detroit, Michigan, excluding freight elevator operators and all supervisory employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, as to rates of pay, wages, hours of employment, and other conditions of employment;

(b) Offer to Annette Moore immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority and other rights and privileges;

(c) Make whole Annette Moore for any loss of earnings she may have suffered by reason of the respondent's discrimination against her, by payment to her of a sum of money equal to the amount which she normally would have earned as wages during the period from March 25, 1943, the date on which she was discriminatorily discharged, to the date of the respondent's offer of reinstatement, less her net earnings during said period;

(d) Post at its Woodward Avenue retail department store, Detroit,

Michigan, copies of the notice attached hereto marked 'Appendix A.' Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced or covered by any other material;

(e) Notify the Regional Director for the Seventh Region in writ-' ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith.

CHAIRMAN HERZOG 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 in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or. assist United Retail,

SWholesale and D4partment Store Employees of America,, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.

We will offer to Annette Moore immediate and fall reinstatement to her former or a substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination.

We will bargain collectively upon request with the abovenamed union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is:

All the passenger elevator operators and starters at our retail department store on Woodward Avenue, Detroit,

Michigan, excluding freight elevator operators and all supervisory employees with the authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action.

All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization.

THE J. L. HUDSON COMPANY.

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.

INTERMEDIATE REPORT Mr. Meyer D. Stein, for the Board.

Beaumont, Smith and Harris, by Messrs. Albert B. Meder and Charles Wright,

III, of Detroit, Michigan, for the respondent.

Mr. Robert Fawkes, of Detroit, Michigan, for the Union.

STATEMENT OF THE CASE Upon a second amended charge duly filed on December 17, 1945, by United Retail,

Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, herein called the Union,1 the National Labor Relations Board,, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated December 18, 1945, against The J. L. Hudson Company, Detroit, Michigan, herein called the respondent, alleging that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the second amended charge, together with...

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