H. L. Green Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1957

118 N.L.R.B. 1459 (N.L.R.B. 1957)

H. L. GREEN COMPANY, INCORPORATED 1459
upon what would happen if the Union were voted in, and if it suc-
ceeded in obtaining a union-security provision in its contract. We do
not believe this impaired the employees' freedom of choice in the
election, for it does not appear that the employees were promised
anything for voting for the Union, or threatened if they voted
against it.'
Accordingly we find that the Employer's exceptions lack merit;
and as the Employer has not otherwise excepted to the Regional Di-
rector's findings and conclusions, we agree with the Regional Director
and find that the Employer's objections do not raise substantial and
material issues with respect to the election. Accordingly, they are
hereby overruled. As the Petitioner received a majority of the valid
votes cast in the election, we shall certify it as the bargaining repre-
sentative of the employees in the appropriate unit.
[The Board certified Lumber and Sawmill Workers Union No. 2996,
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, as the designated collective-bargaining representative of the
employees in the unit found appropriate.]
6 Lobue Bros., 109 NLRB 1182, is distinguishable. In that case the employees were
offered membership free of initiation fees, effective after the election and contingent upon
certification of the Union.
H. L. Green Company, Incorporated (Store #15) and Retail,
Specialty and Variety Store Employees Union, Local 415,
Retail Clerks International Association AFL-CIO. Case No.
4-CA-1.137. September 30,1957
DECISION AND ORDER
On March 14, 1957, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed a
statement of exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Bean].
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 Inter-
mediate Report, the exceptions, and the entire: record in the case and
hereby adopts the findings, conclusions , and recommendations of the
Trial Examiner.
118 NLRB No. 200.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the 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, H. L. Green
Company, Incorporated (Store #15), Philadelphia, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Retail, Specialty and Variety
Store Employees Union, Local 415, Retail Clerks International Asso-
ciation, AFL-CIO, or any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or in any
manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
(b) Interrogating employees concerning their union activities, con-
cerning union meetings, and concerning the employees responsible for
the organizational activities among Respondent's employees, in a
manner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1) of the Act. -
(c) Creating or fostering the impression among its employees that
it will engage in surveillance of union meetings.
(d) Threatening to discharge employees responsible for union
organizational activities.
(e) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid labor organization, or any other labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any and 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Florence Wilson and Mary Muter 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 in the manner set forth in the section of the
Intermediate Report entitled "The Remedy" for any loss of earnings
each may have suffered by reason of the Respondent's discrimination
against her.
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security-payment records, timecards, personnel records and reports,
H. L. GREEN COMPANY, INCORPORATED 1461
and all other records necessary to analyze the amount of back pay
due and the rights of employment under the terms of this Order.
(c) Post at its Store #15 in Philadelphia, Pennsylvania, copies
of the notice attached hereto and marked "Appendix." 1 Copies of
such notice, to be furnished by the Regional Director for the Fourth
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, as to the steps the
Respondent has taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of Ap-
peals , 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 Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Retail, Specialty and
Variety Store Employees Union, Local 415, Retail Clerks Interna-
tional Association, AFL-CIO, or in any other labor organization
of our employees, by discharging or refusing to reinstate any of our
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 interrogate our employees concerning their union
activities, concerning union meetings, and concerning the em-
ployees responsible for the organizational activities among our
employees, in a manner constituting interference, restraint, or
coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT create or foster the impression among our em-
ployees that we will engage in surveillance of union meetings.
WE WILL NOT threaten to discharge employees responsible for
union organizational activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join the aforesaid labor or-
ganization, or any other labor organizations, to bargain collectively
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any and 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.
WE WILL offer to Florence Wilson and Marv Muter immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of pay suf-
fered as a result of the discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may
be affected by an agreement in conformity with Section 8 (a) (3) of
the Act.
H. L. GREEN COAIPANY, INCORPORATED (STORE #15),
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Retail, Specialty and Variety Store Employees Union,
Local 415, Retail Clerks International Association, AFL-CIO, herein called the
Union, the General Counsel of the National Labor Relations Board, herein called
the General Counsel and the Board, respectively, by the Regional Director for the
Fourth Region (Philadelphia, Pennsylvania), issued his complaint, dated November
26, 1956, against H. L. Green Company, Incorporated (Store #15), herein called
the Respondent. With respect to the unfair labor practices, the complaint alleges,
in substance, (1) that during the month of June 1956, Store Manager Jones ques-
tioned employees concerning their union membership and activities, threatened to
discharge employees responsible for organizational activity on behalf of the
Union, and advised employees that he intended to keep a meeting of the Union
under surveillance; (2) that on or about June 18, 1956, Respondent discharged
employees Florence Wilson and Mary Kuter because of their union and concerted
activities; and (3) that by the foregoing conduct, the Respondent engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
136, herein called the Act. In its duly filed answer, submitted in the form of a letter
signed by its president, the Respondent denied the unfair labor practice allegations
and affirmatively alleged that Florence Wilson and Mary Kuter were discharged
"for refusal to work full time plus other reasons involving their efficiency and ability."
Pursuant to due notice, a hearing was held on January 28, 1957, at Philadelphia,
Pennsylvania. All parties were represented at the hearing, and afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to present oral argument at the close of the hearing, and thereafter to file
briefs as well as proposed findings of fact and conclusions of law. Subsequent to
the hearing, the Respondent filed a brief, which I have fully considered.
H. L. GREEN COMPANY, INCORPORATED 1463
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Counsel for the Respondent and the General Counsel stipulated that (1) the
Respondent is a New York corporation with its principal place of business located
in New York City, New York ; ( 2) the Respondent operates a retail chain of variety
stores throughout 31 States, including an establishment designated as "Store #15"
located in Philadelphia , Pennsylvania ; and (3 ) during the year 1955 , the Respondent
had a gross volume of sales in excess of $10,000,000.
Upon the foregoing admitted facts, I find that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the undisputed evidence shows, and I find, that Retail,
Specialty and Variety Store Employees Union, Local 415, Retail Clerks International
Association, AFL-CIO, is a labor organization .within the meaning of Section 2 (5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination in hire and tenure of employment of Florence Wilson
and Mary Kuter 1
1. Their employment records
a. Florence Wilson
Mrs. Florence Wilson was employed as a salesgirl by Respondent continuously
from January 1950 until her discharge on June 18, 1956. When first employed she
worked from 9:30 a. m. to 2 p. m., 5 days a week, excluding Saturday . During the
last 4 years , she worked the same 5 days from 9:30 a. m. to 4 p. m. She had asked
Store Manager Jones for these hours because she had 2 children of school age and
a home to take care of and would not have accepted full-time work until 5:30 p. m.
and on Saturday . Manager Jones agreed to have her work those hours on a 5-day-
week basis , excluding Saturday . However, on occasions when Manager Jones asked
her to help him out by working Saturday because of the absence of part-time girls
or because of a holiday rush, she accommodated him in that respect . She worked
primarily at the candy counter and also on the art goods counter, which was next
to the candy counter.
Respondent employs the Wilmark service to make periodic spot checks of the
sales practices of its employees. Manager Jones testified that the "Wilmark report
is a sort of efficiency check," and that it measures such things as how you make a
sale, how you make change , and cleanliness . Although only spot checks are made
throughout the area, the candy counter is generally checked . The Wilmark reports
on employees , checked in this manner , are sent directly to the Respondent's main
office in New York City . The Respondent rewards a salesgirl with a $5 or $10
bonus -check for scoring at least 98 percent on these reports . During the course of
her employment , Mrs. Wilson -received numerous bonus checks for having received
a 100 percent Wilmark report . On occasion she also received an additional $25
reward for having received 3 good reports during a 6 -month period. These checks
were sent to her from the New York office together with a memorandum , signed
by Personnel Director Stone, congratulating her "on the 100% S. Q. B. report which
is an indication to us that you are interested in your work and making a sincere
effort to do a good job." The memorandum closed with the admonition to "keep
up the good work." The last bonus check which she received was enclosed in a
memorandum dated February 24, 1956. After congratulating her on her 100 per-
cent report , the memorandum stated that "We are enclosing 2 checks as a special
prize for you, in return for the good will which you are establishing for your
organization , your Company as a whole and yourself in particular . Keep up the
good work ." The memorandum also stated in a footnote that "according to my
records this is the 2nd and 3rd good report you have received since the beginning
of the sixth month period which started 1 /1/56." The last few times that Mrs.
Wilson received one of these recommendatory memorandums from Personnel Director
Stone, Manager Jones told the other salesgirls that Mrs. Wilson was always getting
' Unless otherwise indicated, the factual findings in this section are based on evidence
and testimony which is either admitted, undenied , or mutually consistent.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these good reports but the other salesgirls were not getting them , and urged them
to improve their work.
At the time of her discharge on June 18, 1956, Mrs. Wilson was the second
oldest salesgirl in point of seniority at Respondent 's Store #15 and one of the few
girls entrusted with a key to the change drawer and the responsibility for making
change for other salesgirls in the absence of the floor girl. Manager Jones had
never criticized her work, nor accused her of tardiness , inefficiency, or dishonesty.
The final check which she received at the time of her discharge contained a raise
of 5 cents an hour. Although this increase was effective as of Friday , June 15,
Manager Jones had on his own initiative recommended that the main office in New
York City approve this raise "a couple of weeks or so" before that time .2
b. Mary Kuter
Mrs. Mary Kuter was employed by Manager Jones as a salesgirl on the lingerie
counter and worked continuously from March 1956 until her discharge on Monday,
June 18, 1956 . Mrs. Kuter testified that she was employed by Manager Jones to
work from 9:30 a. m. to 5:30 p. m., 5 days a week , excluding Saturday , but that
she occasionally worked on Saturday when requested by Mr. Jones to help out
during holiday or rush periods . She further testified that she would not have accepted
employment on a 6-day-week basis and specifically asked Mr. Jones for a 5-day
workweek, excluding Saturday, because she had children and because her husband's
business required him to be out of the city so that he was home only on weekends.
She admitted that she may have worked a few Saturdays during the first month of
her employment in order to help Mr. Jones out , if that was near a holiday period;
that during the course of her employment she worked about five Saturdays; and
that she had no firm recollection of the specific Saturdays.
Manager Jones testified that he hired Mrs. Kuter as a full-time employee from
9:30 a. m. to 5:30 p. m., 6 days a week , and denied that she said anything to him
at the time of her employment about being unwilling to work on Saturday. He
further testified that she worked on Saturday during the first month of her employ-
ment. Payroll records, introduced by Respondent , for a 5-week period from the
week ending March 22 through the week ending April 19, show that Mrs. Kuter
worked on 4 Saturdays as follows: March 17, 24, 31, and April 14 . However, I
take official notice of the fact that March 17 was St. Patrick's Day, and that March
24 and 31 preceded Palm Sunday and Easter Sunday, respectively . Consequently,
these records , far from impeaching Mrs. Kuter 's credibility , tend to verify her testi-
mony that she may have worked a few Saturdays during the first month of her
employment to help Mr. Jones out , if that was near a holiday period.
Mrs. Kuter testified in a detailed , convincing , and sincere manner. The fact
that her husband could be home only on weekends renders plausibility to her version.
The record shows that other salesgirls who requested a 5-day workweek , excluding
Saturday , because of their family situation at home, were employed by Manager
Jones on that basis.3 On the other hand, Jones did not impress me as a credible
witness by his demeanor on the stand . He testified in a manner which leads me to
conclude that he was refraining from disclosing any facts which might be regarded
as unfavorable to the Respondent . Under all the circumstances , I credit Mrs. Kuter
and find that she was employed by Manager Jones on a 5-day-week basis, excluding
Saturday.
While in the Respondent 's employ, Mrs. Kuter received an offer to work for F. W.
Woolworth at an increase in pay and told the salesgirl at the next counter about it.
Shortly thereafter , Manager Jones came to her and asked , "What do I hear about
you leaving us?" Mrs. Kuter informed him about Woolworth 's offer at a higher
wage and stated that she had decided not to leave because Mr. Jones gave her a
job when she needed it . At the conclusion of the conversation , Mr. Jones stated
that he had put her in for a raise. Like Mrs. Wilson , Mrs. Kuter received a 5-cent-
an-hour increase with her final pay at the time of her discharge on June 18, 1956.
2 Respondent 's payroll is made up on Thursday and the employees are paid on Friday.
As the raise was not reflected in the paycheck which Mrs . Wilson received on Friday,
June 15, it is clear that it did not become effective until that date. However , all the rec-
ommendations for increases must be processed through the main office in New York City
and approved by Personnel Director Stone . Manager Jones admitted that "it generally
takes a couple of weeks or so" for the-New York office to process a recommendation for
a wage increase and that this increase was approved before the week in which Mrs. Wilson
was discharged.
8 For example , Mrs. Wilson and Mrs. Penderghest , who was still employed on that basis
at the time of the hearing in this proceeding.
H. L. GREEN COMPANY, INCORPORATED 1465
Personnel Director Stone testified that "raises are granted , presumably, after a six-
month period, as a basic after a manager has had an opportunity to discuss the girl's
progress with the Company, and when, and if, he decides that she merits an increase."
Mrs. Kuter had been employed less than 3 months when Manager Jones recom-
mended her for a raise to the home office in New York City.
2. Their union interest and activities; Manager Jones' opposition
The Union's initial organizational efforts began in June or July 1955, when David
Neifeld, president and business agent of the Union, distributed leaflets to the em-
ployees in front of the Respondent's store. Mrs. Wilson's response to this leaflet
distribution was to write a letter in July to the Union's national office in Washing-
ton, D. C., seeking more information about the Union because, as she testified, "I
was interested." This letter was referred to Neifeld who subsequently got in touch
with Mrs. Wilson and explained to her the benefits and advantages of the Union.
However, Mrs. Wilson did not take a real active part in assisting Mr. Neifeld to
organize Respondent's employees until about the middle of May 1956, although
she had spoken to Mr. Neifeld several times in the meantime. Thereafter, Mrs.
Wilson became Neifeld's main contact with the employees in the store. There were
about 20 employees in the store, exclusive of schoolgirls who worked Friday and
Saturday evenings. She spoke to the salesgirls about the Union during the lunch
hour and in the morning before commencing work, passed out union authorization
cards which she had received from Neifeld, and solicited employees' signatures to
the cards. Mrs. Wilson engaged in the foregoing activities on the store premises.
Mrs. Mary Kuter was one of the employees to whom she talked about the benefits
of the Union and whose signature she succeeded in obtaining to a union authoriza-
tion card. Mrs. Kuter credibly testified that she told Mrs. Wilson she was willing
to sign a card because "I didn't get the raise I was promised." Mrs. Wilson turned
over to Mr. Neifeld her own card, which she had signed on May 18, and the other
union authorization cards to which she had obtained employee signatures on that
day, including Mary Kuter's, and on succeeding days. Any messages, which Neifeld
had, were relayed to the store employees through Mrs. Wilson, and she in turn told
Neifeld about her conversations with the employees about joining the Union.
Neifeld had scheduled a union meeting for Respondent's employees to be held
at the close of work on Monday, June 4, at a YWCA, located a few streets from
the Respondent's store. Neifeld told Mrs. Wilson about the scheduled meeting and
she, in turn, informed the store employees before June 4 because she was to take her
vacation leave that week. Mrs. Kuter was planning to go to the meeting with other
employees in a group. On June 4, while Mrs. Kuter was relieving the salesgirl at
the adjoining counter for lunch, Manager Jones approached and asked her, "What
do I hear about this Union meeting?" Mrs. Kuter at first tried to avoid an answer
and merely smiled and said, "It is not going to rain out today." However, Mr.
Jones persisted and again stated, "I asked you a question. What do I hear about this
Union meeting?" Mrs. Kuter innocently asked, "What Union meeting?" Jones
then stated that Mrs. Wilson "was responsible for signing up the Union," and asked
Mrs. Kuter if she had "signed up for the Union." Mrs. Kuter replied, "Yes, I did,
Mr. Jones, because I believe in the Union. Promises, promises, promises." Jones
then stated that he was going "to follow the bunch of you," and walked away to
talk to employees at other counters. Mrs. Kuter then walked over to Shirly, the
salesgirl at the adjoining counter who was present during Mrs. Kuter's conversation
with Jones. Shirly at first expressed the view that she "was going to go, anyhow."
But Mrs. Kuter reminded Shirly that she was about to get married, that if she lost
her job, "it was going to be pretty hard," and that "it looks like he is threatening
all of them" because Mr. Jones was going to different counters. Mrs. Kuter con-
cluded that "We better not. We better sit tight." At the close of work, Mrs. Kuter
and Shirly took the same bus home.
Mrs. Wilson, whose vacation leave began that day, was the only one who showed
up for the union meeting. She testified, without objection, that she called the
girls and asked why they did not come to the meeting, and that they said Mr. Jones
had threatened to follow them.
The next morning Manager Jones went over to Mrs. Kuter's counter and smilingly
asked, "How did the meeting go last night?" Mrs. Kuter told him that he knew
"about the meeting."
On Monday, June 11,4 Mrs. Wilson returned to work from her vacation leave.
Shortly after the store opened that morning, Manager Jones came to her counter and
4 The reference to July 11 on page 45 of the typewritten record is an obvious typo-
graphical error. The record is hereby corrected in this respect to read June 11.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated, "What's this I hear about the Union?" Mrs. Wilson asked, "What Union?"
Jones said, "I hear you are the starter of it." Mrs. Wilson replied, "Well, if I was, I
wouldn't be going against you. I would be going against the company for higher
pay." Jones angrily retorted, "No, you are against me . if I find out who is
the cause of this, I am going to fire them." Jones' parting admonition to Mrs. Wilson
was that she should "remember no girl is indispensable." Although Mrs. Wilson's
prior relations with Mr. Jones had been very friendly, Jones did not speak to her the
rest of the week, which was regarded as a very unusual situation.
During the period between June 4 and 18, when Mrs. Wilson and Mrs. Kuter were
discharged, Manager Jones attempted to ascertain whether Mrs. Wilson was re-
sponsible for the organizational activities among Respondent's employees and spoke
to Mrs. Kuter a few times about it. He wanted to know "who was at the head of the
Union, who started it." When Mrs. Kuter said that she did not know, Jones remarked
that Mrs. Wilson "handed cards out." Mrs. Kuter admitted "That's right." Jones
then asked if Mrs. Kuter had signed a card. Mrs. Kuter admitted that she had signed
and added "I believe in the Union."
The above findings are based on the credible testimony of Mrs. Wilson and Mrs.
Kuter. Manager Jones generally denied talking to Mrs. Kuter and Mrs. Wilson about
the Union or their union membership, or that he ever threatened to discharge anyone
for joining the Union, or that he ever spoke to any of the employees about a union
meeting in June. As previously found, I do not regard Jones as a credible witness.
On the other hand, as previously indicated, Mrs. Wilson and Mrs. Kuter impressed
me with their sincerity, candor, and forthrightness. They both testified with the
detailed specificity which usually does not accompany a fabrication, and their
demeanor on the stand further reflected their trustworthiness. Under all the cir-
cumstances, I do not credit Jones' denials, credit the testimony of Mrs. Wilson 5 and
Mrs. Kuter, and find that, in substance, Jones made the statements and acted in the
manner attributed to him.
3. Their discharge on June 18, 1956
a. Florence Wilson
As Mrs. Wilson was getting ready to go home at 4 p. m. on Friday, June
15, Mr. Jones spoke to her in the back of the store. In an angry manner, Jones
stated, "Listen Mrs. Wilson from now on. . You will have to work 6 days a
week until 5:30, full time, or else." Mrs. Wilson replied, "You know I can't do
it." Jones told her that she would have to come in the next day, Saturday, "or else."
Mrs. Wilson did not come to work the next day because, as she testified, she had not
been hired to work on Saturdays and had specifically told Mr. Jones that she could
not work on Saturday and he understood that she was not in a position to work on
Saturday.
Mrs. Wilson went to work as usual on Monday, June 18. When she was ready
to go home at 4 p. m. Jones met her in the back of the store and stated, "I told you
you would have to come in Saturday and work full time, 6 days a week or you would
be fired, so here is your pay." Jones pulled out her final paycheck from his pocket
and handed it to Mrs. Wilson. As previously found, this final check reflected a 5-
cent-an-hour increase which Jones had recommended several weeks earlier.
Jones testified that when Mrs. Wilson had previously stated that she could not work
full time, he had her final check made up during Monday, June 18, but that he did
not decide to discharge her until she again indicated at the close of work that day,
in response to his question, that she could not work Saturday and full time.
b. Mary Kuter
On Friday, June 15, Mr. Jones told Mrs. Kuter that she would "have to work 6 days
a week, or else." Mrs. Kuter stated, "You know, Mr. Jones, I can't do that . . . but
I will tell you what I will do, Mr. Jones. . For the next few weeks, I am unable
to work [Saturdays], but in the next few weeks, then my husband will be coming back
and I will be able to help you out 6 days a week. But you got to give me a few weeks.
5 Contrary to Respondent 's contention , an examination of the record before the referees
of the State Unemployment Compensation Board of Review discloses no significant dis-
crepancies in any material respect in Mrs. Wilson's testimony which would impeach her
credibility as a witness.
H. L. GREEN COMPANY, INCORPORATED 1467
It will be about 3 weeks. " Jones replied , "All right, Mrs. Kuter . Come in Monday
and we will discuss it." 6
Mrs. Kuter did not work on Saturday but returned to work the following Monday,
June 18, as was her usual custom. At the close of work that day, Mr . Jones called
her over and stated, "This is it, Mrs. Kuter. Here is your pay." As previously found,
her final pay reflected a 5-cent -an-hour increase , which Jones had recommended sev-
eral weeks earlier.
Jones testified that he did not discharge Mrs. Kuter when he spoke to her in the pre-
ceding week , because he wanted to give her an opportunity to think it over, and
that when she again indicated on Monday , June 18, that she could not work Satur-
days , he decided to discharge her.
4. Respondent's defenses and concluding findings
a. Florence Wilson
"Shrinkage" is a term used by Respondent to indicate loss of merchandise due to
pilferage, spoilage, inexperience of the salesgirl in weighing merchandise, poor mer-
chandising on the part of the store manager, or poor housekeeping on the part of the
salesgirl.? Respondent's fiscal year ends in January, at which time inventory is taken
at Respondent's store and the shrinkage figures for the preceding year become avail-
able. Manager Jones testified that the shrinkage figures for the counters serviced
by Mrs. Wilson for the years 1955 and 1954 were excessive and above the average
of that for the entire store and that for all stores in Respondent's chain; that pressure
was put on him by the New York office to reduce this excessive shrinkage; that after
January 1956, when he became aware of the shrinkage figures for the preceding year,
he spoke to Mrs. Wilson several times about the excessive shrinkage on her counters;
that it was necessary to have full-time coverage on the candy counter in order to re-
duce shrinkage; and that it was for that reason that he asked Mrs. Wilson to work full
time, 6 days a week, and discharged her on June 18, 1956, when she refused to work
full time. Manager Jones of course had a legitimate right to request Mrs. Wilson to
work full time and to discharge her, upon her refusal, if in fact he were truly moti-
vated by the above-asserted business considerations. The General Counsel contends,
as the complaint alleges, that Jones' conduct in this respect was discriminatorily moti-
vated and hence violative of the Act. Manager Jones' true motivating cause in
requesting Mrs. Wilson to work full time and in discharging her upon her refusal is
thus in issue.
As previously found, Mrs. Wilson had a very good employment record during her
employment period of over 5 years. She had received numerous bonus checks for
having scored 100 percent on the Wilmark reports, which Manager Jones admitted
was "a sort of efficiency check." Jones cited her conduct in this respect as a com-
mendable example for other salesgirls to follow. Although the Wilmark report
did not cover the factor of shrinkage, it did measure, among other things, the cleanli-
ness and good housekeeping of the salesgirl. Mrs. Wilson was an experienced and
efficient salesgirl. Despite this record, Jones attempted to raise a doubt as to her
efficiency at the hearing in this proceeding. However, before the' union meeting of
June 4, Jones, on his own initiative, recommended her for a 5-cent-an-hour increase.
At the hearing, Jones attempted to explain this increase on the ground that it was
intended as an incentive for her to do a better job and so that she would be interested
in her work. Yet, the records show that her work had never been criticized and
her honesty and interest never questioned. Moreover, Personnel Director Stone
stated in his memorandums, accompanying the bonus checks, that her 100 percent
Wilmark reports were an indication "that you are interested in your work and making
a sincere effort to do a good job," and urged her to "keep up the good work."
Although Manager Jones finally admitted, as the Respondent concedes in its brief,
that Mrs. Wilson was discharged solely for her failure to work full time when re-
quested, Respondent's answer to the complaint, signed by its president, alleges that
'Jones did not deny having had the above conversation with Mrs. Kuter. He testified
that he did not recall whether he talked to Mrs. Kuter on Friday, June 15, or whether he
told her to come in Monday and they would discuss it. He further testified that he did
tell her that week that he wanted her to work Saturdays and that she indicated
that she would not. I credit Mrs. Kuter's version of her conversations with Jones on
Friday, June 15, as set forth in the text.
7 This finding is based on the testimony of Manager Jones and Personnel Director Stone.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was discharged "for refusal to work full time plus other reasons involving [her]
efficiency and ability ," reasons not supported by the record.
Manager Jones was aware of the shrinkage figures when the last inventory was
taken at the end of January 1956 . Yet, he waited until June 15 before requesting
Mrs. Wilson to work full time, without at any time having given her a reason for
such a request .8 Jones had no new figures on the shrinkage situation since the last
inventory at the end of January 1956. For all he knew, the situation may have
greatly improved by June. What then was the intervening event which precipitated
his request on June 15 and caused him to discharge an experienced employee, who
was the second oldest salesgirl in point of seniority , at a time when there admittedly
was such a great shortage of help that the Respondent used "pretty much" any girl
who "can stand up"?
The record shows that about the middle of May 1956, Mrs. Wilson became the
chief protagonist of the Union 's efforts to organize Respondent 's employees. She
actively solicited employees' signatures to union authorization cards and was Business
Agent Neifeld 's chief contact with the employees . Her activities were conducted
on the store premises . Before taking her vacation leave, she informed the employees
of the scheduled union meeting for June 4 . Manager Jones became aware of this
meeting, questioned Mrs. Kuter about it, sought to ascertain whether Mrs. Wilson
was responsible for the Union 's organizational efforts among the store employees,
and threatened to follow the employees to the union meeting. When Mrs. Wilson
returned from her vacation leave on June 11 , Jones angrily accused her of being
the "starter" of the Union and of being against him; threatened to fire the one who
was the cause of the Union ; and warned her that no girl was indispensable . During
that week Jones did not speak to Mrs. Wilson, contrary to his past friendly relation-
ship with her. During this period Jones also attempted to ascertain from Mrs. Kuter
whether Mrs . Wilson was responsible for the organizational activities among Re-
spondent 's employees . During the course of this interrogation , Mrs. Kuter admitted
that Mrs. Wilson "handed cards out."
Upon the basis of the entire record considered as a whole, I am convinced and
find that the intervening event which precipitated Jones' request that Mrs. Wilson
work full time , "or else," was the increased and accelerated union organizational
activities among Respondent 's employees and his knowledge or belief that Mrs.
Wilson was the ringleader of the employee organizational efforts, to which he was
opposed. Knowing that Mrs. Wilson was unwilling to work full time because of
her family situation at home, Jones requested her to work full time and discharged
her, upon her refusal , because he believed or suspected that she was the one who
was responsible for the union organizational activities among the Respondent's
employees . By such conduct , Respondent has discriminated in regard to the hire
and tenure of employment of Florence Wilson , thereby discouraging membership
in the Union in violation of Section 8 (a) (3) and ( 1) of the Act.9
b. Mary Kuter
Manager Jones testified that the lingerie counter where Mary Kuter worked was
the second largest volume department in the store and required a full-time employee,
6 days a week ; that Mary Kuter worked full time, including Saturday , during the
first month of her employment and then stopped and only worked a few Saturdays
during the remaining period of her employment ; and that he discharged her on
e I do not credit Jones' contrary testimony.
U In connection with the finding of the State Unemployment Compensation Board of
Review that Mrs. Wilson was discharged for cause , which I have considered , I note,
among other things, that the record developed in that proceeding was not as full and
complete as that in the instant case and that the State board did not have the benefit
of findings by the referee who heard and observed Mrs. Kuter testify, as she testified only
in a supplementary hearing before Referee Wood who made no findings in that proceed-
ing. I find no merit in Respondent 's contention in its brief that any alleged discrimi-
nation is disproved by Respondent ' s failure to discharge other union employees who signed
union authorization cards. As previously found, M rs. Wilson was the chief union pro-
tagonist and most active on its behalf . Mary Kuter , the only other employee who informed
Jones of her staunch adherence to the Union , was also discharged on the same day. More-
over , a discriminatory motive otherwise established is not disproved by an employer's
showing that he did not weed out every adherent of the Union. Lewisburg Chair and
Furniture Company, 112 NLR13 641 , 659, enfd. 230 F. 2d 155 (C. A. 3) ; N. L. R. B. v.
W. C. Nabors, d/b/a TV. C. Nabors Company , 196 F. 2d 272, 276 (C. A. 5), cert . denied
344 U. S. 865.
H. L. GREEN COMPANY, INCORPORATED 1469
June 18 when she refused to work Saturday. As previously found, Mrs. Kuter was
hired with the understanding that she was unwilling to, and would not, work on
Saturday, although she worked on occasions to help Mr. Jones out during holiday
and rush periods. She had never previously been told that she would regularly have
to work a 6-day week.la As in Mrs. Wilson's case, the issue here also involves
Jones' true motivation in suddenly requesting Mrs. Kuter to work regularly on a
6-day-week basis and in discharging her when she indicated her immediate inability
to do so.
Although Jones admittedly had no complaint about Mrs. Kuter's efficiency, or
the shrinkage figures on her counter, Respondent 's answer to the General Counsel's
complaint alleges that she was also discharged for "other reasons involving [her]
efficiency and ability." Prior to June 4, Jones had recommended her for a 5-cent-an-
hour increase . On June 4, Jones interrogated her about the union meeting scheduled
to be held after work that day and about Mrs. Wilson's responsibility for the em-
ployees signing up for the Union. In response to his further questioning, Mrs. Kuter
admitted that she had signed for the Union "because I believe in the Union. Promises,
promises," referring to Jones' prior promise of a wage increase which had not been
forthcoming. Jones threatened to follow the employees to the union meeting. The
next day Jones smilingly asked Mrs. Kuter, "How did the meeting go last night?"
Mrs. Kuter commented that he knew "about the meeting." Thereafter Jones asked
Mrs. Kuter a few times "Who was at the head of the Union, who started it?" Mrs.
Kuter refused to tell him, stating she did not know. In response to his further
questioning, Mrs. Kuter admitted that she had signed a union card and emphasized
that she believed in the Union.
As previously found, Jones was aware that Mrs. Kuter was unwilling to work
on Saturday because her husband was in the city only on weekends. Despite the
admitted shortage of help, Jones was unwilling to give Mrs. Kuter, a satisfactory
employee, a few weeks' grace when she told him on June 15 that her husband would
be coming back in a few weeks and that she would then be able to work a 6-day
week. I am convinced that it was not a mere coincidence that, with full knowledge
of Mrs. Kuter's and Mrs. Wilson's unwillingness to work on Saturday, Jones chose
to make the same request of Mrs. Kuter, the only other openly announced union
adherent, as he made of Mrs. Wilson, that they work full time on penalty of dis-
charge, and then discharged them. On the basis of the entire record considered as
a whole, I am convinced and find that in requesting Mrs. Kuter to work a 6-day
week and in discharging her when she indicated her unwillingness to do so for about
3 weeks, Jones was motivated by her openly avowed and staunch support for, and
adherence to, the Union. Moreover, even accepting Respondent's contention that
Mrs. Kuter was originally employed to work full time on a 6-day-week basis, I am
convinced and find, under all the circumstances disclosed by the record, that Manager
Jones was motivated by the same discriminatory considerations in insisting at this
time on immediate compliance with his request and in effecting her discharge without
according her the few weeks' grace period which she requested. In either view,
Respondent has, by the foregoing conduct, discriminated in regard to the hire and
tenure of employment of Mrs. Kuter, thereby discouraging membership in the
Union in violation of Section 8 (a) (3) and (1) of the Act.
B. Interference, restraint, and coercion
I find that by Manager Jones' conduct in questioning Mrs. Kuter about the June 4
union meeting, about whether she signed a union card, and as to who was responsible
for the organizational activities among Respondent's employees, in creating or foster-
ing the impression among Respondent's employees that he would keep the union
meeting under surveillance," in questioning Mrs. Wilson about the Union, in
accusing Mrs. Wilson of being the starter of the Union and going against him, in
threatening to discharge the one who was the cause of the Union, and in warning
Mrs. Wilson that no girl was in dispensable, the Respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act and has thereby violated Section 8 (a) (1) of the Act.
Contrary to Respondent's contention in its brief, the foregoing conduct may not
be regarded as isolated acts, particularly in view of Respondent's other unfair labor
practices, as previously found. Nor is there any merit to Respondent's disclaimer
of liability in its brief in view of Personnel Director Stone's instructions to Jones in.
I do not credit Jones' contrary testimony.
See, e. g.. Idaho Egg Producers, 111 NLRB 93, 103, and cases cited therein.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1955 not to interrogate employees or engage in coercive conduct, as these instruc-
tions were not communicated to the rank-and-file employees.I2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations 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 the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action. to effectuate the policies of the Act.
Having found that the Respondent discriminated in regard to the hire and tenure
of employment of Florence Wilson and Mary Kuter, I will- recommend that the
Respondent offer to each of them immediate and full reinstatement to their former
or substantially equivalent positions 13 without prejudice to their. seniority or other
rights and privileges and make them whole for any loss of pay suffered by them as
a result of the discrimination, by payment to each of them of a sum of money
equal to the amount each would have earned from the date of her discharge to
the date she is offered reinstatement, less her net earnings 14 during said periods.
Said loss of pay shall be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I will also
recommend that the Respondent make available to the Board, upon request, payroll
and other records to facilitate the determination of the amounts due under this
recommended remedy.
The unfair labor practices committed by the Respondent are of a character which
strike at the roots of employee rights safeguarded by the Act. As these unfair
labor practices are persuasively related to other unfair labor practices proscribed
by the Act, a danger of their commission in the future is to be anticipated from
the Respondent's conduct in the past. The preventive purposes of the Act will be
thwarted unless the remedial order is coextensive with the threat. In order therefor
to make effective the interdependent guarantees of Section 7 of the Act and to prevent
a recurrence of unfair labor practices, I will recommend that the Respondent cease
and desist from infringing in any manner upon the rights guaranteed employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Retail, Specialty and Variety Store Employees Union, Local 415, Retail Clerks
International Association, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Florence
Wilson and Mary Kuter, thereby discouraging membership in the aforesaid labor
organization, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By the foregoing conduct; by interrogating employees concerning their union
activities, concerning a union meeting, and concerning the employee responsible for
the organizational activities among Respondent's employees; by creating or foster-
ing the impression among the employees that a scheduled union meeting would be
kept under surveillance; and by threatening to discharge the employee responsible
for the union organizational activity, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. 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.]
13 See, e. g., Solo Cup Company, 114 NLRB 1.21, 123, enfd. 237 F. 2d 521 (C. A. 8) ;
KTRH Broadcasting Company, 113 NLRB 125, 120; H. J. Heinz Company v. N. L. R. B.,
311 U. S. 514, 521.
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
1i Crossett Lumber Company, 8 NLRB 440, 497-498.