On Petitions for Enforcement of Orders of the National Labor Relations Board.
Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.
Both of the instant cases come before us upon petitions of the National Labor Relations Board, filed pursuant to Section 10(e) of the National Labor Relations Act, Act of July 5, 1935, c. 372, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., to enforce two orders of the Board against the respondent, M. E. Blatt Company, dated respectively February 14, 1942, and February 26, 1943, the latter order having been amended on March 2, 1943.
The respondent owns and operates a retail department store in Atlantic City, New Jersey. Its annual purchases for the operation of its business total over $1,500,000. It appears that approximately 95% of these purchases are made from sources outside of New Jersey. Its annual gross sales exceed $2,000,000, but merchandise of a value of only about $16,000 is shipped annually to customers outside New Jersey. The respondent contends that it is not subject to the Act because whatever goods are shipped to it for retail sale come to "complete rest" and cease being in the stream of interstate commerce upon delivery to it. We dealt with a substantially similar contention in National Labor Relations Board v. Poultrymen's Service Corporation, 138 F.2d 204,*fn1 and found it to be without merit. We adhere now to this ruling.
The first proceeding brought by the Board in point of time is that at our No. 8493 (Board Case No. C-1995). The second in point of time is that at our No. 8494 (Board Case No. C-2371). Before dealing with the provisions of the Board's orders in the respective cases it is necessary to state the background of facts in order that the contentions of the parties may be clear.
The respondent employs about three hundred persons at its store. In December, 1940, William Abramoff, the president and business agent of Retail Clerks International Protective Association, Local No. 1358, affiliated with the American Federation of Labor, began an attempt to organize the respondent's employees for his Union. A meeting was held on December 5, 1940, and was attended by only two employees, one of whom was Michael Flanagan an employee in the respondent's receiving department. Another meeting was held on December 7, 1940, and this was attended by eight or ten employees including Dorothy A. Reitzler, Marion Hempel, Charles J. Mooney and Anna Eckman. Flanagan was made chairman of the union organizing committee. He testified that shortly thereafter, about December 10th, Aaron Rosenberg, the respondent's superintendent, questioned him in respect to his membership in the Union and attendance at its meetings. Flanagan stated that Rosenberg asked him what it would get him to join the Union. It appears that Rosenberg later interrogated Flanagan again in respect to his union activities; that a supervisory employee, Joseph Alkazin, also asked both Flanagan and Mooney about their connections with the Union.
The evidence discloses that about December 18, 1940, Abramoff and the business agent of the Union had a meeting with Rosenberg and Barney Silberman, the collective bargaining. There is testimony purpose of opening negotiations looking to collective bargaining. There is testimony to the effect that Silberman took the position that the respondent was not subject to the provisions of the National Labor Relations Act and demanded that he be informed as to the Union's right to represent the employees, asking to see application cards signed by the respondent's employees; that Abramoff refused to display the cards to Silberman or Rosenberg but offered to submit them for inspection to a representative of the National Labor Relations Board. Abramoff also testified that the company representatives at the meeting informed him that they would consult their counsel and would let them know what the company would do. Another meeting of the Union was held on December 20, 1940. Shortly thereafter, on December 24th, the respondent discharged Flanagan, Young, Eckman, Mooney and Hempel, all active members of the Union and regular employees of the company. These five persons, together with Reitzler and two other persons constituted the entire membership of the Union at that time. Reitzler was dischargd on January 2, 1941. On December 26, 1940, Abramoff telephoned Rosenberg for the purpose of making an appointment to discuss the discharges. Rosenberg informed Abramoff that he would consult his attorney and then call him, but Abramoff did not hear from Rosenberg. Abramoff also attempted to get in communication with Max E. Blatt, the respondent's president, but without success. Later he again telephoned Rosenberg and requested a meeting. The evidence shows that Rosenberg refused to meet any representative of the Union and also refused to discuss the discharges. The Union then established a picket line at the respondent's store which it maintained for about two weeks. A proceeding was instituted before the Board at its No. C-1995. A hearing was held, findings were made and an order was entered by the Board.
There is ample evidence to support the findings of the Board that the dismissals occurred because of the discharged employees' union activities. Indeed, though the respondent does not expressly admit this, it now seems tacitly to concede this fact.We deem it unnecessary to discuss the evidence upon which the Board's conclusions in this regard were based.
The Board in its proceeding at C-1995 found the union to be a labor organization within the meaning of Section 2(5) of the Act, 29 U.S.C.A. § 152(5); that the respondent had discriminated in regard to the hire and tenure of employment of Flanagan, Young, Mooney, eckman and Reitzler,*fn2 thereby discouraging membership in the Union, and that the respondent had engaged and was engaging in unfair labor practices by discouraging membership in the Union, and by interfering with, restraining and coercing its employees in violation of Section 7, 8(1) and (3) of the Act, 29 U.S.C.A. §§ 157 and 158 (1) and (3).*fn3
The Board ordered the respondent to cease from discouraging membership in the Union or any other labor organization of its employee's own choosing and from restraining or coercing its employees in the exercise of their right to self-organization for collective bargaining. It required the respondent to offer reinstatement to and to make whole Flanagan, Young, Mooney, eckman and Reitzler, and to post in conspicuous places throughout its store a notice in the usual form stating that the respondent would not engage in the conduct from which it was ordered to desist, that it would take the affirmative action required by the order, that its employees were free to become or remain members of the Union, and that it would not discriminate against any employee because of membership in or activity on behalf of the Union.
The Board concedes that the respondent has complied with the provisions of the order relating to reinstatement of the discharged employees and that these employees have been made whole. The Board agrees further that the respondent on March 18, 1942 posted a notice which upon its face was a substantial compliance with the terms of the order. It complains, however, that the respondent posted simultaneously with the notice required by the order of the Board a notice which is set out below.*fn4 It is the Board's contention that this second notice was plainly intended to counteract the force of the first and against the background of the respondent's actions constituted an unfair labor practice. We will deal more specifically with this notice and the parties' contentions in respect to it at a later point in this opinion.
On March 26th, after the reinstatement of Reitzler and Mooney,*fn5 Abramoff tried to reorganize the Union. He called a meeting of the union membership to be held on March 26th at Moose Hall at Atlantic City. Pamphlets were distributed to advertise this meeting.It was attended by about twenty-five of the respondent's employees. Abramoff testified that most of the employees present signed membership applications. Union buttons were distributed. Another meeting was held on March 31st. Approximately seventy employees attended it and Abramoff testified that most of them signed applications. Buttons were again distributed and some employees wore these into the store. A membership drive for the Union was conducted in the store, both on and off the respondent's time but always over its objections. The record contains numerous instances in which the respondent's supervisory employees or department heads endeavored to discourage this membership drive. Sue Witsky, a secretary-stenographer, who had been employed by the respondent for about four years and who had obtained signed membership applications, testified that she was reprimanded by her immediate employer, was excused for a week from any duties which would take her into parts of the store outside of her own department and was instructed by her immediate superior to report to him whenever she wished to leave the area of the department. Bessie Chazin, another employee who was active in the attempt to get employees to join the Union, testified that a department heard, Mary Price, said to her, when she, Chazin, came into the neckwear department to talk to another employee before nine o'clock in the morning,*fn6 "You get around here quickly." and forthwith ordered her out of that department. Chazin testified that she reported this to the respondent's personnel director and was told by her that " * * * we are stopping the girls from discussing the union in the store." There were various other instances of apparently concerted attempts by the respondent's department heads and supervisory employees to prevent conversations respecting the Union by known union members with other employees during the period immediately following March 26th.
At about this time, apparently during the week commencing March, 30 1942, another labor organization, called Organized Workers' Association of the M. E. Blatt Company, appeared on the scene. It should be observed that in the eight days from April 2nd to April 9th, inclusive, the Association acquired a membership of more than two hundred out of the three hundred employees of the store. No circulars were issued to the employees but notice of the first meeting of the Association apparently was spread by word of mouth, through the store. About two hundred and fifty of the respondent's employees attended this meeting including one who had at least some supervisory duties. We think the record fully justified the Board's conclusion that while department and supervisory ...