The Dalton Co., Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1954

109 N.L.R.B. 1228 (N.L.R.B. 1954)

1228 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
to them , to the date when Watson was offered employment on November 6, 1952,
and to the dates when Hodnett and Ayres are offered employment by Respondent,
less their net earnings ' during such period . The back pay shall be computed in the
manner established by the Board and Respondent upon request shall make available
to the Board payroll and other records to facilitate the checking of the amount due.'
The character and scope of the unfair labor practices engaged in indicate an
intent to defeat self-organization of the employees . I shall , therefore, recommend
that Respondent cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of rights guaranteed by the Act.'
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. The activities of Respondent set forth in section III, above , occurring in con-
nection with its operations described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of the em-
ployees listed above in "The Remedy" section, Respondent has engaged and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
4 Crossett Lumber Company, 8 NLRB 440
5 F. TV Woolworth Company, 90 NLRB 289.
6 May Department Stores v. N L. R B., 326 U. S. 376.
THE DALTON COMPANY , INC. and RETAIL CLERKS' UNION , LOCAL No.
1691 OF THE RETAIL CLERKS INTE11NATIONAL ASSOCIATION, AFL.
Case No. 15-CA-611. September 10, 1954
Decision and Order
On March 2, 1954, Trial Examiner Henry S. Sahm issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in other unfair labor practices al-
leged in the complaint and recommended dismissal of those allegations.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at .the hearing and finds that no prejudicial error was committed.
109 NLRB No. 175.
.
THE DALTON COMPANY, INC. 1229
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, to the extent and with
the modifications and additions indicated below.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent engaged in independent violations of Section 8 (a) (1) of the
Act. In doing so, however, we rely only on the following instances :
(a) Jackson's threat to Waggoner that "if the union comes in you will
lose your bonuses and hospitalization, . . . because the store would
cancel it"; (b) Jackson's statement to Waggoner that ". . . when it
came down to a vote, the loyal employees would be taken care of";
(c) Jackson's statement to Blouin that Blouin would not have to join
the Union, because the store "would take care of those who didn't join";
and (d) Hardy's statement to Williams that "if we got the union, .. .
Mr. Boyd would get mad, . . . and lock all the doors and there would
be some 500 employees on the outside without a job."
We also find, as did the Trial Examiner, that Jackson's interroga-
tion of Waggoner and Blouin as to whether they were members of the
Union, and Hardy's interrogation of Williams regarding her opinion
of the Union, violated Section 8 (a) (1) of the Act. We do not, how-
ever, adopt the Trial Examiner's discussion of the interrogation per
se doctrine as applicable to this case. We find instead that these inter-
rogations when viewed in the context in which they occurred, i. e., the
threats and promises of Jackson and Hardy, constituted interference
and coercion, and for that reason violated Section 8 (a) (1) of the Act.'
The Respondent urges, in effect, that there can be no violation of Sec-
tion 8 (a) (1) in this case because the employees in question stated
that they were not intimidated. It is well settled that statements of
an employer need not have successfully intimidated or coerced an em-
ployee in order to constitute a violation of Section 8 (a) (1).2
2. We find, in agreement with the Trial Examiner, that the Re-
spondent discriminatorily discharged Maybelle Jolissaint in viola-
tion of Section 8 (a) (3) and (1) of the Act.
As described more fully in the Intermediate Report, Maybelle Jolis-
saint was employed by Respondent as a saleslady in its women's sports-
wear department, working from 1 p. m. to 5: 30 p. in., 6 days per week,
during the period from October 27, 1952, to April 4, 1953. On April
4, 1953, she was notified by Hardy, the Respondent's personnel man-
ager, that because of a decrease in business, she could no longer be
'Blue Flash Express, Inc., 109 NLRB 591. Under these circumstances , we do not
find merit in Respondent ' s contention that no remedial order directed to these interroga-
tions should issue because of the alleged isolated nature of the instances involved. We
do not, however , adopt the Trial Examiner 's discussion concerning whether the Board
must issue a remedial order in any case in which a violation is found. The Frohman Manu-
facturvng Co., Inc., 107 NLRB 1308.
2 N. L. R. B . v. Illinois Tool Works, 153 F. 2d 811 (C A. 7).
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retained in the sportswear department daily. She was placed instead
in an on-call status as a contingent employee from which she was to
be called to work full days during sales or whenever Respondent
needed her services. On this same occasion Hardy requested her to
work a full day on Monday, April 6, in another department,..which
she did. She was never again called to work.
The Trial Examiner found that in not calling her to work there-
after, the Respondent actually discharged Mrs. Jolissaint on April 6.
The Respondent contends that the decision not to call upon her serv-
ices was not made until approximately 5 or 6 weeks later, after an inci-
dent involving a telephone conversation with Hardy, and that the
reason she was not called to work during the intervening period was
that there was no work available for her. However, as indicated by
the Trial Examiner, Respondent's Exhibit No. 3 demonstrates that
during the intervening period Respondent employed a considerable
number of employees as extra help. Exhibit No. 3 is a chart showing
the work record of all employees on the Respondent's "on-call" or
contingent roster during the period from April 6 to May 31. Thirty-
one employees are listed, 27 of whom are college or high school stu-
dents who are employed as sales personnel at 65 cents per hour s
through an arrangement with their schools. Three, including Mrs.
Jolissaint, are designated as "housewife," and the name of one em-
ployee carries no designation. During the 5-week period succeeding
April 6, 26 of the students worked from 1 to 31 times, and the employee
not designated as either student or housewife worked twice. Viewed
in the light of this information, we find no merit in Respondent's con-
tention that Mrs. Jolissaint, an experienced employee of' conceded
ability, was not called to work during the period in question because
of lack of work 4 Hardy's own testimony with regard to, the practice
of not notifying contingent employees who are dropped from the pay-
roll is consistent with the conclusion that she was discharged as of
April 6. He testified that when it is desired to terminate the services
of a contingent employee, the employee is not so notified but is merely
never called to work again. We therefore agree with the Trial Ex-
aminer that Mrs. Jolissaint was in fact discharged on April 6, 1953.
Mrs. Jolissaint's husband, Murray Jolissaint, was employed by the
Respondent in September 1952, as a full-time salesman in the men's
department, and was so employed through the date of hearing before
3 Respondent contends that one of the jobs at this rate would not have been suitable for
Mrs. Jolissamt. It does not appear, however, that it is the job that determines the rate
of pay For approximately 2 months after she was hired in October, Mrs. Jolissant was
paid 65 cents per hour . According to Hardy, she was then raised to $1 per hour because
her sales record warranted it, not because of any change in the nature of her job.
4 Respondent's Exhibit No. 3 is inconclusive as to whether any of the employees listed'
thereon were actually "hired" after April 6 , since it contains no information antedating
April 6 We therefore do not adopt the Trial Examiner 's statement to the effect that some
persons were hired as extra help after that date.
THE DALTON COMPANY, INC. 1231
the Trial Examiner. It is undisputed that Mr. Jolissaint took the
leading part in a union drive among the retail department store em-
ployees in the Baton Rouge area, including those of the Respondent
sometime during December 1952, and that by February 1, 1953, the
Respondent was well aware of these activities. On February 1, 1953,
Mr. J. J. Boyd, president of the store, called Mr. Jolissaint to a meet-
ing in Boyd's office, attended by all of the department managers of
the store, and stating that he knew Mr. Jolissaint to be the leader of
the union movement, questioned him regarding the Union's purposes.
On this same occasion, Boyd announced a definite antipathy to the
Union. Helen Tyrone,5 manager of women's sportswear department
and Mrs. Jolissaint's supervisor, testified that she "was watching" for
union activity on the part of Mrs. Jolissaint, knowing that there was
union activity around, and "knowing about Mr. Jolissaint." This
testimony of Respondent's witness indicates clearly that upon learn-
ing of Mr. Jolissaint's union activities, Respondent became apprehen-
sive that Mrs. Jolissaint was engaging or would engage in union ac-
tivity herself. The significance of this becomes apparent when it is
considered that it was at this very time that Tyrone suddenly became
inordinately dissatisfied with Mrs. Jolissaint although during Janu-
ary, Mrs. Jolissaint had been complimented very highly on her work,
and urged by both Tyrone and Hardy to take a full-time job in the
sportswear department. Based on her sales record, which was stated
to be comparable to, or in some cases better than, those of the full-time
salesladies, Tyrone urged her to change from a salary to a smaller
salary plus a percentage of her sales as a pay basis because she could
thus earn more. Yet according to Hardy, on about February 1, Ty-
rone complained to him about Mrs. Jolissaint, and "wanted to get rid
of her right then." We deem it significant that this precipitate dis-
satisfaction with Mrs. Jolissaint followed close upon Boyd's expres-
sions of opposition to the Union, Respondent's acquisition of knowl-
edge concerning her husband's union activities, and its obvious
concern-over her connection with them.6
5 The testimony of this witness appears in the record under her married name of Whiting
(see footnote 20, Intermediate Report). She is consistently referred to by her unmarried
name, Tyrone, by other witnesses and by counsel, and will therefore be so referred to
herein.
9 As we recently stated in Marathon Electric Mfg Corp, 106 NLRB 1171, "it is well
settled that discharges of employees for concerted activities by relatives of such employees,
whether or not specifically in reprisal for union membership of such relations, violated
Section 8 (a) (3) and (1) of the Act." N. L R. B v. Myla'n-Sparta Co., Inc., 166 F. 2d
485, 490 (C. A. 6), enfg as modified 70 NLRB 574; N. L. R. B. v. Stowe Spinning Co., 165
F 2d 609, 614-615 (C. A 4), enfg as modified 70 NLRB 614, 336 U S. 226.
With respect to Mrs. Jolissaint's own union activities, we note that the Trial Examiner
incorrectly stated that she began active participation in the union drive in January 1953
The record shows that she began these activities about March 6, 1953. Also, we do not
agree that there is substantial evidence that the Respondent had knowledge of her activities
prior to April 6, 1953. These errors do not, in our opinion, affect the Trial Examiner's
ultimate finding or our concurrence therein, as we find that her discharge was because of
her husband's active union leadership.
11
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARIJ
Accordingly, we find, that the Respondent discriminatorily dis-
charged Maybelle Jolissaint because of the known union activities of
her husband, Murray Jolissaint, in violation of Section 8 (a) (3) and
(1) of the Act.
3. We find, in agreement with the Trial Examiner, and on the basis
of testimony credited by him, that Respondent violated Section 8 (a)
(3) and (1) of the Act by discriminatorily refusing to hire Inez W.
Daigle on August 11, 1953. However, we do not base this finding,
as the Trial Examiner did in part, on a discriminatory hiring policy on
the part of the Respondent as we deem a single instance of discrimina-
tion in hiring insufficient to establish such a policy. 7
In May 1953, at the invitation of Finnegan, buyer and manager of
the Respondent's linen department, Daigle, who was employed at the
time at another store (Rosenfield's), had lunch at Dalton's with Fin-
negan, and Stanfield, drapery department manager. At this luncheon,
Daigle, Finnegan, and Stanfield discussed whether Daigle would ac-
cept a position with the Respondent and what salary she would want.
Stanfield then offered Daigle employment subject to President Boyd's
approval. At this point, Daigle told Stanfield that she had joined the
Union about a month before. When Finnegan heard this, he jumped
up and expostulated, "Well, that stops everything. You know how
Mr. Boyd feels about the Union." Stanfield then thanked Daigle "for
being honest." This ended the luncheon discussion. On August 2,
Daigle terminated her employment at Rosenfield's, and a few days
later she contacted Stanfield in person at Dalton's and asked him if
he would reconsider hiring her as a saleslady in the drapery depart-
ment. Stanfield asked her to communicate with him a few days later.
On August 11, Daigle telephoned Stanfield and inquired if any action
had been taken with respect to her request for employment. , Stan'
field told her he would not be able to hire her. When Daigle asked
him why, Stanfield said, "Well, this Rosenfield thing." Daigle then
asked, "In other words, my union activities?" and Stanfield replied,
"Well, yes, Mrs. Daigle, I would say that."
Although the Respondent's version of what transpired among
Daigle, Finnegan, and Stanfield during the incidents described above
varied from that of Daigle, the Trial Examiner credited Daigle., The
record shows no basis for upsetting the Trial Examiner's credibility
resolutions.8 Under the circumstances, it seems clear that the credited
testimony establishes that Daigle was given active consideration for a
7 Nor do we rely on the Trial Examiner 's inference that Daigle would not have been
hired by another store in 1950 if she had in fact been discharged for cause . As we view it,
the 1950 incident in question is too remote to give rise to anything other than mere specu-
lation, and did not affect or have sufficient bearing on the allegation based on the August
1953 refusal to hire. In this posture , we also find it unnecessary to adopt the Trial Ex-
aminer 's criticism of Respondent 's Exhibit No . 10, and his discussion based thereon
unlike the Trial Exainmer ;' we place no - reliance on the hearsay testimony of Rose
Waddell. . I
. 1 L , i
THE DALTON COMPANY, INC. 1233,
job with the Respondent and but for her statement that she had joined
the Union would have been hired. That the statements of Finnegan
and Stanfield on the crucial occasions in question were not mere chance
remarks but consistent with the Respondent's expressed opposition to
the Union is manifested by the conduct previously engaged in by the
Respondent and already found to have constituted independent viola-
tions of Section 8 (a) (1) of the Act.
The Respondent contends in its brief that the General Counsel did
not establish that the Respondent had a job available for Daigle in
August 1953. However, the record shows, and the Respondent admits,,
that it was "in need of employees" for its drapery department in May
1953. According to Daigle, on August 6 or 7, Manager Stanfield of the
Respondent's drapery department stated that a Mrs. Vass had been
transferred out of that department subsequent to May. This was not
contradicted, and there is no evidence that any employees were added
to the drapery department since May. Moreover, at the hearing the
Respondent made no suggestion that unavailability of a job was a fac-
tor in not hiring Daigle.
Accordingly, and on the basis of the entire record and the Trial
Examiner's credibility resolutions, we conclude, as did the Trial Ex-
aminer, that the Respondent violated Section 8 (a) (3) and (1) of
the Act, in refusing to hire Inez W. Daigle.
4. In agreement with the Trial Examiner, we find that the evidence
did not preponderate in favor of a finding that the Respondent violated'
Section 8 (a) (3) and (1) of the Act with respect to Murray Jolissaint,
and shall therefore dismiss the allegation of the complaint with
respect to him.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that The Dalton Company, Inc., Baton Rouge,.
Louisiana, its agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks' Union, Local No.
1691 of the Retail Clerks International Association, AFL, or in any
other labor organization of its employees by discriminating with re--
gard to the hire and tenure of employment or any terms or conditions
of employment of its employees or properly qualified applicants for
employment.
(b) Interrogating its employees concerning their union member-
ship or activities on behalf of Retail Clerks' Union, Local No. 1691
of the ,Retail Clerks International Association, AFL, or any other-
labor organization, in a manner constituting interference, restraint, or-
coercion in violation of Section 8 (a) (1) of the Act.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening. its employees with reprisals for engaging in union
activities and/or other concerted activities or promising them 'bene-
fits for refraining from such- activities. , 11
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist, Retail Clerks' Union,
Local No. 1691 of the Retail Clerks International Association,, AFL,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, 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 Act.
2. Take the following affirmative action, which it is found will
effectuate the policies of the Act:
(a) Offer to Maybelle Jolissaint immediate and full reinstatement
to her former position or to a substantially equivalent position, with-
on,, prejudice to her seniority or other rights and privileges and make
her whole for any loss of pay she may have suffered as a result of her
discharge, in the manner set forth in the section in the Intermediate
Report entitled "The Remedy."
(b) Offer immediate employment to Inez W. Daigle at the same or
substantially equivalent position at which she would have been hired
on August 11, 1953, had the Respondent not unlawfully refused'to
hire her, and make her whole for any loss of pay she may have suffered
as a result of such unlawful refusal to hire, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary to analyze the amount of back
pay due and the rights of reinstatement and employment under 'the
terms recommended in the Intermediate Report attached hereto.,
(d) Post at its place of business in Baton Rouge, Louisiana, copies
of the notice attached to the Intermediate Report and marked
"Appendix A." I Copies of such notice, to be furnished by the
National Labor Relations Board's Regional Director for the Fifteenth
Region, shall, after being duly signed by a representative of Re-
spondent, be posted immediately upon receipt thereof and maintained
e This notice , however , shall be , and- it hereby is, amended by striking from the first
paragraph therein the Words "The Recommendations of a Trial Examiner" and substituting
in lieu thereof ' the words "A Decision and Order ." In the event that this Order is en-
forced 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."
THE DALTON COMPANY, INC. 1235
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges discrimination with respect to Murray
Jolissaint, and insofar as it alleges violations of the Act other than
those found herein.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
Intermediate Report
STATEMENT OF THE CASE
Upon charges filed by the Retail Clerks' Union , Local No. 1691 of the Retail
Clerks International Association , AFL, herein called the Union , on July 17, 1953,
against The Dalton Company, Inc., the Respondent herein , the General Counsel of
the Board issued his complaint and notice of hearing on July 31, 1953 . The com-
plaint, as amended on November 19, 1953, alleged the commission of unfair labor
practices by the Respondent in violation of Sections 8 (a) (1) and ( 3) and 2 (6)
and (7 ) of the National Labor Relations Act, 61 Stat. 136, as amended , herein called
the Act, in that the Respondent interfered with , restrained , and coerced its employees
by certain specified conduct; discharged Maybelle Jolissaint because of her union
activities ; and refused to employ Inez W. Daigle because of her union membership.
Copies of the charge and complaint , as amended , together with a notice of hearing
were served on the parties. Respondent filed an answer admitting the jurisdictional
allegations of the complaint but denying the commission of any unfair labor prac-
tices. Pursuant to notice , a hearing was held in Baton Rouge, Louisiana , on Novem-
ber 14 , 15, and 16, and December 14 and 15, 1953, before Henry S. Salim, the under-
signed Trial Examiner . Respondent filed motion on February 18, 1954 , requesting
an exhibit be admitted in evidence . Motion was denied because of laches and imma-
teriality . All parties were represented by counsel , were afforded full opportunity
to participate in the hearing, and to introduce relevant evidence bearing on the issues.
The parties failed to avail themselves of the opportunity accorded them to argue
orally at the end of the hearing, but all parties filed briefs thereafter. Disposition
of the Respondent 's motion to dismiss the complaint , upon which ruling was reserved
at the hearing, is made by the following findings and conclusions.
Upon the entire record in the case, and from his observation of the demeanor of
the witnesses , the Trial Examiner makes the following:
1. FINDINGS OF FACT
It is conceded and found, that the Union is a labor organization within the mean-
ing of Section 2 (5) of the Act . It is conceded also that the Respondent , a depart-
ment store employing approximately 400 people , purchased merchandise and goods
valued in excess of $5,000,000 , substantially all of which were purchased and shipped
to the Respondent 's store from points outside the State of Louisiana . It is found,
therefore , that the Respondent is engaged in commerce within the meaning of the
Act, and it is subject to the jurisdiction of the Board.
Issues
The disputed issues are whether Respondent : ( 1) Interrogated its employees con-
cerning their union activities and membership , threatened employees with discharge
and other economic reprisals, and promised them economic benefits if they did not
join the Union ; (2) discriminatorily discharged Maybelle Jolissaint for her union
334811-55-vol 109-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities ; ( 3) refused to hire Inez W. Daigle because of her union membership;
and (4 ) imposed discriminatory restrictions on its employee Murray Jolissaint.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion 1
1. The facts
The International affiliate of the Retail Clerks' Union, Local No. 1691, began an
organizational drive in December 1952 to recruit members for the Union from
among the sales personnel of the retail stores of Baton Rouge, Louisiana.2 About
the first of February 1953, approximately a month before the Union received its
charter and before Murray Jolissaint, an employee of Respondent in its men's clothing
department was elected an officer of the Union, he was invited by J. J. Boyd, president
of Respondent to attend a meeting in his office at which certain officials and super-
visory personnel of The Dalton Company were present.3 Boyd stated that because
the Union had undertaken a campaign to organize the retail stores, the reason he had
invited Jolissaint to the meeting was to ascertain from him , as he knew Jolissaint
was the leader of the union movement in the Dalton store, what the Union wanted.
During the meeting, Boyd clearly indicated he was opposed to unions and particu-
larly to Dalton's being unionized stating that the store did not need a union and that
he had little regard for unions or their methods.
. A few weeks later, in the latter part of February 1953, L. T. Jackson, manager and
buyer of Respondent's men's clothing department and Jolissaint's supervisor,4 request-
ed him to come to his office where he asked him for a union application card which
Jolissaint obtained for him. During the months of March and April 1953, Jackson
discussed the Union and its activities with Jolissaint and on several occasions he
asked him the morning following union meetings, two of which were held at Jolis-
saint's home, how the meetings progressed and whether they were well attended.5
Around April 1, Boyd approached Jolissaint at the store and asked him, "How was
your union meeting last night?" Sometime between April 1 and April 8, Boyd asked
Jolissaint to come to his office where he told Jolissaint that his wile, Maybelle, had
telephoned one of the sales personnel and called her a "stool pigeon." 6
On or about March 10, 1953, Jackson called Willie R. Waggoner, a salesman in
the men's clothing department of Respondent's store, to his office. At that time and
place, Jackson inquired about the Union and asked Waggoner if he had joined as
yet.7 When Waggoner replied that he had not, Jackson advised him not to join.
According to Waggoner, Jackson said: ". . it will cost you more if the Union
comes in. You'll lose your bonuses and hospitalization."
Waggoner also testified that shortly thereafter Jackson "interviewed" him with
respect to the Union and told him that ". . . there was going to be an election in
the store and when it came down to a vote, the loyal employees would be taken
care of " In answer to a question by Waggoner as to how it could be determined
which employees were loyal, Jackson replied: "Well, I think they are going to vote
in sections and only one or two in the men's store, if they vote for the union, we
1 There is no substantial dispute over the basic facts concerning the alleged violations of
Section 8 (a) (1). The controversy is mainly as to the legal conclusions to be drawn from
the facts
The Local received its charter on March 6, 1953.
Jolissaint was the only nonsupervisory employee present.
The parties stipulated and the evidence shows that Jackson was a supervisor within
the meaning of the Act.
s Jackson testified on his direct examination that he had often heard Jolissaint telling
the other employees about his union activities.
6 Although the record is not clear , this complaint may have had reference to two of the
store employees who had attended a union meeting . At page 32 of Respondent 's brief the
following appears : "There is some evidence that two women had been invited to a meet-
ing by Mrs Jolissaint and refused to sign up . Mrs. Jolissaint later saw them In Mr.
Hardy's office and assumed they were stool pigeons . She called one of the women and told
her what she thought."
7 When Jackson was asked on direct examination why he Interrogated Waggoner, he
replied : "Well, we had heard so many things around the store and out of the store that
personally , I just wanted to see and find out what was going on." He also testified that
he told Waggoner that he was interested in knowing "something about what was going on"
with respect to the Union 's organizing campaign among the retail clerks.
THE DALTON COMPANY, INC . 1237
will know pretty well who voted for the Union ." During this same conversation,
Waggoner testified that Jackson also told him to stay away from and have nothing
to do with Murray Jolissaint because "every time they see you together , they will
think you are talking about the union." 8
On or about March 11 , 1953, Jackson again called Waggoner into his office and
told him one of the store 's personnel had reported to Mr. Boyd that he was dis-
tributing union literature . Jackson , according to Waggoner , stated that Mr. Boyd
was upset because he had considered Waggoner a loyal employee and ( if the accusa-
tion were true ) Mr. Boyd "would fire you ." The conversation ended when Waggoner
assured Jackson that there was no truth to the charge.
Kearney Blouin who is employed by the Respondent in its men's clothing depart-
ment, testified that on or about April 1 , 1953 , Jackson asked him if he was a member
of the Union . Jackson advised Blouin to "leave it alone if I were you as the store
doesn 't want the Union in the store ." Blouin also testified that Jackson told him
"to stay away from Murray [Jolissaint ] altogether as much as I could."
Sometime in May 1953, Jackson spoke to Blouin in his office and again inquired
if he had heard anything more about the Union. Blouin testified that Jackson
told him he "didn 't have to join the Union because the store would take care of
all the people that didn 't join the Union ." Blouin also testified that during the
Union's organizational campaign , J. J. Boyd came into the men's clothing depart-
ment, pointed toward Murray Jolissaint , and said , "We should have fired him."
Elaine Williams, who is employed by the Respondent , testified that on or about
May 12, 1953, she was called by T. J. Hardy, personnel manager of the Respondent,9
to his office who asked her during the course of a conversation if she had heard
the Union discussed . 1° Hardy, according to Williams , said : "The time has come
when we have to do something about the Union . He asked me what my opinion
was and I said I would rather not say. He said he could understand why the
smaller stores would need the Union but as far as Dalton's was concerned we
didn't . . and if we got the Union, . . . Mr. Boyd would get mad and would
say, `to hell with it ' and lock all the doors and there would be some 500 employees
on the outside without a job."
2. Discussion and conclusions
The witnesses for the General Counsel appeared to be sincere and truthful wit-
nesses. Their testimony, in conjunction with the entire background of evidence
adduced in this case, merits belief. It might be well then to examine this back-
ground evidence.
In December 1952 the Union initiated an organizational drive among Respond-
ent's employees. These incipient organizational efforts were at once opposed by
Respondent and brought about a responsive movement to oppose the Union. The
determined opposition of Respondent to the Union's organization of its employees
was translated by its officials and supervisors into a coercive effort to thwart the free-
dom which the Act guarantees employees in organizational matters.
The militant and derisive words of both Jackson and Hardy, when they discussed
the Union, it is reasonable to believe under the circumstances in this case, were
interpreted by employees Waggoner, Blouin, and Williams to be voices of author-
ity. This is particularly true, where, as here, Jackson and Hardy were following
and emulating the antiunion sentiments expressed by the president of the Respond-
ent, J. J. Boyd, in his meeting with Jolissaint in February which these supervisors
attended.
These acts of opposition toward the Union gave a coercive emphasis to Respond-
ent's concurrent attitude toward Murray Jolissaint. It was he who played a leading
role in the organizational efforts in the store and his home served as the Union's
meeting place on two occasions. Almost as soon as the Union appeared at the
store, employees were told to avoid him.11 J. J. Boyd began to treat him rudely
8 Jolissaint also testified that with the advent of the Union, Boyd became rude to him.
' It was conceded and it is found Hardy is a supervisor within the meaning of the Act
as he had power to transfer, assign, or responsibly to direct other employees, or effectively
to recommend their layoff, recall, or discharge
10 Hardy's denial that he discussed the Union with Williams is not credited for the rea-
sons stated infra
11 Waggoner testified that at the present time he is "not as friendly as [he] normally
would be" with Jolissaint because Jackson told him "to stay away" from Jolissaint. On•
his cross -examination , he testified that since he was told by Jackson to stay away from,
Jolissaint , he has done so and does not associate with him now.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was heard to say by one of the other employees , "We should have fired him,"
and he was personally warned not to leave the store during his "coffee break"
whereas the other employees were so advised by a posted memorandum . Disparate
treatment of this kind , accorded to Jolissaint , adds to the indicia by which Re-
spondent made it known to its employees that contact with , sympathy toward, or
adherence to the Union would incur not only its displeasure but perhaps retaliation.
Because of the economic power of an employer over his employees , such attitude
and actions by an employer may intimidate employees far more than they would
in the absence of the employer-employee relationship . This is particularly true,
where, as here , it appears Waggoner was intimidated when Jackson told him "it will
cost you more if the Union comes in. You'll lose your bonuses and hospitalization."
This intimidation is revealed when Waggoner on his cross-examination in answer to
the question : "Now what is this business about your joining the Union and you
lose your bonus and your insurance ?" replied, "That is what Mr . Jackson said
would happen if the Union went through in the store , because the store would cancel
it." The test, whether an employee is intimidated , is not an objective one but rather
subjective from the standpoint of employees . See N. L. R. B. v. Thompson Products,
130 F. 2d 363, 368 (C. A. 6). Cf. N. L. R. B. v. Link-Belt Co., 311 U. S. 584.
This principle seems directly applicable here.12
Then too , there is Williams' testimony that Hardy told her that if the Union were
successful , Boyd "would get mad and would say 'to hell with it' and lock all the doors
and there would be some 500 employees on the outside without a job." Threats by an
employer to close down because of union activity violate Section 8 (a) (1).
N. L. R. B . v. Atlantic Stages, 180 F. 2d 727 (C. A. 5). No more effective means
than that of exploiting employees ' fears concerning their job security is available to
an employer bent on inducing conduct in accord with his wishes . In Atlas Under-
wear Co. v. N. L. R. B., 116 F . 2d 1020, 1023 (C. A. 6), the court stated:
A statement to the employees . that it might be necessary to close the plant,
made during a period when unionization of its employees was sought to be ef-
fected , must be regarded as coercive , . . a threat or predication that it might
have to close, if unionized , must necessarily affect the judgment of its employees
and interfere with their freedom of choice . It cannot be disassociated from
hostility to unionization as such, .. .
We turn next to the question whether the interrogation of employees Waggoner and
Blouin by Jackson , and Williams by Hardy about their union attitudes , membership,
and activities violate Section 8 (a) (1) of the Act. Respondent 's counsel argue that
assuming there is evidence of "8 (a ) ( 1) activities on the part of the employer,"
those activities are so " isolated" as not to warrant issuance of a cease and desist order.
The Board in the case of Syracuse Color Press, Inc., 103 NLRB 377, recently
reaffirmed its prior holdings that interrogation is per se a violation of Section 8 (a)
( 1) which was enforced by the Second Circuit Court of Appeals , 209 F . 2d 596.
The isolated act of questioning , the Board stated, is sufficient to constitute an unfair
labor practice and no other unlawful conduct of the employer need be shown.13
A note in the Yale Law Journal of July 1953 ( Volume 62, Page 1258, et seq.)
states:
that even isolated questions can frighten employees away from the Union.
Despite the plausible analogy to protected employer speechmaking , employees are
more effectively coerced by questioning . Speechmaking requires the worker to
listen to his employer 's views but does not force him to reveal his own. Ques-
tioning, on the other hand , may extract information which is often used for
subsequent reprisals. Even if the employer does not use the information to
discriminate against union adherents , questions may be used to induce fear or
retaliation . This fear will be felt not only by the worker interrogated, but by
all other employees who hear of the questioning . Especially in the insecure
organizational period , the employer can make a seemingly innocent question sug-
" When Waggoner was asked on his cross -examination if he had ever been threatened
with discharge, he implied, although it is not clear, that something Jackson had said to
him gave him that impression because he testified, "not except what Mr. Jackson had said "
Again, on his cross-examination, when Waggoner was asked, "Has anybody ever promised
you anything to stay out of the Union"" he answered, "not unless you say that the store
was going to take care of the loyal employees "
>a Respondent's reference in its brief to The Walmac Company, 106 NLRB 1355, is
believed to be inapposite as the interrogation in the instant case occurred in a context of,
.and was linked with, a pattern of other antiunion conduct
THE DALTON COMPANY, INC. 1239
gest his displeasure with employees who support the union. Such questions may
convey an imagined threat of reprisal, even if the employer intends neither the
threat nor the reprisal. . . Any business justification for employer question-
ing must be weighed against the danger of coercing employees. The Board's
per se rule protects the worker without unduly burdening management.
Then, too, as the above-quoted note points out, the per se rule has the virtue of
predictability whereas the isolation concept offers no quantitative or defined standards
whereby it reasonably can be determined what additional unlawful acts or conduct will
be considered sufficient to make an otherwise so-called isolated act illegal.
Respondent argues, however, that even though the Respondent may have violated
the Act by interrogating its employees, still these instances are so isolated that the
issuance of a cease and desist order is not warranted. This contention misconceives
the discretion and authority which a Trial Examiner possesses under the Act. If it is
found that the Respondent has committed an unfair labor practice by interrogating
its employees, it necessarily follows, as a matter of law, that a cease and desist order
must issue. Section 10 (c) of the Act provides, inter alia, that if any person is en-
gaging in an unfair labor practice, a cease and desist order shall issue. This
mandatory language of the Congress requires that upon a finding being made of the
commission of an unfair labor practice, a cease and desist order must issue as a
matter of law and not discretion.14 In N. L. R. B. v. Waumbec Mills, 114 F. 2d 226,
234 (C. A. 1), the court said: "The cease and desist portion of the Board's order is
mandatory" citing for its authority, N. L. R. B. v. Pennsylvania Greyhound Lines,
303 U. S. 261, 265. As recently as December 14, 1953, the Supreme Court in the
case of Garner v. Teamsters Union (No. 56, October Term, 1953) said: "The federal
Board, if it should find a violation of the National Labor Management Relations Act,
would issue a cease and desist order. .
Regardless of whether the interrogation is considered isolated or not, the question-
ing of the employees in this case, however, is so linked with other antiunion conduct
that it is part of a pattern of hostile conduct directed against union activity. The
other antiunion conduct was Boyd's belligerent attitude toward the Union,15 Jack-
son's threat that the employees would lose their bonuses and hospitalization in the
event the store became unionized, and the promise by Jackson that those employees
who were loyal to the store would be "taken care of" if the Union was unsuccessful.
In addition, there is the discrimination practiced by the Respondent in discharging
Maybelle Jolissaint for her union activities and in refusing employment to Inez W.
Daigle for her union membership which is discussed in later sections of this report.
It is found, therefore, that the conduct described above was intended and so timed
as reasonably to have the effect of interfering with the rights guaranteed to employees
by Section 7 and constituted interference, restraint, and coercion in violation of Sec-
tion 8 (a) (1) of the Act.16
B. The alleged discriminatory discharge of Maybelle Jolissaint"
1. The facts
Maybelle Jolissaint, wife of Murray Jolissaint, first was employed by the Respond-
ent in March 1946, as a saleslady and worked until the following March. She next
returned to Respondent's employ in the same capacity in the fall of 1947 and re-
mained until July 4, 1948.18 The last occasion on which she was employed was
October 27, 1952, at which time she was hired to work for the period prior to
14 The Supreme Court in N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344
U. S. 344, stated that discretion is given under the Act to mold remedies suited to practi-
cal needs. The Court, however, had reference to types of affirmative remedies as distin-
guished from whether a negative cease and desist order shall or shall not issue. It will
be noted that the phrase in Section 10 (c) which reads "as will effectuate the policies of
this Act" modifies the provision providing for "affirmative action" and not the cease and
desist injunctive action
15 See Somerville Buick, Inc., 93 NLRB 1603, where Respondent told his employees that
he would close his doors before he would "see a union" in there.
'ON. L. R B. v. Sewell Mfg. Co., 172 F. 2d 459, 461 (C. A. 5) ; N. L. It. B. v. Calcasieu
Paper Co, Inc, 203 F. 2d 12 (C. A. 5) ; N. L. R. B v. Stratford Furniture Corp., 202 F.
2d 884, 886-887 (C. A 5).
17 Section 8 (a) (3), insofar as herein pertinent, forbids discrimination against an em-
ployee for the purpose of discouraging union membership.
za She left Respondent's employ on both these occasions under circumstances which in no
manner reflect on her personally or as a saleslady.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Christmas." She was assigned to the women's sportswear department as a saleslady
working from 1 p. in. until 5:30 p. in., 6 days a week. Her beginning hourly wage
rate was 65 cents which was increased approximately 2 months later by Hardy, per-
sonnel manager of the Respondent, to $1 an hour. Hardy testified that she was given
this raise after he had checked her sales record and ascertained she was entitled to
it. The Respondent makes no claim, nor does the evidence suggest Maybelle was
incompetent. It is uncontradicted that she had an excellent sales record. In fact,
she won a store contest during the Christmas rush for "selling the most merchandise."
Although she was hired originally to work only during the Christmas rush, she
was kept on after the holiday season. Sometime in January 1953, Hardy asked her
to accept a full-time permanent job and offered to pay her a salary based on a per-
centage of her sales. Helen Tyrone, manager and buyer of the sportswear depart-
ment and Maybelle's supervisor,' urged Maybelle to accept Hardy's offer, pointing
out that her sales record showed she was selling more merchandise as a part-time
employee than some of the full-time employees which indicated she would earn more
money on a commission basis than on a straight salary.
About this time, Maybelle became active in the Union, playing a leading role in
the activities of the Union in Baton Rouge, and after the Local received its charter
on March 6, she attended all of the meetings, two of which were held at her home.
At 1 of the union meetings held at her home on April 2, there were 4 of Respondent's
employees present, 2 of whom signed union application cards'
On April 4, Hardy notified Maybelle that since business was decreasing the Re-
spondent would be unable to employ her part-time 6 days a week as it had in the past.
He offered instead, according to his testimony, to call her whenever the store was
having a sale or other circumstances warranted the employment of extra help. May-
belle denied this, testifying that Hardy at that time promised her 3 days employment
each week from 9:30 a. in. to 5:30 p. in., working in different departments of the
store. He also told her, during the same conversation, that the store was having
a sale on April 6 and asked her to work in the ready-to-wear department on that
day from 9:30 a. in. to 5:30 p. in. which she did.
After 5 or 6 weeks had elapsed from the last time she had worked for Respondent
on April 6, she called Hardy to inquire why she had not heard from him. She
explained that if Respondent did not intend to employ her, she would like to be so
advised in order for her to be eligible to apply for unemployment insurance. The
testimony is contradictory as to what was then said but it is uncontraverted that
Maybelle never worked for Respondent after April 6, 1953.
2. Contentions and conclusions
It is against this background that Respondent's reasons for the termination of
Maybelle Jolissaint's employment are considered. In seeking the reason for May-
belle's employment being terminated, however, such consideration need not be
limited to the evidence offered by the Respondent to justify its action. Nor, as the
sequence of events are analyzed, need such inquiry be confined to direct evidence,
if any, of what transpired between Maybelle and the Respondent, but consideration
may be given as well to circumstantial evidence. Hartsell Mills Co. v. N. L. R. B., 111
F. 2d 291, 293 (C. A. 4), enfg. 18 NLRB 268.
There is nothing in the record which shows that the Respondent ever complained
about the work habits of Maybelle Jolissaint prior to January 1953, when, signifi-
cantly, not long after, Maybelle openly began her union activities and Respondent
concurrently became more critical of her work. Tyrone, manager of the department
in which Maybelle worked, testified that she found it unpleasant to work with May-
belle Jolissaint. She stated that Maybelle began to "grab customers" from other
salesladies, although it seems implausible that a saleslady on straight salary and not
commission would be impelled to engage in such a practice. Even so, this trait might
very well have been considered by a more tolerant supervisor as attributable to zeal,
"She was interviewed and recommended for employment by her supervisor, Tyrone,
whose testimony is discussed in later sections of this report.
21 It was stipulated and the evidence confirms that Tyrone was a supervisor within the
meaning of Section 2 (11) of the Act. Tyrone who was married a week before the hear-
Ing appears in the record index under her married name of Whitley.
' The following morning when she reported for work, Maybelle testified, that while she
was signing in for work, she saw Hardy in conversation with two store employees who had
attended the meeting at her home on the previous evening. They were, she testified, the
2 of the 4 store employees present at the meeting who had not signed union application
eards.
THE DALTON COMPANY, INC. 1241
perhaps misguided and indiscreet, but surely not grounds for discharge. Then too,
an understanding supervisor and one who is acquainted with personnel problems,
might consider "customer grabbing" a commendable virtue naturally incident to the
highly competitive atmosphere so often associated with department store salesman-
ship. In fact, Tyrone, on her cross-examination, unwittingly acknowledged that she
was not particularly interested in her salesladies' methods, testifying, "I don't care
who is selling in my department as long as the sale is made."
Tyrone also complained that Maybelle had an irritating habit of bragging about
the large number of sales she made. This characteristic of Maybelle, she testified,
undermined the morale of the other salesladies. A more imaginative supervisor,
rather than being piqued by this mannerism, might have turned it to her advantage,
by using these gasconades of Maybelle's as a criterion to goad the less accomplished
salesladies into emulating the high selling standards set by Maybelle. It appears from
the record that what Tyrone characterized as boasting was, in fact, warranted as
Tyrone herself admitted that Maybelle sold more merchandise as a part-time em-
ployee than some of the full-time salesladies.
Still another reason for recommending Maybelle's discharge, Tyrone testified, was
the full-time salesladies' resentment that upon reporting for work each morning they
arranged the stock so that by the time Maybelle got to work at 1 p. m.22 the stock
was in order. This complaint, it is conceivable, is an occupational annoyance to which
full-time department store salesladies are universally subjected to by part-time em-
ployees who are not due to report for work until after the stock has been put in order.
This insoluble dilemma as it appeared to be, was not brought about through any
conscious wrongdoing or fault on Maybelle's part and surely, is not grounds for dis-
charge. Maybelle evidently appreciated the merit of the full-time employees' pique
as she undertook, in addition to her sales duties, and at Tyrone's request, the tasks of
straightening order books, picking up clothes hangers, pieces of paper, and closing
display counters so that this crisis evidently became somewhat moot.
Tyrone complained of other trivia 23 (all of which Maybelle denied) such as
Maybelle used the telephone too much and when she was assigned to straightening
stock, picking up garment hangers, and pieces of paper that she performed these
perfunctory and menial tasks improperly. She also took umbrage at what she
testified was Maybelle's disparaging remarks about the merchandise purchased for
the department by Tyrone, although she inconsistently admitted that in her deal-
ings with Maybelle, the latter always was "respectful" to her.24
During Tyrone's recital of Maybelle's faults,-she indicated on direct examination
that her knowledge of them was based on complaints which she had received from
her assistant and other salesladies. That the basis for them was not, at least in part,
of her own knowledge apparently was confirmed on Tyrone's cross-examination
where the following colloquy occurred between Tyrone and the General Counsel:
Q. You say that the criticism you had of Maybelle was actually transmitted
through your assistant manager and the girls never did come direct to you.
A. That is true.
After Tyrone finished relating these complaints, she shifted on cross-examination
to another reason for recommending Maybelle's discharge. Another factor which
entered into her decision to recommend Maybelle's discharge, she testified, was the
fact that Maybelle was a part-time employee. When she was asked how large a
part this reason played in her decision to recommend Maybelle's discharge she
answered, "I would say about fifty-fifty." This variation of the grounds previously
stated for Maybelle's discharge casts doubt upon the meritoriousness of the Re-
spondent's defense. Shifting reasons for an employee's discharge are indicative of
a discriminatory intent. Dant if Russell, Ltd., 92 NLRB 307, 320; Intertown Cor-
poration (Michigan), 90 NLRB 1145, 1188. The giving of evasive or contra-
dictory reasons for a discharge may, of course, be considered in determining the
real motive for the discharge; N. L. R. B. v. Condensor Corp., 128 F 2d 67 (C. A. 3)
19 Maybelle's hours, as a part-time employee, were from 1 p. m to 5: 30 p. in.
23 Hardy, the personnel manager, evidently believed these complaints not to have sub.
stance because when he was asked on direct examination his opinion of them, he answered :
"Frankly, I felt that the majority of it was a personality clash between Mrs. Tyrone and
Maybelle Jolissaint."
rti It is interesting to note that Hardy on his cross-examination , in relating what Tyrone
bad told him with respect to Maybelle's attitude toward her, said "Maybelle simply refused
to accept [ Tyrone] as her immediate superior" which is inconsistent with Tyrone's own
characterization of Maybelle 's attitude being "respectful " toward her.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the employer 's inconsistent explanations of a discharge 25 is a circumstance indi-
cating its motivation. N. L. R. B. v. Somerset Shoe Co., 111 F. 2d 681 (C. A. 1);
and see Mooresville Mills, 99 NLRB 572; Sandy Hill Iron & Brass Works, 69 NLRB
355, enforced 165 F. 2d 660 (C. A. 2); Lewis and Holmes Motor Freight Co., 63
NLRB 996.
These criticisms and complaints, which had their inception sometime in January
when Maybelle became active in the Union, are now heavily stressed by Respondent
although no mention was made of them by Hardy in his numerous conversations
with Maybelle in an effort to correct these alleged faults of an admittedly valuable
employee. This is persuasive evidence that they were not the real reasons for
Respondent's decision. Coca-Cola Bottling Company of St. Louis v. N. L. R. B.,
195 F. 2d 955 (C. A. 8) enforcing as modified 95 NLRB 284; N L. R. B. v. Pratt,
Reed and Company, Inc., 191 F. 2d 1006 (C A. 2) enforcing 90 NLRB 1499. This
dissatisfaction with Maybelle's work apparently became intolerable only after she
joined the Union.
It will be recalled, as mentioned before, that Hardy notified Maybelle on April 4,
that due to a decrease in business, he would be unable to employ her part time
every day but that he would call her whenever there was a need for her services.
Maybelle denied this and testified that Hardy promised her work 3 full days a
week every week. When she did not hear from Hardy thereafter for 5 or 6 weeks,
she telephoned him to inquire whether he intended to use her services. In the course
of this telephone conversation, Maybelle reminded him that he had promised her
work 3 days a week in such departments of the store which needed extra help. Hardy
denied this, claiming he had promised her work only if it were available and that
none was available for her since the time she last worked for the Respondent 26
At this point in the conversation, Hardy testified, that Maybelle cursed at him in
an obscene manner which brought the conversation to an end. Maybelle denies
that she did so maintaining that when she reminded him of his promise to give her
3 days' work each week, he abruptly hung up the telephone.
Argumentatively assuming that Maybelle's alleged cursing of Hardy was cause
for her discharge, it is well settled, nevertheless, that where a clearly unlawful
reason is one of the motivating causes of a discharge which in this case is found
to be Maybelle's union activities, the coexistence of a separate valid reason, namely,
her cursing Hardy, does not eliminate the unlawful aspect of Respondent's action.27
Moreover, it is believed and found that the alleged cursing incident was not the
moving cause for Mayhelle's discharge but was used as a pretext to cover the real
reason-to rid the Respondent of a vigorous union adherent.28 This conclusion is
based on the finding that when Hardy told Maybelle on April 4 and again on the
6th that her services would no longer be needed on a part-time, 6-day a week basis
that he was terminating her services, perhaps deviously, but nonetheless, his inten-
tion was to discharge her. This finding is, in turn based on the following facts-
The store had sales each week from the date Maybelle last worked on April 6 to
the date of the telephone conversation with Hardy 5 or 6 weeks later; and Re-
a Hardy on his direct examination in testifying as to Maybelle's alleged inadequacies
testified, "It seemed like Maybelle had been taking the other girls' coffee breaks." Maybelle,
however (and this was acknowledged by Tyrone to be true) testified that Tyrone, without
Maybelle's knowledge or consent, gave Maybelle's regularly assigned coffee period to
another saleslady resulting in Maybelle being unable to take her coffee break at her regu-
larly assigned time Tyrone at the hearing acknowledged she was wrong and testified she
apologized to Maybelle for this incident.
20 Hardy's own testimony shows work was available because he testified that the store
had had sales between the time Maybelle last worked on April 6 and when she telephoned
him and the record shows the store had employed so-called "extra help" during this same
period of time. Maybelle was an employee of conceded ability yet she was denied employ-
ment after April 6, while others were accepted as part-time employees during this same
period of time Under the circumstances, the failure to call Maybelle was discriminatory
and it is so found.
27 N. L R. B. v. A B. Swinerton, Richard Walberg and Howard Hassard; etc ., 202 F. 2d
511, 515 (C. A. 9) ; Kingston Cake Company, Inc., 97 NLRB 1445, 1451. See also
N. L it. B. v. Whiten Machine Works, 204 F. 2d 883 (C A. 1).
29 See Shell Oil Company v. N L R. B.. 196 F. 2d 637 (C A. 5), enforcing as modified 95
NLRB 102 ; N L it. B. v English Mica Company, 195 F. 2d 986, 987 (C. A 4) ; N. L. R. B.
v. Harris-Woodson Co., 162 F. 2d 97 (C. A. 4) ; National Lead Company, 67 NLRB 117 ;
it. L. R. B. v. Winter Weiss Co., 154 F. 2d 719 (C. A. 10).
THE DALTON COMPANY, INC. 1243
spondent's Exhibit No. 3, as well as the testimony, shows the store had employed
extra or part-time help during this same period of time and although Maybelle was
an employee of conceded ability yet she was denied employment after April 6, while
others were hired as part-time employees during this same period of time. It is
concluded, therefore, that the cursing incident, if true, was a temporal coincidence
seized on by Respondent to justify its previous unlawful action and not the genuine
reason which was Maybelle's union activity. It is clear, therefore, and so found
that the Respondent had decided to discharge Maybelle before the cursing incident
and the reason advanced was merely a pretext to justify her discharge.29 As was
said in Farmers Cooperative Company, 102 NLRB 144, 145. "As to the alleged
cursing . . . whatever cursing occurred, followed the discharge."
The incidents of complaint which Respondent's witnesses described above concern-
ing Maybelle are remarkable in their triviality, lacking in their specificity, and doubt-
ful in their verity when subjected to the searching glare of inquiry. Such unconvinc-
ing testimony leads to the conclusion that the Respondent's dissatisfaction with May-
belle was more fictitious than real and played no part in the decision to discharge her.
N. L. R. B. V. Bird Machine Co., 161 F. 2d 589, 592 (C. A. 1). As the Court of
Appeals for the Fifth Circuit observed in N. L. R. B v. Richter's Bakery, 140 F. 2d
870, 872, cert. denied 322 U. S. 754, it is significant that "the complaints urged
against [her] had to do with a time concurrent with activities occurring in Respond-
ent's plant looking toward organizing Respondent's employees into a Union."
Maybelle Jolissaint was admittedly a capable, qualified, and competent saleslady
who had an excellent sales record and whose competency was recognized by Re-
spondent by her receiving an unsolicited pay raise within 2 months after going to
work.30 Respondent's wittnesses, Tyrone, Hardy, and William C. Boyd 31 in their
testimony conclusively prove this fact. In addition, she won a sales contest and sold
more merchandise as a part-time employee than some of the full-time employees. Al-
though she was hired only for the Christmas season, she was retained thereafter and
even offered a full-time permanent job in January which Hardy testified on his direct
examination he was "hoping " she would accept.32
Under these circumstances, it is difficult to justify Respondent's discharge of May-
belle. As the Court of Appeals for the District of Columbia stated:
Such action on the part of an employer is not natural. If the employer had
really been disturbed by the circumstances it assigned as reasons for these dis-
charges, and had had no other circumstance in mind, some word of admonition,
some caution that the offending lapse be not repeated, or some opportunity for
correction of the objectionable practice, would be almost inevitable. E. Anthony
and Sons v. N. L. R. B , 163 F. 2d 22, 26-27.
The fact that the record in this case discloses that there was no basis for Re-
spondent's alleged dissatisfaction with Maybelle's work is persuasive that the decision
to discharge her was made because of her union activities 33 Respondent contends,
29 Although it is not necessary to decide the issue, the Trial Examiner, based on the
demeanor of the witnesses who testified to this incident, and on the preponderance of the
evidence, is inclined to credit Maybelle's testimony that she did not curse Hardy.
30 Tyrone's testimony that she did not know Maybelle had received a pay raise, in view
of her being Maybelle's immediate supervisor, is almost unbelievable
33 William C. Boyd , the son of the president of Respondent , is manager of the women's
accessory department. Maybelle fonneily worked in his department At one point in his
testimony he tacitly acknowledged Maybelle was the "main wheel, main cog, and main
force behind this union movement in Baton Rouge "
33 Tyrone testified that she asked Hardy, in the latter part of February or early March,
either to transfer Maybelle from her department or discharge her. Argumentatively
assuming this to be true, it is uncontradicted that, in spite of this recommendation, May-
belle was retained until April 6, and an inference can reasonably be drawn from this inci-
dent that Hardy recognizing Maybelle's superior sales ability refused to accede to Tyrone's
demands In fact, Tyrone testified : "She [Maybelle ] had an excellent sales record and
you don't turn those people loose "
33 The Trial Examiner, contrary to Respondent's contention, is convinced that Murray
Jolissaint 's ardent union activities were also considered by Respondent in its decision to
discharge his wife, Maybelle. In fact, an employee may be the victim of unlawful dis-
crimination , even though the union activity inducing the discharge was not his. Thus,
the discharge of a nonunion employee was found to be discriminatory where the state-
ments of his supervisors made it clear that he was dismissed because of his wife's partici-
pation in union activities . Ford Motor Co., 26 NLRB 322, enfd. as modified, 119 F. 2d 326
-(C. A. 5)
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, that it did not know of Maybelle's union activities at the time her em-
ployment was terminated.
In order to find that a discharge of an employee was motivated by discriminatory
purposes, it must be shown that the employer knew or believed that the employee had
participated in union or concerted activities. Supervisory personnel's knowledge
of such activities normally is imputed to the employer. Direct evidence of such
knowledge is rare in cases of this type, so that if the employer denies that he was
aware of the disciplined employee's union activity, the issue must be determined on
the basis of the facts established by the record 34 What then does the record disclose
in this regard?
The following incidents show and it is found that the Respondent was not only
aware of the Union but also knew of Maybelle's union membership and participation
in union activities. When Murray Jolissaint, husband of Maybelle, was invited by
J. J. Boyd, president of Respondent, to attend a meeting in his office on or about
February 1, 1953, at which Jackson and Hardy, among other officials, were present,
it was evident from what he said that Boyd not only knew of the Union's organiza-
tional activities, because of his disparagement of it, but he also referred to Murray
Jolissaint as the leader of the union movement in the store.
Moreover, Jackson testified that he learned in February about the Union' s organi-
zational drive and that he had overheard Murray frequently telling his fellow em-
ployees about his union activities. Then too, a news item appeared as early as
March 12, 1953, in the local newspaper which named Murray as one of the newly
elected officers of the Union. In addition, the Union inserted paid advertisements
in the Baton Rouge newspaper announcing the time and place of union meetings.
Furthermore, these union meetings, all of which were attended by Maybelle, were
open to the public.
One of these union meetings was held on April 2 at Maybelle's home and was
attended by four of the Respondent's employees. Two of them signed union appli-
cation cards at that meeting. Maybelle testified that the other two who did not sign
applications were seen by her speaking to Hardy at the store the morning following
the meeting.
Sometime around April 1, J. J. Boyd came over to Murray Jolissaint at the store
and said, "How was your meeting last night?" It is not too unreasonable to infer,
that this question might indicate Boyd was not only being kept informed of when
meetings were being held but also, perhaps, who was attending them. Boyd's aware-
ness is further emphasized by Murray Jolissaint's testimony that about the time
Maybelle was discharged on April 6, Boyd complained to him that Maybelle was
alleged to have telephoned one of Respondent's employees and accused her of being
a "stool-pigeon." During this same conversation, Boyd's reply to the statement of
Murray Jolissaint concerning his wife's discharge for union activity appears to indicate
that Boyd was aware of Maybelle's union activity.
Moreover, Tyrone's testimony that she was watching Maybelle at the store to
ascertain if she was engaging in union activities is probative of the fact that the
Respondent had knowledge of Maybelle's union activities before her discharge on
April 635 Tyrone conclusively proved that Respondent knew of Maybelle's union
activities when she was asked on her direct examination whether she had ever
observed Maybelle engaging in union activities on the floor of the store and she
answered, "No, I even watched for it and I didn't find it. I was watching. I don't
say watching for it but we knew there was union activity around. We knew about
Mr. Jolissaint and no, that was later on when we knew about Mr. Jolissaint." This
statement in itself is unmistakably meaningful and convincingly significant in that
it infers that Respondent knew Maybelle was active in the Union before her discharge
and consequently, asked Tyrone, who was Maybelle's supervisor, to "watch" her.
Furthermore, it can reasonably be inferred from the fact that Maybelle worked in
a small department in the store of approximately eight employees that information
as to her union activities came to Tyrone's attention. Brezner Tanning Co., Inc.,
50 NLRB 894.
But, Respondent argues, that in order to show knowledge of Maybelle's union
activities on its part prior to her discharge, direct evidence of such knowledge must
34 Sixteenth Annual Report of the NLRB, page 163; Seventeenth Annual Report of the
NLRB, page 136
85 There is evidence in the record which appears to indicate that Maybelle 's union activi-
ties were of such a widespread character and intensity that it could not have escaped notice
by Respondent prior to her discharge on April 6.
THE DALTON COMPANY, INC. 1245
be proved.36 The Supreme Court in N. L. R. B. v. Link-Belt Co., 311 U. S. 584, 602,
rejected such a contention, stating that the Board "was not required to deny relief
because there was no direct evidence that the employer knew these men had joined
[a union].. . By Section 10 (e) of the Act Congress gave to the trier of the
facts power to draw inferences from the facts and to appraise conflicting and circum-
stantial evidence and the weight and credibility of testimony. Id. at page 597 .37
Upon a study of the evidence on the record as a whole, and based upon the reliable,
probative, and substantial testimony in this case, it is concluded and found that the
Respondent discriminated against Maybelle Jolissaint because of her union activities
which resulted in her discharge. The record establishes also, that the excuses given
by the Respondent that Maybelle was troublesome, insubordinate, unable to get along
with her supervisor, Tyrone, and that she cursed Hardy were afterthoughts and not
the true reasons for the discrimination against her. In fact, the unconvincing reasons
given for the discharge create a suspicion that they were offered to conceal an unlaw-
ful motive. See N. L. R. B. v. Yale & Towne Mfg. Co., 114 F. 2d 376, 378 (C. A. 2).
In view of Maybelle's excellent sales record, her known union activities, the
Respondent's antipathy to the Union, the false pretexts used as an excuse to discharge
her, the timing of the discharge in relation to her union activities, the Trial Examiner
is convinced and finds that Maybelle Jolissaint was discharged and refused reinstate-
ment because of her known union membership and activities. It is therefore con-
cluded and found that by the discharge of Maybelle Jolissaint, Respondent dis-
couraged membership in the Union in violation of Section 8 (a) (3) of the Act.
By the same act, Respondent interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section
8 (a) (1) of the Act.38
C. The alleged refusal to hire Inez W. Daigle because of her union affiliation
1. The facts
Inez W. Daigle was employed by Respondent as a sales clerk in both its gift de-
partment and drapery department from 1947 to October 1950. Upon leaving Re-
spondent's employ, she immediately accepted a position with Rosenfield's Department
Store, Baton Rouge, Louisiana, as assistant buyer and manager of their drapery de-
partment.
After leaving Respondent's employ and while working for Rosenfield's, she was
contacted by Respondent on two different occasions and inquiry made whether she
would be interested in returning to work for Respondent. Daigle declined to con-
sider either of these two proposals.
In May 1953 she received a third call from Respondent, whereupon she met with
J. D. Stanfield, manager of Respondent's drapery department, who interviewed her
with respect to a position. Daigle testified that during this interview she disclosed
she was a member of the Union, whereupon Stanfield and Elwood Finnegan, another
of Respondent's department managers, who was present at this meeting, indicated,
upon hearing of her union membership, that Respondent would not be interested in
considering her for employment 39
Respondent, on the other hand, not only disclaimed that it ever offered Daigle
a position but denies that her union affiliation was ever discussed with her, and
furthermore, it contends that it had a legitimate reason for not hiring her.
'a For an interesting discussion on "direct evidence " see Pacific Lumber Company, 49
NLRB 1145.
87 Although it is unnecessary for a determination of this case it may be well to quote
the language used in Air Associates, Inc, 20 NLRB 356, 375, enforced as modified 121 F.
2d 586 (C. A. 2) which had reference to a situation similar to the one now under consid-
eration. "The Respondent contends that it had no knowledge of the union membership
of Rodlitz and Geoghegan, and that, therefore, the allegation that these employees were
discriminatorily discharged must fall. However, the prohibition of the Act extends to
any discharge which is intended, or has as its purpose and effect, to discourage member-
ship in a labor organization ; a discharge for that purpose having been found , knowledge
by the Respondent of the union membership of the employee for that reason discharged
becomes immaterial ." See also N . L. R. B. v. Radio Officers' Union of the Commeroial
Telegraphers Union, AFL, 345 U. S. 962.
sa Respondent in its brief cites Lloyd A . Fry Roofing Co., 85 NLRB 1222 , and Union
Screw Products , 78 NLRB 1107 . The facts in those cases are sat generis and inapposite
to those in the instant matter.
39 The Union received its charter on March 6, 1953 , and Daigle became a member shortly
thereafter.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Issue
The question presented is whether Daigle's application for employment was re-
jected on account of her affiliation with a labor union rather than on the basis of
some permissible criterion.
3. Contentions and conclusions
Daigle testified that she voluntarily terminated her employment with Respondent
in October 1950, when she refused to accept a transfer from one department to
another.40 Respondent contends, however, that she was discharged because of her
work habits.
It is uncontradicted that the day following her leaving Respondent's store, Daigle
was hired by Rosenfield's, a department store in Baton Rouge, as assistant manager
and buyer of their drapery department. She testified that 2 days later, Respondent,
through J. J. Boyd, its president, offered her a position which she declined and that
he told her if she should change her mind, there would be a position available for her.
About a year after leaving Respondent, Daigle testified she received an invitation
to lunch at Dalton's from Elwood Finnegan, buyer and manager of Respondent's
linen department,41 who told her that Boyd wanted her to return to work for them.
That same day, she testified, she chanced upon Boyd at Dalton's who said to her,
"Mrs. Daigle, are you coming back?"
In February 1953, Daigle, testified, Finnegan again telephoned her and asked if
she would accept a position with the store. She refused both these offers, Daigle
continued, as she was satisfied with her position at Rosenfields's.
In May 1953, at the invitation of Finnegan, she had lunch at Dalton's with him
and J. D. Stanfield, who recently had been made department manager and buyer of
Respondent's drapery department 42 According to Daigle, discussion was had as to
whether she would accept a position with Respondent and what salary she would
want. When these topics had been explored fully, Daigle testified that Stanfield made
an offer to employ her subject to Boyd's approval. At that point in the interview,
Daigle testified she said to Stanfield:
Mr. Stanfield, since the last time I talked to Mr. Finnegan, you are new here
and I don't want you to stick your neck out and hire me; I have never taken
a job under false pretenses, and I want you to know in April I joined the
Retail Clerks Union. And Mr. Finnegan jumped that high [indicating]. He
said, "Good God, Daigle, what do you want to join the Union for, a smart
woman like you, what the heck can you get out of it?" I said, "Maybe I am
wrong, but there is good and bad in everything." Mr. Stanfield looked sur-
prised at Mr. Finnegan and Mr. Finnegan said, "Well, that stops everything.
You know how Mr. Boyd feels about the Union." So, Mr. Finnegan left and
Mr. Stanfield thanked me very much for being honest.
Daigle terminated her employment with Rosenfield's on August 2, 1953, and a
few days later, she testified, she inquired of Stanfield whether he would reconsider
hiring her as a saleslady in Respondent's drapery department. He asked her to con-
tact him in a few days. She telephoned him on August 11,43 and asked him if her
application for employment with Respondent had been acted upon as yet. The
following conversation, according to Daigle, then took place in which Stanfield was
alleged by her to have said:
"I am very unhappy to tell you I won't be able to hire you." I said, "Would you
mind telling me why?" I said, "You know, I didn't come to you all for three
years asking for work; they sent for me." He said, "Well, this Rosenfield thing."
I said, "In other words, my union activities?" He said, "Well, yes, Mrs. Daigle,
I would say that."
Respondent denied, in the following respects, Daigle's version of what occurred.
It contends that when she left its employ in October 1950, she was discharged; that
4° Tressler, who was Daigle's supervisor at the time , testified that she was not offered
the opportunity to transfer but was discharged. He did admit, however, on his cross-
examination that he would have interposed no objection to her transfer to another depart-
ment in the store.
41 It was stipulated and it is found that Finnegan is a supervisor within the meaning
of the Act.
4° It was stipulated by the parties and it is found that Stanfield is a supervisor wllhin
the meaning of the Act
as See footnote 46, infra.
THE DALTON COMPANY, INC. 1247
her membership in the Union was never discussed with her, and the reason she was
not hired in 1953 was because Stanfield who interviewed her was not impressed
with her.
Quinn D. Tressler, who was a department manager and buyer for Respondent from
1940 to 1951, but is now in business for himself, was Daigle's supervisor during the
3 years she was employed by Respondent. He testified that he hired Daigle when
he was manager of Respondent's gift department. Two years from the time he
hired Daigle as a saleslady for the gift department, he was transferred to Respondent's
drapery department as its manager and buyer, at which time, he asked her if she
would like to transfer to his newly assigned department. When Daigle agreed, he
requested his superiors to transfer her to his department where she worked under
his supervision for another year. He testified that her sales were "fair" but that she
talked too much and did not devote sufficient time to her work. Without discussing
Daigle's alleged shortcomings with her and without her knowledge, he complained to
the personnel office about her work habits and recommended her discharge. There-
upon, Tressler testified, she was discharged.
Finnegan testified that in the fall of 1950, shortly after Daigle severed her employ-
ment with Respondent, he telephoned Daigle at Rosenfield's at the request of Boyd,
and made an appointment with her to discuss whether she would be interested in
returning to work for Respondent. He testified they talked in "generalities about
working" and he cautioned her that before he could make her a definite offer, it
would be necessary for him to obtain Boyd's approval.
Finnegan testified that he did not contact Daigle again until May 1953, when he
telephoned her at Rosenfield's at Stanfield's request 44 Stanfield, who had become
manager of Respondent's drapery department on February 16, 1953, told Finnegan
he was about to hire sales personnel and asked him if he could recommend a sales
clerk for that department. Finnegan mentioned Daigle, stating, according to Stan-
field, " . . . Mrs. Daigle could be of some help to you there in that she has been
assisting at Rosenfield's and selling also." A meeting was then arranged at Dalton's
coffee shop between Stanfield, Finnegan, and Daigle.
Stanfield testified that at this luncheon meeting, he made no offer of employment
to Daigle nor was the Union or her connection with it discussed. He testified that
after speaking a few minutes with her, he became "convinced" that he was not in-
terested in hiring her because of "her manner of approach" which was that of a brag-
gart, and furthermore, she wanted more money than they could afford to pay her.4'
Shortly after Daigle left Rosenfield's on August 2, 1953, she asked Stanfield for a
job but he gave her no definite answer. A few days later, Stanfield testified that he
received a telephone call from Daigle at his home. She asked him what Respond-
ent had decided with respect to her application for employment and according to
Stanfield, he told her that he was unable to give her a definite answer as he had not
yet discussed her application for employment with the company officials.
Later, Stanfield testified, he spoke to Daigle on the floor at the store at which time
he advised her, when she asked what was the status of her job application, that no
decision had been reached as yet. She said, according to Stanfield, "Well, I want
to know one thing, is my belonging to the Union keeping me from getting a job here?"
Stanfield then testified that his answer to this question was, "No, because, I didn't
even know you belonged to the Union." She said, "Well let me tell you I have at-
tended two meetings, I've paid my dues, I wanted to see what it was all about but I
want to tell you now I'm through with it." 98
Rose Waddell, an employee of Respondent's for the past 11 years and who lives
at the home of Daigle's daughter's mother-in-law, saw Daigle there one morning
in August 1953. She testified that while preparing to leave for work that morning,
44 Although on direct examination, Finnegan denied telephoning Daigle in February
1953, as she had testified, on his cross-examination, he admitted speaking to her with re-
spect to employment. At another point in his cross-examination, he acknowledged that it
was he who called Daigle in February 1953, when Stanfield, who had just become man-
ager of the drapery department, asked him if he knew anyone who might be interested in
obtaining employment in Respondent's drapery department.
45 Respondent contends, also, that the circumstances under which Daigle left Rosenfield's
disqualified her from being considered for employment by it. Stanfield, however, made it
clear in his testimony that the circumstances for her leaving Rosenfield's had nothing to
do with his decision not to hire her
4e The testimony concerning the timing of these events is ambiguous as to specific dates
so that the findings of fact made herein result from the Trial Examiner's attempt to recon-
cile the evidence and determine not only the chronological sequence in which these events
occurred but also the specific dates.
1248 DErCISIONS OF NATIONAL LABOR RELATIONS BOARD
she spoke to Daigle who told her that now that she was not working for Rosenfield's
she had applied for a job with Respondent and was about to call Mr. Stanfield to
ascertain if Dalton's had acted on her application. Waddell, who remained in the
room while Daigle telephoned, testified as follows:
Well, I can't say exactly the date, but it was in-between the time she left Rosen-
field's, the first part of August, I'd say, sometime in the second week of August,
in-between. I was at home, because, I lived with Mrs. Daigle's daughter's
mother-in-law. I have an apartment there, and I was fixing to go to work
and had my lunch and purse in the living room. The phone was in the living
room, and Mrs. Daigle said she was supposed to call Mr. Stanfield because
they had talked about hiring . . . and she did. And I heard one side of the
conversation.
She called him and talked and she was asking him about what the report was
on her getting work, and she said then, "Well, Mr. Stanfield, then it boils
down to because I belong to the Union they won't hire me?" That is what she
said. She said, "All right then, I thank you." Then she turned around and
said, "Waddell, they won't hire me because I belong to the Union." That is
what I heard, and my ride came then and I left.
It is against this background, that we proceed to determine the reason for the
Respondent's refusal to employ Daigle, and whether that reason is unlawfully dis-
criminatory. In explanation of its refusal to employ Daigle the Respondent asserts
that she was discharged in October 1950 for incompetence and slovenly work habits
which precluded it from rehiring her and furthermore, Stanfield, its supervisor,
was unimpressed with Daigle when he interviewed her in May 1953.
With this delineation of Respondent's reasons for refusing to hire Daigle, the
Trial Examiner has carefully searched the record for evidence which might indi-
cate that any of the foregoing factors were involved in the refusal to hire Daigle
and finds an absence of such evidence. The Trial Examiner is convinced that Daigle
was not refused employment for any of these reasons and furthermore, Stanfield
testified that he did not consider her leaving Rosenfield's in his decision not to hire
her. Moreover, there is no evidence Daigle had ever been advised that she was
inefficient or incompetent in the 3 years from 1947 to 1950, when she had been
,employed by Respondent.
Respondent places considerable emphasis on its Exhibit No. 10 which is a record
from its personnel files. This exhibit, which is a termination paper, is in the form
of a memorandum dated October 17, 1950, from its then director of personnel and
training , W. W. Harrell, to the payroll department. The form has typed on it the
following:
The above named employee [Inez W. Daigle] will terminate her employment
on October 17, 1950, by
resignation ( )
dismissal (x )
Also typed on this termination form is the following:
Reason for Resignation ( ) Dismissal (X)
or Transfer ( ) See personnel files.
(Requested by Mr. Tressler)
Remarks: Employee entitled to two weeks' pay in lieu of notice
The General Counsel objected at the hearing to the admission into evidence of
Respondent's Exhibit No. 10 upon which ruling was reserved. The exhibit is hereby
admitted under the established principle that records kept in the ordinary course of
business are admissible as evidence. Its admission, however, does not necessarily
imply the degree of probative value which may be ascribed to it because that de-
pends on whether the exhibit is discredited or shown not to be trustworthy. Con-
sequently, its admissibility as distinguished from its probative value are separate and
distinct considerations . Harrell, who was then personnel director and who prepared
this termination paper, was not produced by the Respondent as a witness nor was
any explanation offered at the hearing whether he was available to testify. Nor were
the personnel files referred to in the termination paper, supra, produced at the
hearing.47 The exhibit patently is self-serving and not the best evidence as Tressler,
47 This is not meant to imply that if they were produced at the hearing, such files would
have been admitted into evidence. This, of course, could not be determined until such
files were subject to examination.
THE DALTON COMPANY, INC. 1249
upon whose recommendation Daigle was alleged to have been discharged, testified at
the hearing and was cross-examined by the General Counsel. Then too, very little
weight is given to the testimony of Hardy, the present personnel director of Re-
spondent, whose testimony was necessarily vague and unreliable with respect to in-
terpreting this termination paper as he had nothing to do with its preparation. Nor
is the Trial Examiner convinced that there is a substantial guarantee of the termina-
tion paper's trustworthiness because the attendant circumstances, as well as the evi-
dence adduced in this case, contradict what it purports to represent so that no weight
is given to its probative value. The Respondent repeatedly contacting Daigle with
respect to her interest in accepting a job with it subsequent to the date of this termina-
tion paper conclusively shows, and Stanfield so testified, that the Respondent did
not consider the circumstances under which she left its employ in October 1950, as
disqualifying her from being considered for reemployment. It is concluded and
found, therefore, that this termination paper is lacking in credibility and without
weight as evidence. Accordingly, the Trial Examiner rejects as unreliable, in view
of this contradictory and inconsistent evidence, the entries on Daigle's termination
paper purporting to give the reason for the severance of her employment.
Tressler's testimony that it was he who recommended Daigle's discharge is not
only implausible but also inconsistent with the facts he testified to himself. It will
be recalled that it was Tressler who originally hired Daigle when he was manager of
the Respondent's gift department. Daigle worked under Tressler's supervision in the
gift department for 2 years when he was made manager of the drapery department.
When he was made manager of the drapery department, he requested his superiors to
transfer Daigle to his newly assigned department. It seems not only implausible but
improbable that he would have requested Daigle to be transferred to his department
if he were dissatisfied with her. He never expressed any criticism of Daigle's work
habits to her in the 3 years she worked under his supervision. In fact, he grudgingly
admitted at the hearing that she was a "fair" saleslady. Daigle's testimony that
she left Respondent's employ voluntarily in October 1950, is credited as this version
is consistent with the attendant circumstances in this case 48
In resolving the conflict in testimony wherein Daigle contends she left voluntarily
while Respondent claims she was discharged, the controlling fact is that Respondent
contacted her on at least three occasions subsequent to October 1950 with respect to
a job. Finnegan's testimony that he had spoken with Daigle at three various times
regarding a job shows that Respondent at no time subsequent to her leaving its
employ in October 1950, and prior to it learning of her union affiliation, considered
her disqualified for reemployment. Thus, if Daigle had been discharged in 1950 she
would not have been approached subsequently by Respondent on these three oc-
casions. Certainly, these repeated requests should dispel any question as to whether
Daigle was terminated for cause by Respondent in October 1950. It is concluded
therefore, that had Daigle been discharged for incompetency in October 1950, over-
tures would not have been made to her on three occasions thereafter to consider re-
employment with them.
Another persuasive consideration indicating Daigle was not discharged is the fact
that a competitor of Respondent's, Rosenfield's Department Store hired her immedi-
ately after she left Respondent's employ in October 1950. Evidence in the record
indicates that the retail stores in Baton Rouge exchange personnel information. It
can be inferred from this practice that if Daigle had been discharged for cause by
Respondent, she would not have been hired immediately thereafter by Rosenfield's.
Moreover, it is concluded from all the evidence that Respondent did not apply
objective criteria in deciding not to hire Daigle when she left Rosenfield's and applied
for a job with them.49 Consequently, it is found that its refusal to hire Daigle was
based not on an absence of qualifications for the job but rather on her union mem-
bership. In so finding, reliance is made upon the absence of any credible evidence
in the record indicating Daigle was discharged in October 1950; the conviction that
there is not a substantial guarantee of the trustworthiness of Respondent's Exhibit
No. 10 which purported to show the reason for Daigle's discharge, the nonexistence
of any reason compelling the disqualification of Daigle for employment, the existence
of a job for which she was manifestly qualified,50 the absence of any reason which
u Universal Camera Corp. v. N. L R. B., 340 U. S. 474 at 495, 496; N. L. R. B. v James
Thompson & Co , Inc., 208 F. 2d 743 (C. A. 2) ; N. L. R. B v. Chataqua Hardware Corp.,
208 F . 2d 750 ('C. A. 2).
49 It is found that Daigle was refused employment on August 11, when she telephoned
Stanfield at his home and was told by him that Respondent was not interested in hiring her.
60 Respondent claims that the General Counsel did not show that it had any job open-
ings available for which Daigle was qualified. However, it is uncontradicted that after
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precluded Daigle's employment , the union animus displayed by Respondent, and
the spurious explanation offered by the Respondent for its refusal to employ Daigle.
All these indicia convince the Trial Examiner that the Respondent had established a
policy aimed at excluding from its department store job, applicants who were union
members and that Respondent 's refusal to employ Daigle was an unlawful applica-
tion of this policy.
Further doubt as to the Respondent 's reason for refusing to hire Daigle is dispelled
when Waddell's testimony is considered which corroborates Daigle's testimony that
Stanfield told her that Respondent would not hire her because of her union affiliation.
Waddell, an employee of Respondent for the past 11 years, impressed the Trial
Examiner as a credible witness.51 She gave the impression of being scrupulously
objective and honest in her testimony although the tension under which she testified
at the hearing clearly was evident . This tension can be appreciated when it is
recalled that she is presently employed by Respondent.
The version of Daigle as to what occurred at the luncheon meeting in May 1953
and in her telephone conversation with Stanfield on August 11, 1953, are accepted
as the more accurate accounts of what transpired on both those occasions. Her
testimony , corroborated , in part , by Waddell's uncontradicted testimony , considered
in conjunction with the entire background of evidence adduced in this case , merits
belief.
The Trial Examiner is satisfied that the foregoing facts and circumstances suffi-
ciently expose that the Respondent 's motivation for its refusal to employ Daigle was
discriminatorily motivated in the light of the antiunion pattern established by the
record as a whole. The true reason for this conduct becomes even more evident
when viewed against the background of events which occurred prior to the May
luncheon meeting . These events which included Respondent 's animus toward the
Union , its record of interrogation , its coercive statements , promises of benefits, and
threats of reprisal if the Union were not defeated in its organization drive, and its
absence of a reasonable explanation for its refusal to hire Daigle, persuade the Trial
Examiner that the real reason for Respondent 's conduct was its determination to
defeat the union campaign to organize the store . In fact, it is difficult to understand,
under all the circumstances of this case, except on the theory of discrimination and
an effort to discourage membership in the Union , why the Respondent refused to
hire Daigle.
It is not essential in order to make a finding of an unfair labor practice under
Section 8 ( a) (3) of the Act that the status of an employee be held by the person
against whom the alleged discrimination has been directed for this provision of
the Act has express application to a discrimination as to hire.52 If an applicant for
employment is refused employment because of union membership , such refusal
constitutes an unfair labor practice within the meaning of Section 8 (a) (3) because
such refusal has the effect of discouraging membership in the Union and thereby
infringes upon the rights of employees to self-organization and collective bargaining.53
It is, therefore , concluded and found that by the discriminatory refusal to hire
Daigle, Respondent discouraged membership in the Union in violation of Section
8 (a) (3) of the Act By the same act, Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by Section 7 of the Act
and thereby violated Section 8 (a) (1) of the Act. It is found, therefore, that
Respondent 's discriminatory refusal to employ Daigle on August 11 , 1953, violated
Section 8 (a) (3) and ( 1) of the Act 54
D. Alleged discriminatory restrictions imposed on Murray Jolissaint
The General Counsel alleges that Respondent discriminatorily imposed restrictions
on Murray Jolissaint , an officer of the Union , who is employed as a salesman in its
men's clothing department . The amended complaint avers that Jolissaint was con-
fined to a limited area of Respondent's premises denying him the privilege of leaving
Daigle applied for a job she was never told there was not a job available . In fact, Stan-
field led her to believe up until August 11, that her application was under active considera-
tion by the Respondent.
11 N. L R B v. Dinion Coil Co, Inc , 201 F. 2d 484 , pp. 487-490 (C. A. 2) ; N. L. R. B. v.
W. C. Nabors Go, 196 F. 2d 272, 275 ( C. A. 5), cert. denied 344 U. S. 865 ; N. L. R. B. v,
Poultry Enterprises, Inc, 207 F . 2d 522, 524 (C A 5)
52 N L R B v. George D. Auchter Co., 209 F. 2d 273 (C. A 5).
53 Phelps -Dodge Corp . v. N. L. R B , 313 U S. 177.
54 Phelps-Dodge Corp. v . N. L. R. B., supra.
THE DALTON COMPANY, INC. 1251
the store to obtain refreshments during daily morning and afternoon coffee periods
because of his membership in and activities on behalf of the Union.
In order to refute this charge, Respondent introduced in evidence, two memoranda,
dated November 25, 1952, and January 13, 1953, from it to its employees prohibiting
them from leaving the store during rest periods except during the lunch hour. The
General Counsel offered evidence to show that Jolissaint's fellow-employees did
leave the store during their coffee periods. The burden of proof is upon the General
Counsel to prove the alleged unfair labor practice of the employer and where dis-
crimination, as here, is charged, then he must establish by a preponderance of the
evidence that such conduct was discriminatory. The onus was on the General Counsel
to show that Respondent was aware that some of its employees were violating its
rule against leaving the store during rest periods. Although this question is not free
from doubt, the Trial Examiner does not believe that the preponderance of the evi-
dence establishes this element. Accordingly, it is recommended that the allegation
of the complaint with respect to this incident be dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section II, above, occurring in con-
nection with the operations of Respondent described in section 1, above, have a close,
intimate, and substantial relationship 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.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Maybelle Jolissaint by discharging her on April 6, 1953, and
denying her reinstatement because of her union activities and membership. It is
found further, that when Hardy told Maybelle Jolissaint on April 4 that due to a
decrease in business, Respondent would be unable to employ her from I p. in. to
5:30 p. in., 6 days a week but would, instead, promise her 3 full days' employment
each week that this was a prelude to discharging her which it did on April 6. This
conclusion is confirmed when it is considered that Respondent did not call her after
April 6, the last day she worked, and that during this same period of time, it employed
other part-time employees. Thus, the record clearly indicates that advising her on
April 4 that thereafter she would not be employed part time 6 days a week was con-
ceived and executed as part of the same plan to ultimately discharge her which it did
on April 6. It will be recommended, therefore, in order to restore the status quo
that the Respondent offer employment to Maybelle Jolissaint 6 days a week from
1 p. in. to 5:30 p. in. each day in work of the nature she had done previously for
Respondent.55
Having found further that Respondent has discriminated with respect to the hire
of Inez W. Daigle, it will be recommended that Respondent offer her employment
without prejudice to seniority or rights she would otherwise have enjoyed from
August 11, 1953, the date employment was discriminatorily denied.
It is further recommended that Respondent make whole Maybelle Jolissaint and
Inez W. Daigle by payment to each of them of a sum of money equal to that which
they normally would have earned as wages from the date of the discrimination against
them to the date, in the case of Jolissaint, to the offer of reinstatement, and, in the
case of Daigle, of employment, less their net earnings during said periods; 56 the
back pay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289, and approved in N. L. R. B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U. S. 344.
Inasmuch as the discharge of employees, as well as the refusal to hire job appli-
cants, for reasons of union affiliation or concerted activity has been regarded by the
courts as one of the most effective methods of defeating the exercise by employees
of their right to self-organization, the Trial Examiner is of the belief that there is
danger that the commission of unfair labor practices generally is to be anticipated
s; Respondent's contention that the remedy, if any, must take into consideration May-
belle Jolissaint's "temporary" status is untenable. "For the purpose of the Act, it is im-
material that employment Is at will and terminable at any time by either party."
N. L R B v. Waterman Steamship Corp., 309 U. S. 206, 219
50 Crossett Lumber Co., 8 NLRB 440; Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
334811-55-vol. 109-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Respondent 's unlawful conduct in the past . N. L. R. B . v. Entwistle Mfg. Co.,
120 F . 2d 532 (C. A. 4). It will be recommended , therefore, that Respondent be
required to cease and desist from in any manner interfering with , restraining, or
coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.
May Department Stores v. N. L. R. B., 326 U. S. 376.
Upon the basis of the foregoing findings of fact and upon the entire record in the
,case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent , The Dalton Company, Inc ., a corporation , is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. Retail Clerks' Union, Local No. 1691 of the Retail Clerks International Asso-
ciation , AFL, is a labor organization within the meaning of Section 2 ( 5) 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 (a) (1) of the
Act.
4. By discriminating with regard to the hire and tenure of employment of Maybelle
Jolissaint , and with respect to the hire of Inez W. Daigle, Respondent discouraged
membership in the Union and committed an unfair labor practice within the meaning
of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning union membership , senti-
ments, activities , or meetings ; threaten employees with reprisals because of union
activities ; or promise them benefits for refraining from such activities ; or in any
other manner interfere with, restrain , or coerce our employees in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL NOT discourage membership in Retail Clerks' Union Local No. 1691
of the Retail Clerks International Association , AFL, or in any other labor organ-
ization , by discharging and refusing to reinstate any of our employees , by deny-
ing employment to applicants , or by discrimination in any manner in regard to
their hire and tenure of employment or any term or condition of employment.
WE WILL offer to Maybelle Jolissaint immediate and full reinstatement to her
former or substantially equivalent position without prejudice to any seniority
or other rights or privileges previously enjoyed , and make her whole for any
loss of pay suffered as a result of the discrimination.
WE WILL offer to Inez W. Daigle immediate and full employment in the posi-
tion discriminatorily denied her or in a substantially equivalent position with-
out prejudice to any seniority or other rights and privileges she would have
enjoyed in the absence of our discrimination against her , and make her whole
for any loss of pay suffered as a result of our discrimination against her.
WE WILL NOT discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee or any qualified appli-
cant for employment because of membership in or activity on behalf of any
labor organization.
All our employees are free to become or remain , or to refrain from becoming or
remaining members of Retail Clerks' Union , Local No. 1691 of the Retail Clerks
International Association , AFL, or any other labor organization except to the extent
that this right may be affected by an agreement in conformity with Section 8 (a)
(3) of the Act.
THE DALTON COMPANY, INC.,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced , or covered by any other material.