Maxam Dayton, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1963

142 N.L.R.B. 396 (N.L.R.B. 1963)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
in Section 8(a) (3) of the said Act.
AIR FILTER SALES & SERVICE OF DENVER, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting and must not
be altered , defaced, or covered by any other material.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
609 Railway Exchange Building , 17th and Champa Streets, Denver, Colorado,
80202, Telephone No. Keystone 4-4151 , Extension 513.
Maxam Dayton , Inc. and Eva May Secrist, Edna Spitzer , Callie
Pearl Mills , Lois J. Horne, Edith Norris , Betty J. Freeman,
Winifred Ann Bailey
Central States Joint Board , Retail and Department Store Em-
ployees, Amalgamated Clothing Workers of America, AFL-
CIO; Local 802, Amalgamated Clothing Workers of America,
AFL-CIO; and Their Agent , Agnes Smith and Eva May Secrist,
Edna Spitzer, Callie Pearl Mills , Lois J. Horne, Edith Norris,
Betty J. Freeman , Winifred Ann Bailey . Cases Nos. 9-CA-
2510-1, 9-CA-2510-2, 9-CA-2510-4, 9-CA-2510-6, 9-CA-2510-7,
9-CA-2510-8, 9-CA-2510-9, 9-CB-1022-1, 9-CB-1022-2, 9-CB-
1022-4, 9-CB-1022-6, 9-CB-1022-7, 9-CB-1022-8, and 9-CB-
1022-9. April 30, 1963
DECISION AND ORDER
On February 7, 1963, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain un-
fair labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondents had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting 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 [Members Leedom, Fanning, and Brown].
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 In-
termediate Report and the entire record in the case, including the
142 NLRB No. 39.
MAXAM DAYTON, INC. 397
exceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except as appears herein.
ORDER
Upon the entire record in these cases and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Maxam Dayton, Inc., its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discriminating against any employee because he or she has
filed charges with the National Labor Relations Board.
(b) Threatening to discharge any employee for talking to a rep-
resentative of Retail Clerks Union Local 1552, Retail Clerks Inter-
national Association, AFL-CIO, or of any other labor organization,
except to the extent that discussion may be prohibited by a lawful
no-solicitation rule.
(c) Coercively interrogating any employee with respect to his or
her activity protected under Section 7 of the Act.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to them
under 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 Winifred Ann Bailey restoration to her former, or a
substantially equivalent, position without prejudice to her seniority
or the rights and privileges she previously enjoyed.
(b) Post at its store in Dayton, Ohio, the attached notice marked
"Appendix A." 1 Copies of said notice, to be furnished by the Re-
gional Director for the Ninth Region, shall, after being duly signed
by Maxam's authorized representative, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Post at the same places, and under the same conditions as set
forth in (b) above, and as soon as they are forwarded by the Regional
Director, copies of the attached notice marked "Appendix B." 2
(b) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
i In 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."
2 See footnote 1.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Respondents, Central States Joint Board, Retail and De-
partment Store Employees, and Local 802, both of Amalgamated
Clothing Workers of America, AFL-CIO, their officers, agents, rep-
resentatives, successors, and assigns, including the Respondent, Agnes
Smith, shall:
1. Cease and desist from :
(a) Threatening to cause the discharge of any employee of Maxam
Dayton, Inc., for engaging in any activity protected under Section 7
of the Act.
(b) Threatening to withhold fair representation from any em-
ployee in the unit at Maxam Dayton, Inc., for which they act as
bargaining representative, for engaging in activity protected under
Section 7 of the Act.
(c) In any like or related manner restraining or coercing said em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Post at their business offices and meeting halls in the vicinity
of Dayton, Ohio, the attached notice marked "Appendix B." 3 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by authorized representatives
of Respondent Unions and by Respondent Smith, be posted by said
Respondents immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its members are customarily posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to said Regional Director signed copies of Appendix B
for posting by Maxam Dayton, Inc., at its store in Dayton, Ohio, as
provided herein above. Copies of the said notice, to be furnished
l)y the Regional Director, shall, after being signed as indicated, be
forthwith returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps they have
taken to comply herewith'
3 See footnote 1.
* See footnote 1.
APPENDIX A
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, as amended, we hereby notify our employees that :
WE WILL NOT discriminate against any employee because he or
she has filed charges with the National Labor Relations Board.
MAXAM DAYTON, INC. 399
WE WILL NOT threaten to discharge any employee for talking to
a representative of Retail Clerks Union Local 1552, Retail Clerks
International Association, AFL-CIO, or of any other labor or-
ganization, except as discussion is prohibited by a lawful no-
solicitation rule.
WE WILL NOT coercively interrogate any employee with respect
to any activity protected under Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of rights guaranteed
to them under Section 7 of the Act.
WE WILL offer to Winifred Ann Bailey restoration to her former
position as head cashier, or to a substantially equivalent position,
without prejudice to her seniority or the rights and privileges
she previously enjoyed.
MAXAM DAYTON, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of her right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
45202, Telephone No. Dunbar 1-1420, if they have any question con-
cerning this notice or compliance with its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 802, ADIALGAMATED CLOTHING
WORKERS OF AMERICA, AFL-CIO
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, as amended, we hereby notify our members that :
WE WILL NOT threaten to cause the discharge of any employee
of Maxam Dayton, Inc., for engaging in any activity protected
under Section 7 of the Act.
WE WILL NOT threaten to withhold fair representation from any
employee in the unit at Maxam Dayton, Inc., for which we are the
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative, for engaging in activity protected
under Section 7 of the Act.
WE WILL NOT in any like or related manner restrain or coerce
any employee of Maxam Dayton, Inc., in the exercise of the rights
guaranteed them in Section 7 of the Act.
CENTRAL STATES JOINT BOARD, RETAIL
AND DEPARTMENT STORE EMPLOYEES,
AMALGAMATED CLOTIING WORKERS OF
AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
LOCAL 802, AMALGAMATED CLOTHING
WORKERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
(AGNES SMITH, Bussneea Representative)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of her right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
45202, Telephone No. Dunbar 1-1420, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The original charges in Cases Nos. 9-CA-2510-1 and 2510-2 were filed by Eva
May Secrist and Edna Spitzer, respectively, on February 9, 1962. The original
charge of Callie Pearl Mills in Case 9-CA-2510-4 was filed on February 14, 1962.
The original charge of Lois J. Horne in Case No. 9-CA-2510-6 was filed on Febru-
ary 15, 1962. The original charge of Edith Norris in Case No. 9-CA-2510-7 was
filed on February 16, 1962. The original charge of Betty J. Freeman in Case No.
9-CA-2510-8 was filed on February 23, 1962. The original charge of Winifred
Ann Bailey in Case No. 9-CA-2510-9 was filed on April 4, 1962. The original
charges in Cases Nos. 9-CB-1022-1 and 1022-2 were filed by Eva May Secrist
and Edna Spitzer, respectively, on February 9, 1962. The original charge of Callie
Pearl Mills in Case No. 9-CB-1022-4 was filed on February 14, 1962. The original
charge of Lois J. Horne in Case No. 9-CB-1022-6 was filed on February 15, 1962.
The original charge of Edith Norris in Case No. 9-CB-1022-7 was filed on Febru-
ary 16, 1962. The original charge of Betty J. Freeman in Case No. 9-CB-1022-8
was filed on February 23, 1962. The original charge of Winifred Ann Bailey in
MAXAM DAYTON, INC. 401
Case No. 9-CB-1022-9 was filed on April 4, 1962. Amended charges were filed
in Cases Nos. 9-CA-2510-1 , 2510-2, 2510-4, 2510-6, 2510-7, and 2510-8, and
in Cases Nos. 9-CB-1022-1 , 1022-2, 1022-4, 1022-6, 1022-7, and 1022-8 by Eva
May Secrist , Callie Pearl Mills, Lois J. Home, Edith Norris, and Betty J. Freeman,
respectively, on March 15, 1962.
On July 13, 1962, the order consolidating the aforementioned cases and the com-
plaint herein were issued. The complaint alleged that Maxam Dayton, Inc., herein-
after referred to as Maxam or the Employer, violated Section 8(a)(1), (3), and
(4) of the Act and that Central States Joint Board , Retail and Department Store
Employees , Amalgamated Clothing Workers of America, AFL -CIO, hereinafter
referred to as Central States, and Local 802, Amalgamated Clothing Workers of
America, AFL-CIO, hereinafter referred to as Local 802, violated Section 8(b)
(1) (A) and (2) of the Act . Central States and Local 802 are hereinafter referred
to collectively as the Clothing Workers. It is also alleged in the complaint that
Respondent Agnes Smith , hereinafter referred to as Smith , acted as agent of all
the other Respondents and that the Clothing Workers committed unfair labor prac-
tices by certain acts of said Smith . Maxam, Central States, and Local 802 filed their
respective answers denying the allegations of unfair labor practices.
A hearing was held in Dayton, Ohio , on September 10, 11, 12, 13, and 14, 1962,
before Trial Examiner Stanley Gilbert . The Respondents were represented by
counsel and each of the Charging Parties entered her appearance on her own behalf.
All parties were given full opportunity to participate in the hearing. Oral argument
was waived . Briefs on behalf of the General Counsel , of Maxam , and of Local
802 were filed within the time designated therefor.
Upon the entire record in the case, and my observation of the witnesses and
after careful consideration of the contentions of the parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Employer is , and has been at all times material herein, a corporation
duly organized under and existing by virtue of the laws of the State of Ohio. At
all times material herein , it has maintained its principal retail store and place of
business in the city of Dayton , State of Ohio , and is, and has been at all times
material herein , engaged in the operation of said retail department store ( the only
store involved in this proceeding).
During the calendar year 1961, a representative period, Respondent Employer, in
the course and conduct of its business operations , sold and distributed products of
a gross value in excess of $500 , 000. During the same period of time, the Respondent
Employer purchased and received goods valued in excess of $50 ,000, transported to
its place of business in interstate commerce directly from States of the United States
other than the State of Ohio.
As is admitted by all Respondents , Respondent Employer is now, and has been
at all times material herein, an "employer" as defined in Section 2 (2) of the Act,
engaged in "commerce" and in operations "affecting commerce " as defined in Sec-
tion 2 ( 6) and ( 7) of the Act, respectively.
II. THE LABOR ORGANIZATIONS INVOLVED
(a) Respondent Local 802 is, and has been at all times material herein , a labor
organization within the meaning of Section 2 (5) of the Act.
(b) Respondent Central States is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the Act.
(c) Retail Clerks Union Local 1552, Retail Clerks International Association,
AFL-CIO, hereinafter referred to as Retail Clerks, is, and has been at all times
material herein, a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background ( Prior to September 1961)1
Toward the end of 1960 , Central States initiated an organizational campaign in
Maxam 's store. On or about January 4, 1961, according to a stipulation of the
parties to this proceeding , Local 802 filed a charge against Maxam ( in Case No.
9-CA-2249) alleging a violation of Section 8(a) (1) of the Act, which charge was
i September 1961 represents a date approximately 6 months prior to the filing of the
charges in this proceeding.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed by Agnes Smith. Shortly thereafter and pursuant thereto, Maxam entered
into a settlement agreement with the Board providing for the posting of a notice
by Maxam which recited, inter alia:
WE WILL NOT threaten our employees with discharge if they solicit for
RETAIL AND DEPARTMENT STORE EMPLOYEES, AMALGAMATED
CLOTHING WORKERS OF AMERICA, AFL-CIO, or any other labor
organization.
WE WILL NOT maintain any rule prohibiting employees from soliciting on
behalf of any labor organization in non-public, non-working areas during their
non-working time.
In late March or early April 1961, the Retail Clerks commenced an attempt to
organize the store. However, on April 10, 1961, Maxam signed a collective-
bargaining agreement for a 2-year period with Central States.2 On April 11, 1961,
the contract was ratified at a general meeting of the employees.
On or about April 10, according to a stipulation of the parties to this proceeding,
the Retail Clerks filed a petition (in Case No. 9-RC-4456) which was dismissed
on or about June 9, 1961, "on the ground of a lack of an appropriate showing of
interest " It was further stipulated that on or about April 26, 1961, the Retail
Clerks filed a charge (in Case No. 9-CA-2313) against Maxam alleging, inter alia,
unlawful aid and assistance to Local 802 and a charge (in Case No. 9-CB-962)
against Local 802 alleging a violation of Section 8(b)(1)(A) and (2) of the Act,
and that following an investigation the said charges were dismissed on June 9, 1961,
"for lack of merit."
From uncontradicted testimony as to statements made around the first part of
April 1961 by Charles Boleman, the then store manager, it appears that the top
management of Maxam preferred the Clothing Workers to the Retail Clerks.3
Boleman, who had stated to employees that he did not intend to remain in the store
if a union came in, continued as manager only until sometime in August 1961.
William Denzer, who entered the employ of Maxam on March 20, 1961, as an as-
sistant manager, became manager on August 22, 1961. During the months of June
and July 1961, Denzer was absent from the store, apparently working in Buffalo,
New York.
Considerable testimony was adduced with respect to statements made during the
background period, mainly by Denzer, to show animus on the part of Maxam against
those employees who supported the Retail Clerks. Following is a review of such
statements cited in General Counsel's brief.
Home testified that in May of 1961 Denzer "come back into our domestics de-
partment, Eva Secrist and myself was there, and I don't recall how the subject came
up, but he said that if Retail Clerks didn't come in to, the store the girls that had
been fighting to get it in would be going out the front door." While Secrist testified
that Denzer made substantially such a statement to Home and herself, she placed the
incident early in April (before the contract was signed). Her testimony is as
follows:
2 Among those signing on behalf of Central States were Sweitzer and Bailey, stewards
of Local 802, and Ruth Bethel, president of Local 802.
D In their brief, counsel for the General 'Counsel accurately summarized certain of this
testimony as follows :
. . . on or about April 1, 1961, . . . Mr. Boleman again called the employees together
for a second meeting at which time he informed them that Max Dichter, principal
stockholder of Maxam's, had "checked out" the unions in Dayton and found that the
Amalgamated Clothing Workers of America, of whom the Respondent Board and Re-
spondent Local are subordinate affiliates, was the best union for Maxam's and that
they were trying to reach an agreement with them.
However, they were not as accurate with respect to the following statement contained in
their brief :
Early in April of 1961, Boleman Informed Freeman that he was aware of the fact that
she was having cards signed for the Retail Clerks. He further informed her that "If
I catch you, I will have to fire you and I do not want to do that."
The entire sentence in Freeman 's testimony of which only a portion is quoted in the brief,
reads as follows (Transcript, page 33, lines 7 to 10) :
Please don't sell union, or have cards signed on working hours , as you know if I catch
you, or someone else, I will have to fire you, and that I do not want to do. (Emphasis
added to show portion omitted.)
MAXAM DAYTON, INC. 403
We was in the back with some of the girls and we could hear him talking
real mad, and I don't know what he was mad about. He came out where we
was at and he looked at Lois Horne and myself and he said, "I am tired of
hearing about this Retail Clerks Union." And he said that we had better
pray that Retail Clerks did get in; if they didn't we would all go out the door.
Denzer denied that he ever told Secrist, Horne, or anyone else anything to the effect
that "the girls that were sympathetic with the clerks union would go out the front
door."
It appears from the record and from my observation of him, that Denzer is nor-
mally very guarded in carrying out his managerial responsibilities, although he is
inclined to act impetuously when provoked into losing his temper. The following
two incidents are examples of Denzer's caution. Apparently to show Denzer's
knowledge of her adherence to the Retail Clerks, Secrist testified, without contradic-
tion, that in the middle of March 1961,4 she informed Denzer that she was for the
Retail Clerks and that Denzer responded, "Let your conscience be your guide.
America is still free." Apparently to show Denzer's knowledge of Horne's sympathy
toward Retail Clerks, she testified, without contradiction, to a coversation she had
with him on April 15, 1961. She asked his advice about attending a "housewarming"
to be given by a fellow employee, Vivian Starling, which was rumored to be a meet-
ing for the Retail Clerks. Denzer advised her: "Lois, if you think it is a housewarm-
ing and you want to go, you go. If it turns out to be a union meeting and you want
to stay and listen to what they say, that is your right and privilege. This is still a
free country."
It is noted that in the statement Horne gave to the Board on May 26, 1961, in
the course of its investigation of the charge filed by the Retail Clerks of a violation
by Maxam of Section 8(a) (2) of the Act, there is no mention of Denzer's threat to
which Horne and Secrist testified (to get rid of Retail Clerk adherents, if that union
did not get in) .5 General Counsel did not attempt to elicit from Horne any ex-
planation for the omission. If Denier had made a threatening statement to Secrist
and Horne so closely related to the matter under investigation in May of 1961 and
such a brief time before Horne gave her statement to the Board, I find it reasonable
to infer that she would have related it then to the investigator as well as a year later
in connection with this proceeding.
In view of this omission in Horne's statement, of the carefully worded statements
Secrist and Home testified that Denzer made to them at very nearly the same time
(so inconsistent with the incautious threatening statement), of my evaluation of
Secrist's testimony 6 and my impression of Denzer, I credit his denial. It is noted
at this point, as an aid in evaluating Denzer's later conduct, that Starling, who gave
the "housewarming" party rumored to be for the Retail Clerks (with respect to
which Home and Denier testified), is not only still an employee but also received
a promotion.
Dreama Hawk, a former employee who resigned from her job on March 7, 1962,
upon Denzer's refusal of her request to be transferred to another department,
testified to three conversations she had with Denzer in the jewelry department
where she worked. With respect to the first of these conversations (in the latter
part of April 1961) she testified as follows:
Q. (By Mr. GREENE.) And where did this conversation take place?
A. At the jewelry department.
Q. And who was present?
A. Mr. Denzer and I.
' This must have occurred in the latter part of March, since Denier did not start to work
at Maxam until March 20
5Apparently Secrist also gave a statement to the Board at that time, but General
Counsel refused to comply with the request of counsel for Local 802 to see her statement.
Therefore, it is not known whether there was a similar omission in Secrist's statement.
It was not until a subsequent witness was on the stand that the Trial Examiner indicated
that if similar requests were denied by General Counsel, he would, upon motion therefor,
direct General Counsel to permit examination of all pretrial statements of a witness relating
to his testimony, in accordance with Section 102!118 of the Board's Rules and Regulations
Counsel for Local 802 had failed to make such a motion with respect to the witnesses
who had testified prior thereto, including Secrist.
9 For the reasons stated hereinbelow, I am not convinced of the accuracy of Secrist's
powers of recollection.
712-548--64-vol. 14 2-2 7
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Will you describe that conversation , please?
A. He made the remark that the girls that was for Retail and everything,
that he couldn 't get rid of them then , but as soon as they were sure that
Amalgamated was in, that he would get rid of them.
Q Did he name who "them" were?
A. Yes. He named Eva Secrist, Betty Freeman , Edna Spitzer and Lois.
Horne.
As to the next two conversations , her testimony is as follows:
Q. (By Mr. GREENE .) All right. Now, when was the next time that you
specifically remember such a conversation?
A. It was as soon as I got back from vacation in August , in '61. And he
made the remark this one time that Eva, she went by the jewelry department
going to the service desk , and he says , "She is going . We will get rid of her."
TRIAL EXAMINER : Who was "she"?
Q. (By Mr. GREENE .) Who was present at that conversation?
A. Mr. Denzer and I.
Q. And where did it take place?
A. The jewelry department.
Q. And who was it that walked by?
A. Eva Secrist.
Q. When is the next time you specifically remember such a conversation?'
A. I would say it was a week later that Edna Spitzer went by.
Q. By where?
A. The jewelry department.
Q. Who was present?
A. Mr. Denzer and I.
Q. And what was said on that occasion?
A. He made practically the same remark about her, that she was going, too.
Although Denzer was not questioned with respect to these specific conversations,
I am of the opinion that his denial that he ever told anyone anything to the effect
that "the girls that were sympathetic with the clerks unions would go out the front
door" was intended to and did embrace the statements attributed to him by Hawk.
I do not credit the above -quoted testimony of Hawk for the following reasons
(a) In order to rule upon a motion that the statement given by Hawk on May
29, 1961, to the Board in its above -mentioned investigation of the charges filed
by the Retail Clerks be turned over to counsel for Respondents for their examina-
tion and use, the Trial Examiner read her statement to determine whether there
was anything therein relating to her testimony in this proceeding. There was no
reference in her statement to the threat which Hawk testified that Denzer made in
the latter part of April 1961 . Although this omission was made evident to counsel
for all parties, there was no attempt to elicit an explanation for it from the witness,
particularly by the General Counsel . I find it reasonable to infer that , had Denier
made the above -mentioned threat, she would have related it to the Board agent when
he took her above =mentioned statement the following month in connection with the
charges against Maxam and the Clothing Workers which he was investigating.
(b) From my appraisal of Denzer I find it improbable that he would gratuitously
make such incautious statements to a clerk. In view of his refusal to grant her
the small favor of a transfer to a different department (which prompted her to
resign ), it does not appear that a friendship existed between them which would
have prompted him to confide in her a plan to take illegal action against named
employees when he believed his discriminatory motive would not be challenged or
suspected . There is no apparent explanation of why he would have , on three
separate occasions , singled out this one clerk in whom to confide his plans to
commit unfair labor practices . There were no accompanying circumstances in-
dicated which might have provoked him to forget the caution which , it appears to
me, he normally practiced.
(c) On the other hand, the record does reveal the possibility of Hawk's bias
against Maxam because of Denzer 's refusal to transfer her to another department
( which prompted her to quit her employment).
Spitzer testified, without contradiction , that early in April she indicated to Denzer,
in Horne's presence, that she hoped the Retail Clerks "get in" "because having been
with them for four years " she thought "they are a good union ," and that Denzer
responded , "Well, I guess you two girls know what you are doing , but I think you
MAXAM DAYTON, INC. 405
will be sorry later." 7 However, Denzer's remark is too ambiguous to establish
more than that he did not think the Retail Clerks was a good choice.
The record also contains testimony with respect to incidents during the back-
ground period which involved representatives of the Clothing Workers. It is evident
that as early as the first part of April 1961, Freeman's adherence to the Retail Clerks
was known to representatives of the Clothing Workers (Max Ungar, general or-
ganizer of Central States, and Agnes Smith, business agent of Central States).
Although counsel for Central States and counsel for Local 802 take the position
that the two Respondents are separate entities and one is not responsible for the ac-
tions of representatives of the other, the inter-relationship between these two is, and
has been, so involved with respect to the organization of the employees of Maxam
and their representation that I find that, insofar as this proceeding is concerned, the
two were, in effect, one. To cite some of the examples of this interrelationship.
While it was Central States that organized the store, Local 802 filed an unfair labor
practice charge during the organizational campaign which, however, was signed by
Agnes Smith, admittedly an agent of Central States; although Maxam entered into
a contract with Central States, among those signing on the latter's behalf were two
stewards and an officer elected by Local 802; the employees became members of
Local 802 in compliance with the union-security clause of the contract with Central
States; and stewards of Local 802 serviced the contract (i.e., the handling of griev-
ances) in conjunction with Agnes Smith and in some instances grievances were
handled by Ungar. Therefore, hereinafter I will not attempt to distinguish between
Central States and Local 802, but refer to them as the Clothing Workers.
Mills testified that, during the period when the issue was in doubt whether the
Clothing Workers would succeed in establishing its right to become the bargaining
representative, she and Smith had the following conversation. "She was telling me
about the Retail Clerks on days stirring up trouble. And I said, `Well, aren't they
afraid they will be fired,' And she said, 'No, we can't fire them now, but we can
later.' " Smith was not questioned about this incident. Although I credit this testi-
mony, I believe the statement was nothing more than an idle threat 8 made during
the heat of the organizing campaigns.
Secrist testified that Agnes Smith made some comment to her about her adherence
to the Retail Clerks on an average of one to three or four times a week starting in
early August 1961 until her discharge on December 28, 1961. She testified as fol-
lows as to the first occasion she recalled (early August 1961) when Smith mentioned
a Retail Clerks' representative:
Well, I recall one she walked up to me between the boys' department and
domestics, and she said, "Eva, I hear that you have been out with Jim Huntley
for lunch." And she said, "I heard you are also on the payroll, and if I hear
of you speaking to one of those guys again I will see to it that you have no
job here."
She did not describe any other of the series of conversations with Smith in which
she testified Smith made some comment about the Retail Clerks.9 Smith denied
having any conversations with Secrist about Huntley and the Retail Clerks. While
she may have made some "comment" to Secrist about having "lunch with Jim
Huntley" or with respect to the Retail Clerks, I am not satisfied that Secrist is a
sufficiently reliable witness to find that Smith threatened Secrist in August with caus-
ing her discharge.'°
It also appears that during the background period the Clothing Workers' repre-
sentatives were aware of Horne's sympathy for the Retail Clerks and that prior to
a Denzer testified that he was aware that Spitzer had been a member of Retail Clerks,
because previously both had worked for a drug company whose employees were represented
by that union.
This was prior to the 6 months period preceding the filing of the original charges herein.
Except for two instances, neither of which can be related to any of the allegations in the
complaint with respect to Smith's conduct and in neither instance was the "comment" by
Smith of enough significance to merit mention herein.
10 Among my reasons for feeling that I cannot rely on her testimony are her tendency
to exaggerate, as for example, the frequency with which Smith was supposed to have
commented to her about Huntley or the Retail Clerks (on an average of one to three or
four times a week, although it appears that during the several months over which this
occurred, Smith was not in Dayton a good part of the time) and her discredited denial of
having threatened Denzer or used obscenity in the store in July of 1962. (Her denial
was contradicted by Bailey's testimony.) Other reasons for doubting her credibility are
indicated hereinbelow in evaluating other aspects of her testimony.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spitzer's discharge they knew Spitzer had formerly been a member of the Retail
Clerks and suspected that she was sympathetic to that union 's cause.
The Allegations of Illegal Conduct
The complaint contains approximately 20 specific allegations of conduct by Maxam
violative of Section 8 (a)( 1 ) of the Act and approximately 20 allegations of conduct
attributable to both Central States and Local 802 violative of Section 8 (b) (1) (A)
of the Act. In addition , it is alleged that Maxam discharged Spitzer, Secrist, and
Freeman and changed the terms and conditions of employment of Norris , Horne,
Mills, and Bailey, all in violation of Section 8(a)(3) and (1) of the Act. It is
further alleged that Maxam 's action with respect to Bailey also violated Section 8(a)
(4). It is also alleged that Central States and Local 802 caused , or attempted to
cause, Maxam to discharge or otherwise discriminate against the above-named em-
ployees in violation of Section 8(b)(2) and 8(b)(1)(A) of the Act.
In view of the large number of allegations of violations of Section 8(a) (1) and
8(b)(1)(A ) of the Act and the length of the record , it is difficult to relate, in many
instances , what portion of the record is relied upon by General Counsel to sustain
a particular allegation . Counsel for General Counsel, in presenting their con-
tentions in their brief with respect to the alleged discrimination against the seven
above-named Charging Parties, have referred to testimony regarding various incidents
which apparently do relate to various of said allegations (without, however, indicat-
ing the particular allegations which, they might contend, are sustained thereby).
Since General Counsel's contentions with respect to the alleged acts of discrimina-
tion are largely predicated on the aforementioned incidents , I will dispose of the
issues in this proceeding by considering in chronological order the alleged discrimina-
tion against each of the Charging Parties in the course of which I will determine
whether I find any incident which General Counsel relates thereto to be violative
of either Section 8 ( a)(1) or 8 (b) (1) (A) . Thereafter, I will consider the issues
raised with respect to the allegation of discrimination by the Clothing Workers in
their representation of the Maxam employees and two incidents of interrogation
of employees by Denzer.
In accordance with contention of the General Counsel that the "background ma-
terial is essential to an understanding of the issues in the instant case," Respondents'
subsequent conduct is considered in the light of what I have found with respect to
the background period, as well as in the light of other factors which I consider of
moment.
As to Activities of Retail Clerks Subsequent to June 1961
There is no evidence in the record that subsequent to the aforementioned dis-
missal of its petition and unfair labor practice charges on June 9, 1961 , the Retail
Clerks engaged in any organizational activity with respect to Maxam employees
or that any of said employees engaged in any activity on behalf of the Retail
Clerks. On the other hand, there is evidence that representatives of the Retail
Clerks did visit the store and hold conversations with various employees. In a
number of instances employees were admonished by management for conversing
with them and the representatives were told not to "bother" the employees." How-
ever, it appears that the representatives were not discussing union matters with the
employees.
Also, testimony was introduced apparently to indicate that certain of the em-
ployees were suspected of attempting to undermine the Clothing Workers. Secrist
testified that, on two occasions in the latter part of 1961 when she requested a trans-
fer to another job, Denzer accused her of "snowballing " the Clothing Workers.
Secrist testified that Smith used the word "snowball" every time she came into the
store, and that Ungar , in January 1962, stated that he heard she and Horne "were
still snowballing his union ." Spitzer testified that Smith made a remark about
"snowballing" the Clothing Workers about 15 times from April to October, 10 of the
times to her directly. Horne testified that on two occasions in the first part of 1962
Smith stated to her that "if you Retail Clerks would quit snowballing the union,"
there would be no trouble in the store . Denzer, Smith and Ungar denied ever
using or hearing the word (apparently in the context in which it was testified that
it was used ). To give it meaning the term "snowballing " would have to be con-
strued as "throwing snowballs" and , from that , attempting to "damage" or "hurt"
the Clothing Workers. However , I find, since the metaphor is so unusual and de-
pends upon giving a meaning to the word neither in common or local usage (none
n Some of these instances are referred to hereinbelow.
MAXAM DAYTON, INC. 407
of the witnesses appeared to be familiar with it), that it is difficult to believe that
the three individuals (Denzer, Smith, and Ungar) used the term on such widely
scattered and frequent occasions, if at all. Consequently, I am not of the opinion
that any of the testimony with respect to "snowballing" statements may be relied
upon to indicate suspicion on the part of a representative of any of the Respondents
that certain of the Charging Parties were working for the Retail Clerks or in opposi-
tion to the Clothing Workers.
While I do not find that either the Retail Clerks or its sympathizers were engaged
in activity on its behalf after June 1961, I do find that there was considerable dis-
satisfaction among the employees with respect to the quality of the representation
accorded them by the Clothing Workers and that this dissatisfaction was voiced by
a number of the employees. It appears that a good part of the dissatisfaction
arose out of the failure of the Clothing Workers to obtain reinstatement for Spitzer
and Secrist, the lack of success by the Clothing Workers in processing grievances,
and resentment among the stewards toward Agnes Smith.12
Discharge of Spitzer
Spitzer was discharged on October 12, 1961. There is no conflict in the testi-
mony of Spitzer and Denzer, who discharged her, as to the incident of the discharge.
Denzer testified that it occurred shortly after a heated conversation he had with
another employee (Arbetus Lambert). He came upon Spitzer who was engaged
in conversation with two office girls at the snack bar (which is adjacent to the
department to which she was assigned). Seeing her there, Denzer told her that,
if that is all she had to do, to "punch out" her timecard.
General Counsel contends that Denzer's action was motivated by her adherence
to the Retail Clerks and that for the same reason the Clothing Workers caused, or
attempted to cause, Denzer to discharge her. Denzer denied that the Clothing
Workers ever told him that they wanted anyone hired, fired, promoted, demoted,
or assigned to another job.
Among the circumstances relied upon by General Counsel to prove a discrimina-
tory motive for the discharge was an incident to which Spitzer testified as having
occurred about 3 weeks prior thereto. A representative of the Retail Clerks spoke
to her briefly on the selling floor of the store and immediately thereafter James D.
Smith, an assistant manager, said to her, "Edna, don't you know that you are not
supposed to speak to the Retail Clerks when they come in the store?" 13 Shortly
thereafter when she questioned Denzer about Smith's statement, he indicated his
approval of it. Spitzer further testified that Denzer started to walk away and then
turned and made the further statement, "On the other hand, you might need him
[presumably a Retail Clerks representative] later on." General Counsel has not
indicated whether or not be contends that Denzer's statements to Spitzer were
12 For example , Mills, who had been a steward, testified that Smith had not been backing
up the stewards with respect to the handling of grievances. Although she also testified to
the belief that Smith handled grievances "worse for those who had been for the Retail
Clerks," she was unable to describe a reasonable basis for such belief. This dissatisfaction
was further evidenced by the fact that, in the beginning of 1962, circulation was started
in the store of a "petition" which recited : "Those who believe this union [ Clothing
Workers] has not did for the employees as they promised, please sign below." Mills testi-
fied that she solicited signatures for the "petition" and that two other stewards indicated
to her that they shared her dissatisfaction with the Clothing Workers. Bailey, who also
served as a steward, testified that in January of 1962 she told Ungar , when he asked her
what the "trouble" was at the store, that "I felt we had a good union, but that it was
just being misrepresented in our store, and I meant Agnes Smith." Ungar testified that
"there was some dissatisfaction among the stewards as to the way that she [Smith] handled
some of the problems over there [in the store]." In the middle of January, Ungar met
with it gioup of the employees to discuss the "problems" without Smith being present,
since "some of the people" and he thought it wiser that she not be.
18 Although General Counsel has not indicated whether he contends that this statement
is a violation of Section 8(a) (1), it appears to have been alleged in the complaint. How-
ever, I do not find it to be violative of the Act since it appears that by the last phrase
and in the circumstances which prompted the statement, the prohibition was intended to
be limited to working time and areas, and reasonably should have been so understood. It
appears from the record that Maxam maintained a valid no-solicitation rule and General
Counsel indicated during the course of the hearing that it was his position that the viola-
tion was the failure to state the limitation of working time and area See Marshall Field
if Company, 98 NLRB 88 , for a discussion of the application of no -solicitation rules to
retail stores.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of Section 8(a)(1). However, it appears both his statements were alleged
in the complaint, although not clearly so. Since I have not found Assistant Manager
Smith's statement to be violative of the Act, it follows that Denzer's approval of his
statement would not be. As to Denzer's additional comment, I find that, if it be a
threat, it is so veiled that it is meaningless. However, I have considered the com-
ment in determining whether Denzer had been planning to discharge Spitzer. I am
not persuaded that Denzer did have such a plan in view of the two interviews he
had with Spitzer with respect to garnishment actions against her, shortly before and
shortly after the episode in which the comment was made. On both occasions he
urged her to straighten out the matter so that it would not be necessary for Maxam
to "go to court." On the second occasion he also told her that "at most places they
let people go for that [garnishment] and that he didn't intend to let her go for
anything like that" because he knew she needed the job. Spitzer testified that he said
something "about many places fired over garnishees" but denied that he said that
he was not discharging her because she needed the job 14 In view of Denzer's
conduct with respect to the garnishments, I do not believe it appropriate to infer
from the aforementioned comment about needing a Retail Clerk's representative that
he had planned to discharge her at some time in the future when the opportunity
presented itself.
Both Fred Miller (an assistant manager and Spitzer's supervisor) and Denzer
testified that they observed Spitzer frequently engaged in conversations with other
employees to the neglect of her work. Miller testified that he had reprimanded her
several times for doing so and had reported the incidents to Denzer. Spitzer denied
that he had ever reprimanded her. Although Miller was not a convincing witness
with respect to certain aspects of his testimony (such as his attempt to explain the
meaning of the term "lack of work" as the reason for Spitzer's discharge), neverthe-
less, I do credit his testimony as to Spitzer's practice of engaging in conversations
and the reprimands for doing so. I am of the opinion that Denzer's action in dis-
charging her (for what would appear, regarded by itself, to be only a trivial matter)
was the result of a loss of his temper. He had had, just a short time prior thereto,
a heated conversation with another employee, and seeing Spitzer engaged in con-
versation instead of working, a practice in which, he was aware, she frequently
indulged, triggered his loss of temper. This inference is supported by Spitzer's
testimony that she called Denzer later in the day and asked him whether he had
"cooled off yet."
It does not appear that Spitzer was ever active in the Retail Clerks' organizational
efforts and there is nothing in the record to indicate a reason why the Clothing
Workers would seek her discharge or which would support an inference that Denzer
was discriminatorily motivated in his action. The fact that on several occasions
Retail Clerks' representatives had brief conversations with her in the store does not
appear to be of any significance, since it appears that she was only one of many
employees with whom the Retail Clerks' representatives conversed.
The Discharge of Secrist
Denzer testified that Secrist was discharged by him on December 28, 1961, "for
bringing back [for refund] excessive amounts of merchandise without proper
explanation."
On October 13, the day after Spitzer's discharge, Agnes Smith discussed the
Spitzer matter with two stewards, Bailey and Mills. Each testified that Smith
stated in the course of Smith's conversation with her that there would be others dis-
charged, besides Spitzer, and named Secrist, Horne, and Sally Ballman. Mills testi-
fied that Smith also said to her that she, Mills, had better "straighten out those girls
and quiet them down, or else she would fix it so we would be paying union dues
but have no union protection." Bailey testified to a similar statement and also that
Smith indicated that the reason for the prediction was that the three named "were
fighting our union and always had, because they were for the Retail Clerks." 15 Of
the three named whom Smith predicted would be discharged, only Secrist was
discharged.16
is At first, she testified that she could not recall that he made such a statement, but
would not deny that he had ; then she changed her testimony to a categorical denial,
Is Although General Counsel has not indicated whether or not he contends that Smith's
statements were violative of Section 8(b) (1) (A), they clearly relate to allegations in the
complaint.
1e It should be noted that it is alleged that Horne was discriminated against in violation
of 8(a) (3) for the failure to promote her in January 1962 and that this was caused by
MAXAM DAYTON, INC. 409
Smith denied she made the statements attributed to her by Mills and Bailey and
testified that she told Mills not to be upset by Spitzer's discharge, that as a steward
she should realize it was not the first time someone had been fired or the last time
someone would be fired. I credit the testimony of Mills and Bailey as to Smith's
prediction of the discharge of the three employees named, for, if it had been manu-
factured, I do not believe the names of Horne and Ballman would have been in-
cluded, particularly the latter. While I do not believe it reasonable to infer from
the prediction that management planned, or agreed, to discharge the three girls
named, or any one of them,17 I believe it reasonable to infer that Smith indicated
thereby that she, or the Clothing Workers, were seeking the discharges of the three
named, because they had been, or were, engaging in a protected activity. Therefore,
I find that Smith's prediction was coercive within the meaning of Section 8 (b) (1)
(A) of the Act.
I also believe it reasonable to infer that the statement about collecting union dues
without giving employees representation was provoked by some of the employees
voicing dissatisfaction with the adequacy of the Clothing Workers' representation.is
I am of the opinion that it is coercive for the collective-bargaining agent to threaten
to withhold its services (which would include the processing of grievances) from
employees who did not desist from continuing such activity. I find, therefore, that
the Clothing Workers did, by Smith's statement, violate Section 8 (b) (1) (A) of the
Act. Peerless Tool and Engineering Co., 111 NLRB 853, 858-859.
Although Secrist testified that she was active in securing authorization cards on
behalf of the Retail Clerks in February of 1961, Freeman, who apparently was the
most active employee in the Retail Clerks' campaign, credibly testified that she ini-
tiated the Retail Clerks' campaign approximately a month later, in "late March of
1961." In view of this and my evaluation hereinabove of Secrist's testimony, I
do not credit Secrist's testimony as to her activities on behalf of Retail Clerks.
In any event, there is no showing that any of the Respondents had knowledge of
the activity to which she testified. I do believe, however, that the record supports
a finding, as I indicated in the discussion of the background period, that her sympathy
for the Retail Clerks became known during that union's organizational campaign.
Secrist testified to two incidents when Denzer warned her about talking to Retail
Clerks' representatives without including limitations as to working time or area.
The first incident was placed in late September 1961 and the second in November
of that year. As to the first incident, she related that she and Horne were called
into Denzer's office and were so warned. Horne testified to an incident in late
September or early October when she was called into Denzer's office and warned
about talking to Retail Clerks' representatives.19 Horne testified that, besides
Denzer, Martha Sweitzer, a steward, was present. She did not testify to such an
incident at that time or any other time when Secrist was also present. I do not
find it reasonable to infer in view of this aspect of Horne's testimony (which I
credit) 20 that there was also another such incident at about the same time when
Home was accompanied by Secrist. Denzer could not recall any incident in which
he warned both Horne and Secrist in his office. In view of my evaluations of other
aspects of Secrist's testimony and the omission of any reference in Horne's testi-
mony of receiving a warning in Denzer's office when Secrist was present, I find that
I cannot credit Secrist's testimony as to what was said by Denzer in warning her
about talking to Retail Clerks' representatives. However, Denzer did testify that
he had seen Secrist talking to a Retail Clerks' representative and had warned her
that she was not to discuss union activities on company time on the floor.
Denzer testified that, on December 26, 1961, he was informed that Secrist "had
brought back a considerable amount of merchandise for refund"; that he did not
the Clothing Workers in violation of Section 8(b) (2) However, It should also be noted
that Ballman, the third employee named, was promoted to the very job which is it alleged
Horne should have been given. The alleged Horne discrimination is discussed in further
detail hereinbelow.
17 The prediction as to Secrist is, however, considered hereinbelow in determining whether
ho- discharge was discriminatorily motivated.
18 It appears that the dissatisfaction with the Clothing Workers began to manifest itself
with the employees' reaction to Spitzer's discharge. There is little or no evidence of its
existence prior thereto.
19 Horne's testimony as to this incident will be discussed hereinbelow in connection with
the allegation of a violation of Section 8(a)(3) with respect to the terms and conditions
of her employment
29 Sweitzer testified that she remembered being called into Denier's office in connection
with his warning Horne, but could not remember the reason for the warning.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get a chance to speak to her about it; and that on December 28, he was informed
that she "had brought back another large portion of merchandise, and they
[presumably the clerk or clerks handling refunds] wanted to know what to do."
He instructed that the refund be granted, but that he wanted the merchandise
(which he took into his office). Among the items, he testified, were men's shirts,
shoes, doilies, towels, and washcloths. He estimated that there were about 20,
different items in all, for which Secrist received a refund of $23. (She received a
refund of $33.50 for the items she returned on December 26, but the record does
not indicate how many items were involved.) Denzer called Secrist into his office
and asked her for an explanation of why she returned certain of the items, but,
acording to his testimony, prior thereto he had conferred with the two assistant
managers and had decided to discharge her.
Essentially, the chief factors which might be relied on to prove discriminatory
motivation are Denzer's knowledge that Secrist had been sympathetic to the Retail
Clerks, that she had been seen in the store conversing with one of its representatives
on one or more occasions, that she had been warned not to do so, and Smith's
prediction of her discharge. I am not persuaded that her known adherence to the
Retail Clerks in its campaign, which it had apparently abandoned over 6 months
prior to her discharge, could have furnished the motivation. Since it appears that
she was only one of many with whom the Retail Clerks' representative were seen
conversing in the store , it does not seem reasonable to infer that this could have
been the reason. While Smith appears to have borne some animosity toward Secrist
because of Secrist 's aforementioned adherence to the Retail Clerks, I am not of the
opinion that the record will support an inference that Denzer discharged Secrist at
Smith's request, or that Smith sought her discharge?i As for Smith's prediction of
Secrist's discharge, approximately 11/2 months prior thereto, I do not believe it any
more reasonable to infer that Denzer had informed her that he planned to dis-
charge Secrist sometime in the future or agreed to comply with a request by Smith
that he discharge her than to infer that she had made a lucky guess. (I will not
attempt to estimate what the mathematical probability might be that of any three
Maxam employees selected at random one will later be discharged.) In view of
my finding that no reason appears to exist for either management or the Clothing
Workers to desire Secrist's discharge and my conclusions hereinbelow as to the
reason advanced for the discharge, I cannot, because of mathematical probability,
infer that the prediction was an informed one rather than merely a chance guess
which proved accurate.
I do not find that the reason Denzer advanced for Secrist's discharge was so in-
substantial that it can be considered suspect. He testified, without contradiction,
that the amounts of merchandise returned by Secrist on December 26 and 28 were
far in excess of the amount returned by any employee or customer at any one time
during the period of his employment at Maxam. However, he testified that had the
merchandise been returned with the register tapes (evidence of purchase) the re-
fund might very well have been made without his attention being called to it. It
appears that normally refunds are made without question when the register tapes
are presented with the returned merchandise. I am convinced that his decision
was predictated on the excessive amount of merchandise returned by Secrist without
the presentation of a single register tape in accordance with the normal practice.
Denzer testified that had the register tapes been produced with the merchandise
she would only have been "cautioned on it." Denzer denied that he was motivated
by any suspicion that the merchandise had not in fact been purchased. However,
I am of the opinion that the failure by an employee to present the register tapes
normally requested when refunds are sought, coupled with the abnormally large
amount of merchandise returned, constituted a practice which he was not willing to
condone, even though he did not entertain a doubt that Secrist had actually pur-
chased the merchandise. Bailey testified that when she was steward she discussed
the Secrist discharge with Denzer, and that, in response to her statement that he
had not been "smart" in the way he handled the discharge, he admitted to her that
he was "mad at the time and he just didn't stop to think."
It is evident that the failure to present the tapes for the merchandise returned was
considered an important, if not the governing, factor. This is indicated by the fact
that Secrist, in order to aid the Clothing Workers' representatives in attempting to
a It appears , based upon testimony which I credit, that , at the end of August 1961, when
Secrist was in the hospital , Denzer informed Smith that Secrist had failed to "call in" to
explain her absence and that unless he heard from her she would be discharged . 'Smith
immediately went to the hospital and advised Secrist to call Denzer. It does not appear
that Smith would have taken this action if she sought the discharge of Secrist.
MAXAM DAYTON, INC. 411
induce Denzer to change his mind , produced a considerable number of tapes and
a check was made to determine whether among them were tapes which matched
the returned merchandise . I do not pass upon whether the record will or will not
support a finding that the tapes did not match (as Smith testified), inasmuch as the
issue is what motivated the discharge action and not whether Denzer should have
condoned the return of an excessive amount of merchandise without tapes by a
later presentation of the tapes.
As indicated, I do not believe it appropriate to find that the reason which Denzer
gave for the discharge was a trivial one . This, coupled with my conclusions above
as to the lack of existence of a reason for discriminatory action against Secrist, leads
me to the further conclusion that the record will not sustain an inference that the
discharge was discriminatorily motivated . Further, I do not find that the Clothing
Workers sought Secrist's discharge , despite Smith 's prediction that it would occur. I
am of the opinion that it is not reasonable to infer any more with respect to the
prediction than that it was a threat designed to intimidate the stewards and to subdue
dissatisfaction among the employees with the representation of the Clothing Workers
and with her efforts as business representative . Smith 's action in protecting Secrist's
job when Secrist was in the hospital , the fact that only one of the three predicted
discharges occurred and the fact that there does not appear to be any basis for Smith's
believing that Secrist constituted a threat support this conclusion.
Change in Job Assignment of Norris
On December 30, 1961 , Norris was transferred from the men 's department to the
domestics department . It is contended by General Counsel that the job to which she
was transferred was more arduous and that the transfer was discriminatorily
motivated.
Although the record establishes that the new assignment involved more arduous
tasks than those required in her previous assignment , there was no loss of economic
benefits. Norris did not complain about the transfer to either the Clothing Workers
or management , but filed the charges herein on February 16, 1962. She testified that
she did not complain to a steward because she thought it would have been futile to
do so.
Although she testified that she had signed a card for the Retail Clerks, there is
no indication that any of the Respondents had knowledge thereof. She admitted
that she had no basis for believing that they knew of it. The reason advanced for
the discriminatory motivation for the transfer is predicated on her testimony that,
in September 1961 , she had a brief conversation in the store with a Retail Clerks'
representative and on two later occasions ( the last in December 1961 ) she exchanged
"hellos" in the store with representatives of that union . Denzer admitted that, on
one occasion ( in April 1961 ), he had observed her talking to a representative in the
store, but did not recall any other instance . Norris admitted that on none of
the occasions to which she testified did she see a supervisor observing her. As
indicated above, Retail Clerks ' representatives frequently visited the store and con-
versed with or greeted many of the employees.
It appears that because of Secrist's discharge it was necessary to place someone
in the domestics department and Norris was selected . I find no basis for drawing
an inference that her selection was discriminatorily motivated. Nor does there
appear to be any basis for an inference that the transfer was caused or sought by
the Clothing Workers. While the selection of Norris for the job in the domestics
department, in view of her age and slight frame, might have been evidence of poor
judgment , I cannot find that , of itself, also to be evidence of an unfair labor practice.
Failure To Promote Horne
It is contended that Maxam failed to promote Horne to the position of "number
one cashier" when the position became available in January 1962 because of her
adherence to the Retail Clerks, and that the Clothing Workers caused , or attempted
to cause , this discrimination against her. Denzer credibly testified that he selected
Sally Ballman for the job instead of Home because he considered the former better
qualified, and that he understood that, according to the union contract , management
could select among those of equal seniority whichever employee was deemed better
qualified . The record discloses that he consistently indicated to the stewards, as his
reason for selecting Ballman , that he considered her better qualified than Horne.
Horne testified that although Ballman and Horne had the same amount of seniority,
some understanding had been arrived at between the Clothing Workers and Boleman,
than manager, that employees with equal seniority would be listed alphabetically,
but that if an employee refused the job to which she became entitled because of
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her position on the list, she would go to the end thereof. It further appears from
Horne's testimony that, while Boleman was still manager, Ballman was offered and
refused the job. Horne also testified that, although Ballman had been hired the
same day she had, Ballman worked for 11/2 days in the tile department (presumably
not Maxam-owned) during the time Boleman was manager.
It has not been demonstrated that Denzer, in making the selection for the job, was
aware that Horne was entitled to seniority and disregarded the fact.22 From the
testimony of the stewards who discussed Horne's grievance with Denzer it does
not appear that in their discussions with him there was any reference made to either
of the reasons which Horne testified entitled her to seniority. The testimony as to
his discussions with the stewards indicates that the position he took with them was
consistent with an assumption on his part that Horne and Ballman had equal seniority.
As I have indicated, Denzer credibly testified that he considered Ballman better
qualified. It appears that both Horne and Ballman had been known as Retail Clerks'
adherents and that both were in the group of three who Smith predicted would
be discharged. Under all the above-mentioned circumstances, I do not believe it
reasonable to infer that Ballman's selection over Horne was discriminatorily
motivated.
Horne testified that around the end of September 1961, Denzer warned her
about talking to a Retail Clerks' representative "in the store." 23 As I have previously
pointed out, Retail Clerks' representatives were frequently seen talking to employees
in the store and I do not consider this warning of sufficient significance to discredit
Denzer's testimony as to his reason for selecting Ballman.
In view of the above finding, it follows that the Clothing Workers did not cause
the selection of Ballman in preference to Horne. The record will not support an
inference that the Clothing Workers attempted to cause such a selection.
Change in Mills' Duties
General Counsel contends that early in January 1962, Mills' job was made more
arduous because of her militancy as a steward with respect to the grievances arising
out of the discharge of Spitzer and Secrist and that the Clothing Workers caused
the discrimination.
Prior to the above-mentioned date, another employee, as well as Mills, had
been assigned to the counter at which a popcorn machine was stationed. Mills
testified that she and the other employee rotated working in another area when they
were not both needed at their primary assignment. Denzer credibly testified that
early in January, because of their seasonal decrease in business and resultant layoffs,
only one employee was assigned to the popcorn counter. The question then arises
whether the retention of Mills at the popcoin counter, instead of the other em-
ployees, was discriminatorily motivated. Absent any showing that the other
employee at the counter was assigned to another job rather than laid off, or, if
assigned, that her assignment was to a less arduous job, I have no basis for inferring
that the retention of Mills at the popcorn counter was an action which could have
been discriminatorily motivated.24 It would follow, therefore, that, although there
is testimony which would indicate that Smith had some animosity toward Mills
because of Mills' dissatisfaction with her and the Clothing Workers' representation,
no purpose would be served in attempting to draw some inference therefrom as to
Mills' retention at the popcorn counter.
The Alleged Constructive Discharge of Freeman 25
As has been previously indicated, Freeman was very active on behalf of the
Retail Clerks in late March and early April of 1961, and this was known to the
Respondents.
22 As has been previously indicated, for most of the period that Boleman was manager
after the union contract was given effect Denzer was not working in Dayton
211 do not find this warning to be violative of Section 8(a) (1) of the Act since it appears
to have been consistent with a valid no-solicitation rule maintained by Maxam. The warn-
ing was clearly related to an incident immediately preceding it in which she had been
admonished by an assistant manager for talking to the representative on the selling floor.
See footnote 13.
24 In May 1962, at her request, Mills was assigned to another job on the day shift and
thereafter, again at her request, to another job on the night shift. General Counsel
conceded during the course of the hearing that no remedy was sought with respect to Mills'
job assignment.
22 Freeman's employment terminated on January 31, 1962.
MAXAM DAYTON, INC. 413
Freeman was on leave from her job from August 1 , 1961, to January 4, 1962.
Boleman granted her a 30-day leave starting August 1. About September 1, Denzer
granted her additional leave for approximately 6 weeks and , then, around the middle
of October , she requested , and Denzer granted her , further leave until May 1962.
On January 2, 1962, she called Denzer and told him that she wanted to come back
to work, and he informed her that she could come back on January 4, 1962. Free-
man testified that about that time employees were being laid off. Denzer testified
that , due to seasonal decrease in business after the holidays , there were layoffs about
that time.
On the day she returned to work , according to her testimony , Denzer called her
into his office and informed her "that he had already warned Eva Secrist and Lois
Horne that if they were caught talking to anybody from Retail Union, out the door
they went" and that he added, "now , I am telling you " She further testified that
she assured him that she had not, and would not, cause the Clothing Workers "any
trouble," and that she "had not talked to anyone from Retail since the ACWA came
in " Although Denzer testified that he had never warned an employee about talking
to the Retail Clerks without indicating the limitations of working area and time,
Freeman denied that the limitations were mentioned on that occasion . Since Free-
man appeared to be a credible witness, and Denzer did not testify as to this particular
incident , I credit her testimony and find that Denzer neglected to include the limita-
tions on that occasion . Therefore , I find that his warning to Freeman was violative
of Section 8 (a) (1) of the Act.
On January 23, Freeman called Denzer and informed him that she could not
come to work because her father -in-law was ill. She testified that he assured her
"that's all right" and did not ask her if she "would be in the next day or anything."
The next day she did not report to work and tried to reach Denzer by telephone.
According to her testimony , when she did talk to him, she inquired if he had received
word that she had called earlier , and that he said that he had not , but assumed that
she was absent for the same reason she had given for her absence of the previous
day; and that she could "take the whole week off," but would she "please come in
Monday for inventory ." She did report to work on Monday ( January 29 ). Toward
the end of the day, she testified she asked Denzer if she could leave early and could
have the next 4 days off and that he agreed to her leaving early, arranged for her to
get her paycheck , and told her to call him the next day to see if the 4-day leave
could "be worked out." She tried to reach him by telephone on January 30, as he
had instructed , but he was not in the store and the following day, January 31, she
called and talked to him At that time he told that he would need her in the store
the following day. To continue with her testimony , she told Denzer that she had not
heard when her father -in-law would be going into the hospital and asked if she could
call him that evening. Denzer agreed. Following is a verbatim account of her
testimony:
I called Mr. Denzer that evening and I told him that I would not be able to
come in the next day, and they could not get Dick 's father into the hospital,
And I said, "I just cannot turn my back on him." I said, "The man is 80
years old."
Mr. Denier said, "Yes, I know how that is , but some matters have come up
and I have to have you in here tomorrow ." And he said , "I will have to get
somebody in your place "
And I said , "Well, you don 't leave me much choice then but to quit."
He said, "Well, I will have to call a night girl or a day girl that is laid off in."
And he told me that any time I could go back to work, if I wanted to go back,
that I should have them call him and he could give them a recommendation.
I thanked Mr Denzer and hung up.
Denzer testified that he did not replace Freeman immediately ; that since Norma
Howard , because of seniority , was entitled to come to work, he took her back,
rather than call in someone on layoff status to work a few days and be laid off again.
He testified , "I covered the store as best I could" until Howard came to work
approximately a week later.
General Counsel contends that Denzer planned to force Freeman to quit her
employment and argues that, if he managed without a replacement for her until
Howard reported for work , he could have given Freeman the leave she requested,
instead of forcing her to resign . General Counsel asserts that Denzer 's conduct
constituted a constructive discharge of Freeman.
It appears that Freeman did nothing to oppose the Clothing Workers after it
became the bargaining representative of the Maxam employees . Considering the
concessions and courtesies that Denzer extended to her , I am not persuaded that it
is appropriate to infer that he "planned " to get rid of her. In mid -October 1961, he
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted her a leave of absence of over 5 months, despite the fact that the union
contract provided for a maximum of only 90 days, and this , after she had already
been on leave for approximately 21/a months . Then , when she asked permission
to return to work before her leave expired , she was allowed to do so, although it was
on January 4, 1962 , at a time when the store was laying off people due to the post-
holiday slack season. From January 23 to January 31, she worked only part of 1
day, and during that period Denzer was very cooperative in excusing her absences,
permitting her to leave early on the one day she worked, and in obtaining her pay-
check for her.
On the morning of January 31 , when he informed her that he would need her the
next day, he agreed to wait until that evening for word whether she could come to
work. Even that evening when she reported that her father -in-law could not as yet
get into the hospital, he did not discharge her, but gave her the choice of reporting
to work or being replaced . (He did not ask her , and I do not pass upon , whether
there were any measures she could have taken to enable her to work the next day.)
In view of the above -outlined circumstances, I find it more reasonable to infer that
she had exhausted Denzer's managerial patience rather than to infer that he seized
upon the opportunity as a pretext for forcing her to quit.
Neither do I find it reasonable to infer that the Clothing Workers caused him to take
the action he did, or sought Freeman 's discharge Smith testified , credibly and with-
out contradiction , that Denzer consulted her with respect to Freeman's request for
leave to take care of her father- in-law and that she advised Denzer that Freeman was
entitled to the leave for the reason given . This conduct on the part of Smith is
inconsistent with the existence of a conspiracy between Denzer and Smith to force
Freeman to quit. Denzer's disregard of the position taken by Smith that Freeman
was entitled to the leave which she requested may have constituted a violation of the
union contract , but is not, of itself, evidence of an unfair labor practice.
Bailey's Demotion
On February 20, 1962, Bailey was demoted from the position of "head cashier"
to that of "sales clerk" without, however, any reduction in her rate of pay. It appears
that the latter position involves more arduous duties.
Denzer testified as follows:
During the time at which there was much controversy over Eva Secrist and
Edna Spitzer , Mrs. Bailey and I had many discussions about whether or not
what I did was right or wrong.
She was afforded at all times , in her position , access to the office , and although
I don't expect a union member to be sympathetic with management , facts are
facts, and management , if he defends his rights , he feels he has done something
properly, he doesn 't like to be constantly explaining it, and it was very easy
to see that she didn 't feel I was right.
Bailey testified , without contradiction , that, early in February 1962, Denzer told
her that because of her position in the store , she would have to make up her mind
whether she was "going to be for him" or "for the girls ." She answered that she
"would have to think about it."
On February 14, 1962, Bailey filed with the Board a charge against Local 802
and Smith and a charge against Maxam. The "basis " of the latter charge was as
follows: "Maxams and Agent Agnes Smith Local 802 of Amalgamated Clothing
Workers of America ignored seniority rights and better working conditions." Shortly
thereafter, Denzer called her into the office and asked what she "meant by seniority
rights." She testified that she referred to the Horne grievance (that Horne had
seniority ) and that he stated his reasons for thinking Horne was not qualified for the
job to which Baliman had been promoted instead of Horne.
General Counsel has not indicated whether he contends Denzer's inquiry about the
charge is violative of Section 8(a)(1). However , there is an allegation in the com-
plaint referring to this incident . Considering the ambiguity of the above-quoted
basis for the charge, I find that Denzer had good reason for seeking an explana-
tion in order to understand what was "meant " by the charge. He made no coercive
statement in his questioning of Bailey and , therefore , I do not find that his interroga-
tion of her, under the circumstances , was violative of Section 8(a)(1).
Bailey testified that on January 20, 1962, she related to Ungar that she had
heard a rumor that Denzer was going to demote her and that he suggested that
Denzer might be more lenient if she were to withdraw the charge she had filed.
She mailed the withdrawal to the Board and then met Denzer and informed him of
her action . She testified that he said that it "didn't make any difference ," that he
still could not "trust" her, that she had "hurt " Maxam by filing a charge against it,
MAXAM DAYTON, INC. 415
and that she was assigned to the "floor." Later in the day she informed Ungar of
what Denier had said and told Ungar that she "was thinking about quitting," but
that he urged her "to hold on for a little while longer."
It is evident that Bailey's demotion was precipitated by filing the charge against
Maxam. Maxam's defense is that as head cashier she had a key to the office in which
some employe erecords were kept and, therefore, she was a "confidential" employee
whom Maxam was justified in demoting.26 It appears that the "key to the office"
reason has no validity, for she had been head cashier and steward for a considerable
time prior to the decision to demote her without any concern on the part of manage-
ment about a conflict between her stewardship and the so-called "confidential" nature
of her position 27
It is evident that her demotion was in retaliation for having filed a charge against
Maxam. This is clearly a violation of Section 8(a) (4) and (1) of the Act. Although
it has been alleged that it was also a violation of Section 8 (a) (3) of the Act, I do
not pass upon this issue, since, even if it were to be found, it would not add anything
to the remedy which I shall recommend.
I do not find it reasonable to infer that the Clothing Workers sought her demotion.
On the contrary, it appears from her testimony that Ungar was trying to be of aid
to her in her difficulty with Denzer. Smith credibly testified that she attempted to
persuade Denier to restore Bailey's job to her and that he refused, giving the reason
"that if she [Bailey] didn't think any more of the company than to file charges against
them, that he didn't feel like, as part of management, she should have the privilege of
using the front office." 28
Alleged Discrimination in Representation by Clothing Workers
In essence, General Counsel contends that the Clothing Workers discriminated
against certain of the Charging Parties in its representation of them because of their
protected activities. As proof of this contention General Counsel relies on testimony
with respect to the statements and conduct of Smith and Ungar, particularly of the
former.
It is evident that the stewards exerted considerable effort in attempting to have
Spitzer and Secrist restored to their jobs. As a matter of fact, it is contended that
Respondents discriminated against Mills and Bailey because of the vigor of their
efforts 29 The gist of General Counsel's argument is that Smith and Ungar exhibited
too little vigor in a deliberate effort to avoid the successful processing of the griev-
ances, particularly the Spitzer and Secrist grievances.
In finding that the discharges of Spitzer and Secrist were not discriminatorily
motivated, I have not, of course, passed upon the question of whether there was
"just cause" for the discharges within the meaning of article XIII of the Clothing
Workers' contract with Maxam. The contract provides for the following timetable
"The Union shall present all complaints of discharge" within 5 days after the discharge
and, if not settled by mutual consent within 10 working days thereafter, "upon the
expiration" of the aforesaid 10-day period, written notice must be given by the
party wishing to submit the matter to arbitration.
Smith's testimony as to her actions with respect to Spitzer's discharge may be
summarized as follows: Spitzer called and told her that she had just been fired for
gossiping and not staying in her department; she told Spitzer she would come out to
the store and that same day she went to see Denzer who told her that he did not
want to discuss the matter, that "he wasn't going to take her [Spitzer] back"; she
then told Sweitzer (identified above as a steward) of her conversation with Denier
and suggested that she get a written grievance and "we would start over again from
there"; she had to go out of town for several days and upon her return she went to
the store and again talked to Denzer who said he had not changed his mind; she
then talked to Sweitzer and asker her if Spitzer had filed a written grievance and
was informed that Sweitzer had not as yet received it; she then turned the matter
over to Ungar.
29 The employee records were file cards with name of employee , telephone number, and
record of any disciplinary action taken against the employee
27 Respondents stated, in the course of the hearing , that they do not contend that as
head cashier she was a supervisor within the meaning of the Act and the facts disclosed
in the record as to the nature of her job do not indicate that she was a supervisor.
29 This statement by Denzer supports the above conclusion that the demotion was moti-
vated by Bailey ' s filing of a charge
29 This subject was considered hereinabove in the sections titled, "Change in Mills'
Duties" and "Bailey's Demotion "
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sweitzer 's testimony as to Smith 's actions with respect to Spitzer 's discharge,
although not consistent with Smith's testimony does not contradict it. Sweitzer did
testified to a conversation with Smith in which Smith said to her that "she would
have to take it to higher channels, that she had done all she could do." She also
testified that Spitzer did not file a grievance until "later on when five or six of them
filed them all together." She further testified it was not the practice at the time to
process only written grievances. Denzer testified that Smith took up Spitzer's griev-
ance with him and asked him to take Spitzer back and that he refused, but he did not
recall whether she did it more than one time.
From the above I conclude that it does not appear reasonable to infer that Smith
was withholding representation from Spitzer in the presentation of her grievance.
Following are excerpts from the record cited by General Counsel in his brief which
were considered in determining whether the above conclusion may not be valid:
(a) Spitzer testified that about a month after her discharge she asked Smith about her
grievance and that Smith told her that she (Smith) had turned the matter over to
Ungar and added "after all, you were pretty strong for the Retail Clerks, weren't
you?" Although Smith was not questioned about this particular conversation, she
did deny that she ever said that employees who had worked for the Retail Clerks
would not get "union protection" or "words to that effect." However, I credit
Spitzer's testimony as to the above statement by Smith; (b) Sweitzer testified, without
contradiction, that Smith told the stewards that "once she had taken a grievance over
it was out of our hands and we wasn't to doubt her word, whatever she did was
okay"; (c) Bailey testified that the day after Spitzer's discharge, Smith told her
that Denzer was "within his rights in firing her"; and (d) Smith's prediction, herein-
above discussed in the section of this report titled "The Discharge of Secrist," that
Secrist, Horne, and Ballman would also be discharged. General Counsel contends
that it is appropriate to infer from these excerpts, in light of the entire record,
that Smith had an animosity toward adherents of the Retail Clerks and that there
was "a close working arrangement between top management and top union officials"
presumably to discriminate against Spitzer, Secrist, and the other Charging Parties.
It appears that Smith was arrogant and dictatorial in her handling of the stewards
which caused a resentment in them toward her and which was a not inconsiderable
part of the basis for the dissatisfaction among the employees with the Clothing
Workers. However, I am not of the opinion that Smith's undiplomatic handling of
the stewards and the fact that she expressed the belief that Spitzer's discharge was
for just cause are a basis for concluding that there was a "working arrangement"
of the nature asserted by General Counsel. In reaching this conclusion I have given
full consideration to the other findings I have made herein both with respect to the
background period and the period subsequent thereto.
Smith's testimony as to her actions with respect to the Secrist grievance may be
summarized as follows: She was informed of it while in Tiffin, Ohio, by Denzer
and Sweitzer on the day it occurred (December 28, 1961) ; Smith told Sweitzer she
would return a day earlier than she had planned in order to take it up with manage-
ment; Sweitzer told her Secrist had the tapes for the returned merchandise and
wanted them checked; she told Sweitzer to get the tapes and meet her in the store
the next day; she went into Denzer's office with two stewards and talked to Denzer
who informed them that he would not take Secrist back; nevertheless, she proceeded
to check the tapes, which she did alone because Denzer insisted the stewards return
to work; there were about 100 tapes and 40 items of merchandise; she spent 2 to 3
hours checking, but was unable to find a tape for any of the items; she returned
the tapes to Sweitzer and told her to have Secrist file a written grievance: when
Secrist called her she told Secrist that the tapes did not match and they discussed
the reasons why Secrist had returned so much merchandise; she told Secrist to keep
in touch with Sweitzer because she (Smith) would be in Tiffin, Ohio, much of the
time; on January 2 she again talked to Denzer and asked to take Secrist back, but
he refused; she then told Sweitzer of Denzer's refusal and that she would turn over
the matter to Ungar, which she did.
Sweitzer's testimony may be summarized as follows- Secrist informed her of her
(Secrist's) discharge on the day it occurred; Sweitzer immediately talked to
Denzer about it; Denzer showed her the merchandise which he said Secrist
had returned and stated that "he just couldn't put up with something like
that"; when she asked Denzer if Secrist had tapes for the merchandise, he said
that he did not know; she then called Smith who informed her that she bad already
heard of the matter, that Secrist "had already drew union compensation from being
off sick, and for me not to put up too much of a fight because she was in favor
MAXAM DAYTON, INC. 417
of the Retail Clerks," and that the stewards "might as well get used to it, that there
were going to be three or four more to go when the opportunity time came and
named Spitzer and Horne"; 30 Smith told her to get the tapes from Secrist; that
about a week later she checked with Smith who told her that she (Smith ) "had done
all she could do" and "would have to take it to higher channels."
There is no contradiction in the testimony of Smith and Sweitzer as to what occurred
in the period immediately following Secrist 's discharge except with respect to the
statement which Sweitzer testified that Smith made "not to put up too much of a fight."
Smith denied making such a statement . I credit Smith's denial . Sweitzer 's testimony
was vague and disconnected with respect to what occurred during this period,
particularly as to what conversations she had with Smith and when they occurred.
Furthermore , the statement was inconsistent with the instruction she did give Sweitzer
to get the tapes, her action in hurrying back to Dayton to handle the grievance, and
the amount of time she spent thereon.
General Counsel argues , in effect, that Smith 's actions on Secrist's behalf were
only token efforts and predicates this on the following cited factors : ( a) an asser-
tion that Denzer testified Smith "agreed with him that Secrist 's discharge was
justified ." It does not appear that the testimony upon which General Counsel based
his assertion can reasonably be construed as indicating that Smith had so "agreed."
Denzer's testimony is as follows:
Q. Now , in addition to taking this matter up with Mrs Smith , a number of
other stewards were coming in and raising the question , is that correct?
A. Yes, sir.
Q. Will you tell us why you decided not to take the matter up with the
stewards?
A. The situation , or the incident of my dismissing Mrs Secrist had been
hashed over and hashed over and hashed over with the people . I had shown
Mrs. Smith, I had shown Mrs. Bethel , I had heard all through the store that,
"He has no right to do that. He has no right to do that."
There comes a time as a manager that you have your rights, and I felt I
was justified , I was willing to defend myself, I showed it to the representation,
they have a union representative . I showed it to her, and I was finished with it.
From the context in which this testimony was given it appears that by the word
"showing" he was referring to the opportunity of comparing the tapes with the
returned merchandise.
(b) The fact that Denzer notified Smith of his discharge of Secrist , as he did
with respect to Freeman 's decision to quit . I do not believe it reasonable to draw
any inference therefrom that a "conspiracy " existed between the two to discriminate
against Secrist or Freeman.31 It is not , I believe, unusual for such notification to
be given by an employer to the bargaining representative of its employees.
(c) The fact that Denzer sent out the two stewards when Smith checked the tapes.
It was credibly explained, according to Smith 's testimony , that Denzer wanted them
to return to work.
(d) That Denier refused to show the tapes later to the stewards and discuss the
matter further with them. It does not appear that Denzer retained the tapes after
they were examined by Smith ,32 and, in any event, I believe the above-quoted testi-
mony of Denzer to be a credible explanation for his refusal.
(e) General Counsel 's assertion that Smith and Denzer had "settled" the case.
This assertion is based on certain testimony of Secrist and Sweitzer to which General
Counsel made reference . An examination of that testimony affords no basis for
such an assertion . On the contrary, it indicates that the matter was not "settled," but
was to be referred by Smith to "higher channels."
(f) Secrist 's testimony that Smith told her she was going to take her grievance
up with Ungar and then later called her and said, "I told you at some time or another
you would need my help , and I refuse to do anything Your register tapes are with
Marty ( Sweitzer]." Although Smith was not questioned with respect to this aspect
of Secrist's testimony and, therefore , there is no categorical denial thereof, Ungar
testified that he received a call from Smith with regard to the Secrist discharge
80 Spitzer had been discharged 11/2 months prior thereto and Horne never was discharged.
u He notified 'Smith as to Freeman's decision to quit when he refused to give her the leave
to which Smith had told Denier Freeman was entitled
22 Smith testified she gave the tapes to Sweitzer at the time she asked her to get a written
grievance from Secrist.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"about the 2nd or 3rd of January." As indicated above, Smith testified that she
gave the tapes to Sweitzer at the time she asked Sweitzer to get a written grievance
from Secrist. This is not denied by Sweitzer. In view of the fact that the action
taken by Smith contradicts the statement to which Secrist testified Smith made, that
Smith denied generally making somewhat similar statements, and my above-
explained reluctance to rely upon Secrist's testimony, I do not find that Smith did
make such a statement. In any event, even if the statement had been made, the
record indicates that it did not reflect the facts. The Secrist grievance was not dropped
at that time by the Clothing Workers.
Ungar testified that during the period from January 2 to January 15, he received
about 50 long-distance telephone calls 33 from Dayton concerning the Spitzer and
Secrist grievances and other problems at the Maxam Store. According to his
testimony, he realized that the Clothing Workers had a "problem" at the Maxam
store and the "people" wanted to talk to him directly. Therefore, he told Sweitzer
to arrange a meeting for him with the stewards and "any of the aggrieved people
in the store who felt that their problems weren't being handled to their satisfaction."
The meeting was held on January 16, 1962, in Dayton. Besides the stewards and
officers of Local 802, Secrist, Spitzer, and Lambert were present. Smith deliberately
was not notified of the meeting, since she was out of town and "some of the
people" and he thought it would be wiser not to have her present.
At this meeting there was a discussion of the dissatisfaction of the stewards with
the "way that she [Smith] handled some of the problems" and of the grievances of
Lambert, Spitzer, and Secrist, particularly of the latter two since it was conceded
that Lambert was not discharged but "quit." Ungar recommended that Maxam
be asked to arbitrate the Secrist and Spitzer grievances. As a result of this discussion
it was decided to bring the matters to a general meeting of the employees which was
held the next day (January 17, 1962).
The January 17 meeting was attended by employees of a number estimated by
various witnesses from approximately 30 to 60. It was voted that Maxam be
requested to arbitrate the Spitzer and Secrist grievances. To buttress the request,
Ungar suggested that the stewards be given the power to call a strike if arbitration
were refused, but the vote was against his suggestion.34
The next morning, January 18, 1962, Ungar attempted, without success, to per-
suade Denzer to reconsider his position. A day or two later, Ungar talked to New-
ton Lane, general counsel of Maxam, who said he would check into the matter of
the two grievances and, when Ungar called Lane later, Lane told him, "We can
beat this case in any court in the land." Ungar testified that he requested arbitration,
but it was refused, and that he did nothing further with respect to the two grievances.
It appears from the record that Ungar reported the reason for the refusal was that
the request was not timely made.
I am not convinced that it is reasonable to conclude that a conspiracy existed be-
tween Maxam and Respondents to discriminate against any of the Charging Parties
herein or that the Clothing Workers discriminated against any of the Charging Parties
herein in the processing of their grievances.
While it might be said that Smith was inept and Ungar negligent in the servicing
of the Maxam employees, I cannot conclude therefrom that unfair labor practices
were committed. The Act protects employees from discrimination by their bargaining-
representative, but does not guarantee the quality of the representation they receive.
I do not find that in the handling of the Spitzer and Secrist grievances the Clothing
Workers were deliberately withholding representation and only giving lip service to
their obligations as bargaining representative. I am not persuaded that, because
Smith and Ungar indicated that they did not believe Spitzer and Secrist had good'
cases, they only pretended to attempt to obtain reinstatement for Spitzer and Secrist.
The bases for their discharges were not of such an insubstantial nature as to preclude-
a good-faith belief that they were for "just cause." Neither am I persuaded that the
failure to make a timely request for arbitration was a deliberate attempt to withhold
fair representation, rather than either negligence or a good-faith belief that the cases
were not of sufficient merit to warrant arbitration proceedings.
I am of the opinion that Smith and Ungar did attempt to get favorable settlements
for Spitzer and Secrist and that by intervening Smith did not prevent, or, attempt to
prevent, the stewards from trying to obtain favorable settlements. As a matter of
fact, it appears that Smith's intervention in the matters did not deter the stewards from
81 Central States ' office is in Detroit , Michigan
84 Freeman was the proponent of the motion not to delegate such power to the stewards..
DIAXAM DAYTON, INC. 419
exerting considerable effort in attempting to persuade Denzer to reinstate Spitzer
and Secrist.
Interrogation re Filing of Charges
In addition to Denzer's interrogation of Bailey considered heremabove in the
section of this report titled "Bailey's Demotion," Horne and Norris testified to his
interrogation of them with respect to filing of charges with the Board.
On February 9, 1962, Home, Mills, Secrist, and Spitzer went to the Board's
Regional Office in Cincinnati, Ohio. On that occasion only the latter two filed
charges' with the Board. On the following day Denzer called Horne into his office.
Following are excerpts from her testimony:
So I went back to the office. Mr. Miller was at the office, and Mr. Denzer.
And Mr. Denzer asked me to come in. When I went in, he said to me, he said,
"Lois, where was you yesterday?"
I said, "It was on personal business. I notified you that I would not be here."
And he says, "What kind of business?"
I said, "That don't concern you."
And he said, "If you went to the Relations Board, that does concern me."
He said, "If you are lying, I can fire you for lying."
And I looked at him and I said, "Would you fire me if I did go to the Relations
Board?"
And he said, "No, I wouldn't."
He asked me why I went to the Board and I said that I wasn't satisfied with
the way things had gone, and that seniority didn't seem to count with him.
It appears that Denzer had information of the excursion to the Board office, in view
of Bailey's uncontradicted testimony of a conversation she had with Denzer on
February 10, 1962, in the course of which he stated that he had heard Secrist had
filed charges and that "he wondered how Pearl [Mills] was felling after her little trip
to the Labor Board."
It does not appear that Denzer had any reason which would justify his interroga-
tion of Horne as to whether she had visited the Board office and as to her purpose in
going there. I am of the opinion that the action of these employees, in consulting the
Board, was a protected activity and that his interrogation of Horne with respect
thereto constituted interference, restraint, and coercion within the meaning of
Section 8 (a) (1) of the Act.
On February 16, 1962, Norris filed a charge with the Board against Maxam. The
"basis" of the charge was as follows:
I have seen discrimination shown by the above employer in regards to seniority
and capability of work through the Union Local 802 of the Amalgamated Cloth-
ing Workers of America, AFL-CIO, and the Agent, Agnes Smith.
Her testimony as to Denzer's interrogation of her on February 20, 1962, is as
follows:
He said, "What are you filing charges on? Are you filing them in sympathy
with Lois Horne, or for yourself?"
And I said, "I am not filing in sympathy with Lois Horne," but I said, "There
is a lot of things I don't think goes on right."
Q. Do you recall anything further of that conversation, Mrs. Norris?
A. I told him about being in the men's all that time and being transferred.
I said , "I never was late, and I always worked steady."
Q. Was that all?
A. That is all I can recall.
Denzer's testimony regarding the incident is not inconsistent with that of Norris
except for a minor variation 35 He testified credibly that he had no knowledge of any
complaint by Norris with respect to management's actions regarding her and, con-
sidering the ambiguity of the "basis" of her charge, it is reasonable to infer that he was
in considerable doubt as to its meaning. Here (as in the questioning of Bailey with
regard to the charge she filed) Denzer had good reason for seeking an explanation
of what was meant by the charge. He made no coercive statement in his questioning
of Norris, and, therefore, I do not find that his interrogation of her, under the cir-
cumstances, was violative of Section 8(a) (1).
35 He denied that he made the reference to Horne
712-548-64-v of 142--28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, which I have found
to be violative of the Act, occurring in connection with the operations described
in section I, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act, it will be
recommended that the Respondents cease and desist therefrom and take certain
action to effectuate the policies of the Act.
Having found that Maxam violated Section 8(a)(1) and (4) of the Act by
demoting Winifred Ann Bailey from the position of "head cashier" to that of "sales
clerk," I shall recommend that she be restored to her former, or a substantially
equivalent, position without prejudice to her seniority or other rights and privileges.
Since she did not suffer any financial loss by reason of the discrimination against
her, it does not appear that any further remedy is required to redress the discrimina-
tion against her.
Among the remedies requested by General Counsel is that Maxam "be required
to cease recognizing Respondent Joint Board [Central States] and Respondent Local
[802] until they or either of them are certified by the Board as the exclusive repre-
sentative of its employees." Although I have found that said Respondents have
violated Section 8 (b) (1) (A) of the Act, I do not believe that the remedy requested
is necessary to effectuate the policies of the Act. I do not consider that the conduct
of said Respondents during the background period and which I have found to be
violative of the Act was of such a nature that it might be inferred that either said
Respondents should not have been, or should not continue to be, recognized as the
bargaining representative of Maxam's employees. The argument which General
Counsel offered in support of his request assumes certain findings which I have not
determined to be appropriate.36
Since it has not been found that Maxam engaged in conduct violative of Section
8(a) (3) with respect to any of the Charging Parties, I shall recommend that the
-complaint be dismissed with respect to all allegations therein of a violation of said
section of the Act 37
Since I have found that Respondent Central States, Respondent Local 802, and
Respondent Agnes Smith have not violated Section 8(b)(2) of the Act, I shall
recommend that the complaint be dismissed with respect to all allegations therein
of a violation of said section of the Act.
Since I find that General Counsel has not sustained the burden of proof as to all
allegations of a violation of Section 8(a)(1) of the Act and as to all allegations of
a violation of Section 8(b) (1) (A) of the Act except those which were hereinabove
found to have been sustained, I shall recommend that the complaint be dismissed
as to all of said allegations other than said exceptions.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By demoting Bailey from the position of "head cashier" to that of "sales
.clerk," because she filed a charge with the Board against it, Maxam violated Section
8(a)(1) and (4) of the Act.
2. By Denzer's statement to Freeman that she would be discharged it caught talk-
ing to a Retail Clerks' representative without any indication that the warning was
limited to any place or time, and by Denzer's interrogation of Horne with respect
to her visit to the Board's Regional Office in Cincinnati, Maxam engaged in conduct
3' Although the record does indicate the existence among the employees of dissatisfaction
with the representation afforded by said Respondents, the remedy for such dissatisfaction
is available to them by the process of seeking decertification of the Clothing Workers
through a petition to the Board which would test the sentiment of the majority of the unit.
The dissatisfaction cannot be considered in this proceeding except as a circumstance in
determining the issues with respect to the alleged discriminations.
87 As above indicated, I did not consider it necessary to pass upon this issue with respect
to Bailey. Therefore, I will make no recommendation with respect to the allegation of a
-violation of Section 8(a) (3) by the demotion of Bailey.
DOW JONES & COMPANY, INC. 421
constituting interference, restraint, and coercion within the meaning of Section
8 (a) ( 1) of the Act.
3. Respondents Central States, Local 802, and Agnes Smith violated Section
8 (b) (1) (A) of the Act by the following conduct which constitutes restraint and
coercion within the meaning of said section:
(a) By Smith's statements to Mills and Bailey predicting the discharge of Secrist,
Horne, and Ballman, it was threatened that said Respondents would cause the dis-
charge of employees who engaged in any protected activity which might be considered
by said Respondents to be contrary to the interests of the Clothing Workers.
(b) By Smith's statements to Mills and Bailey that if the employees did not
"quiet down" they would be paying dues without getting union protection, it was
threatened that said Respondents would withhold fair representation from any
employees in the bargaining unit who engaged in an activity which said Respondents
might consider contrary to the interests of the Clothing Workers.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section,2(6) and (7) of the Act.
5. Maxam did not commit any violation of Section 8(a) (3) of the Act as alleged in
the complaint38
6. There was no violation of Section 8(b) (2) of the Act, as alleged in the com-
plaint, by Central States, Local 802, or Agnes Smith.
7. None of the Respondents committed any of the violations of Section 8 (a)( 1 )
or Section 8 (b) (1) (A) of the Act alleged in the complaint other than those found
hereinabove in paragraphs 1, 2, and 3 of these conclusions of law.
[Recommended Order omitted from publication.]
"This does not include a finding with respect to its conduct in demoting Bailey. As
indicated above, I found it unnecessary to pass upon this allegation of a violation of said
section as to Bailey.
Dow Jones & Company, Inc. and American Newspaper Guild,
Local 3, AFL-CIO and The Independent Association of Pub-
lishers Employees , Inc., Petitioners. Cases Nos. 1-RC-6855 and
1-RC-692. April 30, 1963
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon petitions l duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Thomas M. Harvey, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.2
Upon the entire record in these cases the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
i The Petitioner in Case No. 1-RC-6855, American Newspaper Guild, Local 3, AFL-CIO,
herein referred to as the NY Guild, and the Petitioner in Case No. 1-RC-6922, The
Independent Association of Publishers Employees, Inc., herein referred to as IAPE, inter-
vened with respect to each other's petitions on the basis of a contract or a card showing;
in addition, 'Springfield Typographical Union Local No. 2116, International Typographical
Union, AFL-CIO, herein referred to as the Springfield ITU, and the Chicago Newspaper
Guild, herein referred to as the Chicago Guild, intervened on the basis of a contract
interest, but neither of these latter unions seeks to participate in an election. The petition
in Case No. 1-RC-6922 was filed after the hearing began, but the cases were consolidated
without objection by any of the parties.
2 The requests of the Employer and IAPE for oral argument are hereby denied as the
record, including the exceptions and briefs, adequately sets forth the issues and the posi-
tions of the parties.
142 NLRB No. 44.