John M. Smyth Co.

National Labor Relations Board - Board Decisions

Feb 25, 1963

140 N.L.R.B. 1388 (N.L.R.B. 1963)

1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John M. Smyth Company and Harriet Sherman . Case No. 13-
CA-4735. February 25, 1963
DECISION AND ORDER
On November 5, 1962, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices as alleged
in the complaint and recommending dismissal of the complaint in its
entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief. The Respondent filed a brief in support of
the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on March 6, 1962, the General Counsel for the National
Labor Relations Board for .the Regional Director for the Thirteenth Region (Chicago,
Illinois ), issued a complaint on June 15, 1962, against John M. Smyth Company,
herein called the Respondent , alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
The Respondent 's answer denies the allegations of unlawful conduct alleged in the
complaint.
Pursuant to notice , a hearing was held in Chicago, Illinois, on August 7 and 8,
1962, before Trial Examiner John P. von Rohr. All parties were represented by
counsel and were afforded full opportunity to adduce evidence , to examine and
cross-examine witnesses , and to file briefs. Briefs were subsequently filed by the
General Counsel and the Respondent and they have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
John M. Smyth Company is an Illinois corporation having six retail furniture
stores located in and around Chicago, Illinois, where it is engaged in the retail sale
of furniture and other home decorator products.
During the last calendar year , the Respondent sold and distributed furniture and
other related home decorator products valued in excess of $500 ,000. During the
140 NLRB No. 138.
JOHN M. SMYTH COMPANY 1389
same period , Respondent received products and merchandise valued in excess of
$500,000 from States other than the State of Illinois.
The Respondent concedes , and I find , that it is and has been engaged in commerce
within the meaning of Section 2(6) and ( 7) of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Retail-Wholesale Department Store Workers' Union, Local 291, herein referred
to as .the Union, is a labor organization within the meaning of Section 2(59) of the
Act.'
III. THE ALLEGED UNFAIR LABOR PRACTICES
The principal issue here is whether the Respondent, on March 1, 1962, discharged
Harriet Sherman in violation of Section 8(a)(1) and (3) of the Act.
Respondent is engaged in the retail furniture business with its main store located
in downtown Chicago and six branch stores located in outer Chicago areas. Sherman,
who was employed by the Respondent as a saleswoman and interior decorator for
approximately 10 years, worked at the 95th Street store. This store is under the
management and supervision of William R. Hallam, manager, and Ray Masco,
assistant manager? Seven full-time salesmen and two part-time salesmen are
employed at this location.
On February 26, 1962, a Monday, Sherman complained to Alvin Hawes, another
salesman employed at this store, that on the preceding Friday, Store Manager
Hallam had turned over a sale to one of the office employees. (Although the two
office employees employed at this store are paid a salary, it has long been Respond-
ent's policy to permit these employees to increase their earnings by selling to
customers on a commission basis.) In addition to the foregoing complaint, Sherman
also told Hawes that she was dissatisfied with certain other company practices
and that she intended to take these matters up with Edward S. Patera, Respondent's
vice president.
Sherman's opportunity to see Patera came on the following day, February 27,
for on that day Patera visited the 95th Street store. It was while Patera was con-
sulting with Hallam in the latter's office that Sherman determined to act. The testi-
mony leaves no doubt that Sherman took it upon herself to burst in upon this meeting
unannounced . As Sherman herself testified, Patera "half rose out of his chair" upon
her entrance. Hallam credibly described the incident as follows: "Mrs. Sherman
burst in wildly, waving papers in her hands. I got up and asked her to get out of the
office until we had finished our conversation. She came in unannounced. We were
talking business that did not concern her . . . I was too upset with her conduct to
become angry. I asked her to get out of the office. She refused to, she continued to
talk in a loud voice. T finally took her by the arm and tried to usher her out. She
refused to move. I walked out of the office and remained out of it from then
until she left the office with Mr. Patera." After Hallam left the office Sherman
remained with Patera and discussed her various complaints about management
policies and practices, including those which she felt were affecting her earning
capacity.3 According to Sherman, Patera finally told her to make out a "suggested
improvement list for the store" and that "he would read it next Tuesday when he
came out."
The 95th Street store does not open until 12 noon on Thursdays. Sherman testified
that about 5:30 p.m. on Wednesday, February 28, which was the day after the
incident above described, she told Hallam and Masco that she would be at the
the downtown store on the next morning and that she might be "a little late" in
getting back.
'At the hearing the General Counsel orally amended paragraph numbered IV of the
complaint by adding the following: "Retail-Wholesale Department Store Workers' Union.
Local 291 Is and has been at all times material herein a labor organization within the
meaning of Section 2 (5) of the Act."
2 Respondent does not concede that Masco Is a supervisor within the meaning of the
Act I need note only, as the evidence discloses, that Masco takes over Hallam's func-
tions when the latter is absent from the store. This factor itself, as I find, is sufficient to
establish Masco as a supervisor under the Act.
3 At one point during this conversation Hallam returned to the office ( as he also later
recalled ) with Alvin Hawes and Clarence Long, both of whom were salesmen. While the
testimony in this respect Is not clear , it appears that they were briefly called in to dis-
cuss a matter pertaining to decorator sales, apparently one of the grievances raised by
Sherman.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Thursday morning, March 1, Sherman appeared at Respondent's downtown
store. She testified that upon entering the store she telephoned Robert Schnoor, a
salesman-decorator at the 95th Street store, and asked "if there was any props or any-
thing I could bring out to the store, that I was down at the store." About 10 a.m.
Sherman left the store and went to the office of the Retail-Wholesale Department
Store Workers' Union, which was also located in the downtown Chicago area.
There she spoke briefly to Henry Anderson, a union representative, who, she testified,
gave her "some literature, some cards, general papers." 4 Upon leaving the Union's
office, Sherman returned once again to the downtown store where she informed
Russell Kogan and Joan Bartkowicz, both sales employees at this store, of her
visit to the union office. She also mentioned to them that she was interested in
"forming a union."
It is undisputed that on this day Sherman was late when she arrived to work at
the 95th Street store .5 However, there is sharp conflict in the testimony as to what
occurred at this point. Sherman's testimony concerning a conversation which she
had with Masco upon arriving at the store is as follows: "Mr. Masco came up, sat
down and said to me, `Where were you this morning9 Were you down at the
Teamster's Union?' I said, `Another one, AFL!' With this, I rose, a customer was
coming in the door . . . and that ended our conversation." Masco denied Sherman's
version of the conversation in its entirety. Recalling that Sherman had advised on
the preceding evening that she was going to the downtown store, it was Masco's testi-
mony that he asked Sherman, upon her arrival, if she had a good customer at the
downtown store. According to Masco, Sherman merely replied, "Yes" and with
this the conversation ended. My discussion and findings with respect to this conversa-
tion is noted hereinafter.
Sherman testified that later in the day, about 6 p.m., Store Manager Hallam called
to her from his office and "ranted" at her for being late5 She testified further that
about 8:30 p.m. Hallam asked her "what I had been doing at the downtown store and
what I had been talking about." She said that her repsonse was "quite noncommit-
tal." Ten minutes later, she said, Hallam returned again , this time to ask her,
"who were the people I had spoken to at the downtown store."
At 9:30 p.m., which was closing time , Sherman was called into Hallam's office.
In the presence of Masco, Sherman was advised by Hallam that she was being dis-
charged. Sherman testified that when she asked Hallam the reason for her discharge
and if Patera was aware of it, Hallam answered by saying, " I am manager. I do
what I want to do. You are being, shall we say you are being fired for our per-
sonalities , shall we say." 7
The decision to discharge Sherman was solely that of Store Manager Hallam.
As we shall see, Hallam asserted that Sherman's overall past performance as an em-
ployee played a part in his determination to terminate her employment. We turn
for the moment to consider this aspect of the case.
There is no need to detail the testimony of Respondent witnesses with respect
to Sherman's deficiencies as an employee for she herself readily admitted her failings.
Thus, Sherman conceded that over the past several years she reported late to work
on an average of several times a month and that Hallam had reprimanded her there-
for; that she had been reprimanded by Hallam for "qualifying customers"; 8 and that
* Sherman testified that her first contact with Anderson was made by telephone on
February 27 However , her testimony does not reveal whether this call was made prior
or subsequent to her encounter with Hallam and Patera in the office
5 Sherman testified that she arrived at the store at 1 p in. which was 30 minutes late.
Masco and Hallam placed her arrival about 1:30 p.m. While this is not a vital element
of the case, I credit the testimony of these witnesses over that of Sherman as to the time
she arrived at the store on this occasion
e Hallam testified that he reprimanded Sherman shortly after she entered the store for
not telling him in advance that she would be late . In this connection , we recall Sherman's
testimony that on the preceding evening she had advised Masco and Hallam that she
might be late in returning from the downtown store. At the hearing Hallam denied any
recollection of Sherman ' s advising him to this effect . In this instance , Sherman's affirma-
tive testimony is credited.
7 Hallam's version of the discharge conversation was substantially the game as Sherman's.
Thus, Hallam testified, "I told Mrs Sherman that I am-that it would be best for all
concerned if we would sever our relations, apparently we were unable to get along, as of
then she was discharged."
B The sales employees take turns on waiting on customers It is against Respondent's
policy for salesmen to ask customers as they enter the store if they are interested in
purchasing a large or a small item. The term "qualifying a customer" relates to any
practice to this effect.
JOHN M. SMYTH COMPANY 1391
she had been reprimanded by Hallam for being rude to customers. While the
evidence reflects that at times other employees also were late in reporting to work
and that other sales personnel also infracted the rule against qualifying customers,
the record as a whole is clear, and I find, that Sherman's conduct in this regard was
considerably worse than the others.9
In addition, Respondent's records reflect that Sherman's earnings for the last sev-
eral years were lowest among the sales employees. Finally, we recall Hallam's testi-
mony that at the time of Sherman's discharge he told her that "we were unable
to get along." It is indeed perceivable, upon the basis of Sherman's own testimony,
that there was considerable substance to Hallam's statement. Thus, when asked on
direct examination if she "got along" with Hallam, Sherman responded by testifying,
"Yes and no. We were like-well, sort of Captain Flagg and Sgt. Quirk. I can only
think of a simile like that. We'd all naturally fight and disagree, it was sometimes
fun."
Conclusions
Aside from its contention that Sherman was discharged for cause, the Respondent
asserts that proof of discrimination is lacking since there is absent a showing that
Respondent had any knowledge of Sherman's union activities.
Clearly, there is no direct testimony whatsoever to show that Sherman's visit to the
union office on the morning of March 1 and her discussion with two employees at
the main store concerning and immediately following this visit were either observed
by or in any other manner made known to any Respondent supervisory employee.
However, if Mrs. Sherman's version of her conversation with Masco upon returning
to the 95th Street store is credited, we in effect would have an admission by Masco
that he somehow learned of Mrs. Sherman's union activities earlier in the day. As
between these two witnesses, the question of whom to credit is not one of easy
resolution. Having carefully observed each of these witnesses while on the stand,
I must candidly state that there was nothing in the demeanor of either which would
afford any real basis for my crediting one over the other. Further, after a careful
study of the record, I find nothing inherently incredible or manifestly inconsistent in
the testimony of either witness. Under these circumstances, therefore, I cannot
credit the testimony of Sherman over that of Masco. In this connection, I think it
significant that Russell Kogan and Joan Bartkowicz, these being the only two em-
ployees to whom Sherman spoke about her union activities on the morning in ques-
tion, were called as General Counsel's witnesses. Neither Kogan nor Bartkowicz
were queried as to whether they communicated their discussion with Sherman to any
other supervisory or nonsupervisory employee nor did they so testify. While this in
itself is not conclusive that they took no such action, it is nevertheless a factor I have
also considered. Presumably during the investigation of this case they were asked
this question; and presumably it was answered in the negative, else they would have
been called upon to so testify. In short, I find that the General Counsel has not
established by a preponderance of the evidence that Respondent had knowledge
of Sherman's union activities. In the absence of such showing, the General Counsel's
case must fall.'°
I believe it appropriate, however-and apart from the question of company
knowledge-to state my further consideration of this case. Hallam, who alone made
the decision to discharge Sherman, testified that the "final reason" for this action was
Sherman's conduct on February 27 in bursting in on his conference with Vice
President Patera. Continuing with his explanation for Sherman's discharge, Hallam
testified, "Between that time [Tuesday] and Thursday evening, I thought it over and
I felt that in view of general conditions, her behavior, poor sales record, it was best
for her and myself and the firm, I would have to let her go."
As heretofore related, Sherman's attitude and work performance for a period long
prior to her discharge was manifestly not that of a satisfactory employee. The fact
remains, however, that Respondent continued to tolerate these deficiencies through-
out this period without taking any action to terminate her employment. This, con-
sidered with the fact that Respondent delayed in effecting the discharge until 2 days
after the incident which it asserts was the final reason therefor, indeed casts some
'There is no evidence that any other employees were reprimanded for being rude to
customers.
11 Sherman testified that subsequent to her return to the 95th Street store, but after the
conversation with Masco, she also mentioned her union activities to Alvin Hawes, a
salesman, and to Julius Curry, the janitor of the 95th Street store. She also stated that
she showed some union pamphlets to Mrs Mazor, a saleslady, while they were having
supper late in the day. There is absolutely no evidence to show that Respondent was
made aware of any of these conversations
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspicion upon the Respondent 's motives . On the other hand, one cannot say that
Hallam 's reason for the delay is necessarily implausible . Thus, in explaining his
failure to take prompt action at the time the incident occurred, Hallam testified
as follows:
Well, I have been at that store, I opened the store, we operated there for ten
years. In the ten year period that store was in operation the only personnel .that
ever left that store left of their own volition, for their own reasons . I studied
it over very carefully. I didn't want to jump at conclusions. I came to the
point where I couldn't go any further. I made the decision . I had to sever
the connection, that was just it, sir . When you work with people for years, you
let things drift, you let them drift, you just go so far. You just can't take it
anymore, that is all.
Moreover, there is a complete absence in this case of any antiunion hostility on
the part of the Employer." To the contrary, the record reflects that Respondent's
porters and maintenance employees are organized and are contractually represented
by the Building Service Union.
In sum , and while the case is not free from doubt, I find that the General Counsel
has not established by a preponderance of the evidence that Sherman's discharge
was in violation of Section 8(a)(1) and (3) of the Act.12 Accordingly, it will be
recommended that this allegation be dismissed.13
There remains for disposition an incident which the General Counsel alleges to be
violative of Section 8(a)( I) of the Act. This incident is alleged to have occurred
in January 1962, approximately 2 months prior to Sherman's termination. It is
based upon a remark allegedly made by Charles Gerlach, whom the complaint al-
leges to be shipping manager and a supervisor within the meaning of the Act, during
a conversation which Sherman had with Gerlach at the main store. However, I
deem it unnecessary to burden this report by setting forth the conflicting testimony
concerning this matter since I find the evidence does not establish Gerlach to be a
supervisor within the meaning of the Act. Thus, Gerlach is principally engaged in
routing small orders, "setting up" loads for shipping, removing sold merchandise
from the floor, and the like. He also works as a greeter at the door two evenings
each week and opens the store in the mornings and closes it at night. One employee
assists him in his shipping duties and it appears that two porters assist him in per-
formance of such physical work as moving furniture. He has no authority to hire,
fire, promote, or reprimand these employees nor does it appear that he has authority
to recommend any such action. In fact, he cannot even grant such minor favors
as time off. His involvement in the assignment of work to these employees is
strictly of a routine nature. Although he is paid on a salaried basis, which is dif-
ferent from the others who are paid on an hourly basis, this factor in itself does not
establish him to be a supervisor as defined in the Act. Accordingly, the allegation
that Gerlach engaged in conduct violative of Section 8(a)(1) of the Act is
dismissed.14
RECOMMENDATION
Having found that Respondent has not engaged in unfair labor practices as al-
leged in the complaint , it is recommended That the complaint be dismissed in its
entirety.
II A lone item of alleged independent 8(a) (1) conduct , other than the alleged questioning
of Sherman by Masco , is noted below.
12 Some favorable argument to Sherman's case might be inferred from her uncontradicted
testimony that in the afternoon of February 28, Hallam asked her whom she had spoken
to and what she had talked about while at the downtown store On the other hand, there
is vnrefuted testimony by Masco tending to indicate that the discharge was nondiscrimina-
tory. Thus, with reference to Sherman's leaving the office upon notification of her termi-
nation, Masco testified , "I went up to Mrs. Sherman , I took her by the hand and asked her
if she would please go back and apologize to Mr . Hallam I said , 'I think something
could be straightened out.' 11
23I also reject General Counsel 's alternative theory to the effect that Sherman's dis-
charge was prompted by her "concerted activities" and that therefore a violation of the
Act occurred Even if it be assumed that Sherman's discussion with Hallam and Patera
on February 27 concerned the grievances of other employees as well as herself, her con-
duct and behavior on this occasion, as heretofore noted, was not of the kind afforded
protection under the Act.
14 The complaint also alleges that Vice President Patera interrogated Harriet Sherman
"concerning union and/or other protected and concerted activity " There being no evi-
dence at all to support this allegation , it is also dismissed