Loveman, Joseph & Loeb

National Labor Relations Board - Board Decisions

May 22, 1944

56 N.L.R.B. 752 (N.L.R.B. 1944)

In the Matter of LOVEMAN, JOSEPH & LOEB and RETAIL CLERKS INTER-
NATIONAL PROTECTIVE ASSOCIATION, LOCAL 862
Case No. 10-C-1418.-Decided May 22, 1944
Mr. Mortimer H. Freeman, for the Board.
Leader, Hill-c Tenenbaum,, by Mr. Ben'Leader and Mr. Kenneth
Perrine, of Birmingham, Ala., for the respondent.
Miss Noma G. White, of Birmingham, Ala., for the Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on November 27, 1943, by- Retail
Clerks International Protective Association, Local 862, affiliated with
the American Federation of Labor, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Regional
Director for the Tenth Region (Atlanta, Georgia), issued its com-
plaint dated November 27, 1943, against Loveman, Joseph •& Loeb,
Birmingham, Alabama, herein called the respondent, alleging- that
the respondent had engaged in and was engaging in unfair labor prac-
tices 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 and notice of
hearing thereon 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) urged, persuaded, threatened, and
warned its 'employees to refrain from assisting, or becoming or re-
maining members of, the Union; (2) interrogated its employees con-
cerning their concerted activities; and (3) during August 1943, dis-
charged and thereafter refused to reinstate -Mae Burkett, Martha
Stewart, and Virginia Williams, because of their membership in the
Union and their union and concerted activities.
On or about December 1,, 1943, the respondent filed its answer, in
which it admitted certain' facts as to the corporate nature of its busi-
ness but denied that it had engaged in the unfair' labor practices
56 N. L . R. B., No. 141. -
752
LOVEMAN, JOSEPH & LOEB 753
alleged in the complaint. The answer further averred that the re-
spondent was not engaged,in interstate commerce within the meaning
of the Act, and denied that the Board had jurisdiction over it.
Pursuant to notice, a hearing was held in Birmingham, Alabama,
on December 13, 14, 15, 17, and 18, 1943, before Charles E. Persons,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board and the respondent were represented by counsel and the
Union by a representative, and all 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 beginning of the hearing the Board moved to amend the pre-
liminary paragraph of the complaint to take account of the new num-
bering in the latest edition.of the Board's Rules and Regulations. The
motion was granted over the respondent's objection. The respondent
,moved to amend its answer to correct its name. The motion was
granted. The respondent further moved that the complaint and each
separate allegation thereof be dismissed on the ground that the re-
spondent was not engaged in interstate commerce within the meaning
of the Act and that- the .Board therefore had no jurisdiction over it.
The motion was denied. The respondent moved that all witnesses be
excluded from the hearing room prior to testifying. The motion was
granted without objection, subject to the Board's established policy
which excepts complainants from the operation of the rule. At the
close of the hearing the respondent renewed its motion to dismiss the
complaint.. The motion was taken under advisement and denied in
the Intermediate Report. The Board moved to conform the pleadings
to the proof as to dates, names, and places, without in any way varying
the substantive matter of the complaint. The motion was granted.
During the course of the hearing, the Trial Examiner made rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. -
On January 25,-1944, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. In the Intermediate Report, the Trial Examiner found
that the respondent had engaged in and was engaging in certain unfair
labor practices affecting commerce, and recommended that it cease and
desist therefrom and take certain affirmative action. Thereafter the
respondent filed exceptions to the Intermediate Report and a support-
ing brief. Oral argument before the Board at Washington, D.. C.,
originally requested by the respondent, was thereafter waived by all
parties. ,
587784-45-vol. 56-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, and the entire record;in the case, and finds that
the exceptions are without merit insofar as they are inconsistent with
the findings, conclusions,,and order hereinafter set forth.
Upon the entire record in the case, the Board, makes the, following :
FINDINGS OF FACT
- I. THE BUSINESS OF THE RESPONDENT
- The respondent,- a corporation organized under the laws of the
State of New York, has its principal office and place of business in
Birmingham, Alabama, where it. operates a. retail department store.'
It purchases, sells, and .distributes a general line of merchandise, in-
cluding ladies' ready-to-wear coats, suits, and dresses'; men's and boys'
clothing', hats and furnishings; drugs; household furnishings; radios;
and furniture. Numerous nationally known brands of merchandise
are handled, such as Arrow collars and shirts, Coty perfumes, Hart
Schaffner & Marx men's clothing, Freeman shoes, Stetson hats, Man-
hattan shirts and shorts, and Gotham, Gold Stripe, Kayser, Phoenix,
Belle Sharmeer, and Art Craft women's hosiery. The respondent,
sells most of its line of women's shoes under its own brand. names.
The respondent leases some departments,, including candy, furs,
women's shoes, refrigerators, and radios, and furnishes the lessees with
space, 'fixtures, and some services. Although the respondent neither.
hires nor discharges the employees of the leased-departments, it has
general control of such employees, reserves a veto power-on their
hiring, and may require discharge for reasons of store discipline.
Employees in the leased departments are paid by the respondent, and
such payments are charged back to the respective lessees. Under the
terms of, the leases the respondent receives a commission on gross sales
in the leased departments. The respondent normally has about 80Q
employees, but during the Christmas rush season this number in-
creases to from 1,100 to 1,150. These totals include employees in the
leased departments.
During the 12 months preceding the hearing before the Board the
respondent purchased merchandise valued at approximately $4,000,-
000, of which more than 50 percent was transported iii interstate com-
merce to the respondent's store from points outside Alabama. During
the same period the respondent's. gross sales amounted in value to
between $6,000,000 and $8,000,000. _ This total included mail order
sales valued at approximately $250,000, of which,approxiinately $4,000
to $5,000 represented sales made to custoniers located outside Alabama.
The respondent advertises in three Birmingham papers, and through
the medium of three Birmingham radio stations.
LOVEMAN, JOSEPH & LOEB 755
The respondent contests the jurisdiction of the Board on the ground
that the respondent "is not engaged in interstate commerce within the
meaning of the Act." The applicability of the At to a department
store was, judicially approved in National Labor Relations Board v.
J. L. Hudson Company, where the Court said :
Both the rationale and the decision in the Supreme,Court7 cases•
which' have been cited, and in others which could be-adduced,
gainsay the argument of the respondent that the mere fact that it
is a retailer of merchandise,. conducting business as it does,
exempts the respondent from the coverage of the National Labor
Relations Act. Strife with the employees, causing cessation or
curtailment of its vast operations, could burden or obstruct inter-
state commerce as clearly as could industrial strife in enterprises
repeatedly held subject to,the National Labor Relations Act.'
The respondent further contends that "it was the intention of the
Act that the Board should take jurisdiction in the event that there
would likely be a stoppage which would directly affect commerce,"
and that such a stoppage is not proved by the record . This contention
is answered by a statement, in a recent case relating to a department
store, where the Board said :
The Board's jurisdiction is not dependent upon the imminence of
actual interruption. Since the purpose of the Act is to protect
and foster interstate commerce, the Board's jurisdiction attaches',
before actual industrial strife materializes to obstruct that com-
merce. Our position has been consistently upheld by the Supreme
Court of the United States?
We find, as did the Trial Examiner, that the respondent is subject
to the Board's jurisdiction.
II, THE ORGANIZATION INVOLVED
Retail Clerks International Protective Association,, Local 862 is a
labor organization, affiliated with the AmeFican Federation of Labor,
admitting to membership employees of the respondent.3
1135 F. (2d) 380, 383 _(C. C A. 6), pert denied, 320 U. S. 740. See also Matter of
Hirsch Mercantile Company, 45 N. L. R B. 377; Matter of M. E.' Blatt Company, 49
N L R B. 1055 '
2Matter of J. L. Brandeis & Sons, 53 N. L R. B. 352, See also N. L. R. B. v. Bradford
Dyeing Association, 310 U S 318; Consolidated Edison Company v. N. L. R B, 305 U. S.
197; N. L R. B. V. Fainblatt, 306 U. S. 601 ; N. L. R. B. v. Alloy Cast Steel Co, 117 F.
(2d) 302 (C. C A. 6).
a The respondent contends that "in the instant case there is no Union under the terms of
the Act. Local No. 862 has never been certified as a bargaining agent, and it was decided
by the A. F. of L . representative that said Union had not even complied with the laws of
the State of Alabama ", We find no merit in these contentions.
756 DECISIONS OF 'NATIONAL LABOR' RELATIONS BOARD- -
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The record does not reveal the exact date when the respondent's
employees first began to organize. It is clear, however, that such
activity was in progress early in April 1943. In June, Noma G.
White, a general organizer 'and the Union's representative of record
in this proceeding, came to Birmingham. at the request of some of the
respondent's employees to assist, in the organizational activities.
Thereafter employee signatures to authorization cards were openly
solicited in the respondent's store and elsewhere. The Union has a
regular organization for the respohdent's-employees; of which Helen
Bell, a saleslady in the respondent's-boys' department, is president.
Both Emeline Armstrong, an employee in the wash goods depart-
ment, and Mae Burkett, a saleslady: in the silk department, testified
that. on July 7, 1943, J. S. Weed,4 department manager over each of
them, asked Burkett whether she was a member of the Union. Bur-
Nett replied that she was. Weed then asked Burkett whether her
husband approved of her union activities, and Burkett replied that
he did 100 percent. Weed was not called as a witness, nor was any
showing made that he was unavailable. The testimony of Armstrong
and Burkett thus stands unrefuted. Like the Trial Examiner, we
credit it and find that Weed made the statements • attributed to him
by Armstrong and Burkett.
In' July 1943, Weed also questioned employee Mattie Lou Moss
relative to her union activities, asked her to resign from the Union,
told her that those who joined the Union would probably be let out,
and thereby caused her to stop attending union, meetings. At a union
meeting which Moss later attended, union buttons were distributed.
Moss told Burkett of her encounter with Weed and asked Burkett, with
reference to wearing the union button, "What would you do?" Burkett
advised Moss: "If it is going to cause trouble I wouldn't wear it."
Moss then said, "I would appreciate it if you would tell Miss White
that I am not coming to any more of the meetings, but I am going to
keep my dues paid.. ... I am not going to any more of the meet-
ings because I am afraid Mr. Weed is -watching me." We agree
with the Trial Examiner in crediting this testimony of Moss and
Burkett.5
Employee J. L. Barnes, whose duties consisted of attending to the
freight room door and assisting in checking in freight, joined the
4 Also designated in the record as G F Weed
' Moss was a reluctant Board witness On cross-examination , counsel for the respondent
elicited some contradictory testimony from her We,agree with the Trial Examiner that
such testimony does not impair the credibility of the testimony relied on above.
LOVEMAN, JOSEPH & LOEB 757
Union about the first of July 1943. He thereafter attended -union
meetings, at which he addressed the assembled employees. At the
union meeting held on July 15 Barnes spoke about wages and the
benefits of having a union. The following day he was called to the
office of Joseph H. Loveman, the respondent's president. In the office
he also found Florence B. Harris, superintendent and personnel head
of the store and an official of the respondent. Loveman asked Barnes
why Barnes was trying to run his business. Barnes disclaimed any
such intention. Loveman then said : "Oh, yes you are too. By
proxy." Barnes understood this as a reference to the union meeting
and his speaking there, and replied: "Mr. Loveman, I had just as good
a right to go to that meeting and express my opinion as any other
citizen." Although Loveman then said that 'he was not interested
in what was done at union meetings, he asked Barnes : "What-could
we do to better our employees, treat them better or make them feel
better?" Loveman gave no explanation of his questioning of Barnes
or what occasioned it. Harris, when asked whether Barnes' account
was correct, answered : "Insofar as I remember, it'was, yes'sir." Under
these circumstances we credit the testimony of Barnes, as did the Trial
Examiner, and find that Loveman had reference to Barnes' talk at
the union meeting.
Martha Stewart, the oldest wrapper at the wrapping station on the
fourth floor, testified that on July 21, 1943, she, Virginia Williams,
and another employee were wearing union buttons; that, Loveman
came to the wrapping station,' observed the buttons, and, after leaning
over to examine the inscription on one of the buttons, asked a fourth
employee after a "good long time" : "Where is your button?"
A week later, on July 28, 1943, Stewart was summoned,to Superin-
tendent Harris' office. After questioning her about a remark which
she had made to a friend about the Union during working hours, Harris
said : "I am disappointed in you, Martha. Why are you trying to
organize the store? . . . If you wanted more money, why didn't
you come to me, and I would give you a transfer." According to
Stewart's testimony, Harris also reminded her of past favors, and
finally' asked if Stewart was going to tell the Union about the- inter-
view. Harris did not refute these statements of Stewart. We find
Stewart's testimony worthy of credit, as did the Trial Examiner.
On or about August 10, 1943, a conference took place between Love-
man, Harris, and certain other representatives of the respondent on
the one hand, and two discharged union members (Williams and
Stewart) and certain outside representatives of the Union on the other
hand. On being asked to reinstate the two discharged employees,
i
758 'DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Loveman refused with the statement, according 'to the uiicontra,dicted
testimony of Williams, that to grant reinstatement
would acknowledge that I [Loveman] was in favor of the -Union,
which I am not, and they have told it in the store that we cannot
fire you for belonging to the Union, and I just am not going to put
these girls back to work.('
The respondent in its brief before the Board admits that Loveman
made the statement substantially as attributed to him by Williams but
contends that Loveman was motivated by a desire to be "impartial"
and to,avoid "leaning" toward the, Union. We credit Williams' testi-,
mony, as did the Trial Examiner, and find no merit in the respondent's
contention.
We find that the respondent's conduct, as evidenced by the above-
described acts and statements of Loveman, Harris, and Weed, has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
There, was- testimony that during the Union's organizational cam-
paign, the respondent advised its employees that it would not permit
union activities or discussions during work, and that it thereafter
questioned certain employees, to ascertain whether or not they had
violated this prohibition.' The Trial Examiner found that, the re-
spondent's conduct in this respect did ,not constitute an unfair labor
practice. The Union filed no exceptions to this finding. We agree
with the Trial Examiner.7
B. The discriminatory discharges and reBasal to reinstate
(1) Williams
Virginia Williams was employed as a cashier by the respondent for
brief periods from May 1942 through. January 1943. Hearing of a
vacancy at the store in February 1943, Williams applied to Harris for
the, position, and, according to her own testimony, at the same time,
told Harris that she then had' a permanent position elsewhere which
she would not care to give up for temporary employment with'the re=
spondent. Harris admitted that Williams made this statement to her.
According to Williams' further testimony, Harris told her in reply
that she was being hired as a permanent employee. Harris testified
'6 Stewart gave a substantially similar version of Loveman's statement, testifying that
Loveman said : -
I just can't possibly put these girls back to work on account of the rumor that has
gone around this week that I would be forced to put them back to work. If I do,
that would show I was leaning toward the Union, and I can't do it.
a See Matter of Marshall Field & Company, 34 N. L. R B. 1 ; Matter of Peyton Packing
-Company, Inc., 49 N. L. It. B 828; Matter of General Motors Corporation, Allison Divtision,
a corporation, 51 N. L. R. B. 1116.
(.
LOVEMAN, JOSEPH & LOEB 759
that she told Williams the vacancy was temporary, and for the duration
of the absence of Kathryn Scairo. The Trial Examiner credited
Williams and discredited Harris in this respect. We do likewise and
fiud:that Williams was hired as a permanent employee. On February
17, 1943, Williams began work as a cashier and wrapper at the wrap-
ping station in the house' furnishings department on the fourth floor.
Williams signed-,a union authorization card on May 7, 1943. There-
after she attended union meetings, gave "pep talks" on one or two
occasions,' served as a member of the organizing committee,, and
actively solicited among the respondent's employees, securing signa-
tures on 10 or 15 authorization cards. Beginning in the latter part
of July 1943 she wore a union button regularly while at work. The
button was conspicuous, being brightly colored, about an inch and a
quarter in diameter, and bearing in bold lettering the legend : "Com-
mittee,,A. F. of L." As found above, on July 21, 1943, Loveman ob-
served Williams wearing her button at work. Harris admitted that
she thought all the employees at Williams' station wore unions buttons.
On August 2, 1943, after closing time at 9 p. m., Williams was called
to Harris' office and informed by Harris that she was discharged be-
cause Scairo was returning to her former position.8 Harris then gave
Williams 3 days' pay in lieu of the vacation due her for 6 months'
service, and told her that if there was "need" for-her services during
the holiday season she would be called.
At a conference on or about August 10, 1943, as found above, Love-
man was requested by a representative of the Union to reinstate Wil-
liams. Loveman's reply was that he was not in favor of the Union,
of which Williams was an openly active member, and that because of
the rumor among the employees that they could not be discharged for
belonging to the Union he would not reinstate Williams. Loveman
thus made it clear that Williams would have been reinstated but for
her union affiliation.
Harris admitted that the respondent hired two cashiers since Wil-
liams' discharge. Moreover, Scairo at the time of the hearing had
been transferred, creating another vacancy for Williams. , In addi-
tion, the store frequently advertised for employees during this period,
and the evidence shows that wrappers and cashiers had been scarce
"for the past two years." However, Williams was not recalled.
Like the Trial Examiner, we are convinced that the respondent's
conduct in discharging and refusing to reinstate Williams was dis-
criminatory. Although Williams' work was not perfect, site had never
been' criticized, for inaccuracy,' nor was she shown, to have been less
efficient than any other employee. \ Under all the circumstances, we
8 Barris also told Williams at that time that there was no other place available for her.
Inasmuch as we , like the Trial Examiner , find IIarris generally incredible as well as biased
against the Union, we do not credit her statement.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Williams was a satisfactory permanent employee. However,
by August 2 the respondent had learned of Williams' union activity.
The respondent thereupon seized upon the opportune return of Scairo•
to rid itself of this aggressive union adherent. Thus, despite a con-
stant turn-over among the 800-odd employees in the respondent's store,
Williams was summarily discharged, allegedly for lack of ' available
work, by Superintendent Harris, who, we have found, had shown her
union hostility less than a week before in an interview with employee
-Stewart. Moreover, a week later Williams was refused reinstatement
by Loveman, the respondent's president, solely on the ground of her
union affi]iation. Thereafter, despite Harris' prior promise to recall'
her and although at the time of the hearing the respondent was in
the midst of the holiday rush, Williams was never recalled for any
of the suitable vacancies shown to have occurred.
The respondent contends in its brief before the Board that it did
not discriminate against Williams, since it preferred Scairo for the
position Williams was filling at the time of her discharge, and since
there was no evidence of any subsequent vacancy for which Williams.
was qualified prior to the time when she became too ill to work. We
are not satisfied from the record that the respondent preferred Scairo
to Williams for reasons not connected with the latter's union activity.
In addition, the respondent admits that, prior to the hearing, it was
unaware of Williams' all health. The respondent's failure to consider-
Williams for any vacancies after her discharge thus can not be at-
tributed to this reason. Accordingly, we are unable to credit the re--
spondent's alleged explanations for its conduct toward Williams, par-
ticularly in view of Loveman's discriminatory refusal to rehire her at.
the August 10 conference.
Upon the entire record and particularly in view of the respondent's.
anti-union conduct in other respects, we find, as did the Trial Exam-
iner, that the respondent discharged and refused to reinstate Virginia
Williams because of her membership and activity in the Union, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act. _
(2) Stewart
Martha Stewart was hired by the respondent in 1938 as a wrapper.
Her employment was not continuous, but she nevertheless acquired a.
wide experience by working in every department of the store except,
two. Since the early part of 1943 her work station was in the house,
furnishings department on the fourth floor, where Williams also
worked prior to her discriminatory, discharge. In the summer of
1943 there were several, other wrappers besides Stewart at this sta-
tion, and Stewart, as the oldest employee there, was recognized as the
LOVEMAN, JOSEPH & LOEB 761
head of the station. As such, it- was her duty to advise and instruct
the other wrappers.
Stewart signed a union' authorization card on May 22, 1943. She
attended every union meeting thereafter, spoke at several meetings,
and was a member of the organizing committee. She openly solicited
the employees to join the Union, and estimated that she secured 10 or
15 signed cards. She wore the conspicuous union button constantly
while at work. As found above, this fact came under the observation
of Loveman. Both Aileen Anderson, who was in charge of all the
wrappers in the store, and Harris admitted at the hearing that they
too had seen Stewart wear her union button. Harris' attempt in her
July 28, 1943, interview with Stewart to put a stop to the latter's union
activity leaves no room for doubt as to Harris' knowledge of Stewart's
union affiliation and Harris' attitude toward the Union. -
On July 31, 1943, Eden, manager of the fourth floor, summoned
Stewart to his office and told her that he wanted her to transfer to the
packing room "to see that the merchandise was kept together." Eden
then took her to the stockroom, showed her shelves of dirty dishes and
crystal, and told her to wash each ,piece and put them all in order.
Stewart said to Eden that that was the maids' job and that if she had
to do that work she would quit. Eden then told her to talk to Harris
about it. Stewart returned to her station "and sat ' down to think",
about the matter. She was shortly summoned to Harris' office, where
Harris, in the presence of Eden, told-her, "Martha, Mr. Eden didn't
tell you but half of the deal. He wanted you to wash the dishes so
that you could learn the stock, and eventually, become a salesperson."
Stewart replied emphatically that she had no desire to be a salesperson
since, in her estimation, work as a wrapper was the most desirable
occupation in the store. Like the Trial Examiner, we accept Stewart's
account as true. The respondent advanced no plausible explanation
of the proposal which it made to Stewart.
On August 2, the next work day following Stewart's refusal to ac-
cept the proposed assignment, Stewart worked at her regular duties.
None of her supervisors criticized her action in not accepting the as-
signment, although Eden remarked that he wished she had accepted
the new place.
On August 3 at about 10: 30 in the morning, Supervisor Anderson
told Stewart that Harris wanted her to go to the boys' department and
learn to wrap there. Stewart replied that she was particularly busy
at her regular station because of a shortage of help and a big sale
which had taken place on the receding day, and that she did not
want to make the transfer; anTshe asked Anderson to get someone
else. Stewart testified that she would have made the transfer if An-
,derson had insisted, but that Anderson, instead of doing so, merely
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
walked away. Stewart further testified that because 'in the past the
- respondent had permitted her to decline transfers and continue to
work at her regular' station under such circumstances, she did not ac-
cept the transfer in this instance. Anderson gave a different version
of the incident, admitting that she."asked" Stewart to go to the boys'
department to wrap but claiming that Stewart replied, "Well, I'll just
go home, I'm not going down there." Anderson further admitted
that although Stewart had refused to make the transfer she did not
"discover" until more than 2 hours later that Stewart had gone'to the
boys' department.9 Like the ;Trial Examiner, we credit Stewart's
testimony and discredit that of Anderson. Not until about 27/2 hours
after Anderson's conversation with Stewart did Anderson report to
Harris that Stewart had not gone to the boys' department. Harris
thereupon called Stewart to her office ,and said; according to Stewart's
testimony, "Martha, I have offered you two transfers recently, and
you have refused both of them. , That is insubordination, and I' will
have to give you'a week's pay and let you go." Harris testified that
what she told Stewart was that since Stewart had not carried out
Anderson's instructions the, respondent, would "just have to release
her, ",and that she did not remember Stewart's reply. After consider-
ing the demeanor of the witnesses and the entire record, the Trial Ex-
aminer credited Stewart's testimony regarding this interview. We
do likewise.
At a conference on or about August 10, 1943, as found above, Love-
man was requested to reinstate Stewart as well as Williams, both of
whom were known to be active members of the Union. In his reply
Loveman made it clear that Stewart, like Williams, would have been
reinstated but for her union affiliation. 'Although the store was there-
after in constant need of personnel, particularly during the holiday
rush at the time of the hearing, Stewart was never recalled.
We are not persuaded by the respondent's contention that Stewart's
discharge resulted from her failure to accept the ,two transfers pro-
posed by her supervisors. The respondent had' permitted Stewart to'
decline such transfers prior to her joining the, Union, and gave her
no warning on the last two occasion's to indicate that the transfers
were other than routine requests which the respondent would continue,
to permit her to decline if she so desired. On the other hand, there
is a reasonable likelihood that the respondent discharged Stewart for
cause, since it is clear that the respondent urgently needed an experi-
enced wrapper for the boys' department and that the wrapping station
there remained closed as a consequence of Stewart's refusal to make the
transfer. Accordingly, although we entertain grave doubt in the mat-
ter, we do not find that Stewart's discharge was discriminatory.
%
The boys ' department was especially busy at the time, but the wrapping station there
was not manned by anyone during the entire day.
LOVEMAN, JOSEPH & LOEB 763
We are satisfied, however, that the respondent, discriminatorily 're=
fused to reinstate Stewart at the conference on or about August 10,
1943. • The respondent contends in its brief before the Board that it
refused to. reinstate Stewart because she had proved to be, an insub-
ordinate employee. There is no evidence in the record to support the
respondent's claim that it based its refusal on Stewart's alleged in-
subordination. On the' contrary, Loveman refused her requested re-
instatement, not on the ground that Stewart was unsatisfactory for
any ]awful reason, but solely because of her union affiliation. There-
after, Stewart was never recalled, although vacancies were shown to
have occurred constantly.
Upon the entire record and particularly in view of the respondent's
anti-union conduct in other respects, we find, as did the Trial Ex-
aminer, that the respondent refused to reinstate Martha Stewart be-
cause of her membership and activities in the Union, thereby discour-
aging 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.
(3) Burkett
Mae Burkett had been employed by the respondent as a saleslady
"off and on", for 18 years. Her last continuous period of employment
began in July 1941, when she became a saleslady in the silk depart-
ment. She testified, without contradiction, that her work was never
criticized and that she was regularly second and never lower than
third in her daily sales record. ,
Burkett was' an early adherent of the Union, having signed an
authorization card on April 12, 1943. She attended union meetings
and as she testified : "Every opportunity I had I spoke to people about,
it, that I could, insisted on them joining." Moreover, other evidence
in the record shdws that Burkett was an aggressive supporter of the
Union's organizational campaign. Thus, Burkett estimated that she
had secured from 12 to 15 signers to authorization cards. Burkett's
union activity was conspicuously displayed on the morning of July 7,
1943, when she distributed union circulars to the incoming employees.
She spoke to several of the respondent's supervisors while so engaged.'
On July 7,1943, Burkett, with permission from Weed, went to Mis-
sissippi to bring back her son, who was ill. 'She returned to Birming-
ham on July 15. The following day, after learning that her soli bad
malaria and that treatment would require 21 days, Burkett promptly
interviewed both Weed and Harris and arranged for a leave of ab-
sence for this further period. According to Burkett's uncontradicted
testimony, whieh .we, like the Trial Examiner, credit, Weed was en-
tirely willing to grant the leave, saying: "Why sure ... Stay with
that boy, and don't worry about a thing, stay with him until he gets
f
764 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD,'
well." Burkett testified that she explained to Harris why she wanted
the additional leave; and that Harris replied that "it would be all right
to stay with him until he got well," and added : "You stay home and
take care of him and don't worry about it." Burkett further testified
that nothing more was said by Harris, particularly with respect to
replacing Burkett. Harris admitted that she told Burkett : "Well,
if I had a nice child like you have, I would stay home with my child."
However, Harris testified that she also told Burkett, "We are not
giving any leaves, and consequently we will have to replace you"; and
that she then asked if Burkett would be willing to "help us during busy
seasons," The Trial Examiner, who had an, opportunity to observe
both Burkett and Harris on the the witness stand, found Burkett an
impressive and credible witness, while Harris was an evasive and in-
credible witness. Like the Trial Examiner, we credit Burkett's ver-
sion of the interview-, as set forth above.
On, August 13, 1943, Burkett, who was then expecting to return to
her position at the expiration of her leave of absence on August ,X6,
called the office of the respondent's paymaster to find out whether
her insurance premiums had been kept up. Instead, she was informed
that her name had been dropped from the pay roll.10 On communicat-
ing with Weed she was referred to Harris, but insisted that Weed get
in touch with Harris and advise her of Harris" explanation. Spine-
, what later Weed reported to her that Harris had explained that the
respondent was no longer giving leaves, and that she had been dropped
from the pay roll for that reason. Burkett immediately called Harris
and, after remonstrating, asked for other employment. Harris
countered with the statement that there were no vacancies available
for her. Burkett then told Harris of, certain suitable vacancies about
to develop. Thereupon, Harris, although in charge of personnel for
the entire store, disclaimed authority by replying that it would depend
on the buyers in the departments where the 'vacancies occurred. It is
admitted that the store advertised constantly for salesladies after
Burkett's separation,,and at the time of the hearing was in the midst
of the annual holiday rush season; but Burkett was never recalled.
Like the Trial Examiner, we are convinced that the respondent dis-
criminated against Burkett as of August 16, 1943, by refusing to
reemploy her at the expiration of her leave of absence. Burkett was
an experienced employee against whom no credible claim of inefficiency
"The Trial Examiner found that Burkett had been dropped from the pay roll on July
24, 1943, in accordance with Harris' uncorroborated testimony. Harris first testified that'
she did not recall whether she had Burkett's separation slip made out by August 1, then
testified that she thought it was sometime in July, and finally stated, "If I remember cor-
iectly, it was July 24." We do not agree,that this testimony is worthy of credit. We find
no credible evidence in the record to show that Harris severed Burkett's employment prior
to the conference on or about August 10 at which Harris witnessed Loveman's discrimina-
tory refusal to reinstate Williams and Stewart.
LOVEMAN, JOSEPH & LOEB 765
or misconduct was advanced by the respondent. She' was one,of the
most aggressive-union adherents, and her activities in this connection
came directly under the observation of Harris and Weed, both anti-
union representatives of the respondent. Shortly after Harris had
discriminatorily discharged Williams and had witnessed Loveman's
discriminatory refusal to reinstate Stewart and Williams, she dropped
Burkett from the pay roll while Burkett was on leave of absence. Al-
though Burkett was widely experienced in the respondent's service
and although the respondent was constantly in need of employees such
as Burkett after her request for reemployment, she was - never
reemployed.
The respondent contends in its brief before the Board that Burkett
voluntarily severed her employment on July 16 to take care of her
son, and that it refused her application for employment on August
13 because she was not then able to go to work immediately. These
contentions are unsupported- by any credible evidence in the record',
Upon the entire record and particularly in view of the respondent's
anti-union conduct in other respects, we find, as did the Trial Exam
finer, that the respondent discharged Mae Burkett and refused to rein-
state her on and after August 16, 1943, because of her membership
and activity in the Union, 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 THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, oc-
curring 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action to effectuate the policies of the Act.
We have found that the respondent discharged and thereafter re-
fused to reinstate Virginia Williams and Mae Burkett, and refused
"The respondent had contended in its brief before the Trial Examiner that its failure
and refusal to rehire Burkett was due to Burkett's conduct in her August 13 telephone
conversation with Harris and her subsequent visit to the store to get her separation slip
for unemployment compensation purposesr Like the Trial Examiner, we credit Burkett's
version .of what took place and agree that the evidence shows that Burkett did not go
beyond a reasonable protest against the respondent's arbitrary and discriminatory treat-
ment of her Moreover, even accepting the respondent's contention, we find that Burkett's
alleged"misconduct was not the motivating reason for the respondent's refusal to reinstate
her.
766' DECISIONS OF' NATIONAL LABOR--RELATIONS BOARD
to reinstate Martha Stewart, for the reason that they, joined and as-
sisted a labor organization -and engaged in concerted. activities for.the
purposes of. collective bargaining and other mutual aid and protection.
We shall order that the respondent offer Williams, Stewart, and Burk=
ett immediate and full reinstatement to their former or substantially
equivalent positions, -without prejudice to their seniority or other,
rights. and privileges.' Since Williams was not able at the time of the
hearing to resume her employment because of illness and inasmuch
as there-was no'-certainty as to when she would be able to do so, the
offer of reinstatement in her case may be conditioned upon a showing
that she is physically capable of performing the duties of her former
position. We 'shall further order that the respondent make whole
Williams, Stewart, and Burkett for any loss of pay,they have suffered
by reason of their discriminatory discharge or refusal of reinstate-
ment by payment to each of them of a sum of money equal to the
amount which she would normally have earned as wages from the
date of her discharge or refusal of reinstatement to the date of the
respondents' offer of reinstatement, less her net earnings 12 during
such period. The normal earnings in the case of Williams will not
include any period, during which she was unable to work because of
illness. - '
Upon the basis of the foregoing findings-of fact and the entire record
in the case, the Board makes the following:
• CONCLUSIONS or LAw
1. Retail Clerks International Protective Association, Local 862,
affiliated with the American Federation_of Labor, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
.2. By discriminating in regard to the hire and tenure of employ-
ment of Virginia Williams, Martha Stewart, and Mae Burkett, thereby
discouraging membership in Retail Clerks International Protective
Association, Local_ 862, affiliated with the American Federation of
Labor, 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 its employees in
the exercise of the rights guaranteed- in Section 7 of the Act, the re-
spondent has engaged in and is engaging in' unfair labor practices
within the meaning of Section 8 (1) of the Act.
12 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 her unlawful
discharge and the consequent necessity ' of seeking employment elsewhere . See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,'
Lumber , and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440 . Monies received for
work performed upon Federal , State, county , municipal , or other work-relief projects shall
be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
LOVEMAN, JOSEPH & LOEB 767
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
ORDER
Upon the basis of the foregoing findings of fact and -the entire
record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the -respondent, Loveman, Joseph & Loeb, Birmingham,
Alabama, and its officers, agents, successors, and assigns, shall :
1. Cease, and desist from :
(a) Discouraging membership in Retail Clerks International Pro-
tective Association, Local 862, affiliated with the American Federation
of Labor, or any other labor organization of its employees, by dis-
c`harging or refusing to reinstate any of its employees, or by discrimi-
nating'in any other manner in regard to their hire or tenure of em-
ployment 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
representatives of their own choosing, and to engage in concerted
activities, for the purpose 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 policies of the Act : -
(a) Offer Virginia Williams, Martha Stewart, and Mae Burkett
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges; i
(b) Make whole Virginia Williams, Martha Stewart, and Mae
Burkett for any loss of pay they have suffered by reason of the re-
spondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which she would normally
have earned as wages from the date of her discharge or refusal of
reinstatement to the date of the respondent's offer of reinstatement,
less her net earnings during such period;
(c) Post immediately in conspicuous places throughout its plant,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to 'the employees stating : (1) that the
respondent will not engage in the conduct from which it is ordered
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 and remain members of Retail Clerks International
768 DECISIONS OF NATIONAL LABOR RELATIONS,'BOARD
Protective Association , Local 862; affiliated with American 'Federation
of Labor, or any other labor . organization, and- that the respondent
will not discriminate against any employee because of his or her mem- -
bership in any such organization-;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten ( 10) days from the date of this Order, what steps , the re-
spondent has taken to comply herewith.
CHAIRiIAN MiLLis took no part in the consideration of the above
Decision and Order. , - -