Marshall Field & Co.

National Labor Relations Board - Board Decisions

Aug 8, 1941

34 N.L.R.B. 1 (N.L.R.B. 1941)

DECISIONS AND ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD
In the Matter of MARSHALL FIELD & COMPANY and DEPARTMENT STORE
EMPLOYEES UNION, LOCAL 291 OF UNITED RETAIL , WHOLESALE AND
DEPARTMENT STORE EMPLOYEES OF AMERICA , C. I. O.
Case No. C-1854.-Decided August 8, 19.4,1
Jurisdiction : retail department store.
Unfair Labor Practices
Interference, Restraint, and Coercion: employer held responsible for anti-union
remarks, conduct, and attempted espionage of supervisory employees.
Adoption of rule, and threatening employees with discharge for violation
thereof, prohibiting union activity and discussion during working hours in
large retail department store, held not to violate Section 8 (1) of the Act.
Dtscriminaion : discharge of two employees for union activity; previous transfer
and demotion of one of these employees from supervisory position because of
her union activities held not violative of Act.
Remedial Orders: reinstatement and back pay awarded.
Mr. Robert R. Rissman, for the Board.
Pope cfr Ballard, by Mr. Ralph E. Bowers and Mr. Henry E. Sey-
farth, of Chicago, Ill., for the respondent.
Mr. Francis Heisler, of Chicago, Ill., for the Union.
Mr. Herbert N. Shenkin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on December 19, 1940, by
Department Store Employees Union, Local 291 of United Retail,
Wholesale and Department Store Employees, affiliated with the Con-
gress of Industrial Organizations,' herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Regional
Director of the Thirteenth Region (Chicago, Illinois) issued its com-
plaint dated December 28, 1940, against Marshall Field & Company,
Chicago, Illinois, herein called the respondent, alleging that the
- i The name of the parent organization prior to January 1941 was United Retail and
Wholesale Employees of America , and it was in this a - ne that the charges were filed.
34 N. L. R. B., No. 1
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and notice of hear-
ing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent (1) discouraged membership in the
Union by, on or about May 22, 1940, discharging Anice Swift, and on
or about June 1, 1940, discharging Georgia Papas Kelly,2 employees in
the respondent's State Street department store, and thereafter failing
and refusing to employ them, for the reason that they had joined and
assisted the Union and its predecessor Marshall Field Employes' Pro-
gressive Association, herein called the Association, and had engaged
in concerted activities for the purpose of collective bargaining and
other mutual aid and protection; (2) since May 1, 1940, advised, urged,
and warned its employees not to become or remain members of the
Association or of the Union; (3) threatened with discharge any em-
ployee who became or remained a member of or was active in behalf
of the Association or the Union; and (4) by the foregoing and by
other acts interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
On February 17, 1941, the respondent filed its answer admitting
substantially the allegations of the complaint concerning the nature
and interstate character of its business, but denying that it had en-
gaged in or was engaging in the alleged unfair labor practices.
Pursuant to notice a hearing was held from February 20 to
March 6, 1941, at Chicago, Illinois, before Howard Myers, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and the Union were represented by counsel and par-
ticipated in the hearing. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. At the opening of the hearing
the Trial Examiner granted a motion of counsel for the Board to
amend the complaint by extending to February 19, 1941, the period
during which the unfair labor practices were alleged to have oc-
curred. During the course of the hearing counsel for the respondent
moved to strike certain testimony of Georgia Papas Kelly with
regard to a conversation she had with two employees of the Fair
Store, a retail department store in Chicago, Illinois. The Trial
Examiner reserved decision on this motion and denied it in his Inter-
mediate Report, referred to below. At the close of the hearing
counsel for the Board moved to conform the complaint to the proof
and counsel for the respondent moved to conform the answer to the
2 Erroneously referred to in the complaint as Georgia Pappas Kelly and sometimes
referred to in the record as Georgia Kelly, Georgia Ann Papas, and Georgia Papas.
MARSHALL FIELD & COMPANY 3
proof. Both motions were granted by the Trial Examiner without
objection. During the hearing the Trial Examiner made numerous
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed all the 'rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. At the conclusion of the hearing the
Trial Examiner offered all parties an opportunity to argue orally
before him but only counsel for the Board took advantage of this
offer. The parties were also advised that they might file briefs with
the Trial Examiner but no briefs were submitted.
On April 3, 1941, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon the respondent and the
Union, wherein he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the Act. He recommended that the respondent cease and desist
from such practices, that it offer reinstatement with back pay to
Anice Swift and Georgia Papas Kelly, and that it take certain
other remedial action.
The respondent filed exceptions to the Intermediate Report and
to the record on May 8, 1941. The respondent and the Union filed
briefs with the Board on May 28 and June 7, 1941, respectively. At
the request of the respondent a hearing was held before the Board
in Washington, D. C., on June 24, 1941, for the purposes of oral
argument. The respondent and the Union were represented by
counsel and participated in the argument.
The Board has considered the respondent's exceptions, and the
briefs filed by the respondent and the Union, and, in so far as the
exceptions are inconsistent with the findings of facts, conclusions
of law, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Marshall Field & Company, an Illinois corporation, has its prin-
cipal office and place of business in Chicago, Illinois. At its store
in Chicago, herein referred to as the State Street Store, the respond-
ent conducts a retail department store business for the purchase,
sale, and distribution of a general line of merchandise including food
products, household furnishings and equipment, hardware, electrical
supplies, sporting goods, cosmetics, dry goods, books, stationery, lug-
gage, wearing apparel, and other commodities and merchandise. The
State Street Store is the only enterprise of the respondent involved
in this proceeding.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent owns all the stock in Frederic Nelson, a retail de-
partment store at Seattle , Washington ; in Marshall Field & Com-
pany, a New Jersey corporation ; and in the Davis Company , an Illi-
nois corporation . It also owns and operates a woolen mill and a
bedspread mill at Spray, North Carolina; a rug mill at Leaksville,
North Carolina ; and a blanket mill and a sheeting mill at Draper,
North Carolina . In addition to the above mills, the respondent owns
and operates three other textile mills located in North Carolina and
two mills located in Virginia.
Approximately 85 per cent of the raw materials used in the- manu-
facturing processes at the mills located in North Carolina and Vir-
ginia is purchased outside the States of North Carolina and Virginia.
Approximately 90 per cent of the finished products manufactured by
each of the said mills is sold and transported to points located outside
of the States of North Carolina and Virginia . The products of the
said mills are sold through salesmen, retailers ,, and mail -order houses
located in various States of the United States.
The respondent owns and operates a plant located at Zion, Illinois,
where it is engaged in the manufacture , sale, and distribution of cur-
tains. Approximately 90 per cent of the raw materials used at this
plant is purchased outside of the State of Illinois . Approximately
80 per cent of the finished products of this plant is sold and trans-
ported to points located outside the State of Illinois.
The total cost of the raw materials and supplies used during 1940
by the respondent in its manufacturing operations at the above-
named mills and plants was approximately $8,000,000. For the same
period the total value of the sales of the finished products was in
excess of $15,000,000.
In its business the respondent uses approximately 500 trade marks.
Its products are manufactured , sold, and distributed under the trade
name of Karastan Rug Mills, Zion Lace Curtain Mill , and Marshall
Field & Co. The respondent owns and operates five retail depart-
ment stores , four of which are located in or around Chicago, and
one in Seattle , Washington; and six warehouses and delivery stations,
all located in or around Chicago. It also has offices and display
rooms in New York City.
For the year ending December 31, 1940; the total cost of the mer-
chandise purchased by respondent for use and resale at its State
Street Store was in excess of $30,000,000 . Approximately 80 per
cent of the purchases was made at places outside of the State of
Illinois and was transported to the State Street Store by railroad,
common carrier, truck lines, respondent 's own trucks, and by United
States mail . Approximately 2 per cent of the total purchases was
made in foreign countries . The total sales of the State Street Store
MARSHALL FIELD & COMPANY 5
for the same period were in excess of $40,000,000. Approximately
12 per cent of the total sales was made and transported by railroad,
common carrier, truck lines, respondent's own trucks, and by United
States mail to customers-located outside the State of Illinois.
In connection with the operation of the State Street Store, the re-
spondent operates approximately 120 delivery trucks, and during peak
sales periods, approximately 240 trucks. One of respondent's trucks
makes daily deliveries from the State Street Store exclusively to
places in the State of Indiana ; 2 others, which also make deliveries
in Illinois, each make 1 trip daily to Indiana.
The respondent advertises its products in newspapers and maga-
zines, and by radio and direct mail, at an annual cost of approxi-
mately $2,250,000.
The number of employees in the State Street Store varies from the
permanent staff of approximately 7,500 to 14,000 at the Christmas
season.
II. THE ORGANIZATIONS INVOLVED
Department Store Employees Union, Local 291 of United Retail,
Wholesale and Department Store Employees of America, 'affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to membership all the respondent's regularly employed
employees of the State Street Store exclusive of supervisory em-
ployees who have authority to hire or discharge.
Marshall Field Employees' Progressive Association was an un-
affiliated labor organization admitting to membership all the re-
spondent's regularly employed employees in the State Street Store,
exclusive of supervisory employees who had authority to hire or
discharge. In July 1940 the Association affiliated itself with the
United Retail, Wholesale and Department Store Employees of Amer-
ica 8 and the Union became its successor. The Association, inter-
changeable with the Union, is sometimes hereinafter called the Tjnion.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
1. Formation of the Association and the Union
In November 1939 about 8 employees of the respondent met and
discussed the possibility of forming a labor organization at the State.
Street Store. On April 30, 1940, about 12 employees met at the
home of one of them in order to discuss the matter further. Shortly
thereafter, this group distributed among the respondent's employees
See footnote 1, supra.
451260-42-vol. 34-2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of a proposed representation plan fpr the formation of a labor
organization at the State Street Store. On May 8, at a meeting,
attended by 12 employees, the proposed representation plan was
unanimously adopted and the Association came into being. A mem-
bership drive which was then planned soon bore fruit, for at the
next meeting, held on May 15, approximately 150 of the respondent's
employees attended. At this meeting it was decided to meet again
on May 22 for the purpose of electing officers and "to form a con-
crete organization" among the employees of the State Street Store.
Anice Swift, the guiding spirit in the formation of the Association,
was elected chairman at the May 22 meeting. The membership also
elected other officers and adopted a "statement of policies" under
which the Association thereafter functioned. On June 1, Swift and
Georgia Papas Kelly, together with the other representatives of the
Association, distributed to the employees of the respondent copies of
a booklet which contained the "statement of policies" and the names
of the various officers and , representatives of the. Association. The
distribution took place in the store during business hours and at a
bus terminal, frequented by the employees and located directly across
the street from the store. Enclosed in this booklet was a circular
urging the respondent's employees to attend the next meeting of the
Association which was to be held on June 4. Copies of the repre-
sentation plan, the "statement of policies," the announcement of the
June 4 meeting, and the Telescope, a weekly organ of the Association,
were handed from time to time to supervisory and non-supervisory
employees both inside of and at the entrances to the State Street
Store. The members of the Association did not keep their member-
ship or activities secret, for they openly solicited members on com-
pany time and property. The respondent admits that several days
prior to the May 22 meeting Swift requested permission to print in
the Field Glass, a publication which the respondent prints and dis-
tributes to its employees weekly, the announcement of the May 22
meeting. The respondent refused permission on the ground that, by
thus granting to the Association the use of the respondent's facilities,
it would be putting itself in the position of fostering an employee
organization.
The Association continued to hold meetings every 2 weeks until
July 2 when the membership unanimously adopted a resolution to
affiliate itself with the United Retail, Wholesale and Department
Store Employees of America, affiliated with the C. I. 0.4 On July
23 the Union received its charter from this organization and the
officers of the Association then became the officers of the Union.
A See footnote 1, supra.
MARSHALL FIELD & COMPANY 7
2. Interference with the formation of the Association; anti-union
statements of the respondent's supervisory officials
A day or two after the May 15 meeting of the Association, Martin
Heckmann,.a salesman in the book section for 6 years and treasurer
of the Union, was questioned by Mrs. Hahner, the buyer 5 in the book
section, as to whether he had attended that meeting. Heckmann
admitted having attended the meeting and Hahner thereupon said
to him that she liked his work and that "she didn't want to see
anything happen to him" and therefore she did not think it was ad-
visable for him "to get mixed up in that sort of thing." On the day
following the Association's June 4 meeting, Hahner asked Heckmann
whether he had attended this meeting. He testified that he admitted
being there and that the following ensued :
She again told me that she didn't want to see anything happen
to me, and that the organization that we had was inexperienced,
that we should have gone to school, and that I shouldn't get
mixed up with Mrs. Swift, because she was merely using me to
keep the Progressive Association together so that she could
file a case with the Labor Board.
She also told me that she knew Mrs. Swift was fired because
of inefficiencies arising from her activities.
* * * * * * *
She also told me that if the Union got in, that she would no
longer be able to permit us to take extra time on our passes; and
that our vacations would be taken away from us, and that she
wouldn't be the boss in the section any more, that she would
refer complaints to some board and they would dismiss us. ,
While Heckmann was on his vacation in September 1940, he spent
some time distributing copies of the Telescope to the respondent's
employees as they entered the store. On one occasion he handed a
copy to Hahner, who said to him :
. . . What are you doing here? . . . I am paying you
to take your vacation . . . I don't want you working against
the company while we are paying you to rest up so that you can
come back herein the fall and do a good job.
5 The respondent admits that buyers and assistant buyers have supervisory status. The
buyer is the executive head of a section and in addition to his function of purchasing
merchandise for the department , is the management 's representative responsible for its
operation He decides when additional help is needed and is the person to whom the
sales force looks for instructions . Assistant buyers help the buyers generally in the
operation of the section.
S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard Steele, a salesman in the book section for the past 15
years, testified as follows concerning a conversation he had with
Hahner on May 25:
She said first that there was something she had been wanting
to ask me, and following that asked me whether I had been
approached by any of these labor people.
Well, I disclaimed any knowledge of what she meant by "these
labor people," but told her that I had attended, the two
meetings-or two meetings.
So she went on from there to say that when she had been
called upstairs,' that she had told them that none of her people
had gone to this meeting, because her people always came to her
first with any problems that they might have. She said that
they laughed at her and told her that if these people get what
they want, there won't be any need for you.
Then she said, "You didn't talk, did you?"
I told her I made a couple of suggestions.
* * * * * * *
Well, she went on to say, "Well, whenever things get out of
my hands, there is nothing that I could do about it, anyone
can be let go for poor service, or something of that sort, and
there is nothing that I can do."
Steele also testified that Scheele, one of Hahner's assistants,' spoke to
him shortly after the May 15 meeting and
mentioned that Mrs. Hahner was feeling a bit upset because
a rumor was going around to the effect that merchandise car-
riers were forming a union of some sort, and then he added
the question, he said, "I don't believe that they will get far
with the salespeople, do you? I think that the salespeople are
pretty well treated, don't you?"
Neither Hahner nor Scheele were called as witnesses for the re-
spondent. We find that they made the statements attributed to
them by Heckmann and Steele.
During the first week in August 1940, Sidney Baker, an elec-
trical maintenance employee, was called from his work by Peter
Barr, his foreman. Barr spoke to Baker privately in the fire-pump
B The word "upstairs " refers to the respondent's executive offices.
7 See footnote 5, supra.
MARSHALL FIELD & COMPANY 9
room and Baker testified as follows concerning the ensuing con-
versation:.
A. Well, he said he wanted to have a little talk with me,
now that I had understood there was a rumor around the
offices, had a meeting the previous day, and he liked me as a
good fellow, he didn't want to see anything happen to me,
my work was all right, and thought that this being mixed up
in this Union business wasn't doing me any good, and if there
was a layoff or getting rid of anybody why seniority wouldn't
count with me. That if I was laid off due to Union activities
it would be kind of a black eye, and if I got down as an agitator
I would have, a tough time getting a job anywhere on State
Street in any of the other Department Stores.
Q. Did you say anything to him?
A. Yes, I asked him what he thought about the organization.
Q. Tell us the entire conversation between you and Mr. Barr
in that pump room on that day?
A. Well, we talked about several things. He said that he
kind of looked out for himself and he thought I ought to
look out for myself, look out for number one. He said he
knew two or three of the younger fellows were mixed up in
the organization, didn't want to see me get mixed up and be a
martyr for a cause like that. I was old enough to have better
sense.
Q. What did you understand him to mean when he said you
would not get a job on State Street?
A. Well, he said if I was fired or let out from Marshall Field's
with a mark against me that I was an agitator, that I would
probably have a tough time getting a job in any other store on
State Street.
We find that Barr, who did not testify at the hearing, made the
statements attributed to him by Baker.
Louise Bonbicino, an employee in the candy kitchen for more than
4 years, testified as a Board witness under subpena that Mrs. Taylor,
her superior, requested her to attend meetings of the Union in order
to ascertain for Taylor who, among the respondent's employees, were
members of the Union. Bonbicino further testified that after dis-
cussing the matter at home, she informed Taylor that she had decided
not to spy on the Union, whereupon Taylor said, ". . . well it was
all right if I didn't want to go, she would ask somebody else to go."
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bonbicino's testimony was not denied, and we find, as did the Trial
Examiner, that Taylor tried to get her to spy on the Union.
We have held on numerous occasions that attempts by employers
to persuade and urge employees to become informers and report the
organizational activities of their coworkers are violations of the Act .8
Such anti-union conduct is but one step removed from industrial
espionage.9
The respondent urged at the hearing that the activities described
above did not, in fact, constitute unfair practices because several of
the employees testified that they were not intimidated and that they
remained members of and active in behalf of the Association and the
Union despite the remarks attributed to the respondent's supervisory
officials by the said employees. This contention is without merit.
The question here presented is whether the acts and conduct of the
respondent constituted interference with, restraint, and coercion of
its employees in the exercise of the rights guaranteed in the. Act.
Evidence concerning the effect or lack of effect of the respondent's
acts on particular individuals is not decisive of this issue.10
We find that the respondent, by attempting to spy upon meetings
of the Union; by interrogating its employees regarding their union
membership; and by the anti-union remarks and conduct of Hahner,
Scheele, Barr, and Taylor, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Shortly after the formation of the Association, the respondent put
into force a rule forbidding union activity or discussion on company
time and property. In his Intermediate Report, the Trial Examiner
found that the respondent had violated Section 8 (1) of the Act
by threatening its employees with discharge if they engaged in union
discussions on company time and property while permitting them
to discuss any other subject. He found, further, that this change in
the respondent's labor policy was directed specifically against the
Association and the Union and was intenued to discourage member-
8 See Matter of Fansteel Metallurgical Corporation and Amalgamated Association of
Iron, Steel and Tin Workers of North America, Local 66, 5 N. L. R. B. 930, enf'd as mod.
N. L. it. B. v. Fansteel Metallurgical Corporation, 306 U. S. 240 , aff'g as mod . 98 F. (2d)
375 (C. C. A. 7) ; Matter of Consolidated Edison Company of New York, Inc., at al. and
United Electrical and Radio Workers of America, affiliated with the Committee for Indus-
trial Organization , 3 N. L. It. B. 71, enf' d as mod. Consolidated Edison Company of New
York, Inc., at al. v. N. L. it. B. at al., 305 U. S. 197 , aff'g as mod . 95 F (2d ) 390 (C. C. A.
2) ; Matter of Fruehauf Trailer Company and United Automobile Workers Federal Labor
Union No. 19375, 1 N. L. R. B. 68, enf 'd N. L. it. B. v. Fruehauf Trailer Company , 301 U. S.
49, rev'g 85 F. (2d) 391 (C. C. A. 6).
See footnote 8, supra.
10Brown Paper Mill Company, N. L. It. B. v., 108 F. (2d) 867 (C. C. A. 5) enf'g 12
N. L. R. B. 60, cert. den. 310 U. S. 651; Matter of The Ohio Fuel Gas Company and District
#50, United Mine Workers of America, 28 N. L. it. B. 667, and cases cited in footnote 6
therein.
MARSHALL FIELD & COMPANY 11
ship in those organizations. While there is some evidence justifying
the Trial Examiner's conclusions, we are not prepared to say that,
in the operation of a retail department store, it is violative of the
Act to proscribe union activities on company time and property. 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 is reasonably adapted to the operation of such a business.
We do not hold that the adoption and enforcement of such a rule
cannot, under any circumstances, 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.
B. The discriminatory discharges
The complaint alleged that the respondent discharged Anice Swift
on or about May 22, 1940, and discharged Georgia Papas Kelly on or
about June 1, 1940, and thereafter refused to reinstate them because
of their union membership and activity, thereby discriminating in
regard to hire and tenure of employment and discouraging member-
ship in the Association and in the Union. In its answer the respond-
ent denied that it discharged or refused to reinstate the said employees
for the reasons alleged, claiming affirmatively that it discharged them
for cause.11
Swift was first employed by the respondent for temporary sales
jobs during the Christmas seasons of 1930 and 1931. Between Aug-
ust 1936 and December 1937 she was employed in respondent's adver-
tising bureau as an assistant copy writer. When first employed in
the advertising bureau, Swift received $30.00 per week; in March
1937 she received a $5 a week increase. Swift took maternity leave
in December 1937 and after the birth of her child decided to resign
her position.
In January 1939, while working for the Works Progress Adminis-
tration, Swift was requested by Mildred Bartlett, director of the
respondent's Training Division, to return to the respondent's employ
to assist in the compilation of -certain manuals and booklets. On
March 20, 1939, Swift accepted this position and was assigned to the
Training Division. Her salary was then fixed at $30 per week. The
Training Division is responsible for the initial and the continued
11 At the hearing the respondent referred to these two employees as having been "per-
manently laid off." Bergen , respondent 's personnel manager, testified that the only dif-
ferences between a discharge and a permanent lay-off were that in the latter case the
employee is eligible for reemployment and receives separation pay.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training of the respondent's sales force 12 Swift's duties in this
department were largely confined to writing and editing training
manuals and booklets used by the sales force and to the holding of
meetings with sponsors- in the Home Furnishing Division. The
evidence indicates that Swift was rehired in the Training Division
in 1939 as a selling supervisor 14 in the Home Furnishing Division,
and that she was, therefore, a member of the respondent's supervisory
staff.
As shown above, Swift was the guiding spirit in the formation of
the Association and throughout its existence was its leader. It was
through her guidance and leadership that the Association was formed.
She prepared the representation plan and the "statement of policies"
which were adopted by the Association, presided over all its meetings
and became its first chairman. She had the representation plan
"dittoed" at her husband's office and assisted in its distribution. She
likewise assisted in the distribution of the "statement of policies."
In July 1940 she became chairman of the Union.
Swift's membership in and activities in behalf of the Association
early became known to the respondent. Garrett L. Bergen became,
personnel manager of the State Street Store on or about April 22,
1940, and shortly afterward Bartlett informed Bergen that Swift
was discussing an employee organization with employees from other
divisions of the store who were coming to the Training Division to
see Swift. Bergen told Bartlett that he thought it was a serious
matter for Swift who was in "a position of responsibility and influ-
ence," to .engage in organizational activities because the respondent
might thereby be charged with forming a company-dominated union;
but he did not request Bartlett to advise Swift to discontinue her
union activities, nor did he advise Swift to do so. Bergen did warn
Swift not to make any statements that the Association had or might
have the respondent's approval. Swift testified and the record sup-
ports this testimony that she had not in fact been making any state-
ments to the effect that the respondent approved or was supporting
12 All new employees first report to the Training Division where they are instructed
in general store policies , location of various departments in the store, general duties of
their job , mechanics of handling sales checks and the like . Prior to April 1940, the
Training Division reported to the personnel manager, but now it reports to the vice
president in charge of operations.
13 Sponsors train the sales persons after they are placed on the selling floor; attend
to the adjustment of customers' complaints; and take care of correcting errors made by
the sales persons under their supervision.
14 The duties of a selling supervisor include holding weekly meetings with sponsors and
acquainting them with system procedures and with the various problems which arise
regarding the adjustment of customers ' complaints . These duties also include the dis-
semination to sponsors and to the sales force of information regarding new merchandise
and the latest fashions and styles . In the performance of her duties a selling supervisor
spends a great deal of her time in the departments under her supervision . The selling
supervisors are directly under the supervision of Bartlett, the director of the Training
Division.
MARSHALL FIELD & COMPANY 13
the Association. The only other step Bergen took at this time was
to put into force the rule 15 prohibiting discussions of unionism on
company time and property. Furthermore, on or about May 6, 1940,
Swift was called into the office of Palmer, the respondent's vice presi-
dent in charge of operations, who discussed with her "the ideas that
were incorporated" in the representation plan.
Within a few days of Swift's talk with Palmer, Bartlett informed
her that she was to discontinue holding weekly sponsor meetings, to
remain within the limits of the Training Division, not to. spend any
time on the selling floors of the Home Furnishing Division and to
confine herself to the task of revising "Let's Go to Work," a booklet
containing the respondent's rules and regulations distributed by it
to new employees. Shortly after that, on May 11, Bartlett informed
Swift that the respondent had decided not to revise "Let's Go to
Work" and that therefore her services were no longer needed in the
Training Division. Swift immediately saw Palmer, who informed
her that he was reorganizing the Training Division and that he did
not believe that she fitted into the picture. He told Swift that the
decision to drop her was final, and he directed her to see Bergen in
order to find out whether there was anything else in the store for her.
On the same day, May 11, Swift saw Bergen. He suggested that
she see Donald Keith, who was setting up a new department, known
as Out-of-Town Promotion, and that perhaps Keith could use her
services. Swift immediately went to Keith who outlined the job
to her and informed her that it involved occasional traveling with
him out of town for several days at a time. Swift told Keith that
she was interested in the job, but that she would first have to ascer-
tain whether she could arrange to have her mother come to Chicago
from Texas to care for her children while she was on these trips.
Keith consented to allow Swift a few days to enable her to ascertain
whether she could make the necessary arrangements. Swift then
took leave of absence until May 16, on which day, according to her
testimony, she advised Keith that she would accept the job provided
she did not have to leave Chicago until after May 23. Swift testified
that she informed Keith that she had arranged her household affairs
so that she could go out of town on May 23. She further testified
that the reason she waited until May 16 before definitely deciding to
take the out-of-town job was the fact that on May 15 the Association
had planned an important meeting for May 22; and that, when she
accepted the job, she wanted to be sure that she would be in Chicago
on May 22. It is not clear from the record whether Swift specifi-
cally informed either Bergen or Keith of the May 22 meeting when
she started on her new duties. There is no doubt, however, that
11 See Section III, A (2), supra.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bergen was aware of the meeting for, as noted above, Swift had re-
quested permission of Mrs. Hyatt, editor of the Field Glass, to print
an announcement of the May 22 meeting in that publication. Hyatt
took the matter up with Bergen, who refused to grant the permission.
Swift testified that Keith assured her that she would not have to
leave Chicago until after May 23 and with this assurance she started
upon her new duties. Keith's testimony in regard to his conversa-
tions with Swift on May 11 and May 16 is substantially the same as
Swift's, except that he testified he hold Swift, contrary to her testi-
mony, that she would have to leave Chicago not later than May 23.
The Trial Examiner, who had an opportunity to observe the witnesses,
credited Swift's. testimony in this regard and found that Keith in-
formed her she would not have to leave Chicago before May 23. This
finding is supported by the fact that, by Keiths' own admission, he
had been working on the particular survey on which he wanted Swift
to accompany him (see infra) for about 4 or.5 weeks, and it was not
until May 21 that Keith, in a discussion with H. B. McBairi, the
respondent's executive vice president, under whom Keith worked,
fixed a deadline for completion of the survey on May 25. We adopt
the Trial Examiner's finding.
About 1:34 on the afternoon of May 21 Swift was informed by
Keith to make arrangements to leave with him that evening for
Grand Rapids, Michigan. Swift told Keith that she could not ar-
range her personal affairs to make the trip on such short notice,
stating further that, relying upon his assurances that ,she would not
be obliged to leave town before May 23, she had not arranged to
have her mother come to Chicago before that date. Keith, however,
was adamant in his demand that she leave with him that night, and
ignored Swift's plea that she be permitted to leave Chicago on the
night of May 22 and join him the following day. Keith testified
that he insisted upon Swift's leaving that evening because he had
promised McBain the report on May 25 and that it could not properly
be completed until the trip had been made by both of them and their
observations recorded. Because of Swift's inability to make the trip,
Keith instructed her immediately to see Bergen and he made the trip
accompanied by an employee of the respondent's research bureau.
When Swift reported to Bergen she repeated her reasons why she
could not make the trip that evening, and reminded him of the
Association meeting on May 22. Bergen informed her, however, that
because she had refused to make the trip, her job with Keith was
terminated. Bergen then instructed Swift to finish her day's work
and see him on May 24. Bergen was otherwise engaged on that day,
but on May 25 he informed Swift that there was no other position
for her in the store and that he was therefore obliged to: discharge
her.
MARSHALL FIELD & COMPANY 15
There is no substantial disagreement as to the events of May 21.
Upon extremely short notice, Swift was ordered to make an out-of-
town trip which would have prevented her from attending the im-
portant Association meeting of May 22. The respondent was aware
of this meeting. As indicated above, Swift had been very careful,
in accepting the job with Keith, to stipulate that she would not have
to go out of town until after May 23. Keith had agreed to this.
Under these circumstances, and in view of the other unfair labor
practices heretofore adverted to, we are of the opinion that Swift's
discharge was a consequence of the respondent's disapproval of her
Association activities, and that the events of May 21 offered the
respondent a pretext, upon which it seized, to rid itself, once and for
all, of the leading figure in the Association.
Supporting evidence for this conclusion is found in the uncontra-
dicted testimony of Doris Ganoung, who, while working in the milli-
nery department, went to see Miss Wood, then the employment man-
ager, about securing employment elsewhere in the store. During
this interview, which occurred about the middle of June 1940, the
question of unionism arose, and Wood told Ganoung that ,
. . . she (Wood) was an individualist, that she didn't be-
lieve in Unions, that one time she worked in an office, a railroad
office in the East, and that there was an attempt made there to
form a Union, and that one of the men who had been there for
the longest time and was about to receive his pension, was very
active in this Union, and it did not succeed, the Union did not
go through, and he lost out, and she said, "That is what hap-
pens to people that join Unions."
Later in this conversation Ganoung asked Wood whether "Mrs.
Swift had been let go because of her Association activities." Wood
replied :
You don't think that the management-you don't think the
management can have people like Mrs. Swift in the store under-
mining the employees.
It should be noted that this conversation occurred several weeks
after Swift's discharge.
In reviewing Swift's case certain facts stand out. The record is
clear that her services were perfectly satisfactory in the Training
Division. She received frequent compliments on her work, and in
October 1939, was given a $5 per week increase in pay. It is also
clear that the respondent transferred Swift from the Training
Division because of her activities in behalf of the Association.
We do not find that this transfer was, in violation of the Act.
The respondent, under the peculiar circumstances of this case, was
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justified in taking away Swift's supervisory authority and transfer-
ring her to another job. When Swift went to work for Keith, how-
ever, she had no supervisory authority, and since we find her dis-
charge to have been caused by her Association activities, she is
entitled to the full protection of the Act.
Georgia Papas Kelly was first employed by the respondent in 1931
as a saleslady in the handkerchief section. While so employed she
was rated by the section manager as one of the best employees there.
In 1932 she was transferred to the fabric section and in 1935 was
made head of the custom tailoring department. Her duties, among
others, included advising customers in the selection of materials for
and the designing and fitting of garments. In February 1939 she
was transferred to the millinery division as a saleslady and within
2 weeks was made a sponsor.16
The respondent contended at the hearing that some time around
the middle of March 1940, Kelly was replaced as sponsor by Miriam
Boyer at the request of William C. Stetson, merchandise manager
of the millinery division, and that she was discharged on June 1
because of her poor sales record.
Kelly was a sponsor in the millinery division when Stetson be-
came merchandise manager of that division in October 1939. Shortly
after Stetson assumed his duties he advised the personnel division
that he was dissatisfied with the way Kelly was performing her
duties and that he wanted her replaced ; in the latter part of February
1940 he hired Boyer to replace Kelly. Boyer had never worked in
a department store before, and she spent several weeks training in
another section before reporting to the millinery division. Stetson
testified that about the middle of March he informed Kelly she was
being replaced as sponsor by Boyer, but that he would keep her in the
millinery division as a saleslady. He testified that he also told
Kelly he was going to allow her to draw the same salary because
he believed she could sell enough merchandise to warrant her doing
so. Stetson testified that Kelly accepted the demotion and seemed
perfectly willing to stay and sell under those circumstances. Kelly
testified that Stetson did not tell her that she was being replaced but
told her he was bringing in an older girl to take over some of her
responsibilities.
The credible evidence shows that Kelly continued with the duties
she had performed prior to the time Boyer came into the millinery
division, except that she discontinued conducting fashion shows and
attending meetings with sponsors. These latter duties Boyer as-
sumed. The evidence also shows that most of Kelly's time prior to
11 The sponsors receive a salary plus a percentage on their net sales. Salespersons
receive a drawing account against commissions. See footnote 13, supra.
MARSHALL FIELD & COMPANY 17
and after Boyer's arrival in the Millinery division was spent adjust-
ing, crediting , and exchanging merchandise returned by customers
and that she therefore did not have much time in which to sell,
Stetson testified that when Kelly was relieved of her sponsor's
duties she should have spent all of her time selling and that she had
no right or authority to do anything else. However, the record is
clear, and the respondent does not deny, that Kelly continued to have
a "signature" which permitted her, among other things, to approve
"exchanges ," and' "returns ," and to accept customers ' checks for the
purchase of merchandise.
The respondent maintained that Kelly 's low sales record was due
to her lack of interest in selling , but offered no evidence in support
thereof. Although Stetson testified that he complained to Bailey,
the personnel manager of the division , and to Bergen, that he could
not keep Kelly in his division because of her low sales record and
because of her lack of interest in her work , he admitted that he never
discussed the matter with Kelly . The record shows that Kelly was
an able and conscientious worker and that she was never informed
that her work was not up to standard . Instead she was often com-
plimented on her work and for the interest and ability which she
displayed in training new employees.17
Kelly was among the first to become active in the Association and
was one of the 12 persons present at the May 8 meeting ; she was
elected a representative at the May 22 meeting . She was very active
in the Association 's behalf and assisted in the distribution of its liter-
ature in and near the store , but not while she was on duty. She
was never told that she was violating any company rule by distribut-
ing union literature or discussing unionism on company property.
However, Kelly testified without contradiction that shortly after
May 8, Miss Conopa , an assistant buyer in the millinery division,
said to her
... there wasn 't any need of my passing these plans to our
employees because they were happy . And that-she asked me
if I knew what would happen to me if I kept on with union
activities , and I said no, and she said , why, I could be fired for it.
On June 1, 1940, while on her lunch hour , Kelly distributed copies
of the Association 's "statement of policies " in the store. At about
4 o'clock that afternoon she was informed by Bailey that she was
discharged . Bailey gave her no definite reason for her dismissal,
but said that Stetson had nothing to do with it. At Bailey 's sugges-
tion , Kelly saw Miss Wood, then employment manager , who told her
17
When Swift returned to the respondent's employ in March 1939, as part of her training
she was assigned to a sponsor to learn sectional procedures. Swift's instructor, Miss
Bowles, assigned her to Kelly, saying that Kelly was one of the best sponsors in the store.
1S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she had tried to find a job for Kelly in some other department,
but that there was no vacancy. Kelly testified as follows concerning
her conversation with Wood :
A. . . . During the course of the conversation, she said I had
no business being interested in this union, because I was paid
under the management, I was in a supervisory position and paid
under the management and was not under the rank and file.
Q. Did she say anything else?
A. Well, she wanted to know how I would feel if I had a store
like Marshall Fields and they picked someone out for-someone
that was slated for an executive position and would turn against
them.
I told her I did not turn against Fields, that I was interested
in Fields one hundred per cent, and consequently I was interested
in the employees.
Neither Bailey nor Wood testified and we accept as true Kelly's
version of her conversations with Bailey and Wood on June 1.
Wood's remarks to Kelly are particularly significant in view of
the respondent's reasons for Kelly's discharge. The respondent con-
tends that Kelly was relieved of her duties as a sponsor, given ordi-
nary sales duties in the millinery section and was discharged when
her sales did not come up to par. The respondent concedes that
sponsors are not required to meet any sales quota and that was the
reason they were paid on a salary and commission basis. It is clear
that if Kelly continued to perform certain non-selling duties her
sales would necessarily be low. The statements by Wood are clearly
at variance with the respondent's position on Kelly's discharge.
We also accept as correct Kelly's version of what was told her by
Stetson at the time Boyer came into the millinery division, for it is
consistent with the fact that Kelly retained her "signature," with
the fact that she continued to be paid a salary and commission,18
and with Wood's statements to Kelly.
To sum up, Kelly had a long and satisfactory employment record
in the State Street Store. Prior to any Association activity, she was
replaced as sponsor in the millinery division by Boyer, but she con-
tinued to perform many of the non-supervisory duties of a sponsor.
Persons performing these duties in the supervisory position of sponsor
do not have a sales quota to meet, because they do not have time enough
for selling. Kelly's creditable employment record, the complete ab-
sence prior to her discharge of any complaint or warning as to the
quality of her work, and Wood's remarks on the day of her discharge,
"Stetson admitted that only the buyer , two assistant buyers, Boyer and Kelly were
paid on a salary and commission basis during this period, and that the regular sales force
was paid on a drawing-account basis with a fixed quota of sales to meet.
MARSHALL FIELD & COMPANY 19
lead to the conclusion that Kelly was discharged and refused rein-
statement, not because of a poor sales record, but because of her promi-
nence in and activity in behalf of the Association.
We find that the respondent discharged Anice Swift on May 25,
1940, and Georgia Papas Kelly on June 1, 1940, and thereafter re-
fused to reinstate them, because of their union membership and ac-
tivity, and thereby discriminated in regard to their hire and tenure
of employment, discouraged membership in the Association and in
the Union, and 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 de-
scribed 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 we have found that the respondent has engaged in unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action which we find necessary to effec-
tuate the policies of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Anice Swift and Georgia Papas
Kelly by discharging and, refusing to reinstate them because of their
union membership and activity. We shall therefore order the re-
spondent to offer them immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges. We shall also order
that the respondent make them whole for any loss of pay they may
have suffered by reason of the respondent's discrimination against
them: (1) by payment to Anice Swift of a sum of money equal to
the amount of money she would normally have earned as wages from
June 8, 1940,19 to the date of the respondent's offer of reinstatement,
less her net earnings 20 during said period; and (2) by payment to
I Although Swift was discharged on May 25, she received 2 weeks ' separation pay.
20 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 else-
where 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 Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received
for work performed upon 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.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgia Papas Kelly of a sum of money equal to the amount she
would nornfally have earned as wages from June 1, 1940, the date of
her discharge, to the date of respondent's offer of reinstatement, less
her net earnings 21 during said period.
CONCLUSIONS OF LAW
1. Department Store Employees Union, Local 291 of United Retail,
Wholesale and Department Store Employees of America, affiliated
with the Congress of Industrial Organizations, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. Marshall Field Employes' Progressive Association, was a labor
organization within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Anice Swift and Georgia Papas Kelly, thereby discouraging
membership in the above-mentioned labor organizations, the re-
spondent 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 the 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 (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Marshall Field & Company, Chicago, Illinois, its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Department Store Employees
Union, Local 291 of United Retail, Wholesale and Department Store
Employees of America, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, by
discriminating in regard to the hire and tenure of employment or
any terms or conditions of employment of its employees ;
(b) 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 labor organizations, bargain collectively through
representatives of their own choosing and to engage in concerted
11 See footnote 20, supra.
MARSHALL FIELD & COMPANY 21
activity for the purpose 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) Offer to Anice Swift and Georgia Papas Kelly immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole said Anice Swift and Georgia Papas Kelly for
any loss of pay which they may have suffered by reason of the re-
spondent 's discrimination against them by payment to them, re-
spectively , of a sum of money equal to that which they would normally
have earned as wages from June 8 and June 1, 1940 , respectively,
to the date of the offer of reinstatement , less their net earnings 22
during said period;
(c) Post immediately in conspicuous places throughout its State
Street Store and maintain for a period of at least sixty ( 60) con-
secutive days from the date of posting , notices to its employees stat-
ing: (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)
above; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) above; and (3) that the re-
spondent 's employees are free to become or to remain members of
Department Store Employees Union, Local 291 of United Retail,
Wholesale & Department Store Employees of America , affiliated with
the Congress of Industrial Organizations , and that the respondent
will not discriminate against any employee because of his membership
in or activity in behalf of said labor organization;
(d) Notify the Regional Director for the Thirteenth Region in
writing within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith.
MR. EDWIN S. SMITH, dissenting in part :
The Trial Examiner , in his Intermediate Report, found that the
respondent had violated Section 8 (1) of the Act by threatening its
employees with discharge if they engaged in discussions regarding
union matters on company time and property . I agree with the
Trial Examiner 's conclusions , and dissent from that portion of the
Board 's decision which holds to the contrary.
The record shows that the respondent altered its labor policy shortly
after the formation of the Association, and adopted a rule prohibiting
discussions of union activities on company time and property. Both
before and after the adoption of this rule , discussions on other sub-
jects were permitted freely as long as there was no interference with
22 See footnote 20, supra.
451269-42-vol, 34-3
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business. The record discloses that the employees were not notified
of the existence of the rule, and only became aware of it when in-
fringements of it were reported to their supervisors, who would then
threaten them with discharge for engaging in such activities. Under
these circumstances, the Trial Examiner correctly concluded :
... that the amendment to the respondent's labor policy was
directed specifically against the Association and the Union and
was intended to discourage membership in those organizations .. .
This conclusion is fortified by the testimony of several of the re-
spondent's officials to the effect that they often engaged in discus-
sions with employees during -working hours on subjects foreign to the
respondent's business. Furthermore, Frank Lundy, who just prior
to the hearing became head of the packing and inspecting divisions
of the State Street Store but who for 3 years theretofore was per-
sonnel manager of the non-selling departments with 3500 employees
under his supervision, testified that he could recall no instance when
an employee had been reprimanded for engaging in conversation on
company time and property except two instances in both of which
the subject was unionism. It is clear that to prohibit discussions of
unionism while at the same time permitting all other types of con-
versation discourages employee self-organization. The adoption and
enforcement of the rule proscribing such conduct is a violation of
Section 8 (1) of the Act, and I would so find.23
I also dissent from the finding of the majority of the Board that
the demotion and transfer of Swift from the Training Division was
not a violation of the Act.24 Swift was never warned about her union
activities in the Training Division, or told to discontinue them. The
respondent merely admonished her not to make statements which
would indicate that the Association had the respondent's approval.
It was established that Swift never made such statements. The re-
spondent advised certain of its supervisory employees to adopt a
neutral position regarding union matters, but Swift was not so ad-
vised. Yet, although other supervisory employees engaged in anti-
union activity, as the Board has found, Swift alone suffered penalty.
The respondent admits that it demoted Swift. because of her ac-
tivities on behalf of the Association; it asserts that its motive was
to avoid the implication that by Swift's activities the respondent was
supporting the Association within the meaning of Section 8 (2) of
2s See Matter of Botany Worsted Mills and Textile Workers Organizing Committee,
4 N. L. R. B. 292, enf'd as mod . N. L. R. B . v. Botany Worsted Mills , 106 F. ( 2d) 263
(C. C. A. 3) ; Matter of Paragon Die Casting Corporation and National Association of
Die Casting Workers, 27 N. L. R. B 878.
24 Although the complaint did not allege that this demotion and transfer was dis-
criminatory, the issue was fully litigated at the hvtring, and there is no obstacle to a
finding as to this phase of the ease.
MARSHALL FIELD & COMPANY 23
the Act. Under the circumstances set forth above, and in view of
the unfair labor practices which the Board finds were committed by
the respondent, I do not believe this assertion. I believe, and would
find, that the respondent demoted and transferred Swift in order to
discourage union activities among the employees. The respondent
further argues that Swift, as a member of its supervisory staff, is not
entitled to the protection of the Act. This contention is clearly
without merit.25
I would find that by demoting and transfering Swift the respond-
ent discriminated in regard to the terms and conditions of her em-
ployment, within the meaning of Section 8 (3) of the Act.
21 National Labor Relations Board v. Skinner & Kennedy Stationery Company, 113 F.
( 2d) 667 (C. C. A. 8) enf'g Matter of Skinner & Kennedy Stationery Company and St.
Louis Printing Pressmen's Union No . 6, Inc., at al., 13 N. L. R. B. 1186; see National
Labor Relations Board v. Christian Board of Publication , 113 F. ( 2d) 678 (C. C. A. 8),
enf'g Matter of Christian Board of Publication and Allied Printing Trades Council of St.
Louis, Missouri, 13 N. L. R. B. 534. As the Board said in Matter of Chambers Corpora-
tion and Allied Stove Mounters and Stove Processors International Union, Local No. 86
(A. F. of L.), 21 N. L. R. B. 808, 830 : ". . . Granted that the respondent may properly
inhibit its foremen from interference with employee self-organization by adopting a non-
discriminatory rule requiring foremen to -refrain from activity in any labor organiza-
tion . .., it may not, in the absence of such a rule and without warning, discriminate
against a foreman for his union membership or interest."