M.E. Blatt Co.

National Labor Relations Board - Board Decisions

Feb 14, 1942

38 N.L.R.B. 1210 (N.L.R.B. 1942)

In the Matter of M. E. 'BLATT COMPANY and RETAIL CLERK INTER-
NATIONAL PROTECTIVE ASSOCIATION, LOCAL No.^1358, AFFILIATED WITH
THE A. F. OF L:
Case No. C-1995.-Decided February 14, 1942
Jurisdiction : department store retailing industry. .
Unfair Labor Practices
Interference, Restraint, and Coercion: questioning employees concerning their
membership and activities in the union; urging and Waring employees to
relinquish their membership and activities in behalf of the union.
Discrimination.- discharges for union membership and activities sustained
as to four employees in view of employer's open opposition to union and
inconsistent reasons advanced in justification of discharges; charges of dis-
missed as to one person who failed to testify:'
Remedial Orders : reinstatement and back pay awarded employees discrimina-
torily discharged. ,
Mr.-Jerome I. Mach,t, for the Board.
Cassman ci Gottlieb, by Mr. Harry Cassman and Mr. Ellis L.
Gottlieb, of Atlantic City, N. J., for the respondent.
Mr. Albert-K. Plone, of Camden, N. J., for the Union.
"Mr. Syd'iiey S. Asher, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on July 30, 1941,1 by
Retail Clerks International Protective Association, Local No. 1358,
affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Fourth Region (Philadelphia,
Pennsylvania), issued its complaint dated July 31, 1941, against
M. E. Blatt Company, Atlantic City, New Jersey, herein called the
respondent, alleging that the respondent had engaged in and was
'The original charge was filed on December 28, 1940 , and the fit st amended charge on
May 27, 1941.
38 N. L. R. B., No. 217.
1210
M. E. BLATT iCOMPANT 1211
engaging in unfair, labor practices affecting "commerce,-"within the
meaning of Section 8, (1) :and, (3) and,Section 2 (6). and - (7) of the
National Labor Relations. Act, 49 Stat. 449, herein called` the Act.
Copies of the complaint, accompanied by notice , of , hearing, were
duly served upon,the respondent and the Union. '
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (1) terminated the'employment of
Michael Flanagan,:William Young, Marion Hempel, Anna Eckman,
and Charles Mooney on or' about December 24,.1940, and terminated
the employment of -Dorothy Adams Reitzler on or about Janaury1 2,
1941, and thereafter refused to reinstate them because they had joined
and,assisted the Union; (2) in December 1940, and at various times
thereafter, interfered with the rights of, its employees to J oin labor
organizations and engage in concerted : activities for' the purposes of
collective bargaining by (a) urging various of its 'employees to
relinquish membership in' the Union and to refrain from engaging
in union, activities; (b) permitting certain of its employees' to en-
gage in surveillance of union meetings and to report back the names
of employees who attended said meetings; (c) questioning certain
employees about union meetings, activitiy, and membership," in order
to, discourage membership in and activity on behalf of the Union;
and (d) disparaging and ridiculing the Union; and (3) by the, afore-
said acts interfered with, restrained, and coerced-its employees-in
the exercise of the rights guaranteed in Section 7 ,of the Act. On
August 11, 1941, the respondent filed its answer in which it admitted
the allegations of the complaint concerning the nature of its busi-
ness, but denied that it was engaged in commerce within the mean-
ing of the Act, or that it had engaged in or was engaging in the
alleged unfair labor practices.
Pursuant to notice, a hearing was held on August 14 and 1'5, 1941,
at Atlantic , City, New Jersey, before -Mortimer ^ Riemer, the, Trial
Examiner duly designated by the Chief Trial Examiner.' The
Board, the respondent, and the Union were represented by counsel
and participated in the hearing., Full -opportunity to be heard, to
examine, and cross-examine witnesses,, and to introduce evidence bear-
ing on the issues was afforded all parties. During the course of the
hearing, the respondent moved to dismiss;,the" allegations of 'the
complaint with respect to the alleged discriminatory 'discharge of
Marion Hempel, on the ground that she did not appear to 'testify:
The Trial Examiner reserved ruling on the motion. At the 'con=
elusion of the Board's case, the respondent, moved to dismiss - the
complaint for lack of jurisdiction and do the further ground that
there had been a failure of proof. The Trial Examiner denied the
motion on the, former- ground -and reserved 'ruling' on the latter
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground. The Trial Examiner granted a motion by counsel for the
Board, to which the respondent did not object, to conform the plead-
ings to the proof. At the close of the hearing'the respondent re-
newed its motion 'to dismiss the complaint. The Trial Examiner
reserved ruling on the motion. The Trial Examiner denied all pend-
ing motions in his Intermediate Report. During the course of the
hearing the Trial Examiner made rulings on other motions and on
objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
The Trial Examiner, thereafter fled his Intermediate Report,
dated October 22, 1941, copies of which were duly served upon the
parties. He found',that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist from 'its un-
fair labor practices and take appropriate affirmative action. There-
after the respondent filed exceptions to the Intermediate Report and
a brief in support of its exceptions.' No oral argument was
requested.
The - Board has considered the exceptions to the Intermediate
Report and the brief in support thereof ,2 and save as the exceptions
are consistent with the findings of fact, conclusions of law, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
M. E. Blatt Company is a New Jersey corporation with its prin-
cipal office and place of business in Atlantic City, New Jersey, where
it conducts a retail department store business for the purchase, sale,
and distribution of a general line of merchandise , including house-
hold furnishings and equipment , wearing apparel , notions, cosmetics,
and other commodities . During the year 1940, the respondent ex-
pended approximately $1,162,000 on merchandise for the operation
of its business . Of these purchases , approximately 95 percent came
from without the State of New Jersey. During the same period,
the respondent 's gross sales amounted to'$2,263,846 . Of this amount,
$15,910 were received from the sale of merchandise shipped by the
respondent to points outside the State of New Jersey. There was no
substantial change in the ' respondent 's volume of purchases and
2 The Board has also considered a brief filed with the Trial Examiner.
M. E. BIAATT L COMPANY ' ' ( 1213
sales during 1941. -The respondent' employs approximately 300
employees.
II. THE ORGANIZATION INVOLVED
Retail Clerks International Protective Association, Local No. 1358,
affiliated with the American Federation of Labor, is a labor organ,
zation'which admits to membership employees at the, respondent's
store.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
William Abramoff, president and • business agent of the, Union,
,began to organize the respondent's employees early in December
1940. The first union meeting, advertised by • circulars distributed
among,the employees, was held on December 5, 1940. It was at-
tended by,2 employees, including Michael Flanagan, a receiving de-
partment worker. The next meeting, held, on December 7, 1940, was
attended by 8 or 10 employees including 'Flanagan, Dorothy Adams
Reitzler, Marion Hempel, Charles J. Mooney, and Anna Eckman.
At : this meeting Flanagan was appointed chairman of the union
organizing committee. •
On or about December 10, 1940, according to Flanagan, Aaron
Rosenberg,,, the respondent's superintendent, questioned Flanagan
regarding his membership, in the Union _ and attendance at union
meetings. Flanagan admitted that. he belonged to the Union, and
Rosenberg .then asked "what it was going to get" him. When Flan-
agan replied that "it would get me more money," Rosenberg said
that Flanagan "could get more money" without joining the Union.
About a week later, according to Flanagan, Mrs. Byers, the re-
spondent's director of personnel, observed Flanagan talking to Ralph
Girard,, an employee of the Atlantic City Press-Union, in which
paper ,the respondent advertised. Thereafter Rosenberg "came right
upstairs" and asked Flanagan to tell him to whom he had been
talking and whether that person was a "union man." After Flan-
agan had identified Girard, Rosenberg asked whether Flanagan had
given any thought to their previous conversation. Flanagan re-
plied in the affirmative, and the conversation then ended. Flana-
gan's testimony with respect to these two 'conversations was. not
denied or otherwise 'contradicted by Rosenberg. We credit Flana-
gan's testimony, as did the Trial Examiner.
Charles Mooney, a freight-elevator operator, testified that shortly
after the second union'- meeting, held about December 7, 1940, Joseph
Alkazin, the respondent's traffic manager, asked him, in' the presence
of a group of receiving-department employees, if he had attended
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "Ku Klux Klan meeting.", Mooney replied, "Yes, I did:, What
about it?" Mooney also testified that Alkazin asked Flanagan if he
was president of the /Union: Alkazin•^ admitted that he had ques-
tioned Mooney about attending a "Ku Klux Klan meeting," but'
denied `that fie knew,'at'•that tii'ne,'that it was a union meeting. 'Alka-
zin_ `did riot deny that he had asked Flanagan if he was president
of the Union.' He - testified, however, `that cc,-, day or so" after the
first meeting of the Union on December 5, 1940, he learned `from
Rosenberg or Barney' Silbei` 'ian, the respondent's secretary-comp-
troller, or "somebody, in authority" that the employees had held a
union meeting.3 His conversation with Mooney, it should be noted,
took, place sometime after' December • 7; 1940. -'We find, as 2did the
Trial Examiner, that Alkazzin questioned'Mooney and-Flanagan about
their membership 'and activities in the Union, •
',On or about -December 18,' 1940, Abramoff met with Rosenbergland
Silberman for the purpose of opening collective bargaining: negotia'
tions. Silberman' stated • that ^ the respondent was not 'subject to"the
Act, demanded to know by-what right the Union claimed to represent
employees of the respondent, and asked' to see the Union's application
cards. ,Abramoff refused to show the cards to Rosenberg or Silber-
man, but offered to submit them to the Board. ' He was told' that
the respondent would consult with'its attorney and communicate with
the Union.', Nothing further was heard from the respondent.
The next meeting of the Union- was held on ' December 20, 1940.
It was announced by circulars, distributed "-among -the employees.
Flanagan, Young, Hempel, and Mooney were' among those present
at'this meeting. ' ' • ' '
We find that the respondent has, by questioning employees concern=
ing their- membership and activities in the Union and by urging' and
warning employees to relinquish their membership and activities in
behalf of the Union, interfered with, restrained, I and coerced its
employees in the exercise of the rights •guaranteed''in Section' 7i of
the, Act. r ; r
B.' Tke' discharges '
-, •On , December .'24, 1940, the respondent discharged Flanagan,
Young, Eckman, Mooney; and, Hempel,, all of whom were: active
members of, the Union.4 They were the, only, regular,.employees,5
so•far as the record reveals, who were discharged at`this time. More-
over, these five employees ;together with Reitzler and, two other'em-
Alkazin . first testified that he learned of the, union meeting from "nobody in particular,
just picked it, up,", and then, subsequently , that he had , obtained his information' from
Rosenberg or Silberman, or "somebody in authority
l
*;M
Reitzler, another active union member , was discharged on January t2, 1941 ,
ooney had only 6 months of continuous service.' -
M. E. BLATT COMPANY 1215
ployees, constituted the entire membership of the Union. Later in
the day on December 24, 1940, Flanagan advised Abramoff of the
discharges. On December 26, 1940, Abramoff telephoned Rosenberg
and asked to discuss the discharges. Rosenberg replied that he would
consult his attorney and then call Abramoff. Abramoff also at-
tempted, without avail, to reach Max E. Blatt, the respondent's presi-
dent. Subsequently, he again called Rosenberg and requested a
meeting. Rosenberg refused to meet with the Union or to discuss
the dismissals. The Union then established a picket line around the
respondent's store, which it maintained for approximately 2 weeks.
1. Michael Flanagan and William Young
Flanagan and Young worked together in the receiving department
under Alkazin, the traffic manager . Flanagan was first employed by
the respondent in May 1937 and worked continuously until he was
discharged on December 24, 1940. At first he handled incoming
freight, and was then made the supply distributor. Flanagan was
the first of the respondent's employees to join the Union. On Decem-
ber 7, 1940, at the second meeting of the Union, Flanagan was ap-
pointed chairman of the organizing committee. In the course of his
activities on behalf of the Union, he distributed application cards
and solicited members on company time and property. As has been
noted, Rosenberg questioned him about his membership in the Union
and remarked that it was unnecessary for him to join the Union.
Young was first employed as an "extra" in April 1939 and worked
for a short period of time. He was reemployed in October 1939 as
a receiving clerk in the receiving department and continued at this
job until he was discharged on December 24, 1940. Young was a
member of the organizing committee of the Union and distributed
application cards and solicited members.
Alkazin admitted that Rosenberg and Silberman had both remarked
to him after the union meeting on December 20, 1940, that "they
understood that members present were from my department, not
mentioning any names in particular." Both Flanagan and Young
had attended the meeting on December 20, 1940. They were the only
persons in Alkazin's department who were discharged on December
24, 1940.6
Both Flanagan and Young were discharged by Mrs. Byers. Al-
though each requested an explanation for his discharge, he received
no answer . On the employment records of Flanagan and Young the
respondent attributed their discharge to a reduction in personnel.
Reitzler , an active union member who also worked for Alkazin but who dial not attend
the meeting on December 20, 1940, was discharged on January 2, 1941.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing Rosenberg offered another explanation for their dis-
charge. He contended that prior to November 11, 1940, the respond-
ent had "several complaints" about Flanagan and Young "insofar
as staying away from their department." He maintained that on
two occasions he found them smoking, away from their work. He
also explained that on November 11, 1940, Flanagan and Young
were granted wage increases of $1 and $2, respectively.? Rosenberg
contended that these increases were granted in order to induce these
employees to "alter 'their methods of operation." Rosenberg ad-
mitted, however, that neither he nor anyone in the "office" had ad-
vised Flanagan or Young that the wage increases were granted
because the respondent desired thereby 'to "alter their methods of
operation." On the other hand. , Alkazin testified that he had rec-
ommended Flanagan and ' Young for the wage increases and alleged,
not that Flanagan and Young were raised in. order to discourage
them from leaving their places of «ork, but because Flanagan "was
due for a raise," and "in Youngs case I figured maybe we would
get more .out of him." He also testified that he ' told Rosenberg that
"I felt, he [Flanagan] was entitled to an increase in salary".and that
Rosenberg said "he would see what he` could do."
Rosenberg also testified that Alkazin came to him about a . week
after the increases were granted and remarked that Flanagan and
Young were. "getting worse instead of better" and that he thought
"we ought to make a change." Rosenberg alleged that he told
Alkazin to "let it go until after Christmas and we will do something
about it."" Alkazin did not corroborate Rosenberg in this respect.
Alkazin testified that Flanagan was "mad" because he had not re-
ceived as much of an' increase as Young' and that he had'in mind,
in view of the fact that Flanagan was disturbed, that "I would have
_to make changes sooner or later." He testified, however, that he did
not -speak to Rosenberg about this matter for 2 weeks after the
increases were granted.' He did not state at the `hearing what he
said to Rosenberg at the time.
About January 5 or 6, 1941, Flanagan telephoned Mrs. Byers and
asked her "if anything was,doing." She replied that there was' not,
but that "she would ,let m'e'know if there was." Young ,also applied
for reinstatement in January 1941 and was told that he 'would be
notified when an opening occurred. Neither Flanagan nor Young
was subsequently, ,recalled. Silberman admitted at the' hearing that
Flanagan's job had been filled, and tliat`Ray'^Stout, acontingent em-
ployee with less than 6 months' service was given Young's job.
,
° Flanagan was then earning $ 13 and Young $14. `-'- - -
8 As noted previously , Flanagan and Young 'were discharged on December 24, 1940.
As noted previously, Young received a $2 increase , while Flanagan was granted only $1-.
M. E. BLATT COMPANY 1217
We. are convinced and find, as did the Trial Examiner, that Flana-
gan 'and Young were discharged because of their membership and
activity in the'Union. The respondent, it is clear, was openly opposed
to the Union. Rosenberg, in fact, advised Flanagan• that it was
unnecessary for him to join the Union. Nevertheless, Flanagan'and
Young continued as active members of the Union. The reasons
which the respondent assigned at the hearing for discharging Flana-
gan and Young were not the reasons inscribed on their personnel
records 10 or do we believe that Flanagan and Young did not do
their work properly, as Rosenberg and Alkazin contended, for both
Flanagan and Young received wage increases shortly before their dis-
charge. We consider it improbable that the respondent would have
granted these increases in order, as Rosenberg contended, to "alter
their methods 'of operation" without advising them that raises were
riot a' reward for good work but an,inducement to correct bad behavior.
Moreover, Alkazin, who recommended 'the increases, contradicted
Rosenberg's testimony in this respect.'
2. Dorothy Adams Reitzler
Reitzler was first employed by the respondent as a cashier in May
1937. She was last continuously employed from April 1939 to Decem-
ber'30, 1940, in the receiving department as a marker of merchandise.
She was paid $12 a week. Alkazin admitted that Reitzler was "an old
and trusted employee." Reitzler joined the Union on December 7,
1940, and attended one of its meetings. ' In addition, she sought
"to sign other ones up in the store, talking to them" about the Union.
Reitzler apparently enjoyed Alkazin's favor. After she joined'the
Union, however, ' according to her 'undenied testimony; ' which we
credit, as did the Trial Examiner, Alkazin no longer spoke to her and
ignored her as well as those who had attended the union meeting on
December, 7, 1940.-- • -'
On December 10, 1940, Reitzler became ill while at work and was
sent home. She returned to work on January- 2, 1941, and reported to
Byers, who gave her a time card 11 She then reported to Alkazin
who said that his department was busy and that he was glad to have
her back at work. A few minutes later Byers telephoned and ordered
Reitzler to',report to Rosenberg's office.' In'Rosenberg's office,', Byers
10 As noted ' previously , their discharge was attributed , on the personnel records, to a
reduction of force However , although the respondent 's business normally declines after
the Christmas holidays, there had been no occasion in the past on that account to let oft
regular receiving-department employees as ' distinguished from 'extra' help hired ' for the
holidays . Flanagan had been retained 'in the 4 other years of his employment with the
respondent and Young'was kept on during the post-Christmas slack in business in 1939.
Our findings as to the occurrences on this day are based , as were the Trial Examiner's;
on Reltzler ' s uncontradicted testimony. ' '
438861-42-vol. 38-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told Reitzler that work was slack and that she was being laid off.
When Reitzler inquired why Adele Clark, who had only 5 months'
service, was not selected, Byers made no reply 12 Reitzler then re-
turned to her department and told Alkazin of her lay-off. Alkazin
then stated that business was slow and the following conversation
ensued :
And I said : "Well, Joe, you know I didn't get laid off because
of things being slow. I got laid off on account of the union. I
know it and so do you," and he said : "Well, why didn't you come
to me before you got into all of this business?" And he said: "I
would have tried to gotten you a raise," and he said, "before I
let you kids gotten into all this."
In its answer, the respondent averred that subsequent to December
30, 1940, Reitzler had been offered employment but that on April 17,
1941, Reitzler advised the respondent that she would inform it when
she was available for work. Reitzler testified that sometime prior to
Easter 1941, Byers called her and offered her extra work for a "couple"
of days a week, including Saturday. Reitzler had part-time employ-
ment, including Saturdays, at that time and did not accept Byers'
offer. Byers also offered to help her get a job as an extra, 1 day a
week, but did not offer her full-time reemployment on her previous
job. Reitzler told Byers that she could not afford to accept employ-
ment for 1 day a week at $2. According to her uncontradicted
testimony, which we credit, as did the Trial Examiner'13 when she
again on this occasion told Byers that she could not understand why
she, and not Adele Clark, had been selected for lay-off, Byers then
replied that it was "a mixed up affair."
We are of the opinion and find, as did the Trial Examiner, that the
respondent discharged Reitzler because of her membership and activ-
ity in the Union. We find, in addition, that the respondent has not
offered to reinstate Reitzler to her same or substantially equivalent
position.
3. Charles J. Mooney
Mooney was first employed by the respondent as an extra in June
1940 and was last continuously employed from July 15 to December
24, 1940, as the freight elevator operator. He received $14 a week.
Mooney joined the Union the first time he attended one of its meetings,
on about December 7, 1940. It was shortly thereafter that Alkazin
22 Rosenberg testified that it was the respondent's policy to restore employees who had
been ill "a week or so" to their former positions upon return after recovery. Reltzler had
survived the personnel reduction due to business reasons following the Christmas season
of 1939.
13 Byers did not testify.
M. E. BILATT COMPANY 1219
asked him, in the presence of 'others, whether he had attended the
"Ku Klux Klan" _ meeting. Mooney was a member of the Union's
organizing committee, solicited members for the Union, and attended
the meeting of December 20, 1940.
Rosenberg testified, in explanation of Mooney's discharge, that;
contrary to instructions; Mooney violated rules governing tlie' opera-
tion' of'the `elevator ; that' in November two passengers were permitted
to use`the` elevator in Mooney's absence ; and that early in December`
19'40, 'Rosenberg observed two men,' not identified as employees or as
store patrons, emerge from the elevator: 'Rosenberg contended' that
these'men told him that they had- used the' elevator with Mooney's
permission"while he had gone to "the cigar store or toilet"or some
-other place." Rosenberg testified that he cautioned Mooney 'about
both of these'incidents, mentioning the fact that they involved infrac-
tion of rules adopted in connection with the accident insurance policy
covering the operation and use of the freight elevator. Mooney ad-
mitted that on one occasion, during the Christmas holiday's, he had
left his elevator unattended, that someone had used the elevator in
his absence, and that Rosenberg had reprimanded him. He denied
any other occasion on which he left the elevator unattended: '
On December 21, 1940, Mooney tried to obtain a charge for goods
he wished to purchase, a courtesy extended to employees. ' Mooney
was informed by the credit department, however, that he was no longer
on the "O.K. list." Previously, Mooney's'credit had been approved
without delay. About 5: 30 on the afternoon of December 24, 1940,
Byers called Mooney to the office and handed him a cheek 'saying that
"They are going to close the elevator up in January and put you to
work about February," and that she would notify Mooney when to.
report for work.14 Mooney's employment record indicates that his
discharge was due to a reduction of force. _
In fact, the elevator was not, shut, down, and for 2 or 3 weeks fol-
lowing Mooney's discharge it was operated,by Nat Perry, a store
porter. Thereafter, someone else was hired to operate the elevator.
In May 1941, Mooney sought reemployment. He talked to Byers, and
she promised to help him. However, nothing' further developed.
'Iii view' of Mooney's' activity in the Union and the inconsistency
between the reason given him'for the termination of his employment
and the reason appearing on his employment record as compared with
the respondent's contentions at the hearing, we are convinced and
find that the respondent discharged Mooney because of his membership
and activity in the Union. "
"This finding is-based - on Mooney 's uncontradicted testimony % Byers did not testify
1220 ' DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
4. Anna D: Eckman -
Eckman was,first employed by the respondent in June 1938 as -a
clerk at $12 a week, and worked continuously thereafter 'until. her
discharge on December 24, 1940. In March 1939, she became secretary
to Charles L. Austin, the respondent's credit manager, and in February
1940, she received, ,a $1 raise., Eckman joined the Union on or. about
December 7,1940, and was a .member of its organizing committee. She
sought- to interest Josephine Bruno and Harriet, Clark, coworkers
in Austin's office, in the Union.
In.the early part of November, 1940, Austin discussed with each of
the employees in his department-a proposed plan or schedule of hours
to be observed during the Christmas season. Eckman was not satist
fled, and protested the length of the working day, in return for which
Austin promised her time off or additional compensation at a later
date. Eckman was still not satisfied and ^ she discussed the problem
with Bruno and Clark who,)according to her undenied testimony, were
likewise dissatisfied with the hourly schedule of work. Accordingly,
about a week later, the three girls, with Clark as spokesman, protested
to Austin. Clark. and Austin,had a heated argument, and as,a result
Austin went to 'Silberman and said that he would have, to discharge
Clark for upsetting his plans,for the Christmas rush hours. Silberman
approved, whereupon Austin, according. to, his testimony, went to
Byers and arrangements were made- to,discharge Clark on December
24; 1940. Clark was not informed of this decision. 1' r
,Austin testified that about a week after he had made- this decision
he was told by his assistant, Ann Spitz, and one Collamer, who'
was in charge -of the installment credit buying, that Eckman had
been the ringleader of the. protest against his plan of Christmas
hours and that Eckman had inspired Clark, to act as_spokesman is
According to his testimony, Austin, accepted this story, and.without
making any inquiry to ascertain its accuracy by speaking, to Clark. or
Eckman, consulted Silberman and then went to Byers,_ told her ,a
mistake had been made, and recommended that Eckman be" dis-
charged instead • of Clark. ' Austin testified that he decided to, dhS-,
charge Eckman "because of her, inciting-the other girls, to upset. the
,proposed plan of operation." Eckman was not, notified, of,•,this
decision; at the hearing she denied that. she had instigated any pro-
test against the Christmas schedule. -
About 5:45 on the afternoon of December,24; 1940, Byers called
Eckman to her office and discharged her. When, Eckman demanded
to know the reason for this action, Byers gave no explanation. Eck-
man was the only one in her office who was discharged. Bruno -and
15 Neither Spitz, Collamer , Clark, nor Bruno testified at the hearing.
M. E. BILATT COMPANY ' 1221
Clark, non-union' employees,' were not discharged. Eckman's place
was thereafter filled by Ann Spitz's' niece, a, young lady hired as an
extra for the Christmas holidays. Eckman's employment record
shows that she was discharged because of a reduction of force.
We are of the opinion and find that Eckman was discharged
because of her membership and activity in the Union. We do, not
believe that Austin would have decided to discharge Eckman
-instead of Clark, with whom he had had the dispute, upon the
unconfirmed assertions, of Spitz and Collamer that she was the ring-
leader. Nor was Eckman advised as to the reason for her dis-
charge. Her employment record indicates that it was because of a
reduction in force. On the other hand, Eckman was an active
member of the Union.
We find that by discharging Flanagan, Young, Reitzler, Mooney,
and Eckman because of their membership ,and activity in the Union,
the respondent has discouraged membership in the Union and inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
5. Marion Hempel
Hempel was employed as a clerk in the receiving department in
December 1939, and worked continuously thereafter until her dis-
charge on December 24, 1940. Hempel joined the Union, attended
one of its early meetings, and was also present at the Union's last
meeting on December 20.
The respondent asserts that Hempel was discharged on December
24 because she was inefficient and failed to keep up with her work,
thereby handicapping the work of the accounts payable departmert.
Alkazin testified that lie was "always-telling" Hempel to speed up
her work; that she was so slow that it was necessary for him to
help her. Silberman testified that his attention was first called
to her inefficiency in June 1940; that he took it up with Alkazin;
that a week later there was no improvement in her work and "a
change was in order" but, because the department was then busy,
it was left to Alkazin to decide when the "change" would be made.
Hempel's employment record indicates that her discharge was due
to a reduction of personnel. Hempel did not testify and the testi-
mony offered by the respondent with respect to her inefficiency was
not contradicted.
Although the similarity existing between Hempel's discharge and
the discharges discussed above, taken together with the inconsistent
reasons advanced by the respondent in justification of her discharge,
create more than a suspicion that Hempel was discharged for union
membership and activity, we are not satisfied, in view of her failure
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to testify, that she was discharged for reasons; other than ineffic,ency,.
We find, accordingly, that the respondent did not discharge Hempel
because of her membership and activity in the Union.
- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-'
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom. We shall
also order the respondent to take certain affirmative action which
we find necessary to effectuate the policies of the Act.
We have found that the respondent discriminated in regard to
the hire and tenure of employment, of Michael Flanagan, William
Young, Charles J. Mooney, and Anna D. Eckman, on December 24,
1940, and Dorothy Adams Reitzler on or about, January 2, 1941.
We shall order the respondent to offer to each of the above-named
employees immediate and full reinstatement to his or her former
or substantially equivalent positions, without prejudice to his 'or her
seniority or other rights and privileges. We shall also order the
respondent to make whole each . of the above-named employees for
any loss of pay he or she may have suffered by reason of the discrim-
ination, by payment to him or her of a sum equal to the amount
which he or she would normally have earned as wages from the date
of the discharge to the date of the offer of reinstatement, less his
or her net earnings 16 during that period.
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Retail Clerks International Protective Association, Local No.
1358, affiliated with the American Federation of Labor, is a labor
organization, within the meaning of Section 2 (5) of the Act.
- "By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See utter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union,-Local- 2590, 8 N. L R B. 440. Monies received for
work performed upon Federal, State, county, municipal; or other work-relief projects shall
be considered as earnings. See Republic Steel Corporation V. N. L. R. B., 311 U. S. 7.
M. E. BLATT COMPANY 1223
2. By discriminating in regard to the hire and tenure of employ-
ment of Michael Flanagan, William Young, Charles J. Mooney,
Anna D. Eckman, and Dorothy Adams Reitzler, and thereby dis-
couraging membership in Retail Clerks International Protective
Association, Local No. 1358, affiliated with the American Federation
of Labor, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act. .
3. By interfering with, restraining, and coercing its employees in
the, exercise of the rights guaranteed in,-Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning 'of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not discriminated in regard to the hire or
tenure of employment of Marion Hempel, within the meaning of
Section 8 (3) of the. Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from : -
(a) Discouraging membership in Retail Clerks International Pro-
tective Association, Local No. 1358, affiliated with the American
Federation of Labor, or any other labor organization of its em-
ployees, by discriminating in regard to the hire and tenure of em-
ployment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in, the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining and
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
•.,ffectuate the policies of the Act :
(a) Offer to Michael Flanagan, William Young, Charles J.
Mooney, Anna D. Eckman, and Dorothy Adams Reitzler immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges ;
(b) Make whole Michael Flanagan, William Young, Charles J.
Mooney, Anna D. Eckman, and Dorothy Adams Reitzler_ for any
1224 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
loss of pay they may 'have suffered by reason of the respondent's dis-
crimination, by payment to each of them of a sum equal to that
which he or she would normally have earned as wages from the date
of the respondent's discrimination to the date of the respondent's
offer of reinstatement, less his or her net earnings during that period;
(c) Post immediately in conspicuous places throughout the re-
spondent's store at Atlantic City, New Jersey, and maintain for a
period of at least sixty (60) consecutive days from the date of post-
ing, notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a) and (b) of this Order; (2) that it will take
the affirmative action set forth in paragraphs 2 (a) and (b) of this
Order ; and (3) that the respondent's employees are free to become
or to remain members of Retail Clerks International Protective
Association, Local No. 1358, affiliated with the American Federation
of Labor, and that the respondent will not discriminate against any
employee because -of his membership in or activity on behalf of
said labor organization;
(d) Notify the Regional Director for the Fourth Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that Marion Hempel was dis-
criminatorily discharged on December 24, 1940.