Fashion Fair, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1435 (N.L.R.B. 1966)

FASHION FAIR, INC. 1435
Union No. 30, are entitled to the work in dispute. In making this
determination, we are assigning the disputed work to the employees
of the Employer who are represented by the Steelworkers, but not to
that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Relations Act,
as amended, and upon the basis of the foregoing findings and the
entire record in this proceeding, the National Labor Relations Board
hereby makes the following determination of the dispute :
1. The Bricklayers employed by Cerro Copper and Brass Company
who are represented by United Steelworkers of America, AFL-CIO,
are entitled to perform the disputed work of laying refractory brick
in the Employer's smelting and melting furnaces.
2. Subordinate Union No. 30 of Illinois of the Bricklayers, Masons
and Plasterers International Union of America, AFL-CIO, is not
entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to
force or require the Employer to assign such disputed work to its
members rather than to bricklayers employed by the Employer.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Subordinate Union No. 30 of Illinois of the Brick-
layers, Masons and Plasterers International Union of America, AFL-
CIO, shall notify the Regional Director for Region 14, in writing,
whether or not it will refrain from forcing or requiring the Employer,
by means proscribed by Section 8(b) (4) (D) of the Act, to assign the
work in dispute to its members rather than to employees represented
by the United Steelworkers of America, AFL-CIO.
Fashion Fair, Inc., Sternberger Brothers, Inc., and Cinbo, Inc. and
Retail Clerks Union Local No. 445, Chartered by Retail Clerks
International Association , AFL-CIO
Fashion Fair, Inc., Sternberger Brothers, Inc., and Cinbo, Inc. and
Retail Clerks Union Local 445, Chartered by Retail Clerks
International Association, AFL-CIO. Cases 9-CA-3310 and 3339.
June 27, 1966
DECISION AND ORDER
On July 9, 1965, Trial Examiner Benjamin B. Lipton issued his
Decision in the above-entitled proceedings, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
159 NLRB No. 121.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's Decision. He also found that the Respondents had not
engaged in certain other alleged unfair labor practices, and recom-
mended that the allegations of the complaint pertaining thereto be
dismissed. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief.
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 connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
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 and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner,' only to the extent consist-
ent herewith.
The Trial Examiner concluded that the Respondent's termination
of four employees on August 29, and the termination of a fifth
employee on October 2, 1964, were discriminatorily motivated and
therefore violative of Section 8 (a) (3) of the Act. We do not agree.
The Discharges of August 29: The Trial Examiner found that
employees Gutkase, Seewer, Sergent, and Hogan were terminated on
August 29 by Hastings, Respondent's manager, because of his estab-
lished union antipathy and not because of an incident involving the
parties at a cafe the evening before the discharges. In so concluding,
the Trial Examiner relied on two separate grounds. He found that
an alleged assault on Hastings by Everett Hogan, the husband of
Rae Hogan, an employee of the store, did not in fact occur and there-
fore could not have prompted the discharges. He concluded in the
alternative that even had such assault occurred, he would find that
the discharges were discriminatorily motivated, in effect, a discharge
on pretext.
It is undisputed that on the evening of August 28, store manager
Hastings and a group of friends entered the South Side Cafe and
that another group of employees, including the alleged discrimina-
tees, were also at the cafe. While Hastings was dancing, Everett
Hogan allegedly shoved, hit, or pushed him in the middle of the
back and the two began a heated discussion which was broken up by
a bouncer who thereafter escorted Hogan from the cafe.
The Finding That No Assault Occurred: Despite the absence of
any testimony by General Counsel's witnesses as to whether or not
an assault (in some degree) had occurred, the Trial Examiner dis-
i No exceptions were filed to the Trial Examiner's dismissal of certain of the allegations
of the complaint . Accordingly , we adopt those portions of his Decision pro forma.
FASHION FAIR, INC. 1437
counted the testimony of nine witnesses that an assault or incident
had occurred on the grounds that the testimony of Respondent's wit-
nesses "contains mutual and internal contradictions and implausibil-
ities." However, the testimony of these witnesses, while containing
minor variations as to what transpired, was consistent and corrobora-
tive-on all material points. It is also clear from the alleged discrim-
inatees ' own testimony that they were across the room from the
alleged incident and were unaware of any trouble until a bouncer
started to escort Everett Hogan from the cafe. Consequently, the
Trial Examiner 's crediting of their testimony only relates to what
conduct occurred between the Hogan and Hastings parties after the
initial incident. Moreover, as the Trial Examiner himself noted,
"while side issues of credibility are presented, they are not decisive."
(Emphasis supplied.)
The Trial Examiner further found that because Hastings dis-
charged the four employees involved the very next day when they
reported to work, he "resorted to reasonable or businesslike pro-
cedures, but curtly and summarily fired them." Contrary to the Trial
Examiner, we conclude that the abrupt dismissal is in keeping with a
nondiscriminatory motive and substantiates to a large degree the con-
tention of Respondent that the discharges stemmed from the incident
of the preceding night.
In his concluding findings the Trial Examiner (section III, F, 3)
stated :
The proffered reason reluctantly given by Hastings to Hogan
and Sergent after they were fired was only that he was attacked
in public by Hogan's husband. He made no charge that any of
the girls personally engaged in misconduct at the South Side
(cafe). His ground for discharge, i.e., guilt by association in
their private affairs on nonworking time, is wholly unconvincing
as the true motive. The four employees had a record of tenure
and competence with the Company. He resorted to no reason-
able or businesslike procedures , but curtly and summarily fired
them. I cannot find that Hastings believed he was assaulted and
for this reason alone, however unfair , decided to punish the em-
ployee members of Hogan's party. In all the circumstances, the
element of his and Respondents' established union antipathy pro-
vides, in my opinion, the moving basis for the discharge action in
question . [Emphasis supplied.]
We cannot agree with certain inferences drawn by the Trial Exam-
iner as illustrated in the emphasized portions of above-quoted para-
graph. Any reluctance of Hastings is not significant because he had
heatedly ordered them off the premises for "pretty obvious" reasons
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and when pressed further by Hogan for a reason told her it was
because he didn't like being attacked in public. The Trial Examiner
claimed Hastings made no charge that they engaged in personal mis-
conduct although Hastings' testimony at the hearing was that Seewer
slapped him in the face and that his companion, Dorothy Anderson,
another employee at the store, was struck by Sergent. The Trial
Examiner concludes that merely because Hastings did not recite in
detail the events of the evening before, he was discharging them
solely by virtue of a "guilt by association." Finally, the Trial Exam-
iner concluded that he could not find that Hastings believed he was
assaulted. This, despite Hastings' contrary testimony substantiated
in many aspects by seven other witnesses, and despite the fact that
Everett Hogan was escorted from the cafe by bouncers employed by
the cafe. In view of the overwhelming testimony, including that of
employees of the store and the cafe, it is clear that an assault of some
degree had taken place.
Nor can we accept the Trial Examiner's alternative finding that
even had such assault occurred, Hastings used the incident as a pre-
text for discharging the four employees. The employees involved
were terminated immediately upon reporting to work the following
day by Hastings, who heatedly ordered them off the premises. Two
of the employees, Seewer and Gutkase, were told- they were fired
before they even entered the store and- neither questioned Hastings as
to the reason for their discharge. The two remaining employees,
Hogan and Sergent, were also promptly discharged when they
reported for work at 1 p.m. When Hogan questioned the reason for
her discharge, Hastings replied, "I don't like being attacked in. pub-
lic." On the basis of the alleged discriminatees' own testimony and
the sequence of events, it is obvious that the discharges by Hastings
were triggered by the incident in the cafe the previous night.
The discharge occurred some 11 days after the election won by the
Union. To rely on a blanket theory of union animus in light of the
minimal union activity of the alleged discriminatees is to adopt a
concept that Respondent was prepared to discharge any or all of its
employees. on pretext in retaliation for selecting the Union, a concept
we are not prepared to adopt in the circumstances related. Accord-
ingly, irrespective of the equitable merits of such discharges, we con-
clude that they' were actuated by the cafe incident and did not conceal
an illegal motivation.
The Discharge of Mary Peyton: The Trial Examiner further con-
cluded that the reduction of hours and the discharge of Mary Peyton
on October 2, 1965, were discriminatorily motivated. Peyton' was
-hired 6n August 4 and was ineligible to vote in the representation
FASHION FAIR, INC. 1439
election held on August 18. Hastings was aware that she had not
participated in the election. It is undisputed that, on September 18,
Hastings called Peyton at home and asked if she made the statement
that she would "see me in hell first before you would quit." 2 She
admitted she had, but denied making any other remarks about him.
Hastings' testimony, not contradicted by Peyton, is that Peyton
stated she hated him and would never speak to him again. In the
subsequent 2 weeks, Peyton's hours of work were sharply reduced.'
Peyton remarked to Stargell, stock head in her department, that if
Hastings did not restore her to 40 hours she "might quit." Stargell's
version, corroborated by another employee,3 was to the effect that
Peyton said she would quit on Friday [October 27] if her hours
were not raised and Stargell related this to Hastings. When Friday
arrived, Peyton, in response to an inquiry by Stargell, stated she was
not going to quit, whereupon Hastings informed her that as far as he
was concerned she was through and he had hired someone in her,
place.
The Trial Examiner concluded and we agree that, Peyton' s hours
were purposely reduced so as to cause her to quit her job. However,
Peyton's own testimony does not establish that the personal animos-'
ity between Peyton and Hastings was caused in any degree by her
union activity. Even accepting the view that Respondent effected a
constructive discharge in that it need not have taken her threat to
quit at face value, it seems unreasonable to expect an employer not
to willingly accept such a "resignation" in view of the strained per-
sonal relationship that had evolved. In these circumstances, it seems
highly improbable that Peyton's union activity, the wearing of a
union button, prompted her discharge. We conclude, therefore, that
neither her reduction in hours nor her discharge were motivated by
her union activities.'
CONCLUSION
In view of our findings that the discharges of Gutkase, Seewer,
Sergent, Hogan, and Peyton, and the reduction of Peyton's hours
were not discriminatorily motivated, we shall dismiss the complaint
insofar as it alleges such actions to be violative of Section 8(a) (3).
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
2 Neither the testimony of Peyton nor , Hastings established what prompted Peyton's
remarks about Hastings or her talk of quitting.
3 Employee Nancy Foster also testified that Peyton told her that if her (Peyton 's) hours
were not raised she would quit on Friday.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents, Fashion Fair, Inc., Sternberger Brothers, Inc., and
Cinbo, Inc., New Albany, Indiana, and Cincinnati, Ohio, their offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks Union Local No.
445, chartered by Retail Clerks International Association, AFL-CIO,
or in any other labor organization, by transferring employees, or in
any other manner discriminating in regard to hire or tenure of em-
ployment or any term or condition of employment.
(b) Threatening employees with curtailment of benefits or other
reprisals, or depriving employees of privileges and favorable work-
ing conditions, because they voted for a labor organization in a Board
election, or selected a bargaining representative, or engaged in union
or concerted activities, or filed charges with the Board; expressly or
impliedly threatening not to bargain with the Union, or any other
labor organization, if duly selected as exclusive representative; prom-
ising employees benefits to discourage their union activities or mem-
bership; instructing or soliciting employees to inform Respondents
of the union activities of fellow employees; or interrogating employ-
ees in a coercive manner.
(c) Ordering employees to leave public or quasi-public areas while
they are lawfully engaged in peaceful picketing of Respondent's prem-
ises or in other lawful concerted activity.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act:
(a) Restore Mildred Curts to her former position from which she
was discriminatorily transferred, or to a substantially equivalent posi-
tion, without prejudice to her seniority or other rights or privileges.
(b) Post at their Albany, Indiana, store, and facilities, copies of
the attached notice marked "Appendix." 4 Copies of said notice, to
be furnished by the Regional Director for Region 9, shall, after being
duly signed by Respondents, be posted by Respondents immediately
upon receipt thereof, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to their employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
,' In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of
the United States Court of Appeals , Enforcing an Order."
FASHION FAIR, INC. 1441
(c) Notify the Regional Director for Region 9, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint be dis-
missed insofar as it alleges violations of the Act not specifically
found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Retail Clerks Union
Local No. 445, Chartered by Retail Clerks International Associa-
tion, AFL-CIO, or in any other labor organization, by transfer-
ring employees or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition
of employment.
WE WILL NOT threaten employees with curtailment of benefits
or with other reprisals, or deprive employees of privileges and
favorable working conditions because they voted for a labor
organization in a Board election, or selected a bargaining repre-
sentative, or engaged in union or concerted activities, or filed
charges with the National Labor Relations Board.
WE WILL NOT expressly or impliedly threaten not to bargain
with the above-named, or any other, labor organization, if duly
selected as exclusive representative.
WE WILL NOT promise employees' benefits to discourage their
union activities or membership.
WE WILL NOT instruct or solicit employees to inform us of
the union activities of their fellow employees.
WE WILL NOT interrogate employees in a manner constituting
interference, restraint, and coercion.
WE WILL NOT order employees to leave public or quasi-public
areas while they are lawfully engaged in peaceful picketing of
our premises or in other lawful concerted activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or
243-084-07-vol. 159-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other mutual aid or protection, or to refrain from any or all such
activities.
WE WILL restore Mildred Curts to her former position from
which she was discriminatorily transferred, or to a substantially
equivalent position.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of Retail Clerks Union Local No.
445, chartered by Retail Clerks International Association, AFL-CIO,
or of any other labor organization.
FASHION FAIR, INC., STERNBERGER BROTHERS, INC.,
AND CINBO, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
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.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Office, Room 2023, Federal Office Building, 550 Main Street,
Cincinnati, Ohio 45202, Telephone 684-3627.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASES
A hearing in this proceeding was held before Trial Examiner Benjamin B. Lipton
in Louisville , Kentucky, from January 11 through 14, 1965, based upon a con-
solidated complaint by the General Counsel' alleging that Respondents discharged
five named employees and reduced the hours of work of seven other named employ-
ees, in violation of Section 8(a)(3), and that Respondents committed numerous
independent violations of Section 8 (a) (1) of the Act. All parties were represented
at the hearing and were afforded full opportunity to present relevant evidence.
At the close of the hearing, oral argument on the record was waived . Briefs filed
by each of the parties have been duly considered.
. Upon the entire record in the cases, and from my observation of the demeanor
of the witnesses on the stand , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Fashion Fair, Inc., is an Ohio corporation engaged in the business of retail
merchandising and sales in the States of Ohio and Indiana. Only the retail depart-
ment store located in New Albany, Indiana, is involved.in this proceeding. Stern-
berger Brothers, Inc., an Indiana corporation, and Cmbo, Inc., an Ohio corporation,
operate leased departments in the New Albany store of Fashion Fair, Inc., and
sell merchandise. at retail to the public. Respondents admit that they jointly oper-
ate the New Albany store as a single, integrated enterprise, with common man-
agement and control, and exercise a common labor relations policy for all their
'In Case 9-CA-3310, the original charge was filed on September 1 and served on Sep-
tember 3, 1964; and in Case 9-CA-3339, the charge was filed on October 5 and served on
October 6, 1964 . The consolidated complaint was issued on October 30, 1964.
FASHION FAIR, INC. 1443
employees. Accordingly, I find that the several Respondents constitute a single
employer under the Act. During the 12 months preceding issuance of the con-
solidated complaint, the collective Respondents sold goods and products from the
New Albany store valued in excess of $500,000. During the same period, they
purchased and received goods and products shipped to the New Albany store
directly from points outside the State of Indiana, valued in excess of $50,000.
Respondents admit, and I find, that severally and collectively they are engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Clerks Union Local No. 445, chartered by Retail Clerks International
Association , AFL-CIO, herein called the Union , is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and setting
In April 1964,2 union organizational activity commenced at the New Albany
store. Following earlier discussions among certain employees,3 Mildred Cutts
and Betty Gutkase established communication with Nancy Von Bokern, business
agent of the Union. Thereafter, union authorization cards were distributed for
signatures among all the employees directly by mail from the Union and personally
by Curts.
In May, at the store, General Manager Neirman 4 remarked to Curts, in the
presence of employee Geraldine Seewer, "if you have let the union get in I'll kill
you." Later the same day, Neirman asked Curts, because she has a lot of influence
with the girls, "to help him keep this union out of here."
On August 18, a Board election was conducted.5 Of 21 ballots cast, 13 were
in favor of the Union, 7 against, and 1 ballot challenged. On January 26, 1965
(after the instant hearing), pending objections to the election filed by Respondents
were found without merit, and the Union was certified by the Board as exclusive
bargaining representative of the employees.
B. Findings of interference, restraint, and coercion
In the morning of August 19, General Manager Hastings told Mary Peyton
.. this day is going to be one of your god damnedest days you ever worked," 6
in view of the reported election results the previous day.
On August 18, after the election, Hastings ordered Lee Hargrove to remove the
refreshment machines from the premises, stating, "We will show these people how
they like their damn union." Respondents admit the allegations concerning reprisal
actions taken by Hastings, viz:
xi. . . . in ordering an employee to remove the refreshment machines from
the premises , stating that this action was being taken because of the employ-
ees' support for the Union.
xii. . . . immediately following the said Board election, by posting additional
work rules ,7 closing the employees ' lounge, removing various refreshment
machines from the working premises, and removing ash trays from service
desks [as a means of halting the employees ' privilege of smoking].
2 All dates are 1964, except as otherwise specified.
3 Including Dorothy Pfohl and Mae Sergent
b Succeeded by Dale R. Hastings on June 2.
5 The Regional Director ' s Decision and Direction of Election , In Case 9-RC-5902, was
issued on July 10, following a hearing
6 Respondents admitted in the answer filed to the complaint the allegation that on
August 19 Hastings told "employees that this was going to be the worst day of their lives
because they had selected the Union as their bargaining representative ." At the hearing,
Respondents were permitted to amend their answer and enter a denial Hastings did not
deny Peyton 's testimony and did not recall making the statement as alleged in the
complaint. }
7 For example , as testified, employees were no longer allowed to accept personal.tele-
phone calls.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 19, in a telephone conversation with Vice President Herman Lass in
Cincinnati, Hastings was ordered to return everything to preelection status. Has-
tings testified that he complied with the order and later that night'he-"went on the
floor and personally apologized to everyone that was working on that shift." A
letter dated August 19 was sent by Hastings to Lass, as follows:
This is to inform you that I have complied with your orders on returning
to employees all of the priviledges [sic] I had taken away. As I promised in
our phone conversation, the restroom keys were returned to depts, the lounge
was moved back to original area, smoking was again permitted at the service
desk. Soft drink machine was returned and will be repaired (it is not oper-
ating correctly). I also removed work rules and regulation I posted on bul-
lentin [sic] board. All has returned to preelection status.
No merit is found in Respondents' contention, stated in their answer, 8 that
these violations alleged were corrected prior to the filing of the charge and are
moot. Unless properly and effectively neutralized, the impact of coercive action
upon employees is not vitiated just because the illegal acts in question are sub-
sequently rescinded. Merely making an apology to employees for the misconduct
committed as ambiguous and insufficient, without clearly identifying the wrongdoing,
indicating recognition of the employees' organizational rights, and assuring them
against recurrence of the offenses committed. Moreover, to be effective, a neutral-
ization effort must be adequately publicized substantially to reach all employees.
Here, Hastings addressed himself only to employees on the night shift. In any
case, whatever dissipating effect of Respondents' retraction of the various acts
shown above, it was nullified by Respondents' subsequent coercive and unlawful
practices, as hereinafter described.9 The conduct in question is flagrantly in vio-
lation of Section 8(a)(1).
Indeed, the undisputed testimony refutes Hastings' report to Lass that on
August 19 the restroom keys were returned to the departments and conditions
restored to preelection status. Normally, the restroom key was hanging in the
lounge. After the election, Hastings said that he could not find the key. For 2
or 3 weeks thereafter, a key was not made available in the lounge and the employ-
ees (mostly female) had to obtain a key, when needed, from Manager Hastings
or Assistant Manager Robert Frederick.10 In his testimony, Hastings related that
there was a constant loss of the key hanging in the employees' lounge and he
had to write to a lock company in Indianapolis for additional keys. This expla-
nation cannot be regarded as other than dissembling. Hastings himself had removed
the key from the lounge; he and Frederick personally held a key; and it defies
comprehension that duplicate keys could not be made up immediately in the
locality."
The deprivation of the restroom key was admittedly one of Hastings' retaliatory
measures, i.e., "to show these people how they like their damn union." No rule
restricting the use of the restroom is shown or contended. Nevertheless, in the
postelection interval, the employees, when necessity beckoned,12 were required to,
seek out the manager or assistant in order to obtain use of the restroom. The
effect of this type of reprisal, particularly upon the sensibilities of the female
employees, is pointedly apparent. Certainly the conduct constituted a continuing
violation.
8 Respondents' brief contains no discussion or argument pertaining to these issues
0 See, e.g., Austin Powder Company, 141 NLRB 183; Louisiana Television Broadcasting
Corporation, 142 NLRB 55 Cf Cosmodyne Manufacturing Company, 150 NLRB 96, where
the Board affirmed the Trial Examiner's holding that the respondent effectively neutralized
a supervisor's misconduct by announcing to employees that it would consider taking action
against the supervisor, the next day demoting him, and assuring the employees there would
be no reprisals against them for union activities.
10 Hastings testified that, in addition to himself and Frederick, a key was personally kept
by "the cashier," i.e., Dorothy Anderson.
"In fact, Dorothy Pfohl testified that, shortly before Christmas that year, she obtained
a key for herself from one of the employees who had keys made up at a local "key store "
11 Hastings ' testimonial assurance is not disputed that a key was never refused a request-
ing employee.
FASHION FAIR, INC. 1445
Preceding and succeeding the foregoing events, additional violations of Section
8(a)(1), as alleged in the complaint,13 are found in the following described con-
duct based on credited evidence:
On July 26, Hastings told Mae Sergent that he would like to promote her to
head of the shoe department, but he first had to know her opinion of the Union.
She replied that she had signed a union card and had gone to union meetings, but
did not know how she would vote in the election. He said the Union "had a lot of
bearing on this job" and if it got in she would no longer be "head of department"
but would be called "stock head." He explained that a department head would
have full responsibility for the department, e.g., full control of the girls, making up
of timecards, payroll, and work schedules, and would be paid a salary of $60 a
week for 48 hours. As a stock head, she would not have these responsibilities and
would be paid on an hourly basis for 40 hours. (At the time, she was earning $1.15
an hour.) Thereafter, she was made a department head and received the $60 salary.
However, on August 21, a bulletin was posted that Duane Booker was appointed as
supervisor in the department, and Hastings told Sergent that Booker had full author-
ity over her.14 There was no legitimate reason for the interrogation of Sergent as to
her opinion of the Union, particularly as the question was tied to the subject of pro-
motion. Preceding the election, the distinction drawn by Hastings between depart-
ment head and stock head was plainly disparate and implied a promise of advantage
if the Union were defeated. Accordingly, I find the interrogation 15 and implied
promise were coercive.
Hastings asked Lee Hargrove, 2 or 3 weeks before the scheduled election, if he
had heard anything about the Union. Hargrove said he had heard "a little bit" but
did not care whether the Union got in or not. Hastings then told him he would
not get any more benefits "with or without the union ," that he was already receiv-
ing paid vacations and a Christmas bonus, and he would not get any better hours.
On August 18, Hasting requested that Hargrove "come and tell him" if he heard
anything about the Union.
Hastings' remarks that no future benefits would be forthcoming if the Union
were successful in the election was a forecast concerning substantive matters within
management control . Hastings ' message is sufficiently clear that he sought to dis-
courage Hargrove, and employees generally, from voting for the Union by instilling
in them a sense of futility in union representation and showing a predetermination
not to bargain with the Union, if selected.16 Notwithstanding the aspect of a
friendly relation between them, it is apparent that Hastings' intention was to ques-
tion Hargrove concerning the Union and the union activities of the employees, and
that Hastings in effect sought to recruit Hargrove to report to him any such infor-
mation he obtained in the future. I find this kind of instruction and interrogation
unjustified and interrogation unjustified and unlawful 17
Similar conduct on the part of Hastings is shown in the testimony of Martha
Bush and Geraldine Seewer . About 3 weeks before the election , he called Bush
into his office and, inter alia, exhibiting ,a list of names of employees , stated "these
girls are going with me." When Bush indicated she did not understand , Hastings
remarked, "That is all, you think about it."
About August 12, Hastings spoke to Seewer, a stock head. He asked her,
"Excluding yourself , how do you think your girls are going to go ?" She answered
13 The complaint contains a long list of alleged 8(a) (1) violations many of which are
confusingly detailed and not clearly identified in the record or brief with the evidence
presented . Certain of these allegations will be dismissed , Infra, as insufficient on their
face, unsupported , or devoid of evidence.
14 Hastings admitted telling Sergent , in regard to a promotion , that she would be called
a department head of stock, depending upon whether the Union got in. He indicated be
probably obtained the idea from reading the Regional Director ' s Decision and Direction of
Election which found "heads of stock" to be nonsupervisory . He stated that he told her
her pay would not go down , but there was a question whether it would go up or not.
1s The interrogations of employees found coercive herein have been considered in light
of the entire record, including Respondents ' union animus and the various unfair labor
practices committed . Blue Flash Express, Inc ., 109 NLRB 591.
16 E.g. , Dal-Tex Optical Company, Inc., 137 NLRB 1782; Charles E . Honaker, 147
NLRB 1184.
17 E.g , Yale Manufacturing Company, Inc., 150 NLRB 1102 ; Opal Cliffs Food Center,
148 NLRB 301 ; Tidelands Marine Service, Inc., 140 NLRB 288.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"on the overall, union." Then he began mentioning names of particular employees
in her department. Seewer said, "Don't ask me to betray my girls, I won't. It is
my right." Thereupon Hastings indicated that he knew which way Mildred Curts
would go, and that he also had knowledge concerning the others, except for "Em
and Vera Miller." 18
On August 18, in the stockroom, Willard Greenguard 19 told Seewer, "Gerry if
you all let this union get in, it's like a direct slap in my face." Walking out to the
selling floor, he continued, "Gerry, we pretty well figured you are the key to all
this. If you go antiunion, so will the girls." As Seewer's supervisor, and reflecting
management sentiment, a "direct slap in the face" carried the implication to employ-
ees of disfavor and substantive disadvantage. Joined with this statement was an
indirect appeal to Seewer to use her influence with "the girls" in persuading them
to vote against the Union in the election.20
About September 1, shortly before the morning opening of the store, Nancy
Prince overheard a discussion between Manager Hastings and Assistant Manager
Frederick. Mildred Curts had tapped on the window to be let in to go to work.
Frederick looked at Hastings and said, "God damn I can't stand that woman and I
am not letting her in." Hastings commented, "We ought to leave her out there so
she will be late." On observing Prince looking at them, Hastings said, "Well, I
guess we had better leave her in", and Frederick remarked, "You can if you want to
but I am not going to." Curts was let in the store. In my opinion, there was no
serious intention of not allowing Curts in the store, nor were the remarks addressed
to Prince, as the complaint alleges. While I do not find this testimony quite sup-
ports the violation asserted, the antipathy toward Curts, a leading supporter of the
Union, is noted.
On September 3, Curts was called to Hastings' office. In attendance were Has-
ings, Frederick, Greenguard, and Dorothy Anderson, the "bookkeeper." 21 Hastings
stated he had four witnesses. Curts demanded to have her union agent present. He
replied that she did not have a union, did not have a contract, and if a union repre-
sentative came in he would throw her (Von Bokern) out22 He said that an
employee told him that Curts had threatened the employee's husband, who was a
union member, that if he crossed the picket line at Respondents' premises 23 he
would lose his job. Hastings accused Curts of making the threat on store time.
Curts protested that she had not threatened anyone. She asked if he wanted her
to go back to work, and he permitted her to do so.
Hastings explained that employee Nancy Foster told him that "Curts had threat-
ened her in the bowling alley [near Respondents' store] that if her husband crossed
the picket line and entered the store, she would have him fired from his job because
he was a union man " He said Foster was crying and upset because she could not
call her husband to pick her up at the store. Hastings admitted that he made no
attempt to get Curts' version, and that he ordered her "to refrain from ever again
threatening any employees or harassing any employee in this store." Foster testi-
fied that, in the bowling alley, Curts told her that her husband could not come to
pick her up because, as a union man, he could not cross the picket line. Thereafter
she told Frederick about it. She indicated that Curts was talking to her in the bowl-
ing alley as a friend.
The complaint specified only Hastings' statement that Curts did not have a union
and that he would evict the union representative if she came in. The General
Counsel advanced no theory for the alleged violation, and I find none. The Union
was not then certified or recognized; involved was a reprimand, not a grievance; and
Curts had no statutory right to demand the presence of a union agent.24
15 Hastings' version was that he told Bush and Seewer "to vote on the side of the Com-
pany and to get as many people to vote for the Company as [theyl could." Such instruc-
tion to employees has been held violative of the Act . Warren Paint and Color Company,
142 NLRB 494.
>B Supervisor of ladies ' and children 's departments at Fashion Fair stores.
21 Warren Paint and Color Co , supra
21 Hastings specifically asked the other three in advance to be present as witnesses, and
had sent Frederick to summon Curts after discussing the matter with him.
22 The foregoing , based on Curts' testimony , is substantially undisputed.'
23 After the discharge of Seewer, Sergent, Gutkase, and Hogan on August 29, picketing
activity was commenced , as further discussed infra.
24 As it is not alleged or argued by the General Counsel, I do not pass on whether the
reprimand itself was discriminatory or coercive , or whether Respondents unduly restricted
Curts' rights of speech pertaining to union or concerted activities.
FASHION FAIR, INC. 1447
At the end of September, Hastings spoke to Prince concerning a charge she had
filed against Respondents in which she had mistakenly claimed that she was under-
paid for the hours she worked. Hastings told her that the next time she "signed an
unfair labor practice" against him, she "had better" know what she was signing, and
that "one of these days" she was going to make him do something he did not want
to do. The language and manner of the reproach warrants, I find, the inference
that a threat was intended and conveyed. The protection afforded an employee in
filing charges with the Board is not dependent on the accuracy of the facts alleged
in the charge.
C. Transfers
On August 31, Curts was transferred, without being given any reason, from her
job as assistant department head in ladies' wear to men's wear for 1 week, and then
to domestics . She had been in ladies' wear since the beginning of her employment
in May 1962. This testimony is sufficient to establish prima facie a discriminatory
transfer, particularly in view of the evident hostility toward her for union activity.
Hastings testified, on the one hand, that it was necessary "to transfer people around
... because of the firing of people" and, on the other, that he "had a tremendous
amount of slowdown on the part of the girls" in the ladies' wear department during
the picketing (which was begun on August 30).
The discharges of Gutkase, Seewer, Sergent, and Hogan took place on August 29.
Seewer was then stock head of ladies' wear. Gutkase had been in infants' wear (a
division of ladies' wear) for a year and a half and "handled the department" when
she was transferred, without reason given, on August 19, to the cash register and
then to the service desk. The broad conclusions stated by Hastings failed to show
the asserted business necessity for the transfer of Curts from her long and regular
job in ladies' wear. Nor do I accept his characterization of a "slowdown" as fact
without more specific proof. In sum, I find that both his generalized grounds were
pretexts, and that Curts was transferred in reprisal for her union adherence, violat-
ing Section 8(a)(1). In all the circumstances, Gutkase's transfer is similarly found
to violate this section, as alleged, in the absence of justification given by Respond-
ents. Among other things, consideration is taken of her union leadership activity
and the occurrence of her transfer on the day after the election when Hastings
vowed his reprisals for the apparent victory of the Union.
D. Alleged 8 (a) (1) conduct dismissed as noncoercive
In June and early July, Hastings held meetings with various stock heads, includ-
ing Seewer, at which he asked them "to stick with the Company," in connection
with the forthcoming election. On August 18, before the election, Hastings told
Judy Glotzback he knew which way she would vote, and Greenguard told Gutkase
.,we are depending on you and remember we have been good to you." About Au-
gust 23 , certain employees began to wear union buttons on the job. Thereafter,
Hastings asked Gutkase and Jo Ann Lenz whether they had paid their dues on the
union button. Hastings also "kidded" Lee Hargrove by inquiring about his union
button when it was not worn. All the above statements are too vague or trivial to
constitute coercion
Gutkase testified to a conversation with Assistant Manager Frederick during the
week of August 24 in which, "he said you are wearing your union button upside
down, why don't you start walking on your hands-and I said you are getting a
union button and he said yes, thirteen of them." Frederick's remarks, I find, are
too obscure and ambiguous to suppport the General Counsel's allegation that he
threatened to discharge the 13 employees who voted for the Union in the election.
On August 30, Hastings told Martha Bush he was having lunch sent in because
he did not want any of his girls to get hurt in connection with picketing, which had
started that day. Bush said the girls who were picketing were her friends, and she
wished to go out. Hastings declared that he would not be responsible and Bush
went out The allegation chat Hastings "refused" to permit employees to leave the
store is not established.
On September 1, Hastings instructed Pfohl, in her work at the service desk, to,
"pull" all layaways that had not been paid on for 30 days. Customers and employ-
ees were extended this type of credit in being permitted to reserve at the store cer-
tain merchandise prior to payment. The 30-day limitation on layaways was in
effect since June. There is no basis for General Counsel's contention that the Sep-
tember 1 order was a reprisal against employees for selecting the Union, as the
order similarly affected customers and employees, union and nonunion.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About September 1, 2 days after the picketing started, Hastings called Prince
over while she was on her way out of the store. He said he was not telling her to
join or not to join the Union, but he just wanted to help her, and the best thing for
her was to stay away from those people out in front because all they could do was
hurt her. There is no evidence that the picketing was other than peaceful. Has-
tings was not restricting Prince but in effect expressing his opinion as to which,
though it might well have been misleading and erroneous, the employees could rea-
sonably judge for themselves. On balance, I do not find the tendency and effect
of Hastings' statement was unlawfully to interfere with Prince's rights.
About September 2, Sergent was picketing in the "gutter" with Union Agent Von
Bokem when a rock hit "right at" her hands. Both turned and looked but saw no
one except Hastings "more or less ducking in a door" to the store, and he was
laughing. As they did not see Hastings throw the rock, and he denied doing so,
the allegation is dismissed.
Sergent and Seewer testified that, in the same week, as they were picketing in the
road, Hastings' car brushed their skirts from behind as he was driving "quite slowly"
toward the parking lot. They did not protest to him or notify the police. Con-
sidering Hastings' denial, and without more positive evidence, I do not find that he
intentionally engaged in such conduct.
A week after Labor Day, Hastings overheard Bernice Paris remark to Mildred
Curts about being short in her paycheck. He told Paris, "You ought to come to
me . You run and file every charge against me every time I cut you off-hell's
bells." On its face, the statement is innocuous.
On September 24, Hastings told Glotzback that she had been timed on her break
as having taken 27 minutes. She disagreed and said she had timed herself and had
come back in exactly 15 minutes, the amount of time allowed. The Pinkerton
guard 25 testified that he had, without instruction, undertaken to time Glotzback and
had reported to Hastings that she had taken 27 minutes on her break. In the cir-
cumstances, I find no evidence to sustain the General Counsel's allegation that Has-
tings harassed a known union adherent by falsely accusing her of taking additional
break time.
Elise Hargrove testified that the day after the election, among other things, Re-
spondents required that employees punch their timecards for the time taken during
a break. No other employee so testified. The complaint alleges this "change in
working conditions" as having occurred on or about September 29. Hastings tes-
tified that, about September 29, he posted a notice instituting this requirement be-
cause employees were overstaying their breaktime. In view of the disparity in
dates, it is sufficient, without more, to dismiss the allegation.
E. Eviction of picketers
On August 30, following their discharge the previous day,26 Gutkase, Seewer,
Sergent, and Hogan, together with Union Agent Von Bokern,27 started picketing on
the parking lot within a few feet of Respondents' store 28 On August 31, Gut-
kase, Sergent, and Seewer were sitting in a private car in a parking lot "taking a
break" from picketing activity, when Hastings, Frederick, and Booker (an apparent
supervisor) came up and ordered them to get off the parking lot and to take their
car off the lot. Hastings said "the cops" would be there in a few minutes and tell
them where they would have to go. In a short time, the police arrived. At that
point, Hastings said in effect that he could not "make" them get off the lot, but he
would go to the courthouse and get an injunction. It appears from terse testimony
of Sergent that at a later date, unspecified, an injunction was obtained; thereafter
the picketing was continued in the "gutter." About September 2, while Sergent
was picketing alone, Hastings told her he would have her locked up if she did not
get off the parking lot.
5 Lincoln Frederick. He was assigned to Respondents' store in September to protect
the company property.
Is Found in violation of Section 8(a) (3), infra.
27 Hastings testified that, on August 30, there were 20-25 people picketing, including the
dischargees and their husbands, but that no "employees" were among the picketers.
Martha Bush testified that the picketers consisted of Seewer, Sergent, Hogan, Von Bokern,
and "two other girls from the Fashion Fair "
29 The legend on the picket sign read, "Please don't shop at Fashion Fair. Unfair to
members of Retail Clerks Local 445."
FASHION FAIR, INC. 1449
The evidence shows that the parking lot served, presumably for general public
accommodation , two or three other retail enterprises in addition to Respondents'
store. There is no contention or indication that the parking lot was segregated
for each enterprise , that it was posted against trespassing , or that parking was in any
way restricted , e.g., for customers and working employees.
The complaint alleges, and Respondents admit, (1) that, about August 31, Has-
tings ordered a group of employees from the parking lot while they were peacefully
picketing Respondents' premises,29 and (2) that, about September 4, Respondents
filed a petition in an Indiana circuit court to forbid "employees to picket in con-
cert and on behalf of the Union in the public parking lot . in front of
Respondents' store. Respondents asserted the defense in the formal answer that
they "were within legal rights to order employees off of their private property and
that Respondents were acting in protection of their property rights." In support of
this defense, Hastings testified that he had a "conference with the landlord and
according to our lease that property," including the west parking lot in front of
the store, "is private property leased to us . . . exclusively." 30
Respondents conduct in question took place before the injunction was sought or
obtained. The legal basis and the conditions set forth in any injunction, tempo-
rary or final, issued by the State court are not revealed by Respondents. The pick-
eting was peaceful, as admitted, and is not asserted to have caused any disruption
or interference with Respondents' business. On any question of trespass in these
circumstances, no Indiana law was produced. The parking lot-reasonably assum-
ing that it was privately owned and under lease to Respondents-by its usage
acquired a public or quasi-public aspect of a shopping center.31 The Board has
held, for example, that an employer may not deny employees the right to solicit
or be solicited for union membership when off duty in a "private street" which tra-
verses the center of the employer's department store at street level.32
In view of the legend on the picket sign citing the Union 's name , supra, and the
active participation therein by Von Bokem of the Union , it is clear that the dis-
charged employees were not alone engaged in the picketing .33 I find that, on the
ample evidence on the record , in ordering the picketing off the parking lot Respond-
ents were essentially motivated by their continuing aversion to the Union and by a
desire to harass the picketers in the exercise of their protected concerted activities 34
However, as it is the existing Board policy to "accommodate its enforcement of
the Act to the right of all persons to litigate their claims in court , rather than con-
demn the exercise of such right as an unfair labor practice ," 35 the allegations relat-
ing to Respondents ' filing of a petition for injunction in the State court are
dismissed.
Respondents admit the allegation ( and testimony establishes ) that, about Septem-
ber 1 , Hastings photographed the dischargees while they were peacefully picketing
Respondents ' premises. It was testified by Sergent , for example , that Hastings took
several pictures , that she asked him not to take her picture, but that he just said
"smile" and proceeded to take it. It is not found that the manner in which
Hastings took the pictures constituted harassment . Hastings testified merely that he
acted pursuant to instructions from Vice President Herman Lass. However, in view
20 Respondents , amending their answer at the hearing, dispute only that the dischargees
were "employees ." As the discharges are held unlawful , infra, the dischargees were in
fact employees under the Act.
30 This kind of evidence , of a hearsay character , based upon a "conference with the land-
lord," Is scarcely probative of the facts contended by Respondents.
21 Cf., e g., Schwartz-Torrance Investment Corp. v. Bakery and Confectionary Workers,
Local No. 31, 57 LRRM 2036 (Calif. Sup. Ct. 1964 ), holding that picketing by a union in
a shopping center cannot be adjudged in terms of absolute property rights; it must be
considered as part of the law of labor relations ; the union's interest in picketing, which
rests on public policy and constitutional right, outweighs the owner's interest , which rests
on a property right worn thin by public usage of the shopping center.
82 Marshall Field & Company, 98 NLRB 88, 93. Enforcing this aspect of the Board order,
the Seventh Circuit stated that the street partakes "of the nature of a city street, even
though owned by the Company .. . ... 200 F.2d 375, 380.
2s It is unnecessary to decide whether an unfair labor practice strike was involved
84 Cf. New French Benzol Cleaners and Laundry , Inc., 139 NLRB 1176, 1181 ; Scherer &
Sons, Inc., 147 NLRB 1442
as Clyde Taylor, d/b/a Clyde Taylor Company , 127 NLRB 103, 109. (The General Coun-
sel presented no argument or rationale to distinguish the Taylor case )
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the corroborative surrounding facts, I accept Respondents' avowal in its formal
answer that the purpose of the photographs was to obtain evidence in support of its
injunction petition to be presented before the Indiana circuit court, and therefore
dismiss this allegation, based on Board psecedent.36
F. Discharges following incident at South Side Cafe
On August 29, four female employees, Gutkase, Seewer, Sergent , and Hogan,
were terminated by Hastings assertedly because they were present in a group with
Hogan's husband, who allegedly attacked Hastings the night before at the South
Side Cafe, a tavern and nightclub in New Albany, Indiana. Details of the incident
were adduced by nine witnesses for the Respondents, and for the General Counsel
by the four dischargees. Direct and substantial conflict exists as between the testi-
mony given for the General Counsel and that given for the Respondents, and also
as among the particular versions of Respondents' witnesses. With many variations,
Respondents' witnesses testified that (Mr.) Hogan hit or slapped Hastings on the
back, that Seewer slapped or slapped at Hastings, that Sergent struck or struck at
Dorothy Anderson, and that Gutkase kicked Frederick in the ankle. The discharged
employees denied that they observed or were involved in any violence. The sub-
stance of the evidence will be described so far as relevant to the essential issues and
to the ultimate conclusions reached.
In the late evening on August 28, Hogan, Seewer, and Sergent, together with their
husbands (nonemployees), and Gutkase met and spent about an hour at Steiner's
Cafe and then left for the South Side Cafe, arriving about midnight. They took
seats in the back of the cafe at a table by the dance floor where customers were
dancing to the music of a band. (The dance room was separated by partitions and
a door from the barroom section into which they first entered from the street.)
About 1 a.m., Hastings and his group entered the South Side, after having been
together at the Redman's Club.37 In Hastings' party were his "date," Dorothy
Anderson (bookkeeper or cashier), Assistant Manager Frederick and his wife (non-
employee), and Beulah Houghlin and her husband (nonemployee). Entering the
South Side, they stopped to talk with Sharon Rosenberger and Patsy Flick (non-
employee). Then Hastings coupled with Rosenberger, and Anderson with Flick,
came into the dance room and began dancing a very fast number called the "Big
Bee." 38 In the dance room about 20 tables were located along the periphery of the
rectangular dance floor, which was about 20-25 feet in diameter. The room was
fairly dark and the band was playing loudly.
1. Testimony of General Counsel's witnesses
Sergent noticed a crowd moving through the door to the barroom, and said,
"Rae, they are taking your husband out." In the crowd, Everett Hogan and
Raleigh Roberts, the bouncer, were seen going toward the street exit. The remain-
der of Hogan's party got up and left their table. Gutkase "ran into" Frederick near
the door to the barroom and asked him what was going on. He said he did not
know. Gutkase remarked, "Well, we'll know tomorrow." She remained in the
dance room. Sergent, Seewer, their husbands, and (Rae) Hogan went out to the
street, where they found Everett Hogan.39 As Gutkase had not come out, Sergent
went back in to get her. Inside the cafe, Sergent, in the company of Gutkase,
encountered Dorothy Anderson, who said, "You s- o b-, you." Sergent
replied, "Watch your lingo, Dot." The bouncer, Raleigh, came up behind Sergent
and asked, "Do you want to go out?" She answered, "Sir, I'm on my way out."
sa Lock Joint Pipe Company, 141 NLRB 943 , 963; Clyde Taylor Co ., ibid.
ar At Steiner's, Gutkase had a "coke" and the others a bottle of beer or two and, at the
South Side, had placed similar orders. At Redman 's Club and at South Side, alcoholic
beverages were also consumed by those in the Hastings' party. There is no contention or
finding that persons in either group were intoxicated.
38 As described, in the "Big Bee" the partners stay physically apart, each doing a "lot
of body gyrations," e.g., hip twisting, shoulder swinging, and arm swinging.
as Rae Hogan testified that she then asked her husband what was going on, and he said
that, as far as he was concerned , nothing, that he went up and tapped Hastings on the
shoulder and the bouncer then came and asked him to leave. The foregoing testimony was
offered, and admitted, not for the truth of Hogan' s explanation , but as a remark made
within the context of the incident in question.
FASHION FAIR, INC. 1451
Raleigh grabbed hold of Gutkase and asked, "`What's going on with you?" and she
said, "Nothing, what's wrong with you?" Sergent and Gutkase walked out of the
cafe, and thereafter , their entire group left the scene.
Reporting to work at 10 a.m., the next day, August 29, Seewer and Gutkase were
met at the street door by Hastings. In a loud voice, he told them they were "fired,"
and not to enter his store.40 They were given no reason for the discharge then or
since then . Sergent and Hogan came to work at 1 p .m., and were stopped by Has-
tings inside the store, in the presence of customers. He said, "I want you out of
my store; you are fired and if you don't get out of my store, I am going to call the
cops." When Hogan asked for a reason, he stated he had nothing to say and would
answer to "their union." Hogan then inquired about their paychecks, and Hastings
took them back to the office. There, Hogan pressed the question, "Mr. Hastings,
you ought to be man enough to tell us why you are firing us." He indicated, "Well,
I don't like being attacked in public." Hogan said she saw no attack. And Sergent
asked , "Mr. Hastings , are you accusing Rae and I of attacking you in public?" He
replied, "No Rae's husband did." He said she was married to him and she must
take care of him 41
2. Testimony of Respondents ' witnesses
Hastings: At the South Side, about a minute after he got to the dance floor doing
the "Big Bee" with Rosenberger, someone hit him in the middle of the back and he
lurched forward. Someone grabbed him on the shoulders and Rosenberger took
hold of his hands. He turned around and faced the man (later identified as Everett
Hogan) and said, "Who is that man?" and repeated this question to Anderson
standing nearby. Hogan said, "I'll teach you how to run your store, come outside
I want to talk to you." Three or four times, Hogan said he wanted to talk to him,
but Hastings did not answer because he did not want to get involved. Then Raleigh
the bouncer came up, grabbed hold of Hogan, and started walking out with him:
He exchanged no conversation with Raleigh. About that time, employees Seewer,
Gutkase, Hogan, and Sergent, with four or five other people, gathered around him.
Suddenly, Seewer slapped him in the face and walked on out. He followed her
into the barroom, stood there a while, then turned and saw Sergent and Anderson
in a verbal argument. He saw Sergent swing at Anderson and hit her in the shoul-
der. Another bartender and bouncer, Carroll McDaniel, popularly called "Kayo,"
got hold of Sergent and took her out (the street door). The next day, he dis-
charged the four girls but gave them no reason, as "it was pretty obvious."
On cross-examination, Hastings stated "It didn't feel to me like it was a fist but
it was a pretty strong blow" by Hogan. He made no attempt to defend himself in
any way. He knew the bouncers, Raleigh and Kayo, and they knew him, as he had
been at the South Side many times.42
Rosenberger: No sooner had she started dancing the "Big Bee" with Hastings,
when a man (Hogan) came up and hit Hastings in the back. She thinks the blow
was with an "open hand," and it came out from Hogan's shoulder and landed on
the right side of Hastings' back. Hastings lost his balance and stumbled forward.
She grabbed and held his hands; he did not try to break loose; he fell against the
wall. Hogan told Hastings he wanted to talk to him about "his damn store."
Hastings said, "Go ahead, talk." By that time, Raleigh the bouncer was there
between Hastings and Hogan. He told Hogan he would have to leave "or some-
thing like that," and started taking him by the arm out to the front. Hogan did
not want to go because he kept saying he wanted to talk to Hastings. Hastings fol-
lowed Hogan and the bouncer into the barroom area. Thereafter, she saw the
people in Hogan's party get up from their table and, in the barroom on their way
out, Seewer slapped at Hastings, but she could not say whether it connected. She
also heard Dot Anderson telling Mae Sergent, "What's the matter with you all; are
you crazy or something7" Sergent retorted that she was going to "stomp" Ander-
son's "pretty little" posterior on the floor. Kayo the bouncer came up and told
40 Other people were at the door waiting for the store to open.
u Sergent 's testimony.
4° Bush credibly testified that on August 27 or 28, Hastings displayed to her a bruise on
his leg which he said he got from jumping over garbage cans . On August 30, he said he
wanted to show her what "these girls done to me," impliedly at the South Side He then
exhibited the same leg , stating that someone had kicked him in the shins
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sergent that if she kept this talk up, she would have to leave, and he put Sergent's
arm behind her back 43
Dorothy Anderson: She was "a couple of feet" away when Hogan hit Hastings
in the middle of _the back above the belt line. She does not know whether Hogan
used his open hand or his fist, but she saw Hastings go forward. Hastings turned
and asked, "Who is that guy?" The bouncer was there by then and, with an arm
lock on Hogan, was getting him off the dance floor. She heard no other conver-
sation. On redirect examination, she testified that Hogan hit Hastings and then
pulled on his coat to turn him around Hogan's hand went straight out from the
body and landed between Hastings' shoulder blades. Hogan was shorter and
lighter than Hastings. The bouncer came up and said, "What's going on?"
Anderson stated that she saw Gutkase, Sergent, Seewer, and (Rae) Hogan get up
from their table and come toward "the group where Hastings was." She then went
into the barroom where Raleigh the bouncer had Hogan by the cigarette machine
trying to calm him down. She returned to the dance room and ran into Sergent
and (Rae) Hogan. "Sergent started saying some things and I said what is the mat-
ter with you people, are you crazy or something and then she swung at me and
she kind of lost her balance, she sort of got me on the shoulder, it wasn't hard
and Kayo came up then and said if you don't hush up I am going to get you out
of here, both of you I don't know which one." 44 Sergent started arguing with
Kayo, and then he put her arm up between her shoulders and took her out the
front door to the sidewalk.
She and Hastings had come together to the South Side "quite a bit"; she has
been there "usually" twice a week.
Beulah Houghlin: She was standing 3 feet away when she saw Hogan hit Has-
tings in the back. In just 1 second, Raleigh the bouncer was there and got between
Hogan and Hastings. Gutkase, Seewer, (Rae) Hogan, and Sergent came up from
'their table and stood there at the corner of the dance floor. Raleigh told (Mr.)
Hogan to leave. A few words passed, and Raleigh told them all to leave; i.e.,
Gutkase, Seewer, (Rae) Hogan, and Sergent . In the barroom, she saw Seewer
slap Hastings, but she does not know whether it made connection. There, she
heard Hogan keep saying he wanted to talk.
Patsy Flick: Halfway through the "Big Bee" number, Hogan came up and hit
Hastings on the back, and Hastings lost his balance. The motion was an exten-
sion of Hogan's hand from his shoulder. She does not know whether Hogan's
hand was open or not. Rosenberger grabbed Hastings' hands and he fell over
toward the table. Then Hogan pushed Hastings against the wall. The bouncer
came up and stepped between them. The girls got up from their table and started
leaving. Gutkase was first to leave. Seewer passed by and raised her arm toward
Hastings,45 but she did not see whether the blow hit. Later she saw Sergent "slap
at" Anderson; it "sounded like" a slap On cross-examination, Flick substantially
altered her testimony. Inter alia, she said she saw Hogan swing but did not see
the blow land. It was like a push; his hand was open.
Raleigh Roberts (the bouncer) : He witnessed the incident while standing 5 feet
from the dance floor. He saw Hogan grab the back of Hastings' coat and pull it
down over his shoulders and arms. Hastings did not fall or lose his balance. Rob-
erts walked up and said, "Cut out the horseplay." He realized it was not horseplay
when he heard Hastings say, "What the hell are you doing?" Then quite a bit of
conversation passed between Hogan and Hastings. Hogan argued when he was
told he would have to leave. They went out to the ballroom, with Hastings fol-
lowing behind. When they got to the street exit , Hastings stopped and Hogan
walked onto the sidewalk. He had tried to keep Hastings from going after Hogan.
He did not see a blow struck by anyone all night.
'3 Rosenberger's pretrial affidavit was offered by the General Counsel and admitted for
the stated purpose of impeaching certain of her testimony . She averred in her affidavit
that "I saw Mr. Hogan come up behind Mr. Hastings and it looked to me as though he
grabbed Mr. Hastings' right shoulder and shoved Hastings against the wall I still had
hold of Mr. Hastings' hands Mr Hastings turned around thinking someone was joking.
Mr. Hogan said something to the effect that I want to tell you something about your
damn store Mr Hastings said well go ahead and talk what seems to be on your mind "
It is evident that the affidavit is inconsistent with her testimony.
a In later testimony , she said, e g., that Kayo threatened to evict only Sergent ; that
she did not think Sergent meant to smack her in the face, it "kind of went by" her
shoulder.
'3 In the presence of Hogan and the bouncer
FASHION FAIR, INC. 1453
On cross-examination, Roberts stated, inter alia, that Hastings and Hogan were
talking to each other in the ballroom about 2 or 3 minutes. It was his purpose to
take Hogan out on the street if they kept on arguing. In the ballroom, the other
bouncer, Kayo, intervened . He thinks that he alone, not with Kayo, took Hogan
to the street door.
Carroll "Kayo" McDaniel: He works in the barroom and did not witness the
incident in the dance room. He saw Raleigh bring Hogan into the barroom (no
mention of Hastings ) and he came over to halt the disturbance. Hogan was pro-
testing that "it wasn't his fault, he didn't do this and he didn't do that and he
wasn't going to go." He and Raleigh forcibly took Hogan out to the street. Then
going into the dance room, he came upon Anderson and Sergent arguing. Sergent
said, "I'll see you or I'm going to get you," and that is when he told her if he heard
any more he was going to put her out. She said she would leave, and he did escort
her out, having hold of her arm.46
Carol Frederick: 47 She was 6 feet away when she saw Hogan hit Hastings in the
back, but she could not say whether it was with a fist or open hand. The four girls
(the dischargees) followed the bouncer and Hogan out of the dance room 48 She
observed Seewer "strike at" Hastings, but did not see whether the blow landed. She
also saw Sergent "strike at" Anderson. She and her husband were standing by the
door when Gutkase came by and stopped for a moment. Gutkase drew back
"slightly" and kicked her husband in the left ankle, saying, "You'll find out about
this in the morning," and went on out. She could not say it was a "real hard"
kick. Her husband said, "Kind of an ouch, I mean it wasn't a loud one." He was
not hurt by the kick. There were people behind Gutkase, shoving, trying to get to
the door.
Robert Frederick: He was 5 or 10 feet away when Hastings was hit in the back
with a blow coming from Hogan's waist. The bouncer came between them. See-
wer, Gutkase, Sergent, and (Rae) Hogan came around Hastings, within 2 or 3
feet. Seewer struck Hastings, connecting on the left side of his cheek. Gutkase
drew back and kicked him (Frederick) in the ankle. She said he would find out
about this in the morning, and walked out. He did not see the kick but felt the
point of her shoe. It is possible that the kick was accidental, but not probable. It
was fairly dark.
3. Findings and Conclusions on the South Side Affair
Gutkase, Seewer, and Hogan were employed with Respondent since October
1961, and Sergent since October 1963. All were active in the union movement,
participating in various ways, e.g., signing cards and wearing union buttons at work
after August 23. I find, particularly as revealed by the evidence earlier herein, that
Respondents had full knowledge of their union adherence.
Essentially the question is whether the General Counsel sustained his burden of
proving that Respondents' motivation for these discharges was, in whole or part,
to discourage union membership. I find in the affirmative. While side issues of
credibility are presented , they are not decisive. For even assuming, as I do not find,
that Hastings was assaulted by (Mr.) Hogan in the manner alleged, I would reach
the same result that the discharges were discriminatory. However, on considera-
tion of all the relevant evidence, I credit Gutkase, Sergent , Seewer, and (Rae)
Hogan and conclude that none of them personally was engaged in, or witnessed,
any violence of the South Side night club. On the other hand, it is apparent that
in significant respects the testimony of Respondents' witnesses contains mutual and
internal contradictions and implausibilities. Particularly, I do not accept the ver-
sion given by Hastings, for additional reasons of demeanor and evasiveness.
Although Everett Hogan did not testify,49 it is reasonably inferable from testi-
mony of Respondents' witnesses, in the nature of admissions, that he did not
"attack" Hastings. As I find, (a) Hogan applied an open hand on Hastings' back
and (b) he kept stating that he wanted to talk. It is entirely plausible that, by the
physical contact, Hogan was merely seeking to have Hastings turn around and
engage in conversation. Hastings was engrossed in a fast dance , the "Big Bee,"
40 Earlier he testified that Raleigh "threw some people out," including Sergent.
47 Wife of Assistant Manager Frederick.
48 She testified that the bouncer and the bartender "were trying to get everybody escorted
out," specifying the entire Hogan group. Later she stated that she knew this because she
heard someone say that they were throwing them all out.
40 None of the other nonemployee husbands in both groups was called to testify.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the room was fairly dark, and the music was loud. He may have stumbled, giving
the appearance that he was "hit." He himself must have known otherwise. He
made no attempt to defend himself and his reaction, shown by the remarks, e.g.,
"Go ahead,etalk," or "Who is that man?" were not reasonably that of a man un-
expectedly assaulted 50
Prior and subsequent to the discharges on August 29, as already found, Respond-
ents committed serious acts of interference, restraint, and coercion. In particular,
Manager Hastings demonstrated immediately after the Union's apparent success in
the election on August 18 an attitude of vindictiveness and a determined purpose
to visit reprisals against known or suspected union-minded employees. Also, he
plainly disclosed a disposition to give vent to his animus by taking abrupt action.
He acted similarly, I find, in connection with the South Side incident 51
The proffered reason reluctantly given by Hastings to Hogan and Sergent after
they were fired was only that he was attacked in public by Hogan's husband. He
made no charge that any of the girls personally engaged in misconduct at the South
Side. His ground for discharge, i.e., guilt by association in their private affairs on
nonworking time, is wholly unconvincing as the true motive. The four employees
had a record of tenure and competence with the Company. He resorted to no
reasonable or businesslike procedures, but curtly and summarily fired them. I
cannot find that Hastings believed he was assaulted and for this reason alone, how-
ever unfair, decided to punish the employee members of Hogan's party. In all
the circumstances, the element of his and Respondents' established union antipathy
provides, in my opinion, the moving basis for the discharge action in question.
Accordingly, it is found that Gutkase, Seewer, Sergent, and Hogan were terminated
in violation of Section 8(a)(3) of the Act, as alleged.
G. Reduction of hours
The complaint alleges that Respondents discriminatorily reduced the hours of
seven employees beginning on the respective dates, from August 29 through Septem-
ber 25, set opposite their names below. Of general application, Hastings' testi-
mony is noted, that the scheduling of hours is done by department heads or stock
heads, subject to his approval, within the allotted amount of payroll per week. He
stated that, in most of the departments, the employees with the most seniority are
given the full-time, and those with the least seniority receive the shortest, hours, but
that "administrative cashiers" are scheduled according to their availability . He also
indicated that "back to school" sales took place in August and early September,
necessitating the hiring of additional help during this period, and that impliedly,
business slackened thereafter. Each of the employees in question was actively
pro-Union, e.g., signing authorization cards and wearing union buttons at work
commencing on various dates after August 23.52
Jo Ann Lenz-August 31: She worked as a cashier for Respondents, part-time
while attending high school and full-time during the summer vacation. She
resumed school about September 9. Respondents' records, admitted by stipulation,
reflect the following hours worked by Lenz for the week ending on the date
indicated:
Apr 4-------- 11 his June 6------- 29Y2 his Aug 8______ 37%hrs Oct 10______ 17 hrs.
Apr 11_______ 22 hrs. June 13------ 42 his. Aug. 15----- 43 hrs. Oct 17______ 2634 hrs.
Apr. 18_______ 10 hrs June 20______ 40% hrs Aug 22_____ 273 hrs Oct 24______ 253 hrs.
Apr 25_______ 2334 hrs June 26______ 20 hrs Aug. 29-____ 3434 hrs Oct 31______ 26% hrs
May 2________ 9 hrs July 4_______ 89% his Sept 5______ 36 his Nov 7______ 2234 hrs
May 9-------- 1834 his July 11______ 40 his Sept 12_____ 15 hrs Nov 14_____ 1634 hrs
May 16_______ 19% his July 18 _____ 27% has Sept 19_____ 1734 hrs Nov 21_____ 21% hrs
May 23 13% his July 25___ 474 his. Sept 26_____ 12 his
May30 38 his Aug 1______ 3r%his Oct 3_______ 1234 his
5O From my observation, Hastings appears 6 feet tall, solidly built, and about 30 years
of age. Testimony indicates that Hogan was shorter and lighter than Hastings
m In the chronology of events, it may reasonably be inferred that at South Side the two
opposing groups, of Hastings and Hogan, were fully cognizant of the continuing con-
troversy regarding union representation.
sa Glotzback testified, without contradiction, that since August 23, Respondents hired
seven new employees, of whom four were assigned to the cash registers, and one each to the
men's wear, ladies' wear, and shoe departments
FASHION FAIR, INC. 1455
I find no significant change in hours on August 31, as alleged, nor in general
any appreciable variation in the pattern of workweeks over the entire period shown
while she was attending school.
Nancy Prince-August 30: She was hired as a part-time employee on August 4.
After the summer recess, she resumed attendance at high school. She testified that,
when hired, Hastings told her she would be given no less than 30 hours a week,53
and that, on September 1, before school started, Hastings told her he wanted her
40 hours a week, and she said, "Okay." She stated that, about September 5, she
started wearing her union button and her hours were cut in the ensuing weeks.
However, she admitted that, in October, Hastings asked her on a "couple of occa-
sions" if she wanted overtime; she said she did and got the overtime. The payroll
records indicate:
Aug 8_______ 2234 his Sept 5______ 33% his Oct 3_______ 27% hrs Oct 31______ 333% hrs.
Aug 15______ 3534 his Sept 12_____ 26% his Oct 10______ 19 hrs Nov 7______ 33 hrs
Aug 22______ 27% his Sept 19_____ 29% his. Oct 17______ 21% his Nov 14_____ 221 hrs.
Aug 29______ 36% his Sept 26_____ 19% his Oct. 24____ 39%hrs Nov 21_____ 27%hrs
No substantial basis appears for finding a discriminatory reduction in hours
beginning on August 30, as alleged, nor at any time thereafter.
Bernice Paris-August 29:
July 18------- 30%hrs Aug 15_____ 40% his Sept 19_____ 39 hrs Oct 24______ 36 hrs.
July 25_______ 37% hrs Aug 22_____ 40 hrs Sept 26_____ 38% hrs Oct 31______ 4134 hrs
Aug 1_______ 37% hrs Aug 29_____ 40% his Oct 3_______ 35 hrs Nov 7______ 36 hrs
Aug 8_______ 40 hrs Sept 5______ 40 his Oct 10______ 36 hrs Nov 14- --- 37Y4 hrs.
Sept 12 ____ 38% his Oct 17______ 3734 hrs
She testified that her entire department (men's wear) worked about the same
number of hours since September 1. On the above evidence , the allegation will
be dismissed as to Paris.
Lee Hargrove-September 13: He started with Respondents on July 7. He
attended high school, returning after vacation, about September 3. The payroll
records show:
July 18 _______ 52 hrs Aug 8 _____ 3234 his Aug 29_____ 21 hrs Sept 19 _____ 1134 hrs.
July 25_______ 48% his Aug 15_____ 3534 his Sept 5______ 28% his Sept 26_____ 14 hrs.
Aug 1_______ 41 hrs Aug 22 _____ 30Y4 Firs Sept 12_____ 22 his. Oct 3_______ 834 his
Oct 10 ----- - 10 hrs.
The drop in Hargrove's hours in the week beginning September 13 and there-
after may reasonably be attributed to his resumption of school. I find the alle-
gation without adequate support.
Judy Glotzback-September 13: She commenced work on October or Novem-
ber 1963. She was also a high school student, returning about September 3.
Feb I_ ______ 15 hrs May 9_______ 33% his July 18______ 26 hrs Sept 26_____ 16% hrs.
Feb 15______ 26% his May 16______ 26% firs July 25______ 40%hrs Oct 3_______ 8 hrs
Mar 14_ _____ 14 his May 23______ 29 hrs Aug 1_ _____ 4034 hrs Oct 10______ 1634 hrs.
Mai 21_ _____ 16% his May 30______ 3034 his Aug 8_ _____ 40 hrs Oct 17______ 22% hrs.
Mar 28______ 16 Isis June 6------ 35%hrs Aug 15____ 31 hrs Oct 24______ 2G34hrs
Apr 4_ ______ 23% his June 13 __ 40 his Aug 22_____ 40 hrs Oct 31______ 2534 hrs
Apt 11______ 24 hrs June 20__ 40 hrs Aug 29_____ 40% his Nov 7______ 20Y4 firs
Apr 18_ _____ 21'2 hrs June 27__ 33 his Sept 9______ 4434 Firs Nov 14_____ 1834 hrs
Apt 25______ 31% hrs July 4_______ 26% hrs Sept 12_____ 27% Ins Nov 21_____ 21Y4 brs
May 2________ 25 his July 11______ 26% hrs Sept 19_____ 16Y4 his
From April, during the school period in the spring, Glotzback's weekly hours
were not less than 211/2 hours: After her return to school in the fall, beginning
53 Not borne out in the payroll records, below
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the payroll period of September 19, for 4 weeks her hours appear to have suf-
fered an appreciable decline. Thereafter, the approximate normal pattern was
resumed. However, compared with the period in February and March, the 4 pay-
roll weeks-on and after September 19 are not significantly disparate. There are
circumstances present which raise suspicions that the reduction of Glotzback's hours
was deliberate and discriminatory; for example, the hiring of four new cashiers,
and the assignment of overtime in October to Prince, a part-time student, also
working as a cashier. However, I find the record here insufficient to sustain the
General Counsel by the necessary preponderance of evidence 54
Mildred Curts-September 13:
Apr 11______ 40 hrs. June 6___ 43%hrs Aug 1______ 34 hrs Oct. 10 ------ 36 his
Apr l8______ 41% hrs. June 13__ 39 hrs Aug 22_____ 40 his Oct. 17______ 34% hrs
Apr. 25------ 39 hrs June 20__ 38%hrs Aug. 29_____ 40 lirs Oct. 24 ------ 36 his
May2-------- 40% his June 27__ 38%hrs. Sept 5______ 39 his Oct. 31------ 37s hrs.
May 9________ 39 his July 4_______ 40 hrs Sept 12_____ 40 hrs Nov 7______ 36 hrs.
May16------- 39 his July 11------ 38%hrs Sept 19_____ 38%hrs Nov.14_____ 38%hrs.
May 23_______ 40 hrs July 18 ------ 40 hrs. Sept 26_____ 38 hrs Nov 21_____ 36 hrs.
May 30_______ 31M his. July 25______ 37% hrs. Oct 3_______ 2814°hrs
As no significant drop in hours is evident on and after September 13, and Curts
testified that her hours were the same as others in her department, the allegation
is clearly without merit.
Mary Peyton-September 25:
August 8--------- 32 hours September 5__ 40% hours
August 15 -------- 40% hours September 12 36 hours
August 22 -------- 32 hours September 19__ 40% hours
August 29________ 40% hours. September 26__ ___ 16 hours.
October 3--------- 17% hours.
The issue of Peyton's reduction in hours will be considered in conjunction with
that of her alleged discriminatory discharge.
H. Termination of Peyton
When she was hired on August 4 65 in the domestics department, she informed
Hastings that she was a widow with three children and had to have 40 hours a
week. He said that if her work pleased him, she would be put on 40 hours. On
August 31, Hastings transferred her to the shoe department, at which time he
assured her of 40 hours a week.56 About September 18, Hastings called her at
home and asked, "Did you make the statement that you would see me in hell first
before you would quit?" She admitted she did. Then he asked her whether she
had made certain other remarks about him, which she denied. He told her he
could cut her down to 10 hours a week, or fire her, or do whatever he wanted, but
he was going to watch her every minute of her work. Hastings testified that, in
the telephone conversation, Peyton said she hated him and would never speak to
him again, and that he told her she could come to work and did not have to speak
to him.57
Two weeks after the telephone conversation, on Friday, October 2, Peyton's
employment was ended. In those 2 weeks, as shown in the payroll figures above,
her hours were sharply cut to 16 and 171/4, from 4014 hours worked the previous
week. Her active espousal of the Union, including the wearing of the union but-
64 Especially where, as here, economic and business factors are involved, the showing of
union animus and a reduction in hours do not ipso facto establish a violation . Moreover,
at the hearing and in his brief , the General Counsel failed to offer specific theory and argu-
ment and did not discuss concrete evidence to prove clear disparate treatment.
ss She was ineligible to vote in the election on August 18.
61 The foregoing is undenied.
64 Peyton is credited. Her testimony is contradicted only, if at all , by Hastings' state-
ment that, "There was no mention of her job or anything in this [phone ] conversation."
FASHION FAIR, INC. 1457
ton on the job commencing in late August, and Respondent's knowledge thereof,58
are evident and found. No particular explanation is advanced by Respondents for
the marked curtailment in Peyton's hours. In all the circumstances, including Has-
tings' assurance that she would receive 40 hours' work, I find that, in the 2 weeks
prior to her termination, Respondents discriminatorily reduced Peyton's working
hours, in violation of Section 8(a)(3).
Peyton testified that, on Monday, September 28, she remarked to Ellen Stargell,
stock head in the shoe department,59 that if Hastings did not restore her 40 hours,
she "might" quit. Stargell testified that Peyton said if her hours were not raised,
that she would quit on Friday, and that she had two other jobs she could go to.
It was testified by Stargell and Hastings that, on Monday she related to him her
discussion with Peyton, as above indicated. He told her that there were no hours
available on the payroll budget, and that Peyton should come and tell him of her
intention to quit on Friday. Stargell relayed the message to Peyton, who said that
she would quit on Friday, and that she was not speaking with Hastings and did not
want to. Stargell so informed Hastings. On Thursday, Stargell told Hastings that
Friday would be Peyton's last day. Hastings said he would try to get someone to
replace Peyton. On Friday, October 2, Hastings told Stargell that he had a replace-
ment. Thereupon Stargell advised Peyton that Hastings had replaced her because
she had given Stargell notice that Friday would be her last day. Stargell later
admitted that she did not tell Peyton until Friday that she had informed Hastings
of Peyton's "notice" to quit.60
Peyton credibly testified that, on October 2, Stargell asked her if she was going
to quit that day, and she replied that she was not. A few minutes later, Hastings
came over and said, "What do you mean, Miss Peyton, you're not quitting?" Pey-
ton said, "Did I tell you I was quitting?" He then stated that she had told that to
Stargell, that as far as he was concerned she was "through," and that he had hired
someone in her place.61
Although Peyton is credited, it is not material whether, on September 28, she
told Stargell that she "might" or that she "would" quit if her hours were not
changed. Stargell was not a supervisor, nor in any case was she actually or appar-
ently utilized by Peyton as an agent or intermediary to give notice to Respond-
ents that she was quitting her job. Even on Stargell's testimony, at best Peyton
expressed an intention prospectively to quit on Friday, to which she was not bound.
Hastings had previously condoned and authorized Peyton's desire to continue her
employment without having to speak to him. I cannot and do not find that he
believed in good faith that Peyton had used Stargell as a conduit or agent in con-
veying to him a notice to quit.
Without attempting to verify in any way directly with Peyton, Hastings quickly
undertook to "replace" her. There is no contention or evidence that his action was
irrevocable in requiring Peyton's separation. Admittedly, on Friday, he learned
from Peyton that she had no intention of quitting. It is plain that she was actually
or in effect discharged.62
Here again, the explanation advanced by Respondents is unacceptable. Nor can
Hastings' reason for the discharge be attributed to personal pique with Peyton, a
position not argued by Respondents. However, it is reasonably to be inferred, and
I do, that the discharge was motivated, at least in substantial part, by Hastings'
reprisal attitude toward the Union and particular hostility toward Peyton for this
reason. Moreover, even assuming for argument's sake on Respondents' testimony
58 The record amply shows the concern of Hastings and Frederick in the wearing of
union buttons and in knowing which employees adhered to the Union
5D In the "first part of September," Stargell was assigned the stock head job previously
held by Mae Sergent In her prior job, she was eligible and had voted in the election.
Despite her testimony (refuted by Hastings) that she had full responsibility of the shoe
department and "supervised" the people, I find she had no supervisory authority. See
the 8(a) (1) discussion regarding Sergent, supra.
80 Stargell's testimony was changing and self-contradictory in material respects, other-
wise impressed me as unreliable, and is not credited where in conflict with Peyton's
a1 Stargell's version was that, on October 2, Peyton asked Hastings if she was fired ; he
said she was not fired but had given notice to Stargell she would quit that day; Peyton
said she would quit right now, and walked out. Hastings' testimony was similar.
63 After October 2, Von Bokern for the Union called Hastings to have Peyton taken back ;
Hastings refused and said he did not want to talk with Von Bokern any more
243-084-67-vol. 159-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Peyton did give notice of resignation, her departure in the circumstances would
constitute a constructive discharge. Hastings knew she needed 40 hours of work
and did give her such assurance. In the telephone conversation on September 18,
he threatened to reduce her hours and in other ways to discourage her from con-
tinued employment. By discriminatorily reducing her hours beginning the week
of September 21, it is well evident that Hastings' purpose was to cause Peyton to
quit. Accordingly, I find that her termination on October 2, on any version of the
testimony, was in violation of Section 8(a)(3), as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents here involved, set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and 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 Respondents engaged in certain unfair labor practices, I will
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. As I have found, Respondents
engaged in extensive violations, including serious acts of coercion, and the discrimi-
natory discharges of five employees. In my opinion, a cease-and-desist order in its
broad form is fully warranted.63
I will recommend that Respondents offer Betty Gutkase, Mae Sergent, Geraldine
Seewer, Rae Hogan, and Mary Peyton immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any loss of earnings suffered
by reason of the discrimination against them, by payment to them of a sum of
money equal to that which they would normally have earned, absent the discrimi-
nation, from the date of their discrimination to the date of the offer of reinstate-
ment, less net earnings during each period, with backpay computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB
289. In addition, it will be recommended that Respondents make whole Mary Pey-
ton for the discriminatory reduction in her hours for the 2-week period beginning
September 21, 1964, by payment to her of a sum of money constituting the dif-
ference between that which she was actually paid and that which she would have
been paid had she worked 40 hours each such week. The pay loss to each of the
above employees discriminated against shall be computed with interest at the rate
of 6 percent per annum, in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
I will also recommend that Mildred Curts and Betty Gutkase be restored to their
former positions, from which they were unlawfully transferred, or to positions
which are substantially equivalent. Further, I will recommend that Respondents pre-
serve and make available to the Board, upon request, all payroll records, social
security payment records, timecards, personnel records and reports, and all other
records necessary and useful to determine the amount of backpay due and the
rights of reinstatement under the terms of these recommendations.
Upon the foregoing findings of fact and upon the entire record in the cases, I
make the following:
CONCLUSIONS OF LAW
1. Respondents, singly and jointly, are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Clerks Union Local No. 445, chartered by Retail Clerks International
Association, AFL-CIO, is a labor organization within the meaning of the Act.
3. By discriminatorily discharging Betty Gutkase, Mae Sergent, Geraldine See-
wer, Rae Hogan, and Mary Peyton, and by discriminatorily reducing the hours of
the last-named employee, thereby discouraging membership in the above-named
labor organization, Respondents engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
63N.L.R.B. v. Empress Publishing Company, 312 U.S. 426 ; N.L.R B. v. Entwistle Mfg
Co., 120 F . 2d 532 (C A. 4).
MILS DRIVERS UNION, LOCAL NO. 753 1459
4. By the foregoing , and by other acts and conduct interfering with, restraining,
and coercing employees in the exercise of their rights guaranteed in Section 7 of
the Act, Respondents engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Milk Drivers Union, Local No. 753 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
and Associated Milk Dealers , Inc., and various of its member
dairies 1 and Korth Transportation , Charging Party and Pure
Milk Association , Party in Interest . Cases 13-CE-28 and 30..
June 27, 1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the
Respondent Employers and the Respondent Union had engaged in
certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter, the Respond-
ent Union filed exceptions to the Trial Examiner's Decision and a
supporting brief, the General Counsel and the Charging Party filed
cross-exceptions and briefs in reply to the Respondent Union's
exceptions, and the Respondent Union filed an answering brief.2
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 connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
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 herby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
[The Board adopted the Trial Examiner's Recommended Order.]
i The names of the Employer -Members of Associated Milk Dealers , Inc., herein referred
to as the Respondent Employers , are listed in Appendix A attached to the Trial Examiner's
Decision.
2 The Board hereby denies the Respondent Union's request for oral argument as the
record, exceptions , and briefs adequately present the issues and positions of the parties.
3In view of our affirmance of the Trial Examiner's findings herein , we deem it unneces-
sary to pass on certain alternative theories discussed by the Trial Examiner by way of
dicta. Cf . Milk Drivers ' Union, Local 753, IBTUWHA (Sidney Wanzer & Sons, Inc.), 141
NLRB 1237 , 1240-41.
159 NLRB No. 128.