Hearst Mercantile Co.

National Labor Relations Board - Board Decisions

Oct 20, 1942

44 N.L.R.B. 1342 (N.L.R.B. 1942)

In the Matter of HEARST MERCANTILE COMPANY and LOCAL UNION
#22417 , BLACK HILLS MINE & MILL WORKERS, AFFILIATED WITH THE.
A. F. OF L.
Case No. C-0194.-Decided October 20, 1942
Jurisdiction : retail store general merchandising industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion: requesting, employees to report union
organizational efforts ; interrogating employees about union membership.
Discrimination: discharge of two employees because of union membership and
activity ; alleged reasons for discharges that one employee had defalcated
money, and the other had distributed merchandise without charge and rendered
unsatisfactory services rejected, where the facts did not sustain the charges
of dishonesty, where respondent discharged the employees without notice, and
thereby deviated from established practice of giving all employees theretofore
found guilty of defalcations a notice of discharge, where the alleged unsatis-
factory services had been permitted to continue for a period of years without
disciplinary action, and where the discharges occurred at the height of the
union organizational efforts of the two employees, although the alleged reasons.
therefor had existed prior to their union membership and activities.
Remedial Orders : reinstatement of employees with back pay; employer ordered
to cease and desist unfair labor. practices.
Mr. Guy Farmer, for the Board.
Kellar & Kellar, by Mr. Kenneth C. Kellar, of Lead, S. Dak., for the
respondent.
Mr. Albert Maag, of Huron, S. Dak., for the Union.
Mr. Gerard J Manacle, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Local Union #22417, Black
Hills Mine & Mill Workers, affiliated with the A. F. of L., herein called
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Eighteenth Region (Minneap-
olis, Minnesota), issued its complaint dated March 21, 1942, against
Hearst Mercantile Company, Lead, South Dakota, herein called the
respondent, alleging that the respondent had engaged in and was.
44 N L R. B., No 252
1342
HEARST MERCANTILE COMPANY 1343-
engaging in unfair labor practices affecting commerce, within the
meaning of section 8 ( 1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint , accompanied by notice of hearing, were duly-
served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged,
in substance , that the respondent : ( 1) on January 27, 1941, discharged
and refused to reinstate Francis Gervasi and George Trucano because
of, their union membership and activities ; and (2 ) by the foregoing act,.
and by ( a) interrogating employees about union membership and
activity, (b) engaging in surveillance of union members and union
meetings, (c) requesting employees to report union organizational
efforts to the respondent , and (d ) making statements to employees
indicating hostility and opposition to the Union , interfered with,.'
restrained , and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. On March 30,1942 , the respondent filed
its answer - admitting the allegations of the complaint as to its busi-
ness, but denying that it was engaged in commerce or that it had.
engaged in the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Deadwood, South Dakota,,'
on April 13, 14, 15, and 16,,1942, before Will Maslow, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board,
the respondent, and the Union were represented and participated in
the hearing . Full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing upon the issues.
was afforded all parties. At the commencement of the hearing, a
motion by the respondent to dismiss the complaint on the ground that
the respondent was not engaged in commerce was denied. At the-
close of the Board's case and at the close of the hearing, the motion
for dismissal was renewed on the further ground that no violations.
of the Act had been established. These motions were likewise denied.
At the close of the hearing, a motion to conform the pleadings to the
evidence as to - dates , names , and similar matters was granted without
objection. Rulings were made by the Trial Examiner on various other
motions and on objections to the admission. of evidence during the
course of the hearing. The Board has reviewed the rulings and finds
that no prejudicial errors were committed. The rulings of the' Trial
Examiner are hereby affirmed.
On May 19, 1942 the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the parties , in which he found'
that the respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (1) and ( 3) and Section 2'
(6) and (7) of the Act, and recommended'that the respondent cease
and desist therefrom and take certain affirmative action, including re-
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instatement with back pay, deemed necessary to effectuate the policies
,of the Act.
On June 26, 1942, the respondent filed exceptions to the Intermediate
Report, and a brief in support thereof. Pursuant to notice, a hearing
for the purpose of oral argument was held on July 14, 1942, before the
Board at Washington, D. C. The respondent and the Union were
-represented by counsel and participated in the hearing.
The Board has considered the respondent's exceptions and brief, and
insofar. as the exceptions are inconsistent with the findings, conclusions,
.and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The respondent , a South Dakota corporation operating a depart-
ment store at Lead , South Dakota, is engaged in the retail merchan-
dising of food products , household furnishings , hardware , mining
supplies, drugs , drygoods, and other general merchandise . In 1940
the respondent also operated a store at Moskee, Wyoming, which was
discontinued on February 3, 1941 . During the year 1940 the respond-
ent purchased merchandise valued at $616 ,734, of which approxi-
mately 60 percent was received from points outside the State of South
Dakota. During the same period ,'the respondent 's sales of merchan-
dise amounted to $834,906 , practically none of which was shipped out-
side the State of South Dakota, except merchandise having a cost value
of $11,564, which -the respondent shipped to its Moskee, Wyoming, store.
During the year 1941 , the respondent obtained approximately the same
amount of merchandise from points outside the State of South Dakota
as it did in 1940.
II. THE ORGANIZATION INVOLVED
Local Union #22417, 131ack Hills Mine & Mill Workers, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Union activity
Prior to December 1940, the respondent's employees were not organ-
ized. On December 14, 1940; 13 of the respondent's employees attended
a'poker party, during the course of which complaints were uttered con-
eerning overtime work throughout the holiday period. A discussion
a
> HEARST MERCANTILE COMPANY 1+345
ensued relative to organizing a union, and employee Francis Gervasi 1
suggested that they "either organize a union or keep quiet about it."
Thereupon,a vote by secret ballot was taken to determine whether ,or
not they should communicate with the Union for the purpose of organ-
izing. All present except 1 voted in favor of organization, whereupon
a committee, consisting of Gervasi, George Trucano, and Herbert
Emerick, was appointed to confer with a union organizer. On the
following day, Gervasi communicated with a union organizer and, made
arrangements for a meeting of the committee and union representa-
tives, which was -held that evening. -
On December/L6 another meeting was held and attended by about
12 of the respondent's employees. Subsequently other meetings were
held, each successively with slightly increased attendance. On January
26, 1941, at a meeting attended by 18 employees, arraligenlents were
made for a larger meeting to be held on January 27, to which about
29 employees were invited.2
During the,period of union organization described above, Gervasi
and Trucano were leaders of the organizing movement. As stated
above, the discontent was crystallized by Gervasi into union action
and both Gervasi and Trucano were appointed on the organizing
committee. Gervasi arranged for the first meeting with the union rep-
resentatives. During working hours, he requested employees to see
him after working hours about signing union cards, and spoke to em-
ployees on the street, at their homes, or by telephone. He distributed
union cards to the employees and induced nine of them to sign such
cards. Trucano spoke to employees about joining the Union, and
invited then to attend the meetings. Both Gervasi and Trucano
arranged for all the meetings and took employees to' the meetings in
their automobiles.3
On January 27, 1941, Gervasi and Trucano were discharged under
circumstances hereinafter described.
B. Interference, restraint,- and coercion
It appears that even before an attempt was made to organize the
respondent's employees the respondent displayed concern over such a
possibility. Thus, according to the testimony of Trucallo, in August
1940 John L. Neary, the respondent's vice president. and general man-
ager, told Trucano that there were union organizers around and asked
1 Geivasi had Become interested in union organization some time prior to this when he
attended a union meeting at Rapid City , South Dakota
2 The respondent employed about 74 persons
B Although the record indicates that,Heibert Emerick , the other member of the oigvuz-
ing committee , participated in some of these activities , his part therein appeals to halve
been quite inconsjncuous
487433-42-%of 44--S5 ,, , -• ,
•
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Trucano had heard anything about them. Trucano replied
that he had not, whereupon Neary requested Trucano to notify him in
the event that Trucano saw• or heard of the organizers. According to
Trucano, Neary further told him that he had heard of the recent
organization of a plant in Rapid City, South Dakota, which was about
75 percent organized before anyone knew about it. Neary denied in
general terms that he had ever requested employees to report union
activities to him.4 We credit the testimony of Trucano, as did the
Trial Examiner. -
Of similar purport was the testimony of Gervasi that in July or
August 1940 he overheard a conversation in the r'espondent's store
between Neary and Walter C. Wylie, the respondent's secretary and
assistant general manager, wherein Neary told Wylie that there were
union organizers around and instructed Wylie to report immediately
to him the presence .of any strangers around the store. Wylie agreed
to do so. ' Neary and Wylie denied the conversation. We credit the
testimony of Gervasi, as did the Trial Examiner.
The respondent contends that, even if true, these incidents are irrele-
vant and immaterial, because of the lapse of time between their occur-
rence and the organizational efforts and the discharge of Gervasi and
Trucano, and, furthermore, because they did not refer to the complain-
ing Union or indicate hostility or aversion of the respondent towards
unions. Nevertheless, it is obvious that the respondent was on the alert
for and anticipated an attethpt to organize its employees. In view of
other anti-union conduct by the respondent, as detailed below, Nye find
that the above-described conduct was motivated largely by a desire to
prevent employee self-organization 5
David I. Smith, one of the respondent's office employees, testified that
about 9 o'clock on the morning of January 27, 1941, William J. Cotton,
whom Smith designated as his immediate superior, called Smith into
the office vault and asked him whether he belonged to the Union.,,
Smith replied that he did not belong to the Union, whereupon Cotton
stated that "things were going to pop," and that Neary was then in
the office of the respondent's attorney. Cotton testified that although
he could not recall this conversation with Smith, he might have asked
Smith whether he belonged to the Union. We credit the testimony
of Smith, as did the Trial Examiner. The respondent contends, how-
ever, that "the evidence is undisputed that Cotton was in no sense a
representative of the respondent- authorized to investigate alleged union
activities." We find- that this contention is not sustained by the evi-
dence. Neary testified that Cotton was the "credit man" and directed
4 The Trial Examiner found that Neary was an evasive witness throughout his.testimony_
s Cf : Matter of Abtnate & Nola Packing Co., et` al . and Warehousemen's Union 1-6,
1. L IV U, 26 N L It B. 1288
Smith had never been a member of the Union.
HEARST MERCANTILE COMPANY ' 1347
the activities of six other office employees to a certain extent-"about
40%,"-but that he was not the "office manager" or "head of the office."
Smith testified that if Cotton had a title it probably would be "credit
manager"; that when he commenced to work in the respondent's office
Cotton instructed him as to his duties; that Cotton supervised his work
"in a fashion"; that if he had any difficulties he referred them to Cot-
ton; that he "supposed" Cotton was his immediate superior; and that
Cotton-occupied a similar relationship to the other office employees.
Cotton testified that he was in charge of credits, and had one other
office employee-help him in this work; that he generally instructed new
office employees as to their duties; and that he supposed,that he was
responsible to Neary for the work of the office. It is clear, and we find,
as did the Trial Examiner, that Cotton's position was such that the
employees had just cause to believe that he represented the manage-
ment, and accordingly, that his anti-union activities are attributable
to the respondent.7
We find, as did the Trial Examiner, that by its course of conduct
as evidenced in the statements and conduct of Neary and Cotton, set
forth above, the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section I of
the Act.
C. The discriminatory discharges
On January 27, 1941, in the midst of the union campaign and on
the day on which the largest meeting of the Union was scheduled to be
held, the respondent discharged the two outstanding union advocates,
George Trucano and Francis Gervasi.
Trucano had worked for the respondent continuously from 1922 to
January 27, 1941, when Neary discharged him allegedly because of a
defalcation of $2. Trucano denied that he was guilty of the alleged
defalcation. From 1934 Trucano had been head of the hardware de-
partment, having three assistants. Neary testified that prior to
December 1940, Trucano had never been detected in any dishonesty
and that his work had been satisfactory. _
For some years prior to 1940 the Ridgeway Audit Company had been
employed by the respondent to make periodic investigations of the
respondent's sales employees as to courtesy, efficiency, and honesty.
These investigations were conducted by operatives, unknown to the
'International Association of Machinists v N. L. R. B., 311 U. S. 72, aff'g 71 App
D. C 175; 110 F. (2d) 29, enf'g Matter of The Se) rick Corporation and International
Union, United Automobile lvorkers of America, Local No. 459, 8 N. L. R. B. 621 ; Matter
of Northern Ohio Telephone Company and Utility Workers Organizing Committee affiliated
with the Congress of Industrial Organizations, 27 N. L R. B 613; Matter of Central
Greyhound Lines, Inc., of New York and Brotherhood of Railroad Trainmen, et at., 27
N. L. R. B. 976; Matter of Fletcher Paper Company and International Brotherhood of
Paper Makers (A.' F. of L ), 27 N. L. R. B. 1274.
1348
r
1 i. { y^
DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
sales employees, who purchased merchandise in the respondent's store
and noted their observations of the sales clerks' conduct on blank re-
port forms supplied them by the audit company, and attached to these
reports the duplicate sales slips' •they received. The operatives de-
livered these reports and the merchandise they purchased to L. K.
Blackwell, general manager of the audit company. Upon completion
of the investigation, Blackwell took these reports and all merchandise
purchased by the operatives to Neary, who with Blackwell's assistance
compared each transaction so reported" with the clerks'• original.cash
sales slips and the cash register tapes for the days 'upon which the
transactions occurred.
On December 6, 1940, Blackwell submitted reports to Neary describ-
ing in detail transactions by operatives with practically every clerk in
the store. The reports of two of these transactions dated November 29,
and December 3,1940, were introduced into evidence by the respondent,
and involved purchases by two different operatives from Trucano,
which reports, according to Neary, uncovered defalcations by Trucano
of $1 on each of these days.
The November 29 report relates that the operative had purchased
from Trucano, "3 Boxes of 22 long rifle shells, 1 Box 22 shorts," and
"1 Rifle Rod," for $1.45; that the operative gave Trucano the proper
change theref or and left before Trucano rang up the sale in the cash
register. It is stated in the report that no sales receipt was given to
the operative by Trucano.
The December 3 report relates that the operative purchased "1 qt.
Varnish & Brush" for $1.39, plus a tax of 4 cents; that a sales receipt
was given for the purchase; and that the operative paid for the varnish
and brush purchase -with a 5-dollar bill, and that,the clerk rang,up the
sale and gave him the change .11 Both reports contain figures purport-
ing to be,the register readings immediately preceding those of the
transactions herein involved.
Blackwell and Neary testified that an examination of Trucano's
cash sales slips and'the cash register tape for November 29 and Decem-
ber 3 showed no sales of $1.45 and $1.43. This is corroborated by the
cash register tapes for both days, which were introduced,in evidence,
neither of which contains entries in those amounts charged to Tru-
cano. The entry on the tape for November 29 immediately following
the readings observed by the operative was for 45 cents. The entry. on
the December 3 tape following the operative's observed reading was
for 43 cents. The entries of 45 and 43 cents on the respective register
The report further states that after the first purchase , the operative made a second
purchase of turpentine for 26 cents. The second transaction is not questioned; in any
%N
HEARST MERCANTILE 'COMPANY 1349
tapes were admittedly Trucano's. Sales slips of Trucano allegedly
covering these transactions were introduced in evidence. One dated.
November 29 reads as follows:
22 Cart. 44
Tax 01
and for December 3 reads:
45
Brush 42
Tax 01
43
Blackwell testified that the operatives delivered to him all the mer-
chandise purchased in these transactions, as originally wrapped, and
he in turn delivered these packages to Neary on December 6. The
respondent produced at the hearing 3 boxes of 22 long shells, 1 box of
22 short shells, a ramrod, and a brush, all unwrapped, which the re-
spondent alleged were the articles involved in the above transactions.
No varnish was produced. Two pieces of wrapping paper, which, ac-
cording to Blackwell and Neary,'were part of the original wrapping
paper on the November 29 transaction, were also introduced in evi-
dence. One piece of this paper has written thereon the figures 114 and
26, while the other has the figure 05 thereon. According to the -re-
spondent, this demonstrated that Trucano had himself totaled up the
amount of the purchase as $1.45.
Upon completing their investigation of these transactions on Decem-
ber 6, Blackwell and Neary summoned Trucano and questioned him
concerning them. According to their testimony, Trucano admitted
having made the sales as indicated in the reports, but denied that he
was guilty of misrepresenting the sales on the sales slips or of not
having put the proper amounts in the, register. On the other hand,
Trucano denied at the hearing that he had admitted on December
6 making the sale of four boxes of shells or the varnish. He testified
further that Blackwell and Neary had not even questioned him about
the sale of shells,9 but that he himself had told Neary that he recalled
a sale of one box of shells and a ramrod to a customer who tried to
confuse him,10 and that Neary replied, "We know about that and that's
all right." Neary then sent Trucano back to work. We, credit the
testimony of Trucano, as did the Trial Examiner.
This is suppoi fed by the letter of the respondent's president, Mori in, hereinafter set
forth in NN liocni mention is made only of a "paint deal."
10 Accoiding to Trucano, Nshose testimony we credit, the purchaser inquired of him the
prices of different articles and had them placed on the counter, and also inquired about
the prices of different amounts of the articles thus set out, so that Trucano was figuring on
the back of his sales book and on wrapping paper the amounts of possible sales, before
the purchaser decided to bay only one box of shells and the ramiod
1350 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
Blackwell testified that he had no personal knowledge of these trans-
actions, and both Blackwell and Neary testified that their conviction of
Trucano's guilt was based entirely upon the operatives' reports of the
November 29 and December 3 transactions. The operatives, however,
were not called upon to testify at the hearing by the respondent, nor
was any showing made as to their unavailability. In view of the
lack of corroboration by the operatives, we are reluctant to accept the
reports as conclusive evidence of Trucano's guilt.
Moreover, there are material discrepancies in the reports. Thus, al-
though the report,on the transaction of December 3 states that a re-
ceipt was secured and Blackwell testified that all sales receipts received
by operatives were attached to the reports, the report introduced into
evidence had no such receipt attached, nor did the respondent offer any
explanation concerning the absence of this sales receipt. Nor can we
overlook the lack of recital in the December .3 report that Trucano
failed to ring up the correct amount of the operative's first purchase,
for surely if the operative was in a position to observe and note the
cash register reading immediately preceding his purchases, as he did,
he could hardly escape observing the register's reading for his first
purchase, when, as the report states, he waited for Trucano to return
his, change from a 5-dollar bill, and then purchased some other mer-
chandise. A fortiori, if Trucano had rung up the wrong amount of the
purchase the operative would have noted it in the report.
Other considerations lend credence to Trucano's denial that he made
the sales as alleged in the reports. Trucano testified, without contra-
diction, that all articles sold over the counter normally bore price
"
marks thereon. The brush introduced into evidence was marked `` CN
39
which according to the respondent iiidicated that the sales price of
the brush was 39 cents. The box of shells produced by the respondent,
however, did not have marks thereon to indicate the price. The
respondent offered no explanation of this discrepancy.
Neary testified that the retail price of 22 long shells was 23 cents a
box. Trucano testified that their price was 37 cents or 39 cents, and
that a ramrod sold for 5, 6, or 7 cents.1' No evidence was adduced to
show the price of 22 short shells and the reports do not contain the
cost of each article purchased, but only the amounts of the total pur-
chases. Although, as previously stated, the wrapping paper admitted
into evidence contains figures which total $1.45, Trucano denied that
these figures had been made by him in totaling'the purchase finally
made.12 It is impossible upon the conflicting and inadequate testi-
1 Trucano testified, without contradiction, that he did not mention the ramrod on the
sales slip, because sales clerks rarely itemized sales slips in cash sales unless requested
by the, customer, and that the total price only is marked after the major item purchased.
22 See footnote 10, supra. -
HEARST MERCANTILE COMPANY 1351
mony concerning the prices of the articles allegedly sold on November
29, to determine whether, if the-sale was made as reported, it would
have totaled $1.45.
Neary testified that the respondent had no brushes that sold for
42 cents, which was the price Trucano designated on the December 3
sales slip for a brush. ' Trucano testified, however, that there were
brushes in the store priced at 42 cents, and denied' that the brush
produced at the hearing was the brush which he had sold. Neary and
Trucano testified that a quart of varnish'sold for $1.00 and that the
tax thereon would be 3 cents, but Trucano denied that he sold the quart
of varnish on December 3 and, as previously stated, the respondent did
not produce the varnish which was alleged to have been sold.
For all the reasons stated above, we find as did the Trial Examiner,
that the November 29 and December 3 reports are not reliable,13 and
furthermore, that these reports do not establish that Trucano was
guilty of the defalcations alleged.
The undisputed testimony shows that from December 6 to January
27, nothing further was said to Trucano concerning these transactions.
Neary testified that although he was convinced of Trucano's guilt on
December 6, because of Trucano's long service with the respondent,
and because he was a deliberate man, he "checked and rechecked .. .
everything in connection with it to be sure there wouldn't be any possi-
bility of error." -The record does not disclose, however, that during
the interim any further inquiry or investigation was made. Quite
precipitately, therefore, at about noon on January 27, Neary summoned
Trucano to his office and informed him that he was discharged because
of the alleged theft of $2.00 approximately 2 months before.
The respondent contends that in any event Neary was convinced
that Trucano was guilty of the thefts and was motivated entirely by
this belief in discharging Trucano. We are convinced from the record,
however, that such a. belief was not the motivating cause of the dis-
charge. Thus, Trucano admittedly was the only employee denying his
guilt, under circumstances like these, who was discharged by the re-
spondent. The respondent admitted that it had exonerated, after a
thorough investigation, all other employees who had denied their guilt
although similar reports had likewise attached suspicion of defalca-
tions upon them. It is thus amply demonstrated thai normally the
respondent was dubious as to the reliability of the reports, refused to
accept them as conclusive evidence of guilt, and conducted investiga-
tions thorough enough to establish the facts independent of the re-
ports. Notwithstanding the similarity of Trucano's case, Neary, in
the first place, admittedly based his belief of Trucano's guilt entirely
upon the reports, and secondly conducted only the cursory investigation
As is hereinafter shown , the respondent itself doubted the reliability of these reports.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of December 6, as fully set forth above, which investigation, as far as
it went, tended only to strengthen Trucano's assertion of innocence.
No attempt was made to explain the absolute reliance upon, the reports
aid the failure to conduct a thorough investigation in Trucano's case
only.
Furthermore the contrast between Neary's handling of Trucano's
case and cases of employees admittedly guilty of defalcations is an
indication of the fact that Neary was not convinced of Trucano's
guilt. Thus, prior to December 1940, the Audit Company had un-
covered many instances of defalcations by employees who, upon being
confronted with evidence of their guilt, admitted thefts in sums rang-
ing from $14 to $300. Neary testified that his practice with reference
to these employees was to give them a chance to find other positions
and then to resign. According to Neary, when these employees would
ask him whether they were "through," he would "say no but perhaps
they would want to get another job." Neary admitted that'some of
these employees remained in the respondent's employ as long as 2
months after being told by Neary that they might "want to get another
job." Neary admitted.that he did not give Trucano the option of
getting another job and then resigning, but testified that he had hoped
that Trucano would resign. The -fact remains, however, that Trucano
was precipitately discharged on January 27 without warning. When
it is considered that Trucano's defalcations, even if true, amounted
to the trifling sum of $2, and that in all the other cases referred to
the employees were without doubt guilty of stealing substantial sums
of money, it seems apparent that Neary was not motivated primarily
by a desire to rid the respondent of a dishonest employee 14 Moreover,
the record does not disclose that Neary even requested Trucano to re-
imburse the respondent for his alleged shortage, although Neary testi-
fied that in most of the cases of thefts the employees involved repaid
the respondent the full amounts of their defalcations before they left
the respondent's employ.15
Although Neary testified that he had decided on December 6 to dis-
charge Trucano, it is evident from the following facts that the respond-
ent did not contemplate Trucano's discharge in connection with the
alleged defalcations before January 27. On January 28 Trucano
14 The case of George Arnold is illustrative of such contrast According to the undis-
puted testimony of Neary and Wylie, Arnold, manager of the respondent's Central City,
South Dakota, branch store, v,as discovered to be short $55 in his funds on December 12,
1940, admitted his guilt, but was permitted by Neary to continue working Neary did
not notify Arnold at this time that he would be discharged About 2 weeks later, after
Arnold had made up the original shoitage, Neary and Wylie again found him $45 short
in his funds Neary at this time told Arnold that he would be discharged, but Arnold
was permitted to continue his work until January 31, 1941, the regular monthly pay day,
when he was finally discharged
15 Neary testified that the only employee who failed to reimburse the respondent for
such thefts "quit and left very hurriedly." _
HEARST MERCANTILE COMPANY 1353
wrote to F. D. Murrin, president of the respondent, concerning his
discharge and appealed to Murrin for assistance. Murrin, who was in
California and no longer active in the management of the respondent's
store, answered Trucano's letter stating that he was surprised to hear
of Trucano's dismissal, and that he had heard of the "paint deal"
while he was in Lead a few days before but had assumed "that it was
not a serious matter on account of it not" having been "definitely
attached"' to Trucano and on account of Trucano's previous experi-
ence.ls The letter contained no reference to the transaction of Novem-
ber 29. Neary at first denied that he had mentioned the Trucano case
to Murrin, but upon cross-examination admitted that, while Murrin
had been at the store for a couple of weeks prior to January 21, 1941,
he had discussed with Murrin "the circumstances in connection with
the discharge of Trucano, on account of a defalcation that the Audit
Company found." It is clear from Murrin's letter, however, and we
find, that Neary did not discuss Trucano's discharge with him for
Murrin was "surprised" to hear of Trucano's discharge. It is equally
clear from the letter, and we find, that Neary at that time either was
not positive as to Trucano's guilt, or had resolved doubts he might have
had in favor of Trucano on account of Trucano's previous record of
service with the respondent. Furthermore, the record discloses no
reason whatever why Neary should have changed his opinion between
the time of the discussion with Murrin and Trucano's discharge.
Upon all the evidence adduced, Ave find, as did the Trial Examiner,
that Neary did not discharge Trucano because he was convinced that
Trucano was guilty of the defalcations.
Gervasi was employed by the respondent as a meat cutter in 1928
at a salary of $100 a month. By 1940, he was head of the meat de-
partment and receiving $145 a month. His salary had been increased
a number of times and was last increased by $10 a month on October
1, 1939. Neary discharged Gervasi on January 27, 1941, allegedly
because of a long series of difficulties, • culminating in a dishonest
transaction by Gervasi on January 22, 1941.
Neary testified that his reasons for discharging Gervasi went
"back for a few years ;" that in part Gervasi had been unsatisfactory,
as an employee ever since 1934; and that Gervasi had been disobey-
ing instructions for several years. Wylie testified that he had been
having difficulties with Gervasi for "the last three or four years" and
that during this period it had been "pretty hard to work with" Ger•
vasi, and that he had made "quite a few" complaints to Neary, about
Gervasi.
Neary and Wylie testified that Gervasi failed to use certain forms
known as purchase bills to indicate errors in merchandise shipped to
10 Although Murrin was present at the hearing as a witness he was not called upon to
testify concerning this matter.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meat department and received by Gervasi, but instead noted the
errors on the faces of the invoices or on slips of paper clipped to the
invoices, and that Neary had reprimanded Gervasi many times for
this practice. Gervasi admitted that he failed to note invoice errors
on purchase bills, but testified that it was "never clear to him as to
when he should use" the forms.'' Trucano testified, without contra-
diction, that while he used purchase bills occasionally to note dis-
crepancies between merchandise received and the invoice therefor,
they were generally used for other purposes, and that no instructions
relative to their use had ever been issued to him, and further that he
had noted errors on the face of invoices occasionally and was never
reprimanded for doing so. We credit the testimony of Trucano in
this respect, as did the Trial Examiner, and find that the respondent
enforced no definite rule with respect to the use of purchase bills.
Neary and Wylie further testified that Gervasi had failed to keep
the meat' department in a clean and orderly manner, in that Gervasi
wore bloody aprons, drew chickens on the meat block instead of in
the rear of the department, left meat on the floor, and left meat on
the ledge of the refrigerator instead of inside the refrigerator, and
that they had reprimanded Gervasi many times for such conduct.1e
In this connection, it should be noted that the reports of the Ridge-
way Audit Company commented on cleanliness, and no report was
introduced in evidence which stated that the meat department was
not clean or orderly, although Neary was requested to produce any
such report. On the other hand, there was introduced in evidence a
report dated November 29, 1940, which recites that "the meat depart-
ment here seemed to be well stocked and nicely' displayed." In addi-
tion, we question whether the specific acts of uncleanliness above at-
tributed to Gervasi are unusual in a busy meat market. Moreover,
it is obvious, and we find, from all the evidence that such a condition
was not the motivating cause of discharge, for it was part of the
alleged unsatisfactory conduct of Gervasi which the respondent
admitted had continued for years.
The respondent further asserted that Gervasi was sulky, difficult
to get along with , and refused to obey instructions, in that he failed
to keep meat tonnage reports, to keep his books properly, to use the
rotating system in filing telephone orders, and to take a monthly in-
ventory in the presence of Wylie. Wylie's testimony, however, was
i' Gervasi 's failure to use the purchase bill forms for this purpose admittedly never
resulted In financial loss to the respondent.
' This testimony was given subsequent to the testimony of Gervasi , and he 'was not
recalled to testify relative thereto. Gervasi had testified , however, that he was so "over-
rushed with business" that "it was impossible to give the proper attention to customers,"
and that he had spoken to Wylie many times about supplying "additional help" in the
meat department . Wylie admitted that Gervasi had complained about unsatisfactory
assistants , and testified that it is possible that they were unsatisfactory. .
HEARST MERCANTILE COMPANY . - 1 1355
vacillating on the, matter of Gervasi's refusal to follow these in-
structions. Thus, upon direct examination, he testified that Gervasi
did comply with his instructions "after he was told to," and on cross-
examination he testified that he only issued "an occasional instruc-
tion" to Gervasi, and that Gervasi carried out a number of them, but
added that upon several occasions when Gervasi refused to carry out
an instruction he requested Gervasi again "to do the work, and it
appeared to be hopeless," so he "just dropped it." Gervasi admitted
that he had failed to follow Wylie's instructions unless he thought
they were "an improvement," but testified that he had been under
the impression that he was in sole charge of the meat department.'°
Neary and Wylie testified that they had reprimanded Gervasi many
times for these difficulties, which had been continuing for some years.
Notwithstanding the respondent's asserted dissatisfaction with
Gervasi, Neary, on October 1, 1939, raised Gervasi's salary $10 a
month. Wylie testified that he had recommended this raise for Ger-
vasi many times before Neary actually granted it. When asked at
the hearing to reconcile their alleged difficulties with Gervasi with
the wage increase,-both Neary and Wylie testified that they thought
the wage increase would make Gervasi a better employee. Gervasi's
salary had been increased, however, a number of times before with-
out having produced this result, according to the respondent, and,
in conformity with the findings of the Trial Examiner, we do not
credit this explanation.
Neary and Wylie also testified that as far back as June 1940, they
had decided to replace Gervasi, and that Clyde Hultman had been
employed at that time, with the idea of placing him in Gervasi's
position if he proved satisfactory. Hultman was not informed that
he was to replace Gervasi, but was given Gervasi's position when the
latter was discharged on January 27, 1941. The respondent admits
that Hultman showed himself to be a satisfactory employee soon
after his employment in June 1940. The respondent, however, justi-
fied its failure to give him Gervasi's position as soon as his qualifi-
cations were determined on the ground that the position was one of
such responsibility and trust that the respondent desired a long
19 Alhough Gervasi admitted that he consulted with Wylie several times on matters per-
taining to the meat, department , he testified that he did so because Wylie seemed to have
more influence with Neary than he had , and not because he considered Wylie in charge of
the meat dep'irtment Neary testified that he hired Wylie as manager of the grocery
depai tment in 1933, at which time he gave Wylie authority over the meat department,
and notified Gervasi to consult with Wylie on matters relating to the meat department.
He added ,however, that the meat department,remained separate from the grocery depart-
ment to the extent that they would keep the "figures separate, to check upon profits " It
appeared that Wylie never took active charge of the meat department , but that the buying
of meats, the operating of the department , and supervision of other employees in the
department were left under the charge of Gervasi. Wylie, as he testified , only- issued an
occasional instruction to Gervasi Wylie was appointed assistant manager in May 1940
1356 DECISIONS--OP, NATIONAL LABOR-RELATIONS--BOARD
period of,time to observe his ability..- If, as the respondent•Coll tends,
Gervasi's position was so important, then its retention of Gervasi
in such a position for a period of years is irreconcilable with its al-
leged difficulties with him. Under the circumstances, ive do not
credit this testimony of Neary and Wylie.
During the period of time that the respondent-was allegedly ex-
periencing these difficulties with Gervasi, Neary admitted, that he
never once warned Gervasi that he might be discharged for continuing
such conduct. Wylie also admitted that he never recoinmencled to
Neary that Gervasi be discharged, adding that he had no power to
discharge an employee. Wylie, however, testified that on some occa-
sions he had requested Neary to discharge employees, and usually
within 3 or 4 weeks these employees were discharged. Upon all the
evidence, we find,' as did the Trial Examiner, that Gervasi was not
discharged because of the alleged shortcomings set forth above.
According to Neary, however, the climax of Gervasi's misconduct,
and the conclusive factor in his determination to discharge Gervasi,
was an incident which occurred on January 22, 1941. Undisputed
testimony discloses that on the morning of that date, Neary observed
William J. Cotton, the respondent's "credit man" above referred to,
behind the counter in the meat department, and saw him take a pack-
age of meat and drop it clown the chute which led to the delivery room
in the basement. Neary called Wylie, who obtained the package from
the delivery room. Both weighed the meat, and checked the package
and the duplicate sales slip. The sales slip read:
Pork chops------------------------------------------------- 45
Lamb shoulder---------------------------------------------- 80
The package, however, also contaid cl a pork shoulder which vas not
.recorded on the slip. Wylie rewrapped the package,and returned it
to the delivery room.
The next day Wylie examined Gervasi's sales book for January,22,
and told Neary that the original slip for Cotton's meat order had been
voided 20 and that a corrected slip in the book read:
Pork shoulder----------------------------------------------- 87
Pork chops-------------------------------------------------- 52
Lamb shoulder---------------------------------------------- 96
Cotton, like other employees, maintained a charge account at the store.
Neary and Wylie admittedly said nothing to either Gervasi or Cotton
at any time concerning the matter. Moreover, the record indicates,
and we find, as did the Trial Examiner, that at the time Gervasi made
the corrected sales slip, he had no knowledge that the package had
been examined by Neary and Wylie. ." I
20 The original slip with the word "void" written on it, was introduced in evidence
,HEARST MERCANTILE COMPANY 1357
Although admitting that he had no clear recollection of the incident
at the time of the hearing,21 Gervasi testified that he believed Cotton
had originally ordered pork chops and a lamb shoulder, but had
-returned in a few minutes and, explaining that he had forgotten that
he expected some guests that evening, asked for more meat. Accord-
ing to Gervasi, he brought out the pork shoulder and some other meat
and placed them in the package, when'he was called away by a tele-
phone call. When Gervasi finished his call, he noticed that Cotton
had taken the meat without waiting for or receiving the corrected
sales slip. Gervasi testified that, recalling a warning from the union
organizer, he suspected that an effort was being made to entrap him.
He thereupon made out the corrected slip and went to Cotton's office
to deliver it. Finding that Cotton, in the meantime, had gone home
for lunch, Gervasi telephoned Cotton at his house to pick up the cor-
rected slip. Cotton corroborated Gervasi's version of the incident and
also added that it had-been his practice for 14 years to go behind the
counter when purchasing meat, and that he had never been instructed
not to do so. In view of the fact that Gervasi was unaware that Neary
and Wylie had examined the package of meat, it is important to note
that he did not destroy the original sales slip entirely, but instead
merely voided it and left it in his sales book. It is hardly likely that
he would have thus called the respondent's attention to a transaction
if it were dishonest. We credit the explanation of Gervasi and Cotton
concerning this transaction, as dux the Trial Examiner.
Neary testified that Cotton, even though an employee of the re-
spondent, was not supposed to be behind the meat counter and was
r,ot supposed to place the package in the delivery chute; that only the
meat department employees should have done this. On the other
hand, he admitted-that he had seen Cotton behind the meat counter
on numerous occasions and had never reprimanded him for being
there. Moreover, Wylie testified that Cotton always handled his
meat purchases in this manner. Although both Neary and Wylie
testified that upon this occasion the manner in which Cotton con-
ducted himself appeared suspicious, neither offered an explanation
as to the reason it appeared suspicious on this particular occasion,
Neary further testified that although he suspected that Gervasi
and Cotton had conspired to allow the latter to obtain a pork shoulder
without paying for it, he did not question Gervasi or Cotton about the
incident or tell them what he had observed. Neary's explanation was
that he thought there was a possibility of "picking-up some more trans-
actions of that kind." He testified also that he had made up his
mind to discharge Gervasi immediately after the incident, but had
21 As stated elsewhere, Gervasi was not questioned about this transaction, nor was it
assigned as a reason at the time of his discharge
l
1358 DECISIONS- OF NATIONAL -LABOR RELATIONS BOARD
not done so because Friday and Saturday were busy days in the meat
department. Neary's statement that he, was lboking for more trans-
actions of that kind indicates, and we find, as did the Trial Examiner,
that he felt that there were not at that time sufficient grounds for the-
discharge of Gervasi. There were admittedly no additional grounds
for discharge after that date. -
Furthermore, Neary did not refer to the Cotton meat incident in
discharging Gervasi. According to the testimony of Neary, on the
morning of January 27, 1941, Neary summoned Gervasi to his office
and told him that the respondent was "dispensing with his services"
because there had been a number of complaints against him, and that
he should know that the respondent had "had this in mind for some
time." Gervasi testified that Neary told him on this occasion that
he was suspended because his sales were down,22 and because lie seemed
to be indifferent to customers. Gervasi further testified that he ac-
cused Neary of discharging him because of his union membership and
activities, and that Neary denied' this but'told him that " he didn't see
why any of the employees should join the Union." Neary denied that
he had made the statement concerning the Union to Gervasi. Neary
admittedly made no mention of the incident of January 22 at this
time. In fact Gervasi testified, without contradiction, that he had
no intimation of the respondent's suspicions concerning the Cotton
meat purchases until 4 or 5 months after his discharge. We credit
the testimony of Gervasi. Furthermore, Cotton was not disciplined
or discharged and it was admitted that he was not even questioned,
although Neary testified that he believed that Cotton was in collusion
with Gervasi to procure meat without charge. 'Under the above-
described circumstances, we find, as did the Trial Examiner, that the
respondent did not discharge Gervasi because of the incident of
January 22.
Neary testified that he had considered the-cases of Trucano and
Gervasi together, that it was "a burden" worrying him, and that he
had suddenly decided to discharge theni on January 27, in order to
make a clean-up and get it off his mind, although he testified that
he had had this in mind for some time before January 27. He
offered no explanation, however, for his failure to consider at this
time the concurrent case of George Arnold, an employee admittedly
21 The evidence shows that there had been about a 5 percent decline in meat sales in
1940 . Neary testified that this decline in sales was one of his reasons for discharging
Gervasi. However, the testimony was undisputed that these was a decline in sales in
other departments during this period, and the record does not disclose that the heads of
those departments were discharged . Gervasi testified , without contradiction , that this
decline in sales was never mentioned to him prior to his discharge The respondent,
moreover, failed to show that Gervasi was responsible for the decline or that it had
made any effort to determine the causes of the decline The Trial Examiner did not
credit Neary 's explanation, nor do we.
HEARST MERCANTILE COMPANY 1359
guilty of. large shortages, but who -was retained until January 31,
1941.23 Neary also admitted that he failed to give Gervasi and Tru-
cano advance notice of the discharge, and explained this as an over-
sight. The precipitate discharges without notice, however, were a
wide departure from Neary's usual policy relative to employees who
were guilty of much more serious offenses than Gervasi and Trucano
were accused of, and hardly in consonance with Neary's description
of himself as a "deliberate" man. Nor was any explanation given as
to why he should consider the cases of Gervasi and Trucano together,
when their-alleged offenses were dissimilar, and consider the case of
Arnold separately. The only outstanding feature of similarity in
Gervasi's and Trucano's cases at this particular time was their union
membership and activity. '
As, stated above, the Union had a meeting on the evening of January
26 at which plans were made for a meeting to be held on January
27 and to which a larger number of employees were invited. - William
J. Cotton testified that on the morning of January 27, 1941, in the
respondent's office, Dea Baldwin, a guard assigned by the Homestake
Mining Company to guard the respondent's office that morning,'
related to him a'conversation that Baldwin had had earlier that morn-
ing with Neary at the local hospital. According to Cotton, Baldwin
admitted telling Neary that some of the employees had' joined the
Union and Neary replied that he knew it.26 At the hearing Baldwin
denied that he had any conversation of that sort with Neary, or that
he had ever "discussed union with Mr. Neary in any way." He testi-
fied, however, that he had been in the hospital that morning and had
seen Neary there, and that he probably had had some conversation
with Cotton in the office but could not recall any of it. Baldwin fur-
ther testified that he had heard rumors that the Union was trying to
organize the store, that these rumors were all over town, and that he
did not think that "there was anyone in Lead that didn't know it." 23
Neary denied that he had seen Baldwin in the hospital, but, after first
denying categorically that he had ever discussed unions with Baldwin,
he admitted upon cross-examination-that on one occasion, the date of
23 See footnote 14, supra. The record does not disclose that Arnold was a member of the
Union.
u The IIomestake Mining Company 's offices were located in the respondent ' s store build-
ing A large number of the mining company's employees assigned their wages to the re-
spondent for the purpose of securing credit. Their pay checks would be delivered by the
mining company to the respondent on pay days , and the mining company employees would
then call for their wages at the respondent's office, after first having deducted therefrom
the amount they owed the respondent on their charge accounts On these days the mining
company assigned a guard to the respondent 's office. The record indicates a close business
association between the mining company and the respondent.
35 David I Smith testified that Cotton told him about 2 weeks later that Cotton knew
Tiucano and Gervasi were going to be discfiarged because Cotton had been told by Dea
Baldwin that the latter had informed Neary that Gervasi and Trucano belonged to the
Union.
20 Lead has a population of 7,200.
1360 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
which he could not recall, Baldwin had mentioned to him that the
Union was organizing in Lead. Particularly in view of the partial
corroboration in the above testimony of Neary and Baldwin, we find,
as did the Trial Examiner, that Neary and Baldwin did have the
above-described conversation at the hospital.
Shortly after this incident, Cotton had the conversation with Smith,
above referred to, in which Cotton stated that "things were going to-
pop" and that Neary was then in the office of the respondent's attorney.
Neary admitted that he was in the office of the respondent's attorney the
morning the discharges occurred, but stated his purpose had been to
discuss the possible criminal prosecution of Trucano. Neary, further.
testified that when the first of such defalcations occurred .years before,
in which the employee admitted his guilt, it had been decided that the
evidence was insufficient to prosecute, and that it had been the policy of
the respondent since he had been appointed general manager never to
prosecute such cases, although he still consulted the attorney on each
case as it arose. Even if we accept Neary's assertion that he believed
Trucano guilty, we again note the sharp contrast in his conduct to-
wards Trucano and his conduct towards other employees. It is in-
credible that in the face of his established policy not to prosecute em-
ployees who had admitted stealing large sums of money, he should
suddenly consult the respondent's attorney with the view of prosecut-
ing one who had denied guilt, and who was suspected of stealing the
trifling sum of $2.27 Furthermore, Neary failed to explain why he had
delayed this consultation for 2 months. Under the circumstances we
cannot overlook the fact that on December 6, 1940, when the Audit
Company submitted the reports to Neary, Trucano was not a member
of the Union, while on January 27,1941, Trucano was one of the leaders
of a rapidly growing union organization. Nor can we overlook the
simultaneous discharge of Gervasi, the other union leader, for no im-
mediate offense, but for offenses allegedy committed over a period of
years. Even assuming that all charges against Gervasi and Trucano
were true, and we find to the contrary, their offenses were so minor as
compared to those of the employees discharged for thefts, that no con-
ceivable reason exists for the respondent's leniency towards the latter
and its harshness towards Gervasi and Trucano.
The timing of the discharges is particularly significant. The only
connection between the cases of Gervasi and Trucano was their union
activity. These discharges occurred 'at the height of the Union's
activity, \\hen greater numbers of employees were attending union
meetings. Yet these two were selected for discharge within a few
hours after Neary and Baldwin had a discussion about the Union's,
The 1ecomd fails to disclose that Neaiy con,oIted the responn'ent's^atto!neg concernang:
the prosecution of Geoige Arnold
HEARST MERCANTILE COMPANY 1361
organizing efforts, and both were discharged abruptly in the middle of
the day. Arnold, who likewise should-have been'discharged if Neary
were purging his staff, was allowed to remain until the' end of the
month. -
The respondent contends, however, that it had no knowledge of the-
union-membership and activity of Gervasi and Trucano. The findings
above recited amply refute this contention. It seems incredible that a
matter so directly affecting the respondent as the organization of its.
employees, and of such widespread notoriety in a small community,
could escape the respondent's attention. Neary admitted, after many-
equivocations, that he had heard rumors casually from different
people, whose names he could not recall, that they were organizing a
clerk's'union in Lead, but that there were no definite rumors that the
respondent's employees were involved. Since the respondent's store
was the only large store in Lead employing clerks, it appears that any
such -organizational activity would necessarily involve them. More-
over, Neary's requests for information concerning union organizers
during the summer of 1940, as stated above, shows that he was on the
alert for union organizational efforts among his employees.21, We find,
as did the Trial Examiner, that the respondent knew of the union mem-
bership and activities of Gervasi and Trucano before their discharge.
Upon the entire record, we find, as did the Trial Examiner, that the
respondent discharged Gervasi and Trucano because of their union
membership and activity, thereby discouraging membership in the
Union and interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occur-
ring in connection with the operations of the respondent described in
Section I above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free`flow of
commerce.29
"'Neaiy's hostility tonnaids the Union was demonstrated at the hearing when he admitted"
ti•at he thought "the management , or the way unions are run . . ale detr . mental" and
that he would do anything in his power to prevent unions from organizing among the
respondent 's employees ,
19 N. L. R B . V. Robert S Green, Incorporated, 125 F ( 2d) 485 ( C C A 4 ), enf g Matter
of Robert S Green, Incorporated and United Construction Workers Oiganizuig Committee,
33 N L R . B. 1184 ; N L R B v Suburban Lumber Company , 121 F . ( 2d) 829 (C C A 3),
mod Matter of Suburban Lumber Company and International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America , Local Union No 67G, 3 N L R B. 194;
Matter of M B Blatt Company and Retail Clerks International Protective Association,
Local No 1358, affiliated with the A F of L, 38 N L R B. 1210; Matter of The May-
Department Stores Company , doing business as The May Company and Retail Clerks
International Protective Association , Retail Temtile Clerks, Local Union No •4511, A F of L
et al , 39 N L R B 471
487498-42-vol. 44-86
- 1362 DECISIONS- OF • NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in certaiii unfair
labor practices , we shall order it to cease and desist from such practices
and to take certain affirmative action which we deem necessary to
effectuate the policies of the Act.
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of Francis Gervasi and George
Trucano. We shall , therefore , order the respondent to offer Francis
Gervasi and George Trucano immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights or privileges . We shall also order that the
respondent make Gervasi and Trucano whole for any loss of pay they
may have suffered by reason of the respondent 's discrimination against
them, by payment to each of them of a , sum of money equal to the
amount that each normally, would have earned as wages from January
31,1941 '30 to the date of the offer of reinstatement , less his net earnings
during such period.31
The views of Neary on unionism coupled with his acts - in the past
reveal a purpose on the part of the respondent to defeat the basic pur-
poses of the Act and the right of its employees to form . or join labor
organizations . An order narrowly limited to one,type of unfair labor
practice may be circumvented or evaded by a different type of unfair
labor practice . In order therefore to make effective the interdependent
guarantees of- Section 7 of the Act, to prevent unfair labor practices
and thereby to minimize industrial strife which burdens and obstructs
commerce and thereby to effectuate the policies of the Act, we shall
order that the respondent cease and desist from in any manner inter-
fering with the rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local Union #22417, Black Hills Mine & Mill Workers, affiliated
with the A. F. of L., 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 Francis Gervasi and George Trucano, thereby discouraging mem-
30 Gervasi and Trucano received payment to January 31 , 1941, at the time of their
discharge.
31 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the discrimina-
tion,and the consequent necessity of his seeking employment elsewhere. See Matter of
Urossett Lumber • Connpanylandhuseited -Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Logal f590, 8 N L R. B. 440
HEARST MERCANTILE- COMPANY 1363
bership in Local- Union #22417 , Black Hills Mine & Mill Workers,
affiliated with the A. F. of L ., the respondent has engaged in and is
engaging in unfair labor practices , within the meaning of Section 8 (3)
of the Act.
-3. By interfering with, restraining , and coercing is employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respondent
has engaged in and is engaging in unfair labor practices , within the
meaning of Section 8 ( 1) of the Act.
4. The aforesaid unfair labor practices-are unfair labor practices af-
fecting commerce , within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and , pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Hearst Mercantile Company, and its officers, agents, suc-
cessors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Local Union #22417 , Black Hills
Mine & Mill Workers , affiliated with the A. F. of L ., or any other labor
organization of its employees , by discriminating in regard to hire or
tenure of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self ,organization , to form,
join, or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act:
(a) Offer to George Trucano and Francis Gervasi immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
(b) Make whole George Trucano and' Francis Gervasi for any loss
of pay they have suffered by reason of their discriminatory discharge
by payment to each of a sum of money equivalent to the amount he
would normally have earned as wages from January 31, 1941, to the
date of the respondent 's offer of reinstatement , less his net earnings
during the said period;
(c) Post immediately in conspicuous places in its store at Lead, South
Dakota, and maintain for a period of at least sixty ( 60) consecutive
days from the date of posting , notices to its employees stating: ( 1) that
the respondent will not engage in the conduct from which it is ordered
1364 DECISIONS . OF. NATIONAL LABOR RELATIONS BOARD
to cease and desist in paragraphs 1- (a) and (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order; and (3) that the respondent's employees
are free to become or remain members of Local Union #22417, Black
Hills Mine & Mill Workers, affiliated-with the A. F. of L., or of any
other labor organization, and that the respondent will not discriminate
against any employee because of his membership in or activity on
behalf of that organization ;
(d) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
At