Leggett's Department Store of Princeton, West Virginia, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1961

134 N.L.R.B. 1171 (N.L.R.B. 1961)

LEGGETT 'S DEPT. STORE OF PRINCETON, W. VA., INC. 1171
On March 20 , Michalski recommended to Girard that Elliott be discharged:
Over a period of the past several months R. Elliott , banbury operator, has
been careless in his work habits and attitude . During the past week on four
separate occasions it was necessary to reprimand Elliott about his improper
performance . The incident of not weighing his oil for his batches is one of
pure negligence and a repeated offense after verbal warning . The same day it
was necessary to reprimand him about his improper use of the air hose, and to
point out to him how unsafe this act was . On the next day Elliott directly dis-
regarded the previous days warning about weighing oil for his batches. That
same night he left his work station early in violation of operating rules. You
will note that on the 17th it was necessary to reprimand him for negligence in
his manner of handling a container of synthetic.
It seems to me and Dave that we have done everything in our power to get
this man to do his job right and to have a proper attitude . It has been
necessary under these circumstances for supervision to watch this man all of
the time and we just don 't have the time to do this. Something needs to be
done to correct this situation and I recommend that we let him go.
On March 21 , Girard replied:
I discussed with Mr . Cantwell your recommendation that Robert Elliott be
separated in light of his record today. He concurs and will join me in a recom-
mendation to Rehm in the morning. Unless you hear from me to the contrary
have the guard tell Elliott to report to Mr. Rehm office when he come to work
Wednesday.
Leggett 's Department Store of Princeton , West Virginia, Inc.
and United Store Employees Union , Local 347, Retail , Whole-
sale & Department Store Union , AFL-CIO. Case No. 9-CA-
2278. December 12, 1961
DECISION AND ORDER
On July 19, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed 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 McCulloch and Members Rodgers and Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions, and the entire record in this
I The Respondent excepted to the Trial Examiner 's finding that it had "conceded" that
it was engaged in interstate commerce within the meaning of the Act . It is a corporation
doing business in Princeton , West Virginia , operates a retail clothing store, has gross
sales of more than $500,000 per year, and causes to be shipped to West Virginia from
other States more than $100,000 worth of goods annually. We find that the Employer
meets the jurisdictional standards set forth in Carolina Supplies and Cement Company,
122 NLRB 288 , that we have legal jurisdiction , and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
134 NLRB No. 104.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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 , Leggett's Depart-
ment Store of Princeton , West Virginia , Inc., Princeton , West Vir-
ginia, its officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in United Store Employees Union,
Local 347, Retail , Wholesale & Department Store Union, AFL-CIO,
or in any other labor organization , by discharging , laying off, refusing
to recall, or in any other manner discriminating against employees in
regard to their hire or tenure of employment, or any term or condition
of employment.
(b) Interrogating employees concerning their interests in and in-
tentions with respect to joining the above -named Union, or any
other labor organization , in a manner constituting interference, re-
straint, and coercion within the meaning of Section 8(a) (1) of the
Act.
(c) Theatening employees with discharge , layoff, or other economic
reprisals to discourage membership in any labor organization.
( d) Engaging in surveillance of union meeting places.
(e) Promising or granting wage increases or other benefits for the
purpose of discouraging membership in any labor organization.
(f) Promulgating or enforcing discriminatory rules in order to dis-
courage membership in any labor organization.
(g) "Listening in" on telephone conversations of its employees in
order to discourage membership in any labor organization.
(h) Harassing employees in an effort to cause them to quit their
employment for the purpose of discouraging membership in any labor
organization.
(i) In any other manner interfering with, restraining , or coercing
employees in the exercise of the right to self-organization, to join or
assist the above-named or any other labor organization , to bargain col-
lectively through representatives of their own choosing , and to engage
in other concerted activities or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment , as authorized by Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1173
(a) Offer employees Anna Mae Winfrey, Brookie Vest, Janisse
Cline, Harold Phillips, Betty Stinnette, Martha Hedrick, and William
Hodges immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them and employee Betty Hammed
whole for any loss of earnings they may have suffered by reason of the
discrimination against them, in the manner set out in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary for the determination of the amount of back-
pay due and the right of reinstatement under the terms of this Order.
(c) Post at its Princeton, West Virginia, store, copies of the notice
hereto attached marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Company's representative, be posted by the
Company immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its employees are customarily posted. Rea-
sonable steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in United Store Em-
ployees Union, Local 347, Retail, Wholesale & Department Store
Union, AFL-CIO, or in any other labor organization of our
employees, by discharging, laying off, refusing to recall, or in
any other manner discriminating against employees in regard to
their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT, in order to discourage membership in the above-
named or any other labor organization: (1) Interrogate em-
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees concerning their interests in and intentions with respect
to joining a labor organization in a manner constituting a. viola-
tion of Section 8(a) (1) of the Act; (2) threaten employees with
discharge, layoff, or other economic reprisals; (3) engage in sur-
veillance of union meeting places; (4) promise or grant wage
increases or other benefits ; (5) promulgate or enforce discrim-
inatory store rules ; (6) promulgate or enforce discriminatory
store rules ; (6) "Listen in" on telephone conversations of our
employees; and (7) harass employees,in an effort to cause them to
quit their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condtiion of employment, as authorized by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer Anna Mae Winfrey, Brookie Vest, Janisse Cline,
Harold Phillips, Betty Stinnette, Martha Hedrick, and William
Hodges immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make them and Betty
Hammed whole for any loss of earnings they may have suffered
by reason of the discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of United Store Employees Union,
Local 347, Retail, Wholesale & Department Store Union, AFL-CIO,
or in any other labor organization, except as that 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.
LEGGETT'S DEPARTMENT STORE OF PRINCETON,
WEST VIRGINIA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1175
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been filed and served in the above-entitled case, a complaint and
notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the
above-named Respondent, a hearing involving allegations of unfair labor practices in
violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, was held in Princeton, West Virginia, on June 12, 13, and 14, 1961,
before the duly designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. A brief
has been received from General Counsel.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Leggett's Department Store of Princeton, West Virginia, Inc., is a West Virginia
corporation, operating a retail department store in Princeton, West Virginia. During
the calendar year 1960 the Respondent's gross volume of sales was more than
$500,000. During the same period its direct inflow of dry goods and wearing
apparel, in interstate commerce, was valued at more than $100,000.
The Respondent concedes, and it is found, that it is engaged in commerce within
the meaning of the Act.
11. THE CHARGING UNION
United Store Employees Union , Local 347 , Retail , Wholesale & Department Store
Union , AFL-CIO, is a labor organization admitting to membership employees of
the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
In June 1955, the Respondent's department store (one of a chain) opened for
business in Princeton, a small West Virginia town. Its employees have never been
represented by a labor organization. So far as the record shows no move toward
self-organization was begun until late in 1960. As soon as management became
aware of such efforts, a series of events, including discharges, occurred which Gen-
eral Counsel contends are violative of the Act.
The store occupies three floors. Its manager is E. G. Tolley; its assistant manager
L. G. Chilcote. During the period involved James White, James Laury, and Mary
Shoda were respectively in charge of the basement, main, and second floors. The
parties are in dispute as to the supervisory capacity of these three floor managers.
Adjacent to the Respondent's store is an A & P store; its workers were organized
by the Charging Union not long before the Respondent's employees held their first
organizational meeting. One of the leaders of the Union at the A & P store was
Gertrude Winfrey, sister of Anna Mae Winfrey, according to General Counsel the
first of the Respondent's employees to be unlawfully dismissed.
Although the Respondent denies either unlawful discrimination or interference
with its employees' organizational efforts, there can be no question but that Manager
Tolley viewed the campaign with more than casual concern. According to his own
testimony, when he first learned of the start of organization late in November he
told Chilcote, Laury, and White that the "Union boys" were "in town" and instructed
them to "Keep their eyes open." 1
Of prime bearing upon all issues, in the opinion of the Trial Examiner, is the
undisputed testimony of Assistant Manager Chilcote that early in December Tolley
told him: "We will not permit a union; we will not have a union; we will close our
doors first."
The complaint alleges and the answer denies that besides Winfrey the Respondent
unlawfully terminated the employment of six employees,2 caused the constructive
1 Thus, whatever legal conclusion is to be reached as to the status of Laurv and White,
Tolley's admission Indicates plainly that he considered both to be representatives of
management.
2 Brookie Vest, Janisse Cline, Harold Phillips , Betty Stinnette, Martha Hedrick, and
William Hodges.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff of another , and engaged in many and various acts of coercion designed to de-
prive employees of rights guaranteed by the Act. ,
B. The supervisory status of White, Laury, and Shoda
One of the questions raised by the complaint is whether the Respondent is to be
held accountable for certain action engaged in by these three individuals.
According to Tolley's testimony, each of these three individuals "looks after" a
a separate floor, and the various department heads and employees there working.
Each of them recommends to Tolley the number of "extra" employees who are
needed and are to be called in for work. Depending upon the season, there are from
10 to 20 employees on the upper or second floor; from 15 to 45 on the first or main
floor; and from 8 to 18 in the basement. They direct the work of employees in the
departments under them and transfer them from one department to another, on the
same or other floors, as needed. It is their responsibility to see to it that employees
wait on customers. They recommend to Tolley individuals whom they believe
should be promoted to the position of department heads.
While none of the three has the power to hire and fire, it is clear that each has the
authority to transfer employees, assign work to them, responsibly direct them, and
make effective recommendations regarding the hire, layoff, and recall of employees.
,In the opinion of the Trial Examiner, these factors amply establish that each of them
is a supervisor within the meaning of the Act, and it is so found.
C. Leggett's countermoves
Shortly after Tolley learned of the union activity Harold Leggett, secretary-
treasurer of the corporation, came to Princeton and for the first time since the store
opened made a speech to the assembled employees. Credible testimony establishes,
and the Trial Examiner finds, that in material substance Leggett told them: (1) He
was sorry they were not treated' properly; (2) beginning the first of the year their
hourly pay would be raised to a minimum of $1 and they would be given I day off
a week; and (3) while they could do what they thought best for themselves, he in
turn would do what he thought best for himself-even to closing the doors .3
Thereafter, about January 1, the Respondent in fact increased the hourly rate of
pay and reduced the hours of employment for its regular employees.
D. Treatment accorded Betty Hammed
While this employee was not actually discharged or laid off, as were others, the
Trial Examiner believes that an appraisal of Tolley's treatment of her over a period
of several months has significant relevance in determining his motive in terminating
the employment of other union adherents. Such appraisal also leads to the passing
conclusion that in this small West Virginia town, the presence of a deputy sheriff
serves as a more effective deterrent than a congressional act.
Since the fall of 1957 Hammed has been head of ,the accessories department on
the first floor, under Laury. She first learned of the organizational move on De-
cember 2 or 3 from fellow employee Janisse Cline, whose discharge is in issue.
With Cline and others she attended the first meeting, held Monday evening,
December 5.
Her apartment is directly across the main street from Leggett's store, and on her
way to the union meeting she saw Laury standing outside the store. She asked him
if he was going to the meeting. He told her he was waiting for someone from out
of town but to go ahead, adding that she had nothing to worry about because Tolley
was going to some "lodge" that night.
The next night, after the store closed , a number of employees met with the union
organizer at Hammed's apartment. Later the same night Hammed, the union
organizer, and Cline went to Laury's home in an effort to interest him in the or-
ganization. (This was the second visit of the union representative, Huffman, to the
Laury home. On the evening of November 30, Huffman, another union repre-
sentative, and an A & P employee who was an official of Local 347, had visited
3 Leggett himself was not called as a witness, and there is no showing that he was not
available. Tolley denied that Leggett referred to what others or he thought best and
what he would do about It; Laury admitted that Leggett said he would do what he thought
best for himself but denied that reference was made to shutting the store down For
reasons noted more fully below, the Trial Examiner can place no reliance upon the
testimony either of Tolley or Laury
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1177
Laury. The latter disclaimed any personal interest in organization but gave them
names of employees who, he said, might be.) As they left the house Laury told
the two employees to be "careful" and warned them that they were being "watched."
The following morning, December 7, Tolley called Hammed to his office,
shoved a chair toward her, and said according to her undisputed testimony:
Sit down, Mrs. Hammed, I am going to tell you just where you stand with
this firm . I know what's going on in this store, and I know your part in the
union. If you aren't happy with your work, you walk in that other office
this minute and get your pay.
She said she was happy in her work, whereupon Tolley replied, "Well, come the
first of the year, there is going to be changes made in this place." She agreed that
"we needed a few."
A few days later Tolley came to her department, shook his finger in her face,
and said: "Mrs. Hammed, I don't want you talking union or anything else in this
store. I want you to stick strictly to business." Her testimony is undisputed that
there are no working rules prohibiting conversation between employees.
Also early in December, according to the credible testimony of a former em-
ployee, Kathleen Bailey, who so far as the record shows was a disinterested witness,
she and three other office workers were instructed by Tolley to record the name
and telephone numbers of anyone calling employees by telephone from outside.
A few days later he further directed them to "listen in and write down the con-
versations of Mrs. Hammed." Uncontradicted is Hammed's testimony to the effect
that such "listening in" on her personal phone calls was reported to her by Assistant
Manager Chilcote. A volatile and obviously partisan witness for the Respondent,
employee Ballard, one of the office girls, denied being given such instructions but
so eager was she to create an impression of dynamic verity that she not only
repeated part of a conversation she "listened in" upon but also described the unseen
caller, who had asked to speak to Mrs. Hammed, as wearing a "smirky smile." It
is also undisputed that soon after this Hammed received a telephone call from
her brother, ordering Christmas gifts for the family. Immediately after receiving
this call, and although Hammed had not in the meantime related her brother's
conversation to anyone, Tolley came to her from the office and suggested that
she have her brother's packages gift-wrapped in another department-they were
busy in the regular gift-wrapping department!
On December 20 Hammed was given no pay, merely a slip indicating that
her preceding 2 weeks' salary had been applied to her charge account. A couple
of days later, while at lunch, Hammed told Laury of this matter. Laury said
that Tolley had told him to "put pressure" on her, also, but that he had declined
to do so. She suggested that she might consult a lawyer to find out whether
Tolley could legally withhold her entire pay. Later the same afternoon Tolley came
to her and offered her money from his own pocket, declaring that he did not
want her to leave the store without money.
On December 23 Tolley called her into the office, gave her $50 in cash, and
told her that the rest of her usual Christmas bonus would be accredited to her
account. Hammed's testimony is uncontradicted (in fact Tolley in substance
admitted) that the manager on this occasion said:
Mrs. Hammed, I am going to stick my neck way out. You know you have
to be here at the end of the year to get your department bonus, but I will
give you all this week's' pay and all next week's pay, taking us up to the first
day of January. I will go in the office now and make up your department
bonus if you will just walk through those doors and say "Good-bye" to us.
"Well, gracious," Hammed replied. Tolley thumped the desk and demanded:
"Are you going to accept?" When she hesitated, he said, "Well, Miss Hammed,
just remember that it's awfully nice to have a good recommendation when you
leave a place."
Hammed reminded him that she had worked on Princeton 's main street since
she was 17, and in effect suggested that a recommendation from him would be
surplusage. She said she would let him know the next day.
The next day Hammed gave him her answer:
Mr. Tolley, I didn't answer your question yesterday because I wanted to
consult with my lawyer first . . . . I am not quitting my job , I need it; and
you are not going to buy me out. The only way you are going .to get rid of
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me is to fire me, and I am going to be very careful not to give ' you any
reason to fire me.
Upon this Tolley displayed vigorous anger, and followed her to her department,
striking one hand with the fist of the other, and shouting that he was not going
to "tolerate" her and would fire her.
From this time on, and up to the time of the hearing , Hammed was not per-
mitted to go on buying trips for her department, a custom and privilege which
theretofore had been accorded her as well as all department heads.
Despite Tolley's threats and discriminatory treatment, Hammed continued to
permit employees and the union representatives to meet at her apartment. As
will be pointed out in a following section of this report, her apartment and visitors
were spied upon by Floor Manager White during this period.
Until the time of Tolley's futile efforts to get Hammed to quit she had been
allowed 2 weeks' vacation a year and had been permitted to go when requested.
On January 21, 1961, admitted by Tolley to be the slowest period of the year,
she asked to take one of her weeks of vacation, beginning January 23, in order
to have dental work done. He said she could take the time off, but without pay.
She demurred, pointing out that she could ill afford this arrangement. When
she reminded him that she had taken a week's vacation at this time the previous
year, Tolley said: "Well, the rules have changed," but would let her know later.
An hour or so after Tolley came to her and said:
I hear you are leaving us. I thought if you were, that I will pay you up until
February 1, and you can just go now.
She informed him that he had heard "wrong," and she was not leaving. Whereupon
Tolley declared, "Well, Mrs. Hammed, it's just a matter of time. Mr. Ed (Leggett,
the president ) told me he wasn 't tolerating you much longer."
A week later, on January 28, Tolley told her she could take a week's vacation
with pay beginning January 30.
On February 16, Tolley came to her department and demanded an inventory
which he said he had asked for the previous Saturday. She replied that she was
not aware of any such request, but would take it at once. While she "inventoried,"
Tolley stood around finding petty fault with minor details. Later the same morn-
ing Tolley suddenly pointed to a customer in the men's department, and ordered
Hammed to wait on the customer. Before she got there, another clerk served
the customer. As she returned to her department Tolley berated her: "See, Mrs.
Hammed, just five steps from you and you can't even see them."' Hammed
declined to let the manager know the effect of such treatment, and smiled at him
without speaking. Apparently infuriated, Tolley declared, "You just wait, young
lady, I am just waiting for the right time. I will fix you."
That noon, during her lunch, Hammed broke down, called Chilcote at his home,
told him that she did not want "them" to know she had "broken down," but
informed him that she had an appointment to see her doctor during the afternoon,
and would inform Tolley of the doctor's advice when she returned. Later in the
afternoon Hammed called Tolley, told him that the doctor had found her "nerves
all shot," and that he had prescribed medicine and ordered her to stay away from
the store for awhile. She asked Tolley if she could have the next week as part
of her vacation. He refused, saying that rules had been changed and there would
be no vacations until after June 1.
Hammed was unable to return to work until February 25, and was not paid
for the time she was out.
Late in the day on March 2, Tolley came to her department and demanded
an inventory of certain articles. Laury came up, and in his presence Hammed
informed the manager that Laury had instructed another employee in her depart-
ment to take this particular inventory. It is undisputed that Tolley countermanded
Laury's instructions and told Hammed to do the work.
The next morning Tolley called Hammed to the office and found fault with her
"selling percentage." When she reported back to her department Laury told her
that from "then on" she would be blamed for all mistakes in inventories in that
department. Shortly thereafter Laury came to her and said: "We are going to
start checking the cash registers every hour on the hour" and he would depend upon
her to remind him to do the checking. Later the same morning Tolley came to her
and complained about the manner of a certain sale.
That noon she again called her doctor and received the same advice and prescrip-
tion. She informed Tolley of the doctor's orders. She remained out of work, on
sick leave, until March 17.
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1179
On March 14 she called Tolley and asked- to have coffee with him at a nearby
restaurant. He met her as requested, and her following testimony is uncontradicted:
Well, I told him, I said, "Mr. Tolley," I said "I know you know these things,
but I want you to hear it from me." I said, "I know you have me slated as the
instigator in this union, but I am not. I didn't start it, although I was invited
to the first meeting and I went to the meeting and I joined." I said, "Mr.
Tolley, I am not sold on union or nothing," I said, "(but) the union is an answer,
and we need an answer in our store."
And I said, "I went to the meeting. I have turned my apartment over to a
meeting place, but" I said, "Mr. Tolley, had you treated us half right, I would
be standing up behind you just the way I am standing up for what I believe in."
He asked me how he had failed, and I said, "Well, Mr. Tolley," I said, "one
of the main things is we can't have confidence in you." I said, "You talk to me
about the other employees, and you talk to the other employees about me.
It gets back to us, we resent it; we even lose respect." He said, "Mrs. Hammed,
I am guilty," and I told him it was the worst case I knew.
... I asked him, I said , "Mr. Tolley, you have tried to buy me out. You
have tried to pressure me out. You are not going to do either."
Finally Tolley said, "Let's not decide it today. You go back to your doctor and
find out what he says." It was left that Tolley would call her later. He did so,
and she returned to work on March 17.
On March 31, at closing time, while at her work station , Hammed was surrounded
by a number of employees and supervisors, including White, Laury, and Shoda. One
of the employees advised her, "Mrs. Hammed , we think for your own good that you
best not show up for work in the morning." She replied, "If I live, I will be here at
10:00 o'clock tomorrow."
Supervisor Shoda then said , "Mrs. Hammed, we think for your own good you
better not show up in the morning; somebody has to give Mr. Tolley some backing,
and its either you or us."
Hammed replied that she would be there, and left the store.
That night Hammed telephoned her lawyer about this incident and he advised
her to call her father, who is a deputy sheriff. She did so.
Her father called on Tolley the following morning, and there was no further
incident until April 6, when Laury took her to Tolley's office and berated her because
of a visit he had received the night before from a Board representative, apparently
investigating charges previously made. Laury told her bluntly that if she remained
in the store after May 1, he would have her moved from the first floor. According
to the employee's undisputed testimony Laury also declared that "he wasn't putting
up with that."
On April 7, after Tolley also had been interviewed by a Board representative,
Hammed was again called to his office. Laury was also present. They again said
they understood she was leaving on May 1. She protested to the manager
that she believed she had made it clear to him, the afternoon they had discussed
the matter over coffee, that she had no intention of leaving, and began to cry.
Tolley then said, "Mrs. Hammed, is it worth it? Why don't you quit?"
She countered, "No, Mr. Tolley, I am not going to quit. Why don't you fire me?"
He said, "You know why I don't fire you."
She replied, "Well, then you know why I don't quit."
That noon her father, the deputy sheriff, missed her at the store and went up to
her apartment, where she was crying. He promptly returned to the store.
Although Tolley was significantly mute as to what the deputy sheriff said to him
on this occasion, it appears to have been effective.
Hammed's summary statement was simple and direct: "Everything seemed to be all
right after that."
And although, as above noted, Tolley had earlier told her that a new rule pre-
vented her from having her second week's vacation until after June 1, she was in
fact given such vacation in May?
4 In large part Hammed's account of the treatment accorded her is uncontradicted and
unchallenged . Some of it is fully supported by the testimony of Assistant Manager
Chilcote, for whose forthrightness and convincing testimony the Trial Examiner has
genuine respect. In marked and visible contrast to Tolley's almost constant display of
discomfiture during the 3 days of hearing, whether on the stand or sitting beside his
counsel, Chilcote stood while testifying , calmly facing Tolley, and in manner and voice
gave the impression of a man unafraid to relate the truth , as he saw it, whatever might
be the eventual retaliatory treatment of him by higher management.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Surveillance
The credible and undisputed testimony of several witnesses is to the effect, and the
Trial Examiner finds , that after Hammed permitted her apartment to be used as a
meeting place Floor Manager White watched the entrance on a number of occasions
from his parked car or while driving slowly back and forth in front of it, and was
seen to be making notes.
,It is likewise undisputed and found that White, after one such occasion, asked em-
ployee Phillips, who worked under him, "Did you sign a card the other night at Mrs.
Hammed's apartment?" and then named several who were there.
Such conduct, on the part of a supervisor, clearly constituted unlawful surveillance.
F. Other interrogation
A few days after the first union meeting on December 5, Tolley asked employee
Foy if anyone had called on her the night before. When she replied that she
did not know what he was talking about, Tolley said, "Yes you do. They come in
two's and three's." When she then said she thought she knew what he was re-
ferring to and asked if he expected her to be visited, he answered, "Yes, I do.
Why do you think I have these dark circles under my eyes? I can't sleep at night." 5
G. The discharge and other terminations of employment
1. Anna Mae Winfrey
Winfrey was one of the first employees hired by the Respondent, having gone
to work in May 1955, before the store actually opened. She was summarily dis-
charged by Tolley on December 6, 1960, the morning after she had attended the
first union meeting.
As noted in section A, above, Anna Mae's sister, Gertrude, was an active mem-
ber of the same union at the neighboring A & P store. Contrary to Tolley's
denial, the Trail Examiner believes that before firing Anna Mae he was well aware
of her sister's activity in the organization. Having observed the demeanor and
stature of the two witnesses the Trial Examiner without hesitancy accepts as true
Chilcote's testimony to the effect that Tolley told him he "figured Anna Mae knew
a few things about the union" because "of her sister being connected with it in the
A & P."
Even if Tolley's own testimony regarding her discharge is accorded face value,
it is plain that the reason he gave her at the time of her dismissal-and proffered
at the hearing-was wholly without merit and deserving of no credence. His claim
on both occasions was that she was terminated for failing to wait on a customer.
His other testimony, however, as to the actual circumstances, establishes that: (1)
the incident occurred before the store had opened; (2) Winfrey was in her own
department where she was supposed to be; (3) an early customer came-not to
Winfrey's department but that of another department head, Henry; (4) Henry at
the time was temporarily in Winfrey's department speaking to her; and (5) when
Tolley called their attention to the customer it was Henry who "went over" to
wait on the customer.
Tolley further admitted that in her 5 years of service he had never complained
about her waiting on customers His gratuitous claim, at the hearing, that Winfrey
was at the time "in charge of the floor," because Shoda was not yet there, in the
opinion of the Trial Examiner, was mere fiction. Chilcote, the assistant manager,
according to his own testimony was on the floor at the time.
Finally, Winfrey's credible account of Tolley's remark at the time of dismissal
leaves little doubt, in the opinion of the Trial Examiner, as to the real and unlawful
motive precipitating her summary discharge.
He told her, "I am going to get you, and then I will get Miss Henry. Then this
will shake up the rest of them."
The Trial Examiner is convinced, and finds, that the Respondent, suspecting Anna
Mae's union activity because of her sister's known leadership, discriminatorily dis-
charged her to discourage union membership, and thereby interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by the Act.
:The quotations are from Foy's credible testimony. Tolley's denial is not credited. As
previously noted , the manager was a wholly unreliable witness. His last remark to the
employee is consistent with Chilcote 's testimony quoting his superior as having said, at
this time, that he would do the "worrying."
LEGGETT 'S DEPT. STORE OF PRINCETON, W. VA., INC. 1181
2. Janisse Cline
Two or three days after Tolley fired Winfrey, according to his own admission,
he received a telephone call from a union representative regarding the "employee
that was discharged, was discharged the morning after a union meeting." He re-
ferred this representative, he said, to the "legal department." It is reasonable to
infer that Tolley himself received some cautionary advice from that department,
for his course of action thereafter, as demonstrated in his treatment of Hammed,
indicated a reluctance not previously displaced to engage in an act so overtly un-
lawful as the discharge of Winfrey. While questionable subtlety was revealed in
his efforts to force Hammed to quit, her undisputed testimony to the effect that he
told her she knew why he did not discharge her suggests that he also knew why
he did not.
Yet quite in line with his threat to Hammed he did make some "changes" the
first of the year. He not only failed to call for work a number of known union
adherents, but promoted to regular positions some well known to be antiunion.
Immediately precipitating such action, the Trial Examiner believes, was the filing by
the Union of a representation with the Board in Case No. 9-RC-4361 (not pub-
lished in NLRB volumes).
Notably among the number not recalled in January and thereafter was Janisse
Cline.
From July 1959 until January 3, 1961, Cline had worked full each week, and was
classified as a "regular extra." 6 Tolley admitted as a witness, that Cline was a
"nice sales lady, nice sales lady" and that he was satisfied with her work.
There is no question but that Tolley was aware of Cline's leadership in the
union campaign. As noted above, she accompanied Hammed and a union organizer
late in November to Laury's home in an effort to elicit his interest. Although at
first denying that he reported this incident to Tolley, when confronted with his
previously executed affidavit, Lawry finally admitted that he had "immediately" re-
ported the visit to the manager. And Cline's own testimony is undisputed that
shortly after her visit to Laury, Tolley came up to her after she had waited on
a customer, shook his finger in her face, declared that he knew she "had been
talking to employees about things other than business," and he "wanted it stopped."
A day or two later Tolley told her he "knew who had been going around to the
houses signing up people."
In the afternoon of January 3, 1961, Tolley told four employees in a group,
Cline, Howery, Hyatt, and Hedrick, all regular-extra employees, that although the
previous year after Christmas he had given them work, this year he would have to
"cut the hours." As Cline left the store that day she was told by Laury to come
in for work the following Friday, January 6. On Thursday, however, she was
called by an office girl and told not to come in until Saturday. Upon receiving
this word, which would have given her but 2 days of work a week instead of the
previously received 6 days, Cline applied at the unemployment bureau for "partial"
compensation. There she was advised to apply for "full-time" unemployment
compensation, and if she worked to report the amount received which would be
deducted from her next check. She followed this advice.
Saturday morning she was ill, and before the store opened so informed Laury
by telephone. He told her that it was just as well that she not come in, the
weather being bad.
Since that date, January 7, Cline has not been recalled for work. On the other
hand, employees Hyatt and Howery, in the same classification and told the same
by Tolley on January 3, have both been promoted to "regular" positions. (The
failure to recall Hedrick is covered in a later section.) Of significant bearing upon
the reason for not recalling Cline, in the opinion of the Trial Examiner, is the un-
disputed fact that employee Hyatt was one of the employees who, together with
supervisors, tried to prevent Hammed from coming to work. And Howery was a
witness for the Respondent at the hearing.
The Trial Examiner can place no reliance upon Tolley's varied, shifting, and in-
consistent claims as to why Cline has not been recalled. At one point he said she
was laid off. Later he said she was not. He claimed that 'he had not called her
back because when notice was received of her unemployment compensation applica-
9 Credible evidence shows that at least until early 1961 there were three classifications
of employees at the store : regular , regular-extra, and extra . Regular employees received a
weekly salary , as well as a higher purchasing discount and other privileges not accorded
the other classifications. Regular-extras ordinarily worked a regular schedule each week
and knew in advance such schedule . Extras were called in each day as needed.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion he decided she did not want to work-in effect had quit. Later he said she
was still on the list to be called.
From the preponderance of credible evidence the Trial Examiner is convinced
and finds that the Respondent has failed and refused to give employment to em-
ployee Cline since January 7, 1961, in order to discourage union membership,
and thereby hai interfered with, restrained, and ,coerced employees in the exercise
of rights guaranteed by the Act.
3. Brookie Vest
Brookie Vest is Cline's mother. She was hired in April 1960 as an "extra"
employee to assist the regular "alteration lady," Mrs. Absbire. Thereafter she
was called in 2 or 3 days each week until a few days after her daughter had called
on Laury regarding the Union. About December 5 another person, a Mrs. Saunders,
was employed for the purpose, so Vest was informed by Chilcote to do sales work
and help out in the alteration department during the Christmas rush as needed.
It is uncontradicted, however, that after Saunders was employed, and until the
last week before Christmas. Vest was called in less frequently while Saunders was
given her work. During the busy week-just before Christmas-Vest was given
somewhat more work, some 5 or 6 hours each day.
At closing time on Christmas Eve, Vest approached Chilcote and told him that
since it looked as if she was being "squeezed out," she was inclined to apply for
unemployment compensation. Chilcote agreed, saying that he doubted if they would
call her any more
Although Saunders has continued working, Vest had not been called in up to
the date of her testimony.
The Trial Examiner can accord small weight to Tolley's belated claim, on the
final day of the hearing (supported in part by obviously antiunion employees), that
Vest's work was unsatisfactory and for this reason had not been recalled. When
questioned on this point at the opening of the hearing by General Counsel, Tolley
said only that she was "laid off" because she wasn't needed, and when asked again
why she had not been recalled he said that "Mr. Chilcote told me that she told him,
that if she was not going to get any more work thanwhat she had been getting, that
she wasn't interested in working part time any more, and she would just go and file
for her unemployment."
In short, the Trial Examiner does not credit any of Tolley's various claims as
to Vest. It is concluded and found that the real reason for Tolley's failure to recall
Vest after December 24, 1960, was to discourage union membership. She had at-
tended the December 5 union meeting , had signed a union card, and Chilcote's
testimony establishes that management was aware of her "interest" in the Union?
Such discrimination constitutes interference, restraint, and coercion.
4. Harold Phillips
Although Phillips did not start working for the Respondent until the late fall
of 1960, he was told by Tolley in effect that he was being hired to learn the business
and would be "built up" for a higher job. He was listed as a "regular-extra," and
worked full time until Friday, December 30, 2 days after the filing of the union
petition, when Tolley laid him off. The next day he was recalled by Laury to fill
in a position in the stockroom which had become vacant. That this recall was but
a temporary expedient, however, is established by the fact that the following week
a wholly new employee was hired for this job and Phillips was let go without further
recall.
Management well knew of Phillips' activity in the Union. Chilcote testified cred-
ibly that he was told by Tolley that this employee had attended a union meeting and
by White that he had signed a union card. Undisputed, also, is Phillips' testimony
that he was interrogated by White about his signing a card and as to whether he
knew the then stock clerk had signed.
Under all the circumstances, including the untrustworthiness of the testimony
of witnesses Tolley and White, the Trial Examiner cannot believe the manager's
claim that Phillips was finally let go because he had said he was not "interested" in
the stockroom work, and that there was no other work for him. Phillips flatly
denied having told anyone that he did not want such work, and the claim of Tolley
is inconsistent with Tolley's early testimony that the employee was hired to "learn
the business."
70f additional bearing upon the Respondent's motive, the Trial Examiner believes, is
Vest's relationship to Cline , known by Tolley to be a union leader.
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1183
Contrary to Tolley's fabricated claims, the Trial Examiner concludes and finds
that Phillips' termination was of the pattern designed by Tolley to rid the store of
known union adherents, and that he actually was laid off and not recalled in order
to discourage union membership, thereby interfering with, restraining, and coercing
employees in the exercise of rights guaranteed by the Act.
5. Martha Hedrick
It appears that this employee had previously worked for the Respondent and
in October 1960 was solicited by Laury to apply to Tolley for the job at the candy
counter, then open. She did so, was hired by the manager, and worked fully each
day thereafter until January 10, 1961.
As noted in the section regarding the case of Janisse Cline, it is undisputed that
on January 3 a group of four girls, including Hedrick, were told by Tolley that
this year he would be unable to give them as much work as the previous year. She
continued to work, however, until January 10, when she asked for and obtained
Tolley's permission to be off the following day to go to the dentist. The manager
also told her that if she did not feel well not to come in on January 12. She called
in on Friday, January 13, and was told not to come in because of the bad weather.
On Monday and Tuesday of the following week she was again told not to come in
because of the weather. She continued such futile calls for the next week or two,
and finally gave up. The last of January she had occasion to go into the store and
was asked by Tolley why she was not working. She replied that she had not been
told to come in. Tolley said that the office girls were supposed to call her, but
there the matter was left. He did not tell her to come in to work and she has not
been recalled since then.8
Not only because his testimony generally was unreliable, but also because that
relating to Hedrick was so confused and contradictory, Tolley's account of his failure
to recall Hedrick is not credited by the Trial Examiner. At first he said she was
"discharged, after [a] certain time. I don't know when it was." He said he dis-
charged her, "because we thought-in the first place she wasn't keeping a nice, neat,
clean department." Shortly thereafter he was asked: "Did you tell her she was
terminated or discharged?" He replied: "I don't know exactly-I don't remember;
I assumed that I did, I don't remember if I did . . . I don't recall. I don't recall;
but I do-I do most of it, so I assume that I did."
About the one thing Tolley remembered, it appears, was that since she left to go
to the dentist she had not been working.
While Chilcote's testimony, which the Trial Examiner has heretofore found to
be generally credible, corroborated Tolley's claim that Hedrick did not keep her
department as clean as it might have been, it is clear from his testimony that he did
not lay her off for this or any other reason.
And contrary to Tolley's denial, the Trial Examiner believes Chilcote's testimony
to the effect that the manager told him the union representative had been in the
store talking to Hedrick and that "she must be interested" in the Union. In fact
Hedrick did sign a union card at Hammed's apartment, and it is undisputed that
in December Laury, who was in charge of her work, told her that he knew who
the "main ones" in the Union were and warned her to "think twice" before she
signed, for it would be hard for her to get another job if fired.
In short, the Trial Examiner is convinced and finds that the termination of
Hedrick's employment is of the same nature as that of Cline. Both employees were
well known by Tolley to be active union adherents, and were discriminatorily re-
fused recall, while the two antiunion employees, Hyatt and Howery, were not only
recalled but given regular jobs. Such discrimination was for the purpose of dis-
couraging union membership and interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by the Act.
6. Betty Stinnette
Stinnette is an employee of long service with the Respondent, having first been
employed in June 1955. Although it appears that she left voluntarily for certain
periods, she was recalled and worked steadily from May 1960 until January 7, 1961.
She was a "regular-extra."
On her last day she was told by Chilcote that the Company was going to start
"dividing" time equally, but that she would be called to come in the following Friday,
January 13. On the latter date, however, she was called by an office clerk, informed
she would not be needed that day, and would be called when the need arose.
$ Hedrick's testimony regarding these matters is not contradicted.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Up to the time of the hearing she had not been called in for work.
Tolley's testimony regarding the failure to recall Stinnette is quite as confused
and contradictory as that he gave regarding other employees previously noted. At
first he said he laid Stinnette off because "in January our business gets slow and
bad." Immediately thereafter he said , "She asked to be laid off; she asked to be
be laid off." Then he admitted that no attempt had been made to recall her, al-
though others in her department were recalled.
Later he declared that Stinnette was not given work because business had dropped
off, because the weather was bad , and because he heard she had gone to join her
husband in Norfolk , Virginia.
The fact is , however, that Stinnette did not go to Norfolk until the middle of
February, more than a month after she was promised recall.
Tolley's confused testimony permits no credence to be attached to it.
Stinnette not only attended the first union meeting, but signed a card and went to
meetings at Hammed 's apartment-which meetings , as had been found , were spied
upon by White. Chilcote, as a witness , establishes that management was aware
of her interest in the Union.
The Trial Examiner is convinced , and finds, that Stinnette , like other known
union leaders and adherents , was discriminatorily deprived of employment on and
after January 13, 1961 , in order to discourage union membership and activity, and
that such conduct interfered with , restrained , and coerced employees in the exercise
of rights guaranteed by the Act.
7. William Hodges
Hodges worked for the Respondent during the Christmas season of 1959-60, and
was again hired in November 1960. Thereafter he worked regularly-even after
the Christmas rush-until January 28 , 1961, when he was laid off, being told by
Tolley on that day that another man was coming in the following Monday to take
his job . He has not been recalled.
Again the testimony of Tolley regarding a termination fails to be convincing.
He admitted that "extras" other than Hodges were not laid off, but continued work-
ing. On the first day of the hearing Tolley flatly denied that Hodges, shortly before
his layoff , was put on window-tramming , yet on the final day he claimed that the
new man , Ferguson , was hired to do this window -trimming because Hodges, who
had been trimming and helping trim , was "not the man" for the job.
Under these circumstances , the Trial Examiner can place no reliance upon
Tolley's testimony regarding Hodges.
Although Chilcote 's credible testimony establishes that before the layoff Tolley
had told him Hodges "was attending meetings of the Union ," it appears that he was
not otherwise particularly active , and Hodges himself testified that he did not believe
management knew he had signed a union card.
On January 25, 1961, Hodges attended the Board hearing in the representation
case referred to above, together with other union members who had been discrimina-
tonly terminated . It is undisputed that Tolley talked to him there, and it is reason-
able to infer that the manager saw him conferring with the union representative.
Three days later , at the end of the week, Hodges was summarily and without previ-
ous warning terminated . The Trial Examiner concludes and finds, therefore , that the
real reason for Hodges' dismissal was the fact that on January 25 Tolley became con-
vinced that he was a union adherent , and took the discriminatory action in order to
discourage union membership , thereby interfering with, restraining , and coercing
employees in the exercise of rights guaranteed by the Act.
8. Betty Hammed
On the basis of findings heretofore made as to the treatment of this employee,
the Trial Examiner concludes and finds that Tolley 's conduct was the direct cause
of her absences from February 16 to 25 and from March 3 to 17. By so treating
the employee as to require a doctor 's care and force her to remain away from
work during these periods , the Respondent clearly engaged in constructive layoffs
in violation of the Act . They were motivated by the Tolley 's overt efforts to dis-
courage membership in the Union , and were therefore unlawfuly discriminatory,
and constituted interference , restrain , and coercion of employees in the exercise of
rights guaranteed by the Act.
H. Summary conclusions
In summary, the Trial Examiner concludes and finds that , in addition to the dis-
criminatory terminations described above , the Respondent has interfered with,
LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 1185
restrained , and coerced employees in the exercise of rights guaranteed by the Act
by the following conduct , heretofore described:
(1) In the context of threatening to close the doors , Leggett's promise of benefits
during his speech to employees;
(2) In the same context the actual granting of pay increases and reduction of
hours;
(3) White's surveillance of Hammed 's apartment;
(4) Tolley's treatment of Hammed , including : ( a) On December 7 urging her
to get her pay and walk out, (b) prohibiting her from talking , (c) directing the
office girls to listen in on her telephone conversations , (d) on December 23 offering
her her pay to the first of the year if she would quit, (e) threatening to fire her when
she declined to quit, ( f) refusing to permit her to take a week's vacation in January,
as was customary , ( g) threatening to "fix" her when she declined to object to his
harassment on February 16, (h) permitting supervisors and employees to surround
her in an effort to get her to quit, and (i) on April 7 again urging her to quit;
(5) Laury's threatening to transfer Hammed because of a Board representative's
visit to his home;
1(6) Tolley's interrogation of employee Foy as to visits of union representatives;
(7) Tolley's threatening to get rid of other employees, at the time of discharging
Winfrey, to "shake up the rest of them";
(8) Tolley's prohibiting employee Cline from talking in the store;
(9) White's interrogation of employee Phillips as to the signing of a union card
by him and another employee; and
(10) Laury's warning of Hedrick not to sign a union card.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection 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.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirm-
ative action to effectuate the policies of the Act.
It will be recommended that the Respondent offer Anna Mae Winfrey , Brookie
Vest, Janisse Cline , Harold Phillips , Betty Stinnette , Martha Hedrick , and William
Hodges immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their rights and privileges , and make them and Betty
Hammed whole for any loss of earnings suffered by reason of the discrimination
against them , by payment to each of them of a sum of money equal to that which
he or she would normally have earned as wages, absent the discrimination, from
the date of layoff or discharge to the date of the offer of reinstatement ( in the case
of Hammed to the date of each reinstatement ), less their net earnings during said
period and in a manner consistent with Board policy set out in F . W. Woolworth
Company, 90 NLRB 289 , and Crossett Lumber Company , 8 NLRB 440.
Since the violations of the Act which the Respondent has committed are related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonable to be anticipated from its past conduct, the
preventive purposes of the Act may be thwarted unless the recommendations are
coextensive with the threat . To effectuate the policies of the Act, therefore, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Store Employees Union , Local 347, Retail, Wholesale & Department
Store Union , 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 employees,
thereby discouraging membership in the above-named labor organization , the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
630849-62-vol. 134-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining , and coercing employees in the exercise of 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 (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.]
National Bulk Carriers , Inc. and Universe Tankships, Inc. and
International Maritime Workers Union
Global Seamen 's Union and International Maritime Workers
Union
National Bulk Carriers , Inc. and Universe Tankships , Inc. and
Kenton G . Tibbetts. Cases Nos. f-CA-7194, 2-CB-2907, and
2-UD-91. December 12, 1961
ORDER DISMISSING PETITION FOR
DECLARATORY ORDER
Pursuant to Section 102.105 of the Board's Rules and Regulations,
Series 8, and Section 101.42 of the Board's Statements of Procedure,
the General Counsel of the National Labor Relations Board filed on
June 26, 1961, a petition praying for a declaratory order disposing
of the jurisdictional issue in the aforementioned proceedings. There-
after, on July 31, 1961, National Bulk Carriers, Inc. and Universe
Tankships, Inc., filed responses to the petition urging that the Board
not assert jurisdiction and that it dismiss the petition herein for
lack of jurisdiction. By letter dated August 10, 1961, received on
August 17, 1961, Global Seamen's Union also contended that the
Board had no jurisdiction. On August 30, 1961, the International
Maritime Workers Union filed a response and brief urging that the
Board assert jurisdiction.
The Board has duly considered the matter. It has decided that
its declaratory order rules, like those for advisory opinions, are de-
signed primarily to determine questions of jurisdiction by the appli-
cation of the Board's discretionary standards to the "commerce
operations" of an employer. However, there are situations where, be-
cause of the complex nature of the operation involved, or because of
the inadequacy of the record, the procedures contemplated by the
Board 's rules for declaratory orders and advisory opinions are diffi-
cult or impossible to apply. This is particularly true where the issue
is the assertion of jurisdiction over foreign flag vessels which almost
uniformly present involved legal and factual problems. Where, as
here, there apparently are complicated factual and legal issues, it is
desirable first to secure a complete record, based upon a full hearing.
134 NLRB No. 113.