Goldblatt Bros., Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1962

135 N.L.R.B. 153 (N.L.R.B. 1962)

GOLDBLATT BROS., INC. 153
Goldblatt . Bros., Inc. and, Retail .Clerks International Association,,
AFL=CIO. Case No. 13-CA-2613. January 10, 1962
DECISION AND ORDER
On January 5, 1959, the Board issued an Order in the above-entitled
proceeding, adopting the findings, conclusions, and recommendations
of the Trial Examiner as contained in his Intermediate Report dated
November 28, 1958. On February 9, 1959, Respondent filed a motion
to vacate said Order and on March 5, 1959, the Board issued an order
denying this motion. Thereafter on January 4,1961, the United States
Court of Appeals for the Seventh Circuit denied the Board's petition
for enforcement and remanded the case to the Board for the purpose
of reopening the proceeding to receive evidence which was not avail-,
able at the time of the hearing and specifically to show that the food
division of the store herein was completely discontinued after 30 years
and that the food divisions in all Respondent's stores were likewise dis-
continued. We were also directed to consider the exceptions which the
Respondent had filed to the Trial Examiner's Intermediate Report and
which the Board had declined to consider because belatedly filed.
Pursuant,to this remand, the Board, on August 7, 1961, ordered the
record reopened for further hearing for receiving evidence consistent
with the remand.
On October 25, 1961, Trial Examiner David London issued his
Supplemental Intermediate Report, which is attached hereto, finding
that the Respondent had engaged in certain unfair labor practices and
affirming the findings, conclusions, remedy, and recommendations as
set forth in his Intermediate Report. The Trial Examiner recom-
mended that Respondent cease and desist from said unfair labor prac-
tices and take certain affirmative action as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and Supplemental Intermediate Report
and a supporting brief.
the Board has reviewed the rulings made by the Trial Examiner
at the hearing and at the reopened hearing and finds that no pre-
judicial error was committed. The rulings are hereby affirmed. The
Board has considered the Intermediate Report, the Supplemental In-
termediate Report, the exceptions and the brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
The Trial Examiner, in both his Intermediate Report and Supple-
mental Intermediate Report, has made a thorough and painstaking
1 Respondent' s request for oral argument is denied since the record and Respondent's
exceptions and brief fully set forth its position
135 NLRB No. 9.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analysis of all the testimony and evidence adduced and we shall, for
that reason, repeat only so much as we find relevant to our decision
herein. Because we have been directed to consider the exceptions filed
to the Intermediate Report we shall consider them first.
The chief issue presented to us is whether Smith was terminated by
Respondent on April 18, 1957, and denied a tranfer to another posi-
tion because of her union activity or, as Respondent asserts, because,
her job was abolished as an economy measure and she refused to accept
a transfer to another position for personal reasons.
At the time of her discharge Smith had been employed by the Re-,
spondent in various capacities z for a period of almost 7 years.3 Re-
spondent conceded that she had been a good worker and that no fault
had been found with her performance in any of her jobs. Smith had,
also, for a period of several months prior to her discharge, been an
active participant in the Retail Clerks' organizational campaign,
among the sales employees at the store, distributing authorization
cards and seeking to recruit other employees. She had been elected,
committeewoman for the Retail Clerks. The Trial Examiner found,
and we agree, that this fact was known to at least one supervisor, Pearl
Orr, manager of the candy and cooking department. It is against this
background that her termination must be measured. ,
Respondent introduced a number of witnesses to testify to the Com-
pany's economic position over a period of years. We shall refer to only
that testimony which bears directly on the discharge of Smith. Allan
Marver, Respondent's director of operations, testified that a retrench-
ment policy was started in the spring of 1957. As a part of this pro-
gram Respondent reduced its staff of executive trainees and its staff of
heavy merchandise supervisors. It established a "common change
fund" at its cash registers to simplify accounting practices. Respond-
ent eliminated its staff of "reorder buyers" although some of these
were absorbed as buyers. Its maintenance costs were cut by reducing
its craft maintenance crews; windows were washed on a 3-month in-
stead of a 2-month basis; light bulbs were changed every 15 instead of
12 months; painting and other rehabilitation expenses were restricted.
Thus we have evidence which establishes that at or about the time
Smith was terminated a major economy program had been or was
about to be initiated throughout the Goldblatt chain.
Irving Freeman, manager of the 91st Street store, testified that he
first started reducing expenses at that store in January 1957, follow-
ing the Christmas sales period. His first step was to fire the manager
2 Smith was hired as a food checker and went to work in the grocery department She
worked in other departments as a checker when needed , took inventories , made price
changes , and assisted at bookwork in the office . She also at times operated a $1,000 bank,
a $50 bank, and a $5 bank. Prior to her discharge she had been engaged chiefly in price
changing and assisting in the office.
2 Smith left to have a baby in 1954 and returned as a part -time worker in February
1955, and was put on full time after a few months at her own request
GOLDBLATT BROS., INC. 155
in the millinery department and consolidate the department with coats
and dresses in March 1957. About the same time he laid off the night
crew (two men) which had been loading the shelves in the food divi-
sion and gave this work to the day crew." Sometime in April Free-
man noticed Dorothy Smith doing clerical work in Rosen's office and
wanted to know why she was needed for that work. (Rosen was
superviso"r of the food division at -91st Street.) Freeman, was not
satisfied with Rosen's explanation and about 10 days later Freeman
decided to abolish Smith's job. He testified that he called Malin,
personnel director, and arranged to have Smith sent down to him for
reassignment, a right to which she was entitled as a 5-year employee.
On April 18 Freeman directed Walters, operating superintendent at
91st Street, and Ruth Edwards, director of personnel, to abolish
Smith's job.
Edwards testified that when she received her orders from Freeman
she called Smith to her office and told Smith that her job as "checker
and steno" had been abolished. She also told Smith that she could
get Smith another job if she could work evenings and Saturdays and
was told by Smith that she could not work those hours. Edwards
further testified that she then told Smith that she might get a job at
another Goldblatt store and told her to report to Malin. Smith's
answer to this, according to Edwards, was that she could not work at
another store because of the travel involved. Smith was then termi-
nated without further conversation. Later that afternoon (the termi-
nation took place just before lunch), Smith returned, according to
Edwards, and was so belligerent toward Edwards that Edwards
marked her card for no rehiring.
We now turn to Smith's testimony. She stated that about 11:15
a.m. on April 18, Food Supervisor Rosen told her that Personnel
Director Edwards wanted to see her. Smith went to Edward's office
and was told by Edwards (no one else was present) that her job had
been abolished. Smith, according to her own testimony, then told
Edwards that Sachs (Rosen's predecessor as food supervisor) had
assured her that she could return to checking when there was no other
work for her to do .5 Smith asked for her checker job back and was
told by Edwards that the Company had a "full line of checkers."
(Some of the checkers at 91st Street were junior to Smith in employ-
ment service.) Edwards told her there was no other job with the
Company available and did not, according to Smith, tell her to report
to Malin. Edwards simply called the payroll department and told
them to compute her pay. When Smith asked Edwards if she was
not entitled to vacation pay Edwards agreed that she was. Edwards
4 The record indicates that this change did not take place until after the termination
of Smith, the implications in Freeman 's testimony to the contrary
6 Smith had left checking at Sachs' request
156 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
then instructed Smith to get her timecard and come back to the office.
Smith received pay for the past week, she was paid for the week she
was then working (which ended on Friday), and she received 2 weeks'
vacation pay. Before she left she saw Rosen who told her, in re-
sponse to her question, "Dorothy, that is one thing I can tell you.
I was satisfied with your work." (The conversation is admitted by
Rosen who testified Smith was in tears when she came to his office.) 8
Smith shortly collected her pay from Walters, who told her he had
only just heard of the abolition of her job, and she then left the build-
ing. Smith testified, in direct contradiction to Edwards, that she did
not return in the afternoon and did not have the second conversation
referred to by Edwards as the reason for disqualifying her for rehire.
From the foregoing it is apparent that credibility is a primal issue
in the case since, if Respondent's witnesses have been truthful, it
appears that Smith was discharged at the beginning of an economy
program affecting all areas of the Company when Freeman noticed
that her job did not appear to be a necessary one and ordered it
abolished. Credibility is, of course, not infrequently the pivotal issue
in proceedings under Section 8(a) (3) since it is an unusual case in
which the Board is confronted with either an admission or direct and
uncontradicted evidence of discrimination upon the part of the em-
ployer.7 Were the Board to confine itself to findings of violation in
such cases only, then Section 8 (a) (3) would become meaningless as an
expression of congressional policy. Inevitably when discrimination
has been alleged and lawful cause has been asserted as the grounds
for discharge, sharp conflicts in the testimony arise, as they have
here. Since neither the Board nor the courts have had the oppor-
tunity to observe the witnesses as they testify and since it is acknowl-
edged that demeanor on the stand and under oath is a factor in
evaluation for which a record provides inadequate substitution, we
have consistently accorded weight to a Trial Examiner's credibility
findings. As we have stated in Standard Dry TWVall Products, Inc.: 8
In all cases, save only where there are no exceptions to the Trial
Examiner's proposed report and recommended order, the Act
commits to the Board itself, not to the Board's Trial Examiners,
the power and responsibility of determining the facts, as re-
vealed by the preponderance of the evidence, Accordingly, in
all cases which come before us for decisioii we base our findings
as to the facts upon a de novo review of the entire record, and
6 Iona Callahan , at that time manager of the bakery department , testified that she was
present at the conversation between Rosen and Smith and that she followed Rosen from
his office and asked what was going on She stated Rosen told her, "There is more to
this than we know." Rosen denied discussing Smith with Callahan and denied making
the quoted remark to anyone Since this issue was not resolved by the Trial Examiner
we have not considered the alleged remark in reaching our conclusion
7 See F. W. Woolworth Company v. N.L.R B ., 121 F. 2d 658 , 660 (CA. 2).
8 91 VLRB 544 , enfd. 188 F. 2d 362 (C.A. 3).
GOLDBLATT BROS.,,INC. 157
do not deem ourselves bound by the Trial Examiner's findings.
Nevertheless, as the demeanor of the witnesses is a factor of con-
sequence in resolving issues of credibility, and as the Trial Ex-
aminer, but not the Board, has had the advantage of observing
the witnesses while they testified, it,is our policy to attach great
weight to a Trial Examiner's credibility findings insofar as they
are based on demeanor. Hence we do not overrule a Trial Ex-
aminer's resolutions as to credibility except where the clear pre-
ponderance of all the relevant evidence convinces us that the
Trial Examiner's resolution was incorrect. [Footnotes omitted.]
This, then, is the rule we have followed and from which we find no
reason to deviate here. Apart from demeanor, however, the Trial
Examiner has carefully documented the discrepancies, inconsistencies,
and contradictions between the testimony of Ruth Edwards and her
pretrial statement. We see no need to repeat his documentation
verbatim here. We, accordingly, credit the testimony of Smith and
discredit that of Edwards wherever the two are in conflict. We also
note the serious inconsistencies between the testimony of Freeman as
to the steps taken with respect to abolishing Smith's jobs and the
stated company policy with respect to such procedure. Like the Trial
Examiner we are at a loss to understand why Freeman, the manager
of the store, should have found it necessary to consult with Malin
and Melchior, executives of the chain, before abolishing the position
held by Smith. Also, like the Trial Examiner, we fail to understand
why Freeman should make an appointment for Malin to see Smith
before her job was abolished since company policy required such an
appointment as a routine procedure.
With the credibility issues resolved we thus have before us an in-
stance of a termination without prior notice or warning of an employee
protected by 5 years of seniority, experienced in all phases of Re-
spondent's food operations and concededly a good -worker. We have
her terminated not as part of a general reduction in force nor as part
of any plan to reduce employment costs by effecting successive ter-
minations. The scope of the Company's economy program at that
time as applied to the food division went no further than the abolition
of her particular job. Her precipitate termination was effected de-
spite the fact that four or five junior checkers were retained and de-
spite the fact that her prior supervisor, at whose request she had left
checking, had assured her that she could return to checking when
other work was not available. Granting that economy was served by
abolishing her job, no reason has been given why it was necessary to
effect the termination on the morning of a midweek workday. The
food division of the 91st Street store grossed in excess of $1,000,000
annually. The economic imperative which required such drastic and
immediate relief as the instant abolition of one job has not been made
158 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
manifest in the record. We agree that Respondent was obligated to
its stockholders to operate all of its divisions at all times with econ-
omy," if not frugality, but in terminating Smith without affording
her the opportunity to transfer to another job within either the store
or the chain,10 Respondent was acting in derogation of its own policy,
which was likewise based on economy and self-interest, of giving em-
ployees with 5 or more years' experience an opportunity for reassign-
ment by the central employment office before termination. Respond-
ent was a cost-conscious employer in a highly competitive field and
was aware, as it admitted, of the investment it had made in such em-
ployees and of their value to the Company. We realize that manage-
ment is not required to conform to its self-established policies in
employment practices nor to operate in accord with generally ac-
cepted standards as to seniority rights and privileges, reasonable
notice of termination, offer of other available employment, etc. But
when, as here, such policies and standards have been jettisoned with-
out apparent reason and the charge of unlawful discrimination has
been made, some explanation seems due. Here we find the explana-
tions which would make Respondent's action seem both reasonable
and plausible, in particular its assertion that Smith was offered but
refused to accept other employment for reasons of her own, come from
testimony either untruthful or inconsistent with other facts. When
an employer's action falls within the sanction of the law there is no
need for such testimony. In view of the extent of Smith' s union ac-
tivity as disclosed by the record, Respondent's admitted opposition
to the union organization of its sales force, and the knowledge of
such activity on the part of at least one food division supervisor, we
must find, as did the Trial Examiner, that Smith was terminated by
Respondent without offer of any other employment because of this
activity. The termination was, therefore, in violation of Section
8(a) (3) of the Act.
Like the Trial Examiner we find that the statement made by Pearl
Orr, manager of the candy and cookie department, to Smith that she
could report her for her union activities because she was carrying a
union leaflet was a threat of reprisal and in violation of Section
8(a) (1).
We now turn to the newly received evidence and the Supplemental
Intermediate Report. On the basis of this evidence we find that Re-
9 Respondent's witnesses testified that profit was not the only motive for operating the
food division . It was operated as a convenience to the customers and in the nature of a
"loss leader" attraction . In view of these features Respondent did not expect the food
division to maintain a profit-and-loss position comparable to other divisions.
1o In view of our adoption of the Trial Examiner ' s credibility findings we agree that
Edwards did not offer Smith another job in either the store or the chain Since Smith
had been working evenings and Saturdays until she was shifted to pricing , not at her own
request but at the request of her supervisor , it is unlikely she would have rejected any
offer on the grounds of hours she had been used to working . It is also unlikely that she
would have been in tears had she been offered other jobs and had refused them.
GOLDBLATT BROS .; INC. _ 159
spondent.'closed; down its •basic food departments in,all its stores on
January 31, 1959, and that the decision to close down these depart-
ments was made in October 1958. We must note, however,. that, con-
trary to the assertion' made by counsel for the Respondent, in his mo-
tion before us, all of the food departments at the 91st Street store were
not closed in January 1959. While the so-called basic food depart-
ments were closed, bakery, liquor, candy, cookies, restaurant, and deli-
catessen remained open 11
This is the evidence we were directed to receive and to relate to
Respondent's motive in terminating Smith in 1957. Since the decision
to close the basic food departments was made some 18 months after
her termination and the actual closing took place 21 months after the
termination, we fail to see its materiality to the question of the reason
for the termination. In his Intermediate Report the Trial Examiner
did not, as we read it, discount the economic problems Respondent was
having with its food. division at the time it terminated Smith. We
find that the Trial Examiner weighed all the evidence before conclud-
ing that the economic motive asserted for Smith's termination was pre-
textuous and that she was in fact terminated for her union activity, a
conclusion we have found supported by a preponderance of the credible
testimony. The newly received evidence does not persuade us to
change this conclusion. Granted that difficulties beset the food divi-
sion in the spring of 1957-and Respondent's own evidence establishes
that the difficulties then were not so severe as they were to become-the
question before us is still a narrow one. That question is whether the
termination was occasioned by economic problems and the need to
resolve them or to discourage union activity. The newly received evi-
dence indicates that the Respondent's difficulties in 1957 and its antici-
pation that they might continue were not imaginary. Since however,
those difficulties were considered by the Trial Examiner at that time
and since they have been viewed by us as real in our review of the
record, the exceptions, and the brief, we adhere to our conclusion.
Evidence of the discontinuance of so large a part of Respondent's
food division may nevertheless be relevant to Smith's right to rein-
statement and to the period ' during which she may be entitled to
backpay. For, in view of such evidence, it is possible she would in
the normal course of events and absent the discrimination have been
terminated, rather than retained 'or reassigned elsewhere, when the
basic food departments were closed in January 1959. As the record
herein is, however, insufficient to support a finding on this issue, we
shall leave its determination to the compliance stage of the proceeding.
If, in accord with the Respondent's normal nondiscriminatory prac-
tice, Smith would have been terminated in January 1959, we find that
11 The basic food departments had a gross volume of approximately $10,000,000, while
the departments which continued in operation grossed approximately $8,000,000.
160 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
she is not entitled to reinstatement, and is entitled, to backpay only
until she would thus have been terminated. If, in accord with such
practice, she would have been retained or reassigned elsewhere, we
find that she is entitled to reinstatement and backpay as recommended
'by the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Goldblatt Bros.,
Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership of any of its employees in Retail
Clerks International Association, AFL-CIO, or any other labor or-
ganization, by discharging or refusing to employ any employee, or
in any other manner discriminating against any employee in regard to
his hire, tenure, or any term or condition of employment, except as
authorized by Section 8 (a) (3) of the National Labor Relations Act.
(b) Threatening any of its employees with reprisals for bringing
union literature onto its premises and keeping the same on their
person.
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to join or assist Retail Clerks
International Association, AFL-CIO, to bargain collectively through
representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Dorothy Smith immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her
seniority and other rights and privileges, and make her whole in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy," as modified herein.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or appropriate to an analysis of the
amounts of backpay due and the rights of reemployment under the
terms of this Order.
GOLDBLATT BROS., INC. 161
(c) Post at its 91st and Commercial Street store, in the city of
Chicago, Illinois, copies of the notice attached hereto marked "Ap-
pendix."" Copies of said notice, to be furnished by the Regional Di-
rector for the Thirteenth Region, shall, after being signed by a duly
authorized representative of Respondent,be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that the said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegation of the complaint that
Supervisor Freeman interrogated an employee regarding membership
in, and activities in behalf of, the Union be, and it hereby is, dismissed.
12In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
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, we hereby notify our employees that :
WE WILL NOT discourage membership by any of our employees
in Retail Clerks International Association, AFL-CIO, or in any
other labor organization, by discharging or refusing to employ
any employee, or in any other manner discriminating against any
employee in regard to his hire, tenure of employment, or any other
term or condition of employment, except as authorized by Section
8 (a) (3) of the National Labor Relations Act.
WE WILL NOT threaten any of our employees with reprisals for
bringing union literature onto our premises and keeping the same
on their person.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
join or assist Retail Clerks International Association, AFL-CIO,
to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that such right may
634449-62-vol. 135-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement requiring membership in a labor
organization as a:condition of employment, as authorized in Sec-
tion 8(a) (3) of the National Labor Relations Act.
WE wILL offer to Dorothy Smith immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority and other rights and privileges, and
make her whole for any loss of pay she may suffered as -a result
of the discrimination against her.
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the National Labor Relations Act.
GOLDBLATT BROS., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed by Retail Clerks International Associa-
tion, AFL-CIO, hereafter called the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director for the Thirteenth Region, on May
28, 1958, issued a complaint against Goldblatt Bros., Inc., hereinafter called Re-
spondent, alleging that the latter had engaged in and was engaging in unfair labor
practices in violation of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that: (a).in about
February 1957, Supervisor Pearl On threatened an employee with loss of economic
benefits because of union activity; (b) in about December 1957, Supervisor Irving
Freeman interrogated an employee regarding membership and activities in behalf of
the Union; (c) on or about April 18, 1957, Respondent discriminatorily discharged
.or laid off Dorothy Smith for the reason that she had joined and assisted the Union
and has since then failed and refused to reinstate her to her former or substantially
equivalent position for the same reason. By its answer, Respondent denied the
,commission of any unfair labor practice.
Pursuant to notice, a hearing was held at Chicago, Illinois, between July 14 and
17, 1958, before David London, the duly designated Trial Examiner. All par-
-ties were represented at the hearing by counsel and were afforded full opportunity to
be heard , to examine and cross-examine witnesses , to introduce evidence pertinent
-to the issues, and to present oral argument at the close of the hearing.' On or about
October 1, 1958, briefs were received from the General Counsel and Respondent
and have been duly considered.
Upon the entire record in the case, and from my observation of the demeanor
.of the witnesses at the hearing, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation with central offices at Chicago, Illinois. At
all times material herein, it has been engaged in the operation of an integrated de-
'Pursuant to an order made during the course of the hearing, Respondent' s counsel
forwarded, on August 1, 1958, a stipulation, signed by all the parties hereto, pertaining
to certain economic data which was unavailable at the time of the hearing herein. The
stipulation Is hereby received and incorporated as part of the record herein.
GOLDBLATT BROS., INC. 163
partment store chain.including-approximately 19 retail stores' in the States of Illinois,
Indiana,.and Wisconsin. Respondent, in the, course and conduct of its business opera-
tions during the calendar year 1956, purchased for use and sale by its various stores
merchandise originating outside the State of Illinois valued in excess of $50,000,000.
During the same period, Respondent sold and shipped merchandise directly to cus-
tomers across State lines valued in excess of $1,500,000. The gross volume of busi-
ness done by the entire chain was more than $50,000,000 during the calendar year
1956. Respondent admits, and I find, that at all times material herein it has been
engaged in commerce and its operations affect and have affected commerce within
the meaning of Section 2(6) and (7) of the Act.
Ii. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , AFL-CIO, is, and at all times material
herein has been, a labor organization within the meaning of Section 2 (5) of the
Act.
M. THE UNFAIR LABOR PRACTICES
Respondent operates approximately 19 retail stores, most of them in the Chicago
metropolitan area. It has about 6,000 regular employees which number is increased
to 8,000 to 10,000 during its star sale in May and during the period from Thanks-
giving to Christmas. Of the 6,000 regular employees more than half are retail and
clerical employees who have no collective-bargaining representative. According to
the testimony of Louis G. Melchior, Respondent's vice president, it has been Re-
spondent's "policy, . and position, [since 1947] . that the Union, the Retail
Clerks Union, would not be of benefit" to these employees. During the Union's
campaign carried on in a number of its stores, including the one at 91st Street and
Commercial Avenue in the city of Chicago where all the incidents with which we are
concerned took place, it was Respondent's "preference" that its sales and clerical
employees refrain from designating the Union as their collective-bargaining repre-
sentative? Melchior further testified that in July 1956, during a campaign to or-
ganize Respondent's sales and clerical employees, the Union conducted "extensive
circularizing of all of the Chicago area stores. . . . The circulation was quite regu-
lar, . . . nearly every store was hit at least once every other week, sometimes every
store was hit during [every] week, . it was a pretty persistent campaign."
Dorothy Smith, the alleged discriminatee herein, was employed as a full-time
checker in the food division of the 91st Street store in 1951. As such, she was sta-
tioned with a cash register at a counter where she computed the total amount of, and
received payment for, the customer's purchase. On Mondays and Thursdays the
store was open from noon to 9 p.m., and Smith, together with the other food checkers
and sales personnel, complied with that work schedule. She continued in such -full-
time employment until July 31, 1954, when a break in service occurred due to her
pregnancy. She returned to the food division on February 8, 1955, as a part-time
checker because Mrs. Edwards, the personnel manager for the store, told her she
could not use her on a full-time basis. Smith continued as a part-time checker for
several months and then was returned to full-time work on which basis she was
continuously employed until her services were terminated on April 18, 1957. In
September 1956, Food Supervisor Sachs changed her working hours so that she
worked Monday and Thursday mornings and did not have to work during those
evenings . When requested to do so, however, Smith worked those evenings and
on Saturdays.
During her employment, Smith, when not busy at the checkout counter, was en-
gaged in marking food prices up or down as directed by Respondent's main office. As
other duties hereafter detailed were assigned to her, she spent less and less time at
the checkout counter with the result that at the time of her termination she "spent a
very small percentage of [her] time checking." She relieved in the liquor department
during lunch and coffee breaks, and when the liquor manager was on vacation she
spent the entire day in that department and had the responsibility of opening and
closing the department. She also relieved as a saleslady in the cookie department,
the bakery department, the delicatessen department, and "the butcher department."
During inventory periods she spent practically all of her time in that activity.
Respondent was within its legal rights in maintaining this policy and preference. It
has been noted only to show that Respondent preferred that its sales and clerical em-
ployees would not designate the Union as their collective-bargaining representative. Re-
spondent recognized and maintained collective-bargaining relationship with a number of
other unions representing between 15 and 20 percent of its 6,000 regular employees.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. In September 1956, when Sachs was -installed as manager of the food division,
he asked Smith if she would, be -willing; to learn his office. work so'that she could re-
lieve Dorothy Walski, his secretary, when the latter went on vacation or became ill.
She worked with Walski for a few days and, when Walski went to a hospital in the
latter part of October 1956, Smith did the office work for about 5 weeks. Since
sometime prior to 1954, she was entrusted with $1,000 in cash to be used for making
change for all cash registers in the basement store and on the main floor.
The Union began its organization campaign at the 91st Street store in the spring
of 1956 and, at least since September of that year, caused its campaign leaflets to be
distributed about once a week to the approximately 225 employees as they entered
that store. Smith joined the Union in October 1956. Several weeks later, a union
representative asked if she would like to work on a union committee and gave her
some applications for union membership. Thereafter, Smith discussed the Union
with other employees and, with them, decided to have a meeting at a nearby YMCA
on or about December 18. At the meeting, there was "a discussion of what the
Union could do, what benefits the employees could receive by having a union, and
a general discussion about union activities." At this meeting, Smith was elected as
"committee woman for the Union."
One of the persons Smith talked to -about the Union was Pearl Orr, then the
manager of Respondent's candy and cookie department. Orr asked Smith for a
couple of applications for union membership and told Smith she would give them to
the girls in her department. Another meeting of those interested in the Union was
held at the nearby Steelworkers' Hall on January 29, 1957, which a number of em-
ployees were invited to attend by Smith. A discussion similar to that engaged in
at the December 18 meeting took place. Smith distributed some of the applications
for union membership to approximately 30 to 40 employees, mostly in the basement
store where the food division was located, and at the lunch counter. She also talked
to employees about the Union at Respondent's lunch counter at coffee prior to
checking in for work, at coffee breaks, and at lunch.
One morning, several weeks after the January 29 meeting above described, Smith
received a union leaflet at the store entrance and carried it to the coffee counter where
Pearl Orr was seated. As Smith was about to put the leaflet in her purse, Orr told
her she could report her for that conduct. When Smith asked what it was that she
could be reported for, Orr answered that it was "for union activities." 3 No claim
being made that Smith's conduct was in violation of any rule imposed up Respond-
ent's employees, I conclude that by Orr's threat Respondent interfered with and
restrained its employees in the exercise of rights guaranteed by the Act and thereby
violated Section 8(a) (1) thereof.
About 11:15 a.m. on April 18, 1957, Rosen told Smith that Mrs. Edwards, per-
sonnel manager for the store, wanted to see her in the personnel office. Smith did
as directed and was informed by Edwards that her job as "checker & steno." was
being abolished. Smith remonstrated that she had been hired as a food checker, and
while she had been helping out in other jobs, Sachs had assured her that when the
other work was done she was to go back to checking. She specifically asked Edwards
to be returned to her job as full-time checker but was informed that Edwards had
a "full line of checkers" with whom she was satisfied. Smith then asked whether
there was not some other job available in the store and was told that there was not.
Edwards mentioned that Smith had not worked Saturdays and evenings and the latter
replied that she never asked not to work on Saturadys or evenings, and that she had
always worked when and where she was asked to work. Edwards called the payroll
department and gave instructions to pay Smith for the remainder of that week and
for 2 weeks' vacation. She then told Smith to get her timecard and that she would
sign it.
Smith returned to Rosen's office in the food division and told her friend, Iona
Callahan, manager of the bakery department, Dorothy Walski, and Rosen, that her
job had been abolished. Turning to Rosen, she asked whether he was satisfied with
her work and he assured her that he was. Rosen left the office immediately and
was followed by Callahan who asked him "what [was] going on?" Rosen answered:
"I don't know. There is more to it than we know."
Smith took her timecard to Edwards' office to be signed by 'her but found that
she had gone out for lunch. A secretary instructed her to take the card to Mr.
3 The findings pertaining to Orr's conduct are based on the credited testimony of Smith
Though Orr denied Smith' s version of the incident, her denials, though most vigorously
exclaimed. failed to impress me. The credibility resolution is based on my observation
of the demeanor of the witnesses involved as they gave their testimony. Smith impressed
me as being worthy of belief ; Orr did not.
GOLDBLATT BROS., INC. 165
Walters, the store's operating superintendent. Smith went to Walters'- office, asked
him to sign the card, and added that she "supposed" that he knew that her job had
been abolished. Appearing to be surprised, Walters told her he "just found out about
it." 4 Smith took the signed card to the payroll office and received the wages and
vacation pay due her. She returned to the basement, got her coat, and went to lunch
with Callahan and Walski.
The foregoing findings pertaining to the events of April 18, other than the con-
versation between Callahan and Rosen, are based on the credited testimony of Smith
and, in the material substance, are undenied. Respondent contends , however, that
more than what has just been found occurred on April 18, and that the further evi-
dence produced by it establishes "that Mrs. Smith left the Company [on April 181
after refusing to discuss another position with the Company' when her job at the
91st and Commercial store was abolished for economic reasons."
In partial support of that contention, Edwards testified that in her conference with
Smith during the morning of April 18, after telling her that her job was being abol-
ished, she told Smith that if she could work evenings and Saturdays, Edwards could
find another job for her; that Smith stated that Edwards knew that she did not work
evenings and Saturdays; that Smith then asked why the job was being abolished and
that Edwards informed her that Respondent did not "have a position like that in any
other store except State Street"; that when she suggested that perhaps she could
find Smith a position in another store the latter stated that because she lived nearby
she ought not be required to travel in order to work in another store; that Edwards
then asked her to report on the following day, Friday, at the central office of Re-
spondent on State Street for an interview with C. J. Malin, personnel manager for
all of Respondent's stores, and perhaps he could find her a job at State Street, but
that Smith replied that she was not interested in working at another store; and that
Edwards nevertheless told her that she was going to call Malin and make an appoint-
ment for Smith for the following Monday and that thereupon Smith left her office.
Edwards also testified that Smith came back to her office about 2 or 21/2 hours
after lunch and, though Smith had been "very nice" during the morning interview,
and on all other occasions, "her whole attitude was [now] changed"; she was now
,'very belligerent," and in a "very loud . rasping and sharp" voice, which "people
outside [the] office might have heard," demanded to know why she was being dis-
charged; that Edwards told her that she was not being discharged but that Respondent
was merely abolishing her job; and that when Smith stated that the reason she was
fired was because she belonged to a union , Edwards denied knowledge of that fact.
Edwards made a code notation on Smith's personnel record to indicate that her
job was eliminated on April 18, 1957. In response to a query noted on the record
as to whether or not Smith should be rehired, Edwards had written "no," followed by
a code designation of the reason for that refusal-because, "she was belligerent and
she was just mean about leaving." 5
Smith specifically denied that during the morning conference of April 18 she said
anything about refusing to travel to work, and denied that Edwards told her she
would arrange an appointment for her with Malin on the following day or that
Edwards had said anything about going to State Street. Indeed, Smith credibly
testified that it was not until after April 18 that she ever heard Malin' s name men-
tioned or knew who Malin was. With reference to Edwards' testimony concerning a
second conference allegedly held during the afternoon of April 18, Smith categori-
cally denied that any such conference took place.
On the entire record, and from my observation of the demeanor of the two wit-
nesses as they testified, I am convinced and find that only one conference was held
between Edwards and Smith on April 18, and that there was no afternoon conference
on that day as claimed by Edwards. I further find that Smith's testimony, hereto-
fore reported, pertaining to all that was said at the morning conference of that day
truly reflects the sum and substance of the only conversation between these two
women on that day and that she was not referred to the central office for placement
elsewhere. Smith's demeanor, and the manner in which she testified, impressed me
most favorably as being a witness worthy of belief. Her testimony was given in
forward and convincing manner, and without substantial inconsistency. Edwards, on
the other hand, appeared to be unusually eager to mold her testimony so as to be of
assistance to Respondent, and gave testimony in substantial and violent conflict
* Walters did not testify. However, Freeman, the store manager and Walters' superior
testified he talked with Walters about Smith's termination about 2 weeks prior to April 18
6 While Edwards testified that these notations were made about 5 days after Smith left,
it is undisputed that the events that prompted these entries allegedly occurred on April 18
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the sworn statement given by her to a Board agent 7 months earlier, and at
variance with the testimony of other witnesses called by Respondent.
Thus, when Edwards was first asked by Respondent 's counsel "what, if anything,
did [Smith ] say about union activities" at the alleged afternoon conference of April
18, Edwards testified she could not . "recall her mentioning anything about the
"Union ." But, when Respondent 's counsel by a leading question next asked her
whether Smith "didn 't say at that time that the reason she was fired was because
she belong to a Union ," Edwards testified that she thought that Smith made such a
statement. However , in a sworn statement given to a Board employee on December
11, 1957,-Edwards stated that "no mention of union affiliation or union activities was
made between Smith and myself at any time. The first knowledge I had of Smith's
union activities was-some weeks after her layoff when I saw her passing out union
leaflets at the door." [ Emphasis supplied.]
Another serious contradiction is found in Edwards' testimony pertaining to her
followup of the appointment she allegedly made for Smith for an interview with
Malin. With respect to that subject, her direct testimony when questioned by Re-
spondent's counsel was as follows: -
Q. Now, did you hear from Mr. Malin or anyone else after [Smith left the
office on April 18]?
A. No, I didn't.
Q. Pertaining to Dorothy Smith?
A. No, I didn't.
Q. Well, for the purpose of refreshing your recollection, do you recall
whether or not he called you as to why Mrs. Smith did not show up for the
meeting?
A. Well, he had her name on the calendar and she didn 't show up so he
wanted to know what happened to her.
Putting aside the inconsistence of this testimony as to whether or not she heard
from Malin at all, her last answer indicates that it is her contention that it was Malin
who initiated this conversation and made the call. Seven pages later in the transcript,
her testimony reads as follows: "I called Mr. Malin before I typed [the final entries
on Smith's personnel record] and asked if she had shown up, and he said she didn't."
Her sworn statement of 7 months earlier, however, reads as follows: "As to Smith,
I do not know if she reported to the State Street Store. I waited about a week before
removing Smith from.the payroll and I did so when at that time I did not hear from
the State Street Store."
The most serious inconsistency exists, however, with respect to Edwards' basic
testimony that a second conference with Smith was in fact held during the afternoon
of April 18, a fact categorically denied by Smith. It will be recalled that at the hear-
ing Edwards testified in detail as to what allegedly occurred at that afternoon meet-
ing. However, in her long six-page sworn statement of the previous December,
Edwards made no mention of an afternoon meeting on April 18. 'Indeed, in that
statement, following her narrative of what occurred at the morning meeting of that
day, she affirmatively swore: "This was the only conference I had with Smith regard-
ing her lay off." [Emphasis supplied.] The relevancy and effect to be given to
this inconsistency is intensified when it is considered in the light of Edwards' further
testimony that it was only because of Smith's alleged belligerency at the alleged after-
noon conference that she was prompted to enter a "do not rehire" on Smith's
personnel record.
Having found that there was no afternoon conference between Smith and Edwards
on April 18, I further find that the reason noted by Edwards on Smith's personnel
record for the determination not to rehire her is not the true reason for that decision
and that search must be made elsewhere to find out why Smith was not to be rehired.
In making that search, I have been duly mindful that the burden rests on the
General Counsel to establish by a preponderence of the evidence that Smith's termi-
nation and Respondent's announced intention not to rehire her were prompted by
her union activities . However, the mere fact that a false and nonexistent reason
was assigned for the determination not to rehire Smith is not without significance.
And, in weighing the effect to be given to the sham reason assigned for the determina-
tion not to rehire her, it must be remembered that Smith had been a faithful and
competent employee of Respondent for approximately 7 years, and had never been
criticized, for the performance of any of the many tasks to which she had been
assigned. During that period she had served not only as a checker, but also as a
saleslady in at least five departments of the food division which does an annual
business in excess of $1,250,000, and had been offered the position of manager of
one of those departments. Indeed, as Rosen stated in an affidavit given to a Board
GOLDBLATT BROS., INC. 167
agent before the complaint issued herein , "Smith could perform any job in the
grocery department."
Though Smith had more seniority than the four or five checkers retained on
April 18, the junior checkers were retained and Smith's services were terminated.
Indeed, on April 15, just 3 days before Smith was discharged , a checker vacancy
occurred in the grocery department and, though Freeman, manager of the entire
store , and Rosen , food supervisor, both testified that the question of terminating
Smith's services was under discussion and consideration between them for a, week
or ten days prior to April 18, Smith was not offered that vacancy. Instead, it was
filled on April 15 by the transfer of Viola Marsh, who, prior to that time, was
engaged in the store as a telephone operator. This, notwithstanding Edwards' sworn
statement that it was "company policy to offer an employee who was to be laid
off for lack of work another job in the same store."
Respondent steadfastly maintained that because of the heavy "investment" it
had in the training and experience of employees with service of 5 years or more,
it was Respondent's policy before discharging such employees to send them to the
central personnel office on State Street for assignment in other stores, and that in
fact 90 percent of the persons so referred were placed elsewhere by Respondent.
Smith, however, as has previously been found, was not so referred. Not only am I
unable to credit Edwards' testimony that she referred Smith to the central office for
employment elsewhere, but all the testimony of other witnesses for the Respondent
seeking to establish that an appointment with Malin had been made for that purpose
is equally unconvincing. In view of the unanimity expressed by all of Respondent's
management officials who testified on this subject that it was well-established com-
pany policy of long standing to refer all 5-year employees who were laid off to the
central office for assignment elsewhere, I find it difficult to understand why Freeman,
as he testified, should call Malin about a week or 10 days before April 18, before
the decision to abolish her job had been reached, and, insofar as the record discloses,
without inquiring of Edwards whether any other vacancy existed in the store, and
inform Malin that he "would like to have Mrs. Edwards send [Smith] down to [him]
for transfer to some other" store. In this connection it must be remembered that
Freeman was manager of a store doing an annual retail business of approximately
$7,000,000. Why Freeman should, at that time, show such an interest in performing
a task that Edwards, the personnel manager , considered to be her routine duty was
not explained. In any event, Malin testified that he could not remember ever hearing
of Smith prior to April 18, the day Edwards allegedly called him to make an appoint-
ment for Smith.
It was Respondent's position throughout the proceeding that Smith was not dis-
charged, but that her services were terminated at the 91st Street store because her
position was abolished. In support of that contention Freeman testified, as previ-
ously noted, that about a week or 10 days before April 18, he consulted "down-
town management ," with both Malin and Melchior, the latter being Respondent's
vice president, before the final decision was made to abolish Smith's job. In view
of Malin's further testimony that all store managers have "authority to eliminate a
job, . that they do not have to consult [the main office] when they eliminate a
position" such as Smith occupied, no explanation was offered why Freeman found
it necessary to consult persons so high in Respondent's oligarchy to eliminate a
position so routine as the one occupied by Smith.6
On the entire record, and from my observation of the demeanor of the witnesses,
I am convinced and find that Smith was discharged by Respondent on April 18
because of her union activities and that Respondent's defense that "Smith left the
Company after refusing to discuss another position with the Company when her job
at the 91st and Commercial Street store was abolished for economic reasons" was
not sustained by the evidence. Instead, I find that this defense was interposed as a
subterfuge to cover the true reasons for the discharge.
The record establishes clearly that top management officials were aware generally
of union organizational activities. The record also establishes amply that Respond-
ent had knowledge that Smith was an active protagonist for the Union In view of
the fact that Smith solicited union membership from 30 to 40 employees in the
basement store, and at Respondent's lunch counter, it seems reasonable to assume
that Respondent must have become aware of that activity by Smith. In any event,
it is undisputed that Orr, then the manager of one of the departments in the food
6It should be noted, however, that Respondent's testimony on this phase of this case
was also inconsistent Thus in addition to Malin's denial heretofore noted. Melchior
testified that the first he "knew of the Dorothy Smith incident was when [he] received
copies of the union leaflet attacking her discharge as unfair and discriminatory "
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
division , was expressly made aware of the active role played by Smith in advancing;
the Union 's campaign in the store . Not only had she received several applications
for union membership from.Smith , but, according to Orr's own testimony , she was
apprised by Smith of the latter 's attendance at the union meeting of December
1956. Orr testified that she had been invited by Smith to go to the "Y" for lunch
one afternoon together with George 'Sutich, the Union 's business agent , and referred
to by Orr as "the head union man."
I am aware , as Respondent emphasizes in its brief , that there is no direct evi-
dence to show that Freeman or other top management officials who may have
ordered or sanctioned Smith 's discharge had knowledge of her union activities.
But the absence of such direct evidence is not fatal to the ultimate conclusion I
have reached in light of what I consider strong circumstantial evidence to support
a reasonable inference that such management officials must have been aware of
Smith's active union activities . The principle that knowledge of union activities,
no less than discriminatory motive, may, and often of necessity must, be based
upon reasonable inference drawn from circumstantial evidence , is one firmly estab-
lished by judicial precedent. See, e.g., N.L.R.B. v. Link-Belt Company, 311 U.S.
584, 602; F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658 (C.A. 2). The
evidence , which incidentally is not all circumstantial , and which in my view is
sufficient in strength when cumulatively considered, to offset Freeman 's denial, and
to support a contrary inference , is as follows:
Orr's direct knowledge of Smith 's active role in the Union as heretofore detailed.
Orr's testimony in this respect , coupled with her avowed union animus, most forcibly
expressed both by word of mouth and by her demeanor on the witness stand, makes
it impossible for me to credit her testimony that she never told "any executive or
supervisor of the Company of Smith's activities in connection with the labor union."
Thus, in her conversation with Smith and Callahan following the union meeting,
when Callahan suggested that they would ultimately get her to join the Union,
Orr answered that it would only be over her "dead body." At a meeting of super-
visors at the 91st Street store addressed by Melchior after the filing of the Union's
petition for representation on August 2, 1957, Orr in an "explicit [and] definite"
manner volunteered "her opinion . that the Union would not be helpful to the
employees." Though Orr was within her rights in expressing her belief, it should
be noted that Melchior testified that "there was nothing [he] said to her to en-
courage that opinion ," but that she simply "was soured on the subject."
That Orr was particularly angered by Smith's union activity is demonstrated by
the threat she made to Smith that the latter could be reported for her union
activities . Her denial of that threat was no more convincing than her extreme
denial that she ever saw "a circular in Dorothy Smith's possession ." I so con-
clude in view of her further testimony that there was nothing "unusual about an
employee having a union circular in her possession in the Goldblatt store," that
everybody "who passed through the door [was] given a circular" and that she saw
"rank and file employees , like salesgirls , and stockboys and elevator operators read-
ing [and] handling them."
Turning now to the circumstances under which Smith was discharged on April 18,
the record discloses flagrant inconsistency in the testimony of practically every wit-
ness offered by Respondent as to how that discharge was brought about. In her
sworn statement of December 11, 1957, Edwards stated "it was part of [her] job
to compare the sheets of departments against the payroll and [she] therefore found
it necessary to dispense with one employee" and she elected to abolish Smith's job.
At the hearing, however, she testified that she did not "have the authority to decide
that a job should be abolished." She further swore in her affidavit that "the deci-
sion to let Smith go was reached in a conference between Clifford Walters and
myself." She made no suggestion in that affidavit that Rosen or Freeman played
any part in the decision to terminate Smith , other than that Rosen was instructed
to send Smith to her office. At the hearing, however, she testified that at an un-
disclosed time prior to the morning of April 18, Freeman had discussed the matter
of personal reduction with both Mr. Walters and herself , and that it was because of
Freeman's "order" on that morning that she asked Smith to come to the office for
the termination conference.
Freeman testified that he was engaged in discussion with Rosen for a week or
10 days concerning the abolition of Smith 's job and that the first time he talked to
Rosen about the matter was 2 weeks prior to April 18. Rosen , however, in his
affidavit given to a Board agent on December 3, 1957, categorically stated that he
"did not talk to Walters or Freeman about letting Smith go prior to her discharge."
Though , according to Rosen 's affidavit , the only person who played any part in the
decision to discharge Smith were he and Edwards , at the hearing he testified that
GOLDBLATT BROS., INC. 169
he never discussed "Dorothy Smith's employment . with Mrs. Edwards." And,
while Freeman testified that he talked to Walters 2 weeks prior to April 18 about
eliminating Smith's job, Smith's testimony stands uncontradicted that Walters told
her on April 18 that he "just found out about it," and that he appeared surprised at
the action taken.
When there is added to these inconsistencies the conflicting testimony of Edwards
heretofore detailed as to the alleged afternoon meeting with Smith on April 18,
the false reason assigned for the "do not rehire" policy adopted for Smith, and
Rosen's statement at the time of Smith's discharge that there was more to that
termination "than we know," an array of facts was presented which made it in-
cumbent on Respondent to establish a nondiscriminatory reason for Smith's discharge.
That defense was, as announced by its counsel during the course of the hearing,
that "Smith's job was abolished as part of an economy program which went into
effect in [the 91st Street] store, particularly in the food department, which was
carried out throughout the chain, which resulted in elimination not only of her job
but many other jobs, including the food supervisor of that store. . . . that, in
accordance with Company policy, arrangements were made to find some other posi-
tion for her in another store, inasmuch as there was nothing then in existence in
that store. That she was supposed to come down and see [Malin] for placement
in some other job, and she never showed up."
The latter part of that defense has already been discredited and rejected. Nor
am I convinced that Smith was discharged as part of the economy program re-
ferred to immediately above. Insofar as that program concerned itself with econo-
mies to be effected "throughout the chain," Allan Marver, director of operations
for all of Respondent's stores, testified that Respondent substantially reduced "a
heavy executive trainee staff, . . . and a heavy merchandise field supervisory staff,"
the positions of 18 "reorder buyers . . . were eliminated," the number of buyers
and merchandise men were reduced, a substantial number of "carpenters, elec-
tricians, painters, elevator men, repairmen" were eliminated, and the periods be-
tween which windows were washed and light bulbs changed was extended. Sig-
nificantly, however, there apparently was no reduction in sales personnel in any of
Respondent's stores, or in checkers at those stores where it continued to maintain
its food divisions, including the 91st Street store. Freeman, the manager of that
store, testified that up to the time of Smith's discharge, the only economies effected
were to eliminate the position of manager of the millinery department and con-
solidating it with the dress and coat department and the elimination of a night
crew of two engaged in replenishing the shelves with food supplies for sale on the
following day? No checkers, or sales positions which Smith was competent to
fill, and which she had filled, were eliminated dunng that period. And, though
the sales volume for the entire store showed a decrease for the period commencing
January 1, 1957, to the date of Smith's discharge over the corresponding period in
1956, the sales volume of the food division showed an appreciable increase.
In arriving at my ultimate conclusion that Respondent's conduct was discriminatory
and in violation of the Act, I find it unnecessary to determine whether, in fact,
her position as "checker & steno." was abolished as part of an economy drive
throughout Respondent 's entire organization to reduce operating costs.8 I have so
concluded because even if it be assumed that a reduction in force was necessary,
I find that the selection of Smith was discriminatorily motivated. Thus, though
Smith had greater seniority and experience, and everyone considered here a "good"
and faithful employee, none of the four or five checkers with less seniority were
laid off.9 Included in this latter group was Viola Marsh who, insofar as the record
discloses , had no experience as a checker and was later removed from that
position , but was nevertheless installed in a checker vacancy on April 15, while
Smith's termination was under consideration , and only 3 days before that termina-
7 Rosen, however, testified that at the time Smith was terminated, no one else "was
let out," and that the night crew mentioned by Freeman was not terminated until
approximately 2 weeks later
s Edwards admitted that she had so classified Smith's job on her records although she
had no authority to create such a classification which was nonexistent in the remainder
of Respondent's organization Job classifications were exclusively within the jurisdiction
of the State Street central office, and, according to the records of that office, Smith's job
was that of checker. The testimony is conclusive that during the entire period of Smith's
employment, including the last day she worked, she did some checking almost every day,
but did no stenographic work.
9 None of these checkers devoted all their time to checking. All of them also performed
some of the same clerical work performed by Smith.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion was made effective . And, when Smith specifically asked to be installed as a
full-time checker , Edwards merely replied that she was satisfied with the staff of
checkers she then had.
I do not credit Edwards ' testimony that in the morning interview on April 18
Smith indicated that she would not, or could not, work evenings or Saturdays,
the only reason ascribed by Edwards for not finding "another position in the store
for [her] . " In view of Edwards' inconsistent and false testimony as heretofore found,
I find it impossible to credit her version of that portion of the interview as opposed
to that given by Smith who testified , credibly, that she asked Edwards if she "couldn't
go back to food checking . . . full time ," and "if there was anything at all . .
another job in the store," and that she received a negative answer to both requests.
Those refusals foreshadowed the later entry on Smith 's personnel record that she
was not to be rehired in any capacity.
By reason of all the foregoing , I find that Respondent discharged Smith on April
18 because of her union activities and that by doing so it violated Section 8(a)(3)
and (1 ) of the Act.
There remains for consideration the allegation that Freeman interrogated Louise
Russell regarding her membership in the Union . After giving Russell 's testimony
the most favorable construction that can be placed thereon , I conclude that the
General Counsel has not established his allegation by a preponderance of the evidence
and shall, therefore , recommend that the same be dismissed.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Respondent's unfair labor practices strike at the heart of rights guaranteed em-
ployees by Section 7 of the Act.io The rights involved are closely related to others
guaranteed by Section 7. In view of the nature of the unfair labor practices found
above, there is reasonable ground to anticipate that Respondent will infringe upon
such other rights in the future unless appropriately restrained. Therefore, in order
to make effective the interdependent guarantees of Section 7, I shall recommend
an order below which will in effect require Respondent to refrain in the future from
abridging any of the rights guaranteed employees by said Section 7.11
Having found that Respondent discharged Dorothy Smith on April 18, 1957, in
violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent
offer her immediate and full reinstatement to her former or a substantially equiva-
lent position,12 without prejudice to her seniority and other rights and privileges,
and make her whole for any loss of pay she may have suffered by reason of the
discrimination against her, as found above, by payment to her of a sum of money
equal to the amount of wages she would have earned, but for the said discrimination,
between April 18, 1957, and the date of a proper offer of reinstatement to her as
aforesaid; and that the said loss of pay be computed in accordance with the formula
and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record
in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Goldblatt Bros., Inc , is, and has been at all times material to this proceeding,
an employer within the meaning of Section 2 (2) of the Act.
10 See N L R.B v. Entwistle Mfg. Co , 120 F. 2d 532 (C A 4).
U See May Department Stores d /h/a Famous -Barr Company v N.L R B., 326 U.S 376;
Bethlehem Steel Company v. N L.R B., 120 F 2d 641 (C A D C.)
' In accordance with the Board 's past Interpretation , the expression "former or a sub-
stantially equivalent position " is intended to mean "former position wherever possible,
but If such position is no longer in existence, then to a substantially equivalent position."
See The Chase National Bank of the City of New York , San Juan , Puerto Rico , Branch.
65 NLRB 827.
GOLDBLATT BROS., INC. 171
2. Retail Clerks International Association, AFL-CIO, is, and has been at all
times material to this proceeding, a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily discharging Dorothy Smith, as found above, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
SUPPLEMENTAL INTERMEDIATE REPORT
On November 28, 1958, I issued my Intermediate Report herein finding, inter alia,
that on April 18, 1957, Respondent discriminately discharged Dorothy Smith,
formerly employed in the food division of Respondent's 91st and Commercial Streets
store, in the city of Chicago, because of her union activities. Respondent having
failed to file exceptions to that report within the time fixed by law, the Board, on
January 5, 1959, refused to accept or consider said exceptions and, instead, adopted
the findings , conclusions , and recommendations contained in my Intermediate Report.
On February 9, 1959, Respondent filed a motion with the Board to vacate its
order of January 5, 1959, and "to permit Respondent to introduce evidence show-
ing the complete closing down of the food departments in Respondent's stores."
The accompanying unverified and unsupported statement accompanying that mo-
tion , signed only by its attorney, alleged that "as of January 31, 1959, the food divi-
sion, [in the 91st Street store], after having been operated for a period in excess
of 30 years, was completely discontinued because of the losses which resulted from
the operation" thereof. The statement further urged that the proffered evidence
would "conclusively establish the correctness of Respondent's contention that the
food division was in financial difficulty and establish an innocent and legal motive
for the termination of [Dorothy Smith] who was employed as an extra at the 91st
and Commercial Streets store." On March 5, 1959, the Board issued its order
denying the foregoing motion.'
Thereafter, on January 4, 1961, the United States Court of Appeals for the Sev-
enth Circuit denied the Board's petition for enforcement of the Board's Order adopt-
ing my Intermediate Report, and remanded the case to the Board with directions to
reopen the proceedings for the purpose of receiving "the testimony which was not
available at the time of the hearing . . . and to consider the exceptions which the
Respondent has tendered."
Pursuant to that remand by the court, the Board, on August 7, 1961, ordered the
record herein reopened and a further hearing be held before me "for the purpose of
receiving additional evidence consistent with the Court's remand," and that I 'pre-
pare a Supplemental Intermediate Report containing findings of fact upon the
evidence received pursuant to the provisions of that order, conclusions of law, and
recommendations.
The hearing upon that remand was held before me in Chicago, Illinois, on Sep-
tember 13, 1961. At that hearing, all parties were represented by counsel or other
representative and were afforded full opportunity to be heard and to introduce evi-
dence in accordance with the order of remand above described. Since the close of
that hearing, briefs have been received from the General Counsel and Respondent
and have been duly considered.
Upon the record made at the reopened hearing,2 I make the following:
ADDITIONAL FINDINGS OF FACT
As indicated above, Respondent represented to the Board, in its motion of Feb-
ruary 9, 1959, and apparently convinced the court of appeals, that it had evidence
i All emphasis found in quotations throughout this report has been supplied by me.
2 Respondent's written request of October 13, 1961, which I have treated as a motion, to
correct the following portions of the transcript of testimony is hereby granted: On page
591, line 20, change "$50,000" to $350,000," and on page 593, line 1, change "no func-
tions" to "new functions " I also grant the General Counsel's motion to correct page 582
of said transcript to show that exhibits 1M through 1P were received as General Counsel's
Exhibits Nos. 1M through 1P and not as Respondent's Exhibits Nos IM through 1P.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would show that on January 31, 1959, the food division of the store here
involved "was completely discontinued" because of the losses which resulted from
its operations, and that it also proposed to show "the complete closing down of the
food departments in [all of] Respondent's stores." However, Louis Melchior,
Respondent's vice president, the only witness who testified at the reopened hearing,
failed to substantiate either of Respondent's representations to the Board and the
court.
Melchior testified that the food division of the store in which Smith was employed,
as well as the food divisions in nine of Respondent 's other stores , had at least nine
"departments," viz, meat, produce, grocery, bakery, liquor, candy, cookies, res-
taurant, and delicatessen, the latter including the sale of prepared meats, butter,
eggs, and milk. On cross-examination, however, he testified that the only depart-
ments closed on January 31, 1959, at the 91st Street store were the first three desig-
nated in the above group, and that the remaining six departments were still being
operated at the time of the reopened hearing on September 13, 1961. He also ad-
mitted that in 9 or 10 stores operated by Respondent, including the 91st Street
store, food divisions were still being maintained , and that the "food operations, . . .
retained" have an annual volume of about $8,000,000.
In performance of the duty imposed on me by the order of remand, I find "that
on January 317 1959, the food division of the store here involved was [not] com-
pletely discontinued," and that there was no "complete closing down of the food
departments in Respondent's stores."
In arriving at my ultimate conclusion as to the effect to be given to Melchior 's testi-
mony at the reopened hearing, I have given consideration to his testimony at the
original hearing , and to what extent the testimony he gave on September 13, 1961,
was available to him and other officials of Respondent who testified, but apparently
not deemed worthy of mention when they appeared as witnesses at the original hearing
on July 16, 1958. Thus, though Melchior's earlier testimony covers 40 pages of
the transcript, there was not even a suggestion by him, or any other witness, that Re-
spondent then had under consideration the closing of any of the food divisions of any
of Respondent's stores. Melchior's testimony pertaining to Smith's discharge was
limited to one line of the transcript-the mere fact that her services had been ter-
minated-that he had been advised by the store manager that Smith's job "had
been abolished," and no more. Indeed, Respondent's sole defense at the original
hearing was that Smith "left the Company [on April 18, 1957] after refusing to
discuss another position with .the Company where her job at the 91st and Commercial
Streets store was abolished for economic reasons."
After carefully considering the entire record, I adhere to my original conclusion
that Smith's services with Respondent were terminated because of her union activities.
There never was any question in my mind that in the spring of 1957 Respondent was,
as I presume management is, and has been at all times , engaged in effecting economies
in its operations.3 It was for that reason that I made the alternative finding in my
Intermediate Report that even if it be assumed that Smith's job was abolished as part
of a chainwide economy program to reduce expenses, her discharge was discrimi-
nately motivated.
With all due respect to the observation of the court of appeals that I seem "to have
been under the impression that the food division [at the store in question] was
prospering," I respectfully disavow entertaining any such impression. ,Indeed, I was
not called upon by Respondent to consider whether the food division was prospering
or losing money. My only reference to anything bordering on that subject was my
finding based on Respondent's own testimony, its exhibit No. 4, which showed that
during 1957, the last year preceding Smith's discharge. the sales volume of the food
division showed an increase over 1956, and that the volume for the first five biweekly
periods in 1958 showed an increase of 6.3 percent over the corresponding periods in
1957, while the "Total Store" volume decreased 7.7 percent.
Assuming, as l always have, that Respondent was engaged in an economy program
to reduce its expenses , that does not explain why Smith was selected not only for
termination , but was also designated on Respondent's personnel records as a former
employee who was never to be rehired, contrary to Respondent's policy that 5-year
employees who are laid off for economic reasons are referred to Respondent's central
office for assignment elsewhere. Smith, however, was denied this established policy
s See my original findings pertaining to the testimony of Allen Marver, director of opera-
tions for all of the Respondent' s stores , and that of Irving Freeman. manager of the
nist Street store In addition to the testimony there alluded to, Marver testified that
there is "a continuing campaign in our Company to keep our expenses at a minimum and
we have to look at new areas for expense reduction "
WEISMAN NOVELTY COMPANY 173
privilege notwithstanding that there was not one shred of credible testimony that her
past performance was anything but highly satisfactory.
My ultimate conclusion is buttressed by Respondent's belated attempt to justify
its selection of Smith for termination on the alleged ground, first advanced in its un-
verified statement in support of the motion to vacate the Board's order of January 5,
1959, and later urged upon the court of appeals that Smith was an "extra." No evi-
dence to support such a contention was offered at either the original or reopened
hearing Indeed, Respondent 's own witness , Chester J. Malin, general personnel
manager for the entire chain, when questioned at the original heating as to how Smith
was classified on the books of the Company, testified not that she was an "extra," but
that she was classified as "checker and steno to the grocery manager."
Concerning her status , Malin testified that Smith came to work for Respondent in
April 1951 as a checker , took a leave of absence due to illness for a month or so in
January 1953, was "terminated because of pregnancy " in August 1954, and came back
in February 1955, and worked 20 weeks part time and full time thereafter, although
5 weeks in 1956 she worked [ an undisclosed number but] less than 40 hours a week;
during 1957, from January 1 until April 18, . . . she worked full time ." Based on
that 6-year record , as supplied by its own witness, and which testimony it chose not
to supplement at the reopened hearing though requesting an opportunity to do so, Re-
spondent was not justified in representing to the Board , and to the court, that Smith
was an "extra ," the implication clearly being that she was in that status when she was
selected for termination.4
If the order of remand herein for the purpose of taking the proffered testimony was
occasioned by the need to consider what effect that testimony might have on the
remedy of reinstatement with backpay which I originally recommended on Novem-
ber 28, 1958, I find nothing in Melchior 's testimony which causes me to change that
remedy. Thus, even if it be assumed , arguendo , That Respondent completely discon-
tinued the 91st Street food division on January 31, 1959 , thereby making it impossible
for Respondent to reinstate Smith to "her former position ," that contingency was
provided for by the remainder of my recommended remedy-that she be reinstated to
"a substantially equivalent position ." 5 In an organization of Respondent 's size, em-
ploying 'approximately 6,000 permanent employees , more than half of whom are en-
gaged in sales or clerical work, that task should not be impossible or difficult of
performance.
CONCLUSIONS AND RECOMMENDATIONS
I discern no reason to alter the findings, conclusions of law , remedy, and recom-
mendations contained in my Intermediate Report and hereby readopt the same. It
is further recommended that, unless on or before 20 days from receipt of this Supple-
mental Intermediate Report by Respondent , the said Respondent notify the Regional
Director of the Thirteenth Region that it will comply with the recommendations con-
tained in my Intermediate Report, the National Labor Relations Board issue -an order
requiring Respondent to take the action aforesaid.
4 In this connection , it should also be noted that Respondent 's own witnesses testified
that only 5-year employees who are laid off are referred to the central office for assign-
ment elsewhere , a referral which Edwards , the store's personnel manager, testified she
made with respect to Smith.
5 See footnote 12 in my Intermediate Report.
David Weisman t/a Weisman Novelty Company and United Re-
tail and Wholesale Employees Union Local 115, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Independent . Case No. 4-CA-2338. Janu-
ary 10, 1962
DECISION AND ORDER
On October 12, 1961, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was `gaging in certain unfair labor
135 NLRB No. 21.