F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Jul 31, 1940

25 N.L.R.B. 1362 (N.L.R.B. 1940)

In the Matter of F. W. WOOLWORTH COMPANY AND F. W. WOOLWORTH
CO. OF FRANCE and UNITED WHOLESALE & WAREHOUSE EMPLOYEES
OF NEW YORK, LOCAL 65, UNITED RETAIL &,WHOLESALE EMPLOYEES
OF AMERICA
Cases Nos. C-751 and R-'7.96. Decidect July 31, ZJ41)
Jurisdiction : chain store industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: segregating active union leaders in plant;
interrogation concerning union activities ; charges of surveillance of union
meetings, dismissed.
Unusual concessions by employer to employees concerning, wages and
working conditions at the incipience of union activity held violation of 8 (1).
Questioning employees concerning union preference, although in course
of employer's preparation of case in consolidated complaint and repre-
sentation proceedings, held 8 (1)
Employer's circulation of petition for election among employees during
hearing in consolidated complaint and representation case, held 8 (1).,
Discrimination: lay-offs for union activities.
Remedial Orders
Where an employer in the course of an otherwise legitimate reduction
of force discriminated against union members in selecting employees to be
laid off but where, because of large union membership, many union mem-
bers would probably have been included in a nondiscriminatory lay-off,
entire group of laid-off union members share equally as a back pay award
a sum representing the normal earnings of a group equal to the number
of union members laid-off in excess of normal probability.
Back pay suspended from date of order vacating Intermediate Report
and directing issuance of proposed findings to date of order revoking prior
order.
Evidence
Presence of supervisory employee on busy street in neighborhood of
union meeting place held not to give rise to inference that he was
spying on union activities, where testimony of alleged admissions of such
conduct attributed to said supervisor were not sufficiently corroborated.
Inference of discrimination arising from disproportionate number of
union members included in mass lay-off, is not negatived by explanation
based on supervisor's general estimate of employees' ability in absence
of showing as to relative qualifications of comparable employees and the
employer has burden of offering evidence to negative such inference of
discrimination.
Practice and Procedure : petition for investigation and certification of repre-
sentatives dismissed without prejudice because of long lapse of time since
the hearing.
25 N. L. R. B., No. 127.
1362
F. W. WOOLWORTH COMPANY 1363
Mr. Will Maslow, for the Board.
Mr. Thomas I. Sheridan and Mr. Philip Warren, of New York
City, for the respondent.
Mr. Harry Sacher and Mr. Irving Leuchter, of New York City, for
the Union.
Mr. Richard A. Perkins, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On November 17, 1937, United Wholesale & Warehouse Employees
of New York, Local 65,1 herein called the Union, filed with the Re-
gional Director for the Second Region (New York City) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of F. W. Woolworth Co., New York
City, herein called the respondent, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
The Union thereafter, on November 22, 1937, filed charges, and on
January 21, 1938, amended charges with the Regional Director al-
leging that the respondent had engaged, in and was engaging in un-
fair labor practices within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act. On January 25, 1938, the
Board, acting pursuant to Article II, Section 37 (b), and Article III,
Section 3 and 10 (c) (2), of -National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation of
the question concerning representation, authorized the Regional Di-
rector to conduct it^and to provide for an appropriate hearing upon
due notice, and ordered that the representation proceeding and the
proceeding in respect to the alleged unfair labor practices be con-
solidated for the purposes of hearing and that one record of the hear-
ing be made.
Upon the charges thus duly filed, the Board, by the said Regional
Director, issued its complaint, dated March 15, 1938, against F. W.
Woolworth Co. of France,2 herein called the Delaware corporation,
alleging that the Delaware corporation had engaged in and was en-
gaging,in unfair labor practices within the meaning of Section 8 (1)
and-(3) and Section 2 (6) and (7) of the Act. Copies of the com-
3 Designated in the original charge and in the petition as "United Wholesale Employees
of New York."
2 Designated in the complaint as "F. W . Woolworth Co. of France , Incorporated."
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint and an accompanying notice of hearing thereon and on the pe-
tition for investigation and certification of representatives. were
served upon the respondent 3 and upon the Union . The complaint
originally alleged in substance ( 1) that the Delaware corporation
had by discharging , demoting , and refusing to,reinstate 159 employees,
discriminated' against such employees because they joined and as-
sisted the Union, and ( 2) that from July 1937 the Delaware corpo-
ration had thereby and by urging , persuading , and warning
employees at its Manhattan warehouse to refrain from becoming or
remaining members of the Union , threatening employees with dis-
charge and other reprisals if they became or remained members
thereof, and keeping under surveillance the meetings and meeting
places of the union members , interfered with, restrained , and coerced
its employees in the exercise of rights guaranteed by Section 7 of the
Act. On March 21, 1938 , the respondent filed answers to both the
charge and the complaint , denying all the allegations thereof save
those relating to the nature of the business of the Delaware corpo-
ration, as to which certain allegations were admitted.
Pursuant to notice and amended notice, a hearing on the complaint
and on the petition for investigation and certification of represent-
atives was held in New York City on various dates between April
11 and May 19, 1938 , before Paul Davier, the Trial Examiner duly
designated by the Board . The Board , the respondent , the Delaware
corporation , and the Union were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross -examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties.
On the first day of the hearing counsel for the Board and counsel
representing both the respondent and the Delaware corporation stipu-
lated that both the respondent and the Delaware corporation be made
parties to the proceeding , and on motion of counsel for the Board the
caption of the complaint was amended accordingly . During the hear-
ing the Trial Examiner allowed a motion by counsel for the Board to
strike from the complaint the names of 30 persons alleged to have
been discriminatorily discharged , demoted, or refused reinstatement.
The complaint was also amended during the hearing to allege that
the respondent had engaged in an unfair labor practice within the
meaning of Section 8 ( 1) of the Act by questioning its employees on
April 15 and April 21, 1938, regarding their union affiliation. A
further amendment added the names of 23 employees to those al-
leged in the complaint to have been discriminatorily demoted, dis-
charged, or refused reinstatement . Counsel for the respondent read
3 Designated in the notice of hearing and in the affidavit of service as "F. W. Woolworth
Warehouse "
F. W. WOOLWORTH COMPANY 1365
into the record its answer to. the new matter added by amendment.
The Trial Examiner offered to allow.the respondent 5 days in which
to prepare its defense to these new matters, but the respondent did
not avail itself of this opportunity.
At the conclusion of the hearing counsel for the Board moved that
the Trial Examiner recommend an order granting affirmative relief
by way of the reinstatement of employees with or without back pay
or the placement of employees on a preferential list for reemployment.
Counsel for the respondent moved for dismissal of the complaint for
failure of proof. The Trial Examiner reserved decision ' on these
motions. Various other rulings were made by the Trial Examiner
during the course of the hearing on motions and on objections to the
admission of evidence, and in his Intermediate Report the Trial Ex-
aminer ruled upon those motions as to which he had reserved decision
during the hearing. The Board has reviewed these rulings and other
rulings made by the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
After the taking of testimony was concluded, counsel for the Board
and for the respondent argued orally before the Trial Examiner,
and counsel for the respondent filed a brief.
On July 9, 1938, the Trial Examiner filed his Intermediate Report,
finding that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tions 8 (1) and (3) and 2 (6) and (7) of the Act, and recommending
that the respondent cease and desist therefrom and take certain
specified affirmative action deemed necessary to effectuate the policies
of the Act. Copies of the Intermediate Report were duly served
upon the parties. Thereafter the respondent filed exceptions to the
Intermediate Report.
Pursuant to notice a hearing for the purpose of oral argument
was held before the Board at Washington, D. C., on December 29,
1938. The respondent and the Union appeared and participated;
and counsel for the respondent filed a brief. On July 20, 1939, the
term of one of the members of the Board.having expired, another
hearing for the purpose of further oral argument was held before
the ,Board at Washington, D. C., after notice of hearing had been
served on the parties. The respondent was represented by counsel
and presented its argument.
On July 21, 1939, the Board issued an order vacating and setting
aside the Trial Examiner's Intermediate Report and, pursuant to
Article II, Section 37 (c), of National Labor Relations Board Rules
and Regulations-Series 2, directed that proposed findings of fact,
proposed conclusions of law, and a proposed order be issued and that
the parties be permitted, within 20 days from the receipt of the pro-
283030-42-vo1 25-87
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed order , to file exceptions , to request oral argument before the
Board, and to request permission to file a brief with the Board.
Thereafter on July 3, 1940 , the Board vacated its order of July 21,
1939, and reinstated the Trial Examiner's Intermediate Report. We
have considered the respondent 's exceptions to the Intermediate Re-
port and, except in so far as they are consistent With the following
findings of fact, conclusions of law, and order, we find them without
merit, and they are hereby overruled.
Upon the entire record in the case , the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND OF THE DELAWARE CORPORATION
The respondent, F. W. Woolworth Co., a New York corporation,
directly and through consolidated subsidiary corporations operates
warehouses and a chain of over 2,000 retail • limited price variety
stores in the United States , Cuba, and Canada . These stores obtain
goods from warehouses owned and operated by the respondent and
also directly from manufacturers . This proceeding involves the ware-
house maintained by the respondent in New York City for the pur-
p'ose • 'of supplying goods to 1,655 stores in 42 States and in Cuba.
Of the stores in the respondent's New York City warehouse district,
1,440 are located in States other than New York and in Cuba. Dur-
ing 1937 the New York City warehouse received goods valued at
$15,174,520 .45 and shipped to stores goods valued at $18,347 ,487.78.
Counsel for the respondent admitted at the hearing that the re-
spondent was "engaged in commerce within the , meaning of Section
2 of the National Labor Relations Act, and its operations in said
warehouse are in effect such commerce."
F. W. Woolworth Co. of France, a Delaware corporation , is named
in the complaint as having engaged in unfair labor practices in the
operation of the New York City warehouse . The name of the re-
spondent was added by stipulation at the opening of the hearing, as
above stated , and it was later stipulated that the respondent was the
owner of the stores and the warehouse . The Delaware corporation,
a wholly owned subsidiary of the respondent , operates warehouses
in Paris and Calais, France, for the purpose of purchasing and ship-
ping merchandise to the respondent's American stores. The Trial
Examiner made no finding with respect to the Delaware corporation,
and there is nothing to indicate that that corporation is concerned
with the operation of the New York City warehouse or. with its labor
policies which are here in issue . The motion to dismiss the complaint
will be granted - as to the Delaware corporation.
F. W. WOOLWORTH COMPANY
II. THE ORGANIZATION INVOLVED
1367
United Wholesale & Warehouse Employees of New York is a labor
organization which admits to its membership "any person employed!
in or about any wholesale, warehouse, or any other central distribu-
tive establishment." It is affiliated with United Retail & Warehouse-
Employees of America, also a labor organization, as Local 65 thereof,,
and with the Committee for Industrial Organization ,4 herein called-
the C. I. O. In October or November 1937, Local 65 succeeded to,
the jurisdiction of Local 1250, Department Store Employees Union,
also a C. I. O. affiliate, and to the membership of Local 1250 among
the respondent's warehouse employees. The term "Union" herein
will refer to either Local 65 or Local 1250, according to the period
under discussion.
III. THE UNFAIR LABOR PRACTICES
A. The organization and functions of the New York City warehouse
The respondent's New York City warehouse is operated as a service
to the respondent's retail stores, the managers of which may order
goods from the warehouse or direct from manufacturers, depending
on the location, the size of the order, and freight charges. For some
administrative and accounting purposes the warehouse is treated as
a separate enterprise. Purchasing for the warehouse is .done by the
respondent's executive offices. Shipments of goods to the stores are
charged to the account of the stores at a mark-up from cost price to
cover the expense of operating the warehouse.
A. J. Allen, manager, is in charge of the warehouse operations.
Simon J. Tonery, assistant manager, is next in authority, and under
him are four superintendents, Cremin, Smith, Williamson, and
Jacobus,5 each of whom oversees the work in several of the 22 ware-
house departments, each of which in turn is under the supervision
of a foreman.
On November 13, 1937, the respondent employed at its New York
City warehouse 428 persons, exclusive of heads of departments, fore-
men, assistant managers, and office help. The principal classifica-
tions of nonsupervisory employees were : packers, checkers, wheelers,
truckers, order clerks, stock clerks, shipping clerks, and receiving
clerks. The usual routine in filling orders for merchandise from the
respondent's retail stores is as follows : Orders are received, dated,
and sorted; order clerks gather the merchandise specified in the orders
and place it on hand trucks; wheelers take the hand trucks to the
Now the Congress of Industrial Organizations
This name is spelled variously in the record as Jacoby , Jacovitz, and Jucovics.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
packing room where the merchandise is assembled on tables and in-
spected by checkers; packers fill. cases with goods; and markers mark
the cases, which then go to the shipping department and are sent to
..the stores.
B. Interference, restraint, and coercion
Prior to the summer of 1937, as far as the record discloses, no labor
,organization existed among the respondent's New York City ware-
house employees. In July 1937 the Union undertook to organize
,the warehouse and began to hold meetings of the employees. At an
early meeting those of the respondent's employees in attendance chose
23 "captains" or volunteer organizers and, from among the captains,
5 shop committeemen and 12 financial secretaries to handle dues
.collections.
In the course of the organization campaign the Union caused circu-
lars to be distributed near the building occupied by the warehouse.
'This activity early came to the attention of the warehouse supervisory
staff. Superintendents Cremin and Smith, having received union
circulars from distributors at the warehouse entrance, reported them
to Assistant Manager Tonery. Manager Allen received circulars
from an undisclosed source and passed them on to E. C. Mauchley, the
-resopndent's first vice-president. It is not clear what conversations
-took place among the warehouse supervisors when the circulars
passed among them; examination of those of the supervisors who
testified on this point elicited vague responses. On one occasion early
in the Union's campaign Assistant Manager Tonery said to Superin-
tendent Smith, referring to the organizing activity then being
Tmanifested, "Don't pay any attention to it just now."
The Union's circulars mentioned as the first objective which,might
'be attained through collective bargaining the amelioration of certain
working conditions claimed to have been unsatisfactory. Circulars
-dated July 7 and July 16 referred to the desirability of securing
payment for overtime work at the rate of time and one-half, rather
than at "straight time," -or the regular rate, according to the respond-
•ent's previous practice. On Saturday, July 16, a pay day, the re-
spondent paid the warehouse employees time and one-half for over-
'time work performed during that week, although no advance notice
of the change of rate had been given.
The circular of July 16 also asserted that one of the conditions to
be improved by action on the part of the Union was the respondent's
practice `of requiring the performance of overtime work on short
notice. A few days after July 16 Assistant Manager Tonery called
a number of employees to his office and distributed to them slips of
paper,on which he instructed them to indicate whether they wished
F. W. WOOLWORTH COMPANY x'369
to be given overtime work. Tonery collected the signed slips and
although he never referred to them afterward in allotting overtime
work, it was thenceforth the respondent's practice not to require
overtime work of employees who objected to it.
Circulars of July 7, July 16, August 2, and August 3 referred to
an increase in wage rates as one of the Union's principal objectives
to be requested of the respondent when the Union should have-
secured recognition and commenced bargaining. In August or Sep-
tember 6 1937, while the Union was still in its organizing stage and
before it had approached the respondent for recognition, the respond-
ent granted a general raise of at least one dollar a week to the ware-
house employees. This was an unusual procedure; Manager Allen,
testified that he could not remember when there had ever been a
general wage increase prior to that of August-September 1937.
We find that the respondent by making these concessions on over-
time and wage rates at a time when the organization of its employees
had just been inaugurated, sought thereby to forestall the Union's
organization campaign.7'
During the Union's organization campaign warehouse officials ques-
tioned eniployees^_ concerning union membership and activity. Man-
ager Allen called in Angelo Haase, one of the employees of longer
tenure and according to the latter, inquired his purpose in joining
the Union. Although Allen denied thus questioning Haase, \ce agree
with the Trial Examiner and accept Haase's version as against Allen's
`denial by reason of the generally vague and reluctant nature of the
testimony given by the latter witness. Murphy and Maurer, two-
employees, testified that Superintendent Cremin asked them whether
they had attended a union meeting on the evening preceding Cremin's-
inquiry. The Maurer conversation is undenied, and-although Cremin,
denied having thus questioned Murphy we find that he questioned
both Maurer and Murphy as testified to by them.
There was testimony to the effect that Cremin had been seen in.
the vicinity of the union meeting place. Such testimony in addition
to admissions alleged to have been made by Cremin was adduced
to establish the respondent's surveillance over meetings of the Union.
The union meeting place was on a busy street in New York City. We
do not find that Cremin's presence in the neighborhood gives rise
to an inference that lie was then engaged in spying, and the admis-
sions attributed to Cremin, which he denied, are not sufficiently
corroborated by persons alleged to have been present when he made
° The precise date of this is not fixed in the record John G. Downing testified that it
was in August or September ; according to A. J. Allen's estimate it occurred "seven or
eight months" prior to April 1938
' Cf. M H. Ritzwoller Company v. National Labor Relations Board (C C. A 7) decided'
May 8 , 1940 , enforcing Matter of The M H . Ritzwoller Company and Coopers' tnterna-
taonal Union of North America, Local No. 28, 15 N 1, R. B. 15.
'1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them.8 There vas testimony regarding alleged surveillance on the
part of other Warehouse supervisors, especially Superintendent Smith,
who is alleged to have circulated during working hours among em-
ployees who wore union membership buttons at work and noted down
their names. There is no showing however, that the supervisors in
fact noted down the names of union members. We do not find that
supervisors thereby practiced surveillance; their duty was to oversee
the work, and so far as the record shows, their activity (lid not
-materially vary from normal routines
Late in July or early in August 1937 the respondent instituted a
policy which restricted the freedom with which employees in the
8th Avenue packing room had previously moved about in the ware-
house wherever their work took them. Superintendent Crenlin and
Foreman Zimmerman assigned employees 'to particular aisles or
areas between benches and told them not to leave. Several of the
most active union members were assigned to the aisle between benches
9 and 10; this, the middle aisle, was known to employees as the
"observation aisle," and lay within full view of the foreman's desk.
-Downing, union shop committee chairman, and Phillips, Glasco, and
Gorey,'? union captains, were among the 12 persons thus assigned
to the "observation aisle." The respondent offered no explanation for
the isolation of these active union members and we find, as did the
Trial Examiner, that the respondent restricted the movement of
employees and segregated active union leaders in the "observation
aisle" for the purpose and with the effect of hindering the Union's
organization work.11
The complaint as amended during the hearing alleges that the
respondent engaged in an unfair labor practice by questioning em-
ployees on April 15 and April 22, 1938, concerning their union affili-
ation and the designation of the Union as their collective bargaining
agency. The complaint originally had listed erroneously as having
been discharged the names of 31 employees who had not in fact been
"Although it is clear from Cremul's questions to Murphy and Maury concerning their
attendance at a particular union meeting that he had some knowledge of union affairs,
tthe source of his information does not appear in the record and his knowledge is in-
sufficient to support a finding that he engaged in surveillance of the union meeting place.
9 We do find, as appears below, that the warehouse supervisors had opportunity to and
did discover the identity of union members without making an extraordinary effort to do
so.
10 Gorey testified that Manderwirth, Dowd, Smith, and Deasy, also captains, were as-
signed to this aisle. It does not appear, however, that Deasy was ever a captain, and the
other three were chosen captains only after November 13, 1937, to fill vacancies caused
by discharge
11 The issue herein does not involve an employer's right to limit union activity on the
job in a non-discriminatory manner Cf. Matter of Viking Pump Company and Lodge
1683, Amalgamated Association of Iron, Steel, and Tin TVorl ers, 13 N. L. R B. 576,
585-6 The measures here taken by the employer were adopted in order to isolate union
leaders and make examples of them rather than to police the warehouse, particularly since
Cremm, the supervisor responsible for this action, testified that he had not noticed an
unusual amount of talk which could be attributed to union activity.
F. W. WOOLWORTH COMPANY 1371
discharged. , On April 15 the respondent's counsel, in the course of
preparing his case, called in these employees and asked them whether
they had been discharged, whether they still wanted the Union to
represent them, and whether they wished an election held to deter-
mine a collective bargaining representative. On April 22 the re-
spondent's counsel caused to be circulated among the warehouse em-
ployees then working a petition requesting the Board to resolve the
question concerning representation by secret ballot. The Trial Exam-
iner excluded the original petition from evidence on motion of coun-
sel for the Board, but the text of the petition, excluding the
signatures, was read into the record.'
We find that the respondent's action in questioning employees as
to whether they still desired the Union to represent them and in cir-
culating the petition constituted an unlawful invasion of their rights
under the Act. The respondent might properly have inquired of
the employees named in the complaint whether they had been union
:menrbers ' at the - time of their alleged discharge ; such an inquiry
would have been legitimate in the preparation of the respondent's
defense to the allegations of discrimination. The respondent was at
liberty to and did present its own views to the Board as to the man-
ner in which the question concerning representation should be re-
solved and it sought to impeach certain membership records produced
.by union representatives. But it was not open to the respondent to
elicit from its employees their preference as to representation in the
future, or to solicit from them approval of the respondent's desire
that the determination of representatives be ascertained by an elec-
tion. The respondent was invading a field of union activity reserved
by the Act to the employees, and by the circulation of the election
petition among employees, many of whom were union members, the
respondent was inviting such union members to repudiate the posi-
tion taken by the union leaders, who had produced documentary
evidence which might have led to a certification on the record.,
We find that by granting concessions as to working conditions for
the purpose of forestalling and frustrating the, union campaign, by
questioning employees concerning their union affiliation and activity,
by segregating active union leaders in the "observation aisle," and
by circulating the petition for an election of bargaining representa-
tives, the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
C. Discrimination in regard to hire and tenure of employment
Several days prior to November 13, 1937, Assistant Manager
Tonery called several groups of about 20 employees each to his office
and read them a statement to the effect that owing to a falling off
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in business the staff would have to be reduced. On Saturday, No-
vember 13, and on the four following Saturdays a total of 152 ware-
house employees were laid of. The respondent asserts that they were
discharged, but we find, as did the Trial Examiner, that their sepa-
ration from the respondent's service constituted a lay-off. In no
instance did the supervisor who announced the lay-off to employees
assign any reason other than a lack of work to be done. The fol-
lowing is a summary of the number laid off by weeks, with the num-
ber of union members in each group :
Date (1937) Total laid off Total unionmembers
November 13-----------.--------------------------- 18 17
November 20-------------------------------------- 52 48
November 27-------------------------------------- 25 25
December 4---------------------------------------- 26 25
December 11--------------------------------------- 31 30
Total---------------------------------------- 152 145
On November 13, before this series of lay-offs began, the respondent
employed in the warehouse 416 persons exclusive of foremen, mer-
chandise stock clerks, and office workers-classes of employees whose
tenure has been relatively secure. Of these 416, 281 were union
members, constituting a proportion of 6712 per cent. The proportion
of union members in each weekly lay-off is substantially higher than
their proportionate representation in the general body of employees
prior to the lay-off; furthermore, it should be noted that each weekly
lay-off reduced the proportion of union members in the residue from
which the next selection was made. Stated in terms of percentages
the proportion of union members in the original group, in each
group laid off, and in the residue after each lay-off is as follows :
Percentage Union
November 13 before lay-off- ------------------------------- 67
Lay-off of November 13------------------------------------ 94
Residue after November 13 and before November 20 --------- 66
Lay-off of November 20------------------------------------ 92
Residue after November 20 and before November 27 -------- 62
Lay-off of November 27------------------------------------ 100
Residue after November 27 and before December 4---------- 59
Lay-off of December 4------------------------------------- 96
Residue after December 4 and before December 11 ----------- 56
Lay-off of December 11------------------------------------ 96
Residue after December 11-------------------------------- 51
Thus, although the proportion of union members among the em-
ployees prior to November 13 was 67 per cent, 95 per cent of the
employees who were laid off were union members, and the propor-
' Fractions are omitted from the percentages discussed herein.
F. W. WOOLWORTH COMPANY 1373
tion of union men who remained at work to the total number of
employees remaining was reduced to 51 per cent.
Of the 23 captains originally chosen by the Union , 2 were laid, off
on November 13 and 8 on November 20 . Thereafter 9 more captains
were chosen to take over the work of those who had been laid off.
Of the group of 22 captains thus constituted , 10 were laid off on
November 27 , 4 on December 4, and 5 , on December 11. Thus, of
32 persons who acted as captains , the respondent laid off 29, a pro-
portion of 90 per cent . The proportion of all union members who
were laid off was 51 per cent; that of all warehouse employees (with
the exclusions noted above was, only 36 per cent.. All the captains
who held positions as shop committeemen and financial secretaries
were laid off.
Between January 18 and February 21, 1938, the respondent recalled
to work a total of 42 of the employees who had been laid off in
November and December 1937. No new employees had been hired
up to the time of the hearing , when the warehouse was still oper-
ating with a force substantially smaller than that employed prior
to the lay-offs of November-December 1937 . Of the 42 employees
recalled in January-February 1938, 39 were union members , but none
of the 29 captains previously laid off was recalled.
We may summarize the results of the foregoing analysis as fol-
lows: In each of the 5 weekly group lay-offs the proportion of
union members exceeded that obtaining in the group from which
the selection was, made; union captains were laid off in a proportion
exceeding that which obtained among union members generally and
that which obtained among the whole body of warehouse employees;
none of the captains was recalled although more than one-fourth of
those laid off were recalled.
It would be expected that in a selection of employees to be laid off
without regard to union affiliation the proportion of union members
among those laid off would approximate the proportion existing in
the group from which selection was made. Similar considerations
would be expected to characterize the distribution of union captains.
The natural assumption would be that in any selection to which the
factor of union affiliation was irrelevant , union membership would
be distributed among those laid off and those retained as if by the
operation of chance. Of course any combination is a possible result
on the basis of pure chance. Variation from the expected does not
necessarily establish that the operation of chance-has been frustrated
by intelligent selection . When, however , the variation is marked or
is manifested consistently in repeated samplings, the hypothesis that
union membership was irrelevant to the selection gives way to the
inference that the selection was made upon a discriminatory basis.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A selection upon a discriminatory basis could have been made
only if opportunity existed for the warehouse management to dis-
cover the union affiliation of employees. This opportunity arose
when members of the Union commenced to wear membership buttons
to work; Manager Allen, Assistant Manager Tonery, and Super-
intendents Cremin and Smith all saw employees wearing buttons.
Knowledge of the identity of union captains, including shop com-
mitteemen and financial secretaries, could not have been gained in
this way, but these positions involved extensive -contact with other
warehouse employees, both union members and .non-members, and
it would not have been difficult for the management to ascertain the
identity of those who held such positions.
Having in view (1) the respondent's opposition to the Union as
found in Section III B supra, (2) the respondent's opportunity to
discover the identity of union members and officers, (3) the
excessive proportion of union members and officers among the em-
ployees laid off in November-December 1937, and (4) the absence
of union officers among employees recalled in January-February
1938) we believe that it was incumbent upon the respondent to ' offer
proof negativing the inference that the lay-offs were discriminatory.
As was said by the United States Circuit Court of Appeals for the
Seventh Circuit in an analogous case: 13
This inference of discriminatory discharge leaves it up to the
employer to give an adequate "explanation of the discharge," even
though the burden of proof remains on the Board [i. e., upon the
Board's prosecuting agents], since it is obvious that the reasons
of the discharge "lay exclusively within its [the employer's]
knowledge." 14
We turn to examine such explanation as the respondent has given
for the lay-offs `and the manner in which they were effected. The
respondent's answer alleges that "any men who were discharged were
dismissed because of the business recession rather than because'of
their membership in a union." A decline in the respondent's busi-
ness would naturally have its effect on the number of employees re-
quired to do the work and might well justify the reduction in the
force but it would not furnish any explanation of the manner in
which the reduction was effected or negative in any way the inference
of a discriminatory selection of persons for lay-off. If a decline
in business were shown to have eliminated the work done by par-
ticular employees the respondent might have justified their lay-off,
but no such showing was made.
18 Montgomery Ward & Co., Inc. v. National Labor Relations Board (C. C A 7) 107
F. (2d) 555; modifying and enforcing as modified Matter of Montgomery Ward & Com-
pany and Reuben Litzenberger et at., 9 N. L. R . B. 538.
14 Citing National Labor Relations Board v. Remington Rand Inc. ( C. C. A. 2) 94 F.
(2d) 862, 871, 872.
F. W. WOOLWORTH COMPANY 1375
The respondent's evidence of decline in business and lack of work
consisted' only of statistics on the value of goods passing through
the warehouse and general estimates by supervisors as to the vol
ume of work to be done at different periods. The Trial Examiner,
found that an apparent decline in business did not justify the
unprecedented curtailment in personnel. Since the decline in busi-
ness asserted by the respondent would not, if established, be
inconsistent with the inference of a discriminatory selection which is
afforded by the high incidence of lay-offs among union members and
officers, it is not necessary to make any finding as to the extent
of such decline or its effect in the volume of work to be done in the
warehouse. A showing that the reduction was in fact unnecessary
would tend to add conviction to the inference of discrimination, but
upon examination of the statistics on volume of business, and con-
sidering that the respondent was able to operate its warehouse until
at least' April 1938 with a substantially reduced force, we do not
find that the reduction was unnecessary.,' We proceed to consider
such evidence as bears on the method by which The selection was
made and the principles upon which those responsible made their
choice.
Assistant Manager Tonery determined to reduce the staff, subject
to the approval of Manager Allen, which was obtained. About a
week prior to the first lay-off on November 13, 1937, Tonery directed
the four superintendents to prepare lists of employees whose services
they no longer required. The superintendents consulted the fore-
men under them for comment on certain employees. Thereafter
the superintendents conferred with Tonery weekly for 5 weeks to
prepare definitive lists. The discussions resulted in some changes
in the tentative lists, and in some cases foremen were called into the
conference to furnish information as to particular individuals under
consideration. The record does not show which of the supervisors
15 Outgoing shipments were only 11/2 ,per cent less in the period from September through
December 1937 than in the corresponding period in 1936. The total of incoming ship-
ments for those 4 months in 1937 was about 45 per cent less than the total for the
corresponding period in 1936 . If it be assumed that work to be done in the warehouse
bears a direct relation to the dollar volume of merchandise handled , such lack of work
as existed late in 1937 may be attributed to the decline in incoming shipments Yet there
appears to be no direct correlation between incoming shipments and total working force,
on the basis of the statistics in evidence , in 1936, the only year for which we have figures,
a 50 per cent increase in incoming shipments from October to November was accom-
panied , not by an increase in average employment , but by a decrease of 13. The effect
of fluctuations in incoming shipments on amount of work to be done as reflected in the
total working force , is apparently not immediate , but must be manifested over relatively
long periods and with a minimum of concomitant variation over short psiiods we as-
sume , for want of evidence to the contrary , that the state of the respondent ' s warehouse
business in the latter part of 1937 justified the reduction in force. Thus the evidence
relating to the volume of work handled by the warehouse during the period in question is
wholly consistent with, but adds nothing to, the inference of disciiminatory selection
which arises ' from the distribution of union members and officers among the employees
laid off and those recalled.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were responsible for making the selection in any particular depart-
ment, except that Foreman Weinert made recommendations as to
-the elimination of order clerks. Superintendent Jacobus did not
testify at the hearing. Weinert was the only one of the respondent's
-22 warehouse foremen to testify.
On direct examination by counsel for the respondent those of the
respondent's warehouse supervisors who testified stated generally
that they had not discriminated against employees- on account of
union membership or activity, but none of them was asked ' the
reasons for the lay-off of any individual. Thus the respondent did
not attempt to give such "explanation of the discharge[s]" as "lay
exclusively within its knowledge," 16 although it rested with the re-
-spondent to come forward with the explanation if it would contest
-the inference of discrimination which arises from the excessive
proportion of union members and officers among employees laid off.17
In their direct testimony Manager Allen and Tonery, his assistant,
did make statements bearing on the efficiency or reliability of six
employees, not as furnishing a reason for their lay-off, but in the
-course of a denial or explanation of some incident concerning which
these employees had testified for the Board. One of these, Castle,
-was described by Tonery as a "fair worker." Tonery testified that
`he had-cautioned Dorset for talking too much, White for making
mistakes, and Moreno for talking, making mistakes, and not attend-
ing to his work. Allen testified that he cautioned Haase about
.complaints of his ,using liquor while at work. In each of these cases
the manager or assistant manager referred to complaints- made by
-others. The complaint against Dorset arose from his solicitation
of another employee while on the job to join the Union. White.and
Moreno were order clerks and, as pointed out below, the respondent
failed to produce checkers' lists which would show the relative effi-
fciency of order clerks; moreover, errors must not have been unusual,
considering that the respondent regularly employed two "short boys"
to fetch goods which checkers found missing from orders filled by
order clerks. There is no evidence tending to show that Haase
drank or showed. the influence of liquor while on the job, and the
Tecord does not reveal who complained to Allen about him, if com-
plaint was in fact made.
Toneryy' also testified concerning Walter Nelson, one of the union
captains, who was laid off: Nelson had been absent from work
10 National Labor Relations Board v. Remington Rand Inc. (C. C. A 2) 94 F. (2d) 862,
cert. denied 304 U S 576 , 585, enf'g Matter of Remington Rand Inc. and Remington
Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L.
R. B 626
. 'T Montgomery Ward & Co. v. National Labor Relations Board (C. C. A. 7) 107 F.
(2d) 555 , modifying and enforcing as modified Matter of Montgomery Ward & Company
and Reuben Litzenbeiger et al, 9 N. L R. B 538. -
F. W. WOOLWORTH COMPANY 1377
without leave one day in October 1937 and when he reported for
work the next day he gave=a false -excuse for his absence. He was
called to Allen's office, questioned in the presence of Allen, Tonery,•
and four other supervisors, and then permitted to return to work:
He was not laid off until November 20, and at that time no reason
was assigned. We find that the comments made by Allen and Tonery
on Castle, Dorset, White, Moreno, Haase, and Nelson do not ade
quately explain their lay-off, particularly since the considerations
mentioned were not advanced as the effective reasons for their lay--
off.
Manager Allen testified that seniority was not followed in>select-
ing employees to be eliminatedl.18 According to Allen and Assistant
Manager Tonery, ability was the principal factor considered; where
ability was equal the management took into account employees'
needs by reason of marital status or dependents. Since the record
does not show which employees were married or had dependents, the
lay-offs cannot be explained on the basis of employees' relative need.
There remains the criterion of ability, to which supervisors who testi-
fied added the further factor of disciplinary complaints standing
against employees who were otherwise classified as "good" or "fair"
with regard to efficiency.
Counsel for the Board asked supervisors who testified to give their
estimate of the ability of 76 employees, including 29 union captains
and 35 union members who had been laid off. The captains were all
classified as "good," "fair," or either of these with certain disci-
plinary complaints. The most frequent complaint was that the em-
ployee "talked too much." Foreman Weinert testified that the mai ter
of excessive talk outweighed the factor of ability in making the-
selection of men to be dismissed. There was no rule forbidding
employees to talk on the job; conversing was objectionable only when
it distracted employees' attention from their work. There may
have been an increase in the amount of talk among warehouse em-
ployees at the time of the Union's campaign. On this point the-
supervisors differed. Assistant Manager Tonery and Foreman Wein-
ert testified that the talking had increased, while Superintendents
Cremin, Smith, and Williamson testified that` they had not noticed'
any change, although they had cautioned certain individuals. None
of the supervisors who testified attributed the talk to union activity;
they all professed ignorance of the topic of the conversations. In
view of the absence of any general rule or warning against talking,
the high incidence of this complaint as applied to union officers and
With respect to further reasons advanced by the respondent for the selection of em-
ployees for .lay-off, the testimony was elicited by counsel for the Board upon cross-
examination of the respondent's supervisory employees.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members, and the generally evasive testimony of the supervisors,19
we are convinced that the objection to employees' talking was in
fact an objection to the organization of employees in the Union.
The other principal complaint related chiefly to order clerks, some
of whom were claimed to have made "too many" mistakes. Although
records regularly made by checkers show the number and character
of errors made by order clerks, the respondent -did not produce or
account for any such records. The supervisors who testified made
no attempt to state with any precision the relative number of errors
made by individuals. That any individual made mistakes is of little
significance, considering that the frequency of mistakes is such that
the respondent employs two full-time workers to supply goods
omitted from orders by order clerks.
Superintendent Smith testified on cross-examination that Thomas
Glasco, a union captain, "was considered a fair worker, but in view
.of the language he used, he was let go for that reason." Glasco had
in fact addressed abusive epithets to supervisors on at least two
occasions, the latter of which occurred' in October 1937. He was
laid off on November 20, 1937, receiving notice from Foreman Reen,
who stated, according to Glasco's uncontradicted testimony, "There
is not much business doing now and we will have to let you go,
and we may call you in two weeks or a month." Glasco was not
recalled up to the time of the hearing. However adequate reason
Glasco's language might have furnished for his elimination from the
respondent's employ, we are convinced that the respondent did not
act upon this reason when it selected Glasco for lay-off. Accordingly,
we find that the inference of discrimination which exists in the case
of Glasco as a union member and captain is not overcome.
Other miscellaneous complaints mentioned by supervisors might
have furnished an explanation of the discharge of individuals if
there were any basis of comparison available from the record; failing
that, we cannot say that such complaints, mentioned for the first
time by supervisors on cross-examination, furnish the explanation
which is acquired to overcome the inference of discrimination which
we derive from the unequal treatment of union members and officers
In the reduction of the warehousd force. Likewise, supervisors'
off-hand judgments that certain employees were "not so good" or
"poor," fail to explain the lay-offs adequately where the relative
standing of comparable employees is not mentioned.
We find that the respondent has failed to furnish adequate ex-
planation for the lay-off of union members named in the complaint,
that it selected employees for lay-off on November 13, November 20,
is Compare Weinert's testimony to the effect that a particular union member "was a
good worker until the union-until the talking started
F. W. WOOLWORTH COMPANY 1379
November 27, December 4, and December 11, 1937, by reason of their
affiliation with or activity on behalf of the Union, and that it omitted
to recall union captains to work in January and February 1938
on account of their positions in the Union. By the foregoing conduct
the respondent has discriminated in regard to hire and tenure of
employment and the terms and conditions of employment of those
employees listed in Appendix A, herein, thereby discouraging mem-
bership in the Union and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III B and C above, occurring in connection with the operations of
the respondent described in Section I above, have, a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States and with foreign countries, and tend to lead to labor
disputes burdening and obstructing -commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom. In
order to effectuate the purposes and policies of the Act, and as a
means of removing and avoiding the consequences of the respondent's
unfair labor practices, it is essential that in aid of our cease and
desist order the respondent be directed -to take certain affirmative
action more particularly described below.
We have found that the respondent selected employees for lay-off
upon a discriminatory basis. It may well be that a non-discriminatory
selection of persons to be laid off would, in view of the proportion
of union members in the group from which selection was to be made,
have resulted in the elimination of many of those named in the
complaint, absent any unfair labor practice. But when the respond-
ent selected men for lay-off on the basis of union affiliation it deprived
each of them of his opportunity to remain as one of those who
would have been passed over in a non-discriminatory selection. We
cannot say as to any individual that the respondent's discriminatory
selection did not, deprive him of employment. It was up to the
respondent "to disentangle the consequences for which it was re-
sponsible from those from which it was immune," 20 and to establish
affirmatively as to any person in the group that he would have been
-ii National Labor Relations Board v. Remington Rand Inc (C. C. A. 2) 94 F. (2d)
862, cert. den . 304 U. S. 596 , modifying and enforcing as modified Matter of Remington
Rand Inc and Remington Rand Joint Protective Board of the District Council Office
Equipment Workers, 2 N. L. R. B. 626.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off or discharged had lie not been affiliated with the Union 25
This the respondent has failed to do.
We shall order the respondent to offer reinstatement to their
former or substantially equivalent positions to such of those persons
as are named in the complaint and listed in Appendix A hereto.
Such reinstatement shall be effected in the following manner. All
employees hired since December 11, 1937, except former employees
reemployed, shall, if necessary to provide employment for those to
be offered reinstatement, be dismissed. If thereupon, by reason of a
reduction in force, there is not sufficient employment immediately
available for the remaining employees, including those to be offered
reinstatement, all available positions shall be distributed among such
remaining employees in accordance with the respondent's usual-
method of reducing its force, without discrimination against any
employee because of his union affiliation or activities and following a
system of seniority to such extent as has heretofore been applied
in the conduct of the respondent's business. Those employees re-
maining after such distribution, for whom no employment is im-
mediately available, shall be placed upon a preferential list prepared
in'accordance with the principles set forth in the previous sentence,
and shall thereafter, in accordance with such list, be offered employ-
ment in their former or in substantially equivalent positions, as
such employment becomes available and before other persons are
hired for such work.
In the ordinary case where we have found that employees were
discriminatorily discharged we have ordered the employer to make
them whole by paying-each of them an amount of money equal to
that which he would have earned in the position from which he was
discharged from the date of his discharge to the date of reinstate-
ment pursuant to our order, less his net earnings 22 during the same
21 See Matter of Ford Motor Company and United Automobile Workers of America,
Local No 325, 23 N L R B. 342, footnote 65
27 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have occurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere. See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440 Home-relief payments
are not deductible as earnings , Matter of Vegetable Oil Products Company,, Inc. and Soap
and Edible Oil Workers Union, 5 N. L. R. B. 52; neither are unemployment benefits de-
ductible. Matter of Walter Stover, doing business under the trade name and style of
Stover Beddinq Company and Upholsterers Allied Crafts Local Union No 501, 15 N. L. R. B.
635 ; Matter of Oil Well Manufacturing Corporation and Nmployees Mutual Benefit As-
sociation, 14 N. L R. B. 1114. Monies received for work performed upon Federal,
State, county , municipal , or other work-relief projects are not considered as earnings, but,
as provided below in the Order, shall be deducted from the sum otherwise due the employee,
and the amount thereof shall be paid over to the appropriate fiscal agency of the govern-
ment, or governments which supplied the funds for said work-relief projects. See Republic
Steel Corp v. National Labor Relations Board, 107 F. (2d) 472 (C C. A 2) cert. granted
60 S. Ct. 1072
F. W. WOOLWORTH COMPANY 1381
period. Our order in this case , although designed to achieve the
same general objective of restoring the status quo, will differ from
the usual order with respect to the period for which back pay will
be due and the manner of computing back pay for that period.
The period between our order of July 21, 1939, vacating the Inter-
mediate Report and the order of July 3, 1940, revoking the prior
order and reinstating the Intermediate Report will be excluded from
consideration in the computation of back pay. 23 This limitation on
the period during which back pay is due will in our judgment best
effectuate the policy of the Act.
With respect to the method of computing back pay during the
remaining period, it is to be observed that complications arise from
the sharp reduction in the respondent's warehouse force in 1937 and
from the lack of information in the record concerning variations in
the warehouse force since the hearing. The respondent's warehouse
force was reduced by more than one-third (from 416 to 264) late
in 1937 and the warehouse was still operating with a reduced force
at the time of the hearing. As we have stated above, we must as-
sume that the reduction in the force to the extent which took place
(apart from the question concerning the manner of selection) was
justified by the exigencies of the respondent's business. Accord-
ingly, even had the respondent selected employees for lay-off and
recall upon a non-discriminatory ' basis some of those named in the
complaint would probably not have had continuous employment by
the respondent. In laying off and recalling employees the respond-
ent has observed no standard capable of objective application; con-
sequently a precise restoration of the status quo would require the
respondent now to exercise that non-discriminatory but still dis-
cretionary selection which it should have made in 1937. This raises
certain difficulties in determining the identity of those to receive
back pay and the amounts which they should receive. Since we
cannot determine the exact amount each employee would have earned
but for the discrimination, we have turned to a method of ' calcula-
tion which we deem at once equitable and practicable and in con-
sonance with the policy of the Act.
We have found that immediately preceding the lay-offs of November
and December union members constituted 67 per cent of the total
number of persons, with whom we are here concerned, employed by
the respondent. Had the respondent been unmindful of the union
affiliation and activity of its employees, the same percentage would
in all probability have obtained among the group laid off and among
the employees remaining at work although the number of employees,
23 Cf. Matter of E. R. Haffelfinger Company, Inc . and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760.
283036-42-1 ol. 25--88
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including union members, in the latter category would have been
reduced. Thus by December 11, after the respondent had been com-
pelled to reduce its staff for business reasons by 152 employees, 67
per cent of the total affected, or 102 employees by number, would
have been union members and, of the 264 who remained at work, the
same percentage or 178 employees would have been union members.
Thus it appears that, in laying off 145 union members, the respondent
laid' off 43 more union members than would have been laid off had
not the respondent discriminated against such employees. We shall,
therefore, order the distributon in equal amounts among the 140
employees generally affected of the total sum which 43 of them would
have earned as wages for the period between December 11, 1937, and
January 18, 1938, the first date on which employees were recalled.
Since, however, the rate of pay of all employees was not identical, -
we deem it equitable and expedient to calculate the amount which 43
employees would have earned during this period on the basis of
the average wage earned by all the warehouse employees ( exclusive
of foremen, merchandise stock clerks, and office workers) who were
retained in the respondent's employ during such period. There shall
be deducted from the amount otherwise due each employee such sum
as represents his net earnings,24 if any, during such period.
By February 21, 1938, the respondent recalled to work 42 employees
from among the entire group previously laid off, raising to 306 the
number of employees actually at work and needed by the respondent
at that time. Had the respondent not discriminated against union
members in making the original lay-offs, the percentage of such
employees actually employed after February 21, 1938, would in all
probability have been no different from that which obtained before
the lay-offs and would, on that basis, have numbered 205. Instead,
only 175 union members were at work after that date. Thus there
were 30 fewer union members employed after February 21, 1938,
than would have been employed had the respondent not discriminated
against such employees. For this reason we shall order the respondent
to distribute equally, among the 106 union members who were not
recalled by February 21, 1938, the total sum which 30 employees
would have earned as wages from February 21, 1938, to July 21, 1939,
and from July 3, 1940, to the date of this Order. The calculation of
the total amount to be distributed to this class of employees is to
be made on the same basis as we have indicated with respect to the
first computation of back pay, and in the same manner there shall
be deducted from the amount otherwise due each employee such sum
as represents his net earnings,25 if any, during the periods in question.
24. See footnote 22, supra.
w See footnote 22, supra
F. W. WOOLWORTH COMPANY 1383
Each of the employees named in Appendix A whom the respondent
fails to offer reinstatement or place on a preferential list, in violation
of our Order, shall be entitled to payment of a sum of money equal
to that which he would normally have received as wages during the
period from the date of this Order to the date of the offer of rein-
statement or placement upon the preferential list as set forth above,
less his net earnings,26 if any, during such period.
THE PETITION
In view of the' long lapse of time since the hearing we shall dis-
miss without prejudice the petition of the Union for an investigation
and certification of representatives.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. United Wholesale & Warehouse Employees of New York, Local
65, affiliated with United Retail & Warehouse Employees of America
and With the Congress of Industrial Organizations, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to hire and tenure of employment
and terms and conditions of employment of the employees listed in
Appendix A, thereby discouraging membership in United Whole-
sale & Warehouse Employees of New York, Local 65, United Retail
& Wholesale Employees of America, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not kept under surveillance the meetings
or meeting places of the Union as alleged in the complaint.
ORDER
Upon the basis of the above findings of fact and -conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
-m See footnote 22, supra.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, F. W. Woolworth Co., a New York corporation, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Wholesale & Warehouse
Employees of New York, Local 65, United Retail & Wholesale Em-
ployees of America, or any other labor organization, by discharging,
laying off, or refusing to reinstate any of its employees or in any
manner discriminating in regard to hire and tenure of employment,
or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes 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) Offer to the employees listed in Appendix A full and imme-
diate reinstatement to their former or substantially equivalent posi-
Lions without prejudice to their seniority and other rights and
privileges, in the manner set forth in the section entitled "The
Remedy" above, placing those employees for whom employment is
not immediately available upon a preferential list in the manner set
forth in said section, and thereafter, in said manner, offer them em-
ployment as it becomes available;
(b) Make whole each of the employees listed in Appendix A for
any loss of pay he may have suffered by reason of the respondent's
discrimination against him as to his hire and tenure of employment
in the manner set forth in 'the section entitled "The Remedy," less
his net earnings during said period; provided, however, that the
respondent shall deduct from the amount otherwise due each of
said,employees, monies received by said employee during said period
for work performed upon Federal, State, count},, municipal, or other
work-relief projects, and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal
,or other government, or governments which supplied the funds for
said work-relief projects;
(c) Make whole the employees listed in Appendix A for any loss
of pay they may suffer by reason of any failure, subsequent to this
Order, to offer to reinstate or place them upon the preferential list
described in "The Remedy," less his net earnings during said period ;
provided, however, that the respondent shall deduct from the amount
otherwise due each of said employees, monies received by said em-
ployee during said period for work performed upon Federal, State,
F. W. WOOLWORTH COMPANY 1385
county, municipal, or other work-relief projects, and pay over the
amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal or other government, or governments which
supplied the funds for said work-relief projects ;
(d) Post immediately in conspicuous places at its New York City
warehouse and maintain for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3)
that the respondent's employees are free to become and remain mem-
bers of United Wholesale & Warehouse Employees of New York,
Local 65, United Retail & Wholesale Employees of America, and the
respondent will not discriminate against any employee because of
membership or activity in that organization;
(e) Notify the Regional Director of the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed in so far as it alleges that the respondent has
engaged in unfair labor practices within the meaning of Section 8
(1) of the Act by keeping under surveillance the meetings and
meeting places of the Union.
IT IS FURTIIER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed as to F. W. Woolworth Co. of France, a Delaware
corporation.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives filed by the Union be, and it hereby is,
dismissed without prejudice.
APPENDIX A
Joseph Acker
David Anderson
Whitney Barnes
Edwin Beers
William Bohn
John P. Bradley
William Bremner
Richard Brew
Hawley Brown
John Bryceland
Joseph Budickas
Roland Buggiani
Arthur Callender
Frank Campbell
Bernard Carty
James Castle
John Claire-
John Clark
Roland Clark
James Colton
Rocco Coppola
John Corbally
Owen Thomas Coyle
Joseph Cronin
John Crumish
Michael Cullen
Douglas Curtis
George Daly
Daniel Deasy
William Doody
Ashton Dorset
William Dowd
John Downing
William Dunn
Lawrence Elberfeld
Joseph Elias
Floyd Esposito
Norman Fawkes
1386
Henry Femmel
Raymond Fink
Louis Fischer
John Francis Flynn
John Fox
Thomas Gerinann
Lawrence Giordano
Thomas Glasco
Stanislaus Golas
John Gorey
Harry Green
William Gretz
John Grieskewicz
James Griffin
Edward Grismer
Harry Grobe
Angelo Haase
John Hajduchik
James Hanley
Robert Hansen
Robert Henry
Joseph Herman
Ernest Hofer
Louis Huck
George Jewart
David Jones
Thomas Jones
John Jordan
Daniel Kane
Jerome Keller
John Kennedy
Anthony Lando
Edward La Vie
Charles Leger
Gilbert Liljedahl
Thomas Manahan
Joseph Mandewirth
Herman Mannell
DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Nicholas Manorek
William Maurer
Thomas McDonough
Arthur McGuire
William McVey
Lawrence Mennig
Robert Moreno
Alexander Morrell
John Moyne
Ernest Mueller
James Mullady
James Patrick Murphy
Lester Nelson
Walter Nelson
James Nigro
John Nugent
Howard O'Brien
William O'Brien
Henry Olsen
John Francis O'Neil
Charles Owens
James Parry
Cyril Pena
John Petty
William Pfeiffer
Edward Phillips
Robert Phillips
William Polanski
Stanford Pollard
Robert Quarles
Russell Reaber
William Reason
Albert Reichardt
John Reutershan
Fred Roettger
Anthony Rutko
George Ryan
Robert Ryan
William Saul
Joseph Schuck
John Schwartz
James Shaw
Bernard Sheehan
James Sim
Malcolm Skinner
Nathaniel Smalls
Alexander Smith
George Steinmetz
Henry Stollenwerck
Edward Stolpa
James Sullivan
Frank Swarts
Joseph Taylor
Lucien Todman
Edward Velez
Michael Verbitsky
Thomas Walsh
William Walters
Andrew Walton
Hubert Weeks
Eric White
John White
Gustave Woefel
Frank Wright
1387
Mr. WILLIAM M. LEiSERSON took no part in the consideration of
the above Decision and Order.