Fabric Mart Draperies, Inc.

National Labor Relations Board - Board Decisions

May 12, 1970

182 N.L.R.B. 390 (N.L.R.B. 1970)

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fabric Mart Draperies , Inc. and Branka Veljkovic. Cases
13-CA-8740 and 13-CA-9013
May 12, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 26, 1969, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.
The General Counsel filed cross-exceptions to the Trial
Examiner's Decision and a brief in support of cross-
exceptions and in answer to Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in' con-
nection with this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions,' cross-exceptions, and briefs, and the
entire record in this proceeding, and hereby adopts
the findings, conclusions, and recommendations of the
Trial Examiner, except as herein modified.
The Trial Examiner found, and we 'agree, that
Respondent constructively discharged Branka Veljkovic
on January 3, 1969, in violation of Section 8(a)(3) and
(1) of the Act; that she should be offered immediate
and full reinstatement to a position substantially equiva-
lent to her former position, without prejudice to seniority
and other rights and privileges; and that she should
be made whole for any resulting loss of pay from
January 3, 1969, to the date she is offered reinstatement,
less her net earnings during that period.
The Trial Examiner also expressed the "opinion based
on . . . medical evidence . . . that Veljkovic's physical
condition did not preclude her from engaging in her
regular work as a sewer for more than at most a few
days beyond January 3, 1969 . . . and that for all
practical purposes her backpay should start with April
1, 1969, when she applied for reemployment and was
turned down." However, the Trial Examiner "[made]
no findings thereon" because he regarded this question
as a matter for determination at the compliance stage
of this proceeding. We do not agree with these statements
for the following reasons:
As the Trial Examiner correctly found, Respondent
on September 26, 1968, punished Veljkovic in violation
of Section 8(a)(1), (3), and (4) of the Act by assigning
where she was exposed to a draft which became increas-
ingly cold during the approximately 3 months until Janu-
ary 3, 1969, when she became ill and told her foreman
that she was unable to work. The Trial Examiner also
properly found on the basis of the credited testimony
of Veljkovic's personal physician, Dr. Robert A. Best,
that the draft at her work station so aggravated her
arthritic condition as to prevent her from going to work
early in January. The record further shows that it was
not until April 1, 1969, that Dr. Best, who examined
Veljkovic on five separate occasions, released her as
medically fit for employment
As it is clear from the foregoing that Veljkovic,
who was constructively discharged on January 3, 1969,
was unable to work from that date until April 1, 1969,
because of illness which was attributable to the unlawful
conduct of Respondent, we disavow the.Trial Examiner's
"opinion" and affirm his "finding" that the backpay
period should extend from January 3, 1969, to the date
of an offer of reinstatement by Respondent.' According-
ly, there remains for the compliance stage only a determi-
nation as to the amount of backpay.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified herein, and orders
that Fabric Mart Draperies, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order, as herein modified:
Delete from paragraph 2(a) of the Trial Examiner's
Recommended Order the words "in the section of this
Decision entitled `The Remedy' " and substitute therefor
the words "in the Board's Decision."
this work area As the presence of one other employee would not
affect the validity of his finding that this work station was "essentially
isolated ," we find it unecessary to evaluate the opposing contentions
of the parties
Y See M F A Milling Co , 170 NLRB No I1 1 , American Manufactur-
ing CompanA, of Texas, 167 NLRB 520
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: The Charging
Party herein is Branka Veljkovic, a woman of foreign
birth, who commenced-'erhployment with the Respondent
Company as a sewer of fabrics in 1966, was discriminato-
rily discharged on December 22, 1967, and was reinstated
on June 24, 1968, as a result of a prior unfair labor
practice proceeding before the Board pursuant to an
order of a Trial Examiner after a full trial." '
her to a "remote and essentially isolated work station"' ' As reported in the Decision of Trial Examiner Butt in Case
13-CA-8198 and the Order of the Board adopting Examiner Bott's
Decision which are of record herein as G C 's Exh 3 Examiner
The General Counsel and Respondent differ as to the correctness Bott's Decision was issued on June 6, 1968, the Board adopted his
of the Trial Examiner's finding that a cutter was also assigned to Decision on July 22, 1968, Branka Veljkovic was returned to work
182 NLRB No. 55
FABRIC MART DRAPERIES '
The issues in the present proceeding are whether
the Respondent, upon reinstating Branka Veljkovic, sub-
sequently committed various acts with respect to her
in violation of Section 8(a)(1) and (4) of the National
Labor Relations Act, and eventually caused her discrimi-
natory constructive discharge- as of January 3, 1969,
in violation of Section 8(a)(3) of the Act. The specific
issues under Section 8(a)(1) are: (1) the assignment of
,Veljkovic upon her reinstatement on June 24, 1968,
for a period of 20 days to an isolated work station
as retribution for using Board processes; (2) her later
reassignment to an isolated station from September 26,
1968, through January 2, 1969, as further retribution
,for using Board processes; (3) loss of hours of work
by Veljkovic brought on by illness allegedly provoked
by the discriminatory assignment of work from Septem-
ber 26, 1968, through January 2, 1969;2 (4) alleged failure
of Respondent to reemploy Veljkovic on April 1, 1969,
pursuant to her reapplication for employment; (5) alleged
unlawful interrogation of Veljkovic by Respondent's
Vice President William Shapiro on or about July 15,
1968, about her conversation with an agent of the Board
and alleged insulting remarks by Shapiro during the
course of the interrogation to her concerning her country
of origin and personal appearance; (6) alleged statement
by Respondent's President Morris Shapiro to Veljkovic
on or about October 21,1968, upon her complaints about
her working conditions, that she would be assigned
to any area of the plant that Respondent decided to
place her, and that she could quit if she was dissatisfied;
and (7) an alleged unlawful interrogation of Veljkovic
on or about November 10, 1968, by Respondent's Vice
President William Shapiro about the charge she filed
in Case 13-CA-8740 herein on October 29, 1968, and
alleged insulting remarks to her by Shapiro during the
course of the interrogation concerning the country of
her origin.
Additionally there are issues under Section 8(a)(4)
and (1) of the Act of whether Respondent engaged
in the conduct and acts described in the above sentence
under numbers (1) through (4) because Veljkovic filed
charges or gave testimony under the Act.
The consolidated complaint herein was issued on July
14, 1969, together with an order consolidating the two
indicated cases for trial and decision. The charge in
Case 13-CA-8740 was filed on October 29, 1968, and
by Respondent on June 24, 1968, approximately a month before the
Board entered its order adopting Examiner Bott's Decision
2 This issue reflects an oral amendment at the trial of par VII
(c) of the complaint Originally, the subparagraph in question read
(c) During the period from January 3, 1969, through March 31,
1969, Respondent did cause Branka Veljkovic to lose hours of
work
As amended the subparagraph now reads
(c) From January 3, 1969, through March 31, 1969, Branka Veljkovic
did go on sick leave, and that as a result of such sick leave,
she did lose hours of work, and that the sick leave was a result
of an illness caused by the discriminatory assignment of work
from September 26, 1968 through January 2, 1969
The amendment was allowed by the Trial Examiner subject to the condi-
tion that it be submitted in writing The Examiner deems the statement of
the amendment by General Counsel in his brief to be a compliance of the
condition
391
served upon Respondent on October 30, 1968. The charge
in Case 13-CA-9013 was filed on April 8, 1969, and
served on Respondent on April 10, 1969.
The case was heard at Chicago, Illinois, on August
26 and 27, 1969. Briefs have been filed by counsel
for General Counsel and by counsel for Respondent.
These have been carefully reviewed and considered.
Upon the entire record and from his observation
of the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Illinois corporation engaged in the
manufacture and sale of draperies with a factory and
showroom in Chicago, Illinois, and various stores else-
where in Illinois, Indiana, and Wisconsin. During the
year prior to the issuance of the complaint, Respondent
manufactured and sold, products at retail, the gross
value of which exceeded $1,000,000. During the, same
period, Respondent purchased materials outside the State
of Illinois valued in excess of $1 million which materials
were shipped directly to it in Illinois. Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
Respondent's factory in Chicago is the only one of
its facilities involved in this proceeding.
11. THE LABOR ORGANIZATION INVOLVED
At all times here pertinent Respondent had a contract
with Local,No. 18, Upholsters' International Union of
North America, AFL-CIO, covering wages, hours, and
working conditions of certain of its employees at its
Chicago facility. The Union is a labor organization within
the meaning of Section 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent's principal place of business is a one-
story 67,000-foot plant at 1401 East 95th Street, Chicago,
Illinois, built to its specifications 3 years ago where
it maintains a factory, showroom, and warehouse. The
Chicago plant manufactures the draperies sold at
Respondent's, various retail stores in Illinois, Indiana,
and Wisconsin. Morris and William Shapiro, brothers,
are president. and vice president of the Company, respec-
tively, and have held such offices for the past 16 years.
Respondent's business has expanded and prospered
under their management. Their executive offices are
at the Chicago plant.
The principal manufacturing activity at the plant is
the manufacture of draperies. The Company employs
between 60 and 70 women in its drapery department
to sew draperies. At the time here pertinent the Respond-
ent also maintained an upholstering department at its
8 The findings of the above paragraph are based in part on the
findings of Examiner Bott in the prior proceeding in Case 13-CA-8198,
supra , and in part on the record in the present proceeding
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago plant where it employed approximately nine
meh and two women. In ' 1968, Respondent had gross
sales of $5,800,000 from its total operations, of which
approximately $5,700,000 was derived from the sale
of draperies and the 'remaining $100,000 from its uphol-
stering activities.
This proceeding relates solely, to Respondent's uphol-
stery department where the. Charging Party, Branka
Veljkovic, was employed.
As heretofore noted, Branka Veljkovic after her discri-
ninatory discharge of December 22, 1967, was reinstated
on June 24, 1968, pursuant to the order of a Trial
Examiner in a prior unfair. labor practice proceeding
against the Respondent. A native of Yugoslavia, she
was hired by Respondent in May of 1966' and assigned
to sewing work in the drapery department. In July
of 1967, she was transferred to the upholstery department
where she sewed covers for upholstered furniture.
The upholstering department where Veljkovic worked
prior to her discharge consisted of a corner room divided
into two parts by a horizontal wall and a connecting
door.' The upper or north part of the divided room
was the larger of two. This 'was the work shop where
all of the upholstering employees worked. The lower
or south part of the room was used for the storage
of completed upholstered furniture and janitor supplies.
'The double room occupied by the upholstering depart-
ment is markedly distinguishable 'from all other spaces
in the same general area' of the plarit as it is enclosed
by concrete walls from floor to ceiling whereas all other
adjacent and nearby areas are separated one from the
other only by open wire fences that extend only, halfway
to the 16-foot ceiling.
Upon.her reinstatement, Veljkovic was isolated from
the rest of the upholstery workers in the north room
of the department and placed at a work station in
the adjoining south room where she was required to
work alone. This assignment to an isolated work station
took place after Veljkovic had called Vice President
William Shapiro in response to a letter she had received
offering her reinstatemnt. Her credited testimony shows
that in speaking to Shapiro she said that she understood
from the letter that the Company "want me to come
back" and that Shapiro replied, "I don't want you.
My lawyer wrote that letter." ,
Being unhappy with her new work station because
of its isolation from all the other upholstery employees
she asked Knute Miller, her foreman, shortly after her
recall why she had been isolated to the storage room
away from all the other upholstering employees. Miller
replied that was what she "deserve[d]."
William Shapiro testified that he assigned Veljkovic
to the, storage room because he needed more space
in the regular upholstery workshop. This testimony is
not credited because other testimony by Shapiro shows
that the upholstery department had the same number
of employees throughout the period here involved and
for further reason that the testimony of President Morris
Shapiro also shows that additional room was not needed
until the usual fall expansion of business later in the
year.
Not receiving any satisfaction from her foreman on
her complaint about being isolated to the storage room,
Veljkovic complained about her working conditions to
Richard Simon, a regional agent of the Board who
took an affidavit from her on the matter. It appears
that the Board agent took the matter up with Respond-
ent's management because shortly thereafter William
Shapiro on or about July 15 looked Veljkovic up at
her work station in the storage room where according
to her credited testimony he took her to task and interro-
gated her about her complaint to the Board as follows,
"Branka, are you starting trouble-making trouble for
us? What did you tell over there? What are you complain-
ing' for, you big animal?" She admitted to Shapiro
that she had given the Board agent a written statement
on her complaint.
The next day Shapiro 'put Veljkovic back to work
at her old work station in the regular upholstery work
shop where all the other upholstery employees worked.
On about August 1, 1968, Veljkovic spoke to Business
Agent Martin, Garber of the Union representing the
employees in Respondent's upholstery department con-
cerning overtime for work on Saturdays and vacation
pay she believed she was entitled to, but as nothing
came of this she again spoke to Garber on September
25 about the matters and also raised the question of
whether she was not'entitled to a raise. Both conversa-
tions took place at Veljkovic's work station while Fore-
man Miller was in the room. Garber retired to talk
to William Shapiro privately about these matters. Later
Veljkovic was summoned by Foreman Miller to meet
with Shapiro and Garber in the Company's cafeteria.
There Shapiro informed her that she would be moved
to a different job at a different machine where she
would be put to sewing cushions exclusively and that
he expected her to produce 16 to 18 cushions per day.
Garber protested this work level as being wholly impossi-
ble. The outcome of the dispute over Veljkovic's pro-
posed work level and claimed overtime is not reflected
by the record but Garber did secure for Veljkdvic a
10-cent wage raise 'per hour.
The next day, September 26, she was transferred
out of the fully enclosed upholstery room to an adjacent
open area whose only, separation from other open space
was an open wire fence as heretofore described.
Although now isolated from the regular upholstery
department, she was within talking distance of other
employees on the other side of the fence. Her new
work area was about the same size as the regular uphol-
stery room or approximately 30 feet wide by 65 feet
long. Her sewing machine was placed in the northwest
corner of the fenced-in area. In her new work station,
she sat with her back against the rear wire* fence and
her right side against the fence on the west side of
the wire enclosed area. The wire fence ' to the south
of her separated her fenced area from the shipping
and packaging department. The south side of the latter
department had a double sliding door,, about 25-feet
wide in all, leading to a shipping platform at which
trucks were loaded and unloaded. The doors were kept
open approximately 2 hours each day for loading purpos-
FABRIC MART DRAPERIES
es. When the door was open , there was nothing to
stop the cold air from the outdoors from reaching and
blowing on Veljkovic at her sewing machine some 80
feet from the door . Documentary evidence of record
shows that the weather in Chicago in December and
January 1968, was quite frigid. (A diagram showing
the various areas described above is hereto annexed
as Appendix A. Among the areas depicted is a fenced-
in area marked "New Uph . Dep't ." Veljkovic's new
work station was in the northwest corner of this area
at the place marked " Sewing Machine.")
Shortly after her transfer to her new work station
in the fenced -in area, Veljkovic complained to Foreman
Miller about the cold drafty condition around her station
during a substantial portion of each day from the open
doors of the shipping department.
Some two months later in early December she also
complained , to Miller about the lack of heat from the
ceiling vent above her work station . He told her he
could not do anything about it . Two days later she
again bitterly complained to Miller ' about the coldness
at her work station and pleaded with him to do something
about it . He replied that he would try to get the building
engineer to look into it. As the condition was not correct-
ed, she ' again spoke to Miller the following week and
begged him to get her more heat as she was finding
it impossible to work at her unheated work area. He
ieplied that he would 'see about it but nothing was
done . Some days later she took sick with a cold and
felt discomfiture in her ' nose , neck , and back. This
made her' so ill that she was out fora day on sick
leave . Upon returning to her job the following morning
she spoke to Miller as she reported to work and asked
him if the lack of heat had been fixed . He replied,
"No, not yet." An hour later when Miller approached
her work station , she again asked him if he could do
something about giving her more heat as it was very
cold and she was feeling sick again . He told her he
Could do nothing for her until he saw the building's
engineer. She had no heat at all that morning as no
heat was coming from the heat vent above her. At
noon she again began, to sneeze and feel pain in her
head , neck , and back and being unable 'to continue
work she went home for the afternoon . The next morning
before starting - work she again asked Miller if he had
had the heating situation corrected . He replied not yet.
Later that morning the engineer came to her station
and opened the vent so that heat could come through.
Both before and after the heat vent was corrected
to give the area around Veljkovic ' s work station more
adequate heat, she was still subject to drafts from the
open door in the adjoining shipping and packaging depart-
ment for 2 or more hours a day while trucks were
being loaded or unloaded . Some days after the heat
had been fixed , she again complained to Miller about
the frigid winter wind coming from the outdoors through
the open doors of the adajacent shipping ' department.
She complained that the draft caused her pain in her
back.
She also complained to Miller from time to time
about being isolated from all the other upholstering
393
employees who were stationed in the regular enclosed
upholstering room where working conditions, including
heat and light, were better. She testified that she was
the only upholsterer worker placed in the fenced-in
open area. On the other hand, the two Shapiro brothers
testified that a cutter was also transferred out with
Veljkovic from the regular upholstering room to the
wire fenced area and that he was placed along side
of her some 3 or 4 feet away. As Veljkovic was not
called on rebuttal to dispute the testimony by the Shapi-
ros that the cutter was also transferred, with her to
the new area, their testimony is'credited and her testirrio-
ny to the extent that' it conveyed the impression that
she was the only upholstery 'worker transferred out
of The regular upholstery room to the fenced-in but
otherwise open area is not credited.
Veljkovic also complained to management from time
to time about the poor electric lighting over her work
area and about her malfunctioning sewing machine'.
During the same period that Veljkovic made, her com-
plaints to management about the unsatisfactory working
conditions at her new work station, she also made
the same complaints to Board agents. About the middle
of October, she telephoned the aforementioned Board
agent, Richard Simon, and complained about the working
conditions at her new work station." Two days later
Simons interviewed Veljkovic.at her home after working
hours about her complaints. In the meanwhile, Foreman
Miller, beset and troubled by Veljkovic's constant com-
plaints, brought her complaints to the attention of Presi-
dent Morris Shapiro and asked him to speak to her;
he thereupon went to her station and asked: "Branka,
are you still trying to make trouble for us? What'about
are complaining over there? What for?" She repeated
her complaints about her malfunctioning sewing machine,
the poor lighting, and her dissatisfaction with her new
work station. Her credited testimony shows that Shapiro
replied, "You try to, teach us how to run the business.
If you don't like it, why don't you quit." Shapiro
in his direct examination was asked by Respondent's
attorney if he had told Veljkovic on this occasion that
he had "the right to assign her wherever he pleased
throughout the plant." Shapiro stated that he did not
recall the exact wording he had used in talking to Veljko-
vic but stated "I may have indicated that her assignment
to this area was very much in order, and that was
where she was going to work . . . that was our decision,
and there was no reason why she could not work there.
11
About a week later , Veljkovic met with Board Field
Examiner Rush Hall and signed the charge herein in
Case 13-CA-8740 which was filed on October 29, 1968,
and served upon Respondent on October ' 30, 1969. Vel-
' While Vellkovic's testimony shows that she complained to Board
Agent Simon- about the working, conditions, at her new work station,
her testimony does not specifically show lust what she complained
about to Simon ' The inference, however, is clear from the record
that her complaints to Simon were the same as she had been making
to management, namely, the drafty condition around her work station,
the poor lighting over her sewing machine, and the faulty operation
of her sewing machine
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jkovic's credited testimony shows that some days after
she signed the charge Vice President William Shapiro,
who had jurisdiction over the upholstering department,
came to her station, placed his copy of her charge
before her and demanded, "Do you read English" Did
you write her, this)" Upon her acknowledgment that
she had signed the charge, Shapiro said to her, "What
country you come from" you should be sent where
you come from " Shapiro admits questioning Veljkovic
if she had signed the charge, but denies making the
remarks attributed to him by Veljkovic His denial is
not credited
Veljkovic was kept at her new work station from
September 26, 1968, until January 2, 1969, despite numer-
ous protests each week to Foreman Miller that she
was finding the cold blasts blowing on her through
the open doors of the shipping department intolerable
Vice President William Shapiro acknowledged that Miller
frequently called his attention to Veljkovic's complaints
about her discomfort from the draft During one of
her protests to Miller, Veljkovic sought to demonstrate
to him her discomfort from the draft by inviting him
to station himself at her work station She said to
him, "I like you to stand here Just to stand where
I sit for eight hours Wind from the door, and when
motor running, open door, it is cold outside It come
right in my back I asked him to stand where I sit
down for eight hours "
On January 2 while at work she came down with
a bad cold and felt pain in her neck and back The
next day, a Friday, she telephoned Miller she was unable
to work that day because of illness and that she was
going to see a physician Miller told her to take care
of herself
On the following Monday, January 6, she saw her
physician, Robert Best, M D , at his office at the Whiting
Clinic at Whiting, Indiana, with complaints of trouble
in her hip and inner left calf muscle Dr Best, who
was General Counsel's first witness, testified that from
his physical examination of Veljkovic he determined
that she had a flare up of an old arthritic condition
in her back which had been discovered by X-ray on
February I of the previous year The X-ray report
of that date by radiologist R L Mason, M D , of
the same Whiting Clinic (G C Exh 2) states "The lum-
bar vertebral bodies and interspaces are normal, except
for the lumbosacral joint, which shows a mild degree
of narrowing and degenerative osteoarthrosis " The
report also shows that her left hip was "normal, with
no evidence to suggest inflammatory or neoplastic dis-
ease " Dr Best testified that "there is practically no
medical doubt that her [Veljkovic's] condition could
be aggravated" by a draft on her from the cold outdoors
at her work station
At the time her back was X-rayed, Veljkovic was
42 years of age, weighed 182 pounds, and was 5 feet,
1 inch in height Dr Best's testimony shows that the
"forties are when people get some arthritic changes "
Although the X-ray did not show arthritic changes to
an abnormal degree, Dr Best testified that the mild
degree of osteoarthrosis in her lumbosacral joint in
combination with overweight was sufficient to cause
the symptons for which she sought medical relief Dr
Best testified that she is at least 50 pounds overweight
Although the condition of Mrs Veljkovic's lumbosacral
joint is commonly referred to as arthritis, the correct
medical name for the condition is osteoarthrosis This
is the term used in the X-ray report Osteoarthrosis
is a permanent condition which worsens with age, but
its symptoms vary from person to person Such symp-
toms may become better or worse in the course of
days or weeks or months
Following his January 6 examination of Veljko.'ic,
Dr Best placed her on a pain relieving drug and advised
her to stay off work for 2 weeks He examined her
again on January 20, found her condition unchanged,
prescribed the same drug treatment, and advised her
to still stay off work He examined her again on February
13 and March 4, found her condition the same, and
again advised her to stay home But on March 13,
he found her back, legs, and reflexes were normal and
discontinued medication for her He gave her a note
upon her request for her employer to the effect that
she had been under his care from January 6, 1969,
and could return to work on April 1
During the course of her illness, Veljkovic on or
before January 19, 1969, called Foreman Miller again
to notify him of her continuing illness and to inquire
whether the Company required a medical certification
of her illness from her doctor Upon instructions from
Miller, she obtained a form for this purpose from the
Union which Dr Best filled out and sent to the Company
In the meanwhile, the Respondent had decided to
close up and discontinue its upholstering department
as of January 19, 1969, and to thereafter contract out
all of its upholstering orders All employees in the
upholstering department were terminated on January
19, excepting for a single employee who asked for
and received a transfer to its fabric department The
credited testimony of Veljkovic shows that Miller did
not inform her about the closing of the upholstering
department when she called him at the indicated time
in January
At about the same time that Veljkovic called Miller
in mid-January, Veljkovic received a telephone call from
Respondent's switchboard operator who told her that
Vice President William Shapiro had asked her to inquire
how she felt and when she would be returning to work
Velkovic replied that she was going to see her doctor
in a day or two and would let the Company know
immediately after that when she could return to work
The switchboard girl told her that she had been instructed
by Mr Shaprio to tell her that she was not to report
to work without first telephoning the Company Like
Foreman Miller, the switchboard operator did not inform
Veljkovic that the Company's upholstery department
had been or was about to be discontinued After seeing
her doctor, Veljkovic called the Company to leave word
that she would stay home for another 2 weeks upon
advice of her doctor, but as noted above she remained
away for a much longer period on the subsequent advice
of her doctor
FABRIC MART DRAPERIES
On the first day of April, Veljkovic telephoned William
Shapiro to tell him that her doctor had released her
for work, and asked when she should report for work.
Shapiro told her that the upholstering department had
been closed and that there was no work for her any
more. She asked what had happened to her former
coworkers in the department. Shapiro replied that they
had been laid off. She asked whether she too was
laid off. Shapiro said, "Yes." Her final question was,
"Could I anything do?" The Examiner interprets this
as a request for work in other departments of the
Company. Shapiro responded, "No, no more work. "5
Although Shapiro in talking to Veljkovic told her
in effect that he had no work for her anywhere in
the plant, the record by stipulation shows that the
Respondent had hired women from January 1969 to
the date of trial herein in August 1969 for work in
its drapery department comparable to the sewing work
Veljkovic had done when she was employed in the
Company's drapery department from May of 1966 until
June of 1967.
When counsel for General Counsel during his redirect
examination of Veljkovic asked her why she had made
no further efforts to contact the Company for employ-
ment after her conversation with Mr. Shapiro on April
1, she stated, "I was afraid to talk anymore with Mr.
William [Shapiro]. He is not glad to take me back.
It is plain he don't want me. He move me from one
place to another."
The principal reason given by the Shapiros for Veljko-
vic's above-described second transfer out of the regular
upholstering shop is similar to the reason they gave
for not having immediately returned her to the regular
upholstery shop upon her reinstatement on June 24,
1968, pursuant to Board order. Respondent's asserted
reason for Veljkovic's second transfer out of the uphol-
stery shop on September 26, 1969, is that it needed
more space in the shop in order to put on additional
upholsterers whose work with large pieces of upholstery
would necessarily require more work space. The evi-
dence, however, shows that Respondent in fact did
not hire additional upholsterers after Veljkovic's transfer
out of the regular upholstering shop. The record further
shows that at about, or possibly before, the time of
Veljkovic's transfer, Respondent's board of directors
had already determined to close out or discontinue its
upholstery department and that Foreman Miller of the
shop had been so informed.
It should be noted, as stated in General Counsel's
brief, that General Counsel does not contend "that
Although Shapiro in his testimony at first denied that he had such
a conversation with Veljkovic, he later admitted the conversation when
confronted with an affidavit he had given the Board on May 21, 1969,
showing that such a conversation had actually taken place The affidavit,
however, states that the conversation took place on January 20, 1969.
Shapiro could not explain the discrepancy between the January 20
date given in his affidavit for the conversation and the April 1 date
given by Veljkovic in her testimony as the date of the conversation
The Examiner credits Veljkovic that the conversation took place on
April 1, 1969
395
the disestablishment of the upholstery department on
January 20 [1969], was, in itself, violative of the Act."
There is no evidence in the case that Respondent
was dissatisfied with either the quality or quantity of
the work performed by Veljkovic. In the prior proceeding
before the Board involving Veljkovic as a Charging
Party and the Respondent, the Trial Examiner found
that "Veljkovic was a competent worker, and, as a
matter of fact, Shapiro chose her out of group of 50
sewers to train as an upholsterer."
The only persons who testified in this proceeding
are the Charging Party Veljkovic and her physician,
Dr. Best, and the two Shapiros as officers of the Respond-
ent.
Discussion and Conclusions
The above findings of fact compel the conclusion
that Respondent is in violation of Section 8(a)(1), (3),
and (4) of the Act as alleged in the consolidated complaint
and detailed in the statement of the issues shown in
the forepart of this decision.
Although the record shows Mrs. Veljkovic, the Charg-
ing Party, to be a competent and valuable worker,
the record here as well in the prior proceeding also
reveals that she is a highly emotional and difficult person,
much given to complaints and the aggressive assertion
of her rights.
It is thus understandable why her relationship with
the management of Respondent has been strained both
before and after her reinstatement. Counsel for Respond-
ent in his brief concedes "that the relationship between
Branka [Veljkovic] and Shapiro [Vice President William
Shapiro] was not a friendly one, and Shapiro was overly
sensitive to Branka's constant complaints." Respondent
in its brief further concedes that the "instances indicated
in Branka's testimony in connection with name- calling
and insults, are manifestations of Shapiro's irritation.
f1
The concern here , however , it not into the interperson-
al relationship between Veljkovic and the two Shapiro
brothers who run the Company ' s business , but whether
the Respondent through the Shapiros as its chief officers
engaged in overt conduct and acts in violation of the
Act.
Of this the record leaves little doubt . Respondent's
first act upon reinstating Veljkovic on June 24, 1968,
was to assign her to an isolated work station in a
storage room separated from the adjoining regular uphol-
stering shop where all the other upholstery employees
worked . While it is normally the prerogative of an
Employer to place an employee anywhere in the plant
he sees fit, such an act of placement becomes suspect
where the motivation appears to be retribution against
the employee for using the processes of the Board.
The record here clearly points to such a motivation
in the assignment to Veljkovic to an isolated work
station away from all other upholstery employees. The
first indication of this was William Shapiro ' s remark
to her when she applied for reinstatement that he didn't
want her back , but was in effect doing so only pursuant
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the advice of counsel. The second indication is that
Foreman Miller of the upholstery department told her
when she complained about her new isolated work station
that that was what,'she "deserved." These statements
by Shapiro and Miller and the fact that the Respondent
failed to show any credible economic or business reason
or, need' for isolating Veljkovic from the rest of the
upholstery employees plainly show an intent to punish
her for filing the charges in the prior proceeding leading
to her reinstatement. Accordingly, it is found that the
act of assigning Veljkovic ,to an isolated work station
upon her reinstatement because of her charges in the
prior proceeding is a violation of Section 8(a)(1), (3),
and (4) of,the Act. _
Further and factually related 8(a)(1) violations also
stem from Respondent's act in assigning Veljkovic to
an isolated work station. As protests about her isolated
work station to her foreman did no good, she complained
about her new work station to Board Agent Simon
on or about July 15, 1968. The reaction from management
was immediate. William Shapiro engaged her in interroga-
tion concerning her complaint to the Board and accused ,
her of, making trouble for the Company .and in the
course of his questioning called her an animal. This
interrogation of Veljkovic concerning her contact with
an agent of the Board is in violation of Section 8(a)(1).
N.L.R.B. v. Kolpin Bros. Co., 379 F.2d 488, 490 (C.A.
7). The derogatory remark to her that she was an animal
is also in violation of Section 8(a)(1) in the light of
the connecting circumstances. J. A. Wasserman,
Maryland Sportswear Company, 104 NLRB 70, 73;
Stiney's Corp., tia Wolfies, 159 NLRB 22, 25, 26.
But as heretofore noted, Mrs. Veljkovic's complaint
to a Board agent gained her favorable action. She was
returned to the regular upholstery shop on July 16;
1968. But on September 26, 1968, she was again moved
out of the upholstery shop and placed at a new work
station in an open area in the plant where she was
exposed to a draft from the outdoors. Respondent's
asserted reason-for this second change of work stations
for Veljkovic was that it needed space in the regular
upholstering shop for the planned hiring of -additional
upholsterers. But inasmuch as the record shows that
at or about the time Veljkovic was moved ,out of the
regular upholstery shop, Respondent had already deter-
mined to discontinue its upholstery department and as
in fact no new upholsterers were hired prior to the
closing of the upholstering department on January 19,
1969, the Examiner finds that reason given for Veljko-
vic's second transfer' out of the regular shop cannot
be credited.
After her second transfer out of,the regular upholstery
shop, Veljkovic lodged numerous complaints to Foreman
Miller and also to Board agents about her new isolated
work station and its health hazard due to drafts from
the outdoors. In mid-October 1968 these brought Presi-
dent Morris Shapiro to her work station where he berated
her for making the complaints and told her to quit
if she didn't like her working conditions. In the light
of all the circumstances, the Examiner finds that the
remark to her that she could quit if she didn't like
where she was working was an implied threat of dis-
charge because of her continued complaints to Board
agents about her working conditions, in violation of
Section 8(a)(1) and (4) of the Act. ` ,
Later, in November 1968, William Shapiro interrogat-
ed Veljkovic concerning the charge she had filed in
Case 13-CA-8740 herein and during the interrogation
said to her that she ought to be sent back to the
country of her native birth. The Examiner finds this
interrogation unlawful in violation of Section 8(a)(1)
of the Act and finds that Shapiro's remarks to Veljkovic
that she should be sent back to the country of her
origin under the circumstances of the interrogation to
be an additional violation of Section 8(a)(1).
As the record fails to show any bona fide business
or economic reason for Veljkovic's second removal
from the regular upholstery shop to a remote and essen-
tially isolated work station and as all the evidence points
to the conclusion that this second change of work stations
for Veljkovic was motivated by a desire for retribution
because of the charges she had filed in the previous
case and the complaints she made to Board agents
about her working conditions after her reinstatement,
the Examiner finds and concludes that Respondent's
assignment of Veljkovic to the new work station in
an open area was in violation of Section 8(a)(1), (3),
and (4).
The final issues herein relate to Veljkovic's loss of
her job with Respondent for the second time. In the
prior proceeding, it was found that she had been'discrimi-
natorily discharged. In the present proceeding, the issue
is whether she was constructively discharged as of Janu-
ary 3, 1969, by Respondent's conduct and acts, in viola-
tion of Section 8(a)(3) of the Act.
On the latter question, the entire record must be
taken into consideration. This shows that from the date
of Veljkovic's reinstatement, the Respondent has taken
steps to show that she was back in its employment
on sufferance and to create situations designed to cause
her voluntary withdrawal from the employment of the
Company. The first such step by the Company was
her assignment upon reinstatement to an isolated work
station, away from all other upholstery workers, in
a separate room in which she was the only employee.
The record strongly indicates that Veljkovic's sucess
in obtaining a reassignment to the regular upholstery
shop by her complaints to a Board agent and her subse-
quent complaints to the Union's business agent concern-
ing her right to a wage increase and backpay for overtime
and holiday,pay, increased Respondent's determination
to get rid of her. As a result of the intercession of
the Union's business agent , the Company on September
25, 1968, agreed to give her a 10-cent-per-hour raise,
but at the same time informed her and the business
agent that she would be moved to a different job at
a different machine. The next morning, September 26,
she was again transferred out of the regular upholstery
room, but this time as shown above to an open area
where she was exposed to the draft from the outdoors
for two or more hours each day. As heretofore shown,
Respondent did not show any credible business purpose
FABRIC MART DRAPERIES
in this second shifting of Veljkovic out of the regular
upholstery shop. Despite protests several times a week
to her foreman of which Vice President William Shapiro
from time to time was apprised and complaints to a
Board agent, she was kept at her drafty work station
for a period of approximately three months until January
3, 1969, when the draft at her work station so aggravated
the preexisting arthritic condition of her back as to
prevent her from reporting to work on that day. She
reported her illness to the Company and kept the Compa-
ny informed from time to time of her condition and
of the periodic advice of her physician that she abstain
from work. The record shows that the Company led
her to believe that it had placed her on sick leave.
When on April 1, 1969, she telephoned William Shapiro
to tell him she was now well enough to work and
ready to return to her job, Shapiro told her that the
upholstery department had been discontinued and that
she no longer had a job with the Company. This was
the first notice she had received from the Company
that the upholstery department had been closed and
her first notice that she no longer had a job with the
Company. Under these circumstances, the Examiner
finds and concludes that Veljkovic was discriminatorily
and constructively discharged in violation of Section
8(a)(3) of the Act as of January 3, 1969, when she
reported inability to report to work because of illness.
Under the same circumstances, the Examiner finds and
concludes that Respondent's failure and refusal to reem-
ploy Veljkovic on April 1, 1969, when she applied for
reemployment is a further violation of Section 8(a)(3)
of the Act. In connection with the latter determination,
it is noted that in view of the fact that Respondent
was continuously hiring sewers for its drapery depart-
ment, it was in a position to give Veljkovic a promise
of employment as a drapery sewer when she called
William Shapiro on April 1 and begged for any job
when she learned that her old job as a cushion sewer
for the upholstery department had vanished with the
closing of that department, but chose not to.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with the operation,
of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(1)(3) and (4) of the Act, it will be recommended
that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
397
It was found above that Respondent constructively
discharged Branka Veljkovic on January 3 , 1969, in `
violation of Section 8(a)(3) and ( 1) of the Act . According-
ly, it will be recommended that she be offered immediate
and full reinstatement to a position substantially equiva-,
lent to her former position , without prejudice to seniority
and other rights and privileges , and that she be made
whole for any resulting loss of pay from the date of
her discharge on January 3, 1969 , to the date she is
offered reinstatement , less her net earnings during that
period . Such backpay shall be computed on a quarterly
basis in the manner prescribed by the 'Board in F.
W. Woolworth Company., 90 NLRB 289, and shall
include interest at 6 percent as provided by the Board
in Isis Plumbing & Heating Co., 138 NLRB 716.
Although the Examiner is of the opinion based on
the medical evidence herein that Mrs. Veljkovic ' s physi-
cal condition did not preclude her from engaging in
her regular work as a sewer for more than at most
a few days beyond January 3, 1969 , under corrected
work conditions at her work station and that for all
practical purposes her' backpay should start with April
1, 1969, when she applied for reemployment and was
turned down , the Examiner makes no findings thereon
as this is a matter for determination at the compliance
stage of this proceeding . See Cambria Clay Products,
215 F.2d 48 , 56 (C.A. 6), and Martech Corporation,
169 NLRB 479 , at fn . 2 in Board ' s Decision and Order.
It may also be noted that Respondent was in the
position to restore Mrs. Veljkovic to her position as
a sewer of upholstery in its upholstery department from
the date of her constructive discharge on January 3
to 19, 1969 , when Respondent discontinued its upholstery
department . Notwithstanding the closing of its upholstery
department , the evidence shows that Respondent would
have no difficulty in finding for Mrs. Veljkovic substan-
tially equivalent employment as a sewer in its drapery
department where she had worked as a sewer before
her transfer to the upholstery'department.
It will also be recommended that the Respondent
preserve and make available to the Board, upon request,
payroll and other records to facilitate the computation
of backpay.
It will also be recommended , in view of the nature
of the unfair labor practices the Respondent has engaged
in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7
of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , the undersigned
makes the following:
CONCLUSIONS OF LAW
1. Respondent, Fabric Mart Draperies, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. By interrogating Branka Veljkovic about her con-
tact with the National Labor Relations Board and her
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union or protected concerted activities, and by harassing
and threatening her with discharge because of said activi-
ties, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1).
4. By transferring Branka Veljkovic to an isolated
and less desirable work station, and refusing to reemploy
her after she was on a leave of absence, because of
her union or protected concerted activities, and because
she filed unfair labor practice charges against Respondent
and testified against it at a prior unfair labor practice
hearing, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the
case, it is recommended that Respondent, Fabric Mart
Draperies, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, support of, or activi-
ties on behalf of Local No. 18, Upholsterers' Internation-
al Union of North America, AFL-CIO, or any other
labor organization, or discouraging the filing of unfair
labor practice charges or the giving of testimony in
unfair labor practice cases, by transferring employees
to isolated or undesirable work stations, refusing to
reemploy employees on leaves of absence, or in any
other manner discriminating against them in regard to
their tenure, terms, or conditions of employment,
because of their union or other protected concerted
activity, or because of their unfair labor practice charges
filed with or their testimony in any proceeding before
the National Labor Relations Board.
(b) Interrogating employees in a coercive manner con-
cerning their union activities or sympathies or their
conversations with any agents of the National Labor
Relations Board, harassing employees or threatening
employees with loss of employment if they continue
to engage in such protected activities.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
protected by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement in
conformity with Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act: ,
(a) Offer to Branka Veljkovic immediate reemploy-
ment in her former or substantially position without
prejudice to her seniority or other rights and privileges,
and to make her whole in the manner set forth in
the section of this Decision entitled "The Remedy"
for the discrimination against her.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records relevant to a determination of the amount of
backpay due under the terms of this Decision.
(c) Post at its factory in Chicago, Illinois, copies
of the attached notice marked "Appendix B."" Copies
of said notice, to be furnished by the Regional Director
for Region 13, shall, after being duly signed by an
authorized representative of the Respondent, be posted
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered with any other material.
(d) Notify the said Regional Director, in writing, with-
in 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply here-
with.7
fi In the event no exceptions are filed as provided by Section 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read: "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
See page 399 for Appendix A.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership or activi-
ties in Local 18, Upholsterers' International Union
of North America, AFL-CIO, or any other labor
organization, or discourage the filing of charges
with or the giving of testimony in any proceeding
of the National Labor Relations Board, by transfer-
ring employees to isolated or less desirable work
stations, refusing to reemploy employees on leaves
of absence, or in any manner discriminate against
employees with regard to their hire or tenure of
employment, or any term or condition of employ-
ment.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist Local No. 18, Uphol-
sterers' International Union of North America,
FABRIC MART DRAPERIES
AFL-CIO, or any other labor organization , to bar-
gain collectively through representatives of their
own choosing, or to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , or, to refrain from any
or all of such activities except to the extent that
such right, may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a)(3)
of the Act.
WE WILL OFFER to Branka Veljkovic immediate
and full reinstatement to her former or substantially
equivalent position without prejudice to any seniori-
ty of other rights and privileges previously enjoyed,
and make her whole for any loss of pay suffered
as a result of the discrimination against her
FABRIC MART
DRAPERIES, INC.
(Employer)
Dated By
399
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions, concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 881 U.S. Courthouse and Federal Office Building,
219 South Dearborn Street, Chicago, Illinois 60604, Tele-
phone 312-353-7572.
APPENDIX A
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