Kostel Shoe Co.

National Labor Relations Board - Board Decisions

Aug 21, 1959

124 N.L.R.B. 651 (N.L.R.B. 1959)

KOSTEL SHOE COMPANY 651
Ben Kostel, d/b/a Kostel Shoe Company, Big Ben Shoe-Per
Markets, and Kostel 's Big Shoe Store and Retail Clerks Inter-
national Association, AFL-CIO, Local 1460. Case No. 13-CA-
.2898. August 01, 1959
DECISION AND ORDER
0
On May 26, 1959, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action but that the Respondent
had not engaged in other unfair labor practices alleged in the com-
plaint, and recommending that such allegations be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief and the General Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner with the modifications and cor-
rections noted below.
The Trial Examiner found that the Respondent constructively dis-
charged Heggie in violation of Section 8 (a) (3) and (1) of the Act.
The Respondent contends that she was not constructively discharged
but voluntarily quit. As found by the Trial Examiner, Heggie was
actually notified at 3 p.m. on June 28, 1958, that she was discharged
but was permitted to work until closing time. About 5 p.m. the same
day, Manager Suto told Heggie she could remain as a part-time
worker. She declined. We believe that, on the foregoing facts, the
General Counsel has established an unlawful actual discharge of
Heggie at 3 p.m., followed a few hours later by an offer of reinstate-
'In adopting the Trial Examiner 's conclusions , we note his inadvertent omission from
his conclusions of law and from his recommended order and notice of any reference to
Respondent 's unlawful interrogation and threats . Accordingly, conclusion of law No. 2,
as adopted , reads:
2: By interrogation and,threats ; and otherwise interfering with, restraining,, and
coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (1) of the Act.
The language of the order and notice has been conformed to conclusion of law No. 2,
as thus adopted.
124 NLRB No. 85.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment which was ineffective to toll back pay because of the reduction
in hours. Moreover, even if we find no actual discharge at 3 p.m., we
would find, like the Trial Examiner, that the subsequent offer of
continued employment only at reduced hours and Heggie's refusal
to work under those conditions constituted a constructive discharge..
As the Respondent's action, under either view, was prompted by
Heggie's union activity, we find, like the Trial Examiner, that the
Respondent thereby violated Section 8(a) (3) and (1.) of the Act.
ORDER
Upon the entire record and pursuant to Section 10(c) of the,
National Labor Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent Ben Kostel, d/b/a Kostel
Shoe Company, Big Ben Shoe-Per Markets, and Kostel's Big Shoe
Store, his agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks International Asso-
ciation, AFL-CIO, Local 1460, or any other labor organization of
its employees, by discriminating against them in regard to their hire
or tenure of employment or any term or condition of employment.
(b) Refusing to employ, or otherwise discriminating against em-
ployees because they have filed charges under the Act.
(c) By interrogation or threats, or in any other manner interfering
with, restraining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist the aforesaid labor
organization or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Mary Wharton immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her
seniority or other rights and privileges, and make her whole in the
manner set forth in Section V of the Intermediate Report.
Make whole Julia Heggie in the manner set forth in Section V of
the Intermediate Report.
(c) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security. payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay
due under the terms of this Order.
KOSTEL SHOE COMPANY 653
(d) Post at its Kennedy Avenue Store, Hammond, Indiana, and
at all other places or stores where notices to employees are customarily
posted, the notice attached hereto marked "Appendix." 2 Copies of
such notice, to be furnished by the Regional Director for the Thir-
teenth Region, shall, after being duly signed by an authorized repre-
sentative of the Respondent, be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within 10 days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the Respondent refused to bar-
gain collectively with the Union in violation of Section 8(a) (5) and
(1) of the Act.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Retail Clerks Inter-
national Union, AFL-CIO, Local 1460, or in any other labor
organization of employees, by discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment.
WE WILL NOT refuse to employ or otherwise discriminate
against employees because they have filed charges against us
under the National Labor Relations Act.
WE WILL NOT by interrogation, threats, or otherwise interfere
with, restrain, or coerce our employees in the exercise of the right
of self-organization, to form labor organizations, to join or assist
Retail Clerks International Union, AFL-CIO, Local 1460, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from such activities.
WE WILL offer Mary Wharton immediately the position of clerk
in our store at 6732 Kennedy Avenue, Hammond, Indiana, with-
out prejudice to her seniority and all other rights and privileges.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole Mary Wharton and Julia Heggie for any
loss of pay suffered as a result of the discrimination against them.
All our employees are free to join or not to join any labor
organization.
BEN KOSTEL , D/B/A KOSTEL SHOE COMPANY,
BIG BEN SHOE -PER MARKETS , AND KOSTEL'S
BIG SHOE STORE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges of unfair labor practices duly filed on July
7, 1958, and January 28, 1959, by Retail Clerks Union, Local 1460, Retail Clerks.
International Association, AFL-CIO, the General Counsel issued a complaint, dated
November 24, 1958, and an amended complaint dated February 18, 1959, alleging
violation of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations
Act (61 Stat. 136) by the Respondent named in the caption hereof. Following the
filing of an answer to the original complaint on December 8, 1958, and an answer
to the amended complaint on March 2, 1959, denying the allegations of unfair
labor practices, hearing was held before the Trial Examiner at Chicago, Illinois, on
March 4, 5, and 6, 1959.
At the hearing all parties were represented by counsel, and were afforded full
opportunity to present and to meet evidence, to engage in oral argument, and to file
briefs. The Respondent argued orally. The General Counsel and the Respondent
filed briefs, respectively on April 10 and 13, 1959, which have been considered.
Upon the basis of the entire record in the case, after consideration of all the
relevant evidence and contentions, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The employment enterprise involved, described in the caption , is an integrated
operation consisting of 13 retail shoe stores , 8 of them located in Indiana, and
5 located in Illinois. The enterprise is conducted by Ben Kostel, its operating head.
Legal ownership is lodged in a partnership consisting of Kostel and his wife, Bess.
Kostel. The stores are operated under various trade names: Kostel Shoe Com-
pany, Big Ben Shoe-Per Markets, or Kostel's Big Shoe Store. Each of the stores is.
engaged in the sale of shoes to the general public at retail. The present proceedings.
involve only one store, located at 6732 Kennedy Avenue, Hammond, Indiana.
In the course and conduct of business operations during the calendar year 1957
the Respondent purchased for the retail stores located in Indiana and Illinois shoes.
and related products valued at in excess of $300,000, of which in excess of $150,000
was purchased outside the States of Indiana and Illinois and shipped directly to the
Respondent's stores located in those States.
Over the same period of time the Respondent sold shoes and related products
having a gross retail value in excess of $500,000 , less than $75,000 of which repre
-sented sales at the Kennedy Avenue store.
The Respondent denies that he is engaged in commerce. However, under its
current jurisdictional standards , the Board exerts jurisdiction over retail enterprises
whose annual gross volume of business is $500,000.
The Kennedy Avenue Store is an integral part of a multistate enterprise. Orkin
Exterminating Company, Inc., 115 NLRB 622. Jurisdiction is to be determined
on the totality of the employers' operations. Potato Growers Cooperative Com-
pany, 115 NLRB 1281. That the volume of retail sales at the Kennedy Avenue
store is less than $75,000 is therefore not dispositive. As will be seen, the Respond-
ent's contention is that the appropriate bargaining unit consists of all stores in the
KOSTEL SHOE COMPANY 655
enterprise. It is consequently found that the Respondent is engaged in and that his
operations affect commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks International Association , AFL-CIO, Local 1460, is a labor organ-
ization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
In substance the issues raised by the complaint and the evidence are the following:
(1) Whether about June 28, 1958, the Respondent failed and refused to bargain
with the Union. The principal-and I find dispositive-question in this respect is
whether the Kennedy Avenue store alone constitutes an appropriate bargaining unit.
(2) Whether the Respondent discharged Julia Heggie on June 28, 1958, because
of her union and concerted activities.
(3) Whether the Respondent refused employment to Mary Wharton about
October 18, 1958, and January 10, 1959, because of her union and concerted
activities and because she had filed charges of unfair labor practices under the Act.
(4) Whether about June 28 and 29, 1958, Helen Suto, manager of the Kennedy
Avenue store, interrogated Heggie and Wharton as to their union and concerted
activities, and threatened Wharton with economic harm and discharge if she con-
tinued to participate in such activities.
The Respondent denies all the allegations of unfair labor practices. More
specifically the Respondent denies that the Kennedy Avenue store constitutes an
appropriate bargaining unit. Further the Respondent asserts that Julia Heggie was
not discharged, but that she quit because of her unwillingness to accept a reduction
in hours. As to Wharton, the Respondent admits failure to employ her at about
the times indicated, but contends that this failure was a consequence of Wharton's
previous action in leaving the Respondent's employment to accept employment with
a competitor of the Respondent; and further, that there was no work available for
Wharton when she applied.
We turn now to a discussion of the issues in the order stated in the complaint.
B. The alleged refusal to bargain
1. The demand
In June 1958 the Respondent employed three persons at the Kennedy Avenue
store: Helen Suto, the manager, whom I find to be a supervisory employee, and
two clerks, Julia Heggie and Mary Wharton.
On June 25, 1958, Heggie and Wharton joined the Union and designated it as
their collective-bargaining representative. On about June 27 the Respondent
received written notification from the Union of its claim to represent employees of
the Kennedy Avenue store. At the same time the Union requested the Respondent
to recognize it as the bargaining agent for that store and to meet with the Union
to discuss a bargaining agreement. The Respondent did not accord such recognition.
2. The employment enterprise
The Respondent's 13 retail shoe stores are located within a 50-mile radius of
East Chicago, Indiana, and all but 1 being within a 13-mile radius of that city. The
Respondent employs about 50 employees, mainly female, some full time, some part
time. On the average each store has two to three full-time employees including a
manager who, though without direct power to hire or to fire generally, has authority
to discharge employees for theft and to make effective recommendations respecting
whether employees shall be hired.
The Respondent's headquarters are in an office in East Chicago, Indiana, in a
building which also contains the Respondent's warehouse and one of the retail
stores. Ben Kostel is head of the concern. He is assisted by his brother, Irving
Kostel, who is also "top management." The remainder of the personnel comprises
clerical help at the office, a part-time auditor , and the managers and clerks in the
stores.
All permanent books and records are kept at the East Chicago office. All mer-
chandising programs, prices, and advertising are developed and handled by that
office, as is the maintenance of the stores. All purchases are made through the
office. Purchase orders are generally shipped by the manufacturer to the warehouse,
where items are checked, priced, and entered upon inventory records which are kept
in the office. The stock is then sent out to the stores for sale. At times, upon
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specific direction, a shipment may be sent directly to a store by the vendor. No
stock purchases are made through the individual stores or by their personnel. All
bills are paid centrally by the office.
The stores are supervised initially by the managers, under the direction of the
Kostels. Either Ben or Irving Kostel will visit each store two to three times a week
to check the condition of its stock and in general to supervise the operation. Three
or four times a year the Kostels take a physical inventory of each store.
All personnel policy is set in the East Chicago office by Ben Kostel. Wages are
paid by checks drawn at the office and forwarded to the individual store manager
for distribution to the employees. Rates of pay, vacation schedules, wage increases,
layoffs, and leaves of absence are determined by Ben Kostel. Wages and working
conditions are uniform. Female clerks, for example, receive 75 cents an hour
base pay, plus 1 percent commission on sales, with raises of from 5 to 10 cents
per hour semiannually if merited. There is no clear evidence as to seniority practice.
Occasionally employees may be transferred temporarily from one location to another
in the same area for a day or so, but there is no evidence of permanent interchange.
Store managers do not make such transfers, which are effected at the instance and
direction of the Kostels.
Fiscal records are maintained at the office and not at the stores. At the end of
each day the store manager deposits the store's receipts in a nearby bank, from which
they are drawn by the office into a central account. Where there is no bank con-
venient to the store the funds may be transmitted by other means. Each day the
store manager also forwards to the office the cash register tape and the sales slips
for the day. The data on these are checked and tabulated at the office and transferred
to permanent records and also posted to the account of each employee.
There is no history of collective bargaining among the Respondent's stores. No
union is seeking to represent the Respondent's employees on any broader basis than
the Kennedy Avenue store. There is no evidence of any activity by any other union
among the Respondent's employees.
3. The appropriate unit
It is my conclusion that the Respondent's failure or refusal to recognize the Union
as a bargaining representative was not violative of the Act, for the reason that, in
my opinion, the Kennedy Avenue store does not constitute an appropriate bargaining
unit. I adopt the Respondent's position to that effect.
Applicable Board decisions establish the principle that where management control
is highly centralized and employment conditions uniform the appropriate bargaining
unit should embrace the employees of all stores located within an employer's admini-
strative division or geographical area, unless there are unusual circumstances pres-
ent, such as substantial autonomy and discretion in individual store management.
These decisions, which I find controlling here, are Grand Union Company, 81 NLRB
1016; Father & Son Shoe Stores, 117 NLRB 1479, and Robert Hall Clothes Inc.,
118 NLRB 1096. Cf. Duval Jewelry Company, 122 NLRB 1425.
The general principle was thus stated by the Board in the Robert Hall case at
p. 1098:
The Board has held, in cases involving chains of retail stores, that, absent
unusual circumstances, the appropriate bargaining unit should embrace em-
ployees of all stores located within an employer's administrative division or
geographical area.
The instant case involves a chain of retail stores which are located within the
Employer's sole administrative division and geographical area. Management control
is highly centralized and employment conditions uniform throughout the system.
No unusual circumstances suggest departure from the general principle. Autonomy
and discretion of individual store management is not greater-indeed is generally
less-than that present in the cases cited above, in which the Board found individual
store units inappropriate.
It follows that the Kennedy Avenue store does not constitute an appropriate
bargaining unit . The allegation that the Respondent refused to bargain with the
Union should therefore be dismissed.'
11 have not overlooked the fact that there is no evidence of a systemwide seniority
policy, or a policy of permanent interchange of employees. However, I find those factors
insufficient under the circumstances to overcome the considerations militating against a
one-store unit. The Board is precluded from giving controlling weight to the fact that
the Kennedy Avenue store constitutes the extent of the Union's organization. Grand
Union Company, 81 NLRB 1016 at 1017.
KOSTEL SHOE COMPANY 657
C. The discrimination
1. Julia Heggie
It has been seen that the Respondent was notified about June 27 that the employees
of the Kennedy Avenue store had taken membership in the Union. Thereafter a
number of incidents occurred which resulted in the termination of Julia Heggie's
employment, and some months later in Mary Wharton's being unable to secure fur-
ther employment with the Respondent for a period of time. Some of the testimony
as to these events is disputed. The Board's principal witnesses as to the occurrences
were Heggie and Wharton, and-to a lesser extent-former clerk Mary Bernard.
The Respondent has attacked the credibility of these witnesses. I have considered the
testimony and the basis for the Respondent's attack. However, based upon my
observation of the witnesses on the stand, and after analysis of the evidence, I have
concluded that though there may be immaterial conflict of opinion or mistake in
date the testimony of Heggie, Wharton, and Bernard is correct in all important and
essential aspects, and is therefore to be credited. The following findings of fact are
in the main based thereon. Where there is material conflict between their testimony
and that of witnesses for the Respondent, I have credited the testimony of Heggie,
Wharton, and Bernard.
On the afternoon of Saturday, June 28, 1958, having received the Union' s request
for recognition, Ben Kostel went to the Kennedy Avenue store for the purpose of
ascertaining whether the employees had joined the Union.
When he arrived at the store Kostel took Store Manager Suto to a drugstore across
the street. Over coffee he told Suto about the letter from the Union. Kostel then
asked Suto to find out which employees had joined the Union.
Suto returned to the store and questioned Heggie and Wharton. Heggie forth-
rightly replied that she had joined, and defended her right to do so. Suto pressed
Heggie as to the details and circumstances. Suto expressed her displeasure and
indicated resentment that Heggie should have taken such action "behind my back."
Suto further told Heggie that Ben Kostel could not have a union because he had too
many stores. Suto also said that she would have to tell Kostel that Heggie had joined
the Union.
Manager Suto also questioned Mary Wharton as to whether she had joined the
Union. Wharton, who had just been hired on June 1, and fearful of losing her job if
Suto learned that her union membership had been acquired since that date, admitted
union membership, but sought to convey the impression to Suto that she had secured
it in prior employment. As Wharton put it in her testimony: "I told her how did she
think I had worked as long as I had worked, and not belonged to a union"; that "I
thought that maybe, if I told her, why I wouldn't have a job any longer. I needed
a job and wanted one." And again: "I figured if I answered the question, it wasn't
lying and yet it answered what she asked, because I felt that [if) she felt I had joined
a union right off, I wouldn't have a job."
Later in the day, about 3 p.m., Respondent Ben Kostel returned to the store and
had another conversation with Manager Helen Suto. After he left, Suto informed
Julia Heggie that Ben Kostel had told her (Suto) to fire Heggie because Heggie
had joined the Union. Suto further told Heggie that she was sorry, that Heggie was
a good worker, but that she (Suto) had a boss over her, too. However, Suto per-
mitted Heggie to finish the day out.
On the same afternoon Manager Suto told Mary Wharton that if Wharton be-
longed to the Union, Suto would have to cut her hours.
Still later in the afternoon, about 5 p.m., Irving Kostel, brother of Respondent
Ben Kostel, came into the store, talked to Helen Suto, and then left. After he had
gone Manager Suto told Julia Heggie that Heggie could stay on as a part-time worker.
When Heggie indicated reluctance Suto told Heggie to call her the next day. Suto
further said to Heggie that Ben Kostel could not have a union because he had too
many stores: "If he had it one place, he would have to have it another place."
Heggie, unwilling to be employed on a part-time basis, and upset, did not call
Suto the next day or return to work thereafter. On Monday, June 30, she got in
touch with Union Representative George Leavitt and informed him that she had
been discharged because she had joined the Union. On July 7, 1958, the Union
filed a charge with the Board to that effect, also alleging refusal to bargain and
conduct by the Respondent in the nature of restraint and coercion.
About August 1, 1958, a deputy of the Indiana Employment Security Division
ruled that Heggie was ineligible for unemployment compensation based on the
Respondent's statement that Heggie was not discharged but rather had not returned
to her job after saying that she would not work the designated hours. An appeal
525543--60-vol. 124-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was filed by Heggie and hearing thereon noted , but the record does not disclose
the outcome.
Following the termination of Heggie 's employment Wharton worked from 38 to
52 hours a week until a replacement was found for Heggie . A series of such replace-
ments were hired during the period from June to October. During that period of time
the clerks worked from 33 to 38 hours per week.2
2. Mary Wharton
Manager Suto and Mary Wharton got along well. Suto considered Wharton,
though new, to be a good employee . It has been related how , because of concern for
her job, Wharton sought to leave the impression with Suto that her union affiliation
was not of recent origin. And it has been seen that on June 28 Suto told Wharton
that if Wharton belonged to the Union , Suto would have to cut her hours. Suto
also made other coercive statements to Wharton.
Thus, on the Monday after the interrogation, June 30, Suto told Wharton that if
Wharton "wanted to remain working" she would "have to forget about the union,"
ascribing as reason therefor that "Mr. Kostel couldn 't have anyone working for him
who belonged to the union." On the same day Suto also told Wharton that it had
been time for Heggie to have gotten a raise, and that she (Suto ) could not understand
why Heggie had "messed herself up."
On July 7, 1958, the Union filed its first charge of unfair labor practices. One of
the allegations in that charge was that Wharton had been interrogated and threatened
by the store manager relative to union affiliation . A copy of this charge was served
on the Respondent on the following day, July 8. Thereafter , on a number of occa-
sions, Manager Suto reiterated to Wharton that if Wharton wished to continue work-
ing for the Respondent she would have to "forget about the union ," adding that
Kostel could not have a union because he had "too many stores."
Nevertheless Wharton continued to work for the Respondent until October 1958
when her employment terminated under the following circumstances.
On October 7, 1958, the manager of a competitive store, called Crown, made
Wharton an apparently attractive offer as cashier . Wharton was noncommital and
said that she could not leave the Respondent without giving notice. Wharton, un-
decided, then took up the matter with Suto , telling Suto that if she accepted the job
she would give Suto notice. After some discussion Suto told Wharton that if the
latter did not come to work the next day by 1 p.m. (Wharton 's general starting hour),
Suto would conclude that Wharton had decided to take the Crown job.
Wharton did not take the Crown job. On October 8 she became ill and was re-
moved to a hospital.
On October 8, when Wharton did not come in to work, Manager Suto asked clerk
Mary Bernard to ascertain the reason . Bernard investigated and on the next morn-
ing, October 9, reported to Suto the facts concerning Wharton's illness. Sometime
later Suto herself telephoned Wharton's home and talked to Wharton 's husband as
to Wharton 's condition . However, he could give Suto no information as to when or
whether Wharton would be able to return to work. Suto then hired another clerk,
9 Manager Suto's explanation of the termination of Heggie , which I do not credit, is
as follows :
In the conversation at the drugstore Ben Kostel instructed Suto to cut the hours of
the employees because "business is poor." That testimony Ben Kostel denied. Upon re-
turning to the store, Sato told Heggie that Heggie was getting a raise ( this Heggie
denied ). However, Soto said nothing to Heggie at that time about cutting her hours.
Suto had no explanation for this omission . Later in the day Suto told Heggie that busi-
ness was poor and that she would have to cut Heggie ' s hours to between 30 and 35 hours
per week. Suto's further testimony was that she did not inform Ben Kostel as to the re-
sults of her interrogation of Reggie and Wharton on Saturday , but that she did it some-
time during store hours on Monday, July 30 , at which time she also assertedly told Kostel
that Heggie was not returning to work. I-low Soto could have done that on Monday is not
disclosed . Ben Kostel testified that he was in Harvey , Illinois, until late Monday. There
is no indication that he visited the Kennedy Avenue store that day . The store has no
phone . Hostel's testimony does not disclose any communication with Suto on Monday.
It is implausible that Soto did not report the facts to Ben Kostel in his second visit to
the store on Saturday afternoon.
Asked whether she had not in fact told Heggie in the first conversation of Saturday that
Heggie was fired , Suto answered that she did not remember . Later she denied that she
discharged Heggie.
Suto was an evasive and confused witness . I cannot credit her testimony on material
issues where contradicted.
KOSTEL SHOE COMPANY 659
Dottie Hobbison. Suto's reason for her interest in Wharton was her desire to have
Wharton continue with the Respondent.
Wharton was hospitalized until October 15, 1958. On being released she went to
the store and asked Manager Suto about her job. Suto told Wharton that she had
hired Hobbison in Wharton's place, but that Hobbison was expected to quit shortly,
and that if she did so, Wharton could come back to work.
Hobbison did quit on that weekend, October 18. Late in the afternoon of that
day Manager Suto sent a message to Mary Wharton inquiring whether Wharton could
come back to work on the next day, Sunday, a working day. Wharton immediately
came to the store in response to the message, and explained to Suto that her doctor
would not permit her to return to work until Monday. Suto thereupon told Wharton
to report on Monday.
Ben Kostel was in the store when Suto talked to Wharton. While Wharton re-
mained, Suto had a conversation with Kostel. After Kostel left the store Suto re-
turned to Wharton and told Wharton that she was sorry, but that Ben Kostel had said
that Wharton could not come back, giving as a reason that if she had "quit him once
[she] would quit him again."
On the following day, in reply to comments about the situation by clerk Mary
Bernard, Manager Suto told Bernard that she (Suto) wanted Wharton "very much,"
but that there was something about Kostel's not rehiring Wharton that Bernard
"didn't know or understand."
On the next day, Monday (October 20), Bernard, at Suto's direction, telephoned a
number of persons listed on the store's card file of prior applicants for employment
as to their availability. One, a Mrs. Brockman, was at liberty and was hired by Suto.
Brockman worked until just before Christmas, when she quit for medical reasons.
In the interim, about October 29, Manager Suto told Field Examiner Hall of the
Board, during his investigation of the case, that if a vacancy occurred Wharton would
be given an opportunity to work.
However, Wharton was not notified when Brockman quit. Instead, about Decem-
ber 26 a sign was put in the store window, "Female Sales Help Wanted." Calls were
made to a number of persons on the Respondent's card file but without success.
In the meantime, unable to secure work with the Respondent, Wharton went to
work' with Crown for a short time. However, she continued her efforts to secure
employment with the Respondent.
One day in early January 1959 while the help-wanted sign was still in the window,
Wharton stopped at the store to tell Manager Suto that Mary Bernard could not come
to work because her son was ill. Wharton took the occasion to speak to Suto again
about employment. Suto took a dime from the cash register and told Wharton to
telephone Ben Kostel, saying that she could not hire Wharton without his consent.
Suto further told Wharton that what Kostel had "against" Wharton was the Union.3
After this conversation with Suto, Wharton telephoned Kostel and asked him for
employment. Kostel told her that he could not employ her at that time, saying that
they were changing the hours, and that he was not sure that help would be needed
because business was slow. Kostel further said that he would contact Wharton again.
Several days later, around January 10, 1959, Wharton telephoned Ben Kostel once'
more. On this occasion Kostel again referred to the problem of hours. Wharton
said, "Mr. Kostel, there must be something else," and asked what it was. Kostel then
said that Wharton had cost him "a lot of money" and caused him "a lot of trouble,"
and that the Labor Board had been "on his back." However, Kostel told Wharton
that after he got the matter "settled" he would take Wharton back?
S Wharton placed the date of this conversation with Suto as January 7. however, Mary
Bernard testified to an incident, which she also placed on January 7, in which Suto told
Bernard that Wharton "had been in . . . asking for her job again" ; that she (Suto)
would like to have Wharton back, but that the matter was "out of her hands." The
Respondent adverts to this inconsistency in dates as establishing Bernard's incredibility.
I do not find that conclusion warranted.
Bernard, though unaware of the conflict (witnesses were excluded), also testified that
her recollection as to dates might not be accurate. Suto's statement to Bernard indicates
that the conversation was subsequent to a visit by Wharton. In any event the conflict
is not of material bearing. Bernard's testimony as to the incident is not denied by Suto.
Suto herself testified that Wharton came to the store in January while the sign was in
the window and asked Suto about employment, and that Saito suggested that Wharton
telephone Kostel. Both Bernard and Wharton impressed me as truthful witnesses.
a Ben hostel denied telling Wharton that he would give her a job when the Labor
Board got off his back. His testimony is that he told Wharton that he would give her a
job when business picked up. The remainder of Wharton's testimony as to the conversa-
tion, the basis of the above findings, is undenied. I credit the testimony of Wharton.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The help-wanted sign remained in the store window until about January 10 or 11
when Helen Suto's son, Frank Suto, a high school student, was hired-apparently
part time. Frank Suto did various cleaning work around the store. However, he also
did work performed by the clerks.
During the course of the hearing the Respondent offered, and Wharton accepted,
reemployment at the Kennedy Avenue store. The contemporaneous explanation
stated by the Respondent was that business had now picked up.
D. Concluding findings
Conclusions as to the refusal-to-bargain allegation have been previously stated.
1. Interference, restraint, and coercion
On the afternoon of Saturday, June 28, 1958, as we have seen, Ben Kostel went to
the Kennedy Avenue store for the purpose of ascertaining whether the employees had
joined the Union. No legitimate reason was advanced by Ben Kostel for this action.
Since it was his consistent position, as he testified-and as he told Union Representa-
tive Leavitt after receiving the Union's letter-that he wished the matter resolved by
the NLRB, and since the statements of Store Manager Helen Suto to Heggie and
Wharton indicate that he did not intend to deal with the Union, Kostel's purpose in
desiring the information as to the clerks' union membership could not have been a
"bona fide attempt . to determine the validity of the Union's representation
claim." (A. E. Nettleton Co., 108 NLRB 1670; Blue Flash Express, Inc., 109
NLRB 591.)
. Pursuant to Kostel's instruction, Store Manager Suto interrogated Heggie and
Wharton as to their union membership and affiliation, in the course thereof express-
ing her displeasure and resentment because of Heggie's action, and further saying
that Kostel could not have a union. Finally Suto told Heggie that Heggie was dis-
charged because she had joined the Union.
Suto told Mary Wharton that Wharton's hours of work would be cut if she be-
longed to the Union, and that if Wharton wanted to remain working for the Re-
spondent she would have to forget about the Union; she further told Wharton that
Ben Kostel could not have anyone working for him who belonged to the Union, and
could not have a union in the store.
It is clear from the context of its occurrence, and it is found, that the above course
of conduct constituted threats of reprisal in employment by the Respondent for union
membership, affiliation, or activity on the part of its employees. Whether the threats
were carried out is immaterial. Their mere utterance was coercive. That the inter-
rogation itself was coercive is apparent from Wharton's attempt, out of fear for her
job, to convey the impression to Manager Suto that Wharton's union membership
was not of recent origin.
It is found that by the above-described course of conduct the Respondent inter-
fered with, restrained, and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act.
2. The discharge of Heggie
As has been seen , Heggie was discharged by Manager Suto on June 28, with the
explanation that the reason for the discharge was Heggie's action in joining the
Union. The Respondent's denials that Heggie was discharged discriminatorily are
not credited. Discharge for the reason found is a discrimination in violation of
Section 8(a) (3) of the Act.
Heggie's discharge was later modified to the extent of rescinding the termination
and giving Heggie the option of remaining on a reduced work schedule. However,
that modification did not eliminate the discrimination. It merely changed its form.
Heggie was not required by the Act to submit to a reduction of income as a reprisal
for having joined a union. Since her separation was the direct and reasonable con-
sequence of the Respondent's action in imposing an unlawful condition of employ-
ment upon Heggie, the separation constituted a constructive discharge of Heggie
by the Respondent.
The fact that the Indiana State authorities may have ruled that Heggie was ineli-
gible for unemployment compensation, based on the Respondent's statements as to
termination, has been considered, but does not outweigh the more affirmative evi-
dence here as to the real nature of the separation.
What motives moved the Respondent to retain Wharton while discharging Heggie
only the Respondent knows. However, if it is considered material, a number of
reasons may be suggested. It is not necessary to discharge all members of a union
KOSTEL SHOE COMPANY 661
to make the point that union membership will not be tolerated . Discharge of both
clerks here at the same time would no doubt have created operating problems for the
Respondent . The loss of only one union member was necessary to destroy the
Union 's majority status in the store . Suto liked Wharton . Wharton 's statements
to Suto indicated that, unlike Heggie-who defended her action in joining the
Union-Wharton was a passive union member, her membership a leftover from
prior employment . In the case of Wharton the Respondent rightly judged that a
warning and threats were enough to intimidate her. It was not until later , in July,
that the Respondent learned that Suto's threats to Wharton had been reported to
the Union.
In any event , whatever the Respondent 's reasons for retaining Wharton , the direct
evidence establishes the Respondent 's illegitimate motivation in the termination of
Heggie.
It is consequently concluded that Julia Heggie was discharged by the Respondent
on June 28 , 1958, because of her union membership and activities , thereby dis-
couraging membership in the Union in violation of Section 8(a) (3) of the Act, and
interfering with, restraining , and coercing employees in violation of Section 8(a) (1)
of the Act.
3. Mary Wharton
The Respondent 's defense as to Mary Wharton is that she was not rehired because
she had taken employment with Crown , a competitor , and therefore the Respondent
could not be sure that she would not do so again . A subsidiary contention is that
there was no work available. These defenses are refuted by the objective evidence.
We have seen that Wharton did not go to work for Crown until after the Respond-
ent refused to hire her . There is no reasonable possibility of good-faith mistake by
the Respondent as to the reason Wharton did not come to work on October 8.
Manager Suto learned of Wharton 's illness promptly, upon her own inquiry. Thus;
Suto could not have been under any misapprehension that Wharton had gone to
work for Crown. Suto wished to retain Wharton ; indeed that was the reason Suto
sought to learn on October 8 what the situation was.
Under the circumstances , it is inconceivable that Suto would have informed Ben
Kostel, or have permitted him to persist in the belief , that Wharton had left the
Respondent to take employment with Crown . I therefor cannot credit the Respond-
ent's assertion that Wharton was denied employment by the Respondent for that
reason . The subsidiary contention to the effect that there was no work available
is likewise unsustained.
Job openings became available which Wharton could fill : The vacancy left by
Hobbison in October, for which Suto wanted Wharton , and for which Brockman
was hired , and the vacancy left when Brockman quit around Christmas . The Re-
spondent was advertising for help at the very time Wharton was being refused
employment . Ben Kostel 's explanations to Wharton in January 1959 as to why
he could not rehire her at that time are consistent only. with the conclusion that
Wharton was being punished for her union activity and for having filed charges
of unfair labor practices against the Respondent . Suto specifically told Wharton
that it was the Union which Kostel had "against " Wharton.
Upon consideration of all the circumstances it is my conclusion that the Respond-
ent discriminatorily refused to reemploy Mary Wharton in October 1958 and again
in January 1959 because Wharton had engaged in union and concerted activities
protected by the Act , and because Wharton had filed charges under the Act. It is
further found that by such action the Respondent discriminated in violation of
Section 8(a)(3) and (4) of the Act, and interfered with , restrained, and coerced
employees in violation of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with its
operations described in section I, above, have a close, intimate , and substantial rela-
tion 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
• Having found that the Respondent has engaged in unfair labor practices , it will
be recommended that the Respondent cease and desist therefrom and take certain
affirmative and remedial action designed to effectuate the policies of the Act.
Since her discharge by the Respondent, Julia Heggie has secured more desirable
employment , and no longer wishes to return to work for the Respondent. As to her
it will be recommended that the Respondent make her whole, in accordance with
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's usual policies, for wage losses incurred as a consequence of her discharge
during the period from June 28, 1958, to the date Heggie secured the employment
she held at the time of hearing.
As to Mary Wharton the Respondent offered at the hearing, and Wharton accepted,
reemployment. Whether that engagement was carried out, and to what extent, is
of course not presently apparent. Effectuation of the policies of the Act requires
an affirmative order of reinstatement. It will therefore be recommended that the
Respondent offer Mary Wharton immediate and full reinstatement to the position
of clerk in the Kennedy Avenue store with all customary rights and privileges, and
make her whole, in accordance with the Board's usual policies, for any wage losses
incurred as a result of the discrimination against her. Wharton was available for
work on October 20, and was originally directed by Suto to report on that day. The
back-pay period will therefore begin to run on October 20, 1958.
It having been found that the Respondent did not refuse to bargain collectively, it
will be recommended that that allegation of the complaint be dismissed.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Retail 'Clerks International Association, AFL-CIO, Local 1460, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Julia
Heggie and Mary Wharton, thereby discouraging membership in a labor organiza-
tion, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By discriminating against Mary Wharton because she had filed charges under
the Act, the Respondent has engaged in unfair labor practices within the meaning
of Section 8 (a) (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not refused to bargain collectively within the meaning
of Section 8(a)(5) of the Act.
[Recommendations omitted from publication.]
Anchorage Businessmen 's Association, Drugstore Unit , and its
Member Employers : E. A. Johnson , d/b/a Vista Pharmacy;
Eastchester Drug, Inc., d/b/a Eastchester Drugs and d/b/a
Save More Drugs ; Denali Drug Company, ,Inc.; U lmar-Burgess,
Inc., d/b/a Rexall Drugs; Hewitt's Drugstore , Inc.; Bert's
Drugs, Inc., d/b/a Bert's Payless Drugs and d/b/a Bert's
Fifth Avenue Drugs; Bert 's Spenard Drugs, Inc.; Francis
Jones, d/b/a Bi Rite Drugs ; John Erickson, d/b/a Thrifty
Drugs and Anchorage Professional Pharmacists Association,
Inc. and Retail Clerks International Association , Local No..
1496. Cases Nos. 19-CA-1527 and 19-CB-498. August. 21, 1959
DECISION AND ORDER
On September 30, 1958, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
124 NLRB No. 72.