*1 scope language say indicate than whether .its testimony sufficient it and forfeiture from authorizes seizure which these findings might be made. Perhaps, ex- only “about to be goods when the are further will hearing be neces- sary. modi- ported” although Fourth Circuit subsequent by making somewhat fied it Accordingly, the judgment of the Dis- by agents retroactive designated seizure trict Court will be reversed and the cause by other the time of the initial seizure remanded for further proceedings con- designated in Sec- law not officers sistent with opinion. this language of We conclude that the tion 1. alternative 1 leaves no other us cases hold that than to restricted ex- goods are “about 1 con-
ported”. It to us that Section . seems probable
templates whenever cause war arms or
believe munitions exported in violation about TELLER, BONWIT Inc. v. NATIONAL exists, made should be law seizure LABOR RELATIONS BOARD. necessary support be- investigation 250, No. Docket 22208. course. in due lief should follow Appeals, fly States attempt United Court case, In this Second Circuit. at the Newark airplane abroad was made 29, does 1948. It Airport on December Argued 14, April 1952. any effort record whether appear not Decided 1952. June airplane prior to to seize the was made claimant, Mur- 12, 1949. However January plane was held rell, testified days. Airport for several the Newark and the facts detention of this
The nature airplane surrounding transfer of Airport not clear Teterboro appear that does before us.
the record to Murrell the title transferred LaBeulla "alsoevidence There is January
on finding record, although there is no in the court, that Mur- to the effect fact intention to have abandoned rell had Europe airplane flown exported not about airplane 1949. There January on prior January Murrell 29, 1948, he subsequent to December part. Judge, Swan, dissented at- Chief made some crew and discharged the plane in dispose of the
tempts to
country. of these statements
Regardless exportation of
claimant, possible that it is January airplane imminent question of it is a the trial court determination of for the fact will, therefore, case remand the regard. -in this further transcript prior entire Since us, now before we cannot
proceedings is *2 Leff, City,
Drechsler & New York Horowitz, (David Drechsler Mortimer City, counsel), for Teller, Inc., petitioner-appellant. Bott, Counsel, George General David J. A, Counsel, Findling, Associate General P. Somers, Assistant General Norman Coun- Ratner, sel, Assistant Mozart General G. Beeson, Counsel, and Duane Washington, C., Board, National Labor for D. Relations respondent. -Mullin,
Sheppard, Richter & Balthis and Cal., Richter, Jr., Angeles, Los George R. Dry Ass’n, Goods National Retail curiae. amicus Bloom, City, Schlesinger & New York Intervenors, Retail Clerks Internation- al, F. L. A. SWAN, Judge, and AU- stores at
Before Chief FRANK, union, HAND Circuit choice voting GUSTUS for no or the C.R. A., Judges. or the Amalgamated Clothing Work- America, ers of C. I. O. *3 HAND, Judge. Circuit N. AUGUSTUS proved inconclusive, election with neither the polled votes, R. C. I. A. which Inc., petitioned to re- 446 the Teller, Bonwit has Amalgamated Clothing Workers which of the National re- an order and set aside view votes, ceived 146 nor the Board, Board has 305 and the Relations Labor who voted union, for no obtaining major- its or- of cross-petitioned for enforcement ity of the Board, votes. The therefore, Board the di- der. before The rected that a run-off Interna- election be by Retail Clerks held and the were initiated eliminated the Amalgamated Association, Clothing called (hereinafter AFL tional Workers from the objections with ballot. The second elec- which “Union”), filed the , tion—from which stem charges Teller the of un- Bonwit that to the effect Board the practices fair labor by the held on held election interfered in an —was 15, ber 1949 and repre- resulted in a vote for no bargaining to determine Board by union a majority The employees. 668 to 225. of Bonwit’s sentative viola- charge of filed subsequently period Throughout up Union leading National (1) 8(a) 15, 1949, September tion of Section election of Bonwit 158(a) Act, 29 U.S.C.A. § Relations policy Labor forbidding Teller maintained a all substantially Teller, based by Bonwit (1), by organizers solicitation union in its stores as asserted previously conduct employees’ either time election. with the stituting they interference duty.2 were off Organizers or when rep- with the consolidated charge iwas entered the stores were This who asked to leave proceeding.1 they organ resentation were as soon as detected. by the Union izational drive was conducted controversy for the most is present by distribution of leaflets to drawn inferences with part concerned they entered left the stores and at meet Act to facts application from and headquarters were held at ings which Union undisputed. Bon- substantially which are rented halls the Union for that operates several Teller, Inc., owns wit purpose. dispute While some throughout the in various'cities retail stores successfully the no solicitation rule how States, principal store its United eastern was enforced Bonwit do not consider we in New Fifth Avenue at being located 721 importance fact of since it that is undis employs about City where York puted Bonwit had a no solicitation rule part of 1949cam- early During the people. attempted in effect and to enforce it when unions to rival conducted paigns were ever violations came to the attention of employees at its New organize personnel. supervisory store branch City its store York York, having Plains, Friday, September 9, latter days On six before White 30,, held, On was to approximately the run-off election the em- June both City election ployees held an at the New were store the. requiring Bonwit final order under to its order reviewable Section 1. In addition Act, 160(f). 10(f) from certain and desist cease Teller practices, specified the Board unfair Ordinarily, such a rule would consti of the election results set aside 8(a) (1). a violation of § tute public See Re held at a new election be Corp. directed B., Aviation v. L.N. R. brief, In the future. time some requests we also re the Board has exception department Board. But i action view this retail in the case of t power so, do we have no clear that which allows the stores for selling F. v. N. solicitation on the A. L. L. R. bid floors B. May g., Department 84 L.Ed. S.Ct. L. R. B of the store. See e. Cir., Stores, R. LaSalle Steel 59 N. B. 976. For L. rea exception stated, 1, because the was not sons hereinafter 832 n. order applicable in the case at bar. meeting employees’ meetings, mental that an constituted informed reasonably 5 P. employees, floor at benefit selling main held on the M., voting normal store’s calculated to deter hour before the one-half finding Sep- no the RCIA election The Board made run-off closing time.3 15, 1949, compelled to at- thereby violating tember 8(a) may (1) interfering meeting and assume tend this meeting, election. urged go freedom choice in the store Respondent is immaterial did not they were free to leave although expressly condition granting do so. if wished to increases on RCIA’s losing election. Roy assembled, employees were After the It is purpose, sufficient natural Bonwit’s, de- *4 president of Rudolph, effect, of the announcement to con- urged strongly speech in which livered a employees vince the did not need at Union against the employees to vote a union order to wage obtain increases found Board The coming election. improvements or other in their conditions except for speech, with wrong nothing employment.” Rudolph an- in which paragraph, the last Bonwit’s assertion September 12, a Union swered On which was the Mon- pay increase to a entitled employees day following speech- store-wide es, as follows: the Union’s vice-president, Samuel Meyers, notified register- know, your year you a twice “As ed mail that he opportunity desired an to rec- salary and raises is reviewed address all of at the waiting Raises have been ommended. store “on Wednesday, Now, February. you since 14, 1949, p. m., ber 5:00 or at some time process, addi- review in with our Fall before the date of the run-off election on being recommended. tional raises 15, 1949, September mutually which will put through could raises These put through now to both of request cannot be convenient us. I further then and election, lest be accused you accord me before the same privilege of practice by R.'C.I. labor unfair speaking during working hours pay to a don’t dues A. You have will be so that I assured of the same com- raise at get a Bonwits.” union to plete you your- audience availed No answer to self.” was ever repeated following speech was The Union, by the and received the Board held employees of White morning that Bonwit’s refusal to honor this re- copies speech and of the Plains store quest violation of Section 8(a) (1). There- of both stores. mailed to September day of after, until 15—-the and practices unfair The other found Rudolph informally with met election — by the consisted of statements made departmental meet- groups of employees by employees, two supervisory with them ings discussed and and On Neimark Burchett. one occasion and prevailing in the stores then ditions departmental following speech by Ru- urge them vote continued to dolph, group were having a Barnes, According to the witness Union. and, discussion according meet- Rudolph of the told at one Dercole, Dorothy “Mr. came Neimark increase would ings wages] “the [in us if any questions over asked we had union, after affair with after come * * * And he said if the union was voted with.” over the union was get the immediately we would out increase “ * * * the an- Board found it was voted in get The and if we would not pendency wage in- year, of the nine months or nouncement even a because it Rudolph’s long negotiate in President take that creases a contract depart- and in September Burchett, them.” was head with who already store customers’ entrances to the the store were allowed complete M., shopping. were closed but customers P. 6U department,
the alteration told several em- that all depart- in his ployees department if the Union ment could expect at least one wage in, change was voted Bonwit would have to year, increase each and that his 'recom- system layoffs (which past in the usually mendations were followed. This family been based on need procedure, conditions except in some instances rather seniority) than on and thát its exist- department head, in violation ing policies wage promotion based instructions, failed acquaint em- merit go ployees “would window.” These out the it, was generally known statements the Board found to contain reprisal.
threats of
“In
Febrauary
rep-
while the
Bonwit Teller contends that
resentation proceeding was pending, the
supervisors
proceeding should be set
be
whole
aside
began
process
the merit
cause
Board lacked a General Counsel
ratings
recommendations.
part
hearing before the Trial
According to Treasurer Leonard a
large
con
Examiner.
Board overruled this
number had been completed or
'
tention,
reading
literal
of Sec
partially
based on a
completed when management
153(d),
3(d)
tion
issued
supervisors
instructions
*5
in the General Counsel
which vests
ex
discontinue processing them. The rea-
prosecute complaints.
authority
clusive
to
son for this action,
testified,
Leonard’
the General
resignation
Before'his
Counsel
was that ‘we decided that we did not
representative
at the
delegated
grant any
want
increases -at that
prosecute
authority to
the com
hearing
particular time because of the pending
impropriety
a
plaint.
no
in such
We find
labor situation.’ Of
ratings
and
objection
that
procedure
hold
and
processed up
reviews
time,
that
250
properly overruled.
it-was
to 300 contained recommendations for
wages
Some, though
all,
increases.
not
that
of the Board
The conclusion
were aware of the
Rudolph
speeches
and the statements
of
n supervisors
stop
Thus in
order.
March
April
and Burchett
in
Niemark
1949, group
a
Depart-
of tailors asked
benefit
promises
or threats
volved
ment Head
hap-
Burchett what had
to have been errone
reprisal
seems
us
pened
spring
wage
reviews. Bur-
Rudolph,
his remarks to
ous: As to
responded:
chett
told
T
I
that
waiting
wage increases
effect that
pass any
could not
increases. That
than an
nothing more
n
personnel
an order from the
de-
why
policy
explanation of
-
partment. Because of the labor sitúa-
reviews and
wage
semi-annual
recommen
tion
that
activities,
time and union
stopped.
Trial Examiner
dations had
on,
pass
and
not
so
we could
increases
report
that
described
his intermediate
in
that
time.’
It was to this situation
leading up to the
policy and the events
Rudolph
that
in
referred
Rudolph,
Bur
Niemark and
speeches,
ber 9 and 10
and in the de-
as follows:
chett
partmental meetings.”
(cid:127)
that
in
establishes
“The evidence
policy
Under the
Respondent
a
circumstances
think,
instituted
we
1947
Rudolph
supervisors
the communications of
having
rate
to his em-
ployees went
February-March
no further
than
yearly,
to indicate
twice
pay
would
on the
increases
follow
August-September,
character
the or-
dinary -practice
employer
making
recom-
performance,
fell
promising
individual
merit
short of
benefits to the employees
as to
mendations
against
if
should vote
Generally some in-
wage increases.
Union.
In-
deed,
though
to forbid
granted,
not neces-
such
creases are
communications would
(cid:127)
everyone,
prohibit
result
seem
as a
of these
all discussions
sarily to
between em-
ployer
employee of
germane
Bur-
and recommendations.
issues
reviews
(cid:127)
subject
chett,
Respondent’s
of unionization.
head of
altera-
testified,
158(c);
department,
example,
N. L. R. B.
tion
v. American Tube
A.L.
Bending Co., Cir.,
erty-during non-working
time even where
R.
Virginia
away
B.
Electric
showing
L. R.
v.
no
that solicitation
plant
&
Co.,
Power
62 S.Ct.
from
would
ineffective. Re
be
public Aviation, Corp. N.L.R.B.,
U.
S.