Weisfields, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1950

88 N.L.R.B. 541 (N.L.R.B. 1950)

In the Matter Of WEISFIELDS, INC., and MILTON BENJAMIN SACHS, AN
INDIVIDUAL
Case No. 36-CA-36.-Decided February 8, 1950
DECISION
AND
ORDER
On November 4, 1949, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Weisfields, Inc.,
Eugene, Oregon, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging concerted activity among its employees by dis-
charging any of them or in any other manner discriminating with
regard to their hire or tenure of employment or any term or condition
of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Herzog, and Members Houston and Reynolds].
88 NLRB No. 122.
541
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form, join, or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any
other concerted activities for the purposes of collective bargaining or
other mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Make whole Milton Benjamin Sachs for any loss of pay he may
have suffered by reason of the Respondent's discrimination against
him, by payment to him of a sum of money equal to the amount he
normally would have earned as wages from July 20, 1948, to August
23, 1949, less his net earnings during said period;
(b) Post at its store in Eugene, Oregon, copies of the notice at-
tached hereto, marked Appendix A.2 Copies of said notice, to be
supplied by the Regional Director for the Nineteenth Region, shall,
after being duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by,Respondent to insure that said no-
tices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage concerted activity among our em-
ployees by discharging any of them or in any other manner dis-
criminating with regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form, join, or assist any labor organization, to bargain
2In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be inserted in the notice before the words : "A DECISION AND ORDER," the
words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
WEISFIELDS, INC. 543
collectively through representatives of their own choosing, and to
engage in concerted activity for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
WE WILL MAKE WHOLE Milton Benjamin Sachs for any loss of
pay he suffered as a result of our discrimination against him, as
set forth in the Board's Decision and Order.
All our employees are free to engage in concerted activity and to
act collectively concerning matters affecting their tenure of employ-
ment or any term or condition of employment. We will not discrimi-
nate against any employee because of such activity.
WEISFIELDS, INC.,
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Hubert J. Merrick, Esq., of Seattle Wash., for the General Counsel.
David Fain, Esq., of Black & Kendall, Portland, Oreg., for Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed August 12, 1948, by Milton Benjamin Sachs, an indi-
vidual, the General Counsel of the National Labor Relations Board, herein
called respectively the General Counsel and the Board, by the Regional Director
for the Nineteenth Region (Seattle, Washington), issued a complaint dated
February 25, 1949, against Weisfields, Inc.,' Eugene, Oregon, herein called Re-
spondent, alleging that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat.
136, herein called the Act. Copies of the complaint, the charge, and a nctice of
hearing were served upon Respondent and Sachs.
With respect to unfair labor practices, the complaint alleged that Respondent
had on or about July 20, 1948, discharged Sachs and on or about July 29, 1948,
discharged Peter J. Teatro, because each had engaged in concerted activities for
the purpose of obtaining Respondent's consent to the establishment of job termina-
tion practices designed to afford all employees better job security and protection.
Respondent's answer denied the commerce allegations in the complaint, admitted
the discharges of Sachs and Teatro, but asserted that the discharges were moti-
vated, in the case of Sachs, by his failure to supply Respondent with a surety
' The name of Respondent as stipulated at the hearing.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bond, and, in the case of Teatro, by his discourteousness to customers and his
otherwise unsatisfactory performance as an employee.
Pursuant to notice , a hearing was held in Eugene , Oregon, on August 23, 1949,
before the undersigned Trial Examiner , duly designated by the Chief Trial Exam-
iner. The General Counsel and Respondent were represented by counsel and
participated in the hearing . Full opportunity was afforded all parties to be
heard, to examine and cross -examine witnesses , and to introduce evidence bear-
ing on the issues. A motion made at the hearing by the General Counsel to dis-
miss the allegations of the complaint as to Teatro was granted without objection.
At the close of the hearing counsel for Respondent argued orally on the record.
A brief has been received from the General Counsel.
Upon the entire record in the case and from my observations of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE 13USINESS OF RESPONDENT
Respondent is a Delaware corporation operating , from headquarters in Seattle,
Washington , 8 retail jewelry stores in the State of Washington and 2 in the State
of Oregon . This proceeding concerns the Eugene , Oregon, store . Respondent's
annual purchases for its 10 stores approximate $5,000,000 in value, of which
approximately 90 percent comes from sources outside the States of Washington
and Oregon . Annual sales of the store at Eugene exceed $500 ,000 in value. Al-
though retail sales are made almost , if not quite , exclusively within the borders
of the State in which each store is located , the flow of merchandise into the 2
States from outside points is substantial . I find that Respondent 's operations
are in commerce and affect commerce within the meaning of Section 2 (6) and
(7) of the act.
II. THE UNFAIR LABOR PRACTICES
Sachs was employed by Respondent on April 12 , 1948, at the Eugene store as a.
credit interviewer and salesman and worked in those capacities until his dis-
charge on July 20. Sometime during the last month of his employment , he acted
also as an assistant to the credit manager. The evidence shows without dispute
that Sachs performed his work competently and that he was well regarded by
the store manager, Harry Ritchie.
About July 2, Ritchie learned that Sachs' application for surety bond had been
disapproved by a surety company and so informed Sachs. Upon Sachs' assur-
ance that there was nothing in his past to warrant such action , Ritchie agreed
to attempt to discover the reason for rejection.
On July 6, Ritchie wrote concerning the bond rejection to Walter R. Lommel,
Respondent 's comptroller , stating his desire to retain Sachs as an employee, and
requesting advice. Lommel made no answer to this inquiry but, he testified, did
ask the bonding company to review its action to see if some error had not been
made. According to Lommel, on July 19 the bonding company advised him that
they would not bond Sachs but refused to state the reason.
Leslie E. ' Rosenberg , Respondent 's executive vice president , testified that on
July 19 he learned from Lommel of the bond rejection and that Sachs was still in
Respondent's employ. According to Rosenberg, he then told Lommel that he
would see to Sachs' discharge. On July 20, still according to Rosenberg, he spoke
to Ritchie by telephone and instructed that Sachs be discharged at once.
WEISFIELDS, INC. 545
Ritchie testified that upon receiving such instruction from Rosenberg, he called
Sachs to his office and discharged him.
Sachs testified that a week or two before his discharge he consulted with his
uncle, Ralph Sachs, concerning the bond rejection and that the uncle offered to
supply a bond for him. Sachs reported this offer to Ritchie and asked if such an
arrangement would be acceptable. Ritchie did not answer directly but indicated
that the question of bond need not be decided immediately.
Sachs testified credibly that upon his arrival at work on the morning of July
20, he learned that an employee, June Evans, had been summarily discharged the
previous evening. Several employees expressed concern over this incident, Sachs
testified, and during the day it was decided that all employees who desired
would visit with Ritchie that evening in an attempt to secure some sort of agree-
ment with him that future discharges would not be made so precipitately-"to
ask that leniency be granted in other cases where employees were to be discharged
so that we could feel more free in our minds and have more job security," as
Sachs put it. Sachs and two other employees agreed to act as spokesmen. As
the time for the planned meeting drew near,.many of the employees expressed
apprehension concerning the wisdom of their plan and, as a result, it was
abandoned.
Just before closing time, according to Sachs, Ritchie, in a curt and angry man-
ner, instructed him to come to Ritchie's office where Ritchie asked, "Now, what
is all this about the committee?" Sachs replied that there had been a committee
and admitted that he had been one of the organizers. Ritchie interjected that
he was under no obligation to divulge his reasons for discharging Evans and
Sachs agreed that this was so but explained that the employees "were interested
in obtaining job security for [them] selves and . . . hoped that meeting with him
would perhaps get [them] more leniency in the future in similar circumstances."
Ritchie answered that Sachs was a fool, that he should have come to him, man to
man, instead of organizing a committee, that the employees would not be grateful
to him or support him and, cursing angrily, went on to say that Sachs' future
with Respondent had appeared bright but that by his ill considered action he had
forfeited it-that he never again would be employed by Respondent. Ritchie then
alluded to the bond saying that Sachs' action displayed particular ingratitude in
that he, Ritchie, instead of discharging him at once when his application had been
rejected, had kept him in his employment and had written Respondent's Seattle
office in Sachs' behalf.
Ritchie's version of, this conversation is markedly different. He testified that
during the afternoon of July 20 he learned that the employees planned a meeting
that evening and, his curiosity aroused, he questioned two employees about it.
Both, according to Ritchie, professed ignorance of the matter and neither men-
tioned Sachs. Pursuant to the instruction of Rosenberg, according to Ritchie, he
called Sachs to his office at the close of the day and told him that he was dis-
charged. When Sachs asked for a reason, Ritchie answered that he was under
no obligation to advance one. Sachs then became indignant, according to Ritchie,
and insisted that the reason for his discharge be stated. Ritchie thereupon told
him that it was because of his failure to secure a bond. Sachs asserted that his
activity in connection with the committee of employees was the true reason.
Ritchie denied that this was so.
Regina Bowman testified that on the occasion of Sachs' discharge she over-
heard Ritchie call Sachs a son-of-a-bitch and a Jew bastard. Winona Bockes
testified that she overheard the same language and that the voices of both Sachs
and Ritchie, were loud to the point of shouting. Bowman also testified that on
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following day, Ritchie asked her to identify those who had attempted to
organize the meeting which was never held.
On July 21, Ritchie called the employees together and told them that they
could bring their grievances to him and that he wanted to relieve the tension
which seemed to exist among them.
Conclusions
The activity of Sachs and others toward a meeting with Ritchie to discuss job
termination practices concerned as it was with tenure of employment is such
activity as the Act was designed to protect.2 Discipline of Sachs or any of the
participants in that movement because of such activity would constitute a viola-
tion of the Act'
Because of his personal . interest in the outcome of this proceeding, I have
scrutinized Sachs' testimony with care. I am convinced that he testified truth-
fully. His version of the character of the interview with Ritchie on July 20
is supported by the credited testimony of Bockes and Bowman. Ritchie's denial
that he cursed Sachs was equivocal and is not credited. Credence is lent Sachs'
testimony that Ritchie was concerned about the projected employee meeting by
the credited and undenied testimony of Bowman that Ritchie questioned her
concerning it on the following day. The meeting of employees called by Ritchie
is further evidence that Ritchie was aware, as indeed he admitted, that the
employees were concerned about his discharge practices.
Rosenberg sought to give the impression that he took it upon himself to insure
Sachs' discharge because Ritchie had failed to do so. But it does not appear that
Ritchie had violated any instruction . He had reported the facts to Lommel, his
superior , and awaited advice. I do not believe that he ever received any and
I am convinced that testimony that Rosenberg ordered Ritchie by telephone to
discharge Sachs was contrived.
I do not question that Sachs ' failure to secure bond would have constituted a
valid ground for discharging him. My finding is that he was not discharged for
that reason. Sachs knew that his tenure of employment was threatened by this
development and had discussed the matter with Ritchie without rancor and
without either of them becoming emotionally upset. Had the discharge of July
20 been laid upon the rejection of Sachs by the bonding company I am convinced
first that Ritchie would not have hesitated to say so, even momentarily, and
second that the occasion would not have developed into such an angry, name-
calling, vituperative incident as it did.
I find that Sachs was discharged on July 20 because of his identification with
a planned meeting of employees in connection with securing an agreement with
Respondent concerning discharge practices . By discharging Sachs Respondent
discriminated in regard to his tenure of employment because he had engaged in
concerted activities protected by Section 7 of the Act. Respondent thereby
violated Section 8 (a) (1) and (3) of the Act. As Sachs testified on
August 23 , 1949, that he does not desire reinstatement to his former position
with Respondent , reinstatement will not be recommended.
III. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section II, above, occurring in con-
nection with the operations of Respondent described in Section I, above, have a
2 Section 7.
IN. L. R. B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C. A. 7).
WEISFIELDS, INC. 547
close, intimate, and substantial relationship to trade, traffic, and commerce
among the several States and such of them as have been found to constitute unfair
labor practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
IV. THE REMEDY
Having found that Respondent discriminatorily discharged Milton Benjamin
Sachs on July 20, 1948, it will be recommended that it cease and desist from such
conduct and that it make Sachs whole for any loss of pay he may have suffered
as a result of the discrimination against him for the period from July 20, 1948,
to August 23, 1949, less his net earnings ° during such period.
The unfair labor practices found represent an attempt by Respondent to defeat
concerted action among its employees by the most serious form of violation of the
rights guaranteed in Section 7 of the Act and protected by Section 8 (a) (1)
and (3) of the Act. This indicates not only a disposition to commit similar acts
in the future but also a broader and basic attitude of opposition to the purposes
of the Act with the likelihood of resort to -unfair labor practices of other
character in the future. The preventive purposes of the Act will be thwarted
unless the Board's order is coextensive with the threat. I will recommend
therefore that Respondent cease and desist from in any manner infringing upon
the rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. By discriminating in regard to the tenure of employment of Milton Ben-
jamin Sachs, thereby discouraging employees in the exercise of rights guaranteed
in Section 7 of the Act, Respondent engaged in unfair labor'practices within the
meaning of Section 8 (a) (3) of. the Act.
2. By such discrimination, Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7 of the Act and
thereby engaged in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Weisfields, Inc., Eugene, Oregon,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging protected concerted activity among its employees by dis-
charging or refusing to reinstate them or in any other manner discriminating
in regard to their hire or tenure of employment or any term or condition of
employment ;
(b) In any other manner, interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor organ-
4 Crossett Lumber Company, 8 NLRB 440.
852191-51-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izations, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the Act as
guaranteed by Section 7 thereof.
2. Take the following affirmative action which I find will effectuate the policies
of the Act :
(a) Make whole Milton Benjamin Sachs in the manner prescribed in the sec-
tion herein entitled "The remedy" ;
(b) Post at its store in Eugene, Oregon, copies of the notice attached hereto
marked Appendix A. Copies of such notice, to be supplied by the Regional Di-
rector for the Nineteenth Region, shall, after being duly signed by Respondent's
representative, be posted by Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in conspicuous places
including all places where notices to employees customarily are posted. Reason-
able steps shall be taken by Respondent to insure that said notice is not altered,
defaced, or covered by any other material ;
(c) Notify the Regional Director for the Nineteenth Region in writing within
twenty (20) days from the receipt of this Intermediate Report and Recom-
mended Order, what steps Respondent has taken in compliance herewith.
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report and Recommended Order, Respondent
notifies the said Regional Director in writing that it will comply with the fore-
going recommendations, the National Labor Relations Board issue an order
requiring it to do so.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Immedi-
ately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions
of the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties of
all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46 should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
WEISFIELDS, INC. 549
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 4th day of November 1949.
WALLACE E. ROYSTER,
Trial Examiner.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT by means of discharge or in any other manner interfere with,
restrain, or coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own choosing, to en-
gage in concerted activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the Act.
WE WILL MAKE WHOLE Milton Benjamin Sachs for any loss of pay suffered
as the result of discrimination against him for the period from July 20,
1948, to August 23, 1949.
All our employees are free to engage in concerted activity and to act collectively
concerning matters affecting their tenure of employment or any term or condition
of employment. We will not discriminate against any employee because of sugh
activity.
WEISFIELDS, INC.,
Employer.
By --------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.