W.T. Grant Co.

National Labor Relations Board - Board Decisions

Aug 25, 1970

185 N.L.R.B. 88 (N.L.R.B. 1970)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W.T. Grant Company and Retail Store Employees
Union , Local No . 1099 , Retail Clerks International
Association , AFL-CIO. Case 9-CA-5142
August 25, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 9, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision 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 attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the Charging
Party filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Trial Examiner's rul-
ings made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Deci-
sion, the exceptions and briefs, and the entire record
in this case and hereby adopts the findings, conclu-
sions,' and recommendations of the Trial Examiner.
We agree with the Trial Examiner that Respondent
was motivated by a determination to retaliate against
employees for their prounion activities when it institut-
ed an automatic and inflexible approach in the applica-
tion of its rules and personnel operating procedures.
We also agree that Respondent's handling of employee
Dixon's medical leave of absence was a consequence
of this unlawfully motivated "by the book" approach
to such matters and that Respondent violated Section
8(a)(3) and (1) when, as a result, it refused to end
Dixon's extended sick leave status and put her back
to work upon her notification that she was fully
recovered and ready to return. That the desire to
punish a prominent union adherent (Dixon's activities
' In the absence of exceptions thereto, we hereby adopt, pro forma,
the Trial Examiner's conclusion as to the application of the guidelines
of Johnnie's Poultry Co, 146 NLRB 770, to the conduct of Respondent's
labor relations coordinator in his investigation in the preparation of
objections to the election
were the subject of several of Respondent's pending
objections to the recent election) and not a lack
of work was the reason for refusing to restore Dixon
to active status is apparent from all the relevant
circumstances. Thus, in the context of a past practice
of restoring active employee status promptly, without
regard to whether there was a specific vacancy, follow-
ing medical leaves of absence and a lack of evidence
that any such returning employee was treated differ-
ently, Personnel Manager Westfall gave explicit assur-
ance to Dixon, when she left for medical purposes
on November 8, 1968, that she need not worry as
her job would be waiting for her when she returned.
This assurance was made with full knowledge of
the nature of Dixon's imminent surgery and of the
probability of her post-Christmas return. Moreover,
in view of the size of the unit (approximately 107
eligible voters in November 1968); Respondent's prac-
tice of shifting employees to "cover" work stations
of others absent for vacations, illnesses, etc.; Dixon's
long and varied experience with Respondent including
her valued skill as a cashier; and the fact that Respond-
ent was retaining at least one full-time and some
part-time employees hired for the Christmas rush,
we find incredible Westfall's statement to Dixon that
Respondent would not permit her to return on January
28,1969, because it had "nothing open" for her.
Accordingly, we are satisfied that, without regard
to when the discrimination began, the date on which
Dixon's employment income was adversely affected
by Respondent's discriminatory actions was, as found
by the Trial Examiner, January 28, 1969.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, W. T. Grant Company, Fort Mitchell,
Kentucky, its officers, agents, successors, and assigns,
2 Our colleague's sole difficulty in this regard is with our finding
as to the date from which backpay for the unlawful discrimination should
be awarded There is no doubt that in early March, while hiring employees
for the Easter season, Respondent, having struck Dixon's name from
its mental list of persons interested in work, further manifested its continu-
ing discriminatory motivation by failing to contact Dixon for job openings
However, Dixon was not a returning economic striker who must await
a job opening or an applicant for employment whose failure to hire
Is alleged to have been discriminatory, but an employee who has been
discriminated against, with respect to her return from a temporary inactive
status, for unlawful reasons In such circumstances , the Board has always
ordered as part of the remedy for the unfair labor practice restitution
wherever possible of the status which would have obtained absent the
discrimination, including the requirement that the employee be made
whole for any loss of pay suffered by reason of such discrimination,
and we find no reason to require less here
185 NLRB No. 14
W T GRANT CO
shall take the action set forth in the Trial Examiner's
Recommended Order.
MEMBER MCCULLOCH, concurring in part and dis-
senting in part:
I am in general agreement with the Trial Examiner's
disposition of the case, which the majority of the
panel adopts in toto. I cannot agree, however, that
the evidence supports the conclusion that the discrimi-
nation against employee Dixon began on January
28, 1969. The record indicates that no new employees
were hired between December 1968 and March 1969.
When Dixon returned from sick leave on January
27, 1969, and asked for reemployment, she was told
that there were no openings for her. The Trial Examin-
er accepts this latter statement as a fact, but assumes
that Dixon should have been hired as an extra cashier
or in some other "extra" capacity. He cites the fact
that, when a Mrs. Gunkle had returned to work,
"Respondent wound up with an extra cashier." The
testimony shows, however, that, in Mrs. Gunkle's
case , the store had had an increase in business. I
do not think that this single historical fact convincingly
establishes that Respondent had a firm policy of
always hiring employees returning from sick leave,
regardless of the existing circumstances. I would find,
instead, that backpay should run from the time in
early March when Respondent began hiring employees
for the Easter season , but failed to contact Dixon.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: The charge
which gave rise to this case was filed on April 21, 1969,
by Retail Store Employees Union, Local No. 1099, Retail
Clerks International Union, AFL-CIO, referred to herein
as the Union or the Charging Party, against W. T. Grant
Company, referred to herein as Respondent On July 31
the General Counsel of the National Labor Relations Board,
by the Regional Director for Region 9 (Cincinnati, Ohio),
issued complaint. Respondent's answer, duly filed, admitted
certain allegations of the complaint and denied others,
including the allegation that it had committed unfair labor
practices.
Hearing was held before me, pursuant to due notice,
in Cincinnati, Ohio, on December 10, 11, 12, and 29.
Early in the hearing I granted the General Counsel's motion
to amend the complaint to add an allegation that Respondent
had violated Section 8(a)(1) of the Act when one Opal
Crawford, on or about November 8 and 16, 1968, coercively
berated employees for their activities on behalf of the Union.
At the end of the General Counsel's case I granted Respond-
ent's motion to dismiss this part of the case as well as
allegations contained in the original complaint that Respond-
ent had violated Section 8(a)(1) when Gavonnah Westfall,
personnel manager of Respondent's store in Fort Mitchell,
Kentucky, threatened an employee with loss of work in
late October or early November 1968 if she voted for
89
the Union and coercively berated an employee in late
December 1968 regarding her union activities. I ruled that
the General Counsel had failed to make out a prima facie
case with respect to any of these allegations of the complaint,
as amended.' Consequently, the issues litigated before me
were (1) whether Respondent discriminated against Emilee
Dixon within the meaning of Section 8(a)(3) when it refused
to permit her to return to work in January 1969 following
an absence caused by illness and (2) whether certain state-
ments and actions of Mrs. Westfall soon after a Labor
Board election at the Fort Mitchell store on November
8, 1968, and other statements and actions of Lester Margare-
ten, Respondent's labor relations coordinator, both before
and after the election constituted independent violations
of Section 8(a)(1).
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence,
to examine and cross-examine witnesses, to argue orally,
and to file briefs. Upon the entire record, including briefs
filed by all parties, and from my observation of the demeanor
of the witnesses while testifying under oath, I make the
following.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, operates department
stores throughout the United States. During the year preced-
ing the issuance of the complaint in this case its sales
exceeded $500,000 and the value of goods shipped directly
to the Fort Mitchell, Kentucky, store from outside the
State of Kentucky exceeded $50,000 On the basis of these
admitted facts, I find that Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In August 1968, the Union began a campaign to organize
the employees of the Fort Mitchell store. On September
27 it filed a petition for a Labor Board election in W.
T. Grant Company, Case 9-RC-7902. The election was
held, pursuant to a Stipulation for Certification upon Con-
sent Electrion approved October 22, on November 8. Results
were 54 votes for the Union, 45 against, and 4 challenged
ballots. On November 14 Respondent filed objections to
conduct affecting the results of the election. On February
11, 1969, the Regional Director recommended to the Board
that the objections be overruled On March 19 the Board
ordered a hearing It was duly held in Cincinnati, Ohio,
on April 14 and 15 before Stephen S. Frockt. Among
the incidents relied on by Respondent in support of its
' Respondent's motion, which I took under advisement at the end
of the hearing, to dismiss the remaining allegations of the complaint,
is disposed of by my findings, conclusions, and recommendations herein
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections that the Union had threatened employees and
their families prior to the election were the allegations
that Emilee Dixon had threatened Patricia Reeves, her
young son, and Sandra Kellerman , as discussed in more
detail below . Several of the witnesses who appeared before
me testified in that proceeding , including Mrs. Dixon, Mrs.
Reeves, and Miss Kellerman On May 27 Hearing Officer
Frockt issued his report . He recommended that Respond-
ent's objections be overruled in their entirety and that
the Board certify the Union as representative of Respond-
ent's employees in the Fort Mitchell store. No exceptions
were filed to the Hearing Officer's report . Consequently,
the Board adopted his recommendations and issued its
certificate on June 26. Respondent and the Union entered
into a contract which was made effective the same day.
B. Credibility and the Opal Crawford Issue
In my view, the key to this case lies in Respondent's
attitude toward Emilee Dixon's role in the election cam-
paign, as evidenced by the representation case proceedings.
One of Respondent's objections to the November 8, 1968,
election was that "the Petitioner [i.e., the Union] . .
threatened employees and their families in an improper
manner to support the Petitioner in the election " At the
hearing in April 1969 it presented testimony on four inci-
dents in support of this contention Emilee Dixon figured
in two of them. One involved her remarks several weeks
before the election to an employee named Patricia Reeves,
and the other involved her remarks to an employee named
Sandra Kellerman. While considered separately by Hearing
Officer Frockt these two grounds for Respondent's objection
together comprised one episode since they happened almost
simultaneously and were investigated as one by Respondent.
Both incidents, as well as the role they played in Respond-
ent's handling of the representation case, were relitigated
before me with the same sharp conflicts in the testimony
faced by Frockt. In brief, Patricia Reeves' testimony made
the exchange between her and Mrs. Dixon ajoking encounter
of no consequence between two friends, while Respondent's
witnesses all described a Patricia Reeves who was upset
to the point of tears at what Mrs Dixon had said to
her. Frockt credited both Mrs. Reeves' and Mrs. Dixon's
versions of what passed between them and credited Miss
Kellerman's testimony of what Mrs. Dixon said to her
over Mrs. Dixon's denial.' I disagree as to the former,
agree as to the latter
' Hearing Officer Frockt's Report on Objections to Election and Recom-
mendations to the Board reads, in pertinent part
I credit both Reeves' and Dixon's versions and find that these
statements were made as testified to by them This resolution of
credibility is supported by the testimony of the Employer's [i e ,
Respondent's] witnesses They stressed that the alleged threat con-
cerned the signing of a union card, and there would have been
no need for Dixon to have threatened Reeves for this reason as
Reeves had already signed a card on September I I and had made
this fact known to Dixon
• * * s
The undersigned has carefully evaluated the conflicting testimony
of Kellerman and Dixon Upon my observation of Kellerman's
In the narrative of the facts which follows I have generally
discredited Patricia Reeves. I found her version of the
events incredible in the face of the testimony of Respondent's
witnesses' that Mrs. Reeves spoke and acted at all times
prior to the hearing in the representation case like one
who felt, whether rightly or wrongly, she had been threat-
ened by Mrs. Dixon if she did not support the Union
and not, as suggested by the Charging Party, like one
who cried because she was being harassed by "Supervisor"
Crawford. I have reached this conclusion for a number
of reasons.
In the first place, I, too, was impressed by the demeanor
of Respondent's witnesses, especially Sandra Kellerman.
The import of Miss Kellerman's testimony was that the
episode had been anything but a joking matter. On the
other hand, I was not impressed by Mrs. Reeves' efforts
to persuade me that Respondent sought to force her from
the beginning to testify against her will that Mrs. Dixon
had threatened her I do not attach the same significance
as Frockt to the fact that Respondent's witnesses stressed
that the alleged threat concerned the signing of an authoriza-
tion card or to the fact that Mrs. Reeves signed one
of the Charging Party's authorization cards on September
11, 1968, sometime prior to her confrontation with Mrs.
Dixon. As to the former, I find below that Mrs. Dixon
spoke to Mrs. Reeves about voting for the Union in the
approaching election, not about signing an authorization
card. For this limited point I have credited the testimony
of Mrs. Reeves since she was the only witness who was
actually present when Mrs Dixon spoke to her Of greater
importance in resolving credibility is the fact that Miss
Kellerman, whom I found completely credible, testified
that Mrs. Dixon's words to her were in the context of
demeanor and conduct while testifying, which impressed me, I credit
her testimony that Dixon made the attributed statement to her
The undersigned concludes that the Dixon-Reeves interchange
was no more than a joking interchange concerning their support
of the Union, and accordingly, Dixon's statement cannot be viewed
as a threat of reprisal or of personal or family harm, should Reeves
fail to support the Petitioner Even viewed in its strongest light,
it cannot be found to have impaired Reeves' choice of representatives
in any manner
Dixon's statement to Kellerman is no more than an isolated
statement and the evidence fails to establish that it, standing either
alone or when viewed with the other conduct, created an atmosphere
of fear and reprisal such that a free election was impossible
' Namely, Miss Kellerman, Nellie Osborne, an office employee who
was present during the conversation in the cash office among Miss
Kellerman, Mrs Reeves, and Richard Anderson, store merchandise manag-
er, Richard Anderson himself, Charles Straffin, manager of the store,
Sylvia Beatty, the employee who called "Supervisor" Opal Crawford's
attention to the fact that something untoward had happened on the
selling floor, and Lester Margareten, the attorney who investigated the
episode as a possible ground for objecting to the election and attempted
to utilize it in his presentation of Respondent's case in the representation
proceeding Before me, Mrs Dixon was not asked about the details
of the exchange between her and Mrs Reeves, merely testifying that
she had talked to Mrs Reeves about the Union prior to the election
She denied ever talking to Miss Kellerman about the Union
W T GRANT CO
a discussion about voting for the Union, not signing one
of its authorization cards. The fact Respondent's witnesses
testified that Mrs. Reeves subsequently indicated Mrs. Dixon
had threatened her in order to get her to sign a card
is, I think, a manifestation of the fact that they simply
got the wrong impression from the upset Mrs Reeves
when they talked to her.' As to the latter, employees
sign union authorization cards for many reasons. I find
nothing inconsistent in the fact that Mrs. Reeves signed
such a card and yet later was dubious enough about voting
for the Union to cause a strong union adherent like Mrs
Dixon to speak as she did. In fact, that is exactly the
sort of person I decided I was looking at as I observed
Mrs. Reeves on the witness stand. The explanation, I am
convinced, for Mrs. Reeves' peculiar conduct when a Board
agent sought to get an affidavit from her and for her
turncoat performance when called as a witness by Respond-
ent at the representation case hearing was her resentment
over being told that she was being taken out of the jewelry
department a day or two before the Board agent came
to the Fort Mitchell store and being laid off a few days
after that.'
More importantly, I have based my credibility resolution
on the course of conduct which Respondent pursued in
the representation case. Anderson talked to Mrs. Reeves
and Miss Kellerman a few minutes after Mrs Dixon spoke
to them and was told that Mrs. Dixon had threatened
them. Straffin was told the same thing After the election,
Respondent, in the person of Margareten, asked employees
who had any evidence that the Union had engaged in
any irregular conduct during the campaign to come forward
with their stones. Among the employees he talked to was
Mrs Reeves. Subsequently, even though Mrs. Reeves failed
to keep an appointment to tell her story to the Labor
Board agent assigned to investigate Respondent's objections,
Margareten subpenaed her and put her on the witness
stand to tell the story she had told him in support of
Respondent's case. No advocate would have taken so fool-
hardy a step if Mrs Reeves had given him the cause
she claimed to have given him to suspect that her testimony
might not be helpful to Respondent. Therefore, I can only
conclude that Margareten's version of what passed between
them is the correct one, and Mrs. Reeves' story that she
told Respondent from the beginning that her exchange
with Mrs. Dixon had been only a joking matter comes
tumbling to the ground.
' E g , Anderson's description of Mrs Reeves' condition at the time,
which I credit, sets the tone of this incident, thus
Her conversation was very incoherent She was very upset, and
all she was saying, that she was afraid, or she was upset by the
constant pressure of-to sign this card, and she had mentioned
Emilee Dixon's name, that she was-that there was pressure on
the floor And this is what-and then from this point-this time
in the cash office was a very short period of time-she said, "Get
Sandy [Kellerman] and she will explain it to you "
As originally issued, the complaint in this case alleged that Patricia
Reeves was laid off on December 24, 1968, in violation of the Act
On August 14, 1969, the Regional Director approved the Charging Party's
request to withdraw that part of its charge on a showing that it had
reached a settlement with Respondent He deleted Mrs Reeves' termina-
tion from the complaint At the time of the hearing before me she
was working in the Fort Mitchell store
91
A related issue, since it looms so large in the General
Counsel's and the Charging Party's theory that she is
in some way the villain of the piece, is whether Opal
Crawford was a supervisor within the meaning of the
Act during the relevant period.' Prior to Respondent's
contract with the Charging Party, Opal Crawford, Ruby
Craddock, and Frances Dixon had the title "supervisor"
and were so designated on the name tag which they, like
all employees at the Fort Mitchell store, wore The Union
challenged all three at the election. Under the contract,
the title "supervisor" was changed to "section head." At
the time the contract came into existence, Frances Dixon
was promoted to assistant manager, an admittedly superviso-
ry position within the meaning of the Act. Opal Crawford
and Ruby Craddock became section heads and are now
covered by the contract. The duties of "supervisors" before
the contract and "section heads" after are identical. There-
fore, in order to avoid the confusion inherent in using
a term of art in an manful manner, I refer hereafter
to the job as section head even though the relevant period
is prior to the contract.
The hierarchy in the Fort Mitchell store is manager,
merchandise manager, assistant managers, section heads,
department heads, and clerks without titles. The clerk in
charge of a department is called the head of that department
even though, in many instances, she is the only employee
in it . Section heads, in turn, are in charge of all the
departments in a particular area of the store. As such
they help department heads prepare orders for merchandise
to be stocked and consolidate the orders from their depart-
ments. They see to it that each department is staffed and
have authority to shift clerks from department to department
within their section. However, they must clear a shift
with someone over them if it involves an employee not
in their section.' Section heads do not ordinarily sell although
circumstances not infrequently require them to do so. In
summary, their job is to oversee the orderly running of
their portion of the selling floor, doing whatever is necessary
to stock and man the store and serve the customers
The Fort Mitchell store is open 7 days a week. It is
manned on Sunday by a reduced, volunteer crew. The
assistant managers take turns running the store on Sunday.
Each week a section head is designated on the schedule
as the "supervisor" of the day However, even though
her duties on Sunday are storewide rather than limited
6 M's Crawford testified in the representation case, although not
before me Hearing Officer Frockt apparently listened to much of the
same evidence as I on this issue However, he found it unnecessary
to make a finding 1, too, find the point unimportant since there is
no evidence in any way linking M's Crawford with Respondent's decision
not to put Mrs Dixon back to work when she recovered from her
illness , and since Respondent admitted knowledge of Mrs Dixon's proun-
ion activities, regardless of whether it acquired that knowledge through
M's Crawford or from some other informant The General Counsel
further urges that, even if not a supervisor within the meaning of the
Act, M's Crawford "engaged in [antiunion] conduct with Respondent's
knowledge and assent as its agent " There is no evidence in the record
to establish that she acted as Respondent's agent in opposing organization
of the Fort Mitchell employees
' This finding is based on the testimony of Frances Dixon There
is much inconclusive testimony in the record about M's Crawford's
activities of this sort
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to one specific section , they are not materially different
from weekdays. She is never left alone in charge of the
store
There is no evidence in this record that section heads
possess any such unambiguous indicia of supervisory status
as authority to hire or fire or effectively recommend hiring
or firing or the like. While they do direct the work of
department heads and clerks , their duties are routine in
the extreme and require the exercise of no independent
judgment I find, therefore, that Opal Crawford was not
a supervisor within the meaning of the Act when she
played her minor role in the events of this case.'
C. Facts
1. The campaign
The Charging Party's campaign to organize Respondent's
employees early took on a Biblical quality, for it turned
the Fort Mitchell store into two camps , the Rebates and
the Opalites . Rebaites took their name from Reba Masden,
an old and valued employee who led the prounion faction
Opalites took their name from Opal Crawford, leader of
the antiunion group . The turmoil which resulted among
the employees caused Charles Straffin , manager of the
store, to enforce a rule that neither side was permitted
to talk about the Union on the floor during working time.
In late September 19689 he had occasion to call Emilee
Dixon and employee Lettie Loechel, both staunch Rebaites,
to his office to admonish them about violating the rule.
He told Mrs . Loechel that Mrs. Dixon was soliciting on
the floor and sending recruits to her to sign a card. He
told Mrs. Dixon that she was soliciting on the floor and
sending her recruits to Mrs Loechel to sign a card. He
told both of them to cut it out. Both ladies protested
their innocence . On another occasion , he admonished M's.
Crawford for violating the rule on behalf of antiunionism.
One day in the middle of October, while Mrs. Dixon
was showing Sandra Kellerman how to operate the cash
register , they discussed the Union. Miss Kellerman said
she did not know whether she would vote for the Union
or not. Mrs Dixon, angered , said , "Well, if you don't,
I'll beat your ass." Miss Kellerman paled.
' This, of course, is an additional ground for holding that Respondent
did not violate Sec 8 (a)(1) through the activities of M's Crawford
Moreover, the only witness who testified about M's Crawford' s activities
was Patricia Reeves, whom I do not credit However, when I dismissed
that portion of the complaint at the end of the General Counsel's case,
I had not yet made either of these findings Therefore, my ruling at
that time was based solely on a finding that General Counsel had failed
to establish a prima facie case that M's Crawford had "coercively berated
employees for their activities on behalf of the Union" even crediting
Mrs Reeves
Straffin implied that this occurred in mid-October at the time of
the crucial Dixon-Reeves - Kellerman episode I base this finding on the
testimony of Mrs Dixon and Mrs Loechel, both of whom placed the
incident in late September The record is hazy as to the date on which
most events occurred , especially in the preelection phase This is of
greater significance than usual insofar as findings of independent 8(a)(1)
violations are concerned since the 10(b) period begins on October 21,
1968, late in the preelection period Where precise dates are impossible
to ascertain , my findings with respect to time and sequence of events
are based on the record as a whole
Mrs. Dixon had a similar conversation with Mrs Reeves.
Mrs. Dixon told her she had better vote for the Union
if she knew what was good for her. Mrs. Reeves began
to cry Employee Sylvia Beatty observed both incidents
When she saw Miss Kellerman turn "white as a sheet"
she went to her and asked what Mrs. Dixon had said
to her Miss Kellerman repeated the remark . At the first
opportunity Mrs. Beatty reported to Opal Crawford that
Miss Kellerman and Mrs . Reeves were both upset because
of what Mrs . Dixon had said to them
M's. Crawford went to the office and told Richard Ander-
son, the merchandise manager, that there was trouble on
the floor and that Mrs Reeves was crying. He told her
to bung Mrs Reeves to the office M's. Crawford did
so. Mrs. Reeves was still upset . She did not want to
talk in a place where she could be seen by other employees.
Anderson took her into the cash office, a secluded room
off the main office. Since there are rules about who may
and who may not enter the cash room , Nellie Osborne,
the store bookkeeper who is authorized to be there, accompa-
nied them.
Mrs. Reeves was reluctant to tell Anderson what Mrs.
Dixon had said to her. She talked about being afraid
because of the pressure brought to bear on her . She told
Anderson that Miss Kellerman could explain it to him.
Anderson sent for Miss Kellerman . Kellerman came to
the cash office. She told Anderson what Mrs. Dixon had
said to her and urged Mrs. Reeves to do the same . Anderson
sent Miss Kellerman back to work . He took Mrs . Reeves
to Straffin 's office.
The conversation was repeated for Straffin 's benefit. He
and Anderson tried to calm Mrs. Reeves . They told her
that Mrs. Dixon had no right to talk to her about the
Union during worktime . They told her that they would
speak to Mrs Dixon and assured her that it would not
happen again They sent her back to work . They then
went for a cup of coffee in the store lunchroom. On
the way, Straffin spoke to Mrs . Dixon He told her that
what she did on her own time was her own business
but that she was not to campaign for the Union during
worktime.
Gavonnah Westfall is personnel manager of the Fort
Mitchell store. As such , she is immediately concerned with
hiring and laying off employees . Sometime during the cam-
paign , apparently not long before the election when tension
in the store was at its peak , she discussed the Union
and the campaign with Straffin. She expressed the view
to Straffin that , if what the employees wanted was a union,
perhaps they should run the store "by the book" like
a union store, that is, perhaps they should follow rigidly
the conditions of employment usually spelled out in union
contracts instead of attempting to accommodate the employ-
ees when they sought special treatment . Straffin agreed
with her.
Respondent sought to persuade its employees to vote
against the Union. Its principal weapon was Lester Margare-
ten, its labor relations coordinator . Following receipt of
the petition , he went to Fort Mitchell from his office
in New York on several occasions . Each time he spent
several days conducting meetings for groups of employees
at which he explained Respondent 's reasons for preferring
W. T GRANT CO 93
no union in the store and talking to individual employees
in the same vein.
He attempted to explain the consequences of unionization
and the provisions of union contracts. He undertook to
answer any questions which employees raised. Rose Kleier,10
an articulate and intelligent woman who preferred to work
only part time, had several One was what would happen
to part-time employees if the Union won the election.
On November 7 as a group meeting in the stockroom
was breaking up, Margareten told her about contract clauses
which provide that available hours of work must be given
first to full-time employees. He explained that if such
a clause were incorporated into a contract at the Fort
Mitchell store it might well end her part-time employment."
During the weeks just prior to the election, Emilee Dixon
was ill . She continued to work even though she was in
pain while she waited for word from her doctor to enter
a hospital for major surgery. Mrs. Westfall, her friend,
was aware that she was suffering, that surgery impended,
and that she planned to take advantage of Respondent's
leave-of-absence policy so that she could return to her
job when she had recovered. On the evening of November
7 Mrs. Dixon obtained copies of Respondent's leave-of-
absence application form from Mrs Westfall and took
them home with her
2. Respondent's leave-of-absence policy
Respondent permits employees to take unpaid leaves
of absence for up to 6 months with no break in continuity
of service. To this end it employes a form headed "Leave
of Absence Application." A formally approved leave of
absence is only required when the employee will be gone
more than 4 weeks. Consequently, the form is subheaded
"(For Unpaid Absences of more than 30 days)." The com-
plete form has a small perforated section at the bottom
which is captioned "Notice of Completion of Approved
Leave of Absence."
When an employee requests a formal leave of absence,
the top part of the form is filled out in triplicate. The
employee signs. The store manager recommends approval
by signing. All three copies are forwarded to a district
manager. The district manager endorses the request by
signing and forwarding the forms to a regional manager.
The regional manager endorses the request by signing and
forwarding the forms to Respondent's personnel division
in New York. The personnel division approves the request
10 Like Patricia Reeves, Rose Kleier was named as a discrimmatee
in the complaint and then deleted as a result of the settlement worked
out between Respondent and the Charging Party
" Mrs Kleier 's version of what Margareten said to her was
And then he answered their questions, and mine, and he said,
"Now remember , Rose," he said , "if the union comes in now, the
company will not be able to afford part-time help, and that will
mean you "
He said, "Now as it stands you have security with the company "
He said, "You have been here a long time They know they can
rely on you, but now when the union comes in there won't be
any part-time help " He said, "That will mean your job "
I do not consider this in conflict with Margareten's testimony, being
rather Mrs Kleier's lay paraphrase of a technical subject In any event,
I credit Margareten.
by signing the forms and sending one copy back to the
store. Only when the form has been executed in the personnel
division is the leave of absence officially granted.
When a leave of absence ends, either because the employee
has returned to work or has terminated his status as an
employee in some way, three copies of the bottom part
of the form are signed by the manager and forwarded
directly to the personnel division. The personnel division
then takes whatever steps are necessary, such as refunding
the former employee's contributions to Respondent's retire-
ment plan, to wind up the relationship This part of the
form reads, in pertinent part:
Exact date of return ............... .
OR
Will not return, Notified by Employee...........
(Date)
In case of return to active service:
1. Did employee apply for unemployment insurance
during absence? ..........
2. Did employee engage in or actively seek other
employment during absence9............
On the back of the form is printed a digest of Respondent's
rules with respect to leaves of absence for the information
of employees. It reads, in relevant part:
4. APPLYING FOR UNEMPLOYMENT INSUR-
ANCE AUTOMATICALLY BREAKS CONTINUI-
TY OF EMPLOYMENT, REGARDLESS OF TYPE
OF LEAVE... .
5. Breaking continuity of employment may not disquali-
fy employee for re-employment, but length of service
will thereafter be computed from re-employment date.
6. It is expected that full-time or part-time employment
will be available at termination of leave, but return
to same position, hours of work, or salary cannot
be assured In no case can re-employment following
leave of absence be guaranteed... as it is not possible
to anticipate conditions which may exist at the expira-
tion of leave.
The record contains evidence of four employees who
took leaves of absence for medical reasons prior to Mrs.
Dixon's illness and returned to their former positions with-
out incident when they had recovered. All four signed
leave-of-absence requests either before or within a few days
after their last day of work. They are Clarice Brinkman
(1965), Myrtle DeMoss (1967-68), Mary Ellen Gunkle
(1968), and Lettie Loechel (date unspecified).
3. The postelection period
Emilee Dixon did not take the leave-of-absence forms
with her when she went to work on the morning of Friday,
November 8, 1968. At the store she received a call from
her doctor He told her that he had a hospital bed at
last and that she was to enter the hospital on Sunday.
Mrs. Dixon told Gavonnah Westfall. Mrs. Westfall told
her to take care of herself and not worry about her job,
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would be waiting for her when she returned. Mrs. Westfall
reminded her to get her leave-of-absence forms in promptly.
Mrs. Dixon voted in the election that day, which, as already
indicated , was won by the Charging Party by a 9-vote
margin . She left the store at the end of her shift. She
was too ill to work on Saturday . She entered the hospital
on Sunday and was operated on Monday, November 11
The results of the election were a disappointment to
Mrs. Westfall. She determined to do her job "by the book."
On Friday, November 9, she initiated an angry conversation
with Mrs. Loechel about Mrs. Loechel's changing her day
off to Friday without obtaining Mrs. Westfall' s permission.
She yelled at Mrs. Loechel, "Who gave you the authority
to take Fridays off?"12 Mrs. Loechal explained that she
had cleared the switch with Anderson some weeks before.
Mrs. Dixon remained in the hospital for a week. On
November 12 Mrs. Loechel, Reba Masden , and a third
employee, Ruth Taylor, asked Mrs. Westfall if, as employees
had done in the past , they could change their lunch hour
so that they could visit Mrs. Dixon in the hospital. Mrs.
Westfall replied, " Since this Union business has come up,
there'll be no more special privileges.""
On November 14 Margareten sent a letter to all the
employees in the Fort Mitchell store. He informed them
that Respondent had filed objections to the election because
it had evidence "certain threats were made to some employ-
ees during this campaign ." He invited them to come forward
"if the union has threatened or bribed you or other fellow
employees. . . so that we may aid the Labor Board in
[its] investigation."
On November 21 Margareten was in the store pursuing
his investigation in support of Respondent's objections.
He interviewed several employees who had responded to
his letter , gave information which he judged aided his
case, subsequently gave affidavits to a Board agent assigned
to investigate the objections , and testified as witnesses for
Respondent at the hearing in April 1969. Among the
employees he talked to that day was Patricia Reeves."
He interviewed her in Straffin's office. Straffin was present.
Margareten began by explaining his role and his purpose.
He told Mrs. Reeves that she did not have to speak to
him if she did not want to. He then discussed with her
the mid-October episode in which she had cried because
she felt that Mrs. Dixon was pressuring her to vote for
the Union Mrs. Reeves , in the course of the discussion,
" The only conflict in the testimony about this incident is Mrs
Westfall's denial that she yelled at Mrs Loechel , admitting only that
she was "a little mad " I credit Mrs Loechel 's testimony that she yelled
" There is no conflict in the record about this episode Mrs Westfall
first mentioned her attitude about going by the Union "book" when
counsel for Respondent asked her why she had told the three employees
they could not go to the hospital Her reply is revealing
Well, I had heard so much about when the union got in we
couldn ' t do this , we couldn't do that, and I was just trying to
go by what the union rules and regulations would be It would
have been the same throughout the store
" Although the record is not clear on the point, I gather that Mrs
Reeves was not interviewed because she had responded to Margareten's
letter but because Straffin remembered the mid - October episode I assume
that Straffin 's and / or Anderson 's testimony about what had happened
that day was at least part of the "evidence" on which Margareten
relied when he filed the objections
revealed that Mrs. Dixon had inquired so often about
her 2-year-old son who sat with him while Mrs. Reeves
was at work that Mrs. Reeves feared Mrs Dixon was
threatening to harm the child if she did not vote for
the Union. She told Margareten that her father had been
beaten up when she was a child during a labor dispute
and there had been some fear at the time that a union
was to blame Margareten said he thought Mrs. Reeves'
testimony would be very helpful to Respondent 's case.
He asked her to give an affidavit to a Board agent. She
agreed. He pointed out to her that he did not have a
right to be present at that time , only if she requested
it. He told her that he would be available if she did
want him there.
A day or two before December 18 Anderson told both
Mrs. Reeves and Opal Crawford that he was going to
take both of them off the jewelry department because
the under -the-counter stock was in such a mess. Both
cried.
On December 18, which happened to be Mrs. Reeves'
day off, a Board agent came to the store to interview
Respondent's witnesses in the course of his investigation
of the objections Margareten sent a management trainee
to Mrs Reeves' home to fetch her. Mrs. Reeves hid. The
next day Straffin, irritated, told her he thought her not
showing up to give an affidavit as she had promised was
a dirty trick.
On December 24 Respondent laid off Mrs. Reeves and
Rose Kleier, along with a number of other employees
being let go, because the Christmas season was at an
end
A day or two before the end of the month , Mrs. Westfall
included Mrs . Dixon's name on a list of employees who
were terminated effective January 1, 1969, and sent the
list to New York This so-called separation report is a
monthly requirement of the personnel division . Mrs. Dixon
was on the list because she had been absent for more
than 30 days without submitting a leave-of-absence form.
On January 3 Mrs. Westfall received in the mail from
Mrs. Dixon the forms which Mrs . Dixon had taken home
with her on November 7, 1968. Mrs. Westfall telephoned
Mrs. Dixon and told her that she had sent in only two
copies when three were required , that she had filled in
some of the blanks wrong, and that she should come
to the store to sign new forms. Mrs. Dixon went to the
store. She took her husband with her.
Mrs. Dixon went to the office to talk to Mrs. Westfall.
She left her husband outside. She and Mrs . Westfall got
into a dispute over the forms . Mrs. Dixon had indicated
on the forms she had mailed in that she was a full-
time employee . Mrs. Westfall explained to her that, since
she worked 31 and not 35 hours a week, she was, under
Respondent 's rules, a part-time employee. Mrs. Dixon had
filled in the line of the form which reads "Period of
11Proposed Leave of Absence: From . . . . To . . . .
to indicate that it started on her last day of work. Mrs.
Westfall explained it was her custom to give as the "From"
date the first Friday after the absence began and as the
"To" date the first Friday after a date six months later
than the "From" date . In this way, the employee got
the maximum amount of time possible under Respondent's
W T GRANT CO 95
workweek and 6-month leave-of-absence limitation policies.
The explanation did not satisfy Mrs. Dixon. She stepped
out of the office to confer with her husband.
While Dixon was waiting for his wife Straffin came
by and chatted. In the course of their conversation, while
Mrs. Dixon was present, Straffin told Mr. and Mrs Dixon
that Mrs. Dixon had been terminated because she had
failed to return the forms promptly. This news upset Mrs.
Dixon and concerned Dixon He protested that Myrtle
DeMoss had gone to the hospital the year before without
signing the forms and had not been terminated. Straffin
said that Mrs. DeMoss had signed the forms in time.15
The explanation did not satisfy Dixon Straffin told the
Dixons he would try to get Mrs. Dixon's job back. Mrs
Dixon told her husband about her qualms over signing
forms filled out as Mrs. Westfall wanted her to fill them
out. Dixon told her to sign. Mrs. Dixon returned to Mrs.
Westfall's office and did so. The "From" date was filled
in "11-15-68." As was Mrs. Westfall's custom, Mrs. Dixon
dated her signature the same. Straffin signed the forms
that day and dated his signature "1/3/69 " The forms
were sent to the district manager . He endorsed them on
January 7, the regional manager, on January 9 They were
approved by the personnel division in New York on Febru-
ary 17 A copy was received in the Fort Mitchell store
on or shortly before February 28.
After leaving the office area, Mr. and Mrs. Dixon stopped
in the store to talk to Lettie Loechel. Straffin sought
them out there. He had with him a copy of Myrtle DeMoss'
leave-of-absence form. He pointed out that the signature
dates on that form proved that Mrs DeMoss had submitted
her request within 30 days, as required. Dixon protested
that the dates were in different colored inks. He thought
this indicated that Respondent had altered the dates in
some way in order to conceal its discrimination against
his wife. He was wrong.
On January 27 or 28,16 while her leave-of-absence request
was wending its way to New York, Mrs. Dixon returned
to the store She told Mrs Westfall that she was fully
recovered and ready to return to work. Mrs. Westfall
told her that she had no opening for her No new employees
had been hired since the Christmas layoff. However, at
least one girl , Alberta Vaughan, who had originally been
hired only for the Christmas rush but had been retained
as a regular employee when the layoff took place, was
then working as a cashier , Mrs. Dixon's job just prior
to her illness. Mrs. Dixon expressed her disbelief that
Mrs. Westfall could not find something for her to do,
since she had gained experience in so many different depart-
ments in the 6 years she had worked there. Mrs. Westfall
said she was sorry, there was nothing she could do about
it. Mrs Dixon left and went to a lawyer. The lawyer
advised her to file for unemployment compensation. She
did so.
On January 28 the lawyer wrote a letter to Straffin.
It read:
This is to inform you that Mrs Emilee M. Dixon
... is now fully recovered from recent surgery. She
has been released by her surgeon, Dr. Alfred Jacobs,
M.D., Erlanger, Kentucky and has been advised that
she may now resume her duties with your Company,
as per the report enclosed.
Please advise when and where she is to report
On February 3 Straffin replied. His letter read:
Re: Emilee Dixon
Mrs. Dixon has filed application for Unemployment
Insurance and in accordance with Leave of Absence
Form (enclosed) signed by her has ended all continuity
of employment.
On February 28 Mrs Westfall filled out the bottom
part of Mrs. Dixon's leave-of-absence forms. She altered
the "Will not return" line by striking out the words "Notified
by Employee" and typing "Applied for unemployment 1-
26-69" in the space provided for a date. Straffin signed
the forms. They were sent to New York.
Mrs. Westfall began hiring for the Easter season around
March 1 She customarily contacts some experienced persons
who have formerly worked in the store when she expands
the staff to handle seasonal upswings in business She
did so this time. She did not attempt to contact Emilee
Dixon Straffin learned of this case when the charge was
filed in late April. He instructed Mrs. Westfall not to
hire Mrs. Dixon as long as the case was pending. Mrs.
Westfall has never attempted to contact Mrs. Dixon about
working in the Fort Mitchell store since November 8,
1969.
Margareten subpenaed Mrs. Reeves to testify in the repre-
sentation case in anticipation that she would repeat before
Hearing Officer Frockt the information she had given to
him on November 21, 1968. She disappointed him. She
told Frockt the same story she told me.
D. Analysis and Conclusions
1. The Emilee Dixon issue
" Mrs DeMoss had gone to the hospital without warning Mrs Westfall
had filled out the forms and sent them to her in the hospital to be
signed The "From" date and the date of Mrs DeMoss' signature were
both filled in by Mrs Westfall as "12-1-67," the first Friday after
the beginning of Mrs DeMoss' absence
" The date of this incident is important it is, unfortunately, one
that is not pinned down precisely in the record I base my finding,
therefore, on the following parts of the record (1) The bottom part
of Mrs Dixon's leave-of-absence form reads "Applied for unemployment
1-26-69 " However, Mrs Westfall conceded that the date was in error
since January 26, 1969, was a Sunday (2) The letter which Mrs Dixon's
lawyer wrote to Respondent is dated January 28 (3) Straffin's reply
is dated February 3 (4) 1 credit Mrs Dixon's testimony that the sequence
of her activities was second visit to store in late January , retaining
of lawyer, and finally application for employment compensation
Respondent contends that Mrs. Dixon ceased to be an
employee not for any reason proscribed by the Act but
simply because she violated Respondent's rules with respect
to leaves of absence." Mrs. Dixon failed to fill in the
11 Respondent does not contend that Mrs Dixon's prounion activities,
including the mid-October episode, gave it legal grounds for discharging
her or preclude her reinstatement now I have found above that, in
the heat of a tense organizing campaign , she told Mrs Reeves, with
serious mien, Mrs Reeves had better vote for the Union if she knew
what was good for her and told Miss Kellerman she would spank her
if she did not Under the circumstances , neither statement was a threat
serious enough to justify Mrs Dixon 's discharge then or render her
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms in the prescribed 30 days Therefore, she was automati-
cally terminated effective January 1, 1969. When, on January
3, Straffin and Mrs. Westfall undertook to process a leave-
of-absence request for her despite her dereliction and
thus restore her continuity of employment, Respondent's
argument goes, they did her a favor. If they were motivated
in any way by her activities on behalf of the Union, they
would simply have done nothing at that point. When,
around January 28, Mrs Westfall did not put Mrs. Dixon
back to work, she did so only because there was no opening
for her. If Mrs. Dixon had been patient, Mrs Westfall
would have given her work in due course when an opening
occurred. By immediately filing for unemployment benefits
when she well knew that doing so violated one of Respond-
ent's rules for maintaining her status as an employee, Mrs.
Dixon elected to give up her job Mrs. Dixon, Respondent
says, was the agent of her own execution, not we Such
an argument overlooks many facts in the record.
It is obvious, of course, that the basic issue is why
Respondent failed to put Mrs. Dixon back to work when
she announced, on or about January 28, 1969, that she
was well again and ready to return. Was it really because
there was no opening at the moment? Or was it because
of resentment over her prounion activities during the cam-
paign? But a preliminary question which must be answered
is-whose motive is Respondent's motive? Mrs. Westfall's
is the equally obvious answer . There can be no doubt
on this record that Mrs. Westfall acted on her own initiative
where all personnel matters were concerned. For example,
she testified that she filled out the bottom part of Mrs.
Dixon's leave-of-absence form on her own initiative, awk-
wardly altering it to fit what she considered to be the
relevant fact in the situation, "because [Mrs. Dixon] had
filed for unemployment, and there was no other way to
handle it that I could see" Straffin corroborated her, and
incidentally confirmed that she, not he, was Respondent's
operative agent in deciding Mrs Dixon's fate, when he
testified:
Q. Now, I take it that you leave to Mrs. Westfall
some of the thing like filling out these forms and
deciding how to write them up; is that right?
A. True. All I do is sign them.
Q. You are like me maybe, she shoves it under
your nose or puts it on your desk, you sign it and
send it out, right?
A. Right.
Therefore, this issue must turn on an inquiry into Mrs.
Westfall's motive.
I find that Mrs. Westfall was motivated solely by union
animus when, around January 28, 1969, she failed to restore
Mrs. Dixon to active service. In the first place, Mrs. West-
fall's attitude toward the employees, especially prounion
employees, had changed as a result of the Union's victory
in the election. Her admissions that she discussed a change
in attitude with Straffin before the election and was "disap-
pointed" at its outcome, as well as her admissions that
unfit for further employment now I specifically do not find that Mrs
Dixon threatened or intended to threaten Mrs Reeves' child when she
inquired about the boy That interpretation was a figment of Mrs Reeves'
imagination
she did, indeed, berate Mrs. Loechel the day after the
election and toughened up her lunch hour policy the follow-
ing week, are conclusive. Her abrupt attack on Mrs Loechel
was completely unjustified Mrs. Loechel's name had been
linked with Mrs. Dixon's during the campaign as a recruiting
team for the Union. When this is coupled with the fact
that Mrs. Westfall expressly stated only a few days later
that she was giving the employees what they wanted-
a tough, union-type "book"-her conduct in yelling at
Mrs Loechel for changing her day off without clearing
first with her can only be explained as another example
of the new "book" which she brought into the store as
a result of the Union's victory. There is no indication
in the record that Mrs Westfall's attitude changed again
in the interim between mid-November and late January
In fact, she applied her new policy of going by the "book"
from mid-November on in Mrs Dixon's case as well She
made no effort to get leave-of-absence forms from Mrs
Dixon within 30 days Mrs. Masden's, Mrs Loechel's, and
M's. Taylor's abortive effort to visit Mrs. Dixon in the
hospital was a perfect opportunity to do for Mrs. Dixon
what she had done the year before for Mrs. DeMoss,
that is, send the forms to the hospital to be signed She
did not choose to do so The fact that Mrs DeMoss
was rushed to the hospital while Mrs. Dixon was not
is a distinction without a difference if Mrs. Westfall's attitude
toward Mrs. Dixon were really unchanged after the election
Mrs Westfall had another opportunity to treat Mrs. Dixon
by the "book" and took it when she listed her on the
January 1 separation report. She had a third opportunity
and took it when she told Mrs. Dixon around January
28 there was no opening She had a fourth opportunity
and took it when she relied on Mrs. Dixon's violation
of the unemployment compensation rule to cut her off
for good. The only break in this pattern of treating Mrs.
Dixon by the "book" was the processing of the leave
forms on January 3. In that instance, however, Straffin
participated in the decision, as evidenced by his statement
to the Dixons that he would try to get Mrs. Dixon's
job back for her, and Mrs Westfall was subjected to Mrs.
Dixon's suspicious challenge of Mrs. Westfall's way of
filling out the forms, an attitude which Mrs. Westfall may
well have attributed to Mrs Dixon's prounion militancy
and which may well have reaffirmed her feeling that what
employees now deserved was the "book."
In the second place, the election situation and Mrs
Dixon's role therein were far from a dead issue by January
28, 1969. What is important in this connection is not
whether Mrs. Dixon had, in fact, threatened Patricia Reeves
and Sandra Kellerman. What is important is that Respond-
ent seriously believed that she had and was relying heavily
on that fact in its effort to reverse the verdict of the
election. Mrs. Reeves did not renege on Respondent until
the hearing in April It had no reason to think in January
that she would.
Next, there is the clear evidence of disparate treatment
of Mrs. Dixon Mrs. Dixon went to work in the Fort
Mitchell store in January 1963, at the time or not long
after it opened. Over the years she worked in several
different departments, acquiring the necessary experience
to handle each. At the time of her illness she was a
W T GRANT CO 97
cashier, a skill especially valuable to Respondent There
is no evidence in this record that Respondent ever had
any complaint about her work at any time or any complaint
about her conduct in the store prior to the Union's campaign
There is no evidence in this record that Respondent ever
before followed its leave rules as strictly as it did in Mrs.
Dixon's case. The explanation for this may be, of course,
that there never was a prior case just like Mrs. Dixon's,
even leaving aside the union activities which color hers.
But that explanation cannot offset the evidence of the
four other employees who took leaves because they were
ill and returned without incident when they recovered
The fact that there may literally have been no opening
on the day Mrs. Dixon announced she was ready to return
does not distinguish her situation. When Mrs Gunkle
returned to work Respondent wound up with an extra
cashier. The failure to treat an old and valuable employee
like Mrs. Dixon the same way under similar circumstances
is most plausibly explained by the fact that the one difference
in Mrs. Dixon's case-her prominent involvement in the
still pending representation case-made her a less valuable
employee to Respondent
of the Fort Mitchell store, refused to end Emilee Dixon's
leave of absence and put her back to work.18
2. The other issues
a. Gavonnah Westfall
The complaint alleges that Mrs Westfall, "on or about
November 8 and 16, 1968. . coercively berat[ed] employees
for their activities on behalf of the Union." I have found
that, pursuant to her new policy, she yelled at Mrs. Loechel
on November 9, and refused to let her and two other
employees change their lunch hours in order to visit Mrs.
Dixon in the hospital on November 12. In each instance,
Respondent violated Section 8(a)(1) of the Act. It is possible
to find on this record that, by changing her policies as
a result of the Union's victory in the election, Mrs. Westfall
discriminated against employees within the meaning of Sec-
tion 8(a)(3). However, this point was not fully litigated
at the hearing. Therefore, I make no finding that Respondent
violated Section 8(a)(3) of the Act by Mrs. Westfall's conduct
in these two episodes.
Finally, and most persuasively, Respondent's defense will
not stand close scrutiny. Mrs Westfall "separated" Mrs.
Dixon effective January 1. Yet just a few days later she
and Straffin processed her request for a leave of absence
as if her status as an employee were unchanged. Ultimately,
that request was approved in New York on February 17,
restoring Mrs Dixon's continuity of employment and negat-
ing the effect, if it ever had any, of the "separation"
Thus, Respondent itself never took seriously Mrs. Dixon's
first breach of its leave rules, her failure to submit the
forms within 30 days. Since the request was ultimately
approved, Mrs. Westfall had no reason to think it would
not be on the day Mrs. Dixon asked to be put back
to work Therefore, Mrs. Westfall could not have been
relying on that when she reacted as she did Moreover,
she could not have been relying on Mrs. Dixon's applying
for unemployment compensation because Mrs Dixon had
not yet done so. And that application cannot explain or
justify Mrs. Westfall's subsequent failure to contact Mrs
Dixon in the period prior to Straffin's instructions in April
that she not hire Mrs. Dixon under any circumstances.
Respondent's rules specifically state that applying for unem-
ployment insurance did not disqualify Mrs. Dixon for a
job, it merely cut off her seniority and the perquisites
that flow from it. When Mrs. Westfall struck Mrs Dixon's
name from her mental list of experienced persons who
might be interested in openings as they came up, particularly
the openings which occurred at the beginning of the Easter
season , she was motivated by her feelings growing out
of the Union's victory. Unfortunately for Respondent, she
had the rule wrong and, once again, was throwing her
new "book" at Mrs. Dixon.
For the foregoing reasons, I find that Respondent violated
Section 8(a)(3) and (1) of the Act when, on or about
January 28, 1969, Gavonnah Westfall, personnel manager
b. Lester Margareten
The complaint also alleges that Responder isolated the
Act by the conduct of Lester Margareten in:
(i) On or about November 16, 1968 .. coercively
interrogating an employee about whether she signed
a union membership card, how the employee voted
in the recent election conducted on November 8, 1968
by the Board, and in instructing the employee to
furnish testimony and an affidavit of facts, according
to the dictates of the said Lester J Margareten, if
and when the employee was interviewed by a Board
agent about the election proceedings.
(ii) During the week before the election of November
8, 1968, . threatening part-time employees with
layoffs if the Union was selected as their bargaining
agent by the employees.
The first paragraph is based on Patricia Reeves' account
of Margareten's interview with her when he was investigating
Respondent's objections to the election. I have discredited
Mrs. Reeves and credited Margareten as to what happened
at that time. The second paragraph is based on the testimony
of Rose Kleier. While I have not discredited Mrs Kleier,
I have described the incident in terms of Margareten's
testimony rather than hers. In each incident Margareten
conducted himself within the guidelines furnished by the
Board for lawyers engaged in lawful efforts to represent
their clients. Johnnie's Poultry Co., 146 NLRB 770, 774.
He did nothing to interfere with, restrain, or coerce Mrs.
Reeves, Mrs. Kleier, or any other employee of Respondent.
Therefore, I find that Respondent did not violate any
18 The Charging Party contends that Straffin's admission he told Mrs
Westfall, when the charge in this case was filed in April 1969, not
to rehire Mrs Dixon establishes a separate violation of Sec 8(a) (4, (3),
and (1) of the Act The complaint contains no 8(a)(4) allegation Since
this finding adequately remedies the situation, I do not reach the issue
raised by the Charging Party
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section of the Act through the conduct of Lester Margareten , 1. Cease and desist from:
its labor relations coordinator.
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1 W. T. Grant Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Retail Store Employees Union, Local No. 1099, Retail
Clerks International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3 By refusing to end Emilee Dixon's leave of absence
and put her back to work on or about January 28, 1969,
Respondent has engaged in an unfair labor practice within
the meaning of Section 8(a)(3) and (1) of the Act.
4. By coercively berating employees on November 9,
1968, and again on November 12, 1968, for their activities
on behalf of a labor organization, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act
6. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (1) of the Act by the conduct
of Lester Margareten have not been sustained.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent has violated Section 8(a)(3)
and (1) of the act by refusing to end Emilee Dixon's
leave of absence and put her back to work. Therefore,
I will recommend that Respondent offer her immediate
and full reinstatement to her former or substantially equiva-
lent position without prejudice to any seniority or other
rights and privileges previously enjoyed and make her whole
for any loss of earnings she may have suffered as a result
of the discrimination against her by paying to her a sum
of money equal to that which she normally would have
earned as wages from January 28, 1969, until the date
of Respondent's offer of reinstatement, less her net earnings
during such period, with backpay and interest thereon
to be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in this case, and pursuant
to Section 10(c) of the National Labor Relations Act,
as amended, I hereby issue the following:
RECOMMENDED ORDER
W. T. Grant Company, its officers, agents, successors
and assigns , shall:
(a) Discriminating against its employees in order to dis-
courage membership in Retail Store Employees Union, Local
No 1099, Retail Clerks International Association, AFL-
CIO, or any other labor organization.
(b) Coercively berating its employees for their activities
on behalf of the said, or any other, labor organization
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer to Emilee Dixon immediate and full reinstate-
ment to her former or substantially equivalent position
without prejudice to any seniority or other rights and
privileges previously enjoyed and make her whole for any
loss of pay suffered as a result of the discrimination against
her in the manner set forth above under "The Remedy "
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms
of this Recommended Order.
(c) Post at its store in Fort Mitchell, Ky., copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.20
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges that Respondent violated the Act by
the conduct of Lester Margareten.
" In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations , and Recommended Order
herein shall , as provided in Sec 102 48 of the Rules 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
In the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by order of the National Labor Relations Board" shall be changed
to read "Posted pursuant to a judgment of the United States Court
of Appeals enforcing an order of the National Labor Relations Board "
'" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 9, in writing , within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
W T GRANT CO. 99
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights-
To engage in self-organization
To form, join , or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things
WE WILL NOT yell at you for engaging in union
activities.
WE WILL NOT refuse to take you back to work
at the end of a leave of absence or discriminate against
you in any other way in order to discourage membership
in Retail Store Employees Union , Local No. 1099,
Retail Clerks International Association , AFL-CIO, or
any other labor organization . You are free to join
or not join Local No . 1099 or any other labor organiza-
tion as you see fit.
WE WILL immediately offer to reinstate Emilee Dixon
to her former or substantially equivalent job without
any change in her seniority or other privileges she
enjoyed before we refused to put her back to work,
and WE WILL pay to her any money she lost as
a result of our discrimination against her, with interest
at 6 percent per annum.
Dated By
W. T. GRANT COMPANY
(Employer)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other matenal.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Federal
Office Building, Room 2407, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.