Famous-Barr Co.

National Labor Relations Board - Board Decisions

Dec 14, 1944

59 N.L.R.B. 976 (N.L.R.B. 1944)

In the Matter Of MAY DEPARTMENT-STORES COMPANY, A CORPORATION,
DOING BUSINESS AS FAMOUS-BARR COMPANY and UNITED RETAIL,
WHOLESALE AND DEPARTMENT STORE EMPLOYEES UNION OF AmER-
ICA (CIO)
Case No. 14-C-596.-Decided December 14, 1944
DECISION
AND
ORDER
Upon a complaint issued pursuant to charges filed by United Retail,
Wholesale and Department Store Employees Union of America , affili-
ated with the Congress of Industrial Organizations, herein called the
Union, against May Department Stores Company, a corporation,
doing business as Famous-Barr Company, St. Louis, Missouri, herein
called the respondent, a hearing was held before a Trial Examiner
in St. Louis, Missouri, between March 25 and July 8, 1943, in which
the Board, the respondent, and the Union participated by their repre-
sentatives. The Board has reviewed the Trial Examiner's rulings
on motions and on objections to the admission of evidence, and finds
that no prejudicial error was committed. The rulings are hereby
affirmed.
On October 6, 1943, the Trial Examiner issued his Intermediate
Report, a copy of which is attached hereto, in which he found that
the respondent had engaged in unfair labor practices. Thereafter,
the respondent filed exceptions to the Intermediate Report and a brief
in support of its exceptions. Oral argument was held before the
Board at Washington, D. C., on August 31, 1944.
The Board has considered the Intermediate Report, the'exceptions
and brief, and the entire 'record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar
as they are inconsistent with our findings and order hereinafter set
forth.
General interference, restraint, and coercion
We agree with the conclusion of the Trial Examiner that the re-
spondent engaged in unfair labor practices, within the meaning of
59 N L R B., No. 188.
976
FAMOUS-BARR COMPANY 977
Section 8 (1) of the Act We base our finding to this effect upon the
following acts and statements 2 of the respondent : a
1. Employing McClelland and others as undercover agents to report
to the respondent on the organizational activities of its employees;
2. Engaging in surveillance of union activities of its employees, by
having motion pictures and still photographs made, during April,
September, and October 1942, of union leafl6t distribution and picket-
ing activities in front of the respondent's store;
3. The extraordinary presence in the Toy Department of many of
the high officials of the respondent on August 22, 1942, the day after
practically all the employees in that department joined the Union,
coupled with the coercive remark of Buyer Owens to one of these em-
ployees, in response to her question as to whether these officials were
present for the purpose of discharging her, that "they are not trying to
fire you; they are trying to find a reason why not to fire you"; 4
4. Telling employees on September 18 and October 3, 1942, as'well as
every new employee at the time of hiring, that it is not necessary for
' We do not agree with the Trial Examiner that the respondent ' s action in announcing
a new sick-leave plan for its employees on February 13, 1942, was violative of Section S
(1) of the Act . The circumstances relied upon by the Trial Examiner in support of his
finding , particularly the fact that the respondent ' s new plan was announced only 10 days
after the Union had publicized its intention of demanding extended sick -leave privileges
from the respondent , are indeed suspicious . However, in view of the evidence referred
to below , we are not convinced that the respondent ' s' action was motivated by its desire
to forestall the Union 's organizational drive There is uncontradicted testimony in the
record that the respondent ' s new sick -leave plan had been under consideration for 3 weeks
prior to February 13, and thus before the aforesaid announcement by the Union. There
is also uncontradicted testimony that the respondent announced its new plan on February
13 because, at about the same time, a competing department store in St . Louis had an-
nounced a similar plan for its employees . It is also to be noted , in connection with the
Trial Examiner ' s observation that the respondent ' s new plan applied only to members of
the welfare Association , that other benefits granted by the'respondent to its employees
had for many years been restricted to those who were members of the welfare Association.
I Some of these events occurred prior to September 14, 1942 , the date of the settlement
agreement entered into between the respondent and the Union However , it is clear that
the respondent committed unfair labor practices subsequent to that agreement , in violation
of its express terms The agreement is therefore no bar to our consideration of events prior
thereto and to our findings of unfair labor practices based on such events.
3 We are convinced , and we find , that the acts and statements of the respondent, out-
lined below , were integral parts of a course of conduct which was designed to defeat the
Union ' s organizational efforts and which interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act . Cf. N. L. R. B. V.
Virginia Electric & Power Co, 314 U. S 469.
4 The employees in the Toy Department were the first salespersons to join the Union as a
group. In view of the respondent ' s exhibited hostility toward the Union , it was reasonable
for these employees to interpret the unusual congregation of officials in their department
at this time, as a reflection of the respondent ' s concern over, and opposition to, their
affiliation with the Union This interpretation was reinforced by Buyer Owens ' afore-
mentioned remark which indicated that the employees had done something which, in the
eyes of the respondent , merited discharge Superintendent Brandau ' s inquiry of Buyer
Owens, at about the same time , as to whether he had done anything to the employees in
his department to have caused them to join the Union , also reflected the respondent's con-
cern over the employees ' affiliation with the Union. '
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them to belong to a union in order to be employed by the respondent,5
without at the same time making it clear that they could join a union
and still remain in its employ; G
5. Telling the employees, in October 1942, that there would be no
change in the respondent's policies concerning hours, paid vacations,
sick leave, and overtime pay, and that membership in, a union would
:never be a condition of employment at its store;'
6. Advising its employees, on October 6, 1942, through various inter-
pretations of the Executive Order of October 3, 1942, concerning wage
stabilization, that while the respondent was barred from granting
wage increases negotiated through collective bargaining, without prior
approval by the National War Labor Board, it could continue to grant
individual wage increases without such approval; s
7. Attempting, on October 7, 1942, to link the Union to alleged acts
of vandalism in its store, by telling the employees that "malicious de-
struction of merchandise and equipment * * * by a small number of
employees on our regular payroll" had started early in September
1941, which is about the time that the Union renewed its organiza-
tional campaign; 9
8. Telling employee Stolte, a cleaning woman, upon her reinstate-
ment pursuant to the settlement agreement, that the respondent had
been considering giving the cleaning woman a wage increase , but that
it had changed its mind, and that Stolte "had the Union to thank for
that";
9. Telling employee Robertson, who was known to the respondent
to be a member of the Union, in February 1943, that he would not
be given a wage increase as long as he belonged to the Union, and then
5 The record contains no evidence which confirms the testimony of Superintendent Mc-
CCarthy, who did not impress us as a trustworthy witness, that employees had asked the
respondent if they had to join a union in order to remain in its employ , which is the reason
advanced by the respondent for having made the foregoing statement to its employees.
6 Cf. N. L. R. B. v. M. E. Blatt Co ., 143 F. ( 2d) 268 (C. C. A. 3), cert den. October 13,'
1944.
' This was tantamount to a declaration by the respondent that if and when the Union
attempted to bargain collectively with the respondent concerning these vital matters,
which are normally subjects for collective bargaining , its efforts would be futile Cf.
National Licorice Co. v. N. L. R B., 309 U. S. 350, 360, and our decisions in Matter of
Tampa Electric Co., 56 N. L. R. B., 1270, and Matter of Cameron Can Machinery Co., 57
N. L R. B. 1768.
8 In view of the circumstances under which these statements were communicated to the
employees, as well as the fact that they do not constitute an accurate analysis of the Wage
Stabilization Law, we find that the statements in question were integral parts of the
respondent ' s campaign to discourage membership in the Union. Especially is this true
when the statements are viewed in the light of Assistant Buyer Williams ' remark to
employee Wahl, at about the time that these statements were posted at the plant, that it
would not do her (Wahl) any good to join the Union because "wages are frozen."
9 The record indicates , and we find , that the respondent had no reason to believe that
the Union, or its members , or any of the respondent 's employees , had committed any
of the alleged acts of vandalism Moreover, it is clear that some of the incidents cited by
the respondent were just as likely the results of accidents as the consequences of deliberate
acts of van dallam.
FAMOUS-BARR COMPANY 979
granting him a wage increase upon being advised that he had resigned
or intended to resign from the Union; 10
10. Inquiring of employee Wahl whether she had joined the Union,
and telling her that "it is not going to do you any good" to join the
Union because "wages are frozen," 11 and that the respondent might
deprive her of a wage increase granted to her 2 weeks before;
11. Scrutinizing employees who wore union buttons while at work
on October 8, 1942, and at the same time making written notes in their
presence and remarking to one of them, Kramer, "I see you were at
the [Union] meeting last night too . . . What is the Union going to
do for you?"; 12 ,
12. Remarks made in October 1942 to employee Schneider by his
supervisor, Rice, to the effect that Schneider's alleged bad manners
were "presumably the kind of manners that were taught at [Union]
meetings," and that he (Rice ) did not understand why the "agitators in
the store * * * were invariably of Jewish descent," and a statement
in October 1942, made to Schneider by Buyer Myers, when the latter
noticed that Schneider was wearing a union button, that "any union
organization could not do very much good."
No-solicitation rule
1. We agree with the conclusion of the Trial Examiner that the
respondent enforced its no-soliciation rule discriminatorily against
adherents of the Union, in violation of Section 8 (1) of the Act. The
record reveals that, while the respondent enforced that rule strictly
against proponents of the Union, it permitted soliciation on its premises
on behalf of the A. F. of L., even during working hours. Thus, the
10 The respondent contends that the testimony of Robertson , who was a day porter,
should he discredited in its entirety because of the confusion in his testimony as to whether
he wrote the letter of resignation from the Union before or after he had the discussion
with Becker , his supervisor , about obtaining the wage increase However, Robertson's
clear and undenied testimony is that in early February 1943, after being discharged from
the Arniy , he discussed with Becker the question of returning to the respondent ' s employ ;
that on that occasion he requested an increase of $2 per week ; and that Becker replied
that he could not give him an increase as long as he belonged to the Union . Also , there is
documentary evidence establishing that on February 16. Robertson resigned from the
Union "for reasons which [he ] considered vital to [his ] self -preservation and welfare."
Likekise undenied+ is Robertson's testimony that at about the latter time he returned to
the respondent 's employ, with the requested wage increase . In the. light of this evidence,
it seems clear , and we find, that the respondent told Robertson that his union membership
would prevent his securing it wage increase Also it seems reasonable to infer that, be-
cause Robertson indicated to the respondent either that he had resigned or would resign,
from the Union , the respondent granted him the increase.
11 Wahl testified that this conversation took place about the middle'of September 1942,
and that the respondent then told her that wages were frozen "as of September 1." She
was apparently mistaken as to the precise dates , unless the remark in question was in-
duced by publicity concerning the forthcoming wage stabilization legislation and order of
October 2 and 3, 1942 , respectively. -
11 Consistent with the above -described coercive conduct, were the activities of Buyer
Matthews and Assistant Buyer Ukman later that day, as described on page 55 of the
Intermediate Report.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence shows, and we find, that employee Gilley openly solicited
memberships for the A. F. of L. in various departments of the store
during working hours, and that, though the attention of the respondent
was called to Gilley's activities'13 it never reprimanded or disciplined
her therefor. Since it is clear that the disparate treatment of the Union
and the A. F. of L., in connection with the respondent's enforcement of
its no-solicitation rule, amounted to discrimination against the Union,
we find it unnecessary to decide whether, as the Trial Examiner found,
the respondent further discriminated against the Union in the enforce-
ment of that rule by permitting activities on behalf of the Welfare
Association to be carried on extensively in the store, as well as by the
manner in which it enforced that portion of the rule which required
written permission to solicit funds for flowers, gifts, and the like.
2. The respondent's no-solicitation rule prohibits solicitation for any
organization on the respondent's premises at any time. The Trial
Examiner found that this rule constitutes an unreasonable impediment
to self-organization, in violation of Section 8 (1) of the Act, insofar as
it prohibits union solicitation on the respondent's premises by em-
ployees outsde of their working hours.
We have iii many prior decisions made clear our position that work-
ing time is for work, and that the Act does not prevent an employer
from promulgating and enforcing reasonable rules governing the con-
duct of employees during working hours.14 We have made it equally
clear, however, that, in the absence of special circumstances, a prohibi-
tion against union solicitation on the employer's premises outside of
working time, such as "before and after work and during the luncheon
and rest periods," does not bear reasonable relation to the efficient opera-
tion of the employer's business, and therefore constitutes an unwar-
18 On November 18, 1942, the Union distributed a leaflet to the respondent's employees,
which gave prominent space to the Union's complaint that Gilley evidently did not fear
to solicit for the A. F. of L. "on store time" because the A. F. of L. had "the Company's
blessings." Respondent conceded at the hearing that all the Union 's leaflets came to its
attention on the day they were distributed. Moreover, employee Frank testified, without
contradiction, that, around December 1942 or January 1943, he told Levy, one of the
respondent ' s supervisors , that Gilley was openly soliciting for the A. F. of L. in . the store,
and that Levy merely replied, "I know it." The respondent seeks to discredit Frank's
testimony In this regard because in his previous testimony he had answered in the negative
questions as to whether he had "reported" or "complained " of Gilley ' s activities to the
respondent . This inconsistency impresses us as being more apparent than real . As Frank
explained , he had understood the questions previously put to him as calling for an opinion
on his part as to whether he had lodged any "complaints" against Gilley, and Frank testi-
fied that he had not spoken to Levy with the intention of registering a "complaint" against
a fellow-employee , and that what he told Levy about Gilley was simply part of casual con-
versation. Considering Frank's entire testimony, we are of the opinion that he was an
honest and credible witness, and that, while he seemed reluctant to create the impression
that he had "carried tales" to management about a fellow -employee, he was telling the
truth about his conversation with Levy. Accordingly, we credit Frank's undenied testi-
mony as to this incident, as did the Trial Examiner.
14 See , for example , Matter of Peyton Packing Company , Inc., 49 N . L. It. B. 828, 843.
See also Matter of Republic Aviation Corp ., 51 N. L. It . B. 1186 , 1187 , enf'd, 142 F. (2d)
193 (C. C. A. 2) ; Matter of Denver Tent & Awning Co., 47 N. L. R. B. 586, 588, enf'd, 138 F.
{2d) 410 (C. C. A. 10) ; Matter of U. S. Cartridge Co., 47 N. L. R. B. 896, 897-898.
FAMOUS-BARR COMPANY 981
ranted interference with the employees' rights under the Act.15 The
respondent urges that, while the foregoing principles may be sound as
applied to industrial plants, they should not be invoked in cases involv-
ing retail department stores because of the unique manner in which the
latter type of enterprise conducts its operations. We perceive no rea-
sonable basis for distinguishing between the two types of enterprises
so far as concerns a general prohibition against union soliciation by
employees during nonworking hours at all places on the respondent's
premises . The respondent has adduced no convincing evidence that
such a blanket injunction bears reasonable relation to the efficient
operation of its business. However, we do see reasonable ground for
prohibiting union soliciation at all times on the selling floor. Even
though both the solicitor and the person being solicited are on their
lunch hour, for example, the solicitation, if carried on on the selling
floor, where customers are normally present, might conceivably be
disruptive of the respondent's business. We therefore find that the
respondent's rule is invalid, and violative of the Act, only insofar as it
prohibits union solicitation off the selling floor during nonworking
hours 16 (such as luncheon and rest periods)17
16 Ibid.
16 Our decision in flatter of Marshall Field & Company , 34 N. L. R. B. 1, which also
involved a retail department store, in which we held a rule forbidding union activities on
company time and property not to have been violative of the Act , was expressly restricted
to the circumstances present in that case . In any event , any principle enunciated in that
case, insofar as it may be inconsistent with the views expressed herein, is hereby overruled.
17 At the hearing the respondent , in an effort to demonstrate that the Union has con-
ceded the reasonableness of a rule which prohibits union solicitation on the employer's
premises at all times , offered to prove that the Union has entered into contracts with two
department stores located in other cities , in which it agreed not to solicit membership on
store property at any time . The Trial Examiner rejected that offer of proof on the ground
that the facts sought to be proved were immaterial to the issues in the case . While, for
reasons which become clear from what follows , we have serious doubts as to whether this
ruling was erroneous , nevertheless , since the proffered evidence may have some bearing on
the issues involved herein, we hereby accept the facts contained in that offer of proof as
true and consider them as part of the record herein and give them the same force and effect
as if they had been established by competent testimony . Granted , then, that the Union
did enter into such contracts with the owners of other department stores , and assuming,
as we do, that it could thus effectively bargain away the employees ' right to engage in self-
organizational activities on the employer ' s premises during nonworking hours, the fact
remains that all that the Union did was to agree with , other employers not to solicit on
their premises . Such an agreement by the Union , arising, as it does, out of the "give and
take" of collective bargaining , may, for aught that appears here, represent a concession
made by it in exchange for the employers ' agreement on other vital terms of the contract.
It is apparent that no basis would exist for estopping the Union from insisting , in nego-
tiating a contract with some other employer , that union solicitation on that employer's
premises be permitted . Cf. Matter of McQuay-Norris Mfg . Co., 21 N. L. R. B. 709, 717,
enf'd , 116 F . ( 2d) 748 (C. C. A. 7).
The respondent also points to contracts which it has with various craft unions , affiliated
with the American Federation of Labor, covering a small segment of its employees, which
prohibit union solicitation at any time on the respondent 's premises . Again, these con-
tracts are the results of the mutual accommodation involved in collective bargaining over
the terms and conditions of employment of the employees covered by them. In addition
they were entered into by unions not affiliated with the Union herein involved. Accord-
ingly , we find that the contracts in question have no effect on the rights of the bulk of the
respondent ' s employees , who are not covered by them. We do find, however, that the
employees embraced by these contracts , on the assumption that the latter were entered
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discriminatory discharges and lay-offs
I. Cases involving the no-solicitation rule
We have found above that the respondent enforced its no-solicitation
rule discriminatorily against adherents of the Union. It follows that
the discharges and lay-offs of union members Brown, Schneider, Ros-
ciglione, Moore, Taff, Stewart," and Athanas 19 for alleged or actual
violations of that rule were discriminatory and violative of Section
8 (3) of the Act.
Aside from the respondent's discriminatory enforcement of the rule
against adherents of the Union, independent basis exists for a finding
that the respondent discharged or laid off the afore-mentioned em-
ployees because of their union membership and legitimate union ac-
tivities and not because of any alleged violation of the respondent's
no-solicitation rule. In each of these cases, the respondent's decision
to discharge or lay off the employee was made on the basis of a third
person's version of what had occurred, and the respondent, contrary
to its professed practice, made no effort to obtain the accused em-
ployee's version before reaching the decision to discharge or suspend
him. The failure to conduct a fair investigation, coupled with the
respondent's general antipathy to the Union, clearly evidenced the
respondent's eagerness to rid itself of union adherents and strongly
suggests that the real motive underlying the discharges and lay-offs
was the respondent's anti-union animus, rather than any sincere belief
on its part that the employees in question had violated the rule, or any
real concern by it over the fact that the rule had been violated.20 In
addition to the foregoing, the following circumstances in connection
with some of the employees in question lend further support to our
finding of discrimination :
1. Brown: (a) The conduct for which Brown was laid off, which
is amply described in the Intermediate Report, was clearly a jesting
pretense on his part at soliciting for membership in the Union a buyer
who was known to Browxl to be ineligible for such member. ship.21
into by organizations which represented a majority of the employees in an appropriate
unit , have thereby effectively bargained away their right to engage in union solicitation
on the respondent ' s premises . Consequently , and so long as the contractual provisions in
question remain in effect, the respondent's prohibition against union solicitation on the
respondent ' s premises at all times by employees covered by such contracts, is not to be
deemed improper . Cf. Matter of North American Aviation, Inc., 56 N. L. R. B. 959.
18 Stewart was suspended on one occasion and discharged on another . We find both the
suspension and the discharge to have been discriminatory.
79 Our finding of discrimination with respect to Athanas concerns his discharge in Septem-
ber 1942.
20 Cf. Shell Oil Co. v. N. L. R. B., 128 F. ( 2d) 206 (C. C. A. 5) ; American Smelting and
Refining Co . v. N. L. B. B., 128 F. (2d) 345 (C. C. A. 5).
21 At the hearing, Brown, after describing his conduct on the occasion of his lay-off,
asked the respondent 's counsel , "... is that soliciting ?" and the latter replied , "Well, I
don't think so, no."
FAMOUS-BARR COMPANY 983
The respondent admits that only "serious " attempts to induce em-
ployees to join a union are prohibited by its rule ; (b) Superintendent
McCarthy at first testified that he suspended Brown because he had
received two affidavits which made him certain that Brown had vio-
lated the no-solicitation rule. He later admitted that no such affidavits
had been submitted to him; that he "never knew exactly what [Brown]
had done"; and that he suspended Brown without having made any
investigation , and simply on the basis of advice received by him from
Buyer Jackson that "Brown had been soliciting ." McCarthy, at the
hearing, refuted his earlier testimony and admitted that Jackson did
not tell him anything about the nature of the solicitation , whom Brown
had solicited , or where or when the alleged solicitation took place.22
2. Moore: (a) While the affidavit upon which the respondent relied
in discharging Moore charged her with having asked the affiant, during
working hours , to join the Union , Moore's testimony , which we credit,
is that while discussing the Union with the affiant , she merely pointed
out the advantages of the Union 23 to him and never , in so many words,
asked him to join the Union.24 The respondent urges that , so long as it
had before it some evidence that an employee had violated its rule
against solicitation , it is of no materiality that the rule had, in fact,
not been violated . However, as we have already found, in this case, as
in the others , the respondent made no effort to ascertain the true facts,
but, on the contrary , deviated from its usual practice of "getting both
sides of the story" because of its eagerness to seize upon any colorable
excuse to rid itself of a union proponent . ( b) There is other evidence,
which is set forth in detail by the Trial Examiner '25 indicating that the
respondent was hostile toward Moore because of her affiliation with
the Union.
3. Athanas and Schneider : The circumstances surrounding Athanas'
original discharge and his reinstatement in December 1941 , as well as
the anti-union remarks made to him shortly prior thereto by the chef
who discharged him, as set forth in full by the Trial Examiner '211 clearly
evidenced the respondent 's antipathy to Athanas because of his union
membership and legitimate union activities . Also, as shown by the
evidence detailed by the Trial Examiner ,27 the respondent was hostile
toward Schneider because of his union membership.
22 Employee Goldstein , who testified concerning Brown's activity , admitted that he was
not questioned by McCarthy about Brown 's alleged solicitation until some months after
Brown was suspended.
23 It is to be noted that pro-union discussion , as distinguished from solicitation as such,
is permitted by the respondent , according to its own interpretation of its no-solicitation
rule
24 The afHant was not called as a witness.
25 See pp . 1045-1046 of the Intermediate Report.
26 See pp . 1005-1006 of the Intermediate Report.
27 See pp . 1050-1052 of the Intermediate Report.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. Cases not involving the no-solicitation rule
A. Case, Jennewein, King, and Marchand: We agree with the Trial
Examiner's findings that the respondent discriminated against these
employees, in violation of Section 8 (3) of the Act.
1. Case and Jennewein: These two employees were "regular selling
extras," i. e., salesladies who worked whenever needed by the respond-
ent rather than on fixed days. They had each been receiving about 4
days' work each week for a substantial period prior to October 10,
1942. On the latter date, both commenced to wear union buttons
while at work. After that date, neither was given any work until
their reinstatement sometime during the hearing herein, which was
conducted from March to July 1943. When Case and Jennewein,
after October 10, applied for work at the respondent's employment
department, and inquired as to the reason for their not having been
called back to work 28 as they customarily had been in the past, they
were told that it was because business was slack. At the hearing,
McCarthy testified that if Case had applied to him for work after
October 10, he would have been happy to give her work, and that
her name was taken off the regular extra list-"probably" because he had
read , in A. F. of L. leaflets which were distributed in front of the
respondent's store, that on October 23 the A. F. of L. had secured
employment for Case at another store. In its brief before the Board,
the respondent assigned, as the reason for its failure to call Case and
Jennewein back to work after October 10, the alleged fact that, be-
cause of complaints from other employees that Case and Jennewein
were getting more than their share of work, the respondent was trying
to "spread out" the work. These varying and mutually contradictory
reasons advanced by the respondent in explanation of its failure to
recall- Case and Jennewein after October 10, 1942, are refuted by the
following circumstances: (a) during the period following October
10, the respondent, through advertisements in St. Louis newspapers,
made strong appeals for "full time, part time, or short hour" sales
help; this refutes the contentions that work was slack, and that it
was necessary to deprive Case and Jennewein of employment in order
to "spread out" the work; (b) the testimony of both Case and Jenne-
wein, which we credit, establishes that they both applied for work
shortly after October 10; (c) in view of their contents, it is apparent
that the afore-mentioned A. F. of L. leaflets were not distributed
until on or about October 23, when Case secured a position through
the A. F. of L. (at which position she was employed only 3 days) ;
29 Case made such application and inquiry within 3 or 4 days after October 10, and
Jennewein did so , within a few weeks following October 10 , and again at a later date.
Prior to October 10, the respondent had called these employees to work without waiting for
them to apply. -
FAMOUS-BARR COMPANY 985
thus, the news that Case had secured other employment could not
possibly explain the respondent's failure to give her work during the
period from October 10 to 23. That the respondent's failure to re-
employ Case and Jennewein was discriminatory is indicated by : (a)
the inadequacy and inconsistency of the reasons advanced by the
respondent to explain such failure; (b) the admitted fact that both
Case and Jennewein were considered by the respondent as reliable
and satisfactory employees; (c) the fact that during the period that
these two experienced and competent employees were laid off or dis-
charged, the respondent was advertising for "hundreds" of inexperi-
enced housewives to do sales work for it; (d) the fact that the re-
spondent's failure to recall Case and Jennewein to work followed
immediately after they first commenced to wear union buttons while
at work; (e) the respondent's hostility toward the Union's organiza-
tional efforts.
2. King : The respondent denies that it caused King's discharge as
a demonstrator, or that it was an employer of King within the meaning
of the Act. It further contends that it refused to employ King as
a saleslady because of its alleged policy not to hire unemployed demon-
strators, due to the fact that, since demonstrators earn more than
salesladies, they are likely to leave sales positions for demonstrators'
positions without notice. However, the following circumstances indi-
cate that the respondent discriminatorily caused the scarf concern to
discharge King and induced the turban concern to refuse her work as
a demonstrator, and that the respondent's refusal to employ King
as a saleslady was likewise discriminatory: (a) the fact that King
was discharged by the scarf concern on October 10, only 4 days after
she first commenced to wear her union button while at work, which
button was noticed and commented upon on October 6 by one of the
respondent's supervisors; (b) the fact that the respondent controlled
the employment of demonstrators in its store through its right to
disapprove their selection and to demand their removal; (c) contrary
to the contention advanced that the scarf demonstration had to be dis-
continued because of lack of merchandise'29 that demonstration con-
tinued for a month after King was discharged; (d) the fact that the
representative of the turban concern indicated to King that she was
anxious to employ King but was unable to do so because of the re-
spondent's disapproval; (e) the fact that the turban demonstration
continued for at least 2 weeks after the refusal to employ King, con-
trary to Buyer Handel's statement to King on October 10 that it had to
be closed, apparently meaning immediately, because it was not "doing
On October 9, the scarf company sent a letter to King, informing her that the demon-1 29
stration had to be discontinued because of "unforeseen circumstances ." On the same date,
it wrote to the respondent stating that it had to discontinue the demonstration because of
lack of merchandise.
'986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so good"; (f) the fact that the respondent considered King a capable
and satisfactory demonstrator, as is evidenced by the fact that the
respondent originally recommended her to the scarf concern; (g) the
respondent needed salesladies, and one of the respondent's buyers had
requested the employment office to hire King as a saleslady in his
department; (h) King had extensive experience as a saleslady; (i)
the respondent's contention that it refused to employ King as a sales-
lady because it feared that she might quit her employment without
notice is unconvincing, for the reason, among others, that around
that time the respondent was advertising its willingness to employ
inexperienced "part time" or "short hour" sales help; (j) the respond-
ent's demonstrated hostility toward the Union, as well as its other
acts of discrimination against union adherents.
The following elements in the relationship between the respondent
and demonstrators employed in its store, support the Trial Exam-
iner's finding, in which we concur, that the respondent was an em-
ployer of King within the meaning of Section 2 (2) of the Act: 30
{a) the respondent has the right to disapprove the selection of
demonstrators and to demand their removal; (b) demonstrators,
including King, had to file applications for employment with the
respondent each time they started a demonstration; (c) the respon-
dent has some control over the amount of compensation paid to
demonstrators; 31 (d) although King's regular compensation was paid
to her directly by the scarf concern, the respondent paid her a Christ-
mas bonus in 1942; also, some demonstrators receive commissions from
the respondent in addition to the compensation received by them from
the demonstrating concern; (e) the merchandise demonstrated by
King was the respondent's merchandise, it having been sold to the
latter on consignment; (f) demonstrators are expected, when possible,
to sell for the respondent merchandise other than that which they
are demonstrating; (g) demonstrators are subject to the same store
rules and discipline as are other employees of the respondent; King,
for example, had to report to the respondent's office when late in
coming to work, punch a time clock, observe regular store hours,
obtain the approval of the respondent's supervisor in order to take
time off for shopping, and conform to all other store rules; (h) King
30 Cf. Matter of Butler Bros ., 41 N. L. R. B. 843, 855, enf 'd as mod, 134 F. (2d) 981
(C. C. A 7) : Matter of S H. Kress & Company , 34 N L. R. B 1152, 1180
It is to be noted that in a recent representation case which involved the respondent's
store ( Matter of May Department Stores Co., 54 N. L R. B. 230, 237-238 ), the respondent
took the position that demonstrators should be included in a store -wide-unit together
with other employees.
31 In response to a question as to whether the respondent has the right to approve or
disapprove wage increases given to demonstrators , McCarthy testified that "we would like
to know about [ such increases ]," for the reason that the respondent would not want a
demonstrator's wage to be "out of line" with , those of the salespeople who work "along-
side of them ." Also, in view of the respondent 's control over the selection and retention of
demonstrators , it can thereby effectively control their compensation.
FAMOUS-BARR COMP kNY 987
enjoyed the usual privileges of the respondent 's employees , such as
10-percent discount on merchandise purchased at the store ; ( i) King
carried insurance under the respondent 's Group Insurance Plan for
employees ; ( j) demonstrators are eligible for membership in the
respondent 's Welfare Association.
3. Marchand : Prior to her discharge on October 24, 1942, Marchand"
was employed as an office assistant to Buyer Owens, and also acted
as saleslady during large sales . On August 21, 1942, she joined the
Union, together with most of the other employees in her department.
About a week later, Assistant Buyer Bronke told Marchand that
Owens could not understand why the "girls had gone to an outside
organization with any grievance " they may have had, and that Owens,
had requested Bronke to tell the girls in his department "to come
to him in a group " to discuss with him any grievance they might
have. Later that day,. Marchand told Owens that she had joined the
Union because she desired certain improvements in wages, hours,
and working conditions , and that she believed that that was the only
way she could obtain them . Owens then made some anti -union re-
marks . Marchand , however, told Owens that she would maintain her
interest in the Union . On October 7, Marchand became secretary
of the Union, a fact which the respondent admitted learning by
reading a union leaflet distributed the following day.
Marchand was absent from work because of illness from October 9
to 12. On October 9, she reported the reason for her absence to the
respondent . She worked on October 12, but on October 13 she again
became ill and was not at work thereafter . On the morning of Octo-
ber 13, Marchand 's husband reported her illness to the respondent.
Thereafter , on various occasions prior to October 24 , Marchand her-
self spoke to Assistant Buyer Bronke on the telephone and told Bronke
that she would return to work as soon as she- was well. On October
24, the respondent sent to the State Unemployment Compensation
Commission a form notifying it that Marchand had left its employ
on October 7, and that she was taken off the pay roll because she was
absent since October 8 and "has not reported ." A copy of this no-
tice was sent to Marchand , who, on the following day, had her hus-
band telephone the respondent for an explanation . Securing no re-
ply, Marchand , on November 12, wrote to the respondent explaining
that she was absent because of illness, and that the respondent had
been so notified . She asked whether she was discharged, and, if so,
the reason therefor . She also stated that she was then recovered'from
her illness and was anxious to return to work. On November 14, the
respondent replied :
With reference to your application for reemployment you may
call to see [us] at 9 a. in., Tuesday , November 17.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marchand did not keep the appointment, because, as she testified, she
construed the letter to mean that, if she were reemployed, it would
be as a new employee, and that she would lose her seniority rights.
McCarthy testified that if Marchand had appeared on November 17,
he would have reinstated her.32
The following circumstances indicate that the respondent's dis-
charge of Marchand was discriminatory: (a) the patent falsity of the
reason advanced by the respondent for its action, namely, unexplained
absence, in view of the evidence, which we credit, that Marchand had
made timely report to the respondent of the reason for her absence,
and had kept the respondent informed about her illness and advised it
that she intended to return to work as soon as she was recovered; (b)
Marchand had been in the respondent's employ for about 15 years, she
was admittedly an excellent employee, and the respondent was suffer-
ing from a serious labor shortage; (c) Marchand was absent from
work on two previous occasions, before she joined the Union; on one
of these occasions, she was away for 7 or 8 weeks; on neither occasion
did the respondent take any disciplinary action against her; (d) a few
weeks prior to her discharge, Marchand made it clear to the respondent
that she would continue to maintain her interest in the Union, and
approximately 21/2 weeks before her discharge, she became an officer of
the Union, of which the respondent had knowledge; (e) the respond-
ent's antipathy to the membership' and activities of its employees in
the Union.
B. Sweeney and Lorey :
1. Sweeney: We do not agree with the finding of the Trial Examiner
that Sweeney was discriminatorily discharged. It is true that there
are circumstances indicating that the respondent resented Sweeney's
union activities, such as his wearing of a union button while at work,
over the objection of one of his supervisors, and his recruitment of
practically all the girls in the semi-wrap department into the Union.
Yet the fact remains that, after receiving complaints that Sweeney
had been annoying the employees in the semi-wrap department and
keeping them from their work, the respondent gave Sweeney explicit
instructions to stay out of that department under the penalty of dis-
charge. In view of Sweeney's activities in the semi-wrap department,
and the afore-mentioned complaints received by the respondent, we
cannot say that these instructions were issued for discriminatory rea-
sons. Thereafter, Sweeney deliberately violated those instructions by
entering that department for the purpose of informing the employees
of his scheduled induction into the Army and bidding them farewell.
While, in view of the circumstances under which the instructions were
violated, the penalty of discharge would seem to have been rather
22 The matter of Marchand 's reinstatement and back pay is treated below.
FAMOUS-BARR COMPANY 989
harsh, we cannot say that it was discriminatory. Accordingly, though
not without some doubt, we shall dismiss the complaint insofar as it
alleges Sweeney's discharge to have been violative of the Act.
2. Lorey: We agree with the finding of the Trial Examiner that
Lorey's discharge was not discriminatory. The record discloses that
Lorey, in violation of the respondent's rules, signed the name of his
supervisor to a sales check, and that this was the reason for his dis-
charge. Accordingly, we shall dismiss the complaint insofar as it
alleges Lorey's discharge to have been discriminatory.
The Remedy
Having found that the respondent discriminatorily caused King to
be deprived of employment as a demonstrator, and that the respond-
ent was an employer of King within the meaning of the Act, we believe
that it will effectuate the policies of the Act to order the respondent to
reimburse King for her loss of earnings as a demonstrator. Accord-
ingly, we shall order the respondent to make King whole for such
loss of earnings from October 10, the date of her discharge as a dem-
onstrator, to October 16, when the respondent refused to employ her
as a saleslady. Our order of reimbursement for the period following
October 16 will be based on her earnings as a demonstrator or as a
saleslady, whichever would have been greater. We believe that the
policies of the Act will be further effectuated by ordering the re-
spondent to notify the scarf manufacturer whose merchandise King
was demonstrating at the time of her discharge, that the respondent
withdraws its disapproval of King's employment as a demonstrator for
that concern in the respondent's store 33
For the reasons indicated below, we shall award Marchand back
pay only for the period of November 12 to 17, 1942. Marchand was
absent from work prior to her discharge on October 24, 1942, because
of illness. The record discloses that she continued to be ill there-
after. While the exact date of her recovery does not appear, the
record does disclose that it was sometime in the early part of November
1942, and, as previously indicated, Marchand, on November 12, 1942,
notified the respondent that she was then recovered from her illness
and was ready to return to work. Under these circumstances, we are
of the opinion that Marchand's back pay should not commence to
run until November 12,1942, which is approximately the date on which
she was first able to return to the respondent's employ. As noted
above, Marchand failed to keep the appointment scheduled by the
"While we have found that the respondent also discriminatorily induced the turban
company not to hire King as a demonstrator , our remedy as to King will not reflect that
discrimination ' against her, since no exceptions were taken to the Trial Examiner 's failure
to recommend any remedial action based upon that discrimination.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent for November 17, 1942, for the purpose of discussing with
her the matter of her reemployment, because she construed the respond-
ent's letter notifying her of the appointment to mean that, if she were
reemployed, 'it would be as a new employee, with loss of her seniority
rights. We perceive no convincing reason why Marchand should not
at least have made inquiry of the respondent as to what it meant by its
reference in that letter to her "application for reemployment." It is
true that that phrase is somewhat ambiguous, and might possibly be
taken to mean that she would be reemployed, if at all,, as a new em-
ployee, with a consequent loss of seniority. Yet, such meaning is not
at all plain from the language, and Marchand should have given the
respondent an opportunity to clarify its position in that regard. Ac-
cordingly, we are of the opinion that Marchand should be denied back
pay for the period following her failure to appear as requested by the
respondent. However, since no actual offer of reinstatement has ever
been made to Marchand, and since there was at least some ambiguity
in the respondent's letter which was responsible for Marchand's failure
to keep the appointment, we believe that it would effectuate the pur-
poses and policies of the Act to order the respondent to offer Marchand
reinstatement.34
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, May Department Stores
Company, a corporation, doing business as Famous-Barr Company,
St. Louis, Missouri, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in United Retail, Wholesale and De-
partment Store Employees Union of America, affiliated with the Con-
gress of Industrial Organizations, or in any other labor organization
of its employees, by laying off, discharging, or causing to be discharged,
or refusing to reinstate any of its employees, or by refusing to hire
applicants for employment, or in any other manner discriminating in
regard to hire or tenure of employment, or any term or condition of
employment, or by withholding approval of the employment or caus-
ing the discharge of any demonstrator, or in any other manner inter-
fering with the hire or tenure of employment, or any term or condition
of employment, of any demonstrator;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
"We are not convinced that, had Marchand kept the appointment, the respondent would
necessarily have reinstated her, as testified by McCarthy.
FAMOUS-BARR COMPANY 991
labor organizations , to join or assist United Retail, Wholesale and
Department Store Employees Union of America, affiliated with the
Congress of, Industrial Organizations , or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing , and to engage ' in concerted activities for the purposes of
collective bargaining or other mutual aid or protection , as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Rescind immediately its rule against solicitation insofar as it
prohibits union solicitation off the selling floor during nonworking
hours,35 and immediately post notices of such rescission in conspicuous
places throughout its department store and three warehouses in St.
Louis, Missouri;
(b) Offer to Vasil Athanas, Ruth Moore, Dorothy Rosciglione,
Hyman Schneider , Rose Marie Taff, Eva Stewart, and Ruth Marchand
immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority and other
rights and privileges; se
(c) Make whole Vasil Athanas, Ruth Moore , Dorothy Rosciglione,
Hyman Schneider , Rose Marie Taff, Bessie Case, and Margaret Jenne-
wein for any loss of pay they may have suffered by reason of the
respondent 's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he or she normally
would have earned as wages from the date of the respondent's dis-
crimination against him or her, to the date of the respondent's offer
of reinstatement to him or her ,37 less his or her net earnings during
such period;
(d) Make whole Eva Stewart for any loss of pay she may have
suffered by reason of the respondent's discrimination against her, by
payment to her of a sum of money equal to the amount which she
normally would have earned as wages from September 26, 1942, the
date on which she was discriminatorily laid off , to October 12, 1942,
the date on which she was reinstated , and from October 15, 1942, the
date of her discriminatory discharge , to the date of the respondent's
offer of reinstatement , less her net earnings during such periods
(e) Make whole Ruth Marchand for any loss of pay she may have
suffered by reason of the respondent's discrimination against her, by
payment to her of a sum of money equal to the amount which she nor-
91 See footnote 17, supra.
' We are not ordering the reinstatement of Bessie Case and Margaret Jennewein, since
the record discloses that they were reinstated to their former or substantially equivalent
positions during the course of the hearing herein.
sa If no actual offer of reinstatement was made to Case and Jennewein prior to their rein.
statement , back pay will terminate on the date of their reinstatement.
618683-45-vol. 59-64
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mally would have earned as wages from November 12 to 17, 1942,
less her net earnings during, such period;
(f) Offer to June King immediate employment in a position as
saleslady for which she applied to the respondent on or about Octo-
ber 16, 1942, or in a substantially equivalent position, with such sen-
iority and other rights and privileges as she would have enjoyed had
she not been discriminatorily denied employment;
(g) Notify, in- writing, the firm of Baar and Beards, Inc., New
York City,38 that the respondent withdraws its disapproval of June
-King's employment as a demonstrator for that company in the re-
spondent's store;
(h) Make whole June King for any loss of pay she may have suf-
fered by reason of the respondent's discrimination against her, by
payment to her of a sum of money equal to (1) the amount which
she normally would have earned as wages as a demonstrator in the
respondent's store for the firm of Baar and Beards, Inc., New York
City, from October 10, 1942, the date on which the respondent dis-
criminatorily caused her discharge as such demonstrator, to the date
of the respondent's notification to the afore-mentioned firm, as
ordered above, less her net earnings during such period, and (2) the
amount which she normally would have earned as wages as a sales-
lady from October 16, 1942, the date on which she was discrimina-
torily refused employment by the respondent, as a saleslady, to the
date of the respondent's offer of employment to her as a saleslady
or in a substantially equivalent position, as ordered above, less her
net earnings- during such- period ; provided, however, that' for any
period during which her earnings both as demonstrator and saleslady
are involved, her back pay should be computed on the basis of which-
ever earnings would have been greater;
(i) Upon application by Thomas Brown within forty (40) days
after his discharge from the armed forces of the United States, offer
him reinstatement to his former or a substantially equivalent posi-
tion, without prejudice to his seniority and other rights and
privileges ;
(j) Make' whole Thomas Brown, 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 which
he normally would have earned as wages from the date of the re-
spondent's discrimination against him to the date on which he en-
tered the armed forces of the United States, and from the date five
(5) days after his timely application for reinstatement to the date
'This is the company whose merchandise King was demonstrating in the respondent's
store at the time of her discharge on October 10, 1942.
FAMOUS-BARR COMPANY 993
of the respondent's offer of reinstatement, less his net earnings dur-
ing such periods; "9
(k) Post immediately in conspicuous places throughout its depart-
ment store and three warehouses in St. Louis, Missouri, and maintain
for a period of at least (60) consecutive days from the date of post-
ing, notices to its employees stating : (1) that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a) and (b) of this Order; (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a), (b),
(c), (d), (e), (f), (g), (h), (i), and (j) of this' Order; and (3)
that the respondent's employees are free to become and remain mem-
bers of United Retail, Wholesale and Department Store Employees
Union of America, affiliated with the Congress of Industrial Organi-
zations, and that the respondent will not discriminate against any
employee, including demonstrators, or any applicant for employment,
because of membership or activity in that organization;
(1) Notify, the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent discriminated in
regard to the hire, tenure, or terms or conditions of employment of
Harry Sweeney and George Lorey.
INTERMEDIATE REPORT
Mr. Charles K. Hackler, for the Boar-d.- °
Messrs. Lewis, Rice, Tucker , Allen & Chubb , by Mr. Milton H. Tucker and Mr.
Robert T. Burch, of St. Louis, Mo., for the respondent.
Mr. Morris J. Levin, and Mr. Victor Harris, of St. Louis, Mo., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on February 17, 194x3, by United
Retail, Wholesale and Department Store Employees Union of America, affiliated
with the Congress of Industrial Organizations, herein called the Union, the
National Labor Relations Board, by its Regional Director for the Fourteenth
Region (St. Louis, Missouri'), issued its amended complaint on February 17,.
1943, against May Department Stores Coiiipany, doing business as Famous-
Barr Company, St Louis, Missouri, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 ( 1) and ( 3) and Section 2 (6) and
1' The fact that Brown may, under our Order, become entitled to further back pay follow-
ing his timely application for reinstatement upon his discharge from the armed forces of
the United States shall not be regarded as affecting the respondent 's obligation to pay
him immediately whatever amount is due him for the period from the date, of the re-
spondent 's discrimination against him to the date on which he entered the armed forces
of the United States.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the amended complaint and the second amended charge with notice of
hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the amended complaint alleged, in
substance, that the respondent: (1) on or about September 26, 1942, laid off Eva
Stewart, and failed and refused to reinstate her until October 12, 1942, for the
reason that she joined and assisted the Union and engaged in concerted activities
with her co-workers for purposes of collective bargaining and other mutual aid
and protection ; (2) between September 18, and November 23, 1942, discharged
13 named employees' for the reason that they, and each of them, joined and as-
sisted the Union and engaged in concerted activities with their fellow em-
ployees for the purposes of collective bargaining and other mutual aid and
protection; (3) from on or about September 1, 1941, (a) urged, warned, and
threatened its employees against joining, remaining members of, or assisting
the Union or any other labor organization, (b) made derogatory statements
concerning the Union and its leaders, (c) questioned its employees concerning
their union activities and affiliations, (d) engaged in surveillance 'of its em-
ployees with respect to their union activities, and (e) hired secret operators to
report the union activities of its employees; (4) on or about September 1,
1941, promulgated a rule prohibiting its employees from soliciting membership
in any organization and since that date interpreted and applied the said rule
in such a manner as to prevent its employees from soliciting membership in or
discussing the Union, while not prohibiting solicitation on behalf of organizations
other than labor organizations ; and (5) by the foregoing and other specified acts
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Subsequently, but prior to the hearing, the respondent filed its answer deny-
ing that it had engaged in or was engaging in the alleged unfair labor practices.
The answer averred that the respondent was not engaged in interstate com-
merce within the meaning of the Act and that the Board had no jurisdiction
over it.
Pursuant to notice a hearing was held on various days between March 25, and
July 8, 1943, before Howard Myers, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board, the respondent, and the Union were repre-
sented' by counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine,witnesses, and' to introduce evidence bearing upon
the issues was afforded all parties. At the beginning of the hearing, counsel for
the respondent moved to dismiss the amended complaint on the ground that
matters alleged therein were fully settled and disposed of by a certain written
stipulation entered into by and between the respondent and the Union on Sep-
tember 14, 1942, which stipulation received the approval of the Regional Director
for the Fourteenth Region, or, in the alternative, for an order striking from the
amended complaint all allegations with reference to acts of unfair labor practices
allegedly committed by the respondent prior to signing of the said stipulation.
The motion was denied without prejudice to a renewal'thereof at any time during
' The names of these employees and the dates of their respective discharges are as fol-
lows : Vasil Athanis, September 18; Thomas R. Brown, September 18; George Lorey, Sep-
tember 29 ; Bessie L. Case, October 10 ; Margaret Jennewein, October 10 ; June King, Octo-
ber 10; Ruth Marchand, October 13; Eva Stewart, October 15; Ruth Moore, October 15;
Dorothy Rosciglione, October 16 ; Hyman Schnieder, October 17 ; Rose Marie Taff, November
6; and Harry Sweeney, November 23
FAMOUS-BARR COMPANY 995
the hearing' The respondent's counsel then moved for an order to make the
amended complaint more definite and certain or for a bill of particulars. The
motion was withdrawn when co^insel was advised by the undersigned that they
would be afforded reasonable time at the conclusion of the Board's case to make
such preparation as they deemed necessary to meet the issues raised. At the
conclusion of the Board's case, counsel for the respondent requested and were
given an 8-day continuance to enable them to prepare their case. Likewise, during
the respondent's case, the said counsel requested and were granted further time
to prepare their case.
At the conclusion of the Board's case, Board's counsel moved to conform the
amended complailt to the proof with respect to dates, names, and other minor
particulars. The motion was granted without objection. Respondent's counsel,
then moved to dismiss the amended complaint for lack of proof. The motion was
denied. At the opening of the respondent's case, Board's counsel moved to amend
the amended complaint so as to allege that not only did the respondent discrimi-
natorily discharge June King on October 10, 1942, but that it specifically refused
on October 10 and 16, 1942, and thereafter, to employ her because of her member-
ship in and her activities on behalf of the Union. The motion was granted over
the objection of the respondent's counsel, with leave to the respondent to file an
amended answer' within 10 days from the date of the granting of said motion
and to recall any witness called by the Board who testified regarding King's
employment, discharge, or the respondent's refusal to hire her, on or after October
10, 1942. At the conclusion of the hearing, the parties were afforded an oppor-
tunity to argue orally before the undersigned but did not do so. The parties were
also advised that they might file briefs with the undersigned within 30 days of the
close of the hearing.' A brief has been received from the respondent's counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
May Department Stores Company, a New York corporation, owns and operates
several retail department stores and warehouses in various parts of the Country,
and does business in St. Louis, Missouri, under the trade name of Famous-Barr
Company. In St. Louis, the respondent, besides owning and operating a retail'
department store, known as Famous-Barr Company, owns and operates three
warehouses, which are commonly referred to in the record as the Spring Avenue
8 The motion was not renewed at the hearing In their brief respondent 's counsel request
that the "brief may be taken as a renewal of said motion ." The brief further states :
This brief may be considered as a reminder to the Trial Examiner that his admission
of any and all evidence of events prior to the Settlement of September 14, 1942, was
conditional upon a showing by the Board of violations of the Act or of the Stipulation
after that date, and if necessary , as a renewal of Respondent' s objection , and as a
motion to strike out all testimony and exhibits relating to dates prior to September
14, 1942, for the reason that no subsequent violations were shown to have occurred.
As found below, the respondent shortly after the execution of the aforesaid stipulation
of September 14, 1942 , resumed its unfair labor practices. The objections are again over-
ruled and the motion to strike is hereby denied.
8 The respondent did not file any amendment to its answer.
* Upon the application of the respondent' s counsel , the time to file briefs was extended
to and including September 7, 1942.
99C DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse, the St. Charles Street warehouse, and the Pine Street warehouse.6
This proceeding is exclusively concerned with the respondent's St. Louis employees.
During 1942, the respondent purchased merchandise for its St. Louis store
valued at approximately $27,000,000, about 70 percent of which was shipped to
that store and to the St Louis warehouses from points outside the State of Mis-
souri. During the same year, the sales of the St. Louis store exceeded $27,000,000,
of which approximately 12 percent was shipped either directly from the store or
from one of the 3 St. Louis warehouses to points outside the State of Missouri.
Upon these facts, which were admitted in the respondent's answer and at the
hearing, the undersigned finds that the respondent, during all the times material
herein was and now is, engaged in commerce within the meaning of the Act. On
two previous occasions, in proceedings involving, the respondent's St. Louis em-
ployees, the Board found that the respondent was engaged in commerce within
the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
United Retail, Wholesale and Department Store Employees Union of America
is a labor organization, affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the respondent.
4
III. THE UNFAIR LABOR PRACTICES
A. Background
In the spring of 1937, the Union 7 and an affiliate of the American Federation of
Labor, herein called the A. F. of L., began separate organizational campaigns
among the employees of the respondent's store and St Charles Street warehouse.
The record does not disclose the extent of the success attained by the A. F. of L.,
except that it distributed to the employees handbills in front of the store. On the
other hand, the credible evidence shows that the Union's campaign proceeded quite
successfully during the late spring and summer of that year and that numerous
employees became members thereof. The Union's campaign was not confined, like
that of the A. F. of L, to the distribution of handbills in front of the store, but it
held numerous meetings with the employees. In the latter part of May or early in
June, 1937, the respondent distributed to its employees during business hours, a
printed leaflet which reads as follows :
AN IMPORTANT MESSAGE TO OUR ASSOCIATES
• On Saturday there were distributed to Famous-Barr Company's employees,
C. I. 0 pamphlet' to which you were expected to have given some thought
over the Decoration Day week-end and holiday. You may have recognized
6 The Spring Avenue warehouse is about 3 miles from the department store ; Pine Street
warehouse is about 1 block distant ; and the St Charles Street warehouse is directly
opposite
6 See Matter of May Department Stores Company , d/b/a Famous -Barr etc., 46 N L. R B.
305; The May Department Stores Company , doing business as Famous and Barr Com-
pany, etc., 50 N. L R. B. 669. See also The May Department Stores Company, et at.
(involving the employees of the respondent ' s Denver , Colorado, store ) 39 N. L. R. B. 471 ;
cf. N L. It. B. v. J. L. Hudson Co ., 135 F. (2d) 380 (C. C. A. 6), N. L. R. B. v. Gulf Public
Service Company, 116 F ( 2d) 852 (C. C. A 5) and N. L It. B. v. Suburban Lumber Com-
pany , 121 F. ( 2d) 829 (C C. A. 3)
Until sometime in 1939 , the Union was known as United Retail Employees ' Union.
It is to be noted that during the 1937 campaign of the A F. of L. the respondent made
no attack upon that organization.
FAMOUS-BARR COMPANY 997
these pamphlets for-what they are-'the propaganda instruments of outside
professional "organizers."
We wish to make it clear that this printed matter came from without the
store, not from within. The misstatements, exaggerations and one-sided
nature of these pamphlets need no specific answer at this time.
Famous-Barr Co. employees have a legal right to join or not to join
whatever organizations they may see fit. Don't permit yourself to be coerced,
stampeded or threatened. Above all, don't make a hasty decision. Get the
true facts. Think. Then decide for yourself.
Famous-Barr Co. does not believe that its employees' interests will best
be served by these outside agents The machinery for achieving harmonious
relationships and peaceable solution of problems already exists within this
store.
You have been urged to "sign up". Signing up means signing over part
of your pay envelope. Signing up means signing over certain fundamental
principles on individual action and freedom dear to every one of you.
Famous-Barr Co. has held steadfastly to the policy of providing the best
working conditions and salary levels possible. The recent bonus, lengthen-
ing of vacation, group insurance, sick benefits, pensions, hospital services,
the Outing Club, employees' lunch rooms, ten per cent discount on merchan-
dise purchased, personal loans without interest, and other welfare activities
are living proof of this policy. The continued success of this business will
permit the extension of such activities without the intrusion of "professional"
interference, and without having to pay an outsider for the right to get your
job and hold your job.
We believe that this speaks the mind of the majority of our employees.
FAMous-BARR Co.
In the latter part of June 1937, according to the credible uncontradicted testi-
mony of Juanitta Buddie, an employee in the respondent's Basement Ladies' Shop
Department, Buddie and about 10 of the then approximate 25 employees in that
department joined the Union, which, at that time, was confining its activities
to the organization of the respondent's various shoe departments Shortly after
joining the Union, Buddie went on a vacation. Upon her return, in-the latter
part of August, she reported for work and was told by'Walburn,0 the buyer for
that department,10 to go to the time-desk to obtain her time card." At the time-
desk she was told to see Griffin McCarthy, 12 the Superintendent of Employment.
There she had the following uncontradicted credible conversation with McCarthy :
0 Also referred to in the record as Wallbrun.
10 The buyer is the executive head of a department and in addition to his function of
purchasing merchandise for the department , is the management 's representative responsible
for its operation He, together with other officials of the respondent, decides when addi-
tional help is needed and is the person to whom the sales force looks for instructions.
Assistant buyers, floor-men (commonly known as floorwalkers), and heads of stock help the
buyers generally in the operation of, and are charged with the responsibility of maintaining
discipline in the department The resp-ndent concedes, and the undersigned finds, that
buyers, assistant buyers, floormen , and heads of stock are supervisory employees. More-
over, the aforesaid persons carry " blue pencils," which connotes to the employees that they
are supervisors . (See footnote 96) ..
11 This is the usual procedure followed by an employee returning from a vacation or from
a leave of absence.
12 McCarthy has complete charge of all discharges. He and Fred Z. Salomon , the re-
spondent ' s vice president , treasurer, and general manager formulate the respondent ' s labor
policies.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By Mr. HACR:LER : 18
Q What was said?
A. I just asked him (McCarthy) for my time-card, I want to come back
to work and he said he could not give it to me. I did not have a job any-
more, and I asked him why.
Q. What did he say?
A. He said I did not sell enough, my books were not high enough.
Q. What did you say to that?
A. I told him yes, they were; at that time I was the leading sales girl in
the department.14
Q. Did you say that to him?
A. Yes, sir.
Q. Did he say anything further?
A. He said he could not give me the job back.
Upon leaving McCarthy's office, Buddie returned to her department and after
telling Walburn what had transpired in McCarthy's office, left the store. That
evening Charles Rehmund, who was at that time a salesman in Walburn's de-
partment and at the time of the hearing was an assistant buyer in the children's
section of the Basement Shoe Department, called at Buddie's home, and accord-
ing to Buddie's undisputed credible testimony, the following transpired :
By BOARD'S ATTORNEY : -
Q. What took place between you and Mr. Rehmund?
A. He (Rehmund) told me if I wanted to come back to work that Mr.
Wallbrun sent a letter down to copy to resign from the CIO Union, but I
was not supposed to tell anybody he sent that letter down there.
Q. That is what Rehmund said to you?
A. Yes, sir.
Q. Did he produce the letter?
A. Yes, sir; Mr. Wallbrun written out a letter for me to copy to send in
a resign from the union.
Q Did Mr. Rehmund show you that copy?
A. Sure, he had a copy in his hand, that is what I copied the letter from.
Q. Did you copy what was in the letter Mr. Rehmund had?
A. Yes, sir.
Q. What was the contents, in general, of that letter?
A. "To whom it may concern, I resign from the CIO," or something of that
kind, I don't know exactly but that is what it meant.
Q. Did you send out a duplicate of the one Rehmund brought out?
A. Yes, I wrote the same thing he brought out, signed it and handed it
back to Mr. Rehmund.
Q. Did Rehmund say anything with reference to you coming back to work
at that time?
A. Yes, he told me when he took the letter back I should come back and
see Mr. Wallbrun.
Several days later Buddie returned to the store and Walburn told her "to come
down and work extra a couple of days, until the letter" came in and then she
could return to her former job. After working as an "extra" for several days,
Buddie made application for reemployment and was then given her former job.
13 Board 's Attorney.
14 Buddie ' s other uncontradicted credible testimony supports this statement.
FAMOUS-BARR COMPANY 999
Shortly after assuming her old job, Buddie received at the store a notice from
the Union, which she gave to Walburn who, after reading it threw it in the waste
basket saying to Buddie, "Don't be worried about that now." Rehmund was not
called to refute Buddie's testimony despite the fact that she testified that :
By Mr. HAC(KLER :
Q. Do you have any knowledge at this time where this letter Walburn
sent out to you by Rehmund is?
A. Mr. Rehmund told me the other day he still had the copy."
Q. He told you that in the store?
A. Yes, sir.
Q. He is now an assistant buyer?
A. In Children's Shoes, yes, sir.
Q. Did you ask him for it?
A. I sure did.
Q. What did he say?
A. He said he was keeping it for his own personal reasons.
Nellie McCaffery and Hattie Polfing, two employees in the Domestics Depart-
ment, joined the Union in July 1937. Several months thereafter, McCaffery was
called to McCarthy's office regarding the application which she had made to the
Welfare Association for a $50 loan. According to McCaffery's uncontradicted
testimony, which the undersigned credits, the following ensued :
By Bo.Nxo's Arroiei :
Q And what was that conversation, as you recall?
A. I had applied for a loan and he called me regarding that and said that
I come to him when I was in trouble and why did I join the union.
Q And when you were in his office that day, was the loan granted?
A. Yes, sir, it was.
Q And did Mr. McCarthy say anything to you about the union at that
time?
A. He had me sign a letter to withdraw from it, yes, sir.
Q Do you recall what he said with regard to withdrawing from it?
A. I really do not recall what he said.
Q. Did you sign a resignation in his office?
A. I did.
Q. Was that a resignation from the union that you had joined?
A. Yes, sir.
Q. Did you mail the resignation to the union?
A. No, Mr. McCarthy mailed it.
Q. Did he tell you he would mail it?
A. He said he would have it taken care of.
Q. Did you later get a return receipt from the post office?
A. I did.
Q. For that letter?
A. I suppose that is what it was for, that is what it came balek from.
Mr. TUCKER.38 I didn't hear that.
A. I suppose that is what it was for, it came back from the union.
u According to Buddie's credible testimony this letter is in Walburn's handwriting.
16 Respondent 's-Counsel.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By Mr. HACKLER :
Q. The return receipt?
A. Yes, sir, from the union.
Trial Examiner MYERS. Where did you get the letter?
A. He told me what to write and I wrote it.
Trial Examiner MYERS. Who is he?
A. Mr. McCarthy. He dictated the letter to me because I didn't know how
to word it.
By Mr. HACKLER :
He dictated it to you and you wrote it and signed it?
A Yes, that is the best of my knowledge.
Q. Did you start to take it away with you?
A. No, he said he would mail it.
Q And you later got a return receipt from the union?
A. Yes, I did.
Q Was that the same day that he told you that your fifty dollar loan was
granted?
A. You mean the day the letter was written?
Q. Yes.
A. Yes, sir.
According to Bolfing's credible, uncontradicted testimony when McCaffery re-
turned to her department after leaving McCarthy's office, the following tran-
spired :
A. She (}McCaffery) came down from McCarthy's office and said, "I was
called up in regard to the Union and if you don't want to lose your job you
better go and see Mr. McCarthy". With that I went up to see him and said,
"Mr. McCarthy, my case is the same as Mrs. McCaffery's." He asked me if I
would like to resign from the Union and I didn't want to lose my job and I
said yes, and he said will you sign the paper and I said I will take it home
and sign it and mail it in and he said you do not need to bother about that,'
I will send it in for you.
Q. Did you sign a resignation in the office?
A. Yes, sir.
Q. Did he tell you what to say in the resignation?
A. I did not write that.
Q. Did he write it up for you?
A. Mr. McCarthy had written it and I signed.
-Q. Did you sign it?
A. I signed it and he said he would mail it.
Q Then did you return to your department?
A. Yes, sir.
Q. Do you know whether anybody besides you and Mrs. McCaffery belonged
to the Union in your department?
A. Not at that time, we were the only two.
Q Did Mr. McCarthy ask you why you joined the Union?
A. Yes, he did.
Q. What did you tell him?
A. To better my conditions, to get more salary.
FAMOUS-BARR COMPANY 1001
On or about July 27, 1937, the respondent distributed to its employees a printed
leaflet which reads as follows :
A MESSAGE TO OUR ASSOCIATES
During the past two months, largely through the medium of propaganda
pamphlets, professional labor organizers have been trying to "sell an idea"
to Famous-Barr Company's employees.
Now, in an effort to make some headway, the campaign of soliciting has
taken a new turn-that of personal calls by committees at the homes of
employees.
Several of our employes, frankly puzzled by this procedure, have asked us
what course of action to follow when these "committees" call upon them.
Perhaps this same question is already framing itself in your mind. Individ-
uals who have asked us what to do have,been answered along this line:
The men and women who are making these door-to-door solicitations
may be compared to salesmen. Yours may be one of the names on their
"prospect list" If they sell you the idea, and you sign up and pay up,
the local union organization receives a part of your contribution as a
commission on the sale. If the proposition does not interest you, you are
under no obligation to admit these strangers to your home, sign anything
or pay anything. That is every customer's right and privilege.
Specific national and local laws now prohibit campaigns of fear-
intimidation, coercion, threats, acts of violence. Such un-American
methods stand condemned in the eyes of the law, public opinion and by
organizers' own public statements. No employe needs to admit strangers
to his home. No employee needs to listen to any solicitation if he is not
interested. No employe needs to join or stay out of any organization by
reason of any appeal to his fears or his emotions.
Statements made in a previous message to you bear repetition at this time:
"It is not necessary to pay an outsider for the right to get your job and
hold your job. Famous-Barr Company does not believe that its employes'
interests will best be served by those outside agents. The machinery for
achieving harmonious relationships and peaceable solution of problems al-
ready exists within this store." This has been true in the past. It will con-
tinue to be so.
FAMOUS-BARR COMPANY.
In the fall of 1938, the salesmen of,the Men's Clothing Department prepared
a petition addressed to Fred Z . Salomon, respondent 's vice-president , treasurer,
and general manager , requesting that their commissions be raised from 5 to 6
percent. After all the salesmen in that department had signed the petition it
was submitted to Salomon through Koven , the buyer for that department and
Dicks, Koven's assistant . Later in the day, according to the credible testimony
of Clarence Hartman, a salesman in that department and president of the
Union, Dicks, after presenting the petition to Salomon , returned to the depart-
ment and said to a few of the salesmen "I want you to get your name off
[the petition ], you are getting me in bad, I got the devil upstairs ". To all the
salesmen , Dicks reported that Salomon was very angry because they had peti-
tioned for a blanket increase and that Salomon said that he would not give the
Clothing Department or any other department a blanket increase , if it were
sought "in that manner."
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above described incidents were not specifically alleged in the amended
complaint as constituting unfair labor practices in and of themselves. It was
understood at the hearing that evidence concerning them would be admitted
only as showing background circumstances relevant to the unfair labor prac-
tices which were alleged. Accordingly, the undersigned does not find that these
incidents were unfair labor practices as such, but does find that they are
indicative of the respondent's attitude prior to, and cast light upon its motives
in connection with the activities alleged in the amended complaint. This is
especially true since Salomon testified that the respondent's labor policy and its
attitude toward labor unions have not changed in the past 10 years. Moreover,
the notices of May and July 1937, speak for themselves and are nothing more than
plain, clear cut statements to the employees that the respondent does not desire
the employees to become or remain members of a labor organization. In short,
the notices clearly express the respondent's antipathy towards labor organizations.
B. Interference, restraint, and coercion; the discharges
1. The events from August 20, 1941 to September 14, 1942
On or about August 20, 1941, the Union issued and distributed to the respond-
ent's employees its first handbill in the current campaign .17 This handbill an-
nounced the signing by the Union of a contract with a large Chicago retail
department store, and attached to the handbill was an application blank. In its
handbill dated September 23, and distributed on or about that date, the Union
announced that hundreds of the respondent's employees had signed membership
application cards, and urged the other employees to sign the application stapled
to the handbill.18 The speed with which the Union was obtaining members,
especially in the St Charles Street warehouse, evidently was a source of concern
to the respondent for on September 30, it placed in that warehouse an under-
cover operator named Edward McClelland. This operator was hired by the
respondent through the Wieck Audit Company,19 herein called Audit Company,
which had previously supplied the respondent with guards, watchmen and
"shoppers." 20
On September 30, according to McClelland's undisputed testimony, which the
undersigned credits,21 he was instructed by M. E Conlon, the Audit Company's
17 According to the record, the 1937 organizational, drive of the Union was abandoned
in the fall of that year. It was not until the late summer of 1941, that the Union again
attempted to organize the employees
38 Counsel for the respondent conceded that the respondent's officials had knowledge of
the contents of the Union's handbills on the day they were distributed. Except in a few
instances all the Union handbills were distributed on, or within 2 days of, the-dates they
bore.
39 The head of the Audit Company is S. W. Wieck, brother of the respondent' s secretary.
From time to time the respondent, like other retail department stores , hire people,
known in the trade as "shoppers," to purchase merchandise from a designated salesperson
and then make a written report on the salespersons' appearance courtesy, knowledge of
the merchandise, selling ability, and attitude toward customers Occasionally "shoppers"
are hired by the respondent to report on a designated salesperson's honesty.
21 The respondent in its brief states, in effect, that McClelland's testimony should not be
given any credence because, among other things, McClelland has a criminal record, tes-
tified falsely at the hearing and contradicted himself in a great many instances True,
McClelland has a criminal record At the age of 14 or 15 he pleaded guilty to a charge
of issuing a bad check It is likewise true that he testified falsely regarding his employ-
ment at the time of the hearing. Regarding this testimony, he testified when confronted
with his employer, that he swore falsely because he did not think his present employment
was any concern of respondent's counsel , who was then questioning hiip. Regarding
McClelland's testimony with respect to the issues involved in this proceeding, the record
clearly shows, and the undersigned finds, that he was an honest and forthright i ritness.
FAMOUS-BARR COMPANY 1003
supervisor , to apply for a job in the respondent's store, to mail, after being
placed on the respondent's pay roll, each evening to the Audit Company a written
report regarding ". . . how people felt in the employ of Famous-Barr about the
union. If they wanted to join or were going to join, and so forth." Conlon also
instructed him to include in the reports any evidence he might discover regard-
ing dishonesty and inefficiency among the employees. After receiving these in-
structions , the secretary of the Audit Company handed McClelland a letter of
introduction to McCarthy, the respondent's superintendent of employment. Mc-
Clelland then went to McCarthy's office. There he handed the letter to one
of the clerks in McCarthy's office who gave him an application, which McClelland
immediately filled out. He was then interviewed by one of McCarthy's assist-
ants, who hired him and assigned him to the St. Charles Street warehouse .12
McClelland remained in the respondent's employ until December 24, 1941 '
During this time, in accordance with Conlon's instructions, he made written re-
ports almost daily on the union activities of the St. Charles Street warehouse
employees 24 Most of these reports were based on memoranda made by McClel-
land during the day. Each evening during his employment as undercover oper-
ator in the respondent's employ, McClelland either mailed or brought to the Audit
Company his daily report. McClelland also testified without contradiction, and
the undersigned finds, that on many occasions he saw the Audit Company's secre-
tary type two copies of his reports and then mail one copy to D. C. Zytowski,
the respondent's protection superintendent.26 He further testified, likewise with-
out contradiction, and the undersigned finds, that he, himself, on several oc-
casions mailed copies of his reports to Zytowski, after they had been typed by
the secretary of the Audit Company. Most of these reports dealt with conversa-
tions regarding the Union which McClelland had with the employees of the
warehouse,2° some reports dealt with conversations between the employees which
he overheard , wherein they discussed the Union or unionism in general, and a
On a great many occasions his testimony is substantially corroborated by the respondent's
records and by the testimony of McCarthy, Zytowski , respondent ' s superintendent of pro-
tection, and Sophia Costa and Bonnie Ann Clogston , two other undercover operators. The
last named three testified after McClelland had testified. McCarthy testified both before
and after McClelland.
It is interesting to note that sometime in March or April 1942, one of the Board's agents
asked McClelland to come to the Board ' s office so that he could discuss with McClelland the
charges previously filed by the Union. After discussing the matter with Conlon and the
respondent 's attorney, McClelland was interviewed by the Board' s agent. Several weeks
thereafter , according to McClelland' s uncontradicted testimony , which the undersigned
credits, Conlon instructed McClelland to leave town immediately "so that the Labor Board
could not subpoena" him. McClelland did as instructed and went to Cuba, Missouri, a
small town about 80 miles from St Louis . There, McClelland registered at a hotel under
the name of Edwin Conlon and remained there for approximately 4 weeks. He returned
to St. Louis on or about May 8, when advised to do so by Conlon and S. W. Weick Upon
his return , Conlon told him that he "thought the heat was all blown over now and it would
be safe" for McClelland to remain in St. Louis and resume his duties as an operator for
the Audit Company.
22 At that time the Union was concentrating its drive on that warehouse 's employees.
Si Part of this salary was paid directly to him by the respondent and the balance was
paid by the Audit Company.
" Some of the reports concerned the dishonesty of some of the employees . Occasionally
McClelland brought the reports to the Audit Company.
21 The store detectives are under the supervision of Zytowski.
2e McClelland testified that it was his custom to engage some of the employees in con-
versations about the Union for the p urpose of reporting to the Audit Company the attitude
of individual employees with respect to unions . Harry Sweeney , whose discharge is dis-
cussed below and whom the respondent in its brief describes as a "sterling witness," testi-
fied that he gathered from the conversations McClelland had with him and with the other
employees , that McClelland was a member of the Union.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
few reports pertained to activities of the employees not relating to union mat-
ters. Besides these written reports the undisputed credible evidence shows that
McClelland made numerous oral reports to Conlon regarding the union activities
of the employees" McClelland further testified without contradiction, and the
undersigned finds, that sometime during the latter part of October or early in
November, Conlon told him to particularly watch a St. Charles Street-ware-
house foremap, named Morain, because Conlon suspected that Morain was a
union organizer; that he kept close watch on Morain and engaged him in con-
versations regarding unions, that he reported to Conlon that Morain had made
some pro-union statements and a few days later Conlon instructed him to enter-
tain Morain that evening; that pursuant to said instructions he took Morain to
dinner, to a burlesque show, and then bought him beer after the show ; and that
during the evening he engaged Morain in a discussion about unions, the sub-
stance of which he reported to Conlon. 'The undisputed testimony of McClel-
land, which the undersigned credits, further shows that on numerous occasions
between October 1 and December 24, 1941, McClelland made numerous written
and oral reports regarding the union activities and conversations of the ware-
house employees to Colon, which reports were immediately transmitted to the
respondent. On one occasion, McClelland reported a conversation he had with
an elevator operator and was told by Conlon not to check on that man because
he was one of Zytowski's informants. Similar instructions were given McClel-
land by Conlon regarding several other employees whom McClelland testified
Conlon said were Zytowski's informants.
On November 27, the respondent circulated among its employees a bulletin
which reads as follows :
To all employees of Famous-Barr Company
Re : Solicitation of Employes.
Your attention is directed to a long established policy of this company
with reference to solicitation of our employees
No one, whether an employe or a non-employe of this company, shall
solicit for, nor shall an employe purchase insurance, periodicals, magazines,
merchandise from outside sources or tickets ; prizes for churches or lodges ;
punch boards or raffles ; or memberships in societies, lodges or organizations
of any kind.
Where employes desire to solicit for funeral flowers, wedding gifts, sick-
ness or accidents benefits, Christmas presents or presents of any kind, in
short, collections of any amount however small, or for any purpose however
deserving,' they must first obtain written permission.
It is not the intention of the Management to interfere with any voluntary
expressions of good-will on the part of any of our co-workers for other'co-
workers. Permission therefore, will be granted in every case where no
imposition or hardship will result. We shall, however, view with severity
any omission to secure written permission, as stated
7 McClelland received his salary each Tuesday. On those days he personally delivered
his daily reports to the Audit Company and, if Conlon was in the office while McClelland
was there, he would discuss his work with Conlon. 4.
28 The Audit Company reimbursed McClelland for the money spent by him that evening.
It, in turn, was reimbursed by the respondent. At the time of the hearing, Morain was
still in the respondent's employ. Zytowski admitted that he knew that McClelland had
been instructed by Conlon to entertain Morain that night, but testified that McClelland's
instructions were to asceitain from Morain whether he was stealing merchandise from the
warehouse, as Zytowski suspected The undersigned does not credit Zytowski's
explanation.
FAMOUS-BARR COMPANY 1005
Please make this notice known to every employe in your department as
indicated by each employe's signature hereon, and return to the Superin-
tendent's office.
FAMOUS-BARE COMPANY.
At the hearing, the respondent maintained that a rule similar to the above quoted
one had been in force in the respondent's store since 1909, the year the respondent
opened its first store in Leadville, Colorado. No copy of any previous rule was
introduced in evidence, except the one which appeared in the manual, or rule-
book, which was given, commencing sometime in the early part of January 1941,
to new employees.' That rule reads as follows :
It is a long established policy of this Company that no employee shall solicit
for or contribute to the purchase of insurance , periodicals , magazines,
merchandise organizations90 of any kind , punch boards, raffles, etc.
On the following page of the said manual appears :
COLLECTIONS
For Flowers, Gifts, Etc.
Written permission must be secured for collections for funeral flowers,
wedding gifts, sickness or accident benefits, Christmas presents : In short for
collections of any amount however small or any purpose however deserving.
It is not the intention of the Management to interfere with any voluntary
expressions of good will on the part of any of our co-workers for other
co-workers.
Permission, therefore , will be -granted in every case where no imposition
or hardship will result.
On December 3, 1941, the Union held an open meeting for the employees of the
various retail department stores in St. Louis at a large hotel in that City. This
meeting was publicized by the Union in its handbills. McClelland, according to his
uncontradicted testimony, which the undersigned credits, attended that meeting
on specific instructions from Conlon, who instructed McClelland to ascertain and
report to him, who among the respondent's employees attended. In his written
report to Conlon, McClelland named two persons then in the respondent's employ
who attended the meeting. Emanuel Boggs, one of the Union's general organizers,
testified, and the undersigned finds, that three of the respondent's employees, Vasil
Athanis, Mildred Pettibone, and Hoerr, attended the meeting.
On the following day, December, 4, Athanis was discharged and on or about
December 26, Pettibone" was discharged. After several conferences between the
officials of the respondent and of the Union to which Athanis then belonged,"
Athanis was reinstated on December 9. Although Athanis' December 1941 dis-
xa Prior to 1935 or 1936, new employees received no manuals . The manual which im-
mediately preceded the one distributed in 1941 , does not contain any non -solicitation rule.
McCarthy testified that he knew of no manual prior to the one issued in 1941, which con-
tained a non -solicitation rule. If, in fact, there was a rule forbidding the employees from
soliciting in existence prior to January 1941 , there is no evidence in the record that it was
ever brought to the attention of the employees.
30 McCarthy testified that a comma was erroneously omitted between the words "mer-
chandise" and "organizations."
" On January 3, 1942, the Department Store Workers Organizing Committee , an affiliate
of the C. I. 0., filed a charge with the Regional Director for the Fourteenth Region alleging
that Pettibone was discharged in violation of the Act. The record does not disclose what
disposition , if any, was made of this charge
"At that time, Athanis was a member of the Catering Workers Union, an affiliate of
the C. I. O.
11
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge was not pleaded as being in violation of the Act and the undersigned makes
no finding in that respect, it is significant to note the circumstances under which
he was discharged and then reinstated." Athanis, a cook in the 6th floor kitchen,
was hired by the respondent on August 3, 1941, and no complaint was ever made
about his work until the day following the above meeting of the Union. On that
day the following transpired, according to the uncontradicted credible testimony
of Athanis :
1.
A. On December 4-I remember I finished my work and was going to
take my time-card to ring, and I didn't find any time-card. I went to the
chef and told him, "They ain't no time-card there." He say "come over here."
He took me on the hallway and handed me a slip, a check for time, and I
said "What is this?" He said "Your time. I am going to let you go." I
said , "Mr. Boss, why you let me go now? We are busy." He say "We are
busy now, but after Christmas business is going to be over and we don't
need you." I insisted again, and I told him "Why? Jesus, I don't under-
stand." He say "We going to let you go and hire another man on your job."
I say "What for? I want to know." He said "That is all", and walked
off and let me go.
On December 5, Athanis and three officials of the Catering Union called on
McCarthy to discuss Athanis' discharge. McCarthy greeted Athanis by com-
plimenting him on his ability to cook spaghetti. Then, according to the uncon-
tradicted credible testimony of Athanis, John Brown, the supervisor of the
respondent's various food departments, came into the conference, and stated
that Athanis was discharged because he dial' not know how to cook Italian dishes
and that Brown had decided to discharge Athanis and employ someone who knew
how to cook them ; that McCarthy then stated, to quote Athanis, "Well, I will
take it back. I was just telling Bill (Athanis) he was so good, and now it
turns around he ain't no good" ; that one of the officials of the Catering Workers
Union then stated "that is not the reason [for discharging Athanis], -for the man
has been working twenty-six or twenty-seven years at the business and ought
to know how to cook" ; and that at the third conference between the parties,
which was held on December 8, McCarthy announced the decision "to take Bill
back" and as Athanis was leaving the conference, McCarthy told him not to
"talk unionism" on company time 94 Several weeks prior to Athanis' December
1941 discharge, he according to his undisputed credible testimony, had the fol-
lowing conversation with Joe Gronski, the chef who discharged him:
By Mr. HACKLRE.:
Q. And•did Joe Gronski know you were in the Catering Workers Union?
A. I don't know if he knows or not, because I didn't tell him I belonged.
When there was that meeting held and he told' me "Do you want- to go to
the meeting?" and I said "Yes, I go and hear what they say and come the
next morning and work." He said "Just think it over. You are big enough
now to know." Then I say "Well, I don't do anything wrong. The way it
looks, the CIO is going to come in, the union going to come in the store."
He say "Never come in the, store. Don't fool yourself, they never come in
the store." That is all there was.
as Athanis' discharge in September 1942, is discussed at length below.
94 As will be shown below, it is not violative of the respondent's non-solicitation rule
to discuss unions or unionism on company time or property.
FAMOUS-BARR COMPANY 1007
As found above, McClelland was taken off the respondent's pay roll. on
December 24, 1941.36 On January 5, 1942, he was instructed by Conlon to
apply for a job in the respondent's drug stock room, which is located in the
St. Charles Street warehouse.36 He did as instructed and that day he was
assigned by one of McCarthy's assistants to the department indicated by
Conlon. McClelland remained in that department until about March 7,
1942, when he, pursuant to Conlon's instructions, resigned from the respond-
ent's employ. During this tenure of employment, McClelland made, as in
the past, written and oral reports, almost daily, to the Audit Company or to
Conlon directly. These reports, like those which he submitted to the Audit
Company and Conlon during his previous employment with the respondent,
pertained mainly to the union activities of the respondent's employees37 The
credible evidence shows that during the late winter of 1941-1942 and spring
of 1942, the union was concentrating its efforts on the respondent's non-
selling employees, most of whom were located in the St. Charles Street ware-
house' and this was the reason McClelland had again been assigned to the
St. Charles Street warehouse.
In its handbill of February 3, the Union announced a 12-point program ; that
is, it announced that it aimed to improve the working conditions of the respond-
ent's employees in 12 specific respects. Among the benefits sought for the
employees were the obtaining of a 3-week annual sick leave with pay and a
substantial wage increase. In ' the February 13 issue of the "Store Chat,"
a publication which the respondent issues weekly to the employees free of
charge, the respondent announced a sick-leave plan. In order, however, to
participate in the benefits of the respondent's plan an employee had to be a
member in good standing of the Welfare Association and be on the respondent's
regular pay roll for 6 months or ' more. Sick leave pay under this plan was in
addition to the payments made by the Welfare Association to its members under
,its own sick leave plan 88 At the hearing, the Board maintained that the re-
spondent's announcement of its sick leave plan shortly after the Union had
announced its intention to demand of the respondent that it grant to the em-
ployees an annual sick leave of 3 weeks with pay, was made for the sole purpose
of demonstrating to the employees the futility of belonging to a union." McCarthy
denied, in effect, that the respondent was so motivated. He testified that the
plan was put in effect at that time, after the respondent's officials had been
considering its advisability for at least 3 weeks, because Stix, Baer & Fuller,
a retail department store in St. Louis and a competitor for the same help hired
by the respondent, had announced at about that time a similar plan and there-
35 All the respondent ' s temporary employees and those who only wanted to work during
the Christmas Season were laid off on or about that date. McClelland 's superior, who did
not know that McClelland was an undercover operator , laid him off.
N During the period from December 24, 1941, to January 5 , 1942, McClelland was on the
Audit Company's pay roll only, and his duties during this period were on matters which
had no connection with the respondent.
37 During this employment his salary was paid in part by the respondent and the balance
by the Aud'+ Company.
33 The Welfare Association ' s sick leave plan has been in existence since the formation
of that organization in 1909. After an employee has been on the respondent's regular pay
roll for one month, the employee is eligible to join the Welfare Association. McCarthy
testified that his office, about every 30 days, sends to the office of the Welfare Association,
which is located on the 12th floor of the store , the names of the new employees who have
been on the respondent's regular pay roll for it month These names are then turned over
to the members of the Welfare Association's Membership Committee who are permitted by
the respondent , on company time, to solicit these new employes to become members of the
Welfare Association
3" This was indicated by the Board Attorney ' s line of questioning.
618653-45-vol. 59-65
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore the respondent was fearful that its employees would leave its employ and
secure employment at Stix, Baer & Fuller or that it would be unable to obtain
the additional help that it was then in need of, if the respondent did not im-
mediately offer its employees a similar benefit. The undersigned finds that the
respondent was motivated, at least in part, when it put into operation its sick
leave plan by the Union's proposals and the respondent's announcement, timed
as it was, so indicates its sick leave plan. First of all, the benefits under the
respondent's plan did not accrue to all employees but only to members of the
Welfare Association. In the second place, under the sick leave plan of Stix,
Baer & Fuller, which was not put into effect until the spring of 1942 all its
employees participate therein. Moreover, as will be more fully shown below,
each time the Union announced in its handbills that as soon as it represented
a majority of the employees it would attempt to secure certain improvements in
the working conditions of the employees, the respondent would immediately
voluntarily'make the changes or would announce to the employees that it would
positively refuse to grant the suggested changes. The announcements of the
changes or its refusal to make the changes were made by the respondent, despite
the fact that the Union had never made any demands upon it for the suggested
changes.
On March 7, McClelland, pursuant to Zytowski's instructions to Conlon, resigned
his job with-the respondent but remained in the employ of the Audit Company.
On March 10, Zytowski requested Conlon to assign two men to ascertain who
among the respondent's employees was putting up C. I. O. stickers in various
parts of the store, drawing swastikas and obscene pictures and writing on the
walls behind the elevators of the store Two men were assigned by Conlon and
were instructed to remain in the store the entire day'of March 10 but they were
unable to find anyone defacing the walls That evening, according to McClelland's
uncontradicted testimony which the undersigned credits, Conlon asked him
whether he knew Ray Hansen and Paul Leonard, two employees of the respondent,
and when he replied in the affirmative, Conlon instructed him to return to the
respondent's store the following morning and watch Leonard and, Hansen and
not to let them out of his sight because they were -the ones who were putting union
stickers on the walls and if McClelland should see them, or either of them,
putting any union stickers on the walls, or otherwise defacing them, he should
call Zytowski immediately on the store's inter-departmental telephone.40
40 Zytowski testified that he suspected that Leonard and Hansen were the guilty ones,
but that he did not take any action or question them because he did not have any posi-
tive proof that they were the culprits. He admitted, however, that he told Conlon on
March 10, of his suspicions and that he had instructed Conlon to advise the two operators
who were placed in the store on March 10, "to watch for two boys of a certain description."
Regarding McClelland,'s third employment in the respondent's store Zytowski testified
as follows :
(By BOARD's ATTORNEY)
Q. All right How did you first get information McClelland was back over there?
A. Conlon either called me or came over the next day, which would be the 11th.
I asked hint about the two nien, if they were not there today, and he said no, they
were not, because he had discussed it with McClelland the night before about the
obscene writings and things of that sort, and McClelland said he knew who was doing
it. Conlon sent him over
Q Did Conlon tell you who McClelland said had been doing it?
A. Yes', he said it was two boys in the supply room.
Q Hansen and Leonard?
A. Yes, sir.
Q So Conlon sent him over there on his own hook, without consulting you?
A That is right.
Q And told you after he had already arrived there'1
A. That is right.
4
FAMOUS-BARR COMPANY 1009
On March 11, McClelland went to the respondent's store He went directly to
the department in the St. Charles Street warehouse where Leonard and Hansen
worked" In reply to a question put to him by either Leonard or Hansen, as to
his whereabouts between March 7 and March 11, McClelland replied that he had
been discharged and that the Union had secured his reinstatement. McClelland
then asked Leonard and Hansen whether they had been putting the C. I. O. stickers
on the walls and when they replied in the affirmative he stated that if they had
any more he would help them put some of them oii the walls. They, or one of
them, then gave McClelland some stickers. McClelland then said "Let's go plaster
them on the wall " Pursuant to McClelland's suggestion either Leonard or Hansen
went to the eighth floor of the store, the other to the main floor, and McClelland
to the second floor where, instead of putting up the stickers, he called Zytowski
by telephone but Zytowski, according to McClelland, was not in his office. Because
of Zytowski's absence from his office at the time McClelland telephoned, Zytowski
was unable "to catch"' Leonard and Hansen "in the act," as Zytowski had
planned d2 That evening McClelland reported to Conlon as to what had transpired
that day. Conlon then instructed him to return to the store the following day
and to "get them (Leonard and Hansen) down in the locker room smoking a.
cigarette." Conlon then told McClelland that when the three of them were in
the locker room he should call Zytowski on the telephone and tell him that
Leonard and Hansen were smoking in the locker room and that Zytowski would
then send Leonard's and Hansen's supervisor, Harry Eckstein, "down to fire
them The following morning McClelland went to the store and around
noontime succeeded in inducing Leonard and Hansen to accompany him to the
locker room where he and Leonard smoked cigarettes 96
After McClelland had finished smoking his cigarette, he left the .locker room,
on the pretext that he was going to buy a "coke", went to a store telephone, called
Zytowski and told him that Leonard and Hansen were loafing and smoking in
the locker room. Zytowski, according to his testimony, then communicated this
information to Eckstein, who immediately went to the locker room and saw
Leonard and Hansen there. After Eckstein had asked McClelland, who had
returned to the locker room after speaking to Zytowski on the telephone, why
he was sitting there smoking instead of attending to his work, Eckstein ordered
Leonard and Hansen to accompany him to McCarthy's office, where they were
discharged for smoking in the locker room in violation of the respondent's rule.
Later that day, McClelland, according to his testimony, which the' undersigned
credits, went to Zytowski's office and told him that after Leonard and Hansen had
been discharged they returned to their department to get their hats and coats
4i McClelland did not, as was the custom, apply to the employment office for reem-
ployment The credible evidence shows that Conlon handed McClelland a re-employment
application blank in the office of the Audit Company which McClelland filled out there
and them returned it to Conlon.
42 Zytowski testified that he was in his office when McClelland telephoned, that Mc-
Clelland told him Leonard and Hansen were going to put stickers on the walls of the
second floor, and they had already stuck some on the walls on some. other Boors and on
the door of Zytowski's private office ; that he went to the 'second floor and there waited
for about 2 heirs, but Leonard and Hansen did not appear , that later that day McClel-
land again telephoned him and "said the reason that they had not come to that floor
(second) was because they had gone down to the locker room in the tunnel to smoke and
loaf and that they had stayed down there so long that they didn't have time to put the
stickers up." The undersigned finds Zytowski was not in his office when McClelland
telephoned the first time
4i Eckstein is one of the respondent's officials and is designated in the record as its
purchasing agent.
44 Zytowski testified that in their second telephone conversation of March 11, he gave
McClelland similar instructions.
45 Hansen does not smoke.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and inquired of him why he was not discharged also; that-he told them he did
not know ; that he suggested to Zytowski that he be discharged in the same
manner as Leonard and Hansen were, so that the other employees would not
become suspicious : and that Zytowski agreed with him and immediately took him
to McCarthy, who discharged him for violating the respondent's rule against
smoking in the locker room. Zytowski's testimony regarding McClelland's dis-
charge on March 12, is as follows:
By BOARD's ATTORNEY :
Q. Tell your version of the conversation (with McClelland).
A. I had been trying to find him and I called Conlon's office and Conlon
said if he located him he would send him over to me, and he came in at that
time and I asked him where he had been and he said he had been to see a man
and that he had left the store, and I said to him, "Well, you were smoking
down there, too, weren't you?" He said yes, and I said "Why did you smoke
after I told you not to " He said they were smoking and he just smoked
with them. I reminded him that I had told him that he must conduct himself
according to the store rules and not smoke with them, and I said,we had
better go up and see Mr. McCarthy about this, and we left my office and
went upstairs.
Q. When you got to McCarthy's office, what happened?
A. As I remember, Mr. McCarthy was not in the office and we had to wait
•a few minutes for him to come in.
Trial Examiner MYERs. What do you mean, a few minutes?
A. Maybe five minutes.
Trial Examiner MYElis. How long did you wait, do you remember?
A. My best recollection is five minutes, it wasn't very long.
By Mr. HACKLER:
Q. When he came in, what happened?
A. When he came in, I told him this was the boy that was smoking in the
locker room.
Q. Did you tell him he was one of your agents?
A. No.
Q. What did he say?
A. As well as I recall, he just said he was going to discharge him and
asked him what department he worked in and made out a voucher.'"
One evening in the early part of April, as the Union's organizers were dis-
tributing handbills in front of the respondent's store, Zytowski directed three
employees to obtain two motion picture cameras from the respondent's Kodak
Department and to accompany him to the third floor of the St. Charles Street
warehouse." Upon arriving there, Zytowski told Milton Lachterman, one of
the employees who accompanied him, to go to one of the windows and "to take
pictures of the employees as they left work through the Employees Entrance"
and "to shoot as much film as" he could and to be sure that the camera was
"trained on the doorway to the store at all times." On that ocacsion Lachter-
48 Although the undersigned credits McClelland's testimony concerning this incident,
Zytowski's version is set forth because in many respects it corroborates McClelland's testi-
mony and is one of the many indications in the record that McClelland substantially was
telling the truth regarding his role as an undercover agent.
44 Several days prior to the taking of these pictures Zytowski called Milton Lachterman
and two other employees to his office 'and asked them whether they would be willing to
take motion pictures after store hours. When they consented, Zytowski told them that
he would let them know when they would be needed.
FAMOUS-BARR COMPANY 1011
man used about 400 feet of film. One morning about a week later, when the
Union organizers were again handing out handbills , Lachterman , 'upon the in-
structions of Zytowski , again went to the same window in the St. Charles Street
warehouse and with the same camera took motion pictures of the employees as
they entered the store . Again Lachterman used about 400 feet of film. One of
the other employees took motion pictures at the same times that Lachterman
did, but from another window on the same floor i f the warehouse . These pic-
tures were taken, according to Zytowski , for the purpose of convincing the St.
Louis police , with whom he had previously consulted , that the distributors of
the handbills were causing congestion at the employees' entrance and thereby
producing a potential fire hazard . Although these films were developed shortly
after the pictures were taken , and the police authorities knew they had been
taken and developed , they were never exhibited to the police authorities. Upon
Zytowski ' s request , the police authorities , sometime in April 1942, directed the
distributors of the Union 's handbills to stand at the curb instead of standing
at the employees' entrance . The Union ' complied with this direction with the
result that it was only able to hand handbills to the employees who came to the
distributors and sought them." The credible evidence shows that when the
distributors stood at the curb the distribution of the handbills fell off about 33
percent.49 On or about June 2, 1942 , after the Union's repeated requests, the
police department rescinded its order and since that date the distributors have
been permitted to stand again at the employees' entrance . Board's counsel con-
tended that the motion pictures were not taken for the reason assigned by
Zytowski but, for the purpose of intimidating the respondent 's employees and
thereby causing them to refuse to accept a proffered handbill and at the same
time to harass the Union distributors . This contention finds substantial support
in the record . The credible evidence shows that the employees were aware
that the respondent was taking motion pictures of the handbill distributors and
that if they accepted a handbill that fact was being documented by their em-
ployer. Furthermore , other activities of the Union were photographed by the
respondent . Thus, Zytowski had photographs taken of the Union's September
30 and October 10, 1942 , distribution of handbills . Likewise, on October 24 , 1942,6°
when certain employees and other union members were marching up and down
in front of the store carrying signs protesting the discharges of certain em-
ployees allegedly for union activities , Zytowski hired a commercial photographer
who took numerous pictures of these persons . These actions of Zytowski, espe-
cially when viewed with his numerous clandestine activities , as shown by the
record, leads the undersigned to find that Zytowski did not seek the aid of the
police because he honestly believed that the distribution of the handbills at the
employees ' entrance might be injurious to the employees ' welfare or be detri-
mental to the respondent 's property, but that he sought police aid for the sole.
purpose of having the police interfere with the normal activities of the Union."
On April 10, 1942, the respondent hired 52 operators from the Audit Company.
Zytowski testified that the respondent was conducting an extraordinarily large
sale of merchandise on that day and on the two succeeding business days, and
therefore needed these operators for the protection of the public and the employ-
ees from injury and the respondent's property from damage , by the possible thr'ow-
48 This finding is based upon the undersigned's observation of the motion pictures which
were exhibited at the hearing.
4° The Union usually distributed between 2800 and 3000 handbills at each distribution.
6° Although the police authorities were informed of the taking of these photographs on
September 30, October 10 and 24, 1942, they were not exhibited to them.
61 The handbills of September 30 and October 10, were distributed in the early afternoon
on those days and were handed to the public and not to employees.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing by some unknown persons of stench bombs or the commission of some other
act of vandalism. The credible evidence shows, however, that these operators
were hired, not for the reason assigned by Zytowski but, for the purpose of spying
upon the union activities of the respondent's employees. Thus, Sophia Costa,
a credible witness, testified without contradiction that she and about 25 other
operators of the Audit Company arrived at the respondent's store on April 10,
before the store opened for business. There the operators were instructed, in the
presence of Conlon, to report immediately to Zytowski,' by calling him on the
telephone, if, and,when, they heayd any discussions between the respondent's em-
ployees regarding unions, and also to notify Zytowski if they saw any suspicious
characters in the store, or any stench bombs being thrown or lying around.`" The
operators were thereupon assigned to designated floors throughout the store.
The credible evidence further shows that the respondent hired during 1941 and
1942, about a dozen undercover operators from the Audit Company, other than
McClelland, whose duties consisted of reporting conversations by, and the ineffi-
ciency and dishonesty of, the employees. Included in the reports of these under-
cover operators were comments on the employees' conversations regarding the
Union and unionism in general. Zytowski admitted' receiving oral and written
reports from his undercover operators containing the substance of conversations
held by employees, but he testified that he paid no attention to these reports be-
cause he was not interested in them. The undersigned does not credit Zytowski's
testimony that he was not interested in'these reports. At least some of the
undercover operators were hired for the sole purpose of reporting to the respond-
ent the employees' attitude towards, membership in, and activities on, behalf
of the Union. McClelland's undisputed testimony, which the undersigned credits,
reveals that he submitted a great many reports to Conlon which were, within a
day or two thereafter given to Zytowski, wherein McClelland reported conversa-
tions he had with the employees or about conversations which he overheard. At
no time did Zytowski instruct the undercover operators, nor did he ask Conlon
to instruct them, to discontinue reporting on conversations regarding unions or
unionism, Moreover, Zytowski testified that although he received numerous re-
ports from his undercover operators regarding the inefficiency of some employees
and the dishonesty of others, he never disciplined these employees, nor does the
record disclose that any of them were disciplined or discharged by any other offi-
cial of the respondent. Taking into consideration all the evidence, as well as the
respondent's apparent hostility to, and its desire for information concerning the
Union's activities of its employees, the udersigned finds that the respondent hired
certain undercover operators, including McClelland, for the sole purpose of having
them spy upon, and report to it, the union activities of its employees, and by so
doing the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. This finding is
buttressed by the undisputed credible testimony of Bonnie Ann Clogston who testi-
fied that she was first hired by the Audit Company in-the early part of July
1942, and on or about July 9, was instructed by Conlon to see Zytowski who would
instruct her regarding applying for a job at the respondent's store and that after
being put to work by the respondent, she was to report daily to the Audit Company
concerning "thievery" by the employees "and things like that, and what the
[respondent's employees] talked about and what they thought of the Company
and things like that." She further testified that pursuant to Conlon's instructions
she saw Zytowski who said to her, after she had informed him that Conlon had
sent her, "I suppose Mr. Conlon has told you the reason." When she answered
62 These operators remained in the store during business hours on April 10, 11 , and 13,
1942.
FAMOUS-BARR COMPANY 1013
affirmatively , Zytowski told her to see Mr. Hack, the manager of the inspection
and wrapping departments, who accepted her application and assigned her to the
basement balcony wrapping room.63 According to Zytowski, he instructed Clog-
ston, at his first interview with her to look for and to report on thefts and acts of
vandalism only. The undersigned finds that Zytowski did not instruct Clogston
to confine her activities to reporting thefts and "acts of vandalism," but that
Clogston was hired for the additional purpose of reporting the employees' con-
versations concerning the Union and that Zytowski knew it.
Regarding her reports to the Audit Company concerning the respondent's
employees , Clogston's further credible and uncontradicted testimony was as
follows:
By Mr. HACKL1 R :
Q. Were you supposed to report conversations you heard between
employees?
A. Yes, sir.
Q. Did you report some of them?
A. Yes, sir.
Q. And the first report you sent in, do you recall you did not mention the
names of people you were reporting on?
A. No, I did not mention the names because I did not know them. I for-
got them.
Q. Did Mr. Conlon call you to the Wieck office and ask you to report the
names in the future?
A. Yes, sir, he did.
Q Did he have you supply the names in the report where you had failed
to place them?
A. Yes.
Q. After that time, you did insert the names?
A. Yes, sir.
Q Was that after your first report or two had been sent in?
A. Yes, sir. I think the first one was the only one I did not insert the
names on.
Q. After that you did?
A. Yes, sir.
Q And you sent these in daily?
A. Yes.
Q. Did you always mail them, or were there some times you would take
them in person?
A. I believe one day when I was coming down-I think I got paid on
Tuesday,.and once in a while if I missed the evening mail I would take them
in to Mr. Conlon.
Q. But you go to the office to get your pay?
A. Yes, sir.
Q Were there times when you reported employees for not paying atten-
tion to their duties?
A. Yes.
Q Did you make a report or reports about employees talking about Mr.
Hack or the Famous-Barr Company?
53 Clogston worked as a wrapper in the respondent's store from July 10 to sometime in
the latter part of August 1942. During this period she received $15 per week from the
respondent and $7.50 per week from the Audit Company.
1014 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
A. Yes.
Q. Did you report talks by employees concerning their wages?
A. Yes.
Q. And make reports on other matters they talked about?
A. No.
Q. Do you remember the time there was a strike at the Spring Avenue
warehouse?
A. Yes.
Q You heard about it?
A. Yes.
Q. Was there considerable talk about strikes among the girls in the wrap-
ping room?
A. No, not very much.
Q. Was there some talk?
A. Oh, yes.
Q. Did you report those conversations?
A. Yes.
Q. And at about that time did you hear some of the girls say they thought
the Union would be in within a month?
A. Yes.
Q. And did you report that conversation?
A. Yes, Sir, I did.
On or about June 13, 1942, the respondent discharged the 11 night clean-
ing women then in its employ without previous notification. These women were
all members of the Union. On June 15, the Union's officials, accompanied by
10 of the 11 women, conferred with Salomon and the respondent's president.
The Union's officials protested these discharges, maintaining that their union
membership was the basis for the discharges. The respondent's officials main-
tained that beginning in October 1941, when war was imminent, the respondent
decided to hire women instead of men to do the cleaning at night, that after
a. eight-month trial, the respondent came to the conclusion that the women did
not do the cleaning as efficiently as the, men, and that they therefore decided
to discharge the women and again hire men. Salomon denied that the re-
spondent knew that these women belonged to the- Union and that, for that
reason, their union membership played no part in the respondent's determina-
tion to discharge them. When one of the Union's officials stated that the re-
spondent must have known that these women were members of the Union
because they wore their union buttons while at work, Salomon turned to the
women and asked each of them "Do you belong to the Union? When did
you join?" When the Union asked if the respondent could place these women
in other jobs,'Salomon replied in the negative. The meeting concluded when
Salomon said that the respondent would give each of the 11 night cleaning women
a week's pay, but would not, under any circumstances, reinstate them.
On August 11, the respondent prepared a notice which reads as follows :
To ALL EMPLOYEES OF FAMOUS-BARR COMPANY
Subject: SOLICITATION OF EMPLOYEES.
Activities arising from the war effort have brought up numerous cases
where the intent of our long-standing policy respecting solicitation of
employes has been questioned.
It is necessary, therefore, to announce that-even though the manage-
ment is fully in accord with the purposes of most of the war-time solicita-,
FAMOUS-BARR COMPANY 1015
tions presented to our people-we, nevertheless, reaffirm the previous bulle-
tins with reference to solicitation of our employes on store property, as
follows :
RULE
No one, whether an employe or a non-employe of this Company, shall solicit
for, nor shall an employe purchase insurance , periodicals , magazines, mer-
chandise from outside sources or tickets; prizes for churches or lodges;
punch-boards or raffles ; or memberships in societies, lodges or organiza-
tions of any kind, on store property.
Where employes desire to solicit for funeral flowers, wedding gifts, sick-
ness or accident benefits, Christmas presents or presents of any kind, in
short, collections of any amount however small, or for any purpose however
deserving, they must first obtain written permission.
It is not the intention of the Management to interfere with any vol-
untary expressions of good-will on the part of any of our co-workers for other
co-workers. Permission therefore will be granted in every case where no im-
position or hardship will result. We shall, however, view with severity any
omission to secure written permission, as stated.
Please make this notice known to every employe in your Department as
indicated by each employe's signature hereon, and return to the Super-
intendent's Office. FAMous-BARR COMPANY.
Copies of this notice were sent to the heads of the various departments of the
store and of the three warehouses, with instructions to the department heads
to have the employees in their respective departments read and then sign the
notices on its reverse side. When this was done the notices were sent to Mc-
Carthy's office.
On or about August 19, the Board issued its complaint based upon charges
filed by the Union 64 and by an affiliate of the American Federation. of Labor ,5
On September 14, pursuant to a written stipulation entered into by the re-
spondent and the Union, with the consent of the Regional Director, the case was
settled and Leonard, Ilansen, and the 11 cleaning women were offered rein-
statement with back pay'e • When Mary Stolte;4 who was discharged on or about
July 11, was informed in McCarthy's office by him and another official of the
company that she was being reinstated with back pay, McCarthy handed her a
paper and asked her to read and sign it, which she did. The paper stated that
it was violative of the respondent's rule to solicit on company property" Stolte
was then advised by McCarthy, or by the other official who was present in
McCarthy's office and whose name Stolte testified she could not remember, that
the prohibition against soliciting on company property especially referred to
her." Just as Stolte was leaving McCarthy's office, she was told that the re-
54 Among other things, the Union charged that the respondent had discharged Leonard,
Hansen , and the 11 cleaning women in violation of the Act.
m The American Federation of Labor charged that the respondent , among other things,
had violated Section 8 ( 3) by discriminatorily discharging Albert D Glazebrooke, one of
its members , who was employed at the Spring Avenue warehouse. The complaint which
was issued , however , did not deal with Glazebrooke ' s discharge
50 Glazebrooke , under the terms of the stipulation , was reinstated with back pay.
57 Mary Stolte , a cleaning woman and a member of the Union , was also reinstated pur-
suant to the terms of the stipulation , with back pay even though the complaint in that
case did not mention her name.
. 58 This paper was undoubtedly a copy of the August 11, 1942, notice referred to above.
se This statement was not denied . It is significant to note that the respondent never
claimed that Stolte nor the other cleaning women were discharged for violating the non-
solicitation rule.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent had under consideration, just prior to their discharges, the granting
of a dollar increase to the cleaning women, but that the respondent had since
changed its mind and therefore she had "the Union to thank for that." McCarthy
denied telling Stolte or anyone else that the cleaning women had "the Union
to thank" for not getting a raise. He also testified that the remark was never
made in his presence. Stolte was a forthright and honest witness ; McCarthy was
not. The undersigned rejects his denial and finds the statements were made
as'testified to by Stolte. When Stolte reported for work, a few days later, she
was told by her supervisor that her seniority started from January, 194280
On Friday, August 21, practically the entire sales force of the Toy Department
joined the Union.' Since the beginning of its campaign in 1941, this was the
first time that the Union was able to sign up almost an entire department at one
time. On the following day, August 22, the respondent's officials exhibited an
unusual interest in the affairs of that department. Several employees and a
former employee testified that throughout that day, and the Monday following,
Salomon, McCarthy, and numerous other high officials of the respondent visited
that department and conferred in groups, talked in low tones, and stared at and
eyed the salespeople suspiciously.' Mildred Mac Clurg, an employee in the Toy
Department, testified without contradiction, and the undersigned credits her
testimony, that she joined the Union on August 21, and that she became nervous
because so many officials were in her department on the Saturday and the Mon-
day following her joining the Union and that on Tuesday she asked the buyer of
the Toy Department, Owens, if the respondent's officials were in the Toy Depart-
ment for the purpose of discharging her and that Owens replied, "No, Mildred,
they are not trying to fire you ; they are trying to find a reason why not to fire
you." Other employees of that department testified, and the undersigned finds,
that they feared that they had gained the displeasure of `those officials who
appeared in the Toy Department on that Saturday and Monday because they had
joined the Union, and for that reason those officials were not, like in the past,
cordial to them.
2. Events on and after September 14, 1942
As found above, the Union and the respondent entered into a written stipulation
on September 14, 1942, which subsequently received the approval of the Regional
Director. On the following day, the respondent distributed to its employees
a 4-page printed leaflet which contained a copy of the stipulation.
60 Stolte was first employed by the respondent in October 1941.1
el The employees of this department have been in the respondent's employ for a good many
years.
62 Some, but not all, of the respondent's officials whom the Board' s witnesses named,
as being present in the Toy Department on August 22 and 24, denied that the union
membership of the employees of that department caused them any concern and denied
that their presence in that department on those days had any connection whatever with the
Union. Although Salomon and McCarthy testified, they were not questioned about this
matter. Beatrice Bogner testified that she was formerly employed in the Toy Department,
and joined the Union on August 21, and that a few days later John Brandau, the re-
spondent's operating superintendent came into the Toy Department and asked Owens, the
buyer for that department, whether he had done anything to the salespeople of his depart-
ment to cause them to join the Union, and that Owens replied, "I don't know what hap-
pened ." Brandau, while not specifically denying Bogner's testimony regarding his conver-
sation ,with Owens, testified that he never stood in the Toy Department any time and
discussed with any supervisory official of the respondent the union activities or member-
ship of any Toy Department employee. The undersigned credits Bogner' s testimony and
finds that some of the high officials of the respondent gathered in the"Toy Departmbrit
on August 22 and 24 and that these officials were concerned over the fact that some of the
respondent's oldest employees had joined the Union in a body.
FAMOUS-BARR COMPANY 1017
In its handbill of September 15, the Union urged its members to induce their
fellow workers to join the Union and also advised its members that they should
use their own time, before and aftei work and during lunch hours, for that pur-
pose. The handbill also requested that the members arrange meetings for pro-
spective members, but to do so only "before and after work ." The handbill, in
effect, cautions the employees not to solicit during working hours. It also con-
tains a statement that the settlement of September 14, was a complete victory
for the Union' In its handbill of September 16, the Union stated that the re-
spondent sought a settlement of the pending case against it and that the Union
had informed the Board, when'it was advised that a discussion between the Board
and the respondent looking towards a settlement was in progress , that the Union
would not agree-to any settlement that did not provide for an "unconditional
surrender" upon the part of the respondent. In its September 18 handbill, the
Union stated that since the settlement "we have been literally swamped with
new members .. . new members are coming in more rapidly than we had ever
expected ... a tremendous amount of progress has been made. And much more
progress can be made if anyone makes of himself a volunteer organizer in the
store " As indicated by the findings hereinafter made, these statements made
the respondent's officials apprehensive that the Union was gaining a foothold in
the store and they thereupon launched upon a campaign to defeat the Union's
organizational drive.
On September 18, when Vasil Athanis, a cook in the kitchen of the sixth floor
tea room, reported for work he was met by McCarthy, Zytowski and Leo Brown,
the assistant manager of the respondent's various kitchens and restaurants, and
was informed by McCarthy that he was discharged for violating the non-solicita-
tion rule McCarthy testified that several days prior to that day, Leo Brown or
his father , John Brown , the manager of the respondent 's various kitchens and
restaurants, telephoned him and told him that Athanis was soliciting for the
Union; that he thereupon requested Robert T. Burch, one of the respondent's
attorneys, to investigate the matter ; that on the day prior to Athanis' discharge,
Burch handed him four affidavits which Burch had secured from Athanis' co-
workers ; that after reading the affidavits, although he did not know the affiants
or whether the facts contained in the affidavits were true, he decided to discharge
Athams ; that he based his decision to discharge Athanis on the facts set forth
in the said four affidavits and Burch's assurance that by discharging Athanis he
was not violating the Act or breaching the settlement agreement ; 64 that the next
morning he went to the sixth floor kitchen and there awaited with Leo Brown and
Zytowski the, arrival of Athanis; that when Athanis arrived he asked Athanis if
he remembered reading and signing the notice of August 11 (regarding solicita-
tion on company property ) and Athanis stated he remembered reading and sign-
ing the notice, he told Athanis that he had satisfactory evidence that Athanis had
been soliciting and was "going to pay him off" ; and that he thereupon gave
Athanis a voucher so that he could collect the wages due him e6
63 A similar statement appeared in the September 16 handbill.
eA Burch did not tell McCarthy that the facts set forth in the affidavits warranted the
discharge of Athanis The same is true regarding all persons named in the amended
complaint as being discharged allegedly for violating the non-solicitation rule . See footnote
65, immediately below.
m McCarthy testified that when charges are preferred against an employee which might
result in disciplinary action, it is his and the respondent's policy to "try when possible
to get both sides or the attendant circumstances so that we can make a fair decision"
and that the employee is given "a chance to tell his story " It is to be noted that, even
though requested , neither Athanis•nor any other person mentioned in the amended com-
plaint was,given a chance to defend himself . against the accusations made against him
or to give his version of the "attendant circumstances." McCarthy testified , and the
-1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Athanis testified that when McCarthy accused him of violating the non-
solicitation rule he admitted that he solicited for the Union, but that he did
_so on his own time and that McCarthy's only reply was "You are discharged."
The persons whom Athanis allegedly solicited were not called as witnesses.
Athanis admitted that on several occasions he had asked Gill Hourston, one
of the four affiants, to join the Union, but stated that he did so only in the
wash room where the kitchen help changed their clothes and while he and
Hourston were changing their clothes. In his affidavit, sworn to September 16,
Hourston stated :
... yesterday morning, September 15, 1942 at about 10: 45 a. in. I was
getting some soup for my lunch and Bill' was working at the steam table;
he asked me if I was going to join the union and tried to persuade me to
join and said the company wouldn't take care of me .. .
Athanis denied the above quoted statement of Hourston. In fact, he stated
that he had no conversation with Hourston on September 16.
In her affidavit, sworn to September 16, Olive Fagan stated that Athanis
. . talked to me about three weeks ago during working hours asking me to
join the union ; this was at the steam table and two other cooks were there ;
Bill was trying to persuade all of us to join the union . . .' Athanis denied
that he ever asked her to join the Union. He-testified that the only conversation'
he had with Fagan was about a month before he was discharged and at that
time they discussed Fagan's two sons who were in the Army. He said that
on that occasion Fagan was crying and he tried to console her.
In her affidavit, sworn to -September 17, Shirley Oakley stated that "this
afternoon while I was working cleaning silver Bill, the second cook, talked
to me trying to get me to join the union ; he said that I would have to join
or I would lose my job; he'told me that I should go over to union headquarters
this evening and sign up with the union . ." Athanis denied that he talked to
Oakley about the Union. He characterized Oakley as being weak-minded and,
for that reason, he never carried on a conversation with her.
Regarding Athanis, Louisa De Nagel in her affidavit, sworn to September
16, says :
. . . Bill Athanis the second cook has talked to me several times asking
me to join the union and I have always told him I would not join ; at all
these times he was eating and I was working : I told him I don't like
unions; on Monday, September 14, 1942 at about 11: 30 a. in. while Bill was
eating lunch and my work was right along side of where he was eating,
he told me I should go over to union headquarters and sign up with the
union ; he said it wouldn't cost me anything now but we would have
to join later because the C. I. O. would come anyhow and then it would
cost us $20.00; he said if we joined the union we would get $22 50 per week
for the work I am doing now ; I told him I didn't want anything to do
with it, to leave me alone and not bother me.
Athanis admitted discussing the Union with De Nagel about three or four times
during August and September and that he asked her to join the Union ; that some
undersigned finds, with respect to the persons named in the amended complaint as having
been allegedly discharged for violating the non-solicitation rule, that he always had Burch
make an investigation and secure affidavits and that upon receiving the affidavits he decided
then and there to discharge the persons named in the affidavits, even though he did not
personally know the affiants or whether the statements contained in the affidavits were
true or not.
el Athanis was known to his co-workers as "Bill."
FAMOUS-BARR COMPANY 1019-
of these conversations took place while she and he were eating their lunch, and
the others took place while he was eating n and De Nagel was cleaning silver
near by. He admitted that sometime in August he had a conversation with De
Nagel while he was eating his lunch °8 in which he asked her "to come to the Union
headquarters and sign up a Union card," and that De Nagel replied, "Why join
the CIO, I choose the A. F. of L." Regarding a conversation he had with De
Nagel about a week or ten days after he had the conversation referred to immedi-
atelyabove, Athanis testified as follows :
One day I told her, if the Company tells you not to join,the Union, and she
said yes, so Shirley [Oakley] was there and she said, they told me to, and
I said; that's all right, I didn't say anything. After I finished and went back
to work, after the rush time, I come on back again and sat down at the table,
and they were sitting by me right there, two feet away, and Louisa, I told
her, are you sure they told you not to join the Union, and she said no,
that was all there was to the conversation.
The undersigned was favorably impressed by both the demeanor and testimony
of Athanis . In view thereof and because of the failure of the respondent to call
as witnesses the individuals whose affidavits are described above, the undersigned
credits Athanis ' testimony in regard thereto B9
The record discloses that Athanis joined the Union in February 1942, and
immediately became its most active member among the sixth floor kitchen help.
He immediately , after becoming a member of the Union , helped distribute union
handbills in front of the store, and often discussed the Union and unionism with
his co-workers . The record discloses that in March 1942,40 Leo Brown called
Athanis into his private office and the following occurred , according to the undis-
puted credible testimony of Athanis :
He (Brown ) said, what is that thing you are doing , he was tough about
it, hollered at me, and I said I don 't know nothing , Leo, I don't know. He
said, he had an application in his hand , what is this , and I said I don't
know what it is, and he opened it up and I seen an application , that is a
Union application , and he said , are you trying to give it to somebody, and
I said, if he asked me I will give it to anybody , if he asks me I didn't
do anything wrong" He said , your cooking is lousy, and everything, and
°T The sixth floor kitchen help eat their lunches in the kitchen.
88 The record does not disclose whether De Nagel was eating her lunch at the time of this
conversation or was working.
OD In its brief the respondent intimates that the reason it did not call as witnesses all
the persons who swore to the affidavits secured by Burch , was that these persons were
afraid to appear as witnesses due to the fact that some of the Union ' s handbills contained
certain disparaging statements or threats regarding these affiants . There is no evidence in
the record that any witness was afraid to testify or that the Union threatened any
employee . On the other hand, several of the afflants did testify , and none of them ap-
peared to be intimated or frightened by any statement contained in any handbill of the
Union
10 Athanis said it took place in May 1942 He was evidently mistaken
71 McCarthy testified that it was not a violation of the respondent ' s non -solicitation rule
to hand a fellow employee a union application card upon request , even though it occurred
on company time , provided the person giving the card "did not say anything or do any-
thing at the time of giving out the card , in endeavoring to influence the decision of the
person asking for the card " McCarthy stated that it was not a violation of the said rule
for employees to discuss , on company time or property , unions and unionism or any other
topic pi ovided they do not congregate and neglect their work , or to ask a fellow employee,
on company time or property, to attend a union meeting , or to 'distribute union literature
on company property. According to McCarthy, 'the rule was only violated when an
employee asked another employee to join a union or handed him an unsolicited union
application card
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he see me hand out the leaflets or give applications around he will,fire
me and for me to stay out of here, and I said, thank you.
About a week or two after the above-quoted conversation, Leo Brown called the
sixth floor kitchen help together and read them a prepared statement to the
effect that the employees were at liberty either to join or not join a union and
that union membership was not a prerequisite to the keeping of their jobs.72 The
undersigned is 'convinced, and finds, that Vasil Athanis was discharged on
September 18, 1942, not because he violated the respondent's non-solicitation
rule, but because of his membership and activity in behalf of the Union. As
will be shown below, the record is abundantly clear that the respondent did
not enforce its rule non-discriminatorily, but only enforced it against members
of the Union. The record is equally clear that the respondent only re-
emphasized the rule against solicitation when the Union began its current drive
for members and that it was not applied with respect to "any solicitation" or
with respect to "any organization." In fact, McCarthy admitted that whenever
he received word that certain named employees were "soliciting" he "assumed"
it was "union solicitation" and that in each instance, he would immediately
instruct Burch to make an investigation. McCarthy, according to' his own ad-
missions, was not interested in whether the solicitation took place on company
time or on the employee's own time, as long as the solicitation took place on
company property. The manner in which the affidavits were secured and the
speed with which the employees were discharged, a departure from the respond-
ent's normal practice of getting "both sides" or "the attendant circumstances"
and not giving an employee "a -chance to tell his story," leads the undersigned
to the conclusion that McCarthy was not interested in impartially enforcing
the respondent's rule, but only in ridding the store of Union adherents.
Before the store opened for business on the day, Athanis was discharged,
September 18, McCarthy spoke to the employees over the public address
system." In this speech McCarthy stated, among other things, that because
there had been "a lot of comments and rumors concerning" the settlement of
September 14, he felt that the employees should know the facts, which he stated,
in substance, were: During the past several years the Board has refused to
72 McCarthy testified that the Union in its handbill, which was issued immediately follow-
ing the reading of the statement by Brown, had approved the statement, and because the
Union had approved it, the respondent since that date has been reading the following
statement to new employees
Employes frequently return to me after they have been at work a few days and ask
the question whether or not they must belong to, or join a Union in order to hold
their jobs here. They say they have been told positively that they must join the
Union or they will lose their jobs and they ask me whether or not this is true. This
is not true, the only thing that counts is how you do your work.
Regarding this statement, the Union, in its handbill of March 17, 1942, said :
FOR THE SKEPTICS
While we're at it, we want to report to the entire store what Mr Brown said
yesterday.
Mr. Brown, who is the manager of the Tunnelway restaurant, the 12th floor lunch-
room, the 6th floor tearoom, the soda fountains and the bakery counter, told us some-
thing we already know, but you might like to hear it again.
Mr Brown said that the Company was impartial regarding our Union activities.
If we wanted to join, that was alright with him- and the Company. No one would
suffer. As long as a person "did their work right" what they did about the Union
was their business.
We know this to be true already Mr Brown, since the U. S. Government protects
our right to join a Union.
73 This system is connected with loud speakers located throughout the store and the St.
Charles Street Warehouse.
1
FAMOUS-BARR COMPANY 1021
issue a complaint against the respondent, although urged by the Union to do
so; that prior to the issuance of the complaint on August 19, representatives
of the Board and of the respondent were discussing a proposed settlement of the
matter and while the discussions were taking place, the Board; without notice
to the respondent, issued the complaint ; that the respondent had agreed to
reinstate Leonard and Hanson, "the two boys who had been discharged for
loafing and smoking," before the Board had issued its complaint and thereby the
respondent had "acceded to the request which the Board had been making for
some time,-as we felt that since they had not been warned prior to their dis-
charge, they might be entitled to another chance" ; 44 that many weeks before
the issuance of the complaint "an attorney came to us in behalf of these
[night cleaning] women and while not denying the fact that the experimental
use of these night cleaning women had not been successful, asked us if we
should not, as a humanitarian measure, find some employment for them" 75 and
that, although the respondent could not reinstate these women to their former
jobs because they had been filled by men, the respondent agreed "in keeping
with the spirit of this request, to attempt to find day time positions for these
women in line with their abilities, and several of them had been offered day
time employment before" the complaint was issued; and that "the only things
we agreed to in the settlement which we had not already agreed to do", prior
to the issuance of the complaint, "were to post notices that we would not
violate the Wagner Act (which we expressly deny we have ever violated) and
to pay to the employees named in the stipulation" back pay. The concluding
paragraphs of the speech are as follows :
There has also been a good deal of confusion recently over rumors that
employees must join the Union or some particular Union in order to keep
their jobs.78 In order to prevent any misunderstanding I will repeat the
statement which still holds good and which is made to each new employee
at the time he is engaged. That statement is as follows :
Employees frequently return to me after they have been at work a few
days and ask the question whether or not they must belong to, or join a
Union in order to hold their jobs here. They say they have been told posi-
tively that they must join the Union or they will lose their jobs and they
ask me whether or not this is true." This is not true; the only thing that
counts is how you do your work.
74 He failed to state that Leonard and Hanson were induced by one of the respondent's
undercover operators to violate a rule so that the respondent could have a pretext for
discharging them. There is no evidence in the record that the respondent offered or agreed
to reinstate Leonard or Hanson prior to the issuance of the complaint.
75 McCarthy knew at that time that the attorney for the Union had made the request.
Apparently because he did not wish to give the Union credit for securing the reinstatement
of the cleaning women , he referred to the Union 's attorney as "an attorney ," thus giving
the employees the impression that these women had retained an attorney of their own.
7u There is no credible evidence in the record that there was any "confusion " or "rumors
that employees must join the Union or some particular union in order to keep their jobs "
McCarthy testified that he included that statement in his speech because numerous em-
ployees asked him , and that numerous buyers had told him that they had been asked
numerous times by employees whether it was necessary to loin a union to keep their jobs.
McCarthy could not recall the name of any employee who asked that question nor could
he recall the name of any buyer who spoke to him about the matter No buyer testified
that he had been asked that question by an employee . Neither did any buyer testify that
he had told McCarthy that he had been asked that question by any employee . No employee
testified that he had asked that question of McCarthy or of any buyer.
77 McCarthy could not recall the name of any employe who asked those questions. No
employee testified that they had consulted McCarthy about those matters.
1022 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
One thing further, as you know we have a rule which prohibits solicitation -
for membership of any kind on Company premises. We regret that it has
been necessary to dismiss certain employees for violating this rule and
trust that it will be completely observed in the future.
Toward the conclusion of McCarthy's speech and before the store was opened
for business, Thomas R. Brown, a salesman in the Men's Second Floor Hat
Department, who, together with W. B Jackson, the buyer for the Men's Shoe.
Department and a group of other second floor employees, had been listening
to McCarthy's speech, took from his coat pocket several union application cards
and according to Brown's testimony under cross-examination which the under-
signed credits, smilingly showed the cards to Jackson, who was about 15 or 20
feet away and who Brown knew was not eligible to belong to the Union, and
that Jackson laughed, shook his head, and declined the cards. Brown further
testified, and the undersigned finds, that he and Jackson "kidded one another
about it, it was done in a friendly manner, and not for solicitation, unless you
would call it that, jokingly. Like you know a fellow that don't smoke, you say,
`here, have a cigarette,' that's what I mean." He further testified under cross-
examination, which the undersigned credits, regarding that incident as follows :
By RESPONDENT'S AT't'oRNEY:
Q. In that incident we speak of the morning of September 18th, you took
out of your pocket these cards just about the time the, store opening?
A. It was a little previous, because that speech that they gave finished
at the time the store opened.
Q This talk was still going on?
A. Yes, I believe it was in the middle of the conversation of the addresse-
graph system. I don't recall who was speaking, but I believe the subject
was about union. I forget that, I don't know, that.
Q. And you took them out and you pointed the cards toward Mr. Jackson?
A. Yes, sir.
Q. And you said, "sign up," or words to that effect?
A. Yes, sir; I don't believe I ever said a word,-because I was too far and
that was going on and the people listening more or less, and asked him with
,a nod of the head or something like that if he didn't want one.
Q You were offering him a card?
A. That's right, and he refused.
Q. Did he say something to you?
A. No, we were a little too far apart to speak.
Q You just pointed the cards at him and he nodded his head, and that is
all there was to it?
A. Yes, sir. May I ask you, is that soliciting?
Q. Well, I don't think so, no. '
Jackson testified that he remembered seeing Brown, who was about,10 feet
away, listening to McCarthy's speech, but besides that he could not remember
seeing or hearing Brown do anything; that immediately after the speech one
of his salesmen, Irving Goldstein, came to his office and told him that he saw
Brown "flashing cards over" where the employees were listening to the speech ;
that he did not remember whether Goldstein told him that Brown said anything
at the time he was "flashing" the cards ; that he then telephoned McCarthy and
told him "Tom Brown was showing some cards after the speech, or something
to'that effect" ; and that McCarthy said he would look into the matter. Late
78 Prior to the hearing, Brown's testimony was taken by deposition at an army camp
located in Oklahoma.
FAMOUS-BARR COMPANY 1023
thataftern_ oon Brown was called to McCarthy's office and there was told by
McCarthy he was suspended for 2 weeks because he violated the respondent's
non-solicitation rule. Regarding what took place in McCarthy's office, Brown
testified under cross-examination, which testimony the undersigned finds to be
substantially in accord with the facts, as follows:
Q Now, in Mr. McCarthy's office when he stated to you on the afternoon of
September 18th that he had positive evidence that satisfied him that you
had violated this rule against solicitation, you did deny, did you, that you
had solicited anybody or violated the rule?
A. Yes, Sir.
Q And then when he said he had positive evidence, do you recall saying,
"well, those rats," or words to that effect?
A No, I do not, sir. However, now if you put it that way, I believe Mr.
Jonas " asked what evidence he had, and Mr. McCarthy said-I have for-
gotten his exact words-said it was from a reliable source and it was good
enough for him.
Q. What did you say? Do you remember making any reference to those
rats, or words to that effect?
A. No, Sir; I don't.
Q. Do you deny that you said that?
A. I don't believe I used that expression.
Q. Do you remember any similar expression to that?
A. Yes, I think I did say, "those dirty bastards," and by that I meant who-
ever it was who claimed I was soliciting.
Q. Did you have anybody specific in mind?
A. No, sir ; I didn't. What I meant was his reliable source of informa-
tion, was the ones I was calling, as you might have said, "rats" or "bastards."
Q. four meaning was they were incorrect? -
A. Yes, sir. Now, since you brought that out about that morning on
the addressograph system, it is all clear to me now.
McCarthy testified that on the morning of September 18, Jackson telephoned
him and said that Brown had been soliciting two of his (J'ackson's) employees
for the Union; that although, to quote McCarthy's words, "I never knew
exactly what he (Brown) had done because Jackson, called me up and said
Brown had been soliciting" and that without making any investigation, decided
to suspend Brown; that about 4: 30 that afternoon he instructed Jonas to
bring, Brown to his office and when they arrived, he said to Brown, "I have
certain information to the effect that you have violated the no-solicitation
rule, and I am going to have to suspend you for two weeks." To that, McCarthy
testified, Brown replied that he had been inducted in the Army and was then
on the 2 weeks' furlough which is customarily giveh to new inductees, and
his furlough would expire before the end of the 2 weeks' suspension, and Brown
wanted to know whether he would, get his job back after being discharged
from the Army; that he did not give Brown any direct answer to his question
but stated that, "You will be in the army" before the expiration of the suspen-
sion ; that Brown admitted he had been soliciting but added that it was "only
in fun" ; S0 and that the only acts of solicitation for which Brown was suspended
were those reported to him by Jackson that morning. Jonas testified that upon
79 Jules Jonas, the buyer for the Second Floor Mens' Hat Department and Brown's
superior
80 McCarthy testified "if one man asks another man to join a labor union and the asking
is a serious attempt to get the man to join a labor union, I would construe that as solicita-
tion." [Italics supplied l
618683-45-vol. 59-66
1024' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arriving at McCarthy's office, McCarthy asked Brown whether he could remember
reading and signing a notice, 81 to the effect that there shall be no solicitation on
company property and that Brown examined the notice which he admitted
signing ; that at first, Brown denied soliciting for the Union, but later admitted
it; that after admitting that he had solicited that day Brown called the persons
who informed on him "rats"; and that he did not recall McCarthy's reply to
Brown's question regarding his job upon being discharged from the Army,
although he remembered Brown asking it. Jonas further testified that he had a
lot of "good thoughts for Brown" and "had ideas of putting him somewhere"
but now he was disappointed with Brown because Brown had violated the
.respondent's rule against solicitation and that he was not sure whether Brown,
upon his return to the respondent's employ after his discharge from the Army,
would be the recipient of those "good thoughts" and "ideas". He further testi-
fied that in his opinion an employee would be violating the respondent's non-
solicitation rule even if the soliciting took place off the respondent's property.
Goldstein testified regarding Brown's actions during McCarthy's speech and
immediately thereafter as follows :
Q. Did you make a report to anybody that Tommy Brown, hat salesman in
the store, had solicited for the CIO Union?
A. Well, it seems to me we were all listening to a speech-
Q. My question is, did you make a report to anybody?
.A. I discussed it with Mr. Jackson in a casual way just like I did with
the boys.
Q. Where did you see Jackson to tell him about Tommy Brown?
A. In the department.
Q. Was this just another case where you were telling the boys what
happened and Jackson happened to be there? °'
A. I might have told it directly to him. I don't recall. I know at the
time it seemed there was a speech, and after the speech Tommy and I were
very good friends. I passed Tommy and he pulled out a card and said
"Here, why don't you join the Union?" and handed me a card. I thought it
was a sort of a joke, and mentioned it in the department. I might have said
it directly to Mr. Jackson or one of the boys. However, it was said, I said it,
but to whom I cannot recall.
Q. As I understand, it was a speech over the loud speaker system and
the employees gathered around the canteen there?
A. Yes, sir.
Q And Tommy Brown and yourself-was Jackson there at that time?
A Yes, sir, somewhere in the aisle.
Q. It was right after the speech, and Tommy .Brown pulled some CIO
cards from his pocket?
A. Yes, sir. i
Q. Was it before the employees had moved away from there, gathered at
the canteen?
A. As they moved away.
Q. There was a whole group of them there?
A. Yes, sir.
81 Presumably the notice of August 11, 1942.
82 As will be shown below, Goldstein's affidavit regarding Eva Stewart was the basis of
her lay-off on September 26 Goldstein testified that he did not inform Jackson that he
had been solicited by Stewart, but that he discussed the matter with some of the salesmen
in his department and that Jackson might have overheard him.
FAMOUS-BARR COMPANY 1025
Q. You say he pulled some of these cards from his pocket and waved
them in the air?
A. Just laughed and said "Do you want, a card?" or words to that effect.
Q. That was in the presence of a number of employees?
A. That is right.
Q. Or only in your presence?
A. There weren't many of us at that particular point. They were all
separated.
Q. Beginning to walk back to their own points?
A. That is right.
Q The bugle had not yet blown?
A. That I don't recall.
Q. In any event, you had not gotten back to the department, and were still
over in the Hat Department?
A. Yes, sir.
Q. Did Tommy Brown wave these in front of you any more than other
people standing around there?
A. No.
Q. You say you took one of them?
A. No, I did not. I knew what they were. He waved them around. He
did not seem to offer them to me, but waved them in the air.
Q. You are making a motion with your right hand, waving it back and
forth.
A. Yes, sir.
Q. He had some of these CIO cards scattered like he would playing cards?
A. That is right.
Q. Tommy was quite a joker, anyway?
A. That is right.
The undersigned finds that Brown's version of what took place on the morning
of September 18; to be substantially in accord with the facts and rejects Gold-
stein's version 83 The undersigned further finds that Brown's actions on that
morning, considered in the light of McCarthy's testimony regarding the respond-
ent's interpretation of its rule, were not violative of the respondent's rule against
solicitation. Furthermore, even assuming that Brown's actions that morning
can be construed as solicitation, it did not take place on company time. More-
over, when McCarthy laid off Brown he did not know Goldstein's version of the
events of that day because Goldstein admitted that it was not until some months
later that he was questioned about the incident. The undersigned finds that
Thomas R. Brown was laid off on September 18, 1942, because he was a member
of the Union and active in its behalf. The facts regarding Brown's lay-off clearly
show the respondents hostility toward the Union and its members because
McCarthy merely upon being informed by Jackson that Brown "was showing
some cards after the speech, or something to that effect" peremptorily decided
to lay off Brown for 2 weeks. McCarthy's actions in' the Brown case shed light
upon the true motives of the respondent with respect to the discharges discussed
herein, including the lay-off of Eva Stewart on, September 26.
sa In its brief the respondent states that "obviously Goldstein testified as a Board's wit-
ness under great apprehension" because the Union's handbills, without mentioning their
names, denounced him and the other affiants as being informers. Goldstein certainly did
not, while on the witness stand, appear to be an intimidated cowed witness. In fact,
he impressed the undersigned as being friendly to the respondent, and in fact attempted
to create the impression that Brown actually violated the respondent's non-solicitation
rule.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 19, the respondent posted three copies of a notice in the store
which stated, among other things, that the respondent would not engage in
the acts which, by the stipulation of settlement, it agreed not to do "
On September 24, the respondent posted throughout the store, the St. Charles
Street and the Spring Avenue warehouses, 22 inch by 28 inch placards reading
as follows :
NOTICE
Your attention is directed to our long established rule and custom which
prohibits solicitation on our premises for membership in any organization.
Failure to observe this rule will result in disciplinary action.
FAMOUS-BARR Co.,
Sept. 24th 1942.
Throughout the month of September, several of the employees were falsely
accused by the respondent of violating the rule against solicitation. For example,
Catherine Ottomeyer, a saleslady in the Basement Corset Department for the
past 18 years, testified without contradiction, and the undersigned credits her
testimony, that she joined the Union on September 17, 1942, and 2 days later
was called to McCarthy's office where McCarthy said that it had come to his
attention that she had solicited for the Union ; that McCarthy then read to her
the non-solicitation notice of August 11, which had been circulated while she was
on her vacation ; that at McCarthy's request she signed the notice ; and that
the interview ended when she 'told McCarthy she had not solicited. Harry
Gunthorp, a day porter in the respondent's employ for upwards of 7 years, testified
credibly and without contradiction, that he joined the Union in March 1942,
and that in the fore part of September, Becker, the supervisor of the porters,
called him to his office and stated that it had been reported to him that he
(Gunthorp) had been soliciting for the Union; that it was against the respond-
ent's rule to do so ; that the next time Gunthorp was caught soliciting he would
be discharged ; and that the Interview ended when Gunthorp denied the charge.
Capitola Juergins, a saleslady in the House Furnishings Department for approxi-
mately 2 years,'5 testified without contradiction, and the undersigned credits her
testimony, that she joined the Union on September 16, 1942, and that 2 days before
joining the Union she was called to Mr. Zupan's office , the buyer of her depart-
ment, and there, in the presence of Zupan, Assistant Buyer McElvaney showed
her a letter which came from the respondent's executive offices and which stated
in substance, that it had come to the respondent's attention that Juergins had
been soliciting for the Union on company time and property and that if she
again violated the respondent 's rule she would be discharged. According to
Juergins the interview concluded in the following manner :
I told them it was wholly untrue, that 'I had not been soliciting for the Union,
in fact I was not a union member, I said, but as far as talking union, we
do talk union, not only I but practically everyone who eats breakfast in the
lunch room talked about the union, for it or against it. We discussed it both
ways, that is every morning. I said, as far as soliciting I could not very well
solicit for something I was not a member of myself. So Mr. Zupan came
around and patted me on the back and said, "Now, Miss Juergins, what you
do on your time, your own time is entirely your own business and we have
"'Similar notices were posted on the same day in the St. Charles Street and Spring
Avenue warehouses . On September 24, a fourth copy of the notice was posted in the
store.
as Juergins worked intermittently for the respondent from sometime In 1929 to August
1941, thereafter she was employed steadily.
FAMOUS-BARR COMPANY , 1027
nothing to say against that" and then Mr. McElvaney he was very apologetic'
for having called me in and asked if I held any ill feeling against him or Mr.
Zupan for having called me in and read the letter to me and I told them, no,
I knew it was their work and they had to do it.
Herbert Robertson, a porter in the respondent's employ for upwards of 6 years,
testified without contradiction, and the undersigned credits his testimony, that
he joined the Union in January 1942, and that sometime in September of that
year he was accused by Becker, his supervisor, of soliciting members for the
Union; that when he denied the charge Becker said, according to Robertson, that
he "heard I gave out some cards to some girl around there . I told him I did.
He said , `What were you doing with the cards if you were not soliciting votes?'
I said , she asked for the card and I gave them to her but I was not soliciting" ; "
and that the conversation concluded with Becker saying, "if you are not soliciting,
that is all I have to say, the company will not stand for that, if I catch you soli-
citing . . . it will probably cost you your job." &4
In its handbill of September 25, the Union charged, in effect, that the en-
forcement of the non -solicitation rule was not directed against "any organiza-
tion" but was directed against it because the respondent permitted the Welfare
Association not only to solicit members but annually allowed the candidates for
office therein to solicit votes, distribute campaign literature, and to make cam-
paign speeches on company time and property. The handbill also called attention
to the fact that the respondent through the medium of the "Store Chat", and
other ways supported the Welfare Association. The undersigned finds that, the
respondent, in fact, allowed the Welfare Association to solicit members on com-
pany time and property, to hold its annual elections on company time and
property, to allow candidates for offices in the Welfare Association to solicit
support on company time and property, permitted the candidates and their fol-
lowers to parade throughout the store, before and after store hours, during pre-
election campaigns and allowed the candidates to hold campaign rallies in the
employees' lunch room during store hours. The respondent also allowed the
Welfare Association use of the respondent's bulletin boards, while denying that
privilege to the Union. It permitted members of the Welfare Association to sell
tickets for social events conducted by that Association on company time and
property. It also allowed the Welfare Association to conduct a so called popular-
ity contest on company time and property. The Welfare Association received
financial and other support from the respondent and, as was found above, the
respondent utilized that association as a medium for discouraging membership in
88 According to McCarthy , to give a fellow employee a membership application card upon
his or her request is not a violation of the respondent ' s non -solicitation rule.
87 On October 3, 1942, Robertson was inducted in the Army At that time, lie was earning
$21.50 per week and some of the other porters were earning $23 . 50 per week. On February
1, 1943 , he was honorably discharged from the Army . Shortly thereafter he saw Becker
about getting his job back . Regarding this interview , Robertson ' s uncontradicted testimony,
which the undersigned credits, is as follows :
Well, first he asked was I coming back. I told him I was thinking about coming back.
He said, "You know it is up to you .", I said , " I know it." He said, "What are you
going to do ," and I said I was coming back provided he would give me a raise. He
said , "What did I mean, he could not raise me. He said he could not raise me as
long as I belonged to the CIO " I said, "I sent in my resignation to the CIO," and
he said, "If that is true I can give you a raise up to what the other fellows get."
I showed him I sent the letter in and showed him the return receipt and he said, "If
that is true I will give you the raise up to what the other boys are making "
Robertson was given his former job at a salary of $23 50 per week about a week after he
showed Becker the return receipt for the registered letter of resignation which he sent to
the Union on or about February 16, 1943.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union when it inaugurated its sick leave plan. The respondent also utilized
the "Store Chat" as a medium t6 discredit the Union.
On September 26, Eva Stewart, a saleslady and cashier in one of the re-
spondent's second floor "bargain squares" was called to McCarthy's office and
there McCarthy told her that she was suspended for 2 weeks for violating the
non-solicitation rule. Stewart was first employed by the respondent in 1937 and
during the tenure of her employment held various sales jobs At the time of
her lay-off she was selling merchandise in a "bargain square" located on the
second floor between the Men's Shoe Department and the Boys' Clothing Depart-
ment. Stewart, W. B. Jackson, the buyer for the Men's Second Floor Shoe
•Department, and numerous other witnesses testified, that it was not unusual for
Jackson, his assistant, Albert Van Doern, and the various salesmen of the shoe
department to joke and converse with. Stewart when she and those employed
in the shoe department were not waiting on customers These conversations in-
cluded, among other topics, discussions regarding the Union and unions in general
Stewart testified, and the undersigned finds, that sometime in August, while
she was in her "bargain square" Jackson came over to her and during the
conversation which ensued Jackson asked Stewart what she thought of the
Union and advised her that he was one hundred percent in favor of it and that
Stewart should sign up as many employees as she could. Stewart also testified,
and the undersigned finds, that on several occasions she overhead Jackson tell-
ing other officials Se of the respondent that in his opinion it was useless for the
respondent "to fight" the Union because it "would get in regardless of what"
the respondent did. Stewart also testified, and the undersigned finds, that
Jackson, sometime in August, "used to come up and ask me what my salary
was and what my salary would be if the Union got in. I told him and he asked
about vacations, about what hours we would work and I told him, and he told
me it was okay, he was 100'%o in back of it." Regarding another conversation
Jackson • had with her in August, Stewart testified, and the undersigned finds,
that Jackson asked her what salary she received when she was first employed
by the respondent and when she told him, he "whistled" and said "that was
awful" and when she told him her present salary' he said it was inadequate '
Toward the close of business on September 26, Stewart was called to McCarthy's
office where, according to the credible testimony of Stewart, McCarthy told her
that she was being suspended for 2 weeks because she had solicited on company
time and property "the people in the `boys' clothing department, the men's shoe
department, and had spoken to the men in the men's underwear department"
about the Union; that•she told McCarthy that she could not remember soliciting
any one but that she had been solicited by the Photo Reflex 'Department and
various other photograph departments to have photographs of herself made,
and various outside magazine salesmen ; that McCarthy replied that she should
have reported the magazine solicitation to her floor manager and that the photo
solicitation was not objectionable since those departments 81 were connected
with the store; that she asked McCarthy "why he was picking on me" and that
8 Assistant Superintendent Healey was one of the officials to whom Jackson , according
to Stewart , spoke about the Union.
89 When Stewart was first employed her salary was $12 per week. At the time of the
aforesaid conversation it was $17 per week plus commissions.
80 Jackson denied that he ever had any conversation with Stewart regarding unions or
that he ever told her that he "was one hundred percent in favor of the union , and that
she should sign up as many as she could ." The undersigned found Jackson an evasive and
unreliable witness On the other hand, Stewart was a forthright and honest witness.
The undersigned finds that Jacksonvmade the-statements attributed to him by Stewart.
91 These departments are known as "leased departments."
FAMOUS-BARR COMPANY 1029
McCarthy replied, that she was not the "only one, that there were going to be
a few more in the next two weeks" ; and that before she left McCarthy's office,
he told her, "to stay out of the store [during the period of her suspension and
during that period], not to talk to anyone in the store, not to eat in the lunch
rooms anywhere near the store where [the employees] ate, not to go into any
of the lunch rooms in the store, or-rest rooms, and not to talk to anyone" she
"knew in the store." McCarthy testified that a day or two before Stewart was
suspended Jackson telephoned him and said that Stewart had been soliciting ;
that he thereupon requested Burch to investigate the matter; that on the day
he suspended Stewart, Burch handed him two affidavits 02 and that after reading
the affidavits, he decided to suspend Stewart for 2 weeks ; that later that day
he called Stewart to his office and when she arrived the following took place : -
Well, I asked her, in the presence of Mr. Mullins 09 if she had signed the
notice on August 11, 1942, and she said she had. Then I asked her if she had
solicited members for the union on store time and property and her answer
to that was yes, she had discussed the union favorably04 with,men in the
men's shoe department, several girls in the bargain square department, and
said possibly she had such conversations with employees in the Men's Under-
wear Department, apd in the Boys' Clothing Department She did not deny
that these conversations took place on store time and property.
McCarthy admitted that he told Stewart that he did not want her to enter
the store during the period of her suspension 90 . He testified, however, that he
could not remember that during the interview Stewart told him about being
solicited by magazine and picture salesmen. The undersigned accepts as sub-
stantially correct Stewart's version of what took place at that interview.
On the witness stand, Stewart admitted that on the day before her suspension
she was conversing on company time and property with Irving Goldstein, a
shoe salesman, and during the conversation the question of unions was brought
up, and she asked Goldstein either "Why don't you join" the Union or "Would
you go over to the Union office with me and find out the benefits for the Shoe
Department?"; that Goldstein replied that he would go to the Union's head-
quarters that day during his lunch hour ; and that the following day, after
having ascertained that Goldstein did not keep his promise, she again asked
him to go with her to the headquarters. Goldstein, the maker of one of the
affidavits upon which McCarthy based his decision to suspend Stewart, testified
that Stewart, on the day before her suspension , asked him "to go over and
join the Union, or words to that effect" and that he told her that' he was not
"interested at the time, or something to that effect." He added that later that
day he repeated her remarks to a group of employees in his department and
that Jackson was among those present; that on the day Stewart was suspended
he was called by Jackson to Assistant Superintendent Healy's office and there
in the presence of Healy, Burch, and possibly Jackson, an affidavit concerning
the facts regarding Stewart's solicitations on September 25 and 26, was pre-
pared ; and that before signing the affidavit he said to Jackson that he did
02 The affidavits were made by Irving Goldstein , and W. V. Hannah , two salesmen in the
Men's Second Floor Shoe Department.
w Mullins was Stewart ' s floor manager and superior , who attended the meeting at
McCarthy's request. ,
94 While being questioned regarding the respondent ' s interpretation of its non-solicitation
rule, McCarthy testified that it is not a violation of the rule for.employees to discuss on
company time and property the pros and cons of unionism.
Duringthe period of suspension this direction deprived Stewart of the employees' regu-
lar 10 percent discount on purchases she might have made in the store during that period.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not want to sign the affidavit if, by so doing, it would "cause any ill feeling
with anyone" and that Jackson replied, "Oh, there is nothing to it, they just
want to reprimand her for doing that and there will not be any dismissal or
anything like that." Jackson testified that on the day prior to Stewart's lay-off,
Goldstein and Hannah came to his office and told him that Stewart had
solicited them- for the Union and that he immediately reported that fact to
McCarthy. Stewart was not reinstated until October 12. Under the circum-
stances of this case, the undersigned is convinced, and finds that Eva Stewart
was laid off on September 12, 1942, and refused employment until October 12,
1942, because of her membership in the Union and her activities in its 'behalf.
On September 29, George Lorey, a salesman in the Men's Furnishing Depart-
ment, was called to the office of Superintendent of Operations Brandau, and
there in the presence of Abe Levy, assistant buyer for the Men's Furnishing
Department, McCarthy asked Lorey whether he had the respondent's authority
to approve exchanges of merchandise, allow customers to charge merchandise
and take the merchandise with them, or to allow employees the regular 10
percent discount on sales. When Lorey stated he had no such authority and
that he never exercised that authority, McCarthy stated, according to Lorey,
"I intended to call you up this afternoon and suspend you for two weeks for
Union activities, but now I am going to fire you for forgery " Regarding this
interview McCarthy testified that he asked Lorey whether he had authority
to use a "blue pencil"" and when Lorey replied in the negative the following
ensued :
I [then] asked him if he had used a blue pencil for an authorization within
the last three or four days and he said he had not And then I asked him
if he had used a blue pencil in the last three or four days and with that
blue pencil had written the name of any superior on a transaction which
he had handled himself, and he said he had not. And then I said to him
substantially this: "I received information within the last few days that
you had solicited one of the employees of the store on store time and on
store property to join the union,-and I had that information investigated
and in the course of that investigation I discovered that you had forged
the name of Mr. Blank, the floor manager of the department to a sales
transaction which you had handled yourself." I said "that if the investi-
gation had disclosed that you had solicited an employee on store time and
property to join the union I would have suspended you for two weeks, but
in view of these other circumstances that I ,have discovered , I am discharging
you effective today."
The credible evidence shows that on Saturday , September 26, Lorey sold em-
ployee Marguerite Goebel 97 a shirt for her fiance . Instead of securing the
approval of one of his superiors , Lorey allowed Goebel the 10 percent discount
and signed the name of the doorman of his department on the sales check.
Lorey testified that he signed the floorman 's name to the salescheck because he
did not see any supervisor in the department and no supervisor answered his
call88 He also testified that he. knew the purchaser to be an employee and
entitled to the discount . He further testified that on a great many occasions
he and other salesmen in his department granted employees the 10 percent
90 A blue pencil is carried only by supervisors in the sales departments of the store.
All approvals of exchanges, sales, and the like are approved by a supervisor who signs his
or her name on the sales slip with a pencil with blue lead.
97 Also referred to in the record as Marguerite Goebel Resinger.
When a salesperson wants a sales check approved by a supervisor he calls "Okay."
FAMOUS-BARR COMPANY 1031
discount and signed the name of some supervisor to the check ' It was admitted i
by Lorey that while Goebel was waiting for the shirt to be wrapped, he asked
her whether she or any other employee in her department was a member of
the Union and when she replied in the negative he told her, that she should
become a member and he then handed her three or four membership applica-
tion cards, saying that all the salespeople in his department were members of
the Union except four and that he thought those four would join eventually.
According to Goebel's affidavit, she had the the following conversation with
Lorey while waiting for her package :
[Lorey] asked me if anyone in the Basement was joining the Union and
I told him I did not know anything about it. Ile said, "they are silly, they
don't know what they're missing." He said: "We're all Union here but
four (4), and I asked what was wrong with the four. He said they were
blockheads, adding "we'll get them before long." He said : "Here, I'll give
you some cards-pass them around amongst the people down there" and
I just slipped them in my purse-I didn't even look at them. I asked him :
"What will I do with them?" He said : "Pass them amongst the employees
down there. They can't do anything about them."
The undersigned finds that George Lorey's discharge on September 29, 1942,
was not violative of the Act and that the respondent discharged him for signing
without permission, the name of a superior to a sales check, thereby taking upon
himself the authority to approve a sale of merchandise at a discount. The
undersigned will accordingly recommend that the complaint with-respect to
Lorey be dismissed.
In its handbill of October 1, the Union announced that that night there would
be a meeting of "All main floor and main floor balcony" employees after' work.
The handbill also advised the employees that the Union would soon announce
its plans for a meeting of all the respondent's employees, and due to the excellent
work of the Master Committee the Union would, in the near future, be the repre-
sentative of the majority of the respondent's employees, and that the two meet-
ings which the Union had held during the past week were extremely well attended.
On October 3, before the store opened for business, McCarthy delivered the
following speech to'the employees over the public address system :
There are two subjects of importance to our co-workers about which I will
speak briefly this morning. They have been the subject of spoken and posted
bulletins heretofore, but it seems advisable to refer to them once more.
First, I(regret the necessity of again calling attention to the violation of
our rule against solicitation for memberships on company time or property.
It has been necessary recently to discharge or suspend several employes be-
cause of this violation. Up to now employes have been individually warned
before being discharged, but by this time it seems to us that this rule should
be sufficiently well known to everyone to make it unnecessary for us to give
any further individual warnings, and accordingly all are advised that any
solicitation on company time or property will be cause for discharge without
further notice. If anyone should annoy you by violating this rule, please
report it promptly, to your immediate superior.
Second, a number of our employees have recently asked a question which
has come up before, namely, whether or not they are required to join a Union
or a particular Union in order to keep their job here. The answer to this
09 Lorey's statement that other salesmen in the Men's Furnishing Department granted
the regular employees ' discount and signed the name of some supervisor to the sales check
is not supported by the record.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question is still "No!" " This answer is the same as it always has been and
always will be in this store. The only thing that counts now, and the only
thing that ever will count, in this store is how you do your work. Member-
ship or non-membership in a`Union or any other organization is not and will
not be a condition of your employment in this store, and any rumor or state-
ment to the contrary is absolutely without foundation "'
The Union in its handbill of October 5 announced that it would hold a store-
wide meeting on the evening of October 7 at a named hotel located near the
store. The handbill further stated :
On Saturday [October 3] President Roosevelt issued' an anti-inflation
order " Within that order, we Famous-Barr' employees can still raise our
earnings ! We can still substantially raise our wages and commissions.
The order permits and encourages increased earnings in four specific
cases-all of which apply to we employees at Famous-Barr.
1. Increased earnings are encouraged in order to eliminate sub-standard
conditions. And who can deny that at'least 90% of us at Famous receive sub-
standard incomes?
2. We must buy 10% worth of bonds and stamps to aid the war effort.
But the President realizes that our earnings must be half-way decent to do
so. So provision is made for increased earnings to "aid in the effective prose-
cution of the war." Morale is important too in this people's war. And
morale cannot be maintained unless people have a decent standard of living.
That of course includes us at Famous. %
3 Increased earnings are permitted to correct "gross inequalities." W6
at Famous receive much smaller incomes than those at CIO department
stores This is a gross inequality and the order encourages its elimination.
This also applied to some departments at Famous who might think that be-
cause they earn more than the rest of us they can't attain a higher income.
Under this clause they are encouraged to seek greater earnings.
4. A leading purpose of the anti-inflation order is to freeze incomes to
$5000 a year, cut others down to $25,000 a year and "prevent profits which
are unreasonable and exorbitant." So where profits of certain firms, and
officers' salaries and bonuses are unusually big (as at Famous-Barr for ex-
ample), increased earnings for the employees are encouraged to share the
profits over a larger group and thus prevent inflation.
Thus, President Roosevelt, is, as'always, a great man remembering the
plight of the sub-standard earner who wants to play his part in a "little
people's war." We at Famous can and do look forward to increased' earn-
ings ! So let's get that CIO contract before the holidays ! Attend the gen-
eral meeting on Wednesday ! Only a Union can improve your earnings.
Join today.
On October 6, before the store opened for business, the respondent's vice
president, treasurer and general manager, Fred Z. Salomon, spoke to the em-
ployees over the public address system. He prefaced his remarks with a
statement that the management had carefully studied President Roosevelt's
Executive Order of October 3, and that with respects thereto he had the follow-
100 McCarthy could not recall the name of any employee who asked that question. No
employee testified that he asked that question of McCarthy.
101At no time did the Union state that it was its intention to demand a closed shop.
101 The Executive Order of President Roosevelt , issued on October 3 , 1942, which, among
other things , sets up the machinery to "freeze" certain wages , is commonly known as the
"anti-inflation order."
FAMOUS-BARR COMPANY 1033
ing to say : (1) Despite the "determined effort made earlier in the year [by
persons not connected with the respondent] to change" the work hours of the
employees , the respondent opposed that move because it knew the employees
"are almost unanimously opposed to it" and from its observation of the ex-
periences entailed by retail stores in other cities it was convinced-that the plan
of staggering hours did not accomplish the purposes for which the plan
was recommended and therefore the respondent would not, unless forced to
do so by some future government regulations, change its store hours; (2) that
the respondent would not change the work hours per week of its employees unless
some future "governmental restrictions" compels it to do so; (3) that there
will be no change in the respondent's policy regarding paid vacations unless
some future governmental regulations decree otherwise ; (4) that the respondent's
"present liberal sick-leave-pay plan which has been so much appreciated and
which helped over 400 employees during its short history since February 13th,
will continue in the future according to the present rules"; 103 (5) that there
will be no change regarding the payment of supper money and overtime; (6) that
all supervisory positions, except one, left vacant by persons going into military
service have been filled by the promotion of some store employee and that that
practice will continue whenever possible. Salomon then quoted verbatim, Sec-
tions 1 and 2 of Title 11 of the President's Order of October 3, which states, in
substance, that all increases or decreases in wages must receive approval by
the National War Labor Board before being put in effect and that that Board
may not approve any increase in wages which prevailed on September 15, 1942,
"unless such increase is necessary to correct maladjustments or inequalities," to
eliminate sub-standards of living, to correct gross inequities, or to aid in the
effective prosecution of the war. To prove the point that the President's Order
prohibited the respondent from, granting wage increases to its employees, except
in individual cases where promotions are made or where changes in working
conditions and new obligations, or to the individual employee transferred, or to
beginners who are working under the autolhatic salary increases, Salomon quoted
from a news article which appeared in a St. Louis newspaper of October 4, under
the headline "Pay Inequalities Defined by WLB " That article quoted in part
the majority opinion of the WLB in the matter of anyapplication to raise the
wages of 90,000 employees of the Chrysler Corporation. The portion quoted
by Salomon is as follows :
. . . differences in rates are not necessarily inequalities in rates. On the
contrary, the wages paid in American industry are normally characterized
by all sorts of differentials created for many different reasons. Under any
sound program for stabilizing wages in this time of war it must be presumed
that well established differences in wages are not inequalities.
Salomon failed, however, to quote the entire excerpt of the opinion which
appeared in the news item. The balance of the excerpt is as follows :
This approach was accepted by the board in considering the question of
North-South differentials in the textile cases Such an approach is par-
ticularly to be followed when such differences in wages have been estab-
lished by collective bargaining procedures.
103 Only members of the Welfare Association may participate in this plan. According to
the announcement made on February 13, the plan was to exist only to December 31, 1942,
"or until further notice." The record does not show whether the Plan has been extended
beyond December 31, 1942, unless this statement of Salomon ' s can be construed as
extending the Plan.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One must not interpret the above-stated presumption, however, as an
indication that established differences in wages can never become inequali-
ties. They may be subject to adjustment if they become inequalities which
must be rectified in the interests of full production of war goods. The
point is, however, that.a showing of an inequality in wage requires much
more than a showing of differences.
More important, however, than failing to quote the entire excerpt was Salomon's
omission to inform the employees that the WLB granted the 90,000 Chrysler
employees a 4-cent an hour wage increase which amounted to approximately
$7,488,000 a year. In his speech Salomon also quoted the following portion
of a news article, appearing in the same newspaper, wherein the reporter who
wrote the article, sought to interpret the effect the President's Order would have
on future wage increases: 104
Labor sections of President Roosevelt's unprecedented economic control
order today removed, for the first time in American history, the freedom of
employers and trade unions to negotiate wage contracts without recourse to
government.
The order, in general, overruled the protests of both the AFL and the CIO
in that it set up an "economic czar" in the person of James F. Byrnes and
gave him the power to veto wage advances ordered by,the National War
Labor Board if either the board or Leon Henderson, federal price adminis-
trator, feel the boost would necessitate an increase in a price ceiling.
Salomon failed to read to the employees the two paragraphs which followed.
These paragraphs are as follows :
The exact effect of the ruling on the WLB wage policies was not clear at
once, because a number of exemptions and 'provisions in the President's
overall order make it appear that the "toughness" of the wage controls would
depend almost entirely, upon the toughness of Byrnes in dealing with the
problem.
Some persons believe it significant that the presidential order did not give
formal recognition as a national policy to the WLB's "little Steel" formula
under which industrial workers, in general, are entitled to wage increases
totaling 15 percent to cover added living costs between January 1, 1941, and
May 1, 1942. However, it was indicated at the WLB that this policy would
continue in the absence of a directive from the President or Byrnes to the
contrary.
Salomon also omitted reading the following paragraph of that article which
appears under the sub-heading "May Permit Increases" :
The board may permit boosts above the September 15 level if such increase
"is necessary to correct maladjustments or inequalities, to eliminate sub-
standards of living, to correct gross inequalities, or to aid in the effective
prosecution of the war." Such general language indicated that the regula-
tion will mean whatever its administrators say.
Later that day, October 6, McCarthy had posted throughout the store, at places
where notices to the employees are usually posted, a page from a St. Louis evening
newspaper of that day. The page was so marked so as to call the employees'
104 It is significant to note that the article is dated "Washington , October 3," the date
of the President's Order.
FAMOUS-BARR COMPANY 1035
attention to an article headlined "WLB Approval Not Needed For Some Raises."
The opening paragraph of that article 105 reads as follows :
A salaried worker earning less than $5,000 a year who is not covered by a
collective bargaining agreement can be given a raise without War Labor
Board approval, officials said today.
Later in the article the following appears :
A salaried worker earning less than $5,000 can be granted an increase by
his employer without obtaining WLB approval, provided the employe's
salary is not determined by collective bargaining. In cases where the salary
is fixed by collective bargaining, increases cannot be granted without WLB
approval, unless such increase is obtained by the individual.
McCarthy testified that he ordered the article'posted because it was the "one
I understood the best and I thought if I could understand it, other people
could." He also testified that he ordered that particular article posted so as
to give,
our employees as much information as possible about the subject of wage
stabilization. It was a matter that they had great concern about for a
number of days, perhaps a number of weeks, uV to the time the President
issued the executive order, which I think was October 3. There had been
radio commentators and newspaper articles and suggestions that wages were
going to be frozen instead of stabilized. Then the executive order was
rather difficult for people to understand. I know that was true of my own
case, and there was a lot of concern about the whole thing in the store and
people were concerned and worried and upset, and we did what ever we
could to reassure them as to the exact terms of the wage stabilization
order. . . . practically everybody I talked to, for days and weeks before
the order came out, and on Monday, October 5, I don't think anybody talked
to me about anything else. I heard it from department managers, in-
' dividuals and from people in my own office, and everybody was talking
about it and everybody was concerned.
He further testified that after the article appeared in the newspaper he referred
all persons who inquired regarding stabilization or freezing of wages to the
article. Viewed in the light of McCarthy's antipathy to the Union as shown
by the speed with which he discharged union members allegedly for violating
the non-solicitation rule, as the record discloses, the undersigned finds that the
newspaper article was posted, not as McCarthy stated, for the purpose of
enlightening the employees regarding the true meaning of President Roosevelt's
Executive Order of October 3, but for the purpose of pointing out to the em-
ployees that those earning less than $5,000 a year could be given a wage in-
crease provided they were not covered by a collective bargaining contract. Irre-
spective of the truth of the article, it is manifestly clear, and the undersigned
finds, it was posted for the purpose, and was reasonably calculated'to have the
effect, of discouraging membership in the Union. %
On the following day, October 7, Salomon again spoke to the employees over
the public address system and told them that he was glad to announce the
cessation of "malicious destruction of merchandise and equipment" which
started early in September 1941,108 by "a small number of employes on our
regular payroll." He further stated that the/"evidence was inescapable that
101 The article is dated "Washington, October 6."
106 The Union started its current drive on or about August 20, 1941.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of these acts of wanton destruction were not perpetrated by depraved
evil-doers mingling with our legitimate customers during business hours. Cir-
cumstances indicated beyond any question of doubt that a very few of our
fellow-employees were taking shameful advantage of the trustfulness and
cooperation with which we work together. Camouflaged by their acceptance
into our ranks they found underhand opportunities, while working behind the
scenes and outside of customers' business hours, to damage, deface and destroy
the property, the merchandise and the public good-will from which we all earn
our living." Salomon asked the employees "to look at the record" in order
that they might be cognizant of what transpired during this year of "terrorism."
Salomon then said the record was as follows :
From the first of September last year to the thirty-first of August this
year, there were no less than 113 recorded cases of deliberate destruction
of property or deliberate attempts to destroy public confidence in this
institution. These malicious acts were perpetrated with various techniques.
There would be a large number of similar acts of vandalism in rapid suc-
cession, then that particular sort of thing would die out and a large number
of similar cases of a second sort would be discovered, then a third wave of
another sort, and so on.
Let me be more spfccific. In September, October, November and December,
innumerable articles were found to have been deeply cut and slashed with
some sharp instrument, probably employing a safety razor blade. These
articles, all of them rendered unsaleable of course, included items as diverse
as men's clothing, ladies' dresses, rugs, bed spreads, mattresses, shirts and
ladies' handbags.
In January there began an epidemic of foreign articles in food. Only one
case was reported of a foreign article in food served in the Employes'
Lunch Room, most of, the remainder were discovered by customers in the
Sixth Floor Restaurant, and a few in `the Tunnelway. These foreign
articles included, first, pins and broken glass (and I do not need to elaborate
on the inhuman viciousness of the persons who were guilty of that) ;
second, small pieces of rock, nails and pebbles ; and finally such disgusting
things as dead insects and human hair. During the two months of January
and February more such cases were reported than had previously been
reported in the whole history of the store, and since last March there
haven't been any.
In January' of this year the first of a series of costly, and potentially
dangerous attempts was made to interfere with or damage the various
water supply systems of the store buildings. One such act, alone, a tank
overflow on the Twelfth Floor, caused damage amounting to over $16,000.
Two attempts to break° a water main which would have flooded the base-
ment were averted' by the vigilance of our night watchmen.
In the month of February there was a new plague. This took the form
of writing and marking on the walls of toilet rooms, passageways and
stairway walls with black wax crayon. The subject in a deplorable num-
ber of cases were obscenities of the vilest kinds, in other cases consisted of
Nazi designs and inscriptions The appearance of both the obscenities and
the Nazi inscriptions stopped suddenly in March, and for a little over, two
weeks there was not one report of any sort of vandalism, the longest such
break in these attacks between September, 1941 and July, 1942.
These successive works of destructive technique have been punctuated
from time to time by numerous incendiary fires. Happily, 'due to the
FAMOUS-BARR COMPANY 1037
alertness of loyal and observant 'employes , these fires were extinguished
before they had attained serious proportions and wreaked the damage to
life and property anticipated by the criminal calculations of those de-
generates who planned and executed them. It must be emphasized that
the location of these incendiary fires, and the time of day at which they
were set, are proof positive in many cases , or presumptive evidence in
many others, that they were set by despicable and disloyal vandals who
had access to the service sections of the store under the cloak of their
assigned duties as bona-fide employes.
Time forbids a complete catalog of even the various types of these atrocities,
but a few of the most vicious single incidents not heretofore mentioned
include : The main conveyor belt running from the store to the Kingston
Building, was cut for a distance of 50 feet. Two sailors, home in St. Louis
on furlough, from the Pacific fleet, narrowly escaped serious injury or death'
when a heavy glass inkwell was thrown from an upper window on the Sixth
Street side as they were passing on the sidewalk below.
The inkwell struck the edge of the canopy and shattered. By infinite
mercy the flying fragments of glass did not injure anyone but a flake of iron
rust, chipped off the metal of the canopy, pierced the eyeball of one of the
sailors and had to be removed by surgical operation. That atrocity received
the immediate attention of the F. B. I.
A smoking stand was thrown from an Eighth Floor window which struck
a woman on the sidewalk below. By a miracle she was not killed, but 58
stitches had to be taken in her scalp at the,City Hospital and she is still,
of course, suffering from the effects of this homicidal act
At the hearing, Salomon and Zytowski testified that they and others, including
the Federal Bureau of Investigation, the St Louis Fire and Police Departments,
each made intensive investigations immediately after the discovery of the acts
of vandalism referred to by Salomon in his speech and that none of the investi-
gations disclosed who committed the acts. In fact, both Salomon and Zytowski
testified that at no time were they ever able to ascertain whether the acts of
vandalism which Salomon said in his speech of October 7 were committed by
"these fifth columnists in our own ranks" were, in fact, committed by any em-
ployee Moreover, in a law suit brought by the husband of the woman who was
struck on the head by the smoking stand which was thrown out of one of the
respondent's windows, and referred to by Salomon in his speech as "this homi-
cidal act," the respondent defended the action on the ground that nobody con-
nected with the store as an employee or representative had anything to do with
throwing that smoking stand out of the window Zytowski testified that accord-
ing to his investigation, the smoking stand was thrown out of the window by
a customer. Regarding one of the "atrocities" referred to in Salomon's speech
whereby two sailors, "home in St. Louis on furlough from the Pacific fleet, nar-
rowly escaped serious injury or death when a heavy glass inkwell was thrown'
from an upper window", Zytowski testified that from his investigation he was
unable to ascertain whether the inkwell had accidentally fallen or was inten-
tionally thrown from one of the windows of the Credit Department or from a
window of a concern that occupies several floors above the respondent's store
and which has no connection with the respondent 10' Zytowski further testified
that the Intelligence Department of the United States Navy also made an inves-
107 Similar inkwells are used by the respondent's Credit Department and by this other
concern.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tigation but it, too, was unable to ascertain where the inkwell came from or
whether it fell by accident or was thrown intentionally 108
Regarding Salomon's reference to "a series of costly, and potentially dangerous
attempts was made to interfere with or damage the various water supply systems
of the store buildings", Noel Spanagel, the respondent's Chief Engineer, testified
as a witness for the respondent as follows :
Q Do you recall now any other unusual incidents in conection with your
work?
A. Yes, Sir. On January 11-I am right sure of the date because that
was the date of the first overflowing of the large water tank on the twelfth
floor.
Q. January 11 of what year?
A. 1942. I will have to mention another incident because the date sticks
in my mind. That was on Sunday, on the Sixth Street side, that fire stair-
way, and there was a return steam line that had frozen. One of the win-
dows was found open on the stairway.
Q. What was found open?
A. A window. Going back to the water tank, it overflowed and did, I
would say, an enormous damage. We investigated that rather thoroughly
and could not find anything mechanically wrong with it, with either the
pump or the controls. That tank overflowed three 'other times besides
that, in sequence, causing other damage. At all times we made a rather
strict investigation because I had reported these to Mr. Salomon and he
was very much perturbed and worried about it, and so was I. We decided
after the fourth one to put a watchman there day and night, which we did,
and it stopped.
He further testified that he and the other engineers could never ascertain why
the tank overflowed on any of the four occasions because the control switch "was
clear and clean" and the float switch was never "stuck."
Regarding the "numerous incendiary fires" referred to by Salomon in his
speech, Spanagel testified that,the.most serious one occurred one Sunday morning
in the latter part of December 1941. Regarding this fire his testimony is as
follows :
A.' . . . The Fire Department and Salvage Corps came in. After-
wards we made an investigation and found that the strip decorative lights,
one group of them that was behind one of the panels had apparently been
taken off and was leaning up against some of the other display-that is, the
scenic display but not the merchandise in the window and the heat of the
lamps had started the fire.
Trial Examiner MYERS. Is this one of the show windows?
A. Yes, sir, at Sixth and Olive, the big one on the corner. As I say, it
was on a Sunday. The doors were apparently locked. The investigation,
so far as I was concerned, showed the window display had been set over
Saturday night.
109 Before the respondent was cognizant of the fact that the sailor was injured, the
accident had been reported to the concern that occupied the several floors above the re-
spondent's store and that concern sent the sailors to an eye doctor. Zytowski testified
that the sailors were hurried to the eye doctor for treatment because they "had to leave
right away because they were to go to a training camp and were just [in St. Louis] between
trains."
FAMOUS-BARR COMPANY 1039
By Mr. TucKEu :
Q Was there some damage there on that occasion?
A. Yes. I do not know the amount, but considerable damage. One of our
more serious window fires.
The ' next fire, in point of seriousness, that occurred between September 1941
and August 31, 1942, was, according to Spannagel, the "fire in the escalator
which was probably caused by a cigarette falling through the stair steps." "a
Regarding the other fires that occurred during the period referred to by Salomon,
Zytowski testified that they were all too trivial to report to the respondent's
fire insurance companies. The undersigned finds that Salomon's speech was
calculated to and had the effect of linking the Union with the alleged acts of
vandalism and sabotage, thereby discouraging membership in the Union.
On the evening of October 7, the Union held its store-wide meeting and the
Union's handbills which were distributed the following morning carried the
following announcement :10
Last night's Store-Wide Meeting exceeded all expectations ! The De Soto
Hotel Ballroom was packed with an enthusiastic, determined audience.
Action taken by these 500 Famous-Barr CIO members marks the beginning
of a stretch drive for A CIO CONTRACT BEFORE THE HOLIDAYS!
The CIO Famous-Barr Unit has grown up. Temporary:. officers were
elected to lead the stretch drive toward a new era in Famous-Barr.
Clarence Udt, popular Second Floor salesman, was elected Chairman.
Nora Wahl," Basement Hosiery, and Ruth Marchand, Eighth Floor Toys,
were elected to'share the office of Recording Secretary. These three officers
will serve until a full set of officers are elected for the first year following
signing of the first CIO contract.
1OD Spannagel testified that this fire was "only a small smoking fire" and it was not
necessary to call the City Fire Department to extinguish it but his men had some difficulty
in putting it out because the lock in the lower "access door" was stuck because some one
had put pins in it. His men then got to the fire by means of another "access door."
Regarding who put the pins in the door, Spannagel testified as follows :
By Mr. HACKLER :
Q. What I am getting at, any customer in the store could walk over and touch that
lock ?
A. Yes, sir.
Q. And would have to walk just a few steps from where they would have to use the
escalator?
A. Yes, sir.
Q. Or any kid could go over and stick pins In it?
A. Yes, sir.
By Mr. HACKLER :
Q. Could you tell from what you saw as to whether a customer or'employee had put
these pins in the lock?
A. Oh, no.
110 The undersigned makes no finding with respect to the truth or the falsity of the
statements contained in the Union 's handbills offered and received in evidence as Board's
exhibits. They were not offered for that purpose.
111 Wahl testified without contradiction , and the undersigned finds, that she has been
in the respondent's employ for approximately 12 years, the last half of which she has been
a saleslady in the Basement Hosiery Department ; that on September 19 or 20, a few days
before she joined the Union, Carl Williams, the buyer for her department, called her Into his
private office and asked her if she had joined the Union, and when she replied that she
had not decided as yet, Williams told her "it is not going to do you any good" to join
the Union because "wages are frozen as of September 1" ; and that when she inquired of
Williams as to whether she would be deprived of the dollar raise which was given her a
week previous, Williams replied the respondent "might do that."
618683-45-vol. 59-67
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
At the aforementioned store-wide meeting, union buttons were distributed to^
the members." The next morning practically every member of the Union, who-
reported for work that morning, wore his or her button. Evelyn Kramer, a credi-
ble witness, testified without contradiction, and the undersigned finds, that on
October 8 she was a saleslady in the Basement Ladies' Shoe Department ; that
about 32 of the then approximate 35 salespersons in her department were mem-
bers of the Union and all were wearing their union buttons that day ; that shortly-
after the store opened for business she observed Floorman Beck go to various
salespersons in her department, speak to them and then jot something down on a
piece of paper; and that Beck then approached her, looked at her union,button,
and said, "I see you were at the meeting last night, too." When Kramer admitted
being there, Beck said, "What is the Union going to do for you?" To this remark,
Kramer replied, "if you were interested, why didn't you go last night?" Beck
made no reply, walked away, and wrote "something down on the same piece of
paper." According to Kramer 's further uncontradicted testimony, which the
undersigned credits, later that day while she and another saleslady were talking,
Lawrence Ukman, the assistant buyer for Kramer's department, came over and
told them to "break it up" and that Arthur Matthews, the buyer for Kramer's
department , said "if he catches anyone on the floor talking together, they will be
sent to the eleventh floor" without any question." She also testified that still
later that same day she was talking to a saleslady in an adjoining department
about some shoes for a customer and that when Ukman noticed them talking he
came over and again told them "to break it up." 114 Several other employees tes-
tified, and the undersigned finds, that on October 8, their supervisors looked at
their union buttons and then asked the employees what benefits they expected to
derive from the Union. Dorothy Rosciglione testified without contradiction, and
the undersigned finds, that on October 8 she observed Assistant Superintendent
Healey walk around her department and look at all the salesladies who were
wearing their union buttons and stand "at the end of the Pyrex table which faces
the main aisle and most of the girls that had their buttons on were in that sec-
tion near the Pyrex table, and he looked at each one of us that had buttons on"
and then Healey walked over to the floorman; said something to him , and de-
parted. Mrs. Bessie Case testified without contradiction, and the undersigned
finds that her testimony is substantially in accord with the facts, that she was first
employed as a "regular selling extra" 116 in August 1941; that from November to
December 24, 1941, she was on the respondent's regular pay roll and worked con-
tinuously during that period ; that from December 24 to January 2, 1942, she was
on leave of absence ; that from the latter date until about April- 1942, 'sbe worked
every Saturday and occasionally on other days during the week; that during the
Easter Season, which lasted approximately 2 weeks, she worked each work day;
112 At this meeting buttons were distributed to the respondent ' s salespeople The non-
selling employees had received their buttons many months before. In the record and in
this report , this meeting is referred to as the "store -wide meeting."
119 The expression "the eleventh floor" refers to the respondent 's executive offices
114 Prior to that day there was no prohibition against the salespeople talking to one
another providing they did not congregate or neglect their work.
116 "Regular selling extras" are employees who do not work on fixed days, but work
whenever the respondent needs them They may work a whole week or several days,
or 1 or 2 days a week or month . They are assigned to various departments or may be
shifted during the day. See The May Department Stores Company , doing business as
Famous-Barr Company and Department Stores Employees Union, etc , 46 N. L R B.
#305 These employees are usually employed on Tuesday of each week and on other
"sales days", and are hired before the respondent gives employment to new employees.
The vast majority of these employees do not wish steady employment but prefer, for
reasons of their own, to work occasionally only.
FAMOUS-BARR COMPANY 1041
that-from then until October 10, 1942, she worked on the average of 4 days each
week ; that some weeks she worked every work day ; 119 and that she was away
sick during the entire week ending October 10 and when she returned to work
that day she wore, for the first time, her union button on her dress. At the
close of business that day her time card was not marked, "Come back Monday"
as it had been marked each Saturday for a good many weeks previous 114 Not
hearing from the respondent regarding employment within 3 or 4 days, Case went
to the employment department and spoke to the person in charge of hiring the
regular selling extras and, according to Case's undisputed testimony which the
undersigned credits, the following conversation took place:
. . . "What is the matter, don't I work here anymore?" She [the person
who hires the regular selling extras] said "Why, I guess so ." I said, "I
thought maybe something was the matter." She said, "No, there is nothing
the matter." I asked how come I had not been called in, and then she said they
had not been using as many extras as they had been in the department, that
they were using very few extras at the time. I told her my boy had left and
I was more interested in work than I had been before for he had contributed
to the family support. She told me at that time if I could find steady work any
place I had better take it, for they did not know just when they would
use me again.
Case then saw Mr. Diekhaus, the manager of the floor on which Case's department
was located, and asked him why she had not been given work. Diekhaus' answer
was substantially to the same effect as the answer given to Case at the employ-
ment office." Case was never recalled by the respondent or given work until
116 Case testified , and the undersigned finds, that she "lost very little time between
Easter and the 10th of October," the day she was discharged . Except for a period of
about'3 weeks, Case worked exclusively in the Ladies Blouse Department between April
and October 1942.
114 The lack of this mark "Come back Monday", meant that Case was not to report for
work until notified to do so by the respondent.
I's On October 18, the respondent placed an advertisement in a St. Louis newspaper
reading in part as follows :
IF YOU WANT .. . PLEASANT, INTERESTING FULL OR PART TIME WORK
We believe we can find a position well suited to your talents . We have positions
of many kinds , both in our selling and non-selling divisions.
If your husband is in service , if you are just starting on a career , or if you want
to earn ' extra money , here is a splendid chance for work in congenial surroundings.
Chances for advancement are good, as many of our key executives started in posi-
tions such as we have open.
Come in and talk it over.
On. November 3, an advertisement of the respondent appeared in a St. Louis newspaper
captioned as follows :
MRS. HOUSEWIFE, WE HAVE A JOB FOR You!
Yes, jobs by the dozen . . . and not only for you . . . but for hundreds of alert
women who are anxious for full-time, part -time or short-hour ( 11 a. m. to 4 p. m.)
emplo3 ment !
On November 22, the respondent placed the following advertisement in a St Louis
newspaper:
WOMEN and GIRLS-17 to 50!
Earn those EXTRA DOLLARS you need and be of REAL SERVICE to your community !
WORK DURING THE Busy CHRISTMAS SEASON ! . . . and help keep the necessary
channels of trade open during these days of emergency !
Right now we are interviewing applicants for interesting holiday positions all
through the store. These vacancies have been created by those who have left our
10}2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometime during the course of the hearing when the respondent reinstated her
to her former or substantially equivalent position. Case was not given e}nploy-
ment after October 10, until her reinstatement, despite the fact that about
3 weeks previous to October 10, her daily wage was increased from $2 50 to $3.30
The undisputed credible evidence shows that Case's superior, Sol Smuckler, on
several occasions praised her work and also told her that he could depend upon
her work while he was unable to depend upon that of some of the regular
salesladies in his department. McCarthy testified that Case's name was probably
taken off the regular extra list because he read in the A. F. of L. handbills, which
were distributed to the employees in the front of the store, that the A. F. of L.
had secured employment for Case. The record shows that the A. F. of L. secured
a job for Case in a Five and Ten Cent Store in St. Louis on October 23,1 but
Case was only able to retain this job for 3 days because her work entailed
climbing too many stairs each day. McCarthy further testified that Diekhaus told
him that Case had applied to him for work "some time after he had seen this
A. F. of L." leaflet. The undersigned does not give any credence to McCarthy's
testimony that if Case applied for or wanted work after October 10, he would
have been "happy" to give it to her. She did apply to the respondent for work.
She was refused employment. At the same time, the respondent was advertising
for help, even for inexperienced help. McCarthy admitted that Case is an
experienced saleslady. Upon the entire record in this case, the undersigned is
convinced, and finds, that the respondent sought to rid Itself of a union member
by refusing to give employment to Bessie L. Case. McCarthy's statement that
Case's name was removed from the respondent' s list of regular selling extras
because of the announcements contained in the A. F. of L. handbills is not cred-
ited. The A. F. of L. had not secured employment for Case until 13 days after
-October 10.
Margaret Jennewein testified without contradiction, and the undersigned credits
her testimony, that from September 1941, to October 1942 she had worked as a
regular extra, except for a few months during the Christmas season of 1941,
when she was on the regular pay roll ; that from some time in January 1942
she was employed in the Ladies Blouse department' and worked three or
four times a week and occasionally worked "two weeks straight" ; that on the
average she worked 4 days a week ; that until the week of October 10 her daily
-wage was $2 50 at which time it was raised to $3; that she joined the Union
on September 19, and wore her union button to work for the first time on October
10, the last day she was given work by the respondent until sometime during the
employ for the armed services and the war production lines. There are many oppor-
tunities for every ability and for every taste. Of course we are particularly inter-
ested in filling positions , as saleswomen , but there are also many jobs as typists,
stenographers , clericals , wrappers , inspectors, etc.
1. If you are a housewife who can spend a day or two in our store each week . . .
we have a job for you.
2. If you have had some experience and would like to return to business for the
Christmas season to renew your experience and earn extra money . . . we have a job
for you.
3. If you are prevented from working a full day, but you could work from 11 A. M.
to 4 P. M. . . . we have a job for you.
If you are interested in these suggestions . . . or even if you have never given a
thought to working, visit our Personnel Office on the 11th Floor NOW. One of our
interviewers will gladly talk over the opportunities we can offer you. .
119 Regular extras are paid on a daily basis.
120 Case was notified by the A. F. of L. on the night of October 22 that a job was
awaiting her.
122 This is the department where Case worked from April to October 10, 1942.
FAMOUS-BARR COMPANY 1043
nearing in the present case, when the respondent offered her reinstatement and
she accepted . The credible evidence shows that Jennewein was an excellent
saleslady and that Schmuckler praised her work on several occasions , and once
told her that her selling ability was 100 percent ; that , around October 1 Schmuckler
offered to put her on the regular pay roll, but Jennewein declined the offer ; that
about 3 or 4 weeks after October 10 , and not having received word from the
respondent to report for work, Jennewein applied at the employment office for
work and was told that the respondent did not need help because business was
slack, and when Jennewein stated, "That 's funny. You have been having an ad
running in the paper ," and that she knew people were being given employment,
the lady in charge of hiring regular selling extras replied that she would notify
Jennewein when she was wanted ; that about a month later Jennewein again
applied for work and was told by the lady in charge of hiring regular selling
extras that she would notify Jennewein in about 2 weeks to report for work.
Jennewein was never notified . McCarthy testified that he could not recall
whether Jennewein ' s name was removed from the regular extra list by one of
his assistants or whether he himself had removed her name from that list.
He further testified that during the hearing he inquired of the people in his
office as to whether Jennewein ever sought work after October 10, and that
no one could recall Jennewein 's doing so The undersigned is convinced, and
finds, that Jennewein ' s name was taken off the respondent 's regular selling extra
list on October 10, 1942, and thereafter she was refused employment because
the respondent sought thereby to rid itself of a union member.
According to the respondent 's records , June King worked in the respondent's
store as a demonstrator' for various concerns that were conducting demonstra-
tions in the store from December 9, 1931, to October 10, 1942, except for a short
period in 1937 and another short period in 1933, when King was in the employ of
the respondent as a saleslady . In the latter part of September 1942, Norman
Handel, one of the respondent's buyers , made arrangements with the manufacturer
of certain ladies ' scarves to resume the demonstration which that manufacturer
had conducted in respondent 's store from October 1941 to April 1942. In
accordance with these arrangements , the demonstration was opened on October
5 and King , who had conducted the demonstration the previous year , was again
selected as demonstrator , with the respondent 's approval '23 On the same day that
King started the demonstration , October 5, she joined the Union . On the following
day, she wore her union button to work and when the assistant buyer of the de-
partment in which King worked saw King 's union button , she looked at King and
remarked "Well," turned , and walked away. On Saturday , October'10 , King re-
ceived aletter from the manufacturer for whom she worked , and whose offices are
located in New York, telling her that it was "impossible" to continue the demon-
stration "due to the shortage of merchandise ." That afternoon King saw Handel,
who had returned that day from a buying trip and who had seen the manufacturer
of the merchandise King was demonstrating several days previous , and told
him about the letter and Handel replied, "Is that so ?" Then King said to
'2R A demonstrator , whose main function is to promote the sale of merchandise that is
being demonstrated, is employed and paid by the firm winch conducts the demonstration
and not by the respondent . The merchandise is sold to the respondent on consignment ;
that is, the respondent is billed for the merchandise which is shipped to the store in the
same manner as all other merchandise With respect to demonstrated merchandise how-
ever, the respondent has the privilege of returning the merchandise whenever it so desires.
Demonstrators employed in the store are under the discipline of the management and are
subject to the same rules and regulations that govern other employees . They likewise enjoy
the same privileges extended to employees.
123 All demonstrators must receive the respondent 's approval before they are permitted to.
go to work in the store.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Handel, "It is funny they are closing and just starting, do you know anything
about it?" to which Handel replied that he did not. Before the close of business
that day, King spoke to a representative of a concern that was demonstrating
ladies' turbans in the respondent's store and inquired of her whether she still
needed a demonstrator,-` and when the representative replied in the affirma.
tive, King told the representative that her scarf demonstration was closing that
day and that she would like to demonstrate the turbans, and the representative
then said that is "wonderful" and agreed to hire King. King then went to Handel
and told him that she was hired to demonstrate the turbans. To this Handel
replied, according to King, whose testimony the undersigned credits, "Oh, no,
no, I am going to close that demonstration, she [the manufacturer's representa-
tive] is not doing so good." King also testified that Handel said before leaving
her, "You cannot take it, I don't think I will keep her [the representative of
the turban manufacturer] here, she is not doing so good." Later that day,
King met the turban manufacturer's representative who told King that Handel
said that if she hired King "or anybody else without his consent he would
throw the demonstration out . . ." King left her demonstration that evening
October 10, but the demonstration was not closed for about a month thereafter.
In fact, the respondent's records show that after October 10, it ordered and paid
for one large and two small' shipments of scarves. Victoria Pronay, one of the
respondent's employees who worked in the "square" while King was demonstrat-
ing the scarves, testified without contradiction, and the undersigned finds, she
demonstrated the scarves for about a month after King left.
On October 16, King went to the respondent's employment office and there saw
a Miss Dammrich, one of McCarthy's assistants who has authority to hire
salespeople. Regarding what transpired at that interview, King testified without
contradiction, and the undersigned credits her testimony, as follows :
Q. What was your conversation with her (Miss Dammrich) on that
occasion?
A. I told her my demonstration closed the Saturday before that and
I would like to get on in the store as a regular clerk.
Q. What did she say?
A. She said, "Well, you know you will not make as much as you did as a
demonstrator." I said, "I know that, but I think I can make it up in com-
missions, I have that much faith that I can sell and make up the difference
in commissions."
Q. What did she say?
A. She said, "Well,'we will just take your application now, we will let
you know." She said, "I have your record on file, I will let you know."
McCarthy, despite his admission that as a general rule demonstrators have a
greater selling ability than the average salesperson and his admission that in
the fall of 1942, the. respondent's shortage of salespeople was more acute than
it had been in the previous 10 years, testified that it has been the respondent's
policy for a good many years not to engage unemployed demonstrators for jobs
as regular salespeople because "the tenure of employment of such people is
usually rather short and they frequently leave us without any notice whatso-
ever." No documentary evidence was submitted by the respondent in support of
McCarthy's testimony. McCarthy testified that the respondent passes upon
the amount of compensation paid the demonstrators because the respondent does
not desire their salaries to be "out of line" with the salaries paid its employees.
He further testified that the demonstrators are paid, as a rule, 10 or 20 percent,
144 This representative had ,a few days previously asked King whether she knew anyone
who would like a job demonstrating turbans.
FAMOUS-BARR COMPANY 1045
'or perhaps 25 percent, higher wages than ordinary salespeople because of certain
.risks which are incident to their jobs, such as the demonstration closing without
notice. The undersigned finds that the respondent refused employment to June
King on October 16, 1942, and thereafter refused to hire her because she was
a member of the Union. It is inconceivable that the respondent would refuse
to hire an experienced saleslady like June King, if it did not have some ulterior
motive, while at the same time, advertising for help to work part-time. The
advertisements requested people who had no previous experience to apply to
the respondent for work. The undersigned further finds that the respondent on
October 10, 1942, caused June King's discharge as a demonstrator. He further
finds that the respondent, in regard to its employment relationship to King, is an
-employer within the meaning of Section 2 (2) of the Act 126
According to the uncontradicted credible evidence, Ruth Moore was first
employed as a saleslady by the respondent on December 1, 1942, and worked
intermittently thereafter until she was discharged on October 15, 1942. Since
1940, she worked during the Spring and Summer Seasons as a saleslady in the
Garden Furniture Department and when that department closed for the season,
usually around the middle of August, she would resign, or obtain a leave of
absence, and then return in the latter part of October or the early part of
November and work in the Toy Department 126 until the personnel of that depart-
ment would be reduced, which was usually around the middle of January of the
following year. Around August 1, 1942, when business in the Garden Furniture
Department was becoming slack, Moore asked B. W. Owens, the buyer for the
Garden Furniture and Toy Departments for a leave of absence for 2 weeks
because, as she explained to Owens, she had some private business which she
wanted to attend to. Owens replied, "I cannot leave you have it. We have the
Jubilee Sale 124 coming up. I am going to open the trains 128 up around the 1st
of September and Tony 128 is not here this year for he is working in a defense
plant and yoij will have to work straight through and I cannot let you go."
On August 21, Moore, together with the vast majority of the Toy Department
employees joined the Union.130 On the following Friday evening, August 28,
Owens said to Moore, "I am going to close garden furniture tomorrow night . . .
there is no business here" and that Moore should take a leave of absence for
about 2 or 3 weeks "or maybe longer" claiming that he did not know when the
electric train section would be ready and that he would advise Moore when to
return to work. That evening, at the Union's headquarters, Moore discussed
Owens' decision as to her lay-off with the Union's officials and with some of the
members who worked in the Toy Department. It was there decided that the
next day Moore should inform Salomon of Owens' decision because the electric
train section was already in the process of being erected and the Jubilee sale was
126 It is clear from the facts found above that the respondent exercised a controlling voice
in decisions as to the hire and tenure of employment of demonstrators . They could not be
hired without the respondent ' s approval , and could be discharged upon its disapproval;
they, were subject to the same rules and regulations applicable to the ordinary employees
and their wages were to some extent regulated by the respondent 's desires . Cf. Butler
Bros. etc., 41 N. L. R. B. 843, aff ' d as mod , 134 F (2d) 981 (C. C. A. 7).
122 The Garden Furniture and the Toy Departments are adjacent to each other.
121 The Jubilee sale is an annual 10-day event and one of the largest " sales" the respond-
ent conducts.
128 Referring to toy electric trains , such as are sold during the Christmas season. It
usually took abc ut 2 weeks to arrange this display.
120 Referring to the man who in the past had charge of the toy electric trains during
the Christmas Season. Moore, when she worked in the Toy Department , was Tony's
helper.
120 As found above, the mass enrollment into the Union by the vast majority of the
employees of tl.e Toy Department was the subject of serious concern to the respondent.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then in progress.' The next day, Moore decided to discuss the matter with
Owens before seeing Salomon and, when the opportunity presented itself that
morning, she told him that she did not understand why he was laying her off
when he had just -hired four girls who never worked -in the store before: To this,
Owens replied that he did not intend to change his decision about laying Moore
off that night. Later that morning, Owens called Moore to his office and told
her that she should remain in the Toy Department until the saleslady who was
then on her vacation returned.13'
Sometime around October 1, Moore spoke to Owens about getting a raise in
wages of $1 a week because some of the other girls in the Toy Department had
been given a similar raise.' Owens promised to grant her the requested in-
crease. She did not receive it. On each of three succeeding pay days she told
Owens that she had not as yet received her increase, and each time he would
say, "I will see about it and I will take care of it for you." On October 14, when
Moore told Owens that she had not received her increase, he looked at her, then
at the union button she was wearing, and said, "You are not going to get" any
raise in salary. The next day, October 15, Moore was called to McCarthy's
office. According to Moore's testimony the following occurred there:
When I walked into the office Mr. McCarthy was sitting there and he said
"Have a seat." I sat down. He said, "Miss Moore, you are no longer an
employee of the Famous-Barr, you are discharged." I asked him what for
and he said, "There is no need telling you, you know, you have been soliciting
for the union." I said, "Well, can you prove that?" He said, "I don't have
to prove it, I have enough evidence on you " So with that he tossed my pay
envelope to me across the desk and I left it lay there. I said, "Well, I think
you ought to have to prove that, I don't think it is right to fire people like
that." He said, "I don't intend to argue with you or discuss it at all, you are
fired and when you leave the store I don't care about your coming back in
the store, even as a customer." He said, "Of course, this is a public place,
we cannot keep you out but it would be awfully embarrassing to have to
put you out ; if you do come into the store to buy something, don't talk to
any of the sales girls, annoy them in any way, or don't go to the employees'
lunch room or rest room." I kept sitting there, lie finally invited me to the
door and I had no choice but to leave.
McCarthy testified that several days prior to October 15, he was informed by
Owens that Moore had been soliciting for the Union and that he thereupon
requested Burch to make an investigation; that on October 15, Burch handed
him the affidavit of Fred B Meckfessel ;' and that on the basis of the facts stated
in Meckfessel's affidavit, and without discussing the facts with Meckfessel, he
decided to discharge Moore and called her' to his office and the following tran-
spired there:
Well, when she came in I told her I had satisfactory evidence she had
been soliciting for the union on store time and store property and that in
"'This sale was from August 24 to September 5, and the respondent hired, as was its
custom; extra sales help. In fact, a few days before Moore joined the Union, Owens
Inquired of Moore whether any of her friends or relatives would like to work for him
during this sale, and she testified that two of her sisters each, worked part of the time
during the week ending August 29.
132 Moore, however, was not assigned to the electric train section but to a section In
which she could not earn as much money as she would have, had she been assigned to
the electric train section. Three new salesladies were assigned, at about this time, to
the electric train section.
1"S At that time she was receiving $17 per week plus commissions.
FAMOUS-BARR COMPANY 1047
view of the notice that had been circulated on August 11th, and in view
of the public address announcements had been made earlier in October, that
I was satisfied she had due notice of the fact that was a violation which
would lead to discharge and I told her I was going to discharge her.,
McCarthy further testified that Moore denied that she solicited for the Union
and that he told Moore that he thought "it would be a good idea if she did not
come back into the store until she was in a better frame of mind.s13f Moore
testified without contradiction, and the undersigned credits her testimony, that
she and Meckfessel often spoke about the Union, she in its favor and he against
it ; 135 that on many occasions Meckfessel asked her for a union handbill ; ... that
none of their discussions regarding the Union took place on company time, but
before the store opened for business; that she often explained the benefits of
the Union to Meckfessel, but never asked him, in so many words, to join it; and
that she never had the conversations with Meckfessel which he attributed to her
in his affidavit. Meckfessel did not testify although he was in the respondent's
employ at the time of the hearing. The undersigned finds that Moore did not
solicit for the Union on company time and did not violate the respondent's non-
solicitation rule, even if the rule had been enforced indiscriminatorily. The
record discloses that the rule was enforced discriminatorily against the Union.
The undersigned further finds that Ruth Moore was discharged on October 15,
1942, because she was a member, and active on behalf, of the Union.
On the same evening that Moore was discharged, October 15, Eva Stewart,
who had returned to the store on October 12, at the expiration of her suspen-
sion'" was called to McCarthy's office, and there, according-to Stewart, the fol-
lowing conversation ensued :
Mr. McCarthy said he had reports I had been soliciting again, that he was
going to discharge me.
s * * a e * s
I asked him to prove it, and he said he did not have to. He said he had
ample proof and did not have to show it to me. I demanded he show it,
and he said he wasn't going to argue. He handed me my pay envelope with
a pink slip in it, and told me I could make purchases in the store if II
wanted to but so far as the company was concerned they would rather I
would get out and stay out. He also told me he could embarrass me if I came
into the store.
McCarthy testified that on October 13, Merchandise Manager Strassner informed
him that Stewart was soliciting for the Union and that he then requested
Burch to investigate the matter ; that after he had read the affidavit of Imogene
Hodge which Burch handed him on October 14 or 15, he decided to discharge
Stewart; that he based his decision upon the facts contained in the affidavit,
despite the fact he did not know Hodge or discuss the facts with her ; and that
131 McCarthy testified that at this interview Moore got "a li)tle displeased about the
matter." The undersigned finds that Moore's version of what transpired in McCarthy's
office when he discharged her is substantially in accord with the facts
135 It is not violative of the respondent's non-solicitation rule to talk in favor of a union,
even on company time, providing the employees do not congregate and neglect their duties.
136 It is not violative of the respondent's non-solicitation lute to distribute union literature
on company time and property, providing it does not interfere with the employees'
duties.
137 During the period of her suspension, Stewart, on about 10 occasions, distributed union
leaflets in front of the store, and, on occasion, handed copies of the leaflets to various store
officials. McCarthy admitted seeing her distribute leaflets during this period. .
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward the close of business on October 15, he called Stewart to his office and
the following took place :
... when she came in the office I told her I had proof in spite of her promise
to me and her knowledge of the rules, that she had been soliciting mem-
bership in the Union since her return, October 12, on store time and
property.
McCarthy also testified that Stewart denied the accusation. He further testi-
fied that he could not recall whether Stewart asked him what proof he had
that she violated the non-solicitation rule. The undersigned finds that Stewart's
version of the interview is substantially in accord with the facts.
Stewart testified without contradiction, and the undersigned finds, that several
days prior to her suspension on September 26, she had a conversation with
Imogene Hodge, which took place about 15 or 20 minutes before'the store opened
for business, and while she and Hodge were on their way to their respective
departments, wherein she asked Hodge whether she would join the Union
and try to induce the girls in her department to join, and when Hodge replied
that she would, Stewart handed her some membership application cards; that
on October 13, the day following Stewart's return to work, Hodge, who was then
on her lunch hour, stopped at Stewart's "bargain square" and there conversed
with Stewart for a short time, and before Hodge left,. Stewart asked her if
she had signed the card which Stewart had given her prior to September 26,
and Hodge replied that she was still undecided about joining the Union because
her father advised against it; that later that day Stewart, while on her relief
period," stopped at-Hodge's stand and asked her if she had signed the card and
when Hodge replied in the negative she left Hodge and returned to her "square";
that the next day, Stewart asked an employee named Mary, who had, while on
her relief period, stopped at Stewart's "square" to talk to Stewart, if she would
ask Hodge whether she had signed the card; that Mary later notified Stewart
that when she arrived at Hodge's stand she was not there ; and that on October
15, Hodge came to Stewart's "square" and handed her a signed application card.
Hodge did not testify. The undersigned finds that Stewart was discharged be-
cause she was a member of the Union and active in its behalf.
According to the respondent's' records, Dorothy Rosciglione was employed
as a cashier-wrapper from December 9, 1935, to July,15, 1939, and from October
9, 1939, to May 21, 1941, and as a saleslady in the House Furnishing Department
from the last stated date to October 16, 1942, the day she was discharged
McCarthy testified that several days prior to Roscigiione's discharge, Depart-
ment Manager Arthur Graef informed him that Rosciglione was soliciting for
the Union and that he immediately requested Burch to investigate the matter ;
that after reading the affidavit of Edward Neuber, which Burch handed him,
'he decided to discharge Rosciglione ; that he based his decision solely on the
facts stated in the said affidavit ; and that toward the close of business on October
16,,he called Rosciglione to his office and the following ensued :
I asked Miss Rosciglione if she had seen the notice of [August] 11, with
respect to solicitation. She said she had. I told her I had been reliably
informed that she had solicited employees of the company on store time
and store property and that I was going to have to discharge her.
Q: Did she ask you who the person was?
A. I beg pardon?
Q. Did she ask you who the person was she was soliciting?
A. Yes.
m Employees on relief periods may go anywhere in the store.
FAMOUS-BARR COMPANY
Q. What did you reply?
A. I did not tell her.
1049
11
Q. Did you ask her if she had solicited for the union?
A. No.
Q. Was anything further said by Roseiglione or yourself?
A. No, I don't remember anything else was said. She asked me who it
was she was supposed to have solicited and I told her I would not tell her
and I handed her her voucher and she walked out.
Regarding her conversation with Neuber, which took place in front of the em-
ployees' elevators on October 8,"" while both were on their lunch hour, Rosciglione
testified, and the undersigned credits her testimony, as follows:
Q. Did you say anything to him [Neuber]?
A. I was joking with him.
Q. What did you say?
A. Asked him where his button was.
Q. Did he have on a CIO button?
A. No, sir. .
Q. Did he have on a ten per cent button?
A. Yes, sir.
Q. Did you have on a CIO button?
A. Yes, sir.
Q. What did he say?
A. He laughed and joked back with me and flipped up the button and
said; "here's the one I have got."
Q. What did he point to when he said that?
A. The ten per cent war button.
Q. Did you say anything further to him?
A. I might say, I always joke with him and talk with him.
Q. Did you go up on the elevator with him?
A. Yes, sir.
Q Did you tell him that eventually he would be forced to wear one of
these buttons, and as you said that, point to your CIO button?
A. I probably (lid.
Q. Do you have any definite recollection one way or the other whether
you made that statement or not?
A. I cannot say positively, I said that I was in the habit of joking with
him, I have known him for more than four years.
Neuber did not testify. His affidavit, sworn to October 14, with respect to
Rosciglione, is as follows :
On the same (lay [October 8] about 10:30 a girl who sells in the House-
wares Department, and whose name is Dorothy, (and whose last name I am
told is Rosciglione) was formerly a cashier in Department 31 and has a
deep voice, asked me where. my button was. I had on my 10% button and
showed it to her. She said, "That isn't what I mean-I mean the C. I. O.
button." She also said that eventually I would be forced to wear a button.
The undersigned finds that Rosciglione was discharged because of her member-
ship and activities in behalf of the Union. It is to be noted that Neuber's affi-
139 Roseiglione was discharged on October 16. Graef reported her conversation with,
Neuber a few days prior to the 16th.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
•davit does not indicate where the conversation with Rosciglione occurred. The
undersigned has found above that it took place while Nueber and Roscighone
were waiting for the employees' elevator to go to the employees' lunch room and
while they were on their lunch hour. It is not within the respondent's province,
as will be shown below, to restrict the union activities of its employees while they
are on their own time. Moreover, the respondent's non-solicitation rule was not
enforced indiscriminatorily.
Hyman Schneider, a salesman in the Paragon Shoe Department,lp from
September 1940 to October 17, 1942, was paid 7 percent commission on all sales
he made with the privilege of a $25 per week drawing against accumulated com-
missions. On October 5, Schneider joined the Union at a meeting held by the
Union for the salesmen of the respondent's various shoe departments. He at-
tended the store-wide meeting and the next day wore his union button in the
lapel of his jacket while at w,uork. Several days later, according to the un-
denied credible testimony of Schneider, Miss Myers, the buyer for the Ladies'
House Dress Department, which department is adjacent to Schneider's, noticed
the union button Schneider was wearing and said to him "You joined the
C. I. O. too, Mr. Schneider?", and when Schneider admitted that he joined the
Union, Miss Myers stated "that to the best of her knowledge any union organiza-
tion could not do very much good." About 2 or 3 days later, Schneider and
Marcus Rice, the merchandise manager for all the Men's Shoe Departments,
had the following discussion, according to Schneider :
This took place about 9: 30 o'clock or a quarter to 10: 00 in the morning,
so far as I can recollect. I happened to be combing my hair momentarily
there, and as I did that Mr. Rice seemed to come from nowhere and seen
me do that and approached me and reprimanded me for doing that on the
floor. Of course I at the time knew I had done something that possibly
should not have been done, but Mr. Rice went further to reprimand me at
the same time for wearing the CIO button, telling me that presumably
those were the kinds of manners that were tought at those meetings. Natu-
rally I was aroused myself, and told him I did not believe that the combing
,of one's hair had any particular bearing on the wearing of a CIO button.
One word led to another, and Mr. Rice became very violent in his speech
toward me, and told me he could not see no reason in the world why some-
body did not take me out and break my neck, or words to that effect.
Naturally I resented that, and told Mr. Rice if he was dissatisfied with my
work or whatever I did there he had the right and privilege as the head
of the department to fire me. Mr. Rice then told me I wasn't working
for him but for Mr. Heller,"' and he did not particularly care whether I
worked there or did not.
In the course of the conversation Mr. Rice made a remark that he did
not quite understand nor did he ever understand why the agitators in the
store of Famous-Barr were invariably of Jewish descent. Of course, being
Jewish I more than resented the remark and told him so.
By Mr. HACKLES :
Q. What did you tell him, do you recall?
A. Yes, I told him I didn't believe he would repeat those words in the
presence of Mr. Salomon or Mr. May. Mr. Rica then said "Don't you believe
I won't, for I really don't care who hears what I have to say." With that
1+o This department is also known as the Fifth Floor Men's Shoe Department.
1u Heller is the buyer for the Paragon Shoe Department and Schneider's immediate
superior.
FAMOUS-BARR COMPANY ' 1051
he told me to "go back and peddle my papers." Those were his exact words.
Trial Examiner MYms. Is Mr. Rice Jewish?
A. Yes, sir, he is. I know that for a fact.
Regarding this discussion, Rice, who referred to Schneider, among other things,.
as being a "grease-ball," testified as follows :
When I spoke to him about his combing his hair, he tried to turn the subject
away from the main issue to some other thing, which probably, although
I will not state that specifically, might have something to do with unionism,
or something to that effect, which I have no interest in. Schneider had-we
had several bad reports on his behavior, and my experience with him had
been he was smirky, officious chap, who invariably when asked a question,
by me would turn to something else. I personally did not approve of him,
although it was none of my business. I usually let the men who run the
department handle the help. My job is just merchandising. At the same
time, I am perfectly willing to talk to any employee working in the depart-
ment I merchandise, if he has something to talk to me about that is legitimate
or a grievance, or anything of that sort.
I am frank to confess my personal feeling toward Schneider was un-
friendly and had been for some time. It is possible I might have gotten
angry, as I did on one or two more occasions when I asked specific ques-
tions and when he evaded the answers to them and started on some other
track.
I did not attach very much importance to this thing. It was just one
of those occurrences . Until this came up, I did not even remember the
exact words or how the conversation turned.
By RmPoNDENT's ATTORNEY:
Q. Do you recall the substance of your remarks to him on the Jewish
question?
A.. That would involve my own bias about the Jewish question, if you.
want it in this testimony.
Q. Just a question of what you said to him.
A. What I said to him was substantially that a certain type of Jewish)
boys are always in the forefront upsetting and making a show of them-
selves, which casts a reflection on their race and setup. I thought it was
very unfortunate that Jewish boys who are specifically recognizable as
such would act in a manner that would cast general discredit upon the
race as a whole. There is no doubt about that,, and that is my feeling
and he is a specific example of it.
Q. To what conduct on his part did you have reference?
A. Obstreperous, show-off conduct. Being unnecessarily aggressive in.
adhering to rules and discipline, and feeling that he is an individual not
subject to the same laws that other people who work in the department
are. They are dissatisfied , they do not adhere to the rules, they think in,
their case there should be some specific dispensation. There is a tendency
on the part of some of those boys to do too, much talking. Their general.
manner and general behavior in the department-I am not talking about
all Jewish boys, but this particular type-are too aggressive and it tends,
to put them in a very unfavorable light, in my opinion.
The undersigned finds ,that Schneider's version of his conversation with Rice,
to be substantially in accord with the facts. The undersigned further finds
that Rice made the statements attributed to him by Schenider. Several days.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the above mentioned conversation , Rice told Schneider that since his sales
warranted it he was going to recommend to McCarthy that Schneider be allowed
to increase his drawing account from $25 to $30 per week." Schneider replied
that be did not particularly care to increase his drawing account ,- but would
like to have an increase in commissions from 7 to 8 percent 143
During the morning of October 17, McCarthy called Schneider to his office
and said, according to Schneider , whose testimony the undersigned credits,
that Mr . Heller, the buyer for the Paragon Shoe Department , had recommended
that Schneider 's drawing account be increased to $30 and from his examination
of Schneider 's )sales record the proposed increase was warranted . Schneider
told McCarthy that he did not care to increase his drawing account because
be preferred to receive his commissions in one large sum . McCarthy then told
Schneider that he used good judgment in coming to that conclusion because by
allowing his commissions to accumulate he would be in, a position to put aside
some of 'his earnings for the future ."" Later that day, October 17, McCarthy
again called Schneider to his office and there, according to Schneider , and the
undersigned credits his testimony , the following took place:
Mr. McCarthy asked me if . I knew there was a company rule against
solicitation . I.told him I did . And he told me it had been brought to the
company's knowledge that I had been soliciting for a union organization
and that it was his duty to discharge me. And he handed the a pink slip,
-which was a discharge slip ; a slip which one gets his pay with . I asked
Mr. McCarthy if he could prove the accusation and he told me that he could
when the time was right for it , and I said to him , "Mr. McCarthy , don't you
think I am entitled to a little more explanation on the matter , you don't
just fire people in that manner, I don 't believe," and Mr . McCarthy told
me that anything he had to say further would be said elsewhere, he had
nothing more to say to me at the time and he seemed very resentful at
the time.
McCarthy testified that during the morning of October 17, Heller , the buyer,
informed him that Schneider was soliciting for the Union and that he imme=
diately requested Burch to investigate the matter ; that later that day Burch
handed him the affidavit of James Flynn , and after reading the affidavit, and
without having any additional facts regarding the incident referred to in the
affidavit, either from Flynn or anyone else, he decided to discharge Schneider ;
that he based his decision on the facts set forth in Flynn 's affidavit , without
questioning the truth of the statements ; and that toward the end of the work
day, October 17, called Schneider to his office and that the following ensued :
I asked Schneider whether he had read and signed the notice of August
11, 1942. Of course , that referred to the notice about solicitation. And
he replied that he had . Then I told him that I had proof he had solicited
fellow employees on store time and property and in view of our repeated
warnings I was going to discharge him.
By BOARD 'S ATTORNEY:
Q. What did he say?
A. He wanted to know who had informed against him.
Q. What did you say?
149 At about this time the salesmen in the Paragon Shoe Department , whose sales war-
ranted it , were given a larger drawing account.
143 This reply is what Rice described as Schneider 's habit of "changing the subject."
144 In the main, McCarthy 's testimony , regarding this incident , is substantially to the
same effect as Schneider's.
FAMOUS-BARR COMPANY 1053
A. I told him I didn't have to tell him.
Q. Any further conversation?
A. Yes, he said : "You cannot fire me. There are plenty of people around
here that have more authority than you have. I am going to see somebody
higher up.
Q. Anything further?
A. No, he took the voucher with him and left the office.
Flynn did not take the stand. His affidavit, sworn to October 16, which was the
basis of Schneider's discharge, is as follows :
One day last week in the Paragon Shoe Department Hyman Schneider talked
to me about the C. I. O. Union. He said, "You are the kind of a person that
would take 8% if we could get it for you." He also said, "How would you
like to have stock boys do the stock work for you and you just sell and get
8%?" This conversation took place about 9: 30 in the morning. Also that
morning he made some disparaging remarks about me.
It is evident, and the undersigned finds, that Flynn's affidavit does not reveal any
facts which could honestly be construed as a violation of the respondent's non
solicitation rule by Schneider. The employees were permitted to discuss the Union
and unionism in general on company time and property, including the benefits and
disadvantages which might be derived from union membership. Moreover, it is
significant to note that the affidavit was secured from Flynn on the day prior
to McCarthy's offer to increase Schneider's drawing account. The undersigned
further finds that Hyman Schneider was discharged on October 16, 1942, because
he was a member of the Union and active in his behalf. The undersigned also
finds that Rice's statements to Schneider about the Union, disparaged the Union,
were violative of the Act, and expressed the respondent's antipathy toward
the Union.
Ruth Marchand was first employed by the respondent from November 1926,
to April of.tile following year. She returned to the respondent's employ in Novem-
ber 1927, and worked continuously as a saleslady in the Toy Department and later
as 4 clerical employee in the office of B. W. Owens, the buyer for that department,
until her discharge on October 24, 1942.386 On the latter date, the respondent,
pursuant to the laws of Missouri, notified the Unemployment Compensation Com-
mission of Missouri that Marchand "left our employment on October 7,1942" and in
the space designation for the reason in the opinion of the respondent why Mar-
chand was not entitled to compensation benefits, stated "Taken off payroll. Has
been absent since Oct. 8, and has not reported." A copy of this notice was sent
that day to Marchand, who, on November 12, wrote McCarthy as follows :
I have been home ill since Oct. 13th, on which date, and on other occasions,
the proper persons were notified as to the reason for my absence. I am now,
according to my doctor, able to return to my job, in the Toy Dept. Office.
On Oct. 26th, I received through the mail a "notice" which I do not under-
stand, and which has confused and puzzled me. My husband called on the
phone, and spoke to Mr. Owens and Mr. Stafford.148 Both gentlemen could
not explain this notice, and Mr. Stafford promised to check up on the matter,
and get in touch with me.
Would you please be so kind as to clear this matter up for me. Am I dis-
charged, and if so, for what reason? Or, am I merely off the Famous-Barr
11 At the time of her discharge, Marchand was Owens' office assistant and only sold
merchandise on days when the respondent was conducting large "sales."
141 One of McCarthy's assistants who has authority to hire employees.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll, until I am physically able to return to my job? I am most anxious
to get back to work.
Thanking you in advance for your prompt attention in this matter, and
awaiting, your early reply, I am, . . .
On November 14, McCarthy replied as follows :
With reference to your application for re-employment, you may call to
see me at 9: 00 A. M. Tuesday, November 17th.147
McCarthy testified that Marchand had not voluntarily quit the respondent's
employ but that her name was stricken from the pay roll upon the receipt of
Owens' memorandum of October 22, which reads as follows :
Mrs. Ruth Marchand, who works in the Toy office, has been absent since
Oct. 8.
We have had no word of her since Tuesday Oct. 13.
As this is one of our most critical and important times of the year, it is
my opinion that she be taken off the pay roll, and someone else hired for this
position.
Anyone who has done office, clerical or filing work ; generally accustomed
with office routine, will be satisfactory for the position.
I cannot impress too strongly the need for immediate 'action.
On August 21, 1942, 'Marchand, together with approximately 10 or 11 of the
then 14 employees of the Toy Department joined the Union. On August 29,
according to the undenied credible testimony of Marchand, she and several of
the other Toy Department employees were told by Stella Bronke, the assistant
buyer for that department 148 that she, Brooke, had a talk with Owens and that
Owens told her that he could not understand why the "girls who had worked in
his department so many years had gone to an outside organization with any
grievance" they may have had and that Owens had requested Bronke to tell the
girls in his department "to come to him in a group" and discuss with him what-
ever grievance they had. Later that day Marchand went to Owens and told him
that she had joined the Union because she "wanted better working conditions,
better salary, and better hours" -and that she felt that the employees could only
obtain those benefits by joining a union. According to Marchand's credible
uncontradicted testimony Owens then :
mentioned his long years of experience in department store work, and
that he was familiar with labor trouble in the East, where stores had tried
to organize, and how they had failed, that they were not successful, that
the picture wasn't as rosy as the unions painted it to us. He mentioned
141 Marchand did not keep the appointment because, as she testified, she did not con-
sider her letter of November 12, an application for reemployment and that she construed
McCarthy's reply to her letter to mean that if she applied for reemployment, and was
employed again by the respondent, she would lose her seniority rights and that her
seniority would,start from the date of her reemployment. McCarthy admitted at the
hearing that he construed Marchand's letter as an application for reemployment. ,
'148 Bonke also joined the Union on August 21. Bronke at about that time was made an
assistant buyer. The record does not show whether the Union' s officials knew that fact
at the time it accepted her membership application card. It is reasonable to assume that
it did not. In the fall of 1942, the Union filed a petition for investigation and certification
of representatives of the employees of the respondent under Section 9 (c) of the Act. In
its decision issued December 28, 1942, the Board stated, among other things, that the
parties to that proceeding agreed to exclude, "in general terms, supervisory, managerial,
executive -." Assistant buyers are within the excluded classification. See Matter of
The May Department Stores Company , etc. and Department Stores Employees Union, etc.,.
46 N. L R. B. 305.
FAMOUS-BARR COMPANY 1055
an instance on the West Coast. I don't remember, but it seems to me he
said the Emporium, but I am not sure about that.
By BoAan's ArroRrl>
Q. What did he say about conditions out there?
A. That they had organized out there, I believe partly, or had been out
on a strike, and after they went back to work it was six or seven weeks
they did not get their pay, they had lost all that salary while on strike,
and really gained nothing at all.
* * * * * * s
. . . Mr. Owens said he could not do anything about my hours. He said
again and again he was sorry we girls had gone to an outside organization,
that we had not come to him first with our grievances, that if there was
anything wrong we could straighten it out with him. However, before I
left the office, I wasn't fully convinced I gained anything by going to Mr.
Owens with my grievances, and I said to him that for the present I would
remain a member of the union, or at least I was going to attend their
meetings if only for educational reasons.
Marchand attended the store-wide meeting which was held on October 7, . and
there she was appointed co-recording secretary of the Union.149
On October 9, Marchand became ill and did not report for work but telephoned
her department. Mrs. Munken, the Toy Department floorlady, answered the
telephone and Marchand told her that she had a bad cold and a sore throat
and would return to work as soon as she was able to1E0 Marchand then told
Munken that she would like to speak to Owens so that she could tell him of
her illness. Munken replied that it was not necessary to do that because she
would tell Owens about the matter. Marchand returned to work on October 12.
On October 13, Marchand again became ill and did not report for work. That
morning her husband telephoned Albert Meyer, the Toy Department floorman,
and informed him about Marchand's illness and at the same time requested Meyer
to send, since it was pay day, Marchand's pay to her that evening. Later that
day Meyer gave Marchand's pay to a co-worker, Mildred McClurg, who brought.
it to Marchand that evening. Marchand signed the pay-roll "slip" which McClurg
brought with her and returned it to McClurg with a note for Meyer in which
Marchand thanked Meyer for sending her pay. The note also stated that as soon
as she was physically able to return she would advise Meyer. On October 14,
McClurg delivered to Meyer the pay-roll "slip" signed by Marchand together
with the aforementioned note. McClurg testified without contradiction, and the
undersigned credits her testimony, that on October 13, Meyer told her that
Marchand's husband had called him and asked him to send Marchand her pay
that night and Meyer asked her if she would take it to Marchand. McClurg fur-
ther testified, and the undersigned finds, that Meyer had obtained Owens' per-
mission to send Marchand her pay. Neither Meyer nor Owens testified.
Marchand testified without contradiction, and the undersigned credits her
testimony, that on October 14, and on 5 or 6 other days thereafter and prior to
October 24, Bronke telephoned her to inquire as to her health and that she told
149 She was previously appointed a member of the Union's Master Committee. McCarthy
admitted reading, at or about the time of its issuance, the Union's handbill of October 8,
which announced the fact that Marchand had been appointed Co-recording Secretary at the
store-wide meeting.
160 Under the respondent's rules, all that is required of an employee who is home ill
and unable to work, is for. the employee, or someone on his or her behalf, to telephone the
store and advise the floorlady or a person of higher rank and inform that person of the
employee's inability to report for work.
618683-45-vol. 59-68
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bronke on one of these occasions, "I still wasn't feeling well, but that possibly
I would be able to come back to work soon and asked her to tell Mr. Owens
'that she spoke to me and tell him how I felt and that I would try to come back
'as soon as I could." " Bronke did not testify. According to the uncontra-
dicted credible testimony of Marchand, Miss Hindle, Owens' stenographer, tele-
phoned Marchand at her home on two separate occasions between October 13
and 24, and inquired as to the latter's health. McCarthy testified that had
Marchand called upon him on November 17, as he had requested her to do in
his letter of November 14, he would have been glad to reinstate her because she
was an excellent employee. McCarthy further testified that all employees who
absent themselves without notice are taken off the pay roll and if their expla-
nation as to why they were absent is satisfactory to him, the employees are
reemployed. Marchand's'superiors, Owens, Bronke, Meyer, and Munken, knew
that she was home ill. Owens' statement in his note to McCarthy of October
22, 1942, was a deliberate misstatement • of faet. Owens iknew that Marchand
was at work on October 12, and that Marchand and her husband had kept in
touch with Marchand's superiors. Marchand testified without contradiction, and
the undersigned finds, that during her approximately 15 years of continuous em-
ployment with the respondent that on 2 previous occasions she was compelled by
illness to remain at home and away from work. The last occasion, in 1941,
necessitated her remaining at home for a period of 7 or 8 weeks. On neither
of the previous occasions did the respondent discharge her nor compel her to
file an application for reemployment. The undersigned is convinced and finds,
upon the facts found above and upon the entire record herein, that the respondent
discharged Ruth Marchand on October 24, 1942, and thereafter refused to rein-
state her because of her membership and activities in behalf of the Union."
Rose Marie Taff was employed by the respondent as a cashier-wrapper from
November 24 to December 1941, and on the latter date was laid off on account
of a reduction in force. She was reemployed on September 29, 1942, assigned
to the transfer wrapping department located in the St. Charles Street Ware-
house, and discharged, on November 6, 1942. McCarthy testified that several
days before Taff was discharged Hack, the manager of the respondent's Inspec-
tion and Packing Divisions, informed him that Taff was soliciting for the Union,
and that he thereupon requested Burch to investigate the matter; that after
reading the affidavit of Erma Carty, which Burch, handed him, and without rely-
ing upon any other facts or circumstances or talking to Carty about the matter,
he decided to discharge Taff ; and that later that day he called Taff to his office
and told her she was discharged because he "had satisfactory evidence that she
had violated the anti-solicitation rule."
Taff testified, and the undersigned finds, that when she worked in the transfer
wrapping dlepartment,1° she, Carty, and another employee, named Stahl, were
-under the supervision oft Lorene Cox ; that on a good many occasions during each
work day there was no work to do for any of the four people in that department ;
m Marchand testified she believed that she 'had this telephone conversation with Bronke
on October 21 or 22. Owens ' memorandum to McCarthy was received by McCarthy on
October 22. °
12 As found above, Marchand was not absent without notice and the respondent knew
that Marcband was home because of illness . Under these circumstances and in accordance
with the respondent's usual practice, Marchand was under no obligation to make applica-
tion for reemployment or to explain the reason for her absence before being reinstated.
The respondent having discriminatorily discharged Marchand for a simulated reason and
not having thereafter made her an unconditional offer of reinstatement, McCarthy' s testi-
mony at the hearing that he would have reinstated Marchand if she had appeared on
November 17, cannot have any effect either upon her right to reinstatement or back pay.
153 The public is not admitted to this department.
FAMOUS -BARR COMPANY 1057
that on those occasions , Cox permitted the people under her supervision to talk
among themselves or to leave the department in order to obtain soft drinks, or
some other refreshment ; that occasionally Cox would join in the conversations ;
that on November 4, 2 days before she was discharged , while Cox and Stahl
were out of the department on their lunch hour, and there was no work for Carty
or herself to do, she had the following conversation with Carty ; "I asked her
if she would not like to join the' CIO Union. She [Carty] said that she did not
know, she would think about it. I also asked if she would like to come to the
dance they [ the Union ] were giving and handed her" a dance ticket. The next
day, November 5, when Cox and Stahl were absent from the department, and
while Taff was sitting at her table without any work to do ,15' she asked Carty, who
was then on her lunch hour, if Carty "had thought any more about joining the
Union or going to the dance " ; that the conversation ended when Carty replied
that she had not given the matter any consideration ; that on November 6, she
was taken to McCarthy 's office by Hack and there McCarthy said, to quote Taff's
testimony , which the undersigned finds to be substantially in accord with the
facts, he could "not see why such a nice girl as I, obeying all the other store rules,
should violate one of soliciting for the union , and therefore I would have to be
fired ." Carty did not testify . Upon the entire record in the case, the under-
signed is convinced and finds, that Rose Marie Taff' s membership and activities
in behalf of the Union was the sole reason for her discharge on November 6, 1942.
Harry Sweeney , an employee of the St. Charles Street Warehouse , joined the
Union on September 8, 1942, and immediately became very active on its behalf,
Several days prior to the storewide meeting of October 7, Sweeney began to
wear his union button while at work .'" That day Harry Eckstein , the respond-
ent's superintendent of purchases , according to the undenied credible testimony
of Sweeney,' came over to where Sweeney was working and when Eckstein'`'
noticed Sweeney wearing a union button said to Sweeney, "if I were you I would
take [ the button ] off. They do not like it up on the 11th floor."' Sweeney
further testified without contradiction , and the undersigned credits his testimony,
that he immediately took the button off, but sometime later again wore it at work.
During the week ending October 24, Sweeney induced all the girls in the Semi-
Wrap ' Department to sign application cards for membership in the Union 160
During the same week , one of McCarthy 's assistants, Fred Lake , Jr., called
Sweeney to his office and there told him, according to Sweeney 's undenied credible
164 It is only when there is no work to do that the employees in this department sit at
their respective tables. Cox testified that only during the summer months is there ever an
opportunity for the employees of her department to sit down and talk ; that during the
balance of the year, especially during the month of November , there is never a time when
all the employees are not busy . Cox did not impress the undersigned as being an entirely
truthful witness. She attempted to deny the testimony of Taff who impressed the under-
signed as being an honest , forthright witness to the effect that Taff and Carty had no work
to do at,the times when Taff spoke to Carty about the Union . Yet, Cox admitted that she
was not present when the conversations took place. Carty did not testify . The under-
signed finds that the two conversations Taff had with Carty took place under the circum-
stances as testified to by Taff and further finds Taff's testimony as to what transpired on
these occasions to be substantially in accord with the facts.
166 The non-selling employees wore their buttons prior to the selling employees.
168 In the respondent 's brief, Sweeney is referred to as a "sterling witness." The under-
signed concurs in this statement. °
157 Sweeney worked under Eckstein.
166 The expression "the 11th floor" Is used by the management and employees to designate
the respondent's executive offices.
169 This is a department in the St. Charles Street warehouse.
160 One of the girls , at her mother 's insistence , demanded the return of her application.
It was returned to her on or about October 24.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
testimony, that because of Sweeney's good work, the respondent had decided to
raise his salary from $15 to $16 per week,'"' and that the respondent would like
to grant a general wage increase but was unable to do so because of governmental
regulations, but the respondent was permitted to grant individual wage increases,
if, and, when it saw fit to do so. In fact, Lake added, according to Sweeney,
and the undersigned finds, that even if any outside organization would assist, the
respondent still could not grant any general wage increase.
On October 28, Eckstein accompanied Sweeney to Assistant Superintendent
Healey's office and, according to Sweeney the following transpired :
He (Healey) told me, I was standing there and he asked me if my name
was Harry Sweeney and I said, yes. He said, "I heard some complaints
in the St. Charles Street Warehouse and in the Semi-Wrap ." And he said,
"We don't want you to ego down there," and he said, "Do you have any business
down there," I started to say yes and tell him and he said, " Don't give me
any of your damned excuses, we know what you are doing down there."
And he would not let me say anything and he said , "You stay out of there
and if you go down there again you will be fired."
According to the memorandum Healey made on the same day he'spoke to Sweeney,
the following occurred :
"At 11: 25 today Mr. Eckstein brought Harry Sweeney, who works in the
Supply Department third floor of the Dolph Building;62 to my office. In
the presence of Mr. Eckstein, I told Mr. Sweeney that I had numerous com-
plaints from employees and the supervisor in the Semi-Wrap Department
on the second floor of the Kingston Building's that he had been going to
their department, annoying them and keeping them from their work, and
that upon such occasions he had no business in that department.
"I forbade him at any time in the future going into the Semi-Wrap De-
partment on the second floor of the Kingston Building, and told him he
would be dismissed if he did so."
"I also asked him if he had any business in any of the stock rooms or
any of the floors of 'the warehouse, and he said he did not other than his
own supply room, which is the third floor of the Dolph Building.. I forbade
him from going into any of the other stock rooms on the third floor, and
told him he must not go to any other floor of the warehouse with penalty
of dismissal if he did.
"I asked him if he understood perfectly plain what I had told him, and
said yes."
The undersigned finds that Sweeney's version bf what transpired at that inter-
view to be substantially in accord with the facts.
On or about November 16, Sweeney informed Eckstein that he had received
a notice to report for induction into the Army on November 28. On November
23, Eckstein called Sweeney to his office and told him that he was being trans-
ferred from the St. Charles Street warehouse to the Pine Street warehouse's'
because they were short handed in the latter warehouse and that Sweeney
should report there immediately Sweeney returned to his department, got his
hat and coat, stopped at the Semi-Wrap Department, stayed there about 3 min-
utes telling the girls there of his induction into the Army, his transfer to the
i01 At that time, the respondent evidently did not know that Sweeney was obtaining
members for the Union.
'62 This is part of the St. Charles Street warehouse.
'63 This is also part of the St. Charles Street warehouse.
364 These warehouses are several city streets distant from each other.
FAMOUS-BARR COMPANY 1059
Pine Street warehouse and said good-bye to them, and then proceeded to the
Pine Street warehouse. When he reported to the man in charge of the Pine
Street warehouse, the following events, according to the undenied credible
evidence of Sweeney, occurred :
He (the man in charge of the warehouse) asked me what I wanted and
I told him I was to report to him, I was told to report to him by Mr. Eckstein,
and he said, "Oh, you are the one," and he said, "We haven't much to do,"
and he said, "You go upstairs and help them" and I went upstairs and a
fellow said, "We haven't much to do, you can help me carry out these
boxes," and I had been there about ten minutes when Mr. Eckstein called
me and said for me to report to his office.
By BOARD'S ATTORNEY :
Q. Did you go back over there?
A. I took my hat and coat and went back to Mr. Eckstein's office.
Q. Did you see Mr. Eckstein there?
A. Yes, sir.
Q. Who-
A. He told me to go to Mr. Healey's office.
Q. What took place there?
A. Mr. Healey said, "We warned you about going on the 2nd floor,
didn't we," and I said, yes, and he said, "In view of your disobedience, I
haven't any other alternative except to fire you," and he said, "What were
you doing?" and I said, "I was being transferred to the Pine Street Ware-
house and was going to the Army and wanted to say goodbye to the girls."
Q. What did he say?
A. He said that is no excuse, you are fired.
Q. What did Mr. Eckstein say, anything?
A. No, he took me'to another office and told them to give me my pay
check.
Q. Did you get your money that day?
A. Yes, sir.
Q. Did you report for induction on the 28th of November?
A. I did.
Q. Were you inducted at that time?
A. I was down there three days and on the third day 'I was sworn in and
told to report back in one week.
Healey's version of what took place at the time he discharged Sweeney is
substantially in accord with Sweeney's testimony. Eckstein did not testify.
In its brief respondent contends that "Healey's treatment of Sweeney on
October 28 was more than generous. It negatives any desire to discharge
Sweeney for union activity." Whatever may be said of this contention and
Healey's feelings on October 28, the undersigned is convinced that Sweeney's
union membership and activities on behalf of the Union played a large part
in Healey's decision to discharge Sweeney on November 23, 1942. To the under-
signed it does not seem reasonable that the respondent would discharge a
man who is about to enter the armed forces of the United States because that
man paused a few minutes to say good-bye to a few of his fellow workers.
Upon the entire record in this case, the undersigned finds that Harry Sweeney's
361 Sweeney's version of what transpired in the Semi-Wrap Department is as follows :
I told the girls goodbye, I was going to report to the Induction Center and probably
would not get to see them again. I was going to the Army, and I shook hands with
a couple of them and left.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership and activities were the motivating reasons for his discharge
on November 23, 1942.
C. Concluding findings
The respondent contended that its non-solicitation rule has been in existence
since 1909, when the respondent opened its first store in Leadville, Colorado.
However, the evidence reveals that the rule was not strictly enforced until the
Union began to make progress in its 1941 organizational drive. Thus, on Novem-
ber 12, 1941, and on August 11 and September 24, 1942, the respondent forcibly
brought to the attention of its employees the rule in question, even to the extent
of having all its employees, on two of the above. occasions, sign the notices. More-
over, the respondent did not enforce this rule impartially, but, so far as the record
reveals, only against the Union. For example, while the rule was being rigidly
enforced with respect to the members of the Union, the respondent permitted
LaVerne Gilley, a member of the A. F. of L., to openly solicit for that organization
on company time and property 100 The undenied credible testimony of William
Frank, the Union's vice president, discloses that when he told his supervisor, Abe
Levy, assistant buyer, that Gilley was openly soliciting, on company time and
property, for the A F. of L. and that she not only solicited in the Men's Furnish-
ing Department but also in other departments of the store, the only reply he
received was, "I know it." In its handbill. of November 18, 1942,07 the Union
stated :
Was she (Gilley) afraid of getting fired for soliciting on store time? No,
there was no danger if one solicited for the "right" organization. In other
words, she was saying the Protective Association 188 had the company's bless-
ings.
No disciplinary action was taken by the respondent with regard to Gilley, nor is
there any evidence in the record that the respondent made any investigation
regarding her activities.1
The respondent furthermore advocated open solicitation on company time and
property by the Welfare Association It also permitted this organization to use
its premises and its time to secure members. Supervisors openly urged the em-
_ ployees to join this organization. Counsel for the Board stated that he did not
contend that the Welfare Association was a labor organization or that it existed
in violation of the Act, but the record is replete with credible evidence that the
respondent used the Welfare Association as a means to forestall the activities of
the Union. Thus, in February 1942, when the Union announced that it would
demand of the respondent, if, and when, the Union became the representative of
the majority of the respondent's employees a 3-week annual sick leave, the
respondent immediately announced that it would give to those employees who
were, or became, members of the Welfare Association certain sick leave benefits.
This announcement could not help but recall to the minds of the employees the
respondent's statements in its leaflets of May and July 1937, wherein the respond-
ent stated that it was not necessary for the employees to join a union because
188 This solicitation took place, in the main, in the Men's Furnishing Department which
is located on the main floor of the store. This member of the A. F. of L. was on a salary
basis or received a certain fee from that organization for each signed membership card she
secured. '
167 The parties stipulated that this handbill was distributed in front of the employees'
entrance on or about November 18, 1942. It will be recalled that the respondent' s counsel
conceded that the contents of the'Union's handbills came to the attention of the respondent's
officials on the day they were distributed.
189 The A F. of L affiliate for which Gilley was soliciting.
1&J McCarthy testified that he always had Burch make an investigation when informed
that the non-solicitation rule was being violated.
FAMOUS-BARR COMPANY 1061
under the respondent's policy, the employees enjoyed, among other things, sick
benefits, hospital services, the Outing Club, and other Welfare activities.
McCarthy admitted1 that when an employee was reported to him for soliciting
he "presumed" the reported employee was soliciting for a union and that he
immediately requested Burch to investigate, and that he was not interested in
the fact that the employees were violating the rule in other respects. This state-
ment is true only with respect to the employees who were not members of the
Union. Thus, employee Goetz admitted on the witness stand that he had been
an A. F. of L. member for upwards of 20 years ; that he often asked employees,
on company time and property, to contribute money for flowers, to be sent to sick
fellow employees and also collected money for other similar presents ; that most
of his solicitations took place even though he had not first secured the respond-
ent's permission, although he knew he was violating the respondent's non-solicita-
tion rule by not first securing permission ; that several times his supervisors told
him that he did not need permission to solicit money for presents or for flowers for
his fellow workers ; that sometime in the early part of 1943, he was called to Mc-
Carthy's office and there McCarthy told him he had violated the non-solicitation
rule because he had solicited funds without first securing permission to do so ;
that he admitted that he had done so on many occasions ; that he told McCarthy
his supervisors knew that he often solicited funds without securing permission
and that they had told him, on several occasions, that he did not need permission ;
and that, despite these admissions he was not reprimanded, suspended, or dis-
charged.140 In fact, Goetz testified that he was sent back to his department with
a pat on the back by Salomon, who stated, "We are not going to discharge you."
This procedure regarding Goetz is directly opposite to that taken with regard to
Mildred McClurg, an employee of the Toy Department. In August 1942, shortly
after she and most of the other employees of that department joined the Union,
she was called to McCarthy's office and there falsely accused of soliciting funds
from her co-workers for the purchase of a present for one of the boys in the Toy
Department who was about to enter the armed forces, and there McCarthy threat-
ened her with immediate discharge. When McCarthy, however, was convinced
that McClurg did not solicit any funds, he sent her back to her department. How-
ever, McClurg gave McCarthy the name of the person who did collect the funds.
This party was not a member of the Union and McCarthy took no disciplinary
action with respect to her. In fact, he did not even call her to his office. Other
solicitations, which were brought to the respondent's attention, went unnoticed.
Furthermore, the rule was not limited to working hours, nor to the places
in the plant where the company's work or business was being performed. The
Board and the Courts have held on numerous occasions that an employer may
promulgate and enforce non-discriminatory reasonable rules designed to main-
tain discipline within his establishment. The employer, however, may not
further encroach upon the rights of his employees by interfering with the union
activities of his employees under circumstances which present no clear or
convincing expectancy that such activities will affect the discipline of the em-
ployees in the performance of their work. In the instant case, the employees
were permitted on company time and property to discuss the Union and unionism
in general, provided in doing so the employees did not congregate or neglect
their duties, to distribute union literature, to hand a membership application
card to a fellow employee when a card is requested, and to ask a fellow employee
to attend a union meeting. Under the respondent's interpretation of its non-
solicitation rule, it was violative of the rule if an employee asked a fellow
1A According to the respondent's rules, an employee may not solicit funds without first
securing the written approval of Superintendent Brandau.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed on company premises to join 'a union or to give him an unsolicited
membership application card. The record shows that the respondent's employees
during working hours have certain rest periods, besides their lunch hours, which
they usually spend in the lunchrooms, locker rooms, or elsewhere in the store.'"
During those rest periods and during their lunch hours, and while on the
respondent's property, the employees admittedly and naturally talked to each
other about many and varied subjects of mutual interest, including discussions
regarding the Union and unionism in general. The record also discloses no
decline in discipline, efficiency, or sales since the advent of the Union. Recently,
the Board had before it a case 172 regarding the enforcement of a non-solicitation
rule. In its decision in that case the Board stated :
The Act, of course, does not prevent an employer from making and en-
forcing reasonable rules covering the conduct of employees on company
time. Working time is for work. It is therefore within the province of an
employer to promulgate and enforce a rule must be presumed to be valid in
the absence of evidence that it was adopted for a discriminatory purpose.
It is no less true that time outside working hours, whether before or after
work, or during luncheon or rest periods, is an employee's time to use as
he wishes without unreasonable restraint, although the employee is on
company property. It is therefore not within the province of an employer
to promulgate and enforce a rule prohibiting union solicitation by an em-
ployee outside of working hours, although on company property. Such a
rule must be presumed to be an unreasonable impediment to self-organiza-
tion and therefore discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to maintain production or
discipline.
The undersigned is convinced and finds that the extension to the employees'
own time of the prohibition against union solicitation, constitutes an unreason-
able impedient to self-organization and therefore this restriction interferes with,
restrains, and coerces the employees in the exercise of the rights guaranteed in
Section 7 of the Act.14'
The record, furthermore, discloses no showing of special circumstances which
would make necessary a rule forbidding solicitation on the employees' own
time. The respondent contends that it is necessary to forbid its employees to
solicit for a union at any time on company property because of the nature of
the respondent's business-it being a retail department store. In support of
this contention it relies on, among others the Marshall Field case.14¢ This con-
tention is without merit. In the Marshall Field case, the rule there, unlike the
respondent's, not only prohibited union solicitation but prohibited the employees
to talk about unions, on company time and property. In the instant case, the
employees are permitted to discuss unions at any time provided the employees
do not congregate and the conversations do not interfere with their duties.
In the Marshall Field case, the Board, in limiting its findings to that particular
case, said :
We recognize the fact that employees in the State Street Store are con-
stantly engaged in serving the public, and that a rule such as is here involved
In This also applies to the St. Charles Street warehouse employees.
178 Matter of Peyton Packing Company, Inc., and Amalgamated Meat Cutters, etc., 49
N. L. R. B. 829.
178 Scullin Steel Company, a corporation and American Federation of Labor, 49 N. L. R. B.,
No. 54 ; United States Cartridge Company and International Brotherhood of Firemen and
Oilers etc., 47 N. L. R. B. 896.
173 Matter of Marshall Field & Company and Department Store Employees Union, etc.,
34 N. L. R. B. 1.
FAMOUS-BARR COMPANY 1063
is reasonably adapted to the operation of such a business. We do not hold
that the adoption and enforcement of such a rule can not, under any cir-
cumstances, be contrary to the Act, but hold merely that there is not sufficient
evidence in this case to show that the action of the respondent in adopting
and enforcing the rule, under the circumstances here present , constituted
interference with, or restraint, or coercion of the respondent's employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent also contended at the hearing, and in its brief, that the written
stipulation of September 14, 1942, which received the approval of the Regional
Director, settled all charges then pending against the respondent, and that,
therefore, the Board may not properly consider any unfair labor practices alleged
to have been engaged in by the respondent prior to September 14, 1942. Under
the circumstances of this case, the undersigned cannot concur in this connection
and finds that the stipulation is not a bar to the consideration of the events pre-
ceding the date of the said stipulation. It is plain that any understanding
reached was not understood by the parties to be a bar to any determination
by the Board if the respondent immediately thereafter resumed its unfair labor
practices. The record is clear, as found above, that the respondent, prior to
and after September 14, 1942, had engaged in unfair labor practices. It is
the Board's "established practice not to give effect to a settlement or compromise
of unfair labor practices where an employer violates it or continues a course
of unfair labor practices."
In its brief, the respondent argues that the speeches delivered over the public
address system by Salomon and McCarthy during the fall and winter of 1942,
are not violative of the Act and requests the Board, in considering these speeches,
to be "mindful of the right to freedom of speech as emphasized and reiterated by
the Courts." 176 These speeches were but a part and parcel of the respondent's
scheme to defeat the Union's efforts to organize the employees. They cannot
be considered separately. The speeches cannot properly be considered as isolated
instances of an employer's expression of opinion. They are one of the con-
geries of facts which must be considered in the light of the entire record. So
viewed, only one conclusion can be reached and that is, that the speeches con-
stituted an integral and inseparable part of a continuous course of conduct
designed to forestall the organizational activities of the Union. Moreover, the
constitutional guarantee of free speech does not confer upon an employer the
privilege of expression of opinions which amount to pressure exerted vocally
where the employer's whole course of conduct as here, evidenced in part by oral
statements, constitutes interference, restraint, and coercion 147 As was said by
Judge Learned Hand in N. L. R. B. v. Federbush Co., 121 F. (2d) 954, 957, (C.
C. A.2.):
No doubt an employer is as free as anyone else in general to broadcast any
arguments be chooses against trades-unions ; but it does not follow that he
may do so to all audiences. The privilige of "free speech," like other
privileges, is not absolute ; it has its seasons ; a democratic society has an
376 Matter of American Cyanamid Co., etc., 37 N . L. It. B. 579, 588 and cases cited in
footnote 11 therein ; Matter of Wickwire Bros., etc., 16 N. L. R. B. 316; Matter of Houde
Engineering Corporation, etc., 42 N. L. It. B. 713. See also Canyon Corporation V. N. L.
it. B., 128 F. ( 2d) 953 (C. C. A. 8).
170 In support of this contention the respondent refers to N. L. R. B. v. Virginia Electric
& Power Co., 314 U. S. 469 ; N. L. it. B. v. American Tube Bending Co., 134 F. ( 2d) 933;
N. L. it. B. v. Citizens News Co., 134 F. ( 2d) 970 ; and N. L. it. B. V . Ford Motor Co., 114
F. (2d) 905.
175 See N. L . it. B. v. Virginia Electric . & Power Company, 314 U. S. 469.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acute interest in its protection and cannot indeed live without it ; but it
is an interest measured by its purpose. That purpose is to enable others to
make an informed judgment as to what concerns them, and ends so far as
the utterances do not contribute to the result. Language may serve to
enlighten a hearer, though it also betrays the speaker's feelings and desires;
but the light it sheds will be in some degree clouded, if the hearer is in his
power. Arguments by an employer directed to his employees have such
an ambivalent character ; they are legitimate enough as such, and pro tanto
the privilege of "free speech" protects them ; but, so far as they also dis-
close his wishes, as they generally do, they have a force independent of
persuasion. The Board is vested with power to measure these two factors
against each other, a power whose exercise does not trench upon the First
Amendment. Words are not pebbles in alien juxtaposition ; they have only
a communal existence ; and not only does the meaning of each interpene-
trate the other, but all in their aggregate take their purport from the setting
in which they are used, of which the relation between the speaker and the
hearer is perhaps the most important part. What to an outsider will be
no more than the vigorous presentation of a conviction, to an employee may
be the manifestation of a determination which it is not safe to thwart. The
Board must decide how far the second aspect obliterates the first.
The record reveals that the respondent used the rule as a pretext in that it
claimed that certain employees had violated it even though the conduct com-
plained of was not violative of the rule, such as discussing the Union on company
time and property. The actions of the respondent herein were similar to those
of the company in the Glenn L. Martin case.18 In discussing the conduct of the
employer in that case the Board stated, among other things, that the Glenn L.
Martin Company, as the respondent herein did,
. . . seized upon the alleged enforcement of the rule (against solicitation
on company time and property) as an opportune time to disparage the Union
and openly to demonstrate its opposition to it. Viewed against the re-
spondent's opposition to the organizational activities of its employees, the
anti-union threats and statements which accompanied the purported enforce-
ment of the rule, and the circumstances disclosed by the entire record, it is
clear, and we find, that the respondent applied the rule for the purpose of
defeating self-organization among its employees and discouraging member-
ship in the Union, and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent's purported neutrality regarding unions and its alleged desire
to have its employees free to organize without discrimination, coercion, or in-
timidation is not supported by the record. In support of its contention that it
is not opposed to the unionization of its employees, it points to the contracts
which it has with various A. F. of. L. affiliates. Whatever may be said regard-
ing the entering into of these contracts, the record is manifestly clear that
i 1)
178 The Glenn L. Martin-Nebraska Company and International Union, United Automobile,
Aircraft, etc., 48 N. L. R. B. 587. See also N. L. R. B. V. William Davies Co., Inc.,
135 F. (2d) 179 (C. C. A. 7) ; N. L. It. B. v. Bersted Mfg. Co., 124 F. (2d) 409 and 128 F.
(2d) 738 (C. C. A. 6) ; Matter of Letz Mfg. Co., etc., 32 N. L. R. B. 563; Matter of Paragon
Die Casting Co., etc., 27 N. L. R. B. 878; Matter of McLain Fire Brick, etc., 36 N. L. R. B.
1, enf'd 128 F. (2d) 393 (C. C. A. 3) ; Matter of Peyton Packing Company, Inc., and
Amalgamated Meat Cutters, etc., 49 N. L. R. B. 828; Scullin Steel Company and American
Federation of Labor, 49 N. L. R. B., 405; Republic Aviation Co. and International Union,
United Automobila, etc., 51 N. L. R. B. 586; Denver Tent & Awning Co. and Warehouse and
Distribution Workers Union, etc., 47 N. L. R. B. 586.
FAMOUS-BARR COMPANY 1065
beginning in May 1937, the respondent attempted to impede the activities of
the Union. Furthermore, the employment of labor spies, the disparaging
statements of the respondent's officials about the Union and its leaders, the
discriminatory discharges and lay-offs of union members, the numerous anti-
union- speeches of McCarthy and Salomon, the discriminatory enforcement of its
non-solicitation rule against members of the Union, and the numerous other
anti-union activities and statements, as shown by the record, clearly reveal the
respondent's antipathy for the Union and its determination to keep the Union
from organizing its employees. The respondent's refusal to employ June King
when she made application for employment on October 16, 1942, or to employ
her at any time thereafter, is but one example of its animus towards the Union.
'The undersigned is also convinced, and finds, that the membership and activities in
behalf of the Union of Vasil Athanis, Bessie L. Case, Margaret-Jennewein, Ruth
Marchand, Eva Stewart,1' Ruth Moore, Dorothy Rosciglione, Hyman Schneider,
and Rose Marie Taff, were the motivating reasons for their discharge and not,
as the respondent contends, the violation of the non-solicitation rule. It is clear
that some of the aforementioned employees were discharged for soliciting on their
own time and since, as found above, the respondent's prohibition of solicitation
on the employees' own time is violative of Section 8 (1) of the Act, it therefore
follows that the discharge of employees who so solicited is also violative of Sec-
tion 8 (3) of the Act. It may be argued that some of the aforementioned em-
ployees were discharged because they solicited on company time and therefore
their discharges would not be violative of the Act. However, the- undersigned
has found that the respondent discriminatorily enforced its rule and he therefore
finds that even if any such employee solicited on the company's time his or her
discharge was violative of Section 8 (3) of the Act. Thomas R. Brown's member-
ship and activity in behalf of the Union was the sole reason for his lay-off on
September 18, 1942.' The undersigned further finds that, by the foregoing acts
and by the discharges and lay-offs of the aforementioned persons, including Harry
Sweeney and June King, the respondent has discouraged membership in the
Union and has thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
179 Not only was Stewart discriminatorily discharged on October 15, 1942, but her
suspension from September 26 to October 12, 1942, was discriminatory. The undersigned
so finds.
180 The respondent contends that Brown was not discharged as alleged in the complaint,
but was suspended. Since the record shows the respondent intends to give Brown his former
job, or a substantially equivalent one, upon his discharge from the Army, the undersigned
finds that Brown was not discharged , but was laid off.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has.been found that the extension of the prohibition against union solicita-
tion contained in the respondent's various rules to the employees' own time, was
violative of the Act. It will therefore be recommended that the respondent be
ordered to rescind the rule to that extent and to post notices to that effect.
It has been found that the respondent discriminated in regard to the hire
and tenure of employment of Vasil Athanis, Bessie L. Case, Margaret Jennewein,
Ruth Marchand, Ruth Moore, Dorothy Rosciglione, June King, Hyman Schneider,
Rose Marie Taff, Harry Sweeney, and Eva Stewart by discharging them on
the dates alleged in the complaint herein. It also has been found that Thomas R.
Brown was discriminatorily laid off on September 18, 1942. At the time of the
hearing Harry Sweeney and Thomas R. Brown were in the military forces of the
United States and are accordingly not available for immediate reinstatement.
Therefore, the undersigned will recommend that the respondent, upon the appli-
cation by Brown and Sweeney within forty (40) days after their respective dis-
charges from the armed forces of the United States, offer them reinstatement to
their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges. The undersigned will further recom-
mend that the respondent make Brown and Sweeney whole for any loss of earn-
ings they may have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum of money equal to the amount they
would normally have earned as wages during the period: (1) between the date
the respondent discriminated against them and the date of their entering the
armed forces of the United States; and (2) between the date five (5.) days after
Brown's and Sweeney's timely application for reinstatement, and the date of
the offer of reinstatement by the respondent, less their net earnings during these
periods.'81 The fact that Brown and Sweeney may become entitled to further
back pay following their timely application for reinstatement upon their respec-
tive discharges from the armed forces of the United States shall not be regarded
as affecting the respondent's obligations to pay them immediately whatever
amount is due them from the date of their respective discharges by the respond-
ent to the date they entered the armed forces of the United States, less the net
earnings of each during that period.''
It is further recommended that the respondent make Vasil Athanis, Bessie L.
Case, Margaret Jennewein, Ruth Marchand, Ruth Moore, Dorothy Rosciglione,
Hyman Schneider, Rose Marie Taff, and Eva Stewart" whole for any loss of
earnings they may have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal to the amount
he or she would have normally earned as wages from the date of the respondent's
ml By "net earnings" is meant earnings less expenses, such as for transportation, room, and
board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber
and Sawmill Workers Union, Local 25.90, 8 N. L. it. B. 440. Monies received for work
performed from Federal, State, county, municipal, or other work-relief projects shall be
considered as earnings . See Republic Steel Corporation V. N. L. R. B. , 311 U. S. 7.
182 Matter of American Laundry Machine Company and United Electrical, Radio and
Machine Workers of America, 45 N. L. it. B. 355.
's' It having been found that Eva Stewart was discriminatorily suspended on September
26, 1942, and not permitted to work for the respondent from September 26 to October 12,
1942 , the undersigned will recommend that she be made whole for any loss of earnings
she may have suffered during the said period of her suspension, less her net earnings
during that period.
FAMOUS-BARR COMPANY 1067
discrimination against them to the date of the respondent's offer of reinstatement,
less their net earnings during that period'"'
It having been found that the respondent refused employment to June King
because of her membership in the Union, it will be recommended that the respond-
ent offer to her immediate employment to a position for which she applied on or
about October 16, 1942, or one substantially equivalent thereto, and make her
whole for any loss of earnings she may have suffered by reason of the respondent's
discriminatory refusal to employ her on or about October 16, 1942, to the date of
the respondent's offer of employment, less her net earnings during that period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Retail, Wholesale and Department Store Employees Union of America
is a labor organization, within the meaning of Section 2 (5) of the Act.
2. The respondent is an employer of June King, within the meaning of Section
2 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Vasil
Athanis, Thomas R. Brown, Bessie L. Case, Margaret Jennewein, Ruth Mar-
chand, Ruth Moore, Dorothy Rosciglione, Hyman Schneider, Rose Marie Taff,
Harry Sweeney, Eva Stewart, and June King, thereby discouraging membership
in United Retail, Wholesale and Department Store Employees Union of America,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Sectiong 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 3
(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 respondent has not discriminated with respect to the terms and con-
ditions or hire and tenure of employment of George Lorey.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, May Department Stores Company, a
corporation, doing business as Famous-Barr Company, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Retail, Wholesale and Department
Store Employees Union of America, or any other labor organization of its em-
ployees, by laying off, discharging, or refusing to reinstate any of its employees
and from refusing to employ any member of the union herein, or in any other
manner discriminating in regard to the hire and tenure of employment or any
term or condition of their employment ;
(b) Withholding approval of the employment of any demonstrator or causing
the discharge of any demonstrator or in any other. manner interfering with the
hire and tenure of employment or any term or condition of employment of any
demonstrator because of his or her membership in United Retail, Wholesale
and Department Store Employees Union of America, or any other labor organ-
ization ;
1" See footnote 181, supra.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, and coercing its
employees in the exercise of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the polices of the Act :
,(a) Rescind immediately the rule against solicitation insofar as it extends
to the employees' own time ;
(b) Offer to Vasil Athanis, Thomas R. Brown, Bessie L. Case, Margaret Jenne-
wein, Ruth Marchand, Ruth Moore, Dorothy Rosciglione. Hyman Schneider, Rose
Marie Taff, Harry Sweeney, and Eva Stewart immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority and other rights and privileges in the manner set forth in "The remedy" ;
(c) Make whole, in the manner set forth in "The remedy," Vasil Athanis,
Thomas R. Brown, Bessie L. Case, Margaret Jennewein, Ruth Marchand, Ruth.
Moore, Dorothy Rosciglione, Hyman Schneider, Rose Marie Taff, Harry Sweeney,
and Eva Stewart for any loss of pay they may have suffered ;
(d) Offer June King employment to a position, or one substantially equivalent
thereto, for which she applied on or about October 16, 1942;
(e) Make whole June King for any loss of wages which she would have
earned during the period from the respondent's discriminatory refusal to employ
her to the respondent's offer of employment as in the manner set forth in "The
remedy" ;
(f) Notify in writing the firm of Baar & Beards, Inc.? m that the respondent
withdraws its disapproval of June King's employment as a demonstrator for that
concern in the respondent's store ;
(g) Post immediately in conspicuous places throughout its retail department
store, and its three warehouses in St. Louis, Missouri, and maintain for a period
of sixty (60) consecutive days from the date of posting, notices to the employees
stating: (1) that the respondent will not engage in the conduct from which it
is recommended that it cease and desist in paragraph I (a), (b), and (e) of
these recommendations; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), (c), (d), (e), and (f) of these recommen-
dations; and (3) that the respondent's employees are free to become or remain
members of United Retail, Wholesale and Department Store Employees Union
of America, and that the respondent will not discriminate against any em-
ployee because of membership in or activity in behalf of that organization ;
(h) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board Issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the allegations of the complaint as to George
Lorey's discharge on September 29, 1942, be dismissed.
186 This is the concern that employed King as a demonstrator In the respondent's store at
the time of her discharge on October 10, 1942.
FAMOUS-BARR COMPANY 1069
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended , effective October 28,
1942-any party may within fifteen ( 15) days from the date of the entry of the
order transferring the case to the Board , pursuant to Section 32 of Article II of
said Rules and Regulations , file with the Board, Rochambeau Building , Washing-
ton, D . C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report 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 four copies of a brief in support thereof. As
further provided in said Section 33, 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 after the date of the order transferring the case to the Board._
HOWARD MYERS,
Trial Examiner.
Dated October 6, 1943.