S. H. Kress & Co.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1152 (N.L.R.B. 1941)

In the Matter of S. H. KRESS & COMPANY, A CORPORATION and UNITED
RETAIL AND WHOLESALE EMPLOYEES OF AMERICA, LOCAL No. 235
In the Matter of S. H. KRESS & COMPANY, A CORPORATION and UNITED
RETAIL WORKERS OF Hmo
Cases Nos. C-1722 and C-1723.-Decided August 26, 1941
Jurisdiction : general merchandise retailing industry.
Unfair Labor Practices
Interference, Restraint, and Coeicion• questioning employees concerning their
union membership and activity ; anti-union statements ; surveillance by store
guard of union representatives ; filling of individual vacancies with non-
strikers after collective application for reinstatement of all or none of fair
labor pracltice strikers held not a violation of Section 8 (1).
Discrcniinatson: discharge of six employees for union membership and activity ;
refusal unequivocally to assent to reinstatement to former positions of unfair
labor practice strikers; charges of, dismissed as to three persons.
Collective Bargaining: majority established by signed authorization petition-
refusal to bargain in good faith; refusal to grant recognition; unfair labor
practice strike caused by such refusal-charges of refusal to bargain in good
faith at Honolulu Store dismissed.
Remedial Orders : reinstatement and back pay awarded to persons discriminated
against ; lump sum back pay awarded to extra and part-time unfair labor
practice strikers denied reinstatement; employer ordered to bargain with
union on request.
Definitions
Operator of monogramming machine owned by independent contractor
who was paid by independent contractor, but who was subject to store
control and who was a part-time sales girl, held an employee within the
meaning of Section 2 (2) and (3) of the Act.
Practice and Procedure : Trial Ekaminer's action in striking material from com-
plaint because not in charge, overruled.
Mr. William A. Babcock, Jr., for the Board.
Mr. Wade Warren Thayer and Mr. George P. Kimball, of Hono-
lulu, T . H., Mr. C. Wendell Carlsmith, of Hilo, T. H., and Mr.
D. H. O'Connell, of New York City, for the respondent.
Mr. Louis E. Welch, of Honolulu, T. H., for the Honolulu Union.
Mr. Bertram Diamond, of counsel to the Board.
34 N.L.R B, No. 119
1152
I
S. H. KRESS & COMPANY
DECISION
AND
ORDER
STATEMENT OF TILE CASE
1153
Upon charges and amended charges duly filed by United Retail
and Wholesale Employees of America, Local No. 235, herein called
the Honolulu Union, and by United Retail Workers of Hilo, herein
called the Hilo Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Twentieth Region
(San Francisco, California), issued its consolidated complaint on
October 28, 1939, against S. H. Kress & Company, herein called
the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) 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 were duly
served on the parties.
The complaint, as amended at the hearing, alleged in substance
that the respondent, in the operation of its Honolulu store : (1) be-
cause of their union membership and activity discharged and thereafter
refused to reinstate Rachel Saiki, Jeanette Ichiriu, Ted Tamashiro,
and Jack Shiroma about April 16, 1938; Edith Ishikawa about April
19, 1938; Edna Uyeda, about December 31, 1938; Mary Miguel about
February 2, 1939; and Allen Gima about March 8, 1939; (2) on and
after August 15, 1938, refused to bargain collectively in- good faith
with the Honolulu Union as the exclusive representative of all its
employees in an appropriate unit; (3) by these and other acts, inter-
fered with, restrained, and coerced its, employees in the exercise of
rights guaranteed in Section 7 of the Act. It further alleged that
the respondent, in the operation of its Hilo store : (1) about December
5, 1938, discharged and thereafter refused to employ Thomas Naka-
shima because of his membership and activity in the Hilo Union; (2)
about December 8, 1938, and thereafter, refused to bargain collectively
with the Hilo Union after it had been designated by a majority of
the employees in an appropriate unit; (3) because of their union
membership and participation in the strike, refused to reinstate to
their former positions employees who had gone on strike about De-
cember 22, 1938, as a direct consequence of the alleged unlawful dis-
charge of Thomas Nakashima and the refusal of the respondent to
bargain with the Hilo Union; (4) by these and other acts, interfered
with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act. The respondent by its answer
11
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dated November 14, 1939, and its amended answer dated December 11,
1939, denied that it had engaged in the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Honolulu and Hilo, Terri-
tory of Hawaii, between November 16, 1939, and February 13, 1940,
before Thomas H. Kennedy, the Trial Examiner duly designated by
the Board. The Board, the respondent, and the Honolulu Union were
represented by counsel or official representative and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. During the course of the hearing, the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed these rulings and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed, except in so far as the Trial Examiner granted re-
spondent's motion to strike from the complaint, on the ground that
they did not appear in the charges, certain dates of alleged refusals
to bargain and the names of employees alleged to have been discrimi-
nated against after an unfair labor practice strike; denied a motion
by counsel for the Board to amend the complaint to allege that the
respondent, although reinstating some of the strikers, did not reinstate
them to their former positions in that the respondent did not grant
them a bonus and vacation with pay which- were granted to non-
strikers; denied the usual motion, made by the counsel for the Board,
to conform the pleadings to the proof. Subsequent to the hearing
the respondent and the Board counsel submitted briefs for the
consideration of the Trial Examiner.
On November 7, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. He
found that the respondent had engaged in unfair labor practices
within the meaning of Section 8 (1) and, with respect to two indi-
viduals, within the meaning of Section 8 (3) of the Act. He recom-
mended the dismissal of the other unfair labor practices alleged in
the complaint. Thereafter the respondent, the Honolulu Union, and
the Hilo Union filed exceptions to the Intermediate Report and briefs
in support of their exceptions. The respondent also filed a motion
to strike the exceptions filed by the Honolulu and Hilo Unions; that
motion is hereby overruled.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C., on January 23, 1941, for the purpose of oral argument.
The respondent was represented by counsel and participated in the
hearing; neither the Honolulu nor the Hilo Union appeared.
The Board has considered the briefs and the exceptions of the
respondent, counsel for the Board, and the Honolulu and Hilo Unions
and finds the exceptions, except such as are consistent with the
findings of fact, conclusions of law, and order below, without merit.
S. H. KRESS & COMPANY 1155
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation with its principal
office and place of business in, New York- City. It is engaged in the
retail sale of limited price variety merchandise through stores lo-
cated in various States and Territories of the United States. These
stores, 241 in number, are all under the operating control of the
New York office. Since December 31, 1938, the New York corpora-
tion has been qualified to do business in the Territory of Hawaii.
From about December 22, 1922, to about December 31, 1938, the
New York corporation owned all the shares of stock, with the ex-
ception of directors' qualifying shares, of S. H. Kress & Company,
a Colorado corporation. From about October 26, 1929, until about
March 7, 1939, said Colorado corporation was qualified to do busi-
ness in the Territory of Hawaii and engaged in the business de-
scribed above. On or about December 31, 1938, the New York cor-
poration acquired all the assets and assumed all the liabilities of said
Colorado corporation. Thereafter said Colorado corporation was
dissolved.
The amended complaint alleges and the amended answer admits
that the New York corporation is liable for the acts of the Colorado
corporation. We find accordingly and in this Decision and Order
do not distinguish between the two corporations but refer to both as
the respondent or S. H. Kress & Company.
Since about October 26, 1929, the respondent has been engaged
in the retail business in the Territory of Hawaii through stores lo-
cated in Honolulu, Hilo, Wailuku, and Lihue.
The merchandise sold in the respondent's Hawaiian stores is
in general purchased by the respondent's central purchasing agency
in New York City from sources in continental United States and
shipped to these stores from such sources. In 1938 the respondent's
gross sales in all its stores amounted to approximately $65,000,000.
During this period the gross sales of. the respondent's Hawaiian
stores totaled about $2,700,000. Approximately one-half of the sales
of the Hawaiian stores are made at the Honolulu store. The Hono-
lulu store ranks first and the Hilo store second in volume of sales
among the respondent's stores in the Territory of Hawaii.
H. THE ORGANIZATIONS INVOLVED
United Retail and Wholesale Employees of America, Local No.
235, is a labor organization chartered by the United Retail and
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wholesale Employees of America and affiliated with the Congress
of Industrial Organizations, herein called the C. I. O. It is a suc-
cessor to the United Retail Workers of Honolulu, a labor organiza-
tion existing from April 10 until September 7, 1938. Both
organizations admitted to membership employees of the respondent
at its Honolulu store. In this Decision and Order we treat them as
a single organization, herein referred to as the Honolulu Union or
United Retail and Wholesale Employees of America, Local No. 235.
United Retail Workers of Hilo is an unaffiliated labor organiza-
tion admitting to membership employees of the respondent at its
Hilo store.
III. THE UNFAIR LABOR PRACTICES
A. Honolulu
1. Interference, restraint, and coercion
a. The strike of April 5, 1938, the formation of the Honolulu Union,
and the respondent's alleged discrimination against the strikers
The amended complaint alleges as a violation of Section 8 (1) of the
Act that about April 6, 1938, the respondent discharged and thereafter
refused to reinstate employees in its soda and lunch department be-
cause. they had engaged in concerted activity. The Trial Examiner
recommended the dismissal of this allegation and the Honolulu Union
took exception to the recommendation.
During the latter part of March 1939, and continuing until April 5
of the year, approximately 23.persons were employed in the respond-
ent's soda and lunch department as kitchen workers, waiters, wait-
resses, and bus boys under the direction of Charles Goo.
Late in March 1938 a pronounced dissatisfaction with Goo's man-
agement of the department became manifest among many of the
employees thereof. Protest meetings were held by these employees
off the premises of the respondent after working hours. Shortly be-
fore the first of April the protestants drew up and signed a petition
directed to H. D. Weiser, the respondent's personnel manager who was
then in Honolulu, asking that Goo be removed.
The petition was signed by 24 of the employees in the department,
two of the signatories being James Nakatsu and James Ohta. Before
Ohta had signed this petition he and Nakatsu were called into the
office of the store by Howard Simpson, senior assistant manager, then
acting manager of the store. He stated to the two employees that he
understood that there was trouble in the cafeteria department. The
employees replied that the workers did not like Goo. Simpson in-
formed them that they would have to await the arrival of W. C.
S. H. KRESS & COMPANY 1157
Jahries, the new manager , before the complaint could be disposed of.
About April 1, 1938, Nakatsu and Ohta called on Weiser and presented
the above petition to him. Weiser in their presence read it and then
informed these employees that action on it would have to await the
arrival of Jahries . This disposition was satisfactory to Nakatsu and
Ohta.
On April 5, 1938, Jahries arrived in Honolulu . He immediately
went to the store and reported to Weiser who proceeded to "check him
in," preparatory to turning the store over to him. About'-10 a. in. on
April 5, a conference took place in the store offices attended by Nakatsu,
Ohta, Weiser, Jahries, and Simpson. In the course of the discus-
sion Nakatsu and Ohta stated they would leave unless Goo was
removed as head of the soda and lunch department . The two employ-
ees asserted that they were speaking not only for themselves but for the
other employees in the soda and lunch department . Weiser suggested
that Jahries investigate the charges and that no action be taken until
this could be done. This suggestion was rejected by Nakatsu and Ohta.
who definitely stated that they were quitting . The conference then
broke up and Simpson, on Weiser's instruction , directed the cashier to
prepare the pay of Ollta and Nakatsu.
Immediately following the conference described above, 17 employ-
ees including Nakatsu and Ohta, walked out. About 15 of these em-
ployees were from the soda and lunch department . The action taken
by all these employees was for the reason given by their representa-
tives, Nakatsu and Ohta, to wit : the respondent 's refusal to accede
to their demand that Goo be replaced as head of the soda and lunch
department.
On April ' 6, 1938, several of the soda and lunch employees who had
walked out the preceding day consulted with representatives of the
Marine Cooks and Stewards Union in Honolulu concerning the for-
mation of a union. A picket line was formed at the store by em-
ployees who had walked out from the soda and lunch department.
Leaflets were prepared announcing a union organization meeting to
be held April 10, 1938. These were distributed from the picket line
to the respondent 's employees leaving the store at the close of busi-
ness on April 7, 1938, and thereafter. .
Pursuant to this announcement, a meeting was held on Sunday,
April 10, 1938, which resulted in the formation of the Honolulu
Union. About 50 of the respondent 's employees attended. Ted
Tamashiro, a stockman in the respondent 's toy department , addressed
the meeting . In his speech he discussed the long hours, the low
wages, and the practice of working behind closed doors on holidays
at the respondent 's store. He was elected temporary president.
Larry Shima was elected temporary vice president ; Beatrice Park,
451269-42-vol. 34-74
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
temporary secretary-treasurer; Sabura Kawaguchi, Leo Thompson,
Roy Higa, Gladys Lai, and Rachel Saiki were elected temporary
trustees. All these temporary officers, with the exception of Tama-
shiro, Lai, and Saiki, who were still working for the respondent at
the time of this meeting, had walked out of the store April 5, 1938,
as a result of the dispute concerning Goo.
Following this meeting there were additional organizational activi-
ties among the respondent's employees.' The Honolulu Union ob-
tained new members and held regular meetings each Sunday during
the spring of 1938.
About April 12, 1938, a conference took place between representa-
tives of the strikers and of the respondent. While the record con-
tains conflicting versions of the events of the conference we find that
Berman, a C. I. 0. representative who was spokesman for the strikers,
requested of Jahries reinstatement for the strikers and that Jahries
rejected the request on the ground that the respondent had filled the
positions left vacant by the strikers. We further find that at the
time of the conference the vacancies left by the strikers had in fact
been filled on a permanent basis. The record does not show whether
the strike continued after the conference.
Within a short interval thereafter the respondent took on a number
of individuals in the soda and lunch department but did not recall
any of the striking employees. It is clear, however, that up to that
time it had been confronted only with a blanket demand for the
reinstatement of all the strikers as a group. We are therefore unable
to find that the respondent, in filling the particular vacancies which
arose, discriminated against the strikers.2 Upon the basis of the
entire record we find, as did the Trial Examiner, that the record
does not support the allegation that the respondent discriminated
against those who struck on April 5.
b. Acts of interference
George Morine, a union member employed as a stockman in the
Honolulu store, testified that during the week following April 10,
1938, Simpson asked him if he had heard rumors going around; that
he informed Simpson he had heard such rumors ; that Simpson asked
him, "Are you one of them?" and he replied in the affirmative; and
that Simpson said, "It is up to you." He further testified that he
interpreted this conversation to mean that Simpson wanted to know
'Between April 10 and April 16 leaflets explaining the desirability of a union and a
meeting for April 17 were distributed outside the store.
2 Cf Matter of Omaha and Council Blulfs Street Railway Co and Amalgamated Associa-
tion of Street, Electric Railway and Motor Coach Employees of America, etc, 18 N. L
R. B. 82
S. H. KRESS & COMPANY 1159
if he was a union member. Simpson denied this conversation. Upon
the basis of the entire record we find, as did the Trial Examiner,
that Simpson in substance made the statements attributed to him
by Morine and that these statements referred to membership in the
Honolulu Union.
Rachel Saiki, an active union member whose case is discussed
below, was asked by Hannah Klein, the matron under whom she was
working, on the day after she attended the first union meeting,
whether she had gone to that meeting. Saiki replied that she had,
whereupon Klein stated that if the activity of the employees was for
the purpose of carrying on a fight against Goo, she did not think
it was right. Saiki assured Klein that she had signed up because she
understood that the purpose of the meeting was to better the condi-
tions of all the workers in the store. Saiki further testified that
Klein had informed her not to say anything to head saleslady O'Neill,3
the respondent's chief supervisor of female employees, about Saiki's
joining the union, because if O'Neill found this out, Saiki would be
discharged. Klein admitted that she had had a conversation with
Saiki during the week immediately preceding April 16, 1938, but
she testified that the conversation was not about a union but about a
projected walk-out which Klein attempted to discourage her from
joining. She also denied that she had told Saiki that she would be
discharged.
Upon the basis of the entire record we credit the testimony of
Saiki, as did the Trial Examiner, and find that Klein in substance
made to her the statements in question.
Louis Welch, a C. I. O. organizer who assisted the employees in
the formation of the Honolulu Union, testified that in May 1938,
while he was in front of the respondent's store handing out leaflets
to employees, he overheard Klein remark to one of the employees,
"The union don't care nothing about you" and that at a conference
between the Honolulu Union and the respondent at the end of May
1938, he asked Klein if she had stated to any of the employees that
that union was all nonsense and that Klein answered that she had made
such a statement. Klein conceded that she might have made the ad-
mission testified to by Welch but insisted that in fact she never said
anything against the Honolulu Union but rather had directed any
remarks she might have made to the possibility of a walk-out. Klein
herself testified as follows : Following her conversation with Saiki
one of the girls told her that she had heard a walk-out was imminent;
she told her own informant and the girl who was said to have spread
the rumor, "You girl's forget about that. That is all nonsense.";
At the time of the healing, her name was Mrs. Rechaed Schoenmg and she was no
longer an employee of the store.
1160 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
she asked the second girl, "Are you one of them?" and told her
"Forget about that. If they are going to stage a walk-out we cannot
do anything about that." She denied that the Honolulu Union was
mentioned in this conversation. In the light of the entire record
and of the credence given by the Trial Examiner to the testimony
of Welch, we find that Klein made the statements testified to by him. -
We also find on the basis of Klein's own testimony that she interro-
gated one of the employees of the respondent concerning participa-
tion in concerted activity and attempted to dissuade employees from
engaging in such activity.
The respondent contends that Klein's job was "little more than
that of a janitress." It is true that Klein did clean the girls' lunch-
room, cloak room, and lavatory as well as the office. On the other
hand, Klein reported employees if they were late, and had the func-
tion of seeing that the girls observed the rules posted in the lunch-
room and lavatory and of getting the girls down to their jobs when
they were supposed to be there. Klein herself testified that when
Saiki was her helper, head saleslady O'Neill would ask her how
Saiki was doing her work. The preceding facts convince us as they
did the Trial Examiner, that Klein was capable of speaking and did
speak for the respondent in the circumstances above related.
According to employees Saiki and Ichiriu, a sign forbidding talking
was posted in the cloak room of the store about 3 days after the first
union meeting of April 10. Before that time these and other employees
had solicited union membership in the cloak room during lunch hours.
Matron Klein denied that such a sign had been posted. Upon the
basis of the entire record, we find that such a sign was posted.
Edith Inouye, a former employee, testified that Miss Perreira, a
head saleslady and her superior at that time, came to her about the
end of April and told her that she did not know "why the workers
should join the Union when Mr. Jahries was new"; that Perreira asked
Inouye whether or not she would join, that when Inouye did not reply,
Perreira said that "she didn't know why [the employees] acted that
way when Mr. Jahries had done nothing to [them]." Perreira denied
having had such a conversation with Inouye. We find the conduct
attributed to Perreira consistent with the conduct which was engaged
in by other supervisory employees. On the basis of the entire record
therefore, we find that Perreira in substance made the statements
attributed to her by Inouye.
Myrtle Morimune, one of the respondent's salesgirls, joined the
Honolulu Union on April 24, 1938. Shortly before that date Kimiko
Matsui, then second in rank of the respondent's supervisors of female
employees, approached her and, according to the testimony of Mori-
mune, asked her if she and Kimura, another salesgirl, were in the
S. H. KRESS & COMPANY 1161
Honolulu Union. Morimune replied that she was not but gave Matsui
no information about Kimura. Matsui then volunteered the informa-
tion that if the employees joined the union they would not be able to
find work elsewhere and that she was against the union and did -not
approve of it. Matsui in her testimony did not deny the assertions
of Morimune.
On April 25, 1938, the day after Kimura joined the Honolulu
Union, according to Kimura, Matsui asked her if she had attended the
union meetings. Kimura answered that she had. Matsui then asked
Kimura what had happened at the union meetings and Kimura testi-
fied that she told her some of the things that had transpired. Matsui
denied the preceding testimony of Kimura.
Sometime in May or June 1938, according to Rose Koge, after she
had become a member of the Honolulu Union, she was approached by
Matsui, her superior, who asked Koge if she knew what the union was
for. Matsui followed the question by this statement : "I don't think
you understand. Go to the library and really find out what it is all
about." Matsui did not contradict the preceding testimony of Koge.
On the basis of the entire record we find, as did the Trial Examiner,
that Matsui, a supervisory employee, made the above statements
attributed to her by Morimune, Kimura, and Koge.
After Saiki's discharge on April 16, 1938, she visited the store
many times, passed out leaflets for the Honolulu Union and continu-
ously urged the respondent's employees to join the Honolulu Union.
Before the spring of 1938 the respondent had not employed a uni-
formed police officer in its store except during Christmas rush seasons.
After April 1938, the respondent secured the services of one Kau, a
retired Honolulu policeman and employed him continuously at the
store. He wore a policeman's uniform and continually patrolled the
salesfloor of the store during business hours. Beginning sometime in
May 1938, Saiki testified, she frequently visited the store and stopped
to converse with employees. She further testified, and Kau denied,
that whenever she was in the "store she was continuously followed by
Kau. Welch testified that Kau followed him in the same manner. In
June 1938 Saiki stopped to converse with one of the union members
who was on duty in the store. She testified that Kau approached her,
tapped her on the shoulder and said to her : "Your activity around the
store isn't any too good." Kau denied that he had made the statement
testified to by Saiki. Saiki also testified that on that occasion she in-
formed Kau that she did not think he had any business following her
around. Upon the basis of the credence given by the Trial Examiner
to Saiki's testimony and of the entire record, we find that Kau en-
gaged in the activity and made the statements attributed to him by
Welch and Saiki.
1162 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
We find that the respondent, by Simpson's questioning Morine con-
cerning union activity, by Klein's questioning concerning union ac-
tivity and membership and her attempts to discourage employees from
engaging in union and concerted activity, by the posting, under the
circumstances given, of the sign forbidding talking, by the statements
of Perreira to Inouye, and of Matsui to Morimune, Koge, and Kimura,
by the surveillance by Kau of Saiki and Welch, and by Simpson's
interrogation of Miguel described below in Section III A 2, has inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Discrimination in regard to hire and tenure of employment
a. The discharges of April 16, 1938: in general
The respondent discharged Rachel Saiki, Jeanette Ichiriu, Ted
Tamashiro, and Jack Shiroma on April 16, 1938. The amended com-
plaint alleges that these discharges were for union activity. The re-
spondent's amended answer denies that union activity was the cause
and ascribes the four discharges to lack of ability and merit .4
The respondent's defense is based in general upon its practice of
reducing its force after a rush period. Each,year beginning 1 or 2
weeks before Easter, the respondent has a seasonal increase in busi-
ness. During this' time the sales force is augmented with extra em-
ployees. The day before Easter Sunday it is customary to reduce the
force to normal. Easter Sunday in 1938 fell on April 17. Accord-
ing to Jahries, the company's practice consisted in laying off persons
hired for the rush period and retaining employees who were working
before that period, with the following proviso : old employees were
replaced with new employees who had shown themselves to be
superior.
During the week ending April 16, 1938, about 53 employees were
released. Of these at least about 41 were employed only for the
Easter rush period; 7 of the remaining 12 were union members: the
four named in the amended complaint, and Rose Koge, Stella Shima,
4 The respondent also contends that it had no knowledge of the existence of the
Honolulu Union by April 16. Manager Janzen testified that it was on April 18 or 19
that he first learned of the formation at the store of the Honolulu Union. But leaflets
announcing union meetings were distributed outside the store during the 2 weeks pre-
ceding April 16; the Honolulu Union was discussed in the store during the week following
April 10; and the two principal daily newspapers in Honolulu carried news articles
on April 14 and 15 which announced the formation of the Honolulu Union. Moreover
Simpson and O'Neill recommended the discharges of the employees released on April 16.
As found above , during the week following April 10, Simpson had inquired of Morine
about his union membership . It further appears that O'Neill knew of the existence of
the Honolulu Union prior to the discharges of April 16. On the basis of the foregoing
evidence, of the respondent 's hostility to the Honolulu Union and of the entire record,
we find that the respondent had knowledge of the Honolulu Union before the discharges
of April 16.
S. H. KRESS & COMPANY 1163
and Fanny Chun. The evidence concerning the status and the causes
for the release of the other 5 non-union employees is as follows :
Information submitted at the hearing by the respondent was that one
left voluntarily, one was discharged,5 and three were laid off ; ac-
cording to this information, these three would seem to have been
regular employees. But by letter of July 28, 1938, to a Field Exam-
iner for the Board, Kimball, an attorney for the respondent, stated
that none of these same five employees had been discharged but that
two had left of their own accord and that three had been hired as
extra employees during the period immediately preceding Easter.
The respondent did not explain the discrepancies between the state-
ments of its attorney and the employment information submitted by
it at the hearing. We find, therefore, that the only regular employees
who were discharged or laid off in the course of the Easter reduction
were 7 union members. Even on the construction of the evidence most
favorable to the respondent, 10 regular employees were released from
the staff by reason of the Easter curtailment of whom 7 were union
members. At that time the Honolulu Union had secured the affilia-
tion of not more than 23 of the not less than 175 regular employees
on the pay roll for the week ending April 16. At the same time, a
considerable number of non-union employees,6 both salesgirls and
stockmen, who had been taken on during the Easter rush were re-
tained.' We think that there is so marked a disparity between the
proportion of union members among the regular employees on the pay
roll before the Easter reduction and the proportion of union members
among the regular employees released in the course of the Easter
reduction as to create a strong inference that in, the reduction of
staff there was discrimination against union members.8
In addition, we find significant evidence of discrimination in the
fact that among the union employees released on April 16 were two of
the three union officers elected April 10 who worked at the store dur-
ing the following week.
6 Testimony of Simpson indicates that this employee was requested to leave because
she was related to another employee.
6 The respondent contends that the weight of the foregoing evidence is impaired for
the reason that in the period from the consent election of May 27 , 1938, through August
1939, there was an approximate equality between the number of discharges and lay-
offs of union and of non -union persons on the full-time list or with some considerable
length of service . However , about April 16, 1938, the Honolulu Union was still in its
formative stages. On the other hand, before the period chosen by the respondent, which
is a lengthy one, charges of unfair labor practices had been filed by the Honolulu Union.
During that period the Honolulu Union « on the consent election . These facts distinguish
the two situations.
7In general, the Honolulu Union confined its organizing activity to regular employees
6 F. W. Woolworth Co. v. National Labor Relations Board, decided July 2, 1941,
(C. C. A. 2) ; North Whittier Heights Citrus Association v. National Labor Relations
Board, 109 F . ( 2d) 76 (C. C. A. 9) ; Montgomery Ward & Co., Inc . v. National Labor
Relations Board, 107 F. (2d) 555 (C. C. A. 7 ) ; Matter o f Ford Motor Co and United
Automobile Workers of America, etc, 23 N. L. It. B. 342.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We turn now to a consideration of the individual cases of four
employees who were released on April 16, 1938.
b. The discharges of April 16, 1938, considered individually
Ted Tamashiro was found by the Trial Examiner to have been dis-
charged for union membership and activity. The respondent took
exception to this finding.
Tamashiro entered the respondent's employ November 8, 1937, as a
stockman in the toy department, and was placed on the respondent's
list of regular full-time employees during the same month. In
early February 1938 he was transferred to the hardware department.
Two or three weeks later he was transferred to the dry goods depart-
ment where he remained for about a month. On April 5, 1938, at
the time of the walk-out of the soda and lunch department em-
ployees, Simpson transferred him to the toy department. He was
occupied there until April 16, 1938, when he was discharged. His
original weekly rate of pay of $12 was raised in February 1938 to
$14, at which rate he continued to be paid until his discharge.
On April 10, 1938, Tamashiro, as stated, above, attended the first
meeting of the Honolulu Union, made a speech criticizing the re-
spondent for its working conditions, and was elected temporary presi-
dent of the Honolulu Union. During the following week he urged
other stockroom employees to join the Honolulu Union. It has al-
ready been found that before April 16 Simpson and Klein, respec-
tively, questioned a stockroom employee and, a salesgirl concerning
union membership and activity, and that shortly after April 16,
Matsui made similar inquiries. Upon the basis of the foregoing
evidence of the respondent's antagonism towards the Honolulu Union
and of the entire record we find that the respondent knew of Tama-
shiro's union activities before his discharge.
At various times the respondent advanced different reasons for the
discharge of Tamashiro.
According to the testimony of the respondent's witnesses, Simpson
and Jahries, the reasons for the release of Tamashiro were fully dis-
cussed by them before the actual discharge. On April 16, 1938,
Simpson told Tamashiro that he was being laid off because the busy
season preceding Easter had come to a close, and the force was being
reduced, and that as soon as his services were again required he
would be recalled. About April 19, Jahries was informed by one
Dunbar, a Field Examiner for the Board, that charges had been
filed in behalf of Tamashiro. On either the same or on the following
day, Jahries informed Dunbar that Tamashiro had been discharged
because he had been attending night school. Jahries gave this same
reason at a conference with union representatives held about April
S. H. KRESS & COMPANY 1165
23, asserting that Tamashiro had been released because he was going
to night school and had other interests than working for the re-
spondent.° However, on May 31, at a meeting held for the purpose
of gathering information necessary for ruling upon challenged bal-
lots cast in a prior consent election, Jahries did not give Tamashiro's
night school attendance as a reason for his discharge. He himself
characterized that reason as "just a polite answer." At this same
conference, he said that Tamashiro had been laid off because a sales-
girl in charge of a toy counter had complained about his work, and-
because he was not sufficiently alert to take charge of the depart-
ment.'° At another conference on August 4, 1938, at which were
present Kimball and Thayer, attorneys for the respondent, Jahries,
Simpson, and union representatives, Jahries gave as the cause of
Tamashiro's discharge the fact that he was talkative and slow in
his work.
At the hearing Jahries and Simpson asserted that the decision to
release Tamashiro was based chiefly on Simpson's judgment that
Tamashiro was slow in his work and slow in his thinking, was
incapable of becoming a stockman in charge of a department, had
made quite a number of errors in counting, had been insubordinate
on several occasions, particularly in refusing to go to the post office
in accordance with former Manager Miller's instructions, was talka-
tive and loitered, and was late in punching the timeclock.
The shifts in the reasons assigned by the respondent for the dis-
charge of Tamashiro have not been satisfactorily explained. Simp-
son asserted that at the time of the discharge he had stated that
it was due to a reduction in force because the respondent's instruc-
tions were to use such a "stereotype" formula. Even if we grant
the validity of this assertion, however, which the Trial Examiner
apparently found unconvincing, the discrepancies among the reasons
,subsequently offered remain. These discrepancies cannot be attrib-
uted, as does the respondent in its brief, to any ignorance on Jahries'
part of the causes for the action taken against Tamashiro. As noted
above, he fully discussed with Simpson such causes both before the
actual discharge and before the May 31 conference. Nor can Jahries'
reliance upon Tamashiro's night school attendance be adequately
accounted for upon the basis of his assertion that he intended to
spare Tamashiro's feelings by not giving any more derogatory
reasons. Tamashiro does not appear to have been present when
Jahries, in conference with Field Examiner Dunbar about the filing
of charges in Tamashiro's behalf, relied upon the latter's night school
attendance; it seems unlikely, moreover, that on this and on an ensuing
9In fact Simpson knew about Tamasbiro's night school attendance when he hired him
10 Before this conference, as Jahries himself stated, he had reviewed with Simpson the
case of Tamashiro
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion Jahries should have allowed the consideration adduced by
him to keep him from presenting the actual reasons for the respond-
ent's conduct in the face of an investigation by a Board agent of
charges of unfair labor practices. Jahries further asserted that at
the May 31 conference he had no opportunity to go into detail con-
cerning Tamashiro's case. He did not explain wherein the oppor-
tunity to do so had been denied him. Although it appears that
attorneys for the respondent were present at the conference there"
is no evidence of any protest on their part. Simpson himself was
interrogated concerning Tamashiro's release at the August 4 con-
ference referred to above; he made no mention of any insubordina-
tion or lateness or mistakes in counting.. Simpson contended that
his failure to do so was due to the action of Field Examiner Wills
in cutting off discussion about Tamashiro. This was denied by
Welch. As at the earlier conference, the respondent's attorneys
were present and there is no showing of any objection on their part.
Upon the basis of the entire record, we credit Welch's denial.
The respondent's current defense rests almost entirely upon the
testimony of Simpson, for, as stated above, Jahries testified that
the decision to release Tamashiro was based largely on Simpson's
estimate of Tamashiro's work.
In considering the defense it must be noted that according to Simp-
son, under a plan of reorganization of the stockroom whereby each
stockman to' be retained after Easter would be capable of handling
a department, Tamashiro was eliminated because of his deficiencies.
Simpson further testified that Tamashiro's work was unsatisfactory
during the entire period of his employment, that he had recommended
to one Miller, then store manager, that Tamashiro and Shiroma,
another stockman whose case is discussed below, be laid off after the
Christmas rush of 1937, but that this recommendation had not been
followed. Simpson also testified that although from March 4, when
former Manager Miller left, to April 5, when Jahries; the new man-
ager arrived, he himself was in complete charge of the store, he could
not take action against Tamashiro and Shiroma because he had been
instructed not to do so.
Like the Trial Examiner, we are not persuaded by Simpson's testi-
mony concerning the causes for Tamashiro's discharge.
In February 1938, as noted above, Tamashiro's weekly rate of pay
was raised $2. The respondent's rule, then in effect, was to give wage
raises only for increased efficiency. There is no showing that Simpson
opposed the granting of the increase.
Moreover, Simpson's testimony concerning Tamashiro's slowness
and inefficiency 11 was vague and general; he was able to cite only one
"Within the scope of this term we mean to include Tamashiro's alleged talkativeness
and loitering.
S. H. KRESS & COMPANY 1167
instance in support of his statements, an instance involving alleged
errors in the counting of stock by Tamashiro in December 1937. The
only critical comments on the score of inefficiency that Simpson claimed
to have addressed to Tamashiro were remarks like "Let's get a move
on" and "Let's get this thing unpacked"; Simpson could'not definitely
fix the time of any of these mild exhortations. Simpson admitted
that he had never warned Tamashiro that he would be discharged if his
work did not improve. Neither Helwig nor Sweitzer, assistant man-
agers in charge of the departments in which Tamashiro worked most
of the time, was called to testify. Tamashiro stated, and we find, that
before his discharge he never was told that his work was unsatisfactory
either because he could not count stock correctly or because he was
slow or talkative. Furthermore, we are of the opinion that there is
convincing evidence that immediately before his discharge Tamashiro
was deemed competent by Simpson, a fact which we find serves to
rebut Simpson's affirmation that he all along believed Tamashiro an
unsatisfactory employee. On April 5 the stockman in charge of the
toy department joined the strike previously described. Jahries him-
self conceded that the toy department was the most difficult one to
handle in the entire store. Nevertheless, Tamashiro was transferred
to that department on April 5 and remained there until his discharge.
There is a conflict in the record over whether Simpson placed Tama-
shiro in charge of the department ; it is undenied, however, that he
worked alone in that department for about a week, and that thereafter,
during the Easter rush, when the toy department was the busiest of
all the departments, he had the cooperation only of two new employees
and the occasional aid of an employee in an adjoining department.
Whether or not Tamashiro was in charge of the department it is clear,
therefore, that he was allowed to do a considerable portion of the work
in it before and during one of the store's busiest season's. It is sig-
nificant that Simpson could remember no complaint about Tamashiro's
work during the Easter rush of 1938.
As for Tamashiro's alleged insubordination in refusing to go to the
post office, Tamashiro himself placed these refusals before Christmas
1937. He testified, and we find, that after an inquiry by former Man-
ager Miller as to the cause for his refusals he never failed to go to the
post office when asked. In addition, the record shows that stockmen
often refused with impunity to go to the post office when they were
busy. Furthermore, never before the hearing was Tamashiro's refusal
to go to the post office given as a reason for his discharge. No other
evidence of insubordination on the part of Tamashiro was advanced.
No satisfactory proof of Tamashiro's alleged habitual lateness was
produced. We further find that Tamashiro was never warned or
reprimanded for any such repeated offenses and that no such reason
for his discharge was advanced prior to the hearing.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We further find the following evidence indicative of discrimination.
Three stockmen taken on during the Easter rush were retained after
April 16; all three were then non-union employees. Upon the basis
of the respondent's hostility to the Honolulu Union and of the entire
record we cannot credit Simpson's assertion that all three non-union
employees were preferred over Tamashiro because two of them had
had a year's experience elsewhere and the third had seemed to be a
good worker.
The respondent's antagonism toward the Honolulu Union, the gross
disparity between the proportion of union members among the regular
employees on the payroll before the Easter reduction and the pro-
portion of union members among the regular employees released in
the course of the Easter reduction, Tamashiro's union office and
activity, the shortness of the interval between his election to office and
his discharge, the shifting reasons assigned by the respondent for his
discharge, the unsatisfactory character of the defenses advanced at
the hearing, and the other circumstances stated above and in the
record, convince us that Tamashiro was discharged because of his
union office and activity.
We find, as did the Trial Examiner, that the respondent has dis-
criminated in regard to the hire and tenure of employment of Ted
Tamashiro, thereby discouraging membership in the Honolulu Union
and interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act.
Jack Shiroma, also known as Kameichi Shiroma, first worked for the
respondent 7 or 8 months in -1935 as a stockman. He was then laid
off because business was reported to him to be slow. In the fall of
1937 he applied to Simpson for a job. Simpson refused to employ
him saying that there were no available openings. Shiroma was then
ordered placed on the pay roll by former Manager Miller, at that time
Simpson's superior. He commenced work November 19, 1937, as a
stockman in the stationery department. After the Christmas rush of
1937 he was transferred to the glassware and crockery department
where he remained until April 16, 1938, when he was discharged.
His initial pay was $12 per week. During the second week in February
1938, against the recommendation of Simpson, his pay was raised to
$14 per week by direction of Miller.
Shiroma attended the first union meeting on April 10, 1938, and
there signed the document designating the Honolulu Union to bargain
for him. There is no evidence, however, that he actively participated
in union organization.
At the time of Shiroma's discharge on April 16, 1938, Simpson told
him that at the close of the Easter rush a reduction in force was
required, that he was selected as one of the boys to be laid off, and
S. H. KRESS & COMPANY 1169
that Simpson would call him again whenever he was needed. He has
not since been notified to work. He does not desire reinstatement.
The respondent's case as to this employee was presented entirely
by the witness Simpson. Simpson as above found did not favor the
employment of Shiroma in the fall of 1937. He was convinced at all
times thereafter that Shiroma was not capable of becoming an efficient
stockman. He testified that Shiroma was laid off because he was slow
in his work, slow in his thinking, not capable of becoming a stockman,
and that he was insubordinate in that he refused to do work that was
assigned to him, particularly refusing to burn rubbish as directed
until he had been warned about it several times by his superiors.
Simpson also gave as a reason for this discharge, Shiroma's refusal to
go to the post office when requested to do so by one of the office girls.
As noted above in the discussion of Tamashiro's case, Simpson testified
that after the Christmas rush of 1937 he had suggested to Miller that
Shiroma be discharged, but Miller refused to comply with this recom-
mendation. Simpson was in full charge of the store during practically
all of March and the first few days of April 1938 but he was under
instructions not to make any changes in personnel during this period.
Simpson stated that these instructions prevented him from discharg-
ing Shiroma before the arrival of Jahries. On Jahries' arrival Simp-
son, pursuant to Jahries' instructions, prepared a list of the employees
to be discharged at the end of the Easter rush. Shiroma's name was
on this list.
Shiroma's refusal to go to the post office when directed must be
discounted as a reason for his discharge because the record establishes,
as has above been stated in the discussion of Tamashiro's case, that
it was the practice among stockmen to refuse to go to the post office
when they were engaged in other more important duties. However,
the charge that Shiroma refused to burn rubbish on several occasions
was not specifically denied by Shiroma, although he did deny that he
had been reprimanded for any reason while working at the store.
The circumstances of Tamashiro's discharge were very similar to
those in the case of Shiroma. In the preceding discussion of Taina-
shiro's case Simpson's testimony concerning the causes of his release
was not found credible. Even though that fact might give reason to
doubt Simpson's testimony concerning Shiroma, the union activity
of Shiroma was in no way as great as that of Tamashiro. Unlike
Tamashiro, Shiroma was not an officer of the Honolulu Union, nor
did he actively participate in soliciting union membership. In view
of Shiroma's slight union activity we find, as did the Trial Examiner,
that there is insufficient evidence that the respondent discharged him
for union membership or activity.
.Rachel Saiki was hired by the respondent in December 1936, and
was placed on the respondent's regular full-time list on June 7, 1937.
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She had continuous employment with the respondent as a full-time
worker until her discharge on April 16, 1938. Before 1938 she worked
as a saleslady in the dry goods, hardware, and glassware departments
and also did various other tasks around the store. About 3 weeks after
Christmas 1937, she was assigned to assist the matron, her duties in
such assignment being to clean the girls' lunchroom, 'cloakroom, and
lavatory, and the public lavatory. She continued working thus from
early 1938 until the day of her discharge. In this period, as will
appear later, she also assisted in sales work during lunch hours.
Saiki joined the Honolulu Union at its first meeting, April 10,
1938, and was elected a trustee at that meeting. She was active in
soliciting members and promoting the Honolulu Union in the store
during lunch hours between April 10 and 16. As has been found
above, the day after the first union meeting Matron Klein interrogated
Saiki concerning her attendance at that meeting, Saiki revealed to
Klein her union membership, and Klein told Saiki not to say any-
thing to O'Neill about Saiki's joining the Honolulu Union because if
O'Neill found out Saiki would be discharged. According to O'Neill,
who was ultimately responsible for Saiki's discharge, she learned of
Saiki's union affiliation before the actual discharge but after April 14,
when she made up her mind to release her. Yet it appears that
shortly before April 14 Klein conferred with O'Neill concerning Saiki.
The foregoing facts, taken together with Assistant Manager Simpson's
April 11 interrogation of Morine concerning his union activity, and the
other evidence of the respondent's hostility to the Honolulu Union
disclosed by the record, convince us, despite O'Neill's assertion, that
the respondent had knowledge of Saiki's union membership and ac-
tivity before O'Neill's alleged decision to discharge her.
The defense of the respondent as to Saiki rests upon the testimony
of its witnesses that O'Neill determined after consultation with Per-
reira, floorlady in the hardware department, and Matron Klein, to
lay Saiki off because of her shortcomings as a salesgirl. The relevant
testimony of Klein, Perreira, O'Neill, and Saiki will be examined
in turn. -
While Klein testified that there had been a number of occasions when
Saiki, who, as noted above, had been Klein's helper for some time
before her discharge, was not where she should have been, there is
no evidence that Klein reported these matters to O'Neill or anyone
else before Saiki's dismissal. In fact Klein had only spoken well
of Saiki's work to O'Neill, telling her that it was satisfactory.
Perreira's testimony concerning Saiki's failure to report promptly
for lunch-hour sales work and to stay at counters reveals several
inconsistencies, shifts in position, and other features which lead us
to conclude that it is incredible. Perreira testified that Saiki had
S. H. KRESS & COMPANY 1171
failed to report promptly for lunch-hour sales work on many occasions
in the period between January and April 1938. She asserted that for
this reason she had personally gone to look for Saiki about 20 times
and had sent others to look for her an indefinite number of times
during the afore-mentioned period. Yet she admitted that she had
never demanded an explanation of Saiki and did not remember having
spoken to Saiki about the alleged delinquencies. On direct examina-
tion she asserted that she had more than once discussed with O'Neill
Saiki's failures to report promptly. On cross-examination she did
not remember reporting these matters to anyone. On examination by
the Trial Examiner she testified that she had spoken to O'Neill about
such refusals. The bulk of Perreira's testimony was directed toward
describing Saiki's failure to report for lunch-hour work. Only in
relating what she had told O'Neill before Saiki's discharge and in
giving her opinion of Saiki's work did she mention, and then in general
terms , Saiki's leaving counters without permission. Yet Perreira
admitted that in giving reasons for Saiki's discharge at a conference
concerning challenged ballots held on May 31, 1938, she made no
mention of Saiki's failure to report for sales work during the lunch
hours. At that conference she said that Saiki, having been given
a chance, proved unsatisfactory, and was laid off; she told of an
incident during the Christmas rush of 1937 when Saiki refused to
leave her task to relieve a girl at another counter'2
Saiki's testimony further indicates the weakness of Perreira's as-
sertions . Saiki testified without contradiction, and we find, with re-
spect to the incident involving her refusal to leave her task, that she
had been acting on orders from O'Neill and Assistant Manager Helwig.
Saiki further testified that both at the May 31 conference already
mentioned and at a subsequent conference in August 1938, Perreira
gave as the reasons for her discharge the incident of Christmas 1937
and the fact that she left counters without permission. She asserted
that she had not before the hearing ever heard any failure to report
for sales -work given as a reason for her discharge. The preceding
testimony was not controverted and we find it to be true. It is also
significant that the incident of Christmas 1937 was not specifically
mentioned as a cause for discharge at the hearing. Upon the basis
of the entire record we credit Saiki's testimony that she had never
failed to report at the time she was supposed to and that no one had
ever spoken to her about any such failure.
O'Neill testified that as early as Christmas 1937 she had determined
to dismiss Saiki because of her negligence and impudence as a sales-
girl but had kept her on thereafter so long as Matron Klein needed
11 O'Neill was present at this conference.
1172 *DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her. For the reasons which follow we cannot accord to O'Neill's
testimony the credit accorded it by the Trial Examiner 13
In so far as O'Neill's testimony indicates that Saiki's incompetence
as a salesgirl forced her to be taken off general sales work and given
a special assignment with Matron Klein, it creates an impression not
borne out by the record. O'Neill herself characterized Saiki as "an
all around sort of girl." Saiki, before working for Klein, had been
assigned to no special counter, had with some frequency been shifted
from job to job, and throughout 1937 had .performed various tasks
(such as vacuuming counters, inking registers, acting as a messenger
and doing novelty work) in addition to working or relieving at sales
counters. Saiki, during the entire time that she assisted Klein, did
sales work at least part of the day. Thus, the record shows that
Saiki for some time before Christmas 1937 had performed special
assignments along with sales work and that after Christmas 1937 she
continued to do the same thing. If, as O'Neill contended, by the
end of the Christmas rush of 1937 Saiki was found to be an undesirable
salesgirl, it seems improbable that after that time she should have
continued to do sales work and special tasks in exactly the same manner
as she had perviously done.
Furthermore, O'Neill's testimony that Saiki was not laid -off at
the end of the Christmas rush because Klein needed a girl, is difficult
to reconcile with the fact that Helen Tomita worked for Klein after
Christmas and that Saiki did not take her place before mid-January
1938. Moreover, the record shows that between January 1 and the
time she began to work for Klein, Saiki spent a substantial part of her
day waiting on customers, in addition to doing vacuuming. As al-
ready noted, it appears incredible that a salesgirl as unsatisfactory
as O'Neill testified Saiki. to be, could have been retained to do any
sales work. Saiki testified, and we find, that she was asked by O'Neill
whether she would like to take Tomita's job. The record contains
no trace of any statement by O'Neill to Saiki that she was being
transferred because she was an impudent, neglectful, and insubordinate
salesgirl.
The reasons given by O'Neill for Saiki's discharge varied from
those given by Perreira. O'Neill testified that Saiki was finally dis-
charged because she was inefficient and did not follow store instructions
(that is, she left her counters without permission and went to other
13 The ]Intermediate Report attributed to O'Neill actions concerning Saiki for which
there is no evidence in the record It stated that O'Neill before Christmas 1937 had
received complaints from customers about Saiki 's talking Japanese to other saleskirls,
that O ' Neill therefore transferred Saiki to another counter, and that before and after
this event she several times criticized Saiki for improperly caring for her counter,
neglecting customers and talking to her friends. O'Neill did testify to this effect about
Ichiriu, treated below , but there was no such testimony regarding Saiki.
S. H. KRESS & COMPANY 1173
counters; "gave the impression" of being impudent to customers).
The failure to report promptly for lunch-hour work testified to by
Perreira does not appear among these reasons; neither, as we have
noted, does the Christmas 1937 refusal to work for Perreira relied upon
at conferences before the hearing.
O'Neill's testimony was indefinite and general. On direct examina-
tion she testified that she had observed instances of Saiki's leaving
counters without permission, neglect of customers, and apparent im-
pudence to customers before Christmas 1937. Later she testified that
Saiki had given her the impression of being an unsatisfactory sales-
girl during Christmas 1937. On cross-examination she could not fix
her first observation of Saiki's unsatisfactory sales work more defi-
nitely than "the latter part" of 1937. As for specific instances of the
various faults she attributed to Saiki and which she claimed to have
observed; O'Neill testified that they occurred while Saiki was engaged
in lunch-hour relief work but that "[there] wasn't any special place,
though, or time." In the course of her testimony she gave only one
observed example of Saiki's engaging in any of the types of conduct
complained of, that of Saiki's going from one counter to another
without permission in the early part of 1938.14
On April 16, 1938, O'Neill informed Saiki that she was to get
her pay. Saiki testified that at the time she was released O'Neill acted
as if she did not know why Saiki was being released and gave her no
reason other than a denial that union activity was the cause. O'Neill
asserted that she told Saiki that she was being dismissed because she
was inefficient. The Trial Examiner apparently believed Saiki and,
upon the basis of the entire record, we credit her version of the cir-
cumstances of her dismissal. O'Neill's refusal to give the reasons
for Saiki's discharge at the time of her discharge casts much doubt on
the authenticity of the reasons for the discharge advanced by her at
the hearing.
The record contains convincing evidence of Saiki's satisfactory work.
She was twice complimented by O'Neill on her work. On the latter
occasion, shortly before the Honolulu Union was formed, O'Neill
called Saiki a "good all around girl" and stated that if she wanted
anything done and asked Saiki to do it she knew that it would be done.
No supervisor ever told Saiki that her work was unsatisfactory.
14 According to O'Neill, while Saiki was instructed to work at the busiest counters
during lunch hours, she had also been instrti ted not to leave any counter until told to do
so by the floorlady Saiki testified , however, that her instructions from O'Neill about
lunch-hour work were to help out at busy "ounters without waiting for specific permission
In view of the absence of any evidence of reprimand to Saiki concerning her leaving
counters , and upon the basis of the entire record , we credit Saiki's testimony and find
that she was only carrying out her appointed relief work in going from one counter to
another without specific permission.
451269-42-vol 34-75
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's defense concerning Saiki is further impaired by
the testimony of Lyda Amell, a non-union employee, who asserted
without contradiction that after April 16, 1938, she was sent to As-
sistant Manager Helwig by O'Neill, and that Helwig questioned her
about the work of Saiki.15 Her testimony creates a suspicion that the
respondent engaged in efforts to prove alleged shortcomings and
violations of rules which in fact were unconnected with the discharge.
While it must be taken as established that after April 16, 1938,
Saiki's services as a matron's helper were no longer required, Saiki
had always done various odd jobs along with sales work. On the
pay roll of April 16, 1938, she is listed as a person whose job was
vacuum cleaning. After April 16 vacuum cleaning continued to ba
done at the store. It does not appear that the performance of such
other odd jobs as inking registers coupled with relief sales work
was discontinued. In any event Saiki's capacity even for general
sales work has not successfully been challenged.
About April 18 or 19 Jahries learned that charges concerning the
union members dismissed on April 16 had been filed with the Board.
On May 2, 1938, the respondent advertised in a daily Honolulu morn-
ing paper for salesladies. In response to this advertisement, Saiki,
Stella Shima, and Rose Koge, all union members who had been
released on April 16, called on O'Neill and asked for employment.
O'Neill referred the trio to Jahries who, in the presence of O'Neill
and Simpson, pointed to Saiki and said : "Isn't this the girl who
wouldn't follow instructions?" Both O'Neill and Simpson replied in
the affirmative. Jahries then turned to Saiki and said, "Isn't that
true?" Saiki did not answer. Jahries then informed Koge and
Shima that since they had been told they could have work when
business picked up they could expect to be called back to work.
Koge, Shima, and Fanny Chun, another union member laid off on
April 16, were hired immediately thereafter but the respondent re-
fused to reinstate Saiki on this occasion and continued to refuse
to reinstate her at all times thereafter. Under the circumstances
the reinstatement of some union members after the filing of, charges
does not appear to us to show an absence of discrimination against
Saiki or against union members generally, but rather indicates that
the respondent was attempting to dispel the evidences of its
discrimination.16
After Saiki's discharge she became increasingly active in the Hon-
olulu Union and on October 26, 1938, was elected its secretary.
"He also inquired about Ichiriu, another union member discharged April 16 ; her case
is discussed below.
19 Cf. National Labor Relations Board v Vincennes Steel Corp ., 117 F. ( 2d) 169
(C. C. A. 7).
S. H. KRESS & COMPANY 1175
Saiki's union office and activity, the threat made to her by Klein,
the short interval between the time of her joining the Honolulu
Union and the time of her discharge, the gross disparity between
the proportion of union members among the regular employees
released in the course of the Easter reduction and' the proportion
of union members among the regular employees on the pay roll
immediately preceding that reduction, the absence of any mention
to Saiki of unsatisfactory work, the evidence of her satisfactory
work, the different reasons given by Perreira and O'Neill for her
discharge, the incredible character of the testimony of Perreira and
O'Neill, and the other considerations set forth above, lead us to
conclude that Saiki was discharged and thereafter refused reemploy-
ment because of union membership and activity. Upon the basis
of the entire record, we find that by discharging and thereafter
refusing to reemploy Saiki, the respondent has discriminated in
regard to her hire and tenure of employment, thereby discouraging
membership in the Honolulu Union and interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act.
Jeanette Ichiriu was first employed by the respondent during the
Christmas rush in 1935 for a period of about 2 weeks. Her next
employment by the respondent was during the Easter rush of 1936
for approximately 1 week. In August 1936 she was employed in
the toy department where she worked 1 week. Later she was em-
ployed as a messenger girl. On January 7, 1937, she was placed
on the respondent's full-time list. In August 1937 she was assigned
to counter 29 where she remained until November 1937 at which
time she was transferred to a counter selling hardware, hosiery, and
bathroom supplies. She remained on this assignment until she was
discharged on April 16, 1938. Her original rate of pay was $9 a
week. In June 1937 her wages were raised to $10 a week, which
rate of pay she continued to receive until her discharge.
Ichiriu attended the first union meeting on April 10, 1938, and
there signed a designation of the Honolulu Union. Thereafter she,
together with Saiki and Shima, solicited union membership during
lunch hours in the cloakroom for several days between April 10 and
16. She also otherwise solicited membership in the Honolulu Union.
This evidence considered along with the respondent's hostility to
the Honolulu Union disclosed by the record, questioning concerning
union membership and activity by Simpson and Klein before April
16, and by Matsui after April 16, convinces us that the respondent
was aware of Ichiriu's union activity before her discharge.
On April 16, 1938, Simpson informed Ichiriu that as the Easter
rush was over it was necessary to lay off some of the girls, that she
1176 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
would, therefore, be laid off, and that the respondent would call
her back when her services were required. Ichiriu was not there-
after recalled for duty. The record establishes that she was in fact
discharged. After 2 weeks after her discharge she read an adver-
tisement in a local paper wherein the respondent applied for sales-
girls. In response thereto she called at the respondent's store
seeking reinstatement. She was unable to locate anyone who had
the authority to rehire her but left her name, address, and telephone
number of a piece of paper with one of the office girls for delivery
to Jahries, store manager. She does not desire reinstatement.
The respondent's defense as to Ichiriu rests entirely upon the testi-
mony of O'Neill who gave as the reasons for Ichiriu's discharge
complaints received before Christmas 1937 regarding Ichiriu's speak-
ing Japanese at the counter, a complaint by a customer in the first
part of 1938 of neglect by Ichiriu, and O'Neill's observations of
her neglect of counters and customers and friendliness with her
own friends after Christmas 1937. For the following reasons we
cannot credit O'Neill's testimony.
At one point O'Neill testified that before Christmas 1937 she had
received some complaints from customers of Ichiriu's speaking Japa-
nese at the counter. Subsequently, O'Neill testified to only one such
complaint from a customer. She did assert that she spoke to Ichiriu
about this.
O'Neill asserted that speaking Japanese was the main cause for
the transfer of Ichiriu to counter 34. The evidence renders doubtful
this explanation. O'Neill testified that the girls at the counter to
which Ichiriu was transferred were not Japanese. Taba, who worked
at counter 34 was Japanese. Taba worked at that counter with
Ichiriu from the time of Ichiriu's transfer there in November until
the time of her release the following April. O'Neill conceded that
Taba was Japanese but asserted that she had never heard Taba speak
Japanese although she might be able to. Furthermore, although on
direct examination O'Neill had stated that speaking Japanese was
the main cause for transferring Ichiriu to counter 34, on cross-
examination she gave as the reason the fact that Ichiriu, as one of
the older girls, was shifted with the bathroom supplies when, in order
to make room for Christmas lights, they 'were moved from counter
29 to counter 34. Moreover, Perreira, floorlady in Ichiriu's depart-
ment, praised Ichiriu to Taba after the Christmas rush of 1937.
Ichiriu was then placed in charge of a section at counter 34.
Ichiriu considered this a promotion, and Perreira's statement to Taba
that since Jeanette was working well she was going to stay at counter
34 permanently to take care of the shoe polish and pet supplies, indi-
cates that it was such and that Ichiriu's station at that counter had
S. H. KRESS & COMPANY 1177
hitherto been temporary. Ichiriu continued to take charge of her
half of the counter until her discharge. In any event, O'Neill ad-
mitted that after Christmas 1937 she had no more complaints about
Ichiriu speaking Japanese.
Ichiriu testified that she had never known of any rule in the re-
spondent's store against employees speaking other than the English
language and that she had never been criticized for speaking Japanese
in the store. The testimony of Lyda Amell, a non-union employee
referred to above, throws much light on the source of the complaint
about speaking Japanese, on whether speaking Japanese was an
offense, and on the validity of the respondent's defense with regard
to Ichiriu. Amell testified as follows : Before the Christmas rush of
1937, while working as head salesgirl at counter 29 with Kimura
and Ichiriu, she had complained to O'Neill that these two girls were
always speaking Japanese. She asserted, however, that this com-
plaint was the only one she had had about these girls and that she
had never heard anyone say anything to either pf them about speak-
ing Japanese. After Ichiriu's discharge, Assistant Manager Helwig
asked her whether it was true that Kimura and Ichiriu had spoken
Japanese. He also asked her why she had made a complaint. She
replied that she could not stand those two girls talking Japanese
when she did not know what they were talking about. Helwig then
asked her how Ichiriu worked. She answered that Ichiriu's work
was all right as far as she knew. Helwig inquired whether she had
seen any signs forbidding speaking in Japanese while on duty. There
was no such sign then posted. O'Neill investigated and so reported.
There had been no such sign posted for at least 4 years. The preced-
ing testimony of Amell was uncontradicted except in so far as Klein
asserted that there had been posted before and during Easter 1938
signs about speaking English only, while on duty. Upon the basis
of the above testimony of Amell and Ichiriu, which we credit in full,
and of the inconsistencies and admissions in O'Neill's testimony men-
tioned above, we conclude that use of Japanese in the store at the
time in question would not have violated any rule, that Ichiriu's
transfer in November 1937 to counter 34 had nothing to do with her
speaking Japanese, and that there is a strong suspicion already noted
above in the discussion of Saiki's case, that the respondent after the
discharges of union members on April 16 sought to discover some
pretexts for their dismissal.
O'Neill's testimony that in the early part of 1938 a customer com-
plained of having been neglected by reason of Ichiriu's conversation
with friends, and that she (O'Neill) had reprimanded Ichiriu on
that score was inconsistent with her earlier statement that after
Christmas 1937 she had no further complaints about Ichiriu.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contrary to O'Neill's assertions the evidence shows that Ichiriu
performed satisfactory work. In this connection it must be noted
that Perreira, who was Ichiriu's immediate superior before her dis-
charge, was not called to testify concerning her work. As already
noted, Ichiriu received a wage increase in June 1937 and was praised
and promoted by Perreira' shortly after Christmas 1937. It seems
unlikely that after the turn of the year the character of her work
should have drastically altered. Ichiriu denied that she had ever
been told that her work was unsatisfactory or that her work had
been criticized by any floorlady or assistant manager. She denied
that any floorlady' ever spoke to her about talking to friends while on
duty or about being impolite to customers. Upon the basis of the
entire record we credit Ichiriu's denials.
Ichiriu's union activity, the short time between the first manifesta-
tions of that activity and her discharge, the gross disparity between
the proportion of union members among the regular employees dis-
missed in the course of the Easter reduction and the proportion of
union members among the regular employees on the pay roll before-
that reduction, the evidence of Ichiriu's satisfactory work, the in-
credible character of O'Neill's testimony, the failure of Perreira to
testify concerning Ichiriu, and the other facts stated above, convince
us that Ichiriu was discharged because of her union membership
and activity.
Under the circumstances disclosed by the record we find that by
discharging Jeanette Ichiriu, the respondent has discriminated in
regard to her hire and tenure of employment, thereby discouraging
membership in the Honolulu Union and interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act.
c. Other discharges
The amended complaint alleged that Edith Ishikawa, Edna Uyeda,
Mary Miguel, and Allen Gima were discharged on April 19, 1938,
December 31, 1938, February 3, 1939, and March 8, 1939, respectively,
and were at all times thereafter refused reemployment because of
their union membership. The respondent denied these allegations
and replied that the foregoing persons, excluding Ishikawa, were dis-
charged for cause and that Ishikawa had not been an employee of
the respondent. The Trial Examiner recommended the dismissal of
the allegations relating to Uyeda, Miguel, and Gima, and the sustain-
ing of the allegations relating to Ishikawa. The respondent took
exception to the latter recommendation and the Honolulu Union
to the former.
Edith Ishikawa was employed by the respondent as a salesgirl
from the Christmas rush of 1935. She worked part time until the-
S. H. KRESS & COMPANY 1179
spring of 1936, when she was put on full time as a salesgirl in the
stationery department. She was placed on the respondent's regular
full-time list on January 7, 1937. In June 1937 she was assigned
to work on a monogram printing machine that for some time had
been installed at the stationery counter. The ownership of the ma-
chine was at all times vested in Verne Hollander, a resident of
California, who had an arrangement with the respondent whereby
his machines were used to monogram stationery sold in various stores
of the respondent. According to the respondent's brief, the respond-
ent and Hollander shared the revenue derived from the use of the
machine at the Honolulu store. Ishikawa continued to operate the
monogram printing machine until April 19, 1938, on which date its
use was discontinued and she was released.
The respondent's only explanation for the discharge of this em-
ployee was that from June 1937 to April 19, 1938, she was in the sole
employ of Hollander and that she lost that employment by reason of
the respondent's decision no longer to permit the operation of the
monogram machine in its store.
Ishikawa's transfer to the monogram machine took place in ac-
cordance with the direction of the floorlady in the stationery depart-
ment. Although there is some conflict in the testimony on this point,
it appears that Nishimoto, who had previously operated the machine,
was transferred to another counter as a salesgirl. Ishikawa objected
to her assignment to the monogram work but was told by O'Neill
that she had to take any job the store gave her. Some time there-
after Simpson instructed Ishikawa that she was not only to operate
the machine but also to assist in selling at the counter when she was
not busy at monogramming.- He also told her that she was expected
to follow the store rules and to make out reports on monogram sales.
Upon the basis of Ishikawa's denial and of the entire record we cannot
credit Simpsoin's testimony that about this time he explained to
Ishikawa that she was entering Hollander's employment.
Ishikawa registered receipts from printing jobs on the machine
separately from receipts from the sale of merchandise; she kept a
record of receipts from work done on the machine.
From the time she started on the monogram machine, when she
was given a wage increase of one dollar a week, until September 18,
1937, Ishikawa was carried on,the respondent's pay roll and was paid
in cash as were the other employees, while the respondent paid the
federal social security and territorial unemployment compensation
taxes upon her wages. 17
17 At the same time the amount of her wages was deducted by the respondent from the
revenue it transmitted to Hollander.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Her employment was entered on the records of the respondent as
terminted• as of September 18, 1937. At the instance of the respond-
ent her wages were thereafter paid by check from Hollander. Ap-
parently the respondent effected this change because it was of the
opinion that it would otherwise be committing a federal unfair trade
practice. A letter from Hollander to the respondent dated Sep-
tember 21, 1937, which accompanied his first check stated, "Miss Ish-
ikawa is in my personal employ rather than S. H. Kress & Company."
Although Ishikawa might have seen this letter somewhat later, when
an office employee explained to her a new method for the payment of
her wages, we find upon the basis of Ishikawa's testimony and despite
the denial of the office employee, that Ishikawa did not become ac-
quainted with the contents of the letter. On the contrary, upon the
basis of Ishikawa's testimony and of the entire record we find, despite
Simpson's denial, as did the Trial Examiner, that at the time when
Hollander's first check increased Ishikawa's weekly wages by $2, Simp-
son said to her, "We are going to give you a raise from $10 to $12."
During the period Ishikawa was paid by check from Hollander,
whatever taxes were paid on her wages appear to have been paid by
Hollander.
Beginning October 16, 1937, the respondent adopted the practice,
followed until Ishikawa's discharge, of turning over to Ishikawa the
weekly gross receipts of the machine. She deducted the amount of her
wages, paid the territorial unemployment compensation tax, and
sent the balance to Hollander, who paid the federal social security
tax. When the receipts from the machine were not sufficient to pay
her wages she made up the deficit from the earnings of the machine
during the following week.
During the entire period in which Ishikawa operated the monogram
machine she was under the supervision and control of the manage-
ment of the store. She was expected to and for the most part did
work the same hours as other salesgirl S.18 She followed all store rules
for salesgirls and wore the common uniform. Moreover, when not busy
at the monogram machine she did sales work at the counter; she
estimated, and we find, that about one-half of her time from the
summer of 1937 to the date of her discharge was devoted to selling
the respondent's products.
In view of the preceding facts and of the entire record we find that
Ishikawa, for the entire duration of her work at the Honolulu store,
was an employee of the respondent within the meaning of Section 2 (2)
and (3) of the Act.19
18 When she was very busy she worked overtime on the machine to finish up orders, but
no one had ever instructed her to do so
19 Matter of Seattle Post -Intelhgencer Department of Hearst Publications , Inc. and
Seattle Newspaper Guild, etc. 9 N. L. it. B. 1262 ; Matter of The Connor Lumber & Land Co.
S.'131. KRESS & COMPANY 1181
On April 16, 1938, Jahries was informed by Masaka Miura (then
Masaka Nitta), who was working at the stationery counter on
which the monogram machine was placed, that the machine was not
paying its way. Miura then suggested to Jahries that the machine
be entirely dispensed with. Jahries later that day checked the store
records and concluded that the operation of the machine should be
dispensed with. He instructed Simpson to have the machine moved
the following Monday, April 18.
On Sunday, April 17, 1938, Ishikawa attended the second meeting
of the Honolulu Union and there signed a document designating that
organization as bargaining agent. Before the meeting she had asked
one of her companions in the store, Masaka Miura, to attend with her.
On the morning of Monday, April 18, the machine was moved to
the side of the counter. That morning Simpson instructed Ishikawa
to finish up whatever monogramming orders she had, a job which
Ishikawa estimated would take her at least all that day to complete.
Thereafter, the monogram machine was moved upstairs, preparatory
to its discontinuance.
During the same Monday morning Ishikawa had asked Miura, who
did not attend the union meeting as' Ishikawa had requested, why
she had not done so. In the early part of Monday afternoon Miura,
in, a conversation with O'Neill, told O'Neill that she did not know
why Ishikawa was angry with her unless it was because she, had not
gone to the union meeting.
Ishikawa worked all of Monday, April 18, and part of Tuesday,
April 19, finishing up her work on the monogram machine. About
noon on Tuesday she was dismissed.
There is some conflict in the record concerning the immediate cir-
cumstances of Ishikawa's dismissal. Ishikawa testified that O'Neill,
on the morning of Monday, April 18, before the removal upstairs
of the monogram machine, assured her that she was to have her
old job back, and that consequently on April 19, after finishing the
monogram orders, she worked at counter 13 for 21/2 or 3 hours. This
was the counter at which she had worked before she was assigned
to work on the monogram machine. O'Neill denied having had the
conversation testified to by Ishikawa.20 Simpson testified that dur-
and Int'l Woodworkers of Amer:, etc ., 11 N. L. R. B. 776; Matter of Interstate Granite
Corp. and Granite Cutters' Int ' l A8s 'n of Amer., etc , 11 N. L. R. B. 1046; Matter of
Washington Branch of the Sun Life Insurance Co of Amer. and Industrial and Ordinary
Insurance Agents Union, etc., 15 N. L. R B 817 ; Matter of Hearst Publications, Inc,
etc., and Newspaper Circulations, Wholesale Distribution , and Miscellaneous Employees
Union, etc, 25 N. L. R. B. 621; Matter of Stockholders Publishing Co. Inc., and Los
Angeles Newsboys Local Industrial Union No 75, C. I 0., 28 N L R. B 1006.
20 No clear denial appears in her testimony . She did assert that about noon on Monday,
after the removal of the monogram machine, she instructed Ishikawa to finish her orders
upstairs , and that she had no further conversation with Ishikawa that day. But the brief
of the attorney for the Board construed this testimony as a denial , and since it might bear.
such a construction we shall consider it to constitute a denial.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the morning of Tuesday, April 19 he told Ishikawa that as soon
as she finished her orders she was to make up her report, take it to
the office, and get her money. Ishikawa• denied having had such
a conversation with Simpson. O'Neill further testified that about
11 or 12 o'clock on Tuesday she met Ishikawa coming from completing
her work on the machine, instructed her to wait at the stationery
counter, returned in a few minutes after having consulted with Simp-
son,' and told Ishikawa to get her pay. Ishikawa denied having
been instructed as O'Neill testified.
Ishikawa's assertion that she had worked at counter 13 on Tues-
day was confirmed by the testimony of Miura, who as already noted,
was then posted at that counter. We find, upon the basis of the
entire record, that, as Ishikawa testified, she was promised a job
at sales work, that she did work at that job on Tuesday morning,
and that she was not dismissed until after O'Neill had consulted
with Simpson in the latter part of the morning. We infer and
find that after informing her on Monday morning that she would
have her old job back, O'Neill learned on Monday afternoon of
Ishikawa's urging Miura's attendance at the union meeting and that
upon consulting with Simpson' Tuesday morning she ordered Ishi-
kawa to get her pay.
Apart from the discontinuance of the monogram machine, no
reason for the discharge of Ishikawa was given by the respondent.
Ishikawa's ability as a salesgirl was not challenged. While she was
dismissed, a number of non-union employees with less experience
were retained. Although Jahries testified that there was no place
in the stationery department for Ishikawa when she left the store,
it appears that an assistant floorgirl was transferred to that depart-
ment at that very time. - Subsequently other salesgirls were added
to the respondent's force but Ishikawa was not reemployed.
Upon the basis of the entire record, we find, as did the Trial
Examiner, that the respondent discriminated in regard to the hire
and tenure of employment of Edith Ishikawa, thereby discouraging
membership in the Honolulu Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
Edna Uyeda entered the respondent's employ on April 6, 1938,
as a waitress and was immediately placed on the full-time list.
About 3 or 4 months later she was transferred to the candy depart-
ment to do packing in the basement. When sales were heavy she
was taken from that assignment and placed in the service of the
sales department as a salesgirl. She continued to be employed as a
salesgirl until her discharge on December 31, 1938.
S. H. KRESS & COMPANY 1183
Some time before the consent election in late May 1938, Uyeda
joined the Honolulu Union. Thereafter she was active in securing
signatures of at least seven employees to application cards for union
membership. In July 1938 she became a member of the dues-col-
lecting committee and represented the Honolulu Union in collecting
dues at all times thereafter. About August 15, 1938, collective bar-
gaining negotiations between the Honolulu Union and the respondent
were initiated. Uyeda at that time was a member of the Honolulu
Union's negotiating committee and attended meetings of this com-
mittee with the respondent's representatives.
On December 31, 1938, Matsui, head saleslady and Uyeda's supe-
rior, told her to come upstairs, and when they had arrived on the
second floor, Matsui told Uyeda that the respondent" would not re-
quire her services any longer because she had directed a customer
to the wrong counter for the purchase of a postal card. Uyeda then
expressed the desire to see Jahries. Matsui arranged such a meet-
ing at which Matsui was present, as well as an office employee, who
took down stenographic notes of the conversation. Uyeda testified
that the conversation was in substance as follows :
I went in to the office and Mr. Jahries told me he wanted to
see me. I said "Yes." I told him I wanted to see him. He
told me to sit down. Miss Matsui came in. Mr. Jahries said,
"What was it you wanted to talk to me about." Since I saw
that office girl there, she, was writing down anything what I
said I changed my mind. Mr. Jahries asked me, "Didn't you
want to say anything?" I said, "No, I changed my mind," and
I walked out.
Jahries in his testimony substantiated in general the account given
by Uyeda of this meeting. He added, however, that after Uyeda
had refused to talk he explained to her that she did not seem to
fit into the respondent's organization, that she lacked interest in
being a salesgirl, and that all the supervisory employees under whom
she had worked were opposed to continuing her in the respondent's
service and for that reason she had been discharged. We find the
foregoing accounts of the interview to be in substance true. Jahries
directed the dismissal of Uyeda after consulting with O'Neill, head
steward Goo, Matsui, and head saleslady Mishina (then called
Kimitsuka). He testified that they all had recommended her dis-
missal. Jahries, on these recommendations, determined to discharge
her. Uyeda was discharged on December 31, 1938.
Mishina, who was in charge of the notions counter in October
1938, at which counter Uyeda was then working, testified that she
cautioned Uyeda during that month about her approach to a cus-
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Comer. On that occasion the customer asked Uyeda where she could
find a certain kind of merchandise.
Matsui testified that on an occasion during the Christmas season
in 1938 when she asked Uyeda why she did not follow instructions
and collect money before giving the customer packages, Uyeda
answered : "When I'm busy sometimes, I do not follow instruc-
tions." This was not denied by Uyeda and is found to be the fact.
Matsui also testified that on one occasion in December 1938 she re-
quested Uyeda to go to the ice-cream counter and Uyeda refused
to go. After Matsui made an issue of the matter and delivered an
ultimatum to Uyeda, Uyeda obeyed the instruction. Matsui also
testified that she placed Uyeda's name on a list of persons to be dis-
charged at the end of the Christmas rush of 1938. She handed this
list to O'Neill in December 1938 before the above two incidents
occurred and recommended the discharge of Uyeda. She testified
that she did not consider Uyeda a good salesgirl. O'Neill, although
testifying at the hearing, was not interrogated by any party con-
cerning Uyeda.
Uyeda testified on direct examination that at no time during her
employment with the respondent was she criticized by her superiors
nor told that she had violated any store rules, and that she could not
remember whether or not she misdirected customers in the Christmas
rush of 1938. In her cross-examination, she testified that when she
was in the soda and lunch department, Goo, her superior, told her
that she would have to pick up more speed and cautioned her about
not punching.the time cards according to the accepted fashion. In
her cross-examination, she also admitted that Matsui, one of her
superiors, had cautioned her about giving a package to a customer
before taking the money for a sale. Matsui then explained to her
that the store rule required that she obtain the money first.
While it is established that Uyeda was an active union member,
the evidence also clearly establishes that she was guilty of derelic-
tions in her duty as a salesgirl and that the respondent's supervisory
employees had definite reasons for her discharge other than her
union activity. This employee displayed a reluctance to talk at the
hearing. At the time of her discharge, after having requested an
audience with Jahries, the store manager, she refused to talk in his
presence. Upon the entire record, we concur in the Trial Examiner's
findings that the respondent has not discriminated against Edna
Uyeda in regard to hire and tenure of employment.
Mary Miguel entered the respondent's employ in March 1938. She
worked as a salesgirl in the candy department on the part-time list
until May 1938, when she was transferred to the notions 'department
and placed on a full-time basis. She continuously worked in the
S. B. KRESS & COMPANY 1185
notions department from May 1938 until the day of her discharge,
February 3, 1939.
Miguel joined the Honolulu Union at its second meeting on April
17, 1938, at which time she signed the designation of the Honolulu
Union. She urged other employees to join the Honolulu Union, some
of whom acted upon her suggestion and joined, and she secured the
signatures of at least three employees to cards designating the Hono-
lulu Union. Her activity in seeking to interest her fellow employees
in the Honolulu Union continued throughout her employment at
the respondent's store. The preceding facts together with the evi-
dence of the respondent's hostility to the Honolulu Union found in
the record convince us that the respondent had knowledge of Miguel's
union membership and activity before her discharge.
In June 1938, Miguel, together with another union member, one
Fujimoto, complained to Welch, the union organizer, that the girls
in the sales department were required to lift heavy boxes and re-
quested the Honolulu Union to register a complaint on this matter
with the management. Welch, accordingly, requested the respondent
for a conference. Simpson informed Welch that he would investi-
gate his complaint. Welch was satisfied with this disposition. The
day after the complaint was registered by Welch, Simpson called
several of the sales employees and supervisors into his office. Miguel
was one of those summoned. Simpson inquired of those assembled
whether or not their instructions prohibited their moving heavy
boxes. Miguel answered "No," but one of the other sales employees
answered "Yes." Simpson pursued the inquiry, asking the employee
who answered "Yes" why she had disobeyed instructions in lifting
the heavy boxes. Simpson made it plain to all of those assembled
that the girls were not to move heavy boxes, that the stockboys were
employed for that purpose. At this meeting Miguel and Fujimoto
did most of the talking. Miguel was they only one of the four girls
present who was not frightened by the interview. During the inter-
view Simpson asked which of the girls had made the complaint to
the Honolulu Union and stated that he wanted no more complaints
about lifting heavy boxes. Simpson testified that after the interview
Welch accused him of "bawling the girls out" instead of taking up
the matter with the "committee," and Welch did, not tell him what
committee he meant, but that he informed Welch that he had simply
investigated the matter. We find that, although Simpson explained
that he was attempting to discover and remedy violations of store
instructions, his inquiry into the source of the complaint to the
Honolulu Union and admonition against such complaints were un-
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to the claimed purpose of the investigation and constituted
an interference with rights guaranteed in Section 7 of the Act 21
The respondent's amended answer alleges that Miguel was dis-
charged for repeated violations of store rules and for not properly
performing her work. It appears that Miguel's dismissal was'the
result of a decision arrived at by consultation between Jahries and
Simpson. Jahries testified that after speaking to Miguel the week
following Christmas 1938 about an asserted inability to operate a
cash register and obtaining from her an assurance that she would
do her work correctly, an employee reported to him that Miguel
had been rude to a customer; thereupon he instructed Simpson to
release Miguel immediately. Simpson's testimony on direct examina-
tion substantiated that of Jahries in giving rudeness to customers,
and particularly her rudeness to a customer on the day of her dis-
charge, as the cause for Miguel's dismissal .22
In order to evaluate the respondent's defense it is necessary to con-
sider the immediate circumstances of Miguel's dismissal.
On February 3,1939, Miguel requested and received permission from
O'Neill to leave the store at 3: 15 p. m. When Miguel approached the
time clock she was met by Simpson, who asked her to come into the
office. Miguel entered the office and found O'Neill and Matsui there.
An office employee took notes of the interview. Miguel's version of
the ensuing conversation is as follows : Simpson told Miguel that about
an hour before a lady had come to her counter, asked Miguel for heel
protectors, and that Miguel had told the customer that the respondent
did not carry them in the store. She further asserted : "I said, `We
did not carry any in the store.' Then he [Simpson] said, `How do you
know?' I said, `About a couple of weeks ago there is a lady came in
and asked for the same thing and Miss O'Neill told some of us girls
we don't carry them....' I said, `Why should I send a lady around
the store while I know we do not carry them in the store P He said,
`Why didn't I send them down to the information department?' I
said, `There is a lot of customers come to the counter and squawk be-
cause we send them around the store when we know we do not carry
them.' I said 'Why-should we send them to the information depart-
ment when we know we don't carry them V He said, `I make a good
sales girl.' I said, `Go ahead, Mr. Simpson.' He said, `You asked for
it, Miss Miguel.' I said, `O. K.' and everything was over." Simpson's
account of the interview substantiated the preceding testimony.
21 As a matter of fact Miguel was on a union committee set up to deal with the matter of
lifting boxes . Simpson 's attempt to find the person who made the complaint serves, in our
opinion, to strengthen the inference that the respondent had knowledge of Miguel's union
activity.
12 On cross-examination , however, Simpson contended that while such was the immediate
reason other incidents involving rudeness , gum chewing, and leaving her shoes in the cloak-
room, were contributing factors to her discharge
S. H. KRESS & COMPANY 1187
Simpson added, however, that he had told Miguel she had been rude to
the customer in question and he had given continued rudeness as the
reason for her discharge. Upon the basis of the entire record we
credit, as the Trial Examiner apparently did, Miguel's version of the
interview.
It thus appears that at her discharge Miguel was charged only with
improper behavior toward a customer, a fact which greatly reduces the
significance of the evidence adduced by the respondent to show other
alleged misconduct by Miguel and renders suspect the motives for the
much broader defense brought forward in the amended answer and at
the hearing.
In any event it does not appear that the conduct of Miguel which
ostensibly was the immediate occasion for her discharge either was
rude or violated applicable store instructions. According to Miguel's
uncontradicted testimony, if there was a request for an article not at
the salegirl's counter and the salesgirl knew that the store did not carry
it, she could so inform the customer. Ellen Lum, an office employee
whose report the respondent relied upon to establish Miguel's mis-
behavior, testified that in the situation she had reported to Helwig and
Simpson, Miguel had answered the customer who asked her for a cer-
tain kind of merchandise by saying, "I don't know," and shrugging her
shoulders. However, not only did Miguel deny that she had said that
she did not know, but as we have found upon the basis of the testimony
both of Miguel and Simpson, at her discharge Simpson accused her
of replying that the store did not carry the article. For this reason
and upon the basis of the entire record we credit the testimony of
Miguel and find that such in substance was her reply. Miguel explic-
itly denied that any heel protectors were sold at the time in question;
O'Neill did not deny Miguel's assertion that O'Neill hid informed
the salesgirls of that fact. We conclude that heel protectors were not
then being sold. Under such circumstances Miguel, in communicating
to the customer what was the fact, was conforming exactly to store pro-
cedure. This conclusion is substantiated by the fact that at the hear-
ing Jahries and Simpson did not contend that Miguel had not con-
formed to that procedure but rather asserted that she had been "rude."
As for the rudeness attributed to Miguel, we have found above
that she had complied with prevailing procedure in making answer.
Miguel also denied that she had deliberately walked away from the
customer as Simpson claimed to have charged at-her dismissal. In
this respect it must be noted that Lum's account of Miguel's alleged
misbehavior differs from Simpson's accusation at her discharge in
that Lum made no mention of Miguel's leaving the customer standing;
the two accounts, as stated above, also differ in respect to Miguel's
alleged reply. There are other inconsistencies in the testimony of
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's witnesses concerning the circumstances leading to
Miguel's discharge. In view of the uncertain character of the testi-
mony adduced by the respondent we conclude, upon the basis of
Miguel's assertions, that she was not rude in the manner in which
she had been charged. -
It is significant, too, that Jahries admitted making no investigation
of Lum's report before ordering Miguel's discharge. Simpson cor-
roborated the fact that when Miguel was called up before himself,
O'Neill, Matsui, and a stenographer the decision to discharge her
had already been made. Miguel was not confronted with Lum.
Simpson said that he did not inquire of anyone at Miguel's counter
whether the incident had occurred, although he asserted that he had
spoken to Lurn and to O'Neill, who had to direct the customer Miguel
had slighted.23 It is clear, therefore, that Miguel's discharge was
decided upon before full investigation of Lum's report.
Miguel received noteworthy praise for her work as a salesgirl.
She testified that O'Neill had told her that she did very good work.
O'Neill, however, stated that the only praise she gave Miguel took
the form of a compliment on her counter display just before Christ-
mas 1938. We shall credit O'Neill in this respect, as the Trial Ex-
aminer apparently did. In addition, Miguel testified without
contradiction, and we find, that she was praised for her good work
by head saleslady Seto, her immediate supervisor, on some three
different occasions. ' One compliment was given before the Christmas
rush of 1938 and another the day she left the store. On that day
Seto told her that she was "doing very nice work" and it was best for
her to leave, anyhow, the way Mr. Simpson was picking on her.
Seto was not called to testify.
On the other hand, however, Jahries, Simpson, and O'Neill made
various assertions concerning other miscellaneous instances of Mi-
guel's shortcomings., Simpson admitted that all but one of the
instances 24 he related took place after his investigation into the union
complaint about the lifting of heavy boxes. The evidence concerning
these instances confirms the conclusion that Miguel was thereafter
made the target of Simpson's unjust criticism because of her prom-
inence in the controversy over the lifting of the boxes.
In mid-December 1938 Miguel, who was inquiring about a pair
of shoes. she had lost, was taken to task by Simpson for not following
instructions prohibiting girls from leaving such property in the
cloakroom. Shortly after that time she was instructed not to use the
cash register. Miguel testified without contradiction that O'Neill
23Lum, however , testified that she herself could not assist the customer because the
woman walked out of the store after receiving Miguel's reply O'Neill.did not testify con-
cerning this matter
24 That one involved gum-chewing.,
S. H. KRESS & COMPANY 1189
informed her that she had been removed from the cash register on
Seto's instructions and that Seto told her the purpose was to check
on the cause for the failure of actual sales made and register totals
to balance. But after the Christmas rush in 1938 Miguel was called
into Jahries' office where Jahries informed her that she had been
,prevented from operating the register because of her inability to
do so, as proven by a report by Simpson of her failure to give a
customer a receipt. Simpson did not testify to any such report.
Miguel testified that Simpson never mentioned any such occurrence
to her and she denied that it had happened. Upon the basis of the
entire record we credit her denial. At the conference with Jahries,
Miguel Was informed that she would be given another chance. Dur-
ing that conference the only aspect of her work that was discussed
was her ability to operate a register.
Simpson and O'Neill testified to other alleged acts of Miguel prior
to September 1938. Miguel either denied the occurrence of these
incidents or asserted that she had not been reprimanded because of
them.
The bulk of the foregoing alleged derelictions, if they occurred,
were trifling and they occurred a considerable( time before her dis-
charge. It is not clear, even from the respondent's evidence, how
many of these derelictions figured in her discharge.25 They were
significantly not mentioned when Jahries interviewed her in De-
cember 1938. They were not mentioned to her at the time of her
dismissal. In view of the praise of Miguel's work, the evidence of
the hostility of Simpson and O'Neill to the Honolulu Union, and the
other considerations set forth above, we conclude that none of these
alleged derelictions had bearing upon Miguel's discharge. We are
further convinced that Miguel did not act improperly toward a
customer on the day of her discharge and that the claim that she
had done so was used by the respondent as a pretext to justify her
dismissal because of her union membership and activity.
Upon the basis of the entire record, we find that the respondent
discriminated in regard to the hire and tenure of employment of
Mary Miguel, thereby discouraging membership in, the Honolulu
Union and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Miguel does not desire reinstatement.
Allen Gima was first employed by the respondent as a stockman
on April 22, 1937, and was placed on the full-time list on May 10,
1937. Sometime between November 1938 and the date of his dis-
25 Simpson testified that some of them were contributing factors . Jahries, however, who
claimed to have instructed Simpson to discharge Miguel , did not testify to discussing with
Simpson more than Lum's report of rudeness and his talk with Miguel at Christmas.
451269-42-vol. 34-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge his wages were raised from $12 to $17 a week. On March 8,
1939, he was, on Jahries' instruction, discharged by Simpson.
Gima was a charter member of the Honolulu Union, having joined
at its first meeting in April 1938. On June 17, 1938, he was elected
chairman of the grievance committee and on July 6, 1938, sergeant-
at-arms of the Honolulu Union.
Gima's satisfactory work was undisputed. The respondent con-
tended that he was discharged pursuant to its policy against employ-
ing in any of its stores persons who are related. There is no doubt
about the existence of such a national rule. Although the rule had not
always been strictly enforced in the Honolulu store, it began to be
enforced in the latter part of March 1938.
On October 22, 1938, Gima married Hatsuko Ona. The girl's
parents had raised George Morine, also a stockman at the Honolulu
store '21 but Morine was not related to the Onas and was never legally
adopted by them. Before the marriage Gima and Morine had lived
in the same house in Honolulu and they continued to do so after the
marriage, with Morine sharing expenses with the couple. Morine at
times introduced Gima's wife as his sister and testified that he con-
sidered her to be his sister.
On February 13, 1939, collective bargaining negotiations between
the respondent and the Honolulu Union which had begun on August
15, 1938, ended, as stated below, without the conclusion of any agree-
ment. About the middle of February Simpson informed Gima that
because relatives could not work in the same store he would have to
seek other employment. Gima denied that Morine was related to
him. At the time of Gima's dismissal on March 8 Simpson had
full knowledge of the exact nature of the above-described relationship
between Morine and Gima's wife. By letter of March 31, 1939, the
respondent refused to reconsider its action and reinstate Gima, as
the Honolulu Union had requested. At a subsequent conference be-
tween representatives of the respondent and the Honolulu Union it
was stressed by the union spokesmen that Morine and Gima's wife
were not brother and sister. Representatives of the respondent
argued that it was understood by everybody in the store that they
were and that according to Japanese custom those who stayed to-
gether were considered brother and sister.
The latter contention was not advanced at the hearing by the
respondent, a circumstance which leads us to regard its defense with
suspicion. Furthermore, there appears to have been some delay in
taking action against Gima after the respondent had knowledge of his
alleged relationship to Morine. Hazel Kawamoto, an office employee
" Morine was likewise a charter member of the Honolulu Union. In July 1938 he became
its vice president At the time of the hearing he was still employed by the respondent.
S. H. KRESS & COMPANY 1191
of the respondent, testified, and we find, that as early as December
1938 she reported to Jahries that Gima was married to George Mo-
rine's sister." According to Simpson, he probably returned from
Hilo, where he had procured such knowledge, about January 19, 1939,
and thereafter consulted with Jahries. But Gima was not inter-
rogated concerning, his marriage or notified to leave until about
February 15. No explanation was offered by the respondent either
for the failure to act on Kawamoto's report or for the delay in acting
on Simpson's report.
The applicability to Gima of the rule forbidding the employment
of relatives is subject to much question. The respondent was unable
satisfactorily to establish the occurrence of any comparable situation
either at Honolulu or elsewhere. It was Jahries' contention that
independently of instructions from the main office in New York, he
had power to determine the scope of the rule. In view of the unusual
character of Gima's case we conclude that it was not mandatory on
Jahries to discharge him. The rule was nevertheless invoked to
threaten the employment of two union officers and result in the dis-
missal of one of them.27 The respondent's manifest antagonism to
the Honolulu Union, its resort in other discharges to the use of pre-
texts to cloak discrimination, and the other facts stated above per-
suade us that Gima was discharged because of his union membership
and activity.
Upon the basis of the entire record, we find that the respondent
has discriminated in regard to the hire and tenure of employment of
Allen Gima, thereby discouraging membership in the Honolulu Union
and interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act.
3. Alleged refusal to bargain collectively
The amended complaint alleged that the respondent had since
August 15, 1938, refused in two respects to bargain collectively
in good faith with the Honolulu Union, the exclusive bargaining
agent in an appropriate unit. The two respects were : a refusal to
consider the inclusion in an agreement of a provision granting the
Honolulu Union the right to represent employees in grievances aris-
ing out of seniority, lay-offs, and discharges; and a refusal to con-
tract with regard to seniority. It was stipulated that in every other
respect the respondent had bargained in good faith in_ the conferences
which lasted from August 15, 1938, until February 13, 1939, but which
27 Jahries testified that he instructed Simpson to keep the better of the two, as between
Morine and Gima. Morine was retained . Morine was hired only shortly before Gima.
The respondent 's brief conceded that "no question is raised concerning ( Gima 's) efficiency
or the quality of his work ." The respondent gave no explanation for preferring Morine.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yielded no agreement. The Trial Examiner recommended the dismis-
sal of the foregoing allegations on the ground that the Honolulu
Union did not on and after August 15, 1938, represent a Majority of
the employees in an appropriate unit. The Honolulu Union took
no exception to his recommendation.
We cannot agree with the basis for dismissal adopted by the Trial
Examiner. He found a broader unit than that alleged in the com-
plaint and relied exclusively on union designations in reckoning the
number represented. But the record shows that on May 27, 1938,
the Honolulu Union participated in a consent election in a unit
substantially the same as that alleged in the complaint. The respond-
ent bound itself in the consent election agreement to recognize the
Honolulu Union as the exclusive bargaining agency if it received a
majority of the votes cast, and the Honolulu Union received such a
majority. At no time after this election and prior to the filing of
its answer in this proceeding, does it appear that the respondent
challenged the majority status of the Honolulu Union. Bargaining
negotiations began on August 15, 1938, about 3 months after the,con-
sent election. We are of the opinion that the consent election deter-
mined the question of majority for a reasonable time thereafter and
that the period of 3 months was within the limits of that time.
There was no showing that the Honolulu Union thereafter lost its
majority. The number of union designations given before and after
the election could not be as reliable an index of employee preference
as the consent election.28 -
However, the record of the bargaining negotiations discloses a
possible failure by respondent to bargain in good faith in only one
particular, namely, a refusal to contract with regard to seniority,
even though the contract should merely embody admittedly existing
practice, on the asserted ground that to do so would lead to con-
troversy. At a meeting in October 1938, substantially before the
close of bargaining negotiations, a union representative indicated
he was withdrawing the demand for seniority rights, subject to the
approval of the membership. It does not appear that seniority was
thereafter the subject of negotiation; presumably the membership
acquiesced in the withdrawal of the proposal.
In view of the narrow respect in which a refusal to bargain might
be found, and the Honolulu Union's failure to take exception to the
Trial Examiner's adverse finding on the issue of refusal to bargain,
we shall dismiss the allegations of a failure to bargain in good faith
at the Honolulu store.
The Trial Examiner found 73 valid designations in his unit . The Honolulu Union
received 79 votes within a smaller unit in the consent election
S. H. KRESS & COMPANY 1193
B. Hilo
1. The formation of the Hilo Union and the alleged discriminatory
discharge of Thomas Nakashima
The amended complaint alleged, and the amended answer denied,
that the respondent discriminatorily discharged Thomas Nakashima.
The Trial Examiner recommended the dismissal of this allegation and
the Hilo Union took exception to the recommendation.
Nakashima entered the respondent's employ in August 1936 as a
stockman assigned to' the hardware department. He remained in
this department until the time of his'discharge. His original com-
pensation was $14 a week. He. received several pay increases there-
after and, at the time of his discharge on December 5, 1938, his pay
was $20 a week. '
During the early part of November 1938, certain of the employees
of the respondent's Hilo store began to discuss among themselves the
possibility of organizing a union. On November 28, 1938, the first
official meeting of the Hilo Union was held in the Parrish Hall at
Hilo. Nakashima arranged for this meeting and was elected presi-
dent. A document authorizing the Hilo Union to represent the
signatories in dealing for collective bargaining with the respondent
was circulated and signed by several employees at this meeting. At
this meeting the membership determined to- institute a drive for
additional union members.
The day after this first regular union meeting George Yamamoto,
one of the members, was approached by May Nakamura, the re-
spondent's head cashier. She asked Yamamoto if he had attended the
union meeting. Yamamoto denied that he had. The next day Naka-
mura again approached Yamamoto and asked him what was done at
the union meeting. Yamamoto then informed her that the members
had formed a union and were about to engage in a membership drive.
Nakamura did not testify at the hearing. However, the record shows
that at meetings between representatives of the Hilo Union and the
respondent held later, she acted as stenographer for the respondent.
After this meeting Nakashima kept for a few days the document
authorizing the Hilo Union to represent the signers and secured addi-
tional signatures to it. On December 2, 1938, a second regular meet-
ing of the Hilo Union was held, attended by Nakashima and Kamoku.
At this meeting Nakashima and Kamoku were selected as a committee
to inform Janzen, manager of the Hilo store, of the formation of
the Hilo Union and to request a conference for the purpose of secur-
ing the respondent's recognition of the Hilo Union and the establish-
ment of bargaining between the Hilo Union and the respondent. At
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting it was resolved that Janzen was to be approached by
this committee the following Sunday, December 4, 1938.
On December 4, 1938, Kamoku telephoned Janzen. There is a
conflict in the testimony as to what was said on this occasion.
Kamoku testified that he stated that a union had been formed at the
respondent's store and that the Hilo Union wanted to meet with
Janzen to discuss recognition. Upon the basis of the credence given
by the Trial Examiner to Kamoku's testimony and of the entire
record, we find the conversation to have been in substance as
Kamoku asserted. Nothing about Nakashima was mentioned to
Janzen at that time. Janzen then told Kamoku that he did not desire
to meet on Sunday, but invited Kamoku to call him (presumably
by telephone) on Monday afternoon; the following day, which was
December 5, 1938.
As stated above, Nakashima was discharged on December 5.
The respondent's amended answer asserts that Nakashima was dis-
charged for violation of the respondent's store rules ; failure to tell the
respondent's manager the truth with regard to matters pertaining to
his conduct in the store; and threatening other employees during
working hours. Janzen traced Nakashima's difficulties to an incident
which preceded his discharge by about two months.
On October 13 or 14, 1938, in the late afternoon, Janzen had dis-
covered Nakashima and a salesgirl embracing each other on the second
floor in a storage room. While the record contains different versions
of what was said by Janzen and Nakashima on this occasion and on
the following day, relying upon the credit given by the Trial Exam-
iner to Janzen's testimony, we find the following inter alia to have
occurred : Janzen suggested to both parties that they obtain their
pay and leave the employ of the respondent. Nakashima protested,
begged that he be retained and that the girl be excused. He assured
Janzen that he had never done anything similar before and would
never do it again. Janzen then related a similar experience he had
had in another store where he had given the employees involved
another chance. He said, as to this other situation, that the story
had "leaked out" among the other employees, causing gossip
which resulted in an impossible situation from the standpoint of
discipline and morale. Finally, he explained, he had been compelled
to discharge the two" employees at the other store because they had
not kept their conduct secret. Janzen then told Nakashima to return
to his regular work, that he would think the matter over and give him
a decision the next day. In the interim, he cautioned, Nakashima was
not to disclose the matter to anyone.
The following day Janzen called Nakashima aside and after re-
ceiving further assurance that no such conduct had previously been
S. H. KRESS & COMPANY 1195
engaged in or would be repeated told Nakashima that he had decided
to give him another chance. He informed Nakashima that before
he had discovered his misconduct of the preceding day, he had put
through an order for a pay increase for Nakashima. He said that he
did not want to cause any questioning among the office employees
and therefore he would not rescind this pay-increase order. He
cautioned Nakashima and the girl involved not to ' disclose their
misconduct to other employees. Janzen, while then excusing
Nakashima's conduct, made as a condition of this excuse, the secrecy
of the conduct. Nakashima continued in his regular occupation
and obtained the ordered increase in pay.
About November 14, 1938, Janzen instructed the stockboys, in-
cluding Nakashima, to report for work in the evening for the purpose
,of trimming the ledges of the shelves on the sales floor preparatory
to the Christmas rush. Although Nakashima reported for work in
the evening, he did not go to the sales floor but went to the second
floor, where his customary duties were performed. Janzen, observing
that Nakashima was not on the sales floor, went to the second floor
where he located Nakashima, informed him that he was needed on
the first floor, that the purpose of requesting his overtime work was
to utilize his services in -ledge trimming on the first floor. Nakashima
then went downstairs and worked with the other employees in trim-
ming the ledges. At the completion of this work, Nakashima ap-
proached Janzen and asked him if the stockboys would get time off
for the overtime work. Janzen replied that no time off would be
allowed. Then Janzen stated to Nakashima that he had been noticing
Nakashima's attitude toward his work, that he did not show the
proper attitude, and suggested that, if Nakashima was not interested
in his work, he obtain another job. Nakashima said that he was not
feeling well and assured Janzen that he did like his work.
About November 20, 1938, a few days following the ledge-trimming
incident, Janzen, having formed the opinion that Nakashima was not
to be completely trusted in his work, relieved him of an assignment
which he had of oiling the elevator.
On December 2, 1938, Janzen, who had become concerned about
Nakashima's conduct in the store, approached Miss Chun, one of the
employees, and asked her if Nakashima had always behaved him-
self. Chun then told Janzen that she knew of the kissing incident of
mid-October 1938, and that all the girls in the store were whispering
about it. Chun also informed him that during the fall of 1938,
when Janzen was on his vacation, she had seen Nakashima go down
the stairs in the store with his arm around one of the salesgirls,
and that Emily Cabral had informed her that one evening shortly
before Christmas 1937 Cabral had seen Nakashima take one of the
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salesgirls across an alley adjacent to the store and into a vacant
garage.
On the morning of December 3, 1938, Janzen approached Naka-
shima and asked him if he had been "standing close to the sales-
girls," had been putting his arms around them, and had taken a girl
into a vacant garage. Nakashima denied the charges and demanded
to be confronted by his accusers. After his conversation with Naka-
shima, Janzen went to the post office. He testified that on his
trip there he thought over the matter. On his return to the store
he suggested to Nakashima that he leave the respondent's employ
of his own accord. Nakashima refused. Janzen then said that he
would have his choice of either leaving voluntarily or being dis-
charged.
On Monday, December 5, 1938, Nakashima returned to the re-
spondent's store and resumed his regular duties. Shortly after work
in the store commenced, Janzen saw Nakashima follow Emily Cabral
into an anteroom. On emerging from the room, Cabral seemed to be
very much agitated. Janzen asked Cabral what was wrong. Cabral
said, "Oh, Thomas," and refused to make any further statement.
Janzen then requested that she come to his office, which she did.
He then questioned her further about her relations with Nakashima.
She told Janzen that she had seen Nakashima and a salesgirl go into
a vacant garage near the store during the Christmas rush in 1937 and
that Nakashima had warned her not to say anything about the event.
She also stated that Nakashima had again warned her in the anteroom
that morning.
Janzen then called Chun into his office where, in accordance with
his instructions, she made a written report of the incidents that he
had ascribed to Nakashima on December 3. Janzen then instructed
the cashier to prepare Nakashima's pay. Thereafter, about 5: 00
p. m. on the same day, Janzen called Nakashima to the information
desk and offered him his pay. Nakashima declined to accept it.
Janzen then informed Nakashima that his services were dispensed
with. Nakashima asked why he was being discharged, and Janzen
replied that he had stated the reasons on Saturday, December 3.
After the discharge, Nakashima immediately reported the fact to
Kamoku. .
On December 6, 1938, Nakashima and Kamoku called on Janzen.
At that time Kamoku asked Janzen for the reasons for Nakashima's
discharge. Janzen informed Kamoku that the reason was miscon-
duct, but he did not elaborate. Kamoku then' stated that the only
reason for Nakashima's discharge was that he was president of the
Hilo Union and, according to Kamoku's testimony, "We signed up
S. H. KRESS & COMPANY 1197
as members workers in this store, and he acted surprised. He [Jan-
zen] said, `Well, I didn't know that,' and I told him yes."
Upon the entire record, we find that Janzen's reasons for Naka-
shima's discharge were his publicly known misconduct and his failure
to report other incidents of misconduct to Janzen at the time he was
permitted to remain on the pay roll in October 1938. We find that
the respondent has not unlawfully discriminated against Thomas
Nakashima in regard to hire and tenure of employment.
2. Refusal to bargain collectively and the strike of December 22, 1938
The amended complaint alleged, and the amended answer denied,
that on and after December 8, 1938, the respondent refused to recog-
nize or bargain collectively with the Hilo Union. The Trial Exam-
iner recommended the dismissal of the allegation on the ground that
the Hilo Union was not the majority representative in an appropriate
snit during the period in question. The Hilo Union excepted to the
recommendation.
a. The appropriate unit
The amended complaint alleged and the amended answer denied,
that all employees at the Hilo store, excluding the manager, floor-
ladies, office employees and irregular, Saturday-only and extra em-
ployees,29 constituted an appropriate unit for purposes of collective
bargaining.
The record clearly justifies the , exclusion of the manager, floor-
ladies and office employees. The manager and the floorladies 30 ex-
ercise supervisory functions. The office employees 31 are a group
separate from the rest of the employees. There is a further question
about Anna Ahulau -whom the Board attorney seeks to exclude as
an office employee and the respondent seek to include. Although
it appears that she engaged in some office work and relieved floor-
ladies to some extent from September 1938 through January 1939,
she performed only non-supervisory tasks of a floorlady such as
getting change and devoted the major part of her time to sales work.
We shall accordingly include her within the unit.
At the Hilo Store the size of the pay roll varies and extra em-
ployees are hired on Saturdays, during the Christmas rush periods,
"The amended complaint also named "learner" as an excluded category but no such
persons have been employed at the Hilo place from or after December 1938
ao Floorladies are responsible for and direct the work of salesgirls , report their mistakes
and violations of rules, transfer them from counter to counter , and are consulted concern-
ing lay-offs and discharges . During the period in question there were two floorladies.
"Apart from Anna Ahulau , they consist of a'cashier and assistant cashier who keep rec-
ords of sales , prepare reports and orders, and do similar work, in addition to acting as
occasional secretaries to the manager.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and sometimes for the Easter rush, pre-school rush and dry goods
sale. These extra employees are hired when needed from the persons
who apply at the time and without reference to applications on file.
The Easter rush period lasts from 1 to 2 weeks; the Christmas rush
ordinarily begins during the first week of December and extra em-
ployees are needed until the end of the year. This was true in 1938.
In 1939, no extra employees were hired for the Easter rush or for
school rush, and, before December,7, additional help for the Christ-
mas rush was not employed and Saturday-only employees worked
only on Saturdays. During 1938 the pre-school rush and dry-goods
sale coincided and extra employees were hired for the period from
August 1 until the middle of September; some Saturday-only em-
ployees worked as extras during these rush periods.
The pay roll for the week of December 24, 1938, shows some sales-
girls hired after December 1, 1938; these we find to be extras.32 It
also discloses about 34 salesgirls who began to work before mid-
November or December 1938 and who did not work part time or
Saturdays only, immediately before that time; these we find to be
regular full-time employees. As evidence of the fact that there were
34 regular full-time girls on December 22, 1938, it appears that dur-
ing 1939 there were between 32 and 36 §alesgirls working regularly
full time prior to December 7.33 Finally the December 24, 1938,
pay roll contains the names of a group of about 12 salesgirls who
in 1938 worked on Saturdays and during the pre-school rush and
dry goods sale and again about the time of the Christmas rush; 84
such employees we find to be both irregular and Saturday-only em-
ployees. It does not appear that for the pay-roll period in.question,
contrary to the situation for most of 1939, there were any employees
who worked only on Saturdays.
As for the ordinary male employees, all of whom worked in the
stockroom, the number of regulars employed on December 22, 1938,
was five.35
sa There were over 60 of them.
Is On the pay roll for January 14, 1939, appear the names of 33 regular full-time
salesgirls.
14 Five of the 12 commenced their last period of full-time employment not immediately
before or during December , but on November 12, 1938. Jahries admitted, however, that
some extra employees were hired 2 or 3 weeks before December 1 in order to do preparation
work for the Christmas rush, and we find that the five employees referred to above fall
within the class described by Jahries.
81 This number does not include Nakashima whom we found to have been properly dis-
charged on December 5. In 1938 and 1939 the average number of male employees was six
The respondent argued particularly for the inclusion of two men who began to work full
time on November 28, 1938, and continued to be employed after the Christmas rush. The
evidence reveals them to be extras : they were named as such by Nakashima ; one of them
testified that Janzen on hiring him told him that he was being employed temporarily for the
Christmas rush.
S. H. KRESS & COMPANY 1199
The Hilo Union sought to exclude from its membership part-time
employees. At its first formal meeting on November 28, 1938, Naka-
,shima declared them ineligible. Of the 27 signatures of employees
on a document designating the Hilo Union as their representative and
containing a column headed "number of years" employed, only 2 were
not regular full-time employees. The signature of at least one of the
two was not solicited. The respondent itself distinguished between
regular full-time employees and part-time employees by granting vaca-
tions with pay, bonuses, and insurance policies only to the former
group.36
Since the respondent differentiated regular full-time employees
from the rest with respect to continuity and other conditions of em-
ployment and since the Hilo Union organized itself upon the basis
of that difference, we exclude from the appropriate unit the irregular,
Saturday-only and extra employees.37
We find that all employees of the respondent at its Hilo store, ex-
cluding the manager, floorladies, office employees, and irregular, Satur-
day-only and extra employees at all times material herein have
constituted and now constitute a unit appropriate for the purposes
of collective bargaining, and that such unit insures to employees of
the respondent the full benefit of their right to self-organization and
collective bargaining and otherwise effectuates the policies Iof the Act.
b. Representation by the Hilo Union of the majority in the appropriate
unit
On December 22, 1038, the first critical date of the refusal to bargain,
the number of employees in the appropriate unit was 40. A petition
circulated shortly before that time and designating the Hilo Union
as bargaining agent bears the names of 24 persons 38 in the appro-
priate unit. About noon on December 22 or soon thereafter all but 1
' Only employees who have worked continuously from September 1 of any year are given
vacations in the summer of the year following . None other than those employees who have
worked full time for 6 months are eligible for group insurance . In 1938 bonuses were paid
solely to employees working on December 24 who had more than 11 months employment in
that year.
37 Matter of Bishop & Company, Inc. and United Cracker, Bakery and Confectionery Work-
ers, etc., 4 N . L. R. B. 514 ; Matter of Agwilines, Inc. and Brotherhood of Railway and
Steamship Clerks, etc ., 12 N. L R. B. 636; Matter of Wilson and Co., Inc. and Local No. 37,
United Packinghouse Workers of Amer., etc., 15 N. L. R. B. 195. In arriving at our deter-
mination of the appropriate unit, we have considered the facts that after the respondent
refused to bargain with the Hilo Union , the Union called a strike , and some part-time
employees joined therein , picketed , and received transportation money from the Hilo Union
for so doing , that their participation was not requested by the Hilo Union, and that they
acted merely as observers at union meetings.
zs The signatures of all but one of these persons were identified However, the employee
in question participated for a short time in the strike called by the Hilo Union and we find
her designation to be sufficiently established.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the 24 signers of the petition referred to above went out on strike 39
because of the alleged discriminatory discharge of Nakashima and
the refusal to recognize the Hilo Union. As hereinafter described in
Section III B 3, about January 1, 1939, the respondent filled the posi-
tions of striking union members with employees who theretofore had
been irregular and extra employees. Since we find below that before
January 1 the respondent committed unfair labor practices which
caused and prolonged the strike, the replacement of the strikers with
other employees could not operate to dissipate the majority of the Hilo
Union4e
We find that on December 22, 1938, and at all times thereafter the
Hilo Union was the duly designated representative of the employees
in the appropriate unit, and, pursuant to Section 9 (a) of the Act,
was, and now is the exclusive representative of all the employees in
such unit for the purposes of collective bargaining with respect to rates
of pay, wages,- hours of employment, and other conditions of
employment.
c. The ref veal to bargain and the strike of December 02
1. The events
As already noted, at a meeting held on December 2, 1938, the union
membership elected a negotiating committee and authorized officials
of other unions to assist the committee in securing recognition of the
Hilo Union by the respondent. C. I. O. Organizer Kamoku, by tele-
phone conversations on December 4 and 5 arranged a meeting with
Janzen for December 8. As we have found, on December 4 Kamoku
told Janzen that the committee desired a conference for the purpose
of discussing the recognition of the Union which had been organized
at the Hilo store.
&' Three of them returned to work before the removal of the picket line. The respondent
in its brief has urged that failure to go out on strike on December 22, even if an employee
later did so, or abandonment of the strike, constituted an implied revocation of any desig-
nation of the Hilo Union. However , the continuance of the majority of the Hilo Union is
presumed until the contrary has been shown . International Association of Machinists v.
N. L. it. B, 311 U. S. 72, aff'g 110 F. (2d) 629 (App. D. C.), enf'g Matter of The Serrick
Corp . and Int ' l Union, United Automobile Workers of Amer., etc, 8 N L. R. B 621. It has
not been established that any failure or delay in joining the strike, or any abandonment of
it, was intended as a withdrawal of a designation of the Hilo Union. Moreover, we have
found below that the strike was caused and prolonged by the respondent's unfair labor prac-
tices. Under the circumstances , even if subsequent absences or defections from the ranks
of the strikers constituted revocations , we do not consider them to have been freely made or
valid. N. L. R. B. v. Bradford Dyeing Association , 310 U. S. 318; International Associa-
tion of Machinists v. N. L. it. B, 311 U. S. 72, affirming 110 F. (2d) 29 (App. D. C.)
N L. R. B. v. Sunshine Mining Co., 110 F. (2d) 780 (C C A 9), cert denied 312 U S 678,
enf'g Matter of Sunshine Mining Co. and Int'l Union of Mine, Mill and Smelter Workers,-
7 N. L R. B. 1252.
40 Ibid -
S. - H. KRESS & COMPANY 1201
At a meeting between Kamoku, Nakashima, and Janzen on Decem-
ber 6 for the purpose of discussing Nakashima's discharge, Janzen
admitted, and we find, that Kamoku told him that the Hilo Union
had the store 90 per cent organized; the appointment for the meeting
of December 8 was confirmed.
On Thursday, December 8, a committee composed of Kamoku, Naka-
shima, and officials of other Hilo unions called at the store to keep
the appointment with Janzen. The committeemen were received by
Janzen in the aisle of the store and, after the introductions, Janzen
attempted to excuse himself 41 but was induced to remain to receive
a proposed agreement for exclusive recognition of the Hilo Union.
Kanioku and Nakashima testified, and Janzen denied, that Kamoku
advised Janzen of the claim of the Hilo Union to a majority (of the
"steady employees," according to Kamoku) and offered to prove that
claim. Upon the basis of the entire record we credit the testimony
of Kamoku and Nakashima and find that, in substance, the claim and
the offer testified to by them were made.
Kamoku and Nakashima also testified that Janzen stated that he
had no authority to sign the agreement and would refer the matter
to Jahries, manager of the Honolulu store. Janzen testified that
Jahries was not mentioned and that he told the committee that he
would request instructions from the main office in New York City. But
in fact he did not do so. Janzen further testified, and we find, that
he immediately prepared a letter to Jahries 42 to accompany a copy of
the recognition proposal, and that he told the committee that he might
have a reply for them on December 12 or 13. According to Janzen
the letter was never sent because Jahries "happened" to arrive in Hilo
the next day. Janzen's explanation for writing to Jahries instead
of to New York was that he did not know to whom in New York he
should write, and that he hoped to secure this information from
Jahries. But the letter Janzen wrote for Jahries 43 did not seek any
advice on the proper persons to be consulted, nor did it ask Jahries
41 Janzen 's explanation for this action , advanced at the hearing , was that he thought the
sole purpose of the meeting was to meet some union officials . But Kamoku ' s statements of
December 4 and 6 render this explanation incredible and served , we find, to give ample
notice to Janzen of the purpose of the December 8 meeting.
42 Janzen denied that Jahries had any connection with the Hilo store or that he (Janzen)
received any instructions from Honolulu regarding the operation of his store . The follow-
ing testimony , however, establishes some basis for Janzen 's consulting Jahries :
Trial Examiner KENNEDY. Is Mr . Jahries superior to you in any way?
WITNESS I don 't know, he is manager of the Honolulu store I presume he has
worked for the company longer and in possibly that way might be superior but I wouldn't
want to put it that way
41 Along with the letter Janzen asserted that he prepared a copy of notes he took of the
December 8 conference . The copy is in evidence as is a copy of a similar document relat-
ing to. the December 13 conference. Neither is a complete or verbatim transcript of a
conference . They appear to have been written with an eye to subsequent proceedings. We
are not convinced of their accuracy.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to communicate with such persons. Instead it raised a number of
doubts concerning the status of the union committee, including its
representation of a majority of the employees'44 and than proceeded
to suggest that the press of year-end business at Hilo and the time
needed to resolve such doubts would require either the transfer of
negotiations to Honolulu, the employment of Hilo counsel responsible
to Jahries, or the statement to the Hilo Union by Honolulu counsel
of the circumstances necessitating delay. The character and phras-
ing of the suggestions indicate that Jahries had the power to adopt
them. In view of the foregoing considerations, we credit the testi-
mony of Kamoku and Nakashima, and find, upon the basis of the
entire record, that Janzen did tell them that he had no authority to
sign the recognition proposal but would refer it to Jahries.
According to Janzen, when Jahries came he took the proposed agree-
ment and said he would discuss it with Kimball, the respondent's
counsel in Honolulu and then he' would forward it to New York.
Janzen admitted that he did not learn from Jahries whom to communi-
cate with about recognition; he testified that Jahries told him to send
to Honolulu anything further that came up so that Jahries could take
it to Kimball and then transmit it to New York. The preceding
testimony we find to be true.
Kamoku and Nakashima testified that at the next meeting, which
was held on December 13, they and other union officials were told by
Janzen that he had received an answer from Jahries, that Jahries
was unable to do anything about their request for recognition, had
referred the matter to the New York office, and that they would have
to await a reply from that office. Janzen's version was that he was
again requested to sign the proposed agreement, but asserted that he
could not for several reasons, one of them being lack of authority to
do so; that when asked to state who was so authorized, he replied that
he did not know; that he said he did not think Jahries was authorized
and was of the belief that it had to be an officer of the respondent; and
that he referred Kamoku to a picture of the officers. In view of
Janzen's own testimony as to what he arranged, with Jahries, and
upon the basis of the entire record, we credit the foregoing account
of the two representatives of the Hilo Union.
Janzen dispatched to Jahries an alleged description of the December
13 meeting which also contained his own observations about the meet-
ing. According to a copy of the letter produced by Janzen, Jahries
was informed of further doubts entertained by 'him concerning
"The other doubts were: whether the Hilo Union existed, whether its members, if any,
desired to have the Hilo Union recognized , or to be represented by the committe beaded by
Kamoku.
S. H. KRESS & COMPANY 1203
the representative authority of the union committee present on
December 13 45
The Hilo Union received no reply to its demand for recognition. On
December 21 it voted to call a strike at the store. On the morning
of December 22 Janzen was informed of the decision of the Hilo Union
and the reasons for it, namely, the respondent's refusal to recognize
the Hilo Union and to reinstate Nakashima. Janzen said "All right"
or "I see." He did not offer to recognize the Hilo Union, discuss the
issues of the strike, or communicate with his superiors about them.
The strike began at noon, December 22, and a picket line was
established.
The Hilo Union in a letter to the respondent on December 23 re-
quested a meeting to discuss "the issues involved" in the strike. No
reply to this letter was received until December 28 or 29, when a meet-
ing was arranged between the strike committee of the Hilo Union and
Janzen, Simpson, assistant manager of the Honolulu store, and Carl-
smith, attorney for the respondent, at Carlsinith's office. Two meet-
ings were held on December 29. At the second meeting the respondent
offered to reinstate Nakashima411
The committee then demanded the restoration of the other strikers
to their former positions without prejudice to former rights and privi-
leges47 As we find below, the respondent did not unequivocally assent
to this request. The respondent stated that it needed employees to do
year-end work and that as usual after the first of the year it would
reduce the staff. It made it clear that no employee on its staff could
be guaranteed a job and that the selections for year-end work and
the reduction of staff would be accomplished in accordance with the
comparative merit, ability, and willingness to work of all those on its
force, including non-strikers. It asked that all strikers who wished
to be considered for year-end and subsequent employment report for
work at 2 p. m. the next day and asserted that no one would be dis-
charged for striking, and that selections for year-end and subsequent
employment would be made upon a non-discriminatory basis in accord-
ance with the criteria above outlined.
At the end of the second meeting on December 29 Nakashima raised
the question of recognition. Carlsmith told him that the issue had not
been brought up at the morning meeting, that they had gone beyond
45 The letter queried whether the committee was not suspect because three places on it
were filled with persons absent from the previous conference. It also noted that no infor-
mation had been received from any employee about his or her choice of representatives and
expressed the view that the "whole affair might very likely be a hoax."
;e The offer was rejected after the conferences under discussion . In December 1939,
sometime after the end of the strike , Nakashima was reemployed by the respondent.
•'r Kamoku stated : "If he [Nakashima ] is going back [to which the respondent had
agreed] and these strikers will go back, we won't strike no more."
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the limits of the discussion, and that it would be "0. K." to discuss the
matter at any other time.
The respondent's offer of December 29 was referred to the union
membership and rejected. A letter was immediately written to the
respondent notifying it of this action and stating that the respondent's
proposal was incomplete with regard to payment of back wages to
Nakashima, reinstatement of all strikers to their former positions, and
payment of back wages to strikers. The respondent by letter of De-
cember 30 added back wages to its offer of reinstatement for Naka-
shima, declined to give back wages to the strikers, reiterated its former
position with regard to the reinstatement of strikers, and made no
mention of the demand for recognition. To this letter the Hilo Union
replied by letter on December 31 in which the respondent was reminded
of the demand for reinstatement of the strikers with back pay and the
request for recognition.411 On January 6, 1939, after the positions of
strikers had been filled, as described below, with non-strikers who were
on the respondent's pay roll, the respondent refused to recognize the
Hilo Union on the ground that it did not represent a majority of the
employees in the Hilo store and expressed the hope that those desiring
to work would report soon.
On January 12 and-13, 1939, Field Examiner Wills submitted to
the respondent a proposal of the Hilo Union for the settlement of
the strike involving, chiefly, reinstatement of- Nakashima with back
pay, reinstatement of strikers to former positions, payment of the
Christmas bonus to strikers, and recognition of the Hilo Union, or,
alternatively, recognition if the Hilo Union won a consent election.
The respondent's representative rejected the proposal. The reason
given for the refusal to recognize was that the Hilo Union lacked a
majority; the reason given for the refusal to consent to an election
was that the respondent desired the Hilo Union to obtain a Board
certification in order that it might enjoy certain advantages under
the Federal Wage-Hour Law.
On January 21, 1939, at a conference between representatives of
both parties and of the Board, the respondent transmitted a letter
to the Hilo Union proposing (1) reinstatement of Nakashima with
wages equivalent to those he would have earned from December 5
(the date of his discharge) to December 28; (2) placement of em-
ployees not working on a preferential list ranked in order of merit
and ability; (3) payment of wages to employees hired at the rate of
pay they were receiving on December 22, 1938, the day the strike
began; (4) no discrimination against any employee because of strike
49 As to recognition the letter reads : "And now comes this new proposals of the Union,
of which copies have been presented to you by a committee in the past , concerning an
agreement for Union recognition."
S. H. KRESS & COMPANY 1205
activity; (5) offer made without prejudice to Hilo Union's pressing
charges before the Board. At the meeting on January 21 there was
no request made for back pay for strikers and union recognition does
not appear to have been discussed. At the same meeting the Hilo
Union transmitted a letter to the respondent acknowledging receipt
of the offer and stating that in the event that it accepted the offer, the
strike would be terminated.
On the same day, the Hilo Union informed the respondent that its
proposal was rejected; the ground given for the rejection was that
the respondent had given no assurance for the reinstatement of the
strikers.
Following this meeting the Hilo Union on January 24 and there-
after attempted to settled the strike through the efforts of the Hilo
Chamber of Commerce. On January 24 the respondent rejected the
union proposal for reinstatement of Nakashima with back pay from
December 5 to December 29 and reinstatement of two-thirds of the
strikers immediately 49 and the balance within 30 days.
On February 8, 1939, the respondent addressed a letter to the Hilo
Union stating that the respondent found it necessary to reemploy
three girls for "this Saturday." The letter stated that it wished'to
offer Hanako Kohashi, Katsuyo Tanouye, and Asako Yamashiro
these positions. These employees were then striking members of
the Hilo Union. On February 10, 1939, the respondent forwarded
another letter to the Hilo Union stating that its letter of February
8 was intended to reaffirm the offer made by the respondent to the
Hilo Union on January 21, 1939, to the effect that employees on a
preferential list would be given 48 hours' notice of an opportunity
to work.
On February 10, 1939, the Hilo Union addressed a letter to the
respondent stating that in reply to the respondent's letter of Febru-
ary 8, 1939, three girls would report to work February 11, 1939. This
letter also stated that in the event "you prove your sincerity of your
proposal of January 21, 1939, other vacancies in accordance with your
preferential list likewise will be accepted. If you prove your sin-
cerity you may consider your proposal of January 21, 1939, as ac-
cepted. Please bear in mind that the above in no way jeopardize our
charge against you with the National Labor Relations Board."
On February 11, 1939, the picket line at the respondent's -Hilo
store was removed by the Hilo Union, and the strike was terminated
on that date. Kohashi, Tanouye, and Yamashiro were reemployed
by the respondent. As the last letter from the Hilo Union to the
respondent states that the Hilo Union may not be jeopardized in
" This was approximately the ratio of regular to extra striking employees.
451269-42-vol. 34-77 -
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressing its charges under the Act, it cannot be considered a settle-
ment of the controversy.
2. Concluding findings with respect to the refusal to bargain
In evaluating the respondent 's course of conduct towards the Hilo
Union cognizance must be taken of the following evidence . Ronald
Thomas, an employee , testified , and Simpson denied, that about a
week or two after December 22, the beginning of the strike , Simpson
told Thomas that the respondent would not recognize the Hilo
Union and would close the store before it would have a closed shop.
As noted above, Simpson represented the respondent at the Decem-
ber 29 conferences with the Hilo Union . Thomas worked during
the strike and was not a union member . Upon the basis of the
entire record we find that Simpson in substance made the statements
attributed to him by Thomas and thereby interfered with the rights
of employees guaranteed in Section 7 of the Act.
Simpson's statement to Thomas made explicit what the conduct
of the responsible agents of the respondent discloses : a steadfast
intention to deny recognition to the Hilo Union . Janzen on Decem-
ber 4 was put on notice that the Hilo Union was seeking recognition
and on December 6 was acquainted with its claim of majority repre-
sentation . On December 8 the Hilo Union offered to prove that it
represented a majority of the steady employees and unequivocally
requested recognition. That request was reiterated on December 12,
22, 29, and 31 . Not until January 6 , 1939, did the respondent make
,any response concerning recognition.
Janzen from the very first attempted to evade the demand of the
Hilo Union for recognition . On December 8 he pretended that the
conference with representatives of the Hilo Union was solely for
the purpose of introducing them to him . He told union representa-
tives that they would have a reply from Jahries and then on Decem-
ber 13 he informed them that they would have to await an , answer
from New York. Thereafter he continued to communicate with
Jahries and not directly with New York, although he understood
that the Hilo Union desired a speedy response to its proposal.
Janzen's letters to Jahries raised hypertechnical doubts concerning
the representative status of the union committee , but neither in the
conferences with the Hilo Union on December 8, 13, 22 , 29, nor at
any other time before January 6 did he challenge the claim of the
Hilo Union to represent the majority of the regular employees.60
It is argued that Janzen had no authority , to deal with the Hilo
Union . But Janzen 's statement on December 8 that he would refer
50 Nor does it appear that any of the other doubts voiced by him were ever stated to
representatives of the Hilo Union.
S. H. KRESS & COMPANY \ 1207
the matter of recognition to Jahries, the contents of his December
8 communication to Jahries, his December 10 conference with Jah-
ries, his letter to Jahries following the December 13 conference
with representatives of the Hilo Union, the December 23 telegram
from the respondent's New York office to Kimball, its attorney,
in Honolulu, instructing him to use Carlsmith, a Hilo attorney to
assist him in the union situation,61 and the other circumstances in the
record convince us that Jahries and Kimball had authority to adopt
Janzen's suggestions and to deal with the Hilo Union. Even if that
were not true there was ample time between December 4 or 6 or 8
and December 22 for either Janzen, Jahries, or Kimball to obtain
such authority; we cannot believe that any of them did not know
how to acquire it. Even assuming that Janzen and the others had
authority only to relay union proposals, they did not do that in an
expeditious manner since Janzen communicated not directly with
the respondent's district office in Los Angeles or main office in New
York, but indirectly with New York through Jahries in Honolulu.
Under all the circumstances we find that the respondent had ample
opportunity by December 22 to consider and reply to the proposal
for recognition of the Hilo Union but declined to do so.
Even if the respondent's, contention that appropriate authority re-
sided in New York be accepted at its face value, there was ample time
to make answer to the Hilo Union by December 29. By about Decem-
ber 22 the New York office had received the proposed agreement for
recognition and the December 8 and 14 communications of Janzen to
Jahries, and on December 23 it had instructed Kimball to use Carl-
smith to represent the respondent at Hilo. Yet Carlsmith was not
retained until December 28 and no reply was made to the request for
recognition either by December 29 or before January 6. The evi-
dence does not show, as the respondent argues, any waiver by the Hilo
Union of its original request for recognition, nor could it waive what
the respondent was statutorily bound to do .52 Janzen's explanation
for the failure to reply to the original request for recognition was that
a strike was called before an answer could come from New York. But
the strike could in no way serve. to excuse the respondent from its duty
to grant exclusive recognition to the representative of the majority of
its employees in an appropriate unit.53
51 The text of the telegram reads :
"IF CONDITIONS REQUIRE USE CARLSMITH OUR ATTORNEY HILO ASSIST
YOU IN RURAL [Retail Union] SITUATION."
as McQuay-Norris Manufacturing Company v. Nationa' Labor Relations Board, 116 F.
(2d) 748 (C. C. A. 7), cert . denied 313 U. S. 565; Matter of Calumet Steel Division of
Borg-Warner Corporation and Amalgamated Ass'n of Iron and Steel Workers of North
America, etc, 23 N. L . R. B. 114.
52 Jeffery-DeWitt Insulator Go. v. National Labor Relations Board, 91 F. (2d) 134
(C. C A. 4), cert. denied 302 U. S. 731; Black Diamond S. S. Corp. v. National Labor
Relations Board, 94 F. (2d ) S75 (C. C. A. 2), cert. denied 304 U . S. 579.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The failure of the respondent in any way to challenge the majority
of the Hilo Union before January 6, and the evidence concerning the
respondent's attitude and conduct regarding recognition and rein-
statement of the strikers, convince us that the respondent withheld
recognition from the Hilo Union, not because of any honest or reason-
able doubt concerning the Hilo Union's majority in an appropriate
unit, but because it did not desire to deal with the Hilo Union as
statutory representative of its employees'54 thereby refusing to bar-
gain as the Act requires 55
We find that the respondent, on and at all times after December
22, 1938, refused to bargain collectively with the Hilo Union as the
exclusive representative of its employees in the appropriate unit in
respect to rates of pay, wages, and hours of employment, and that,
by the above conduct, it interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
We further find that the respondent, by refusing to bargain collec-
tively with the Hilo Union, caused the strike on December 22, 1938,
and, by such conduct and by refusing as hereinafter described to rein-
state the strikers to their former positions with all former rights and
privileges, caused the prolongation of the strike thereafter.
3. Discrimination against strikers
The amended complaint alleged that on December 29, 1938, and
thereafter, the respondent refused to reinstate to their former posi-
tions certain named regular and extra or part-time employees 56 who
had struck on December 22, 1938, and thereafter. The amended an-
swer denied the discrimination. The Trial Examiner recommended
the dismissal of the above allegations and the Hilo Union took excep-
tion to the recommendation.
The events of the strike have been set forth in the preceding section.
As there appears, on December 29 a representative of the Hilo Union
made an unconditional request for the reinstatement of all the approxi-
54 National Labor Relations Board v. Remington Rand, Inc, 94 F. (2dj 862 (C. C. A. 2),
cert. denied 304 U. S . 576, 585; National Labor Relations Board v. Louisville Refining Co,
102 F. ( 2d) 678 (C. C. A. 6), cert. denied 308 U. S. 568 Cf. National Labor Relations
Board v. Biles-Coleman Lumber Co., 98 F. (2d ) 18 (C. C. A. 9) ; National Labor Relations
Board v. National Motor Bearing Co, 105 F. ( 2d) 652 (C. C A. 9).
55Fansteel Metallurgical Corp. v. National Labor Relations Board, 306 U. S. 240; Na-
tional Licorice Co. v. National Labor Relations Board, 309 U. S. 350; National Labor
Relations Board v Sunshinc Mining Co ., 110 F. ( 2d) 780 (C. C. A 9), cert. denied 312
U S. 678.
56 Approximately 20 regdlar full time employees , excluding Nakashima , and 10 extra or
part-time employees were named in the amended complaint . We shall not consider Naka-
shima because we have found that he was lawfully discharged on December 5, 1938 It
has been satisfactorily established that the other named regulars were strikers. Of the
extras only Mabel DeMello , Fujiko Fujii , Kieko Fujisaki , Anna Hering , and Heron Salvador
were specifically identified as strikers ; it appears that there were other extras who went
out on strike. -
S. H. KRESS & COMPANY 1209
mately 30 strikers and the respondent replied that none would be
discriminated against or discharged for striking and that strikers
who reported at 2 p. m. the next day would be considered, along with
nonstrikers, for year-end and subsequent employment upon the basis
of comparative merit, ability, and willingness to work.
Since the strike was caused by the respondent's unlawful refusal to
recognize the Hilo Union, the respondent was under a duty to grant
the demand for reinstatement 57 The respondent at the hearing and in
its brief contended that it did grant the demand, in that all strikers
were needed for year-end work, which we find to have been the case,
and that it clearly offered to return to their former positions all strikers
who reported for work.
We have carefully examined the respondent's own transcript of the
December 29'meeting in the light of the entire record and we conclude
that the respondent did not, unequivocally assent to the request for
reinstatement.
The record shows, as stated previously, that there was a distinction
between the continuity and other conditions of employment of extra,
part-time, and regular full-time employees; about two-thirds of the
approximately 30 strikers were in the latter category and had worked
regularly for the respondent from 5 years to 6 months before the
strike. Janzen admitted during the conference and at the hearing
that length of service was usually a factor in determining continued
employment, although he insisted that merit was dominant. Had
the respondent acted as its duty required, it would have acknowledged
the existing distinctions between its employees, offered all the strikers
immediate reemployment to their actual former positions as regulars
or extras, displacing if necessary those who had taken their places '511
and announced its willingness to accomplish a subsequent reduction
in staff in the customary manner, giving weight to length of service
as well as efficiency. This the respondent did not do. Although
at a single point in the conference length of service was admitted
to be of some weight in the respondent's system of distributing em-
ployment and it was stated that the system was not going to be
changed, throughout the meeting the respondent stressed merit, abil-
64 Matter of Manville Jenckes Corp . at al. and Independent Textile Union of America, 30
N L. It. B 382, and cases cited therein This obligation applied ' to the striking extras
as well as to the regular employees . N. L. R. B. v. Biles -Coleman Lumber Co, 98 F. (2d)
18 (C. C. A. 9 ), enf'g Matter of Biles -Coleman Lumber Co. and Puget Sound District
Council, etc ., 4 N. L. R. B. 679. Without regard to the causation of the strike by unfair
labor practices , the respondent was under a duty to reinstate the strikers upon application
to the places still vacant at the time of application . National Labor Relations Board v.
Mackay Radio & Telegraph Co., 304 U. S. 333.
sa See Matter of Manville Jenckes Corporation , supra, footnote 57. It does not appear
that on December 29 there were fewer available jobs than on December 22 or that by that
date outsiders were hired to replace strikers . Indeed we have found that all the strikers
could have been reemployed for year -end work. Strikers ' positions , if at all filled, were
filled by non-striking regulars and extras.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity, and willingness to work as the sole requisites for immediate and
subsequent employment,59 refused to admit existing distinctions
between its employees, avoided any unambiguous assent to questions
about whether. all employees would be restored to work or restored
to their former positions, and insisted that all strikers and non-
strikers would be considered for any employment only upon the
basis of their efficiency as defined above. Thus the strikers had no
assurance that both with respect to year-end and subsequent employ-
ment they would not be treated as extras whose employment had
just commenced and an undue advantage was given non-strking
employees, among whom there was a greater propQrtion of extras.
Since they,were told there would have to be a process of selection
from among all strikers and non-strikers even for immediate em-
ployment it is clear that the respondent did not adhere to its obliga-
tion to reinstate all of the strikers, dismissing if necessary those
who had taken their positions. Since the respondent refused to state
that regular and extra striking employees would be returned as regu-
lars or extras respectively and since the respondent stressed a basis
for subsequent retention that excluded seniority it is clear that they
were not offered reinstatement to their former positions.6°
19 The following example is typical :
Mr. CARLSMITH. It is not any question of taking you girls back that concerns
Kress-that is on a basis of merit, ability and willingness to work As those lists ate
worked out for you girls, you will go back on the same basis as before on the lists.
Any girl that is in this organization is on the same basis that these men have sug-
gested-Mr. Janzen and Mr. Simpson. These are the only guarantees you can get out
of this organization because they are national policies . . . You girls who comply
with those three requisites have nothing to worry about
Thus in fact the former basis of the strikers' employment was obliterated.
80 Such was the understanding of Kamoku and Nakashima. The foregoing is emphasized
by the fact that the respondent distinguished between the reinstatement it was offering to
Nakasbima and what it was offering to the strikers. All Nakashima had to do was to
report the next morning and he would have his old job back ; but the strikers were to report
at 2 p m to be "considered" for immediate and subsequent employment.
Thus the transcript shows the following
Mr. CARLSMITH. You girls get no special guarantees and no discrimination.
Mr. JANzEN. No discrimination. The guarantee is that you get a square deal.
Mr. NAKASHIMA. I go back as soon as I am ready, what is the situation?
Mr. CARLSMITH. His is a special case.
Mr. NAKASUIMA. Tomorrow morning, if I want to.
Mr. YANZEN. Tomorrow morning at seven-thirty.
The following excerpts are also significant and typical :
Mr. NAKASHIMA. I don't start in as a new hand, I start in as I was before?
Mr. CARLSMITH. Yes. . . .
s s s s s s w
Mr. KAMOKU. We want to have this understood.. In other words, now, we agree, or
whether they agree tomorrow to start working at eight, will they take the same job?
Mr. CARLSMITH. That is not what I have said at all. . . . Mr. Janzen has the job
of reorganizing, and he has said that these girls are not going to be discriminated
against for strike or union activities. That is all. That is all that can be said.
There are a bunch of other girls too who wonder whether they are going to be picked.
They are going to be picked according to merit and ability and the boss is the one who
is going to do it and there is going to be no discrimination.
Mr. KAMOKU. All those come out will be back to work.
Mr. CARLSMITU. It depends on how many jobs. It depends on how Mr. Janzen
works it out.
S. H. KRESS & COMPANY 1211
It is true that the, respondent's position with regard to reinstate-
ment was ambiguous but this very ambiguity rendered its reply
inadequate.61
After the first of the year in 1939 the 18 regular full-time girls
who were on strike were replaced by 5 girls who had worked during
Christmas and irregularly before Christmas and by 13 girls who had
worked only during Christmas; the 2 regular full-time stockroom
employees were replaced with 2 men who had been taken on for the
Christmas rush.62 The respondent contends that it is impossible to
say who would have been retained after the year-end reduction of
force and that consequently one cannot assert that regular full-time
strikers were replaced by extra and irregular employees. But, as
,previously noted, the 20 regular full-time strikers '63 had worked
regularly full time from 6 months to 5 years before the strike.
Janzen conceded, as stated above, that seniority was of some weight
in determining continuity of employment. Although he asserted
that it was a "frequent" occurrence for persons who had worked
regularly full time for 6 months or longer to be laid off at the end
of a rush period, he could 'not recall any such instance ' prior to
Christmas 1938. He also testified that he did not recall that at the
Mr. NAI{ASHIMA. Something I fear might be bothersome. These girls have been on
full time basis. Will there be a difference?
Mr. JANZEN. Makes no technical difference there.
f # k • ♦ * t
. . . It is definitely so that any we wanted we have kept them regularly If any one
the pay roll succeeded they have got a vacation-but not on the basis of whether they
were paid on Saturday.
Mr. NAKASHIMA. What time, I have understood it did not matter-whether it was
Tuesday and Saturday or Wednesday and Friday but I sort of noticed there was a
distinction between the two.
Mr. CARLSMITH. That has been fully explained and answered, has it not?
Mr. NAKASHIMA The girls who do go'back, that is upon the same thing.
Mr. CARLSMITH. There will be no discrimination. .. .
61 The view taken of the respondent's position at the December 29 conference is corrobo-
rated by its December 30 letter, which repeated the offer of December 29, and its offer of
January 21, 1939, noted above. The December 29 letter read in part :
Paragraph 3. As we stated last evening none of the employees have been or are
going to be discharged on account of the strike. We will not discriminate against any
of the strikers or other members of the Union on account of Union activities or affilia-
tion. As you all know the S. H. Kress organization shrinks considerably after Christ-
mas and the inventory rush. The management has been and is today working out the
details of the annual reduction of the force. As we explained, this is why we requested
that all,persons on strike desiring to return to work report to Mr. Simpson at 2 P. M.
today at the store. . . . This is in order to give us the opportunity to duly consider
those who desire to work in our reduced staff before final selections are made. We
are holding the matter of selections open until that time. Selections for the end-year
work and the shrunk organization as well as other selections will be made upon merit
and ability as usual. Membership in any group, church, union or other organization
will have no bearing upon selections to be made. As soon as the management deter-
mines who will be selected for the inventory work and thereafter for the shrunk organi-
zation, and thereafter as persons are needed from time to time, the management will
so inform all such persons . . .
"a Nakashima's place was also taken by another former extra. Following the strike no
new employees were hired until Christmas 1939.
63 Nakashima excluded.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of December 29 he had in mind any strikers whose services
were unsatisfactory. In the absence of any such showing it does
not seem unreasonable to conclude that regular full-time employees
would have been retained after the close of the year had they not
gone on strike. .
It is clear from the above that in the negotiations of January 21,
1939, reinstatement was the only unsettled demand preventing termi-
nation of the strike. We find that the reply of the Hilo Union to
the respondent's offer of that date amounted to an unconditional re-
quest for the reinstatement of the strikers. This application was
also refused .114
We- find that on and after December 29, 1938, the respondent, by
the foregoing refusals to reinstate the strikers listed in Appendices
A and B, has discriminated in regard to hire and tenure and con-
ditions of employment, thereby discouraging membership in the
Hilo Union, and interfering with, restraining and coercing em-
ployees in the exercise of 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 between the several States and the
Territory of Hawaii and within the Territory of Hawaii, and tend
to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce. -
V. THE REMEDY
We have found that the respondent has engaged in various unfair
labor practices. It is essential in order to effectuate the purposes and
policies of the Act that the respondent be ordered to cease and desist
from engaging in unfair labor practices and in aid of such order and
as a means of removing and avoiding the consequences of its unfair
labor practices, that the respondent be directed to take certain affirma-
tive action.
ss Following the settlement of the strike , the respondent created a preferential hiring list,
but did not place on it the extra and part-time employees who had gone on strike. The
respondent 's explanation therefor is that Field Examiner wills had referred , on January 21,
only to a list of regular employees on strike in conveying to the respondent a proposal for
reinstatement of strikers . However, Kamoku 's request on December 29 for reinstatement
of all strikers , the respondent 's letter of January 21 , the basis for the settlement of the
strike, and the Hilo Union's reply of the same date contained no such limitation. More-
over, although on March 13 , 1939, the Hilo Union called to the respondent's attention the
omission of the extras from the preferential list, by letter of March 21 the respondent
declined to amend the list. By the time of the hearing only one had been reemployed,
although part-time and extra work was available in 1939 and many new extras were hired
in December 1939.
S. H. KRESS & COMPANY 1213
We have found that the respondent at its Honolulu store discrimina-
torily discharged Ted Tamashiro, Rachel Saiki , Jeanette Ichiriu,
Edith Ishikawd , Mary 'Miguel , and Allen Gima. Ichiriu and Miguel
testified that they did not desire reinstatement . We shall order the
respondent to offer to the others immediate reinstatement to their
former or substantially equivalent positions . We shall also order the
respondent to make whole all these employees for any loss of pay
they have suffered by reason of the discrimination against them by
payment to Ted Tamashiro and Edith Ishikawa, individually, of a
sum of money equal to the amount each would normally have earned
as wages from the date of the discrimination against said individual,
April 16 and April 19, 1938, respectively , to the date of the offer of
reinstatement , less the net earnings of each during said period; 85 by
payment to Rachel Saiki and Allen Gima, individually , of a similarly
computed amount for the period from the date of the discrimination
against each of them , April 16 , 1938 , and March 8, 1939 , respectively,
to the date of the issuance of the Intermediate Report , recommending
the dismissal of their cases, and from the date of our Order herein to
the date of the offer of reinstatement ; 86 and by payment to Jeanette
Ichiriu and Mary Miguel , individually , of a similarly, computed
amount for the period from the date of the discrimination against
each of them, April 16 , 1938, and February 3, 1939, respectively, to
the date of the testimony disclaiming any desire for reinstatement,
November 20, 1939, and November 24, 1939 , respectively.
We have found that the respondent has refused to bargain collec-
tively with the Hilo Union as the exclusive representative of its em-
ployees within an appropriate unit at its Hilo store . We shall order
the respondent , upon request , to bargain collectively with the Hilo
Union.
We have found that the employees listed in Appendices A and B
ceased work at Hilo about December 22, 1938, and did not work
thereafter , as a consequence of the respondent 's unfair labor prac-
tices and that on December 29, 1938, and thereafter , the respondent
discriminated against them in regard to their hire and tenure and
terms and conditions of employment . We find that, to remedy the
65 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
discrimination against him or her and the consequent necessity of his or her seeking employ-
ment 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.
01 Matter of E. It. Haffelfanger Co., Inc. and United Wall Paper Crafts, etc ., 1 N. L. R. B.
760.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices causing the strike, as well as the subsequent
unlawful discrimination, reinstatement with back pay should be
ordered, as below specified.67
All but three of the regular full-time employees who went on
strike and who comprise Appendix A were reemployed by December
12, 1939. There were three who were merely offered reemployment.
A discussion of these three instances follows.
Dorothy Cabral refused reemployment on August 4, 1939, because
she preferred her job elsewhere; she had not received such preferable
employment before March 16, 1939.
"Louis N. Carinio, by letter of December 13, 1939, replied to the
respondent's offer of employment by stating, "If I know that the
job is to be steady and not just for Christmas rush I will come to
work tomorrow." The respondent's answer of December 14 re-
affirmed its previous offer and declared, "As you should know, no
one in our organization is guaranteed a permanent job for the future
at any time. As above stated, we now have work for a porter and
will, if you accept the job, continue you on our payroll as a porter
as long as the work warrants and your services are satisfactory."
'•Carinio declined the offer because he had a steady job and was of
the belief that the respondent was offering him a temporary job;
he desires to be reinstated to his former position as a regular full-
time porter which he occupied from December 16, 1937, to the, time
of the strike. He testified without contradiction that when he began
to work ate' the Hilo store Janzen told him that if he caused no
trouble he had a steady job. We find that it was clear that Carinio
was seeking to ascertain if he was being offered reinstatement to
his former position as a regular employee and that the respondent
refused to clarify its offer in that respect. Under the circum-
stances Carinio was justified in declining the offer.
Yuuko Nakamoto was requested by letter to report for work on
December 7, 1939. From July 26 to December 13, 1939, she was out
of the Territory, spending most of her time in Japan. She did not
learn of the offer until December 8 when she was in Honolulu. She
applied for work on December 13 but was informed that the re-
spondent had sufficient salesgirls. On December 16 a number of
other salesgirls were employed. Nakamoto desires reinstatement. It
is true that the strike settlement agreement provided that employees
on the preferential list would be given 48 hours' notice of an oppor-
tunity to work and that if they did not report for work they would
be removed from the list. But the respondent's previous. discrimina-
"Matter of Western Felt Works, etc., and Textile Workers Organizing Committee, etc.,
10 N. L . R B. 407 , eases cited therein, and subsequent cases.
S. H. KRESS & COMPANY 1215
tion against Nakamoto required it to offer her full reinstatement to
her former position as a regular employee. It does not appear that
it did so.
We shall, therefore, order the reinstatement of Carinio and Naka-
moto, but not of Cabral, to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges.68 Cabral, however, shall receive back pay but only to
March 16, 1939, and Nakamoto shall have deducted from her
remedial wages the amount she would have earned in the respond-
ent's employ between December 7 and 13, 1939.
Although the remaining strikers listed in Appendix A were given
their former wage rates upon reinstatement, it does not appear that
they were in general returned to positions substantially equivalent
to those that they had held. Some who had been heads of counters 81
before the strike became ordinary salesgirls or helpers when reem-
ployed ; we find that they were reemployed to fill less responsible
positions. Some did -not receive vacations in 1939;* as stated above,
in the summer of 1939 vacations were given to employees who had
worked continuously since September 1, 1938. All but three 70 did
not receive Christmas bonuses in 1939. In 1939 Christmas payments
were made to those employees working on December 24 who had
been employed more than 11 months in that year. It does not ap-
pear whether those -reinstated retained their insurance privileges.7'
We find that the employees whose work ceased because of the re-
spondent's unfair labor practices were entitled to retain their vaca-
tion, bonus and insurance privileges.72 Three strikers reemployed
during 1939 were laid off at the end of the Christmas rush in that
year. Kohashi, reemployed on February 11, received a Christmas
bonus in 1939, but was reinstated to a less responsible position. The
other two were reemployed with many extras on December 7, 1939.
It does not appear whether they were reemployed as regulars or
extras. No particular explanation was given for their release .71
03 Within the scope of this phrase are included such items as status as regular full-time
employees, former positions of responsibility , and unimpaired customary seniority rights
and vacation, bonus, and insurance privileges.
80 The head of a counter assists the manager in periodic ordering.
70 Kohashi , Tanouye, and Yamoshiro were reinstated on February 11, 1939, with the
understanding that their bonus status would be unimpaired.
73 Neither Janzen nor D. H. O'Connell , the respondent 's New York supervisor of labor
relations, could say whether reemployed strikers were given group insurance
72 See Republic Steel Corp . v. N. L. R.B., 114 F. (2d) 820 (C. C. A. 3). However, we are
of the opinion that, for the reason that we do not normally award back wages to strikers
prior to application , the strikers who did not work on December 24, 1938, are not entitled
to their' 1938 bonus . It appears that the bonus is designed particularly to stimulate
'employee attendance on the day before Christmas.
73 They were the only restored strikers so released . Other regular employees were re-
leased with them. According to the preference list arranged in the early part of 1939 by
the respondent in order of merit and ability, of the 18 female strikers Kohashi ranked first,
Silva twelfth , and Fuke seventeenth.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
t
Under all the circumstances, the record does not establish that they
were restored to substantially equivalent positions as regulars. We
shall order that employees listed in Appendix A, excluding Cabral,
who have not received from the respondent substantially equivalent
positions without prejudice to seniority or other rights, or privileges
be given them. ,
We shall further order the reinstatement to their former or sub-
stantially equivalent positions of the extra and part-time employees
who went on strike and are designated in Appendix B, all but one
of whom had not been reemployed by the time of the hearing.
The foregoing reinstatements at Hilo shall be accomplished in the
following manner.
All persons hired after December 22, 1938, the date of the com-
mencement of the strike, shall be dismissed, if necessary to provide
employment for those to be offered reinstatement or transfer, that is
those in-Appendices A and B, excluding Cabral. If after dismissal
of all persons hii ed since the commencement of the strike there are,
by reason of a reduction of force, insufficient positions available for
the remaining employees, including those to be reinstated, all avail-
able positions shall be distributed among such remaining employees
in accordance with the respondent's usual method of reducing its
force, without discrimination against any employee because of his
union affiliation or activities and following a system of seniority to
such extent as has heretofore been applied in the conduct of the
respondent's business. Those remaining after such distribution for
whom no employment is immediately available shall be placed upon
a preferential list prepared in accordance with the principles set
forth in the previous sentence, and shall, thereafter, in accordance
with such list, be reemployed in their former or substantially equiva-
lent positions as such employment becomes available and before other
persons are hired for such work ; provided, however, that persons
on such list also be considered eligible for both regular and part-
time employment in accordance with respondent's customary proce-
dure as above set forth.
We have found that on December 29, 1938, and January 21, 1939,
the respondent refused unconditional requests for the reinstatement of
the strikers. After December 29, 1938, the Hilo Union advanced
strike demands concerning other issues, such as recognition, payment
of Christmas bonuses, and back wages. Kamoku's statement on De-
cember 29, however, concerning the strikers' willingness to return to
work if they were restored to their former positions, and the entire.
record, lead us to conclude that had the respondent offered such em-
ployment to the strikers at any time after December 29, 1938, they
S. H. KRESS & COMPANY 1217
would have ceased striking.74 The strike was prolonged by the re-
spondent's discrimination and the store continued to function through-
out. In our opinion it will best effectuate the policies of the Act if the
back pay awarded victims of discrimination, 75 is computed from De-
cember 29, 1938, to the date of reinstatement or transfer by the
respondent to a former or substantially equivalent position, or the
respondent's offer of reinstatement, transfer, or placement upon the
preferential list required by our Order.18 In determining the amount
of back pay to be awarded to the strikers, as to whom the Trial Ex-
aminer found no discrimination, the period from the date of issuance
of the Intermediate Report to the date of our Order will be excluded??
Back pay for the employees in Appendix A, the regular employees
who went on strike, shall consist of a sum of money equal to that which
the individuals named would normally have earned in wages and
bonus during the period or periods of its computation, less the net
earnings 78 of each during such period or periods. In addition, in
determining the amount due Nakamoto, for the reasons heretofore
stated, the-period between Deeember _7 and 13, 1939, shall be excluded.
Back pay for the employees in Appendix B, the strikers who before
the strike had been extra and part-time employees, shall be computed
in a different manner. On December 22, 1938, the date of the com-
mencement of the strike which occurred during the Christmas rush,
there were approximately 80 extra and part-time employees working
at the Hilo store., Approximately 10 of these joined the strike. On
December 29, 1938, the earliest date of discrimination, it does not ap-
pear that the number of such employees was significantly different. In
1939 the number of extra and part-time employees working at the
store sharply declined from the former figure. Until December 7,
1939, the number of such employees actively employed was not more
than 32; they were employed on Saturdays only. After that date the
force increased to about its December 1938 proportions for the
Christmas rush, with presumably about the same number of extras,
and then subsequently declined. It is obvious that even had the re-
spondent not caused the strike by unfair labor practices and committed
no discriminatory act, some of the persons listed in Appendix B would
not have received a part-time job with the respondent throughout all
of 1939 or 1940. In such circumstances it does not seem feasible to
compute the back pay due to each employee in Appendix B as we
74,This does not mean that at any time the Hilo Union wholly abandoned its request for
recognition.
75 Dorothy Cabral is excepted , however, for the reasons given above. She is to receive
back pay from December 29, 1938, to March 16, 1939.
7e Matter of Ford Motor Company and United Automobile Workers of America, etc., 23
N. L H. B 342.
77 See footnote 66, supra.
78 See footnote 65, supra.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have ordered it to be computed for the employees in Appendix A.
Instead, we shall, employ a method of calculation which is at once
practicable, just, and consonant with the policy of the Act.79
We shall direct the respondent to compute a lump sum consisting
of all wages paid by the respondent to those working as extra, part-
time, or Saturday-only employees during the period from December
29, 1938, to the date of issuance of the Intermediate Report dismissing
the cases of those in Appendix B, and from the date of our Order
herein to the date on which the respondent complies with our Order
reinstating or placing on a preferential list the employees in Ap-
pendix B. The product of this sum and the proportion between the
number of employees in Appendix B to be given relief and the number
of extra and part-time employees working on December 22, 1938,
shall be credited to the employees in Appendix B for whom back pay
is sought. Individual credits shall then be calculated by apportioning
the sum so credited among the members of the above-described group
in accordance with their daily wage-rate prior to the strike on Decem-
ber 22, 1938.
After individual credits have been arrived at in the manner set
forth above, individual deductions are to be made. From the indi-
vidual credit of the employee to be awarded remedial compensation
shall be deducted a portion of the net earnings 80 of such employee.
'However, only those net earnings which each such employee earned
during the period for which back pay is computed should be considered
as deductible. The credit of said employee should be diminished by
the product of his or her deductible net earnings and the proportion
between the original sum credited to each individual employee in the
manner set forth above and the aggregate average wage paid to
extra and part-time employees during the previously outlined period
for computation of back pay.
For Heron Salvador, who was reemployed about December 18, 1939,
if it appears that he was reemployed in his former or substantially
equivalent position, back pay shall be computed by reducing his indi-
vidual credit to a sum determined by multiplying his credit by the
proportion between the number of days from December 29, 1938, to
December 18,1939, and the total number of days in the back-pay period
described in the preceding paragraph. Net earnings shall then be
deducted in the manner previously set forth for the other employees
in Appendix B.
79 Eagle-Picher Mining and Smelting Co. v. National Labor Relations Board, 119 F. (2d)
903 (C. C. A. 8) ; F. W. Woolworth Co. v. National Labor Relations Board, decided July 2,
1941 (C. C. A 2) ; Matter of Ford Motor Company and United Automobile Workers of
America, etc , 29 N L R. B. 873.
See footnote 65, supra.
S. H. KRESS & COMPANY 1219
Upon the basis of the foregoing findings of fact, and upon the entire
record in this case, the Board makes the following :
CONCLusIoNs of LAW
• 1. United Retail and Wholesale Employees of America, Local No.
235, and United Retail Workers of Hilo are labor organizations
within the meaning of Section 2 (5) of the Act.
By discriminating in regard to the hire and tenure of employment
of Ted Tamashiro, Rachel Saiki, Jeannette Ichiriu, Edith Ishikawa,
Mary Miguel, and Allen Gila, thereby discouraging membership in
United Retail and Wholesale Employees of America, Local No. 235,
and by discriminating in regard to the hire and tenure of employment
of the employees listed in Appendices A and B, thereby discouraging
membership in United Retail Workers of Hilo, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. All employees of the respondent at its Hilo store, excluding the
manager, floorladies, office employees and irregular, Saturday-only,
and extra employees, have at all times material herein constituted
and now constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
4. United Retail Workers of Hilo was, on December 22, 1938, and
at all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By, refusing, on or about December 22, 1938, and at all times
thereafter, to bargain collectively with United Retail Workers of
Hilo, as the exclusive representative of the employees in the above
unit, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (5) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in -Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
8. The respondent has not, within the meaning of Section 8 (1)
of the Act, discriminated in regard to the hire and tenure of employ-
ment of the employees who on April 5, 1938, ceased work at its Hono-
lulu store, has not discriminated in regard to the hire and tenure of
employment of Jack Shiroma, Edna Uyeda, and Thomas Nakashima
within the meaning of Section 8 (3) of the Act, and has not refused to
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively with United Retail and Wholesale Employees of
America, Local No. 235, within the meaning of Section 8 (5) of the
Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, S. H. Kress & Company, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Retail and Wholesale
Employees of America, Local No. 235, or any other labor organiza-
tion of its employees, by discriminating in regard to hire or tenure
of employment or any terms or conditions of employement;
-(b) Discouraging membership in United Retail Workers of Hilo,
or any other labor organization of its employees, by discriminating
in regard to hire or tenure of employment or any terms or condi-
tions of employment;
(c) Refusing to bargain collectively with United Retail Workers
of Hilo as the exclusive representative of all employees of the re-
spondent at its Hilo store, excluding the manager, floorladies, office
employees, and irregular, Saturday-only, and extra employees;
(d) In any other manner interfering with, restraining, or coerc-
ing 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 and protection as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ted Tamashiro, Rachel Saiki, Edith Ishikawa, and
Allen Gima immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges ;
(b) Make whole Ted Tamashiro, Rachel Saiki, Jeanette Ichiriu,
Edith Ishikawa, Mary Miguel, and Allen Gima for any loss of pay
they have suffered by reason of the respondent's discrimination by
payment to each of them of a sum of money equal to an amount
determined in the manner set forth in the section entitled "The
remedy" above ;
(c) Offer to those employees listed in Appendices A and B, ex-
cluding Dorothy Cabral, immediate and full reinstatement to their
S. H. KRESS & COMPANY 1221
former or substantially equivalent positions, without prejudice to-
their seniority and other rights and privileges, in the manner set
forth in the section entitled "The remedy" above, placing these
employees for whom employment is not immediately available upon
a preferential list in the manner set forth in said section and there-
after in said manner offer them employment as it becomes avail-
able;
(d) Make whole the employees listed in Appendices A and B for
any loss of pay they have suffered as a result of the respondent's
discrimination, in the manner set forth in the section entitled "The
remedy" above;
(e) Upon request bargain collectively with United Retail Workers
of Hilo as the exclusive bargaining representative of all employees
of the respondent at its Hilo store, excluding the manager, floor-
ladies, office employees, and irregular, Saturday-only, and extra em-
ployees;
(f) Immediately post and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees: (1) at its Honolulu store stating: (a) that the respondent
will not engage in the conduct from which it is ordered to cease
and desist in paragraphs 1 (a) and (d) of this Order; (b) that
the respondent will take the affirmative action set forth in para-
graphs 2 (a) and (b) of this Order; (c) that the respondent's em-
ployees are free to become or remain members of United Retail and
Wholesale Employees of America, Local No. 235, and the respondent
will not discriminate against any employee because of membership
or activity in that organization; and (2) at its Hilo store stating:
(a) that the respondent will not engage in the conduct from which
it is ordered to cease and desist in paragraphs 1 (b), (c), and (d)
of this Order, (b) that the respondent will take the affirmative
action set forth in paragraphs 2 (c), (d), and (e) of this Order; and
(c) that the respondent's employees are free to become or remain
members of United Retail Workers of Hilo and the respondent will
not discriminate against any employee because of membership or
activity in that organization.
(g) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND rr is FURTHER ORDERED that the complaint, as amended, be,
and it hereby is dismissed in so far as it alleges that the respondent
has discriminated, within the meaning of Section 8 (1) of the Act,
in regard to the hire and tenure of employment of the employees
who on April 5, 1938, ceased work at its Honolulu store, has discrim-
inated in regard to the hire and tenure of employment of Jack Shi-
451269=42-vol. 34-78
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roma, Edna Uyeda, and Thomas Nakashima within the meaning of
Section 8 (3) of the Act, and has refused to bargain collectively with
United Retail and Wholesale Employees of America, Local No. 235,
within the meaning of Section 8 (5) of the Act.
Sueko Akahoshi
Dorothy Cabral
Louis Carinio
Beatrice Carreira
Itsuko Fuke
Akiyo Kami
Hanako Kohashi
Agnes Lewis
Yuuko Nakamato
Chiekd Oshiba
APPENDIX A
Regular employees
Emily Sakaguchi
Fusae Shimizu
Emmaline Silva
Eleanor Souza
Mieko Takahata
Katsuyo Tanouye
Yasuko Yahata
Tsugiye Yamada
George Yamamoto
Asako Yamashiro
APPENDIX B
Extra and part-time employees
Mabel De Mello Kieko Fujisaki
Fujiko Fujii Anna Hering
Heron Salvador
Such other extra and part-time employees as went out on strike
December 22, 1938.81
MR. EDWIN S. SMITH , dissenting in part :
I concur in the Decision and Order except in so far as it dismisses
the allegations of the amended complaint with respect to a refusal
to bargain at Honolulu and the discrimination against Jack Shiroma,
Edna Uyeda, Thomas Nakashima and those who went out on strike
at the Honolulu store on April 5, 1938.
a. Discrimination against the April 5, 1938, strikers at Honolulu
As found above, 17 employees went out on strike at the Hono-
lulu store on April 5, 1938, because of the dispute concerning the
retention of Charles Goo as supervisor in the soda and lunch depart-
ment. On April 12 a demand for the reinstatement of the strikers
was made, according to the version of the conference credited by
the majority of the Board, and that demand was refused on the
8 At the hearing the attorney for the Board disclaimed any affirmative relief for Nancy
Uritani and Roseline Ah Toong . Accordingly , they are not entitled to affirmative relief
under our Order.
S. H. KRESS & COMPANY 1223
ground that the respondent had filled the positions of the strikers;
the testimony relied upon by the majority does not indicate that
any other issues were raised by the representative of the strikers.
There is a strong suspicion that at the time of the April 12 con-
ference the vacancies created by the strike, if filled at all, were filled
on an emergency basis. Manager Jahries testified that there was
a full, permanent force in the soda and lunch department when the
request for reinstatement was advanced. However, Jahries also
admitted that Simpson "in the emergency" on April 5 had shifted
salesgirls into the soda and lunch department to take the places of
the 15 strikers from that department. Although,' in addition,
between April 5 and April 12, about 10 non-strikers were hired to
the soda and lunch department, at least some of these were employed
as extras for the Easter rush. But immediately after the April 12
conference, from April 13 to April 19, 10 more non-strikers were hired
,to the soda and lunch department. Jahries attempted to explain the
turnover after April 12 by asserting that some of the persons work-
ing on April 12 might have proved unsatisfactory. It seems likely,
however, that the true explanation is that a substantial number of
the replacements of strikers were emergency 'replacements and that
many of these emergency employees were not supplanted with per-
manent employees until after April 12. Under such circumstances
there would be an obligation on the part of the respondent, even
though the strike had not been caused by any unfair labor practices,
to do away with temporary makeshifts in order to give employment
to strikers seeking it. Moreover, Jahries asserted that although
before the strike the respondent had employed "quite a few" waiters
as well as waitresses, vacancies left by striking waiters were filled
exclusively with female employees in order to bring the practice at
Honolulu into line with the practice at other stores of the respondent.
But the timing and character of the change suggest that the respond-
ent seized upon the strike as an occasion for initiating a reorganiza-
tion that necessarily disrupted the continuity of employment of a sub-
stantial number of the strikers and inevitably interfered with and
discouraged their concerted activity. An attempted reorganization
of this sort would in itself be an unfair labor practice within the
meaning of Section 8 (1) of the Act. 112
Independently of the foregoing, it is clear that the respondent
in disregarding the strikers' request for reinstatement by filling sub-
sequent vacancies wholly with non-strikers, unlawfully discriminated
against the strikers. As noted above, the request for reinstatement
was advanced on April 12 by Berman, the strikers' representative;
12 Cf. my concurring opinion in Matter of Aladdin Industries, Inc. and United Automobile
Workers of America, etc., 22 N. L. R. B. 1195.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lists compiled from the respondent's employment records disclose
that two waitresses were hired on April 13, three waitresses on April
14, two waitresses and one kitchen employee on April 16, and two
kitchen employees on April 19. Subsequently other waitresses were
taken on. None of the strikers was rehired, although several even
made individual application beginning some months after the strike
and vacancies were filled after their applications were made. Before
filling any of the afore-mentioned vacancies the respondent made no
attempt to communicate with Berman or any of the striking
employees.
The majority of the Board, however, exonerate the respondent
of any unfair labor practice in hiring non-strikers after April 12 by
finding that the respondent was free to overlook the desire of the
strikers for reemployment since it had only been presented with a
blanket demand, which it was unable to grant, for the reinstatement
of all or none of the strikers. This finding disregards the four ap-
plications by individual strikers for reemployment made between 4
and 7 months after April 12. More important, it imposes a quali-
fication upon the collective application of April 12 not found in,
and inconsistent with, the record. The testimony of Simpson and
Jahries, upon which the majority of the Board rests its findings, re-
veals nothing more than a simple request by Berman for the rein-
statement of the striking employees.83 In fact, Berman's suggestion
83 Jahries testified as follows on direct examination :
Q. What was said at this subsequent conference with Berman?
A. Berman was the spokesman and he stated that he was quite certain that the employees
who had left our employ-he wanted to know if he could make some arrangements to get
them back on the job and I told him , I asked him what he had in mind He stated, well
he thought possibly, we would leave a third party to decide that. I told him I did not
believe It was necessary for a third party to do that, that we had filled our positions down
there and the department did not have any opening at the time and that we did not see
any reason why a third party should make any decision in the matter.
Q Did you offer reinstatement or reemployment to any of those 17 employes?
A. I did not.
Q. Why not?
A. Because we had a full force in the department at the time
He also testified on cross -examination :
Q. When Mr. Berman came up to the office with the committee, he explained to you that
he was trying to get these employees reinstated , did he not?
A. The soda and lunch employees, yes
Q. Did he tell you the connection he had with them, who he was'
A. Well, he stated he was speaking for them
Simpson 's testimony reads :
Q. Do you remember what was said at that conference?
A. I do.
Q. Relate what was said there.
A. Mr. Berman asked Mr. Jahries relative whether we could come to some agreement on
placing these employees back to work. Mr. Jahries said, "No, the employees having quit,
the present vacancies are filled." Then Mr. Berman wanted to have some outside, some
third party, to arbitrate the matter and Mr. Jabries said , "Why, it is not necessary, we
can decide the matter ourselves "
Mr. Berman wanted to know if we would take back the employees . Mr. Jahries said
"No, we are not going to take back the employees because their positions have already been
filled."
S. H. KRESS & COMPANY 1225
that the question of getting the strikers "back on the job" be arbi-
trated strongly contends against the majority's finding. It definitely
indicates that the Honolulu Union was merely asking for the rein-
statement of as many strikers as the respondent could return to
work rather than for the reemployment of the strikers en masse.
I would find that the respondent discriminated against the April
5 strikers within the meaning of Section 8 (1) of the Act, and
would accord them the usual remedy of reinstatement with back
pay.
b. Discrimination against Jack Shiroma
It is difficult to understand how the majority of the Board could
dismiss the case of Shiroma, since it sustains, and in my opinion
correctly so, that of Tamashiro. Both were discharged on April
16, 1938, within a week after the formation of the Honolulu Union;
the only regular employees released on April 16 by reason of the
Easter reduction were union members. The majority of the Board
found these circumstances strongly indicative of discrimination
against each of the charging employees discharged on April 16, and
I concur in their view. Moreover, Tamashiro and Shiroma were
the sole regular stockroom employees released at the end of the
Easter rush,84 allegedly pursuant to a novel plan for the retention
in the stockroom of only those stockmen who could take charge of
a department. But, as the majority notes in the case of Tamashiro,
three stockmen taken on during the Easter rush were retained; all
three were then non-union employees. The majority rejected the
respondent's defense with regard to Tamashiro; that defense rested
mainly on the testimony of Simpson. Simpson, who was the sole
witness for the respondent in the case of Shiroma, related essentially
the same explanation for Shiroma's discharge as he did for the
discharge of Tamashiro. Yet the majority found that Shiroma had
been discharged for cause.
Apparently the majority distinguished between Tamashiro and
Shiroma on the basis of the slighter degree of Shiroma's union activ-
ity. In view of the close linkage between the discharge of Tamashiro
and the discharge of Shiroma the difference between them with re-
spect to union activity must be regarded as indecisive. There is
ample evidence from which the respondent's knowledge of Shiroma's
union membership can be inferred. The number of regular union
employees released on April 16, Shiroma's designation of the Hono-
lulu Union at its first meeting, and the questioning, of employees
concerning union membership by Simpson and Klein during the
week following the first meeting and by Matsui shortly after April
86 A boy who had been hired just before the Easter rush was released on April 18.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16, are convincing proof that the respondent gained knowledge of
Shiroma's affiliation before his discharge.85
The substance of Simpson's testimony with regard to Shiroma
was that he was convinced at all times after their hiring that both
Tamashiro and Shiroma were unsatisfactory stockmen, that he rec-
ommended their discharge to former Manager Miller after the
Christmas rush of 1937, but that Miller refused, that after the
termination of Miller's employment he was in full charge of the
store but was precluded from discharging Shiroma and Tamashiro
because he had been advised by Personnel Manager Weiser against
making such changes in the staff, and that Shiroma and Tamashiro
were finally discharged because they had been slow and insubordinate.
Simpson's contention that he had no opportunity to take action
against these two employees whom he all along thought undesirable is
rendered incredible by the following evidence. Miller left the Hono-
lulu store about March 4. Simpson testified that Miller had given him
instructions against dismissing Tamashiro and Shiroma, and that not
until mid-March was he apprised of the fact that Miller had been dis-
missed from the respondent's employ. But Simpson's testimony
clearly shows that there was a gap between Simpson's learning of
Miller's dismissal and Weiser's arrival and that Simpson 's alleged rec-
ommendation to Weiser for the release of Tamashiro, Shiroma, and
others was made during the last week in March. Thus, even assuming
the truth of Simpson's account , there was at least a week in which he was
free either to discharge or recommend the discharge of Tamashiro and
in which he did neither.88
Simpson's affirmations concerning Shiroma's shortcomings reveal
the resort to irrelevant triviality and vague generality that is char-
acteristic of the respondent's defenses in respect to each of the alleged
discriminations in this proceeding. Simpson's charge that Shiroma
was released because he was slow in his work, slow in his thinking, and
incapable of becoming a stockman was never reduced to any specificity.
Simpson failed to testify that Shiroma had ever been told that he was
inefficient; Shiroma did not remember any such occurrence and denied
that he had ever been reprimanded for making mistakes in filling orders,
s-,'F. W. Woolworth Co. v. National Labor Relations Board, decided July 2, 1941
(C C. A. 2).
se Simpson also testified , and the majority has found, that Shiroma , over Simpson's ob-
jection, was given a pay increase by Miller about the second week in February 1938. If
that were so, and Simpson 's testimony were otherwise accurate , it would be likely that when
the opportunity arose, Simpson should have revoked the raise; yet Shiroma's increased
rate of pay continued until his discharge, as did Tamashiro's. Shiroma himself placed the
time of his raise about two pay days before the time of his dismissal . That would have
been about April 5, 1938, when either Simpson or Jahries was in charge of the store . Under
all the circumstances I would be inclined to credit Shiroma rather than Simpson in this
matter. However , no matter which of them is credited, the result is equally damaging to
Simpson's testimony concerning Shiroma ' s alleged long-established inefficiency.
S. H. KRESS & COMPANY " 1227
a vital function of a stockman. With respect to insubordination, Simp-
son testified that during March he reprimanded Shiroma six or eight
times 87 for refusing to burn rubbish ,"" and the majority appears to
attach some weight to this testimony. But Shiroma denied that he
had been reprimanded for any reason while working at the store; he
also denied that he had been told that he had violated any of the store
rules. He admitted having been told several times by Simpson to
take care of the trash room, but asserted that those occasions had been
before Christmas 1937, that is, about 4 months before his discharge.
Neither Kenji Mizutani nor Assistant Manager Neilsen, under whose
direction Shiroma had worked, was called to testify. I see little rea-
son to doubt the testimony of Shiroma concerning his work and the
absence of substantial objection to his conduct as an employee. The
foregoing considerations and the case of Tamashiro afford much rea-
son to doubt the testimony. of Simpson with reference to the causes
for Shiroma's discharge. Such being the case, I am convinced that the
explanation for Shiroma's dismissal lies not in the reasons advanced
by Simpson but in Shiroma's union affiliation.
c. Discrimination against Edna Uyeda
There can be no doubt that Uyeda was an active union member
and that the respondent was aware of her activity. She served on
the negotiating committee of the Honolulu Union. It is significant
that collective bargaining negotiations between the respondent and
the Honolulu Union began on August 15, 1938, and ended on Feb-
ruary 13, 1939, without the conclusion of any agreement; in fact, in
my opinion, the respondent refused to bargain in the manner re-
quired by the Act. Against this background and the other evidence
of the respondent's antagonism toward the Honolulu Union must
Uyeda's discharge on December 31, 1938, be viewed.
Just as the cases of Tamashiro and Shiroma bear a striking simi-
,larity to each other, so do those of Uyeda and Miguel. $oth were
dismissed toward the end of negotiations between the respondent and
the Honolulu Union; at their discharge both were given intimidatory
interviews in the presence of a stenographer and supervisory em-
87 On cross -examination he testified that there had been a couple of refusals during Feb-
ruary .and at least two of three during March.
88 Simpson also testified that he had reprimanded Shiroma for refusing to go to the post
office. I agree with the majority that such refusals were often justified and generally
regarded as unimportant . Simpson also gave on cross -examination a reason for Shiroma's
discharge not mentioned by him on direct, namely, that Shiroma had broken into some
candy boxes during the last week of his employment . This reason appears to have been an
afterthought. Shiroma denied breaking open candy boxes ; he did admit eating candy from
damaged cartons but asserted that others had done so too , Simpson included, and that the
man in charge of the department told him that he could eat candy without reprimand
from him . This testimony was undenied.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees; upon dismissal both were given specious and similar reasons
for the respondent's action, and at the hearing both were charged
with a series of minor derelictions that had no relation to their release.
The respondent's defense at the hearing, generally credited by the
majority, consisted in testimony by Jahries that he directed Uyeda's
dismissal upon the recommendation of O'Neill and Matsui, first and
second in rank among the respondent's head salesladies, and that
before reaching a final decision he consulted with head steward Goo,
O'Neill, Matsui, and head saleslady Mishina; and in testimony by
Matsui and Mishina. After discussing the reason for the discharge,
the testimony of the respondent's witnesses will be examined.
The majority of the Board has found that Miguel was notified
of her discharge by head saleslady Matsui, who informed her that
she was being discharged because she had directed a customer to
the wrong counter for the purchase of a postal card. Matsui her-
self testified that she had told Uyeda that she was unsatisfactory
because customers had complained about her. Uyeda's account of
the subsequent interview with Jahries conflicts with that of Jahries
with respect to whether additional reasons for her discharge were
given; in view of the circumstances of her discharge I would credit
Uyeda, but, in any event, the reasons claimed by Jahries to have been
stated were vague and general. Thus, the immediate cause for re-
lease stated by Matsui at the time of termination was a narrow one,
and Matsui should have known the facts concerning Uyeda's dis-
charge since she recommended it, was consulted, according to Jahries,
before he approved the recommendation, and was instructed by him
to discharge her.
But at the hearing Matsui admitted-that she herself had no com-
plaint from any customers about Uyeda. Neither she nor any other
of the respondent's witnesses testified about a number of customer
complaints concerning Uyeda or any complaint concerning her mis-
directing a customer. Mishina, head salesgirl in the notions depart-
ment from which Uyeda had been discharged, did testify about an
instance in which Uyeda failed to assist a customer who asked for
Christmas cards and merely told the customer that she did not know
where they were.89 The report concerning this incident which
Mishina said that she filed does not mention any complaint to the
office; it states that Uyeda failed to direct a customer, that the cus-
tomer "was `peeved'," but that Mishina stopped her and directed her
to the cards. Jahries testified that Mishina told him of an incident
in which Uyeda had neglected to reply to a customer, but that this
was only "the final episode" contributing to her discharge. From
81 Mishina's testimony is discussed below.
S. H. KRESS & COMPANY 1229
the foregoing evidence it appears, therefore, at the very least, that
there was confusion among the respondent's witnesses concerning the
immediate cause for Uyeda's discharge, and, even more, that a
single incident was inflated into a pretext for her dismissal, as in
the case of Miguel.
The testimony of Matsui is, in my opinion, unreliable. She de-
scribed, as noted by the majority, two occasions in December 1938
on which she had to speak to Uyeda about her work and about which
she made written reports to O'Neill9° Matsui admitted, however,
that these incidents had taken place after. she and O'Neill had put
Uyeda on the list of girls to be laid off. The majority mentions this
admission but fails to draw the only proper conclusion, that Matsui
was testifying concerning matters without any actual bearing on the
causes for Uyeda's discharge. The weight of Matsui's testimony is
seriously impaired not only by this admission but also by the anti-
union activity which she is found above to have engaged in, and by
the fact that she made no reference to the events she testified to
when, at the time of Uyeda's dismissal, she was asked for the causes
of such dismissal.
For the following reasons I cannot find Mishina's testimony any
more persuasive of the motive for Uyeda's discharge than Matsui's.
Mishina testified that the first of the incidents involving Uyeda which
she reported to O'Neill, the one concerning the failure to give infor-
mation about Christmas cards, took place about the first week in
December. She testified that the second one, involving making a
mistake on a night order, occurred between December 10 and 15.
'She also testified that she made written reports to O'Neill about these
occurrences on the very days that they happened. However, the
reports, copies of which are in evidence, both bear the date December
16, 1938. That date is subsequent to the time when, according to
Matsui's estimate, Uyeda's name was put on the list of those recom-
mended for discharge. This fact casts strong doubt on the good
faith with which the reports were made and strengthens the inference
that the respondent was seeking to find excuses to discharge Uyeda.
Moreover, Mishina's testimony was not consistent with that of
Jahries and Matsui. The latter two indicated that Mishina had been
consulted about and had recommended Uyeda's discharge. But Mi-
shina testified that, apart from sending in' two reports of her mis-
conduct, she had nothing to do with the dismissal of Uyeda.
Jahries' testimony reveals little in the way of particular facts or
reasons for his decision to discharge Uyeda. The substance of his
assertions was that after receiving the recommendation to discharge
90 Board's attorney requested the production of Matsui's reports but was advised by coun-
sel for the respondent that they could not be found.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uyeda he conferred with those who had been and were her super-
visors, learned that they did not want her, and based his decision on
what they told him plus one observation of her inability to answer
questions concerning the selling speed and quality of articles at her
counter. The only detailed information he mentioned having ob-
tained from these supervisors was that Uyeda had been slow at
packing candy and that she failed to direct a customer to the Christ-
mas cards.
The following testimony of Uyeda, on the other hand, establishes
that unsatisfactory work was not the cause for her discharge.
Uyeda's denial that her work had been criticized or that she had been
told she had violated store rules was not materially weakened by her
admissions on cross-examination that when she was in the soda and
lunch department Goo told her that she would have to pick up more
speed and cautioned her about not punching the time cards properly,
and that Matsui warned her about giving a package to a customer
before taking the money for a sale. The offenses in question were
minor and such as could be imputed to any salesgirl. Goo's com-
plaint about her. slow work at the soda and lunch counter occurred
only after she had started to attend negotiation meetings. The Hono-
lulu Union protested her transfer from-that counter. Uyeda also
denied that she had ever had any conversation with Mishina. about . '
her work or that any complaint was ever made to her about speaking
improperly to customers. She asserted that she always gave the cus-
tomers answers and that if she did not know where an article, could
be found, she would ask the head girl at her counter.
The majority of the Board seem to consider that Uyeda's refusal"
to talk to Jahries at the interview granted her at the time she was
discharged, substantiates the respondent's defense. Uyeda testified,
and it is clear, that she was intimidated by the presence of the stenog-
rapher who attended the interview; such intimidation tends to prove,
rather than disprove, discrimination.
In the light of Uyeda's union office, the variance in the reasons
given by the respondent for her discharge, the questionable signifi-
cance of the testimony of Matsui and Mishina about Uyeda's short-
comings, the indefinite character of the reasons assigned by Jahries,
Uyeda's denial of reprimand for unsatisfactory work, and the other
evidence of the respondent's anti-union activity, I am of the opinion
that Uyeda was discharged for her union membership and activity.
d. Refusal to bargain in good faith at Honolulu
I agree with the finding of the majority of the Board that by
reason of the consent election of May 27, 1938, the majority of the
S. H. KRESS & COMPANY 1231
Honolulu Union was successfully established for the purpose of the
ensuing collective bargaining negotiations.
These negotiations lasted from August 15, 1938, until February
13, 1939, but resulted in no agreement . The record shows beyond
any doubt that the respondent was guilty of a refusal to bargain in
good faith in that it refused to execute a contract with the Honolulu
Union with respect to seniority , even though such contract should
merely embody the existing practice , on the asserted ground that to do
so would lead to controversy.
As the Supreme Court said in the Consolidated Edison case 91 "The
Act contemplates the making of contracts with labor organizations.
This is the manifest objective in providing for collective bargaining."
It is settled beyond peradventure of doubt that an employer may not
evade his statutory obligation by refusing to embody in a binding
contract terms concerning which there is no disagreement between
himself and a union 92
I would not find that there was any less a refusal to bargain in
this respect because of the October 1938 meeting when the Honolulu
Union announced that, since it felt no satisfactory agreement with
respondent could be reached , it was withdrawing its seniority pro-
posal subject to the approval of the membership . The persistence
by the respondent in its unfair labor practice forced the Honolulu
Union to recede from its demand for an agreement with regard to
seniority ; such an insistence cannot operate to provide for the re-
spondent an immunity from the consequences of its unlawful action 93
Moreover, the failure of the Honolulu Union to take exception to the
Trial Examiner 's adverse recommendation in this respect should not
result in a. dismissal of this part of the complaint , since the error
underlying the Trial Examiner's recommendation and the violation
are clearly established .. I would find , therefore , that the respondent
has been guilty, in the respect noted, of a refusal to bargain in good
faith with the Honolulu Union , and would order the respondent to
take the usual action to remedy the effects of this unfair labor
practice.
91 Consolidated Edison Co ., et al. v. National Labor Relations Board, 305 U. S. 197.
99 H. J. Heinz Co. v. National Labor Relations Board, 311 U. S. 514; Inland Lime & Stone
Company v . National Labor Relations Board, 119 F. ( 2d) 20 (C. C. A. 7) ; Matter of
Westinghouse Electrio d Mfg. Co., etc. and United Electrical, Radio & Machine Workers
of America, etc., 22 N. L. R B. 147; Matter of Harnischfeger Corporation and Amal-
gamated Association of Iron , Steel & Tin. Workers of North America , 9 N. L. R. B. 676,
enf'd, National Labor Relations Board v. Harnischfeger , June 6, 1939 (C. C. A. 7) ; Matter
of St. Joseph Stockyards Co. and Amalgamated Meat Cutters and Butcher Workmen of
North America, etc., 2 N. L. R. B. 39.
93McQuay-Norris Mfg . Co. v. National Labor Relations Board, 116 F. ( 2d) 748 (C. C. A.
7), cert. den . 313 U. S. 565 ; Matter of Calumet Steel Division of Borg-Warner +Corporation
and Amalgamated Assn of Iron & Steel Workers of North America, etc, 23 N. L Ra B.
114.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. Discrimination against Thomas Nakashima
Unionization began to be discussed at the Hilo store as early as
November 1938. The evidence does not indicate that any particular
secrecy attended these first organizational efforts 94 Nakashima was
approached concerning the Union quite early,- and it was he who
arranged for the November 28 meeting at which the Hilo Union
was formally brought into being. About November 14, Nakashima
put forward a demand with regard to working conditions. Naka-
shima asked Janzen if the employees could get time off for overtime
work and told him that he was asking because the other boys had
requested him to do so. Janzen replied that it could not possibly
be done and observed that he was not as "peppy" as he used to be.
In the light of the other circumstances noted by the majority 96
certainly this latter incident might well have served to mark Naka-
shima in the eyes of Janzen as one of the leaders in the organizational
movement at the store. It is also significant that it was not until
December 2, according to Janzen, that he inquired of head saleslady
Chun whether Nakashima had always behaved, himself, and not
until December 3 had he told Nakashima about discharging him.
Nakashima was elected president of the Hilo Union at the first
official meeting on November 28 and a member of the union nego-
tiating committee at the second official meeting on December 2.
Nakashima's union office, the time of his dismissal, and Janzen's
knowledge of the fact that he had put forward demands in regard
to working conditions for other employees are sufficient to establish
that Janzen had knowledge of Nakashima's union affiliation before
the discharge of Nakashima on December 5, 1938.
The majority of the Board have found that Nakashima was dis-
charged because it became known in the store that he had been guilty
of kissing a salesgirl in October 1938 and because he failed to report
other incidents of his conduct to Janzen at the 'time of the incident.
It should be noted that the kissing incident, the source of Naka-
shima's alleged difficulties, took place in October 1938, about 2 months
before his discharge. There is a conflict between Nakashima and
Janzen concerning what passed between them at the time of the
incident and at a subsequent conversation the following day. In
general, if , Nakashima's account of both conversations is be-
lieved, Janzen warned against a repetition of his misconduct
(which never occurred), while if Janzen's account is believed he
e4 Yamamoto , an employee , testified that be heard rumors about a union early in November.
16 Early in November , Nakashima spoke about the Union on store premises to Pahk, a
fellow employee.
16 For example , the inquiry about the first union meeting by the head cashier , who later
served as secretary to Janzen during at least one conference with the Hilo Union.
S. H. KRESS & COMPANY 1233
recalled an occurrence of a similar nature and stressed the need for
truthfulness and secrecy. In view of the subsequent reliance by
the respondent on Nakashima's "misconduct" as the reason for his
discharge and in view of the failure of the respondent to give any
other reasons to Nakashima when he was discharged, it seems likely
that on the two occasions in question Janzen in substance gave
Nakashima another chance on the condition that he would not repeat
the conduct to which objection had been taken.
According to Nakashima it was not until after December 3 that his
removal from his oiling task occurred. He also placed the incident
after efforts had been made to form the Hilo Union. Jahries admitted
that there was no specific occasion for this removal. He simply said
that Nakashima's "lack of interest" in his work made him feel that
Nakashima would not do the oil work with the necessary regularity.
The only incident relied upon by Jahries to show this lack of interest
was the ledge-trimming incident of November 14 or 15, discussed
above. As already pointed out, Nakashima at that time appears to
have acted as a spokesman for other employees in putting forward a
demand for time off for overtime. That action might well have in-
spired Jahries' inquiry on that occasion into Nakashima's "improper
attitude" and coupled with additional intervening union activity might
well have given rise to the general charge of "lack of interest." Under
the circumstances given, the removal of Nakashima from his oiling
task tends to strengthen the inference that the respondent was acquir-
ing knowledge of Nakashima's union activity rather than that Naka-
shima was growing lax in his work.
It is significant that between the October incident and December 2,
no action of misconduct by Nakashima was called to Janzen's atten-
tion, and that according to Janzen's own statement the information
that he secured from Chun on December 2 was the result of his asking
her whether Nakashima had been misbehaving. If, as Janzen claims,
he was really interested in knowing whether Nakashima had been guilty
of any misbehavior prior to October, he would surely have inquired at
the time of the incident in October instead of waiting for a period of
about 2 months. Janzen gave, as the only reason for inquiring when
he did, the above-mentioned concern about Nakashima's loss of interest
in his work.97
The events of December 3 and December 5 are described in the
opinion of the majority. While there is some conflict in the evidence
concerning them it appears that on December 3 Janzen confronted
Nakashima with the charges that had been made by Chun; Nakashima
denied these charges. On December 5 Nakashima was still employed.
x It is difficult to understand how his question to Chun was related to this concern.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Janzen learned from Cabral, an employee, about Nakashima's taking
a salesgirl into a vacant garage about Christmas 1937 and about Naka-
shima's warning, made on December 5, that Cabral should say nothing
about the incident. Chun made a written report of the other incidents
of which Janzen had accused Nakashima on December 3. Janzen
discharged Nakashima at 5 p. m. on December 5. While Janzen testi-
fied that he referred Nakashima to Saturday's conversation for the
reasons for the discharge, Nakashima testified that when he asked
Janzen why he was being fired Janzen refused to give him the reasons.
Since on Saturday, December 3, Janzen gave no reasons to Nakashima
for discharging him, I am inclined to believe the testimony of Naka-
shima in this respect.
Janzen testified that he discharged Nakashima for misconduct, for
lying to him, and "because of the gossip and whispering about the in-
cident which created a situation in the store which was not good." As
for threatening employees, Janzen admitted that he found out about
the threat through Miss Cabral after he had decided to discharge
Nakashima. It appears that neither on December 3 nor December 5
did Janzen say anything about the threatening nature of Nakashima's
language. Nor did Janzen contradict Nakashima's testimony that he
was not accused of lying on December 3, and Janzen himself did not
claim to have mentioned it on December 5. With respect to the sup-
posed general knowledge of the October incident, to which the opinion
of the majority accords significance, that reason likewise does not seem
to have been brought up by Janzen either on December 3 or 5. Apart
from misconduct, therefore, the reasons relied upon at the hearing do
n6t seem to have been advanced about the time of the discharge.
That the respondent merely was seeking to use Nakashima's October
conduct with the salesgirl as the excuse for his discharge is borne out
by the following evidence. On December 6, 13, and 29, union repre-
sentatives requested the respondent to reemploy Nakashima and to
give him the reasons for his discharge and on none of these occasions
did he receive any more specific assignment of cause than "misconduct"
or "violating long established rules of the Company, rules with which
you are all familiar." It does not appear that any mention was made
of alleged threats or of the general knowledge of the October kissing
incident. On December 10, Nakashima conferred with Jahries, then
in Hilo. Jahries told Nakashima that Janzen had stated that his mis-
conduct in October was the cause for his discharge 98 Nakashima re-
plied that the incident referred to had happened about 2 months
98 As stated above, Immediately after an interview with Nakashima and other union rep-
resentatives on December 8, Janzen prepared a letter to Jabries purportedly describing that
interview. In the letter Nakashima was identified by Janzen as "the young man discharged
by us for misconduct."
S. H. KRESS & COMPANY 1235
before his discharge and he could not see how it was connected with
the discharge . Jahries asked if he was sure that there was no other
occasion . Nakashima assured him that there had been none and that
he had kept his promise to Janzen . Jahries then told Nakashima that
he would do something about it and that he was sure that everything
would turn out all right.
The preceding considerations establish that the respondent shifted
its position in that before the hearing it relied only on Nakashima's
kissing a salesgirl in justification of his discharge and not upon the
reasons adduced at the hearing. That misconduct antedated his dis-
charge by some time . For these reasons , and because Nakashima was
discharged about a week after his election to the union presidency and
for the other reasons detailed above, I am of the opinion that Naka-
shima was dismissed for no other reason than for his union membership
and activity.