Women's Wear Co.

National Labor Relations Board - Board Decisions

Aug 20, 1945

63 N.L.R.B. 405 (N.L.R.B. 1945)

In the Matter of WOMEN'S WEAR COMPANY and NEWSPAPER GUILD OF
NEW YoRK
Case No. 2-C-5716.Decided August 20,19-115
DECISION
AND
ORDER
On March 21, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and ,take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report, and a supporting brief. The Board has con-
sidered the rulings made by the Trial Examiner at the hearing and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. Oral argument, in which the respondent and the
Guild participated, was held before the Board at Washington, D. C.,
on July 31, 1945. The Board has considered the Intermediate Re-
port, the respondent's exceptions and brief, and the entire record in
the case, Sand hereby adopts the findings, conclusions and recommenda-
tions of the Trial Examiner, with the exception 1 and addition noted
below.
We agree with the Trial Examiner that the respondent discrimina-
torily discharged Loretta Bogoff, within the meaning of the Act.
However, we are not unmindful of the respondent's evidence indicat-
ing that Bogoff was not an entirely satisfactory employee for as long
as a year before her discharge. But, in our opinion, it is highly sig-
nificant that until Bogoff joined and became active in the Guild, her
asserted unsatisfactory work and personality defects were in affect
condoned and not regarded as of sufficient consequence to warrant
her discharge.2 Under the circumstances and in view of the respond-
1 In the Intermediate Report, the Trial Examiner said that Vreeland did not inform
Fairchild of a certain complaint by Koch concerning Bogoff. However , the record indicates
that Fairchild was apprised of this complaint.
2 See Matter of New York Handkerchief Manufacturing Com pany, 16 N. L R. B..532.
enf'd 114 F . ( 2d) 144 (C. C. A. 7), cert. denied 311 U. S. 704.
63 N. L. R. B., No. 61.
4O5
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's evident animus against the Guild, as revealed by the Intermedi-
ate Report, we are satisfied and find that the respondent seized upon
Bogoff's possible shortcomings as pretext for her discharge, and that
the real reason was her Guild activity.
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 respondent, Women's Wear Company,
New York City, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Newspaper Guild of New York,
or any other labor organization of its employees, by discharging or
refusing to reinstate .any of its employees, or by discriminating in
any other manner in regard to their hire and tenure of employment, or
any terms or conditions of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Newspaper Guild of New York, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purpose of collective bargaining, or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(a) Offer to Loretta Bogoff immediate and full reinstatement to
her former or a substantially equivalent position, without prejudice to
her seniority and other rights and privileges;
(b) Make whole Loretta Bogoff for any loss of pay she has suffered
by reason of the respondent's discrimination against her, by payment
to her of a sum of money equal to the amount which she would nor-
mally have earned as wages from the date of her discharge to the date
,of the respondent's offer of reinstatement, less her net earnings during
:said period;
(c) Post at its plant at New York City, copies of the notice attached
to the Intermediate Report herein marked Appendix A.3 Copies of
said notice, to be furnished by the Regional Director of the Second
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are
3 Said notice, however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "RECOMMENDATIONS OF A TRIAL EXAMINER " and substi-
tuting in lieu thereof the words "A DECISION AND ORDER."
WOMEN'S WEAR COMPANY 407
customarily posted. Reasonable steps shall be taken by the respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material;
(d) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. David H. Werthei , for the Board.
Townley, Updike & Carter, by Mr J. Howard Carter, of New York , N. Y., for
the respondent.
Witt & Cammei, by Mi. Abraham Levin, of New York, N. y, for the Guild.
STATEMENT OF THE CASE
Upon a charge duly filed on December 8, 1944, by Newspaper Guild of New
Yoik, affiliated with the Congress of Industrial Organizations, herein called the
Guild, the National Labor Relations Board, herein called the Board, by the
Regional Director for the Second Region (New York, New York), issued its com-
plaint, dated December 11, 1944, against Women's Wear Company, New York,
New York, herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the At. Copies of the complaint
accompanied by notice of hearing thereon, were duly served upon the respondent
and the Guild.
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that from about February 1, 1944, to the date of the issuance of the said
complaint, the respondent has disparaged and expressed disapproval of the
Guild; interrogated its employees concerning the activities of the Guild; urged,
persuaded and warned its employees to refrain from assisting, becoming or
remaining members of the Guild ; and threatened its employees with discharge
or other reprisals if they joined or assisted the Guild; (2) that on or about June
29, 1944, the respondent discharged Loretta Bogoff and thereafter refused to
reinstate her because she joined or assisted the Guild or engaged in other con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection; and (3) that by the aforesaid acts, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
On December 23, 1944, the respondent filed with the Board a request for a bill
of particulars in respect to the allegations contained in paragraph 8 of the
complaint. This request was referred to the Trial Examiner who had been duly
designated by the Chief Trial Examiner to act in the case.' The Trial Examiner
granted the respondent's request in part, and pursuant to his telegraphic instruc-
tions dated December 30, 1944, the Board, on January 2, 1945, duly served upon
the respondent and the Guild a bill of particulars as ordered by the Trial
Examiner.
'Trial Examiner Horace A. Ruckel was duly designated on December 29, 1944, to act
in the case.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 30, 1944, the respondent filed its answer , admitting certain allega-
tions of the complaint in respect to the character and operation of its business,
and that it discharged Loretta Bogoff on or about the date alleged in the complaint
and thereafter refused to reinstate her, but denied the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held at New York, New York , from January
4 to 10, 1944 , before the undersigned , W. P. Webb, the Trial Examiner duly
designated by the Chief Trial Examiner . The Board , the respondent and the
Guild were represented by counsel and participated in the hearing . Full oppor-
tunity to be beard, to examine and cross -examine witnesses and to introduce
evidence bearing on the issues was afforded all parties.
At the beginning of the hearing, counsel for the respondent took an exception
to the ruling of Trial Examiner Ruckel in which he granted only in part the
respondent 's request for a bill of particulars , and moved that an additional bill
of particulars be furnished by the Board. The motion was denied by the under-
signed.
At the conclusion of the Board's case and again at the conclusion of the hearing,
the respondent 's counsel moved to dismiss the entire complaint . Ruling on these
motions were reserved . They are now denied by the undersigned.
At the conclusion of the hearing, Board's counsel moved to conform the plead-
ings to the proof in respect to minor inaccuracies such as dates , the spelling of
names, etc . The motion was granted by the undersigned.
Opportunity to argue orally before, and to file briefs with, the Trial Examiner
was waived by the parties.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent , Women's Wear Company, is a New York corporation having
its principal office and place of business at 8 East 13th Street, New York, New
York, where it is engaged in the business of editing, publishing, distributing and
selling a daily trade newspaper known as Women 's Wear Daily. This publication
has a daily circulation of approximately 44,000 copies, of which about 75 percent
is sold and distributed outside of the State of New York . The principal raw
materials used in the preparation of this publication consist of newsprint and
ink, the annual value of which exceeds $50,000, of which, approximately 50
percent is obtained from sources outside of the State of New York. The printing
of this publication is done by Fairchild Press, Inc., an affiliate of the respondent,
which is located in the same premises as the respondent. The respondent concedes
that, for the purposes of the instant proceeding , it is engaged in commerce within
the meaning of the Act?
II. THE ORGANIZATION INVOLVED
Newspaper Guild of New York is a labor organization affiliated with the Con-
gress of Industrial Organizations , admitting to membership employees of the
respondent!
8 The foregoing facts were stipulated by the parties The instant proceeding is concerned
only with the employees of the respondent , Women ' s Wear Company The companies affil-
iated with the respondent are as follows Fairchild Publications Corporation ; Fairchild
Advertising , Inc ; Fairchild Publishing Company ; Fairchild Press, Inc. and Daily Trade
Record Company of New York
8 Newspaper Guild of New York is chartered by the American Newspaper Guild ( C I. 0 ).
WOMEN'S WEAR COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Introduction
409
In January 1944, the Guild initiated an organizational campaign among; the
employees of the respondent and certain employees of its affiliated companies,
all of whom were located in the premises at 8 East 13th Street, New York City.
At a meeting of these employees held at the Guild headquarters, 40 East 40th
Street, New York City, on February 18, 1944, temporary officers for conducting
the preliminary stages of organization were elected. These were Jesse Dean,
editorial department, chairman; June de Vos, editorial department, secretary;
Vivian Miller, advertising service department, treasurer ; Diana Roman, chair-
woman for the second floor ; and Loretta Bogoff, chairwoman for the fifth floor.
An account of this meeting was published in the February 22, 1944, issue of the
Guild pamphlet, known as "Markup", which was published by the Fairchild Unit
of the Guild. This pamphlet was distributed to the employees throughout the
plant and, at least as early as February 1944, the respondent's employees, super-
visors and executives knew that the Guild was seeking to organize the plant,
and they also knew who had been elected as Guild officers. The Guild succeeded
in securing a- fair number of members among the employees. The Guild has
never had any contractual relations with the respondent.
B. Interference, restraint, and coercion
In the first part of February 1944, Saul Diamond, the respondent's production
coordinator and administrative manager,4 took over active control of the publi-
cations department of the respondent, as the manager of that department had
quit. Diamond's job was to get the department better organized and to install
a new manager and then to gradually turn the department over to him, which
he did sometime in September 1944' According to Diamond, during the time
he was managing that department, he had a number of meetings with the-
employees of the department. His testimony in this connection reads as follows:
"I used to call meetings whenever I thought there was some reason for such a
Ineeting, to acquaint the people with some subjects or action or activity of the
department." Soon after taking over the publications department, Diamond
became aware of the efforts of the Guild to organize the plant.
In the early part of March Diamond called a meeting of the employees in the
publications department, at which he discussed the pending wage increase a and
the activities of the Guild. In respect to what Diamond said at that meeting,
the testimony of Judith Lutinger,' a former employee in the publications depart-
ment, which is credited by the undersigned, reads as follows :
First he [Diamond] told us something about the increases that were sup-
posed to come through from the War Labor Board, I believe. That is, they
' No question was raised as to the supervisory status of Diamond. He testified that he
had authority to hire and fire employees
' The new manager was named Pancoast He did not testify at the hearing.
' According to Edgar Fairchild, assistant treasurer and executive of the respondent, on
September 1, 1943, he filed an application with the National War Labor Board for a gen-
eral increase in wages for the employees of the respondent and affiliated companies ; that
after several months the,application was referred to the Chicago office of N. W. L. B.;
that he spent practically the entire month of March in Chicago endeavoring to expedite
its approval, and that the approval of his application was delayed, at least a week, by
the action of a representative of the Guild ; that upon his return to the plant in the latter
part of March, he informed Diamond of these facts The application was granted by the
N. W. L B. on April 4, 1944, and became retroactive to September 1, 1943.
+Lutinger was employed in the respondent's publications department from November
1943, to May 2, 1944.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARII
had been 0 K.'d by the War Labor Board, and then he went on to talk about
the Guild. He said that the Guild would attempt to take credit for it, and
then he said the Guild had sent somebody to Chicago to interfere with the
O. K. of the War Labor Board going through. Then he made several other
remarks about the honor of the Guild . . . He said that their only interest
was, I believe, to get $500 a month in dues and that they really could not
get anything for the employees that the Fairchilds would give them, and he
said that certain sick leaves and things like that, that the Fairchilds had
been very generous about, might be curtailed if the Guild got in . . . certain
other benefits that we had might be curtailed if the Guild got in . . . and I
cannot remember very distinctly what else, but things of that sort . . . he
said they [the Guild] tried all sorts of tricks to make people join the union
. . . he said that he did not know who in the department belonged to the
Guild, but he said that if we did belong to the Guild, we should not be afraid
to leave it, even though we would not get our dues back.'
In the latter part of March Diamond had another meeting with the employees
of the publication department, at which he discussed the Guild and answered
various questions about the Guild which were propounded by the employees. The
meeting occurred in the publications department during the lunch period8 Just
as Lutinger and employee* Marion Greene 10 came into the publications department
from lunch about 1: 00 p. in. Diamond, who had been talking to a number of the
employees, said that "if anyone were found organizing in the office, he would fire
them immediately." Diamond then repeated some of the remarks about the Guild
that he had made at the previous meeting; that the Guild had tried all sorts of
schemes to get people to join it, and that the Guild was getting more out of it
than the employees. At that, juncture, the employees who were present at the
beginning of the meeting, went out to lunch. According to Lutinger, Greene then
asked Diamond to repeat what he had said to the other girls before she and
Lutinger came in. Diamond replied that some one had asked him what he thought
of the Guild and that he was opposed to the Guild organizing the employees ; that
it could not do any of the things it claimed for the employees ; that the Guild's
methods were "dirty"; that the wage increase would have been approved much
sooner if the Guild had not interfered with it; and that any one found organizing
in the office would be fired"
As related above, Diamond admitted that while he was in charge of the publi-
cations department, he frequently called meetings of the employees to discuss
various things. He further admitted that the employees asked him many ques-
tions, and that several employees had requested him to discuss the Guild with
them and that he told them he did not have time to discuss it with each one
individually, but if they would get together some time and let him know he would
talk to them; and that later he did have a discussion with them Diamond's
testimony in this connection reads as follows :
I told the people the reason we were together was because a number of
people in that group had asked me to answer some questions in relation to
their consideration of the Guild, and that I pointed out they were free to
3 Diamond denied part of this testimony , however , he was a "shifting" and unreliable
witness and the undersigned does not credit his denial.
9 Some of the employees in this department went to lunch from 12 : 00 noon to 1 : 00 p. in.
and others from 1 • 00 p. in to 2 • 00 p . in depending upon what time they began work in
the morning
10 Greene was employed in the publications department from January 1944 to November
1944
31 These findings are based upon the credible testimony of Lutinger . Part of this testi-
mony was denied by Diamond , however , his denial is not credited by the undersigned.
WOMEN'S WEAR COMPANY 411
join or refuse to join the Guild as they wished, as they saw fit. However, if
they felt they were confused and they wanted to ask me any questions about
it, I would answer them personally ; in other words, I was not talking to
them and I made this point, as a member of the company or for the company.
They had requested this of me personally.
Diamond admitted that in reply to questions, he told the employees that the
season why the wage increase had not been approved was on account of a number
.of delays, one of which he understood, was caused by the intervention of the
Guild ; 12 that if the Guild organized the plant, they would have to pay dues to the
Guild and they would get nothing in return, as the respondent was generous in
the matter of vacations, sick leave, hours of work, etc. Diamond also admitted
that he was asked by the employees if they would get higher wages if they joined
the Guild, and that he replied he did not think they would ; and that the respond-
ent was then paying higher wages than another company which had a contract
with the Guild. He was also asked if they would get back the dues paid to the
Guild if the Guild failed to organize the plant. He replied that, as far as he
knew, they would not Diamond denied having told the employees that the Guild
was indulging in all sorts of tricks to make people join it ; that those who belonged
to the Guild should not be afraid to leave it ; that the Guild was only interested
in getting $500 a month in dues ; or that Fairchild was opposed to the Guild
organizing the employees. Diamond admitted, however, that the employees
asked him a good many questions and that he could not remember all of them or
the answers. His testimony in this respect reads as follows :
I don't remember all the questions and answers. I can recall a few, but
they fired a lot of questions at me . . . It is hard for me to remember what
they did fire at me because I took no pains to remember it.
The respondent called as witnesses several employees who had worked in the
publications department during the period that Diamond was manager of that
department. They testified in respect to Diamond's meetings and conversations
with the employees in March 1944, concerning the activities of the Guild. They
could not remember just when such meetings,had occurred, nor what Diamond
had said, but they were, however, very definite and certain in their testimony that
Diamond did not make certain statements, or that they did not hear him make
such statements On cross-examination, when they were asked to state just
what questions the employees had asked and what replies Diamond had made to
such questions, their testimony was vague, indefinite and uncertain. They
agreed, however, that Diamond did discuss the Guild with them. Diamond,
himself testified that he could not remember the questions and his answers.
Employee Renee Wax, called by the respondent, testified that Diamond had
said to the employees that no employee could campaign during office hours, and
that circulars could be sent by mail; that if the employees saw any benefits in
the. Guild, they could join it, otherwise they were not "obligated" to join it ;
and that they would not have to pay any dues unless the Guild became "effec-
tive". When Wax complained to Diamond that she had been solicited during
working hours to join the Guild, he told her that if she were annoyed by Guild
members to inform him, and that campaigning should be done "outside at a
designated meeting place" According to employee Florence Goldberg, called
by the respondent, Diamond was asked by the employees if they could "get out
of paying Guild dues" if they wanted to, and he replied that if they had paid
Guild dues and later desired to withdraw from the Guild `-`all they had to do was
11 Fairchild, upon his return from Chicago had reported that to Diamond
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to stop paying dues." Employee Roy Harriman, called by the respondent, testi-
fied that he heard Diamond tell the employees at a meeting in the publications
department that anyone caught soliciting or carrying on any activities not
related to work would be fired.
The undersigned finds that by the anti-Guild remarks of Saul Diamond, as
found above, which are attributable to the respondent," the respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The discriminatory discharge of Loretta Bogoff
Loretta Bogoff was employed on a temporary basis in December 1942 as a
stenographer in Retailing Home Furnishings, a publication owned and published
by the respondent, at 8 East 13th Street, New York City. She began on a salary
of $23.00 a week. On January 13, 1943, she was given a permanent position, at
the same salary, in the advertising service department of the respondent by
Brain Freeland, the manager of that department. Her principal duties were
typing advertising copy from rough drafts made by the advertising copy writers,"
filing, billing, answering the telephone and other general office work. There
was practically no stenographic work required in this department. Bogoff han-
dled from 200 to 300 bills each month. She did considerable filing, but the files
were not under her exclusive control. Any employee in the department could
remove and replace files without consulting Bogoff. After about 1 month,
Bogoff's salary was increased to $2500 a week on the recommendation of Free-
land. In April 1943, Bogoff received an offer of about $34 00 a week from the
United States Civil Service Commission as a stenographer." However, she
elected to remain with the respondent upon Freeland's promise to increase her
salary to $3000, which was done on July 1, 1943, retroactive to May 1, 1943. On
December 25, 1943, Freeland gave Bogoff a Christmas present of $1000, in
appreciation of her "good humor" and "composure" in the performance of her
work. He also told her that if he had been "sort of trying during the year"
to overlook it, as all of them had been working under tension. On January 13,
1944, the first anniversary of her employment in Freeland's department, she
mentioned it to him and he told her that it was a "lucky 13 all around."
A few days prior to the organizational meeting of the Guild on February 18,
1944, a Guild circular, advertising the meeting, was distributed among the
respondent's employees. Bogoff received a copy and promptly showed it to Free-
land, and a discussion of the Guild and unions in general followed. Freeland
said that he did not think much of the Typographical Union which had a contract
covering the employees on the sixth floor, which was the composing room, because
"men come in drunk on the job and they were not able to be fired because they
belonged to the union;" and that one employee "had quit as soon as the union
came in because he could not make as much with the union around as he did
previously." Freeland asked Bogoff if she was going to the Guild meeting.
When she replied in the affirmative, Freeland said, "Miss Bogoff, go to the meet-
ing, by all means, and let me know what happens. It will be very interesting
to know." When Bogoff returned to work on Monday, February 21,18 Freeland
33 See footnote 4, supra.
14 Each advertising copy writer in the advertising service department had a typewriter
and made rough drafts of his advertising copy which were given to Bogoff for typing the
copy to be submitted to the advertiser.
1E She had previously passed the U. S Civil Service Examination for stenographers.
The Guild meeting was on Friday , February 18, 1944 Bogoff 's department did not
work on Saturdays , except on special occasions.
WOMEN'S WEAR COMPANY 413
asked her if she had attended the Guild meeting She replied in the affirmative.
Freeland said, "Well, what happened? How many people were present?" Bogoff
gave him a general account of what happened, and told him that she had joined
the Guild and had been elected chairwoman for the fifth floor of the respondent's
plant An account of the Guild meeting, giving the names of the officers elected,
including Bogoff, appeared in the February 22, issue of "Markup". Copies of
this issue were distributed throughout the respondent's plant. Bogoff immedi-
ately became every active in soliciting membership in the Guild. In fact, she
was by far the most active employee in this respect. Within 4 or 5 weeks after
joining the Guild, she secured 50 or more members for the Guild among the em-
ployees in the plant. She also distributed copies of "Markup" in the plant. In
the latter part of March Bogoff said to Freeland "Of late I notice your whole
attitude toward me had changed. What is it due to? Is it because I have be-
come active for the Guild?" Freeland replied, "Well, how do you think it looks
when there are two people from the department active in the Guild when it is
one of the smallest departments in the building?"" Bogoff told him that her
Guild activity should have no bearing upon their business relationship. Free-
land replied, "You stuck your neck out and you will have to take the conse-
quences." 18 About this time, Freeland' informed Bogoff that she could not dis-
tribute "Markup" in the plant anymore, as it was contrary to the respondent's
policy to distribute in the plant any printed matter which came from the outside.
Bogoff asked him if she could do it on her own time and he replied that she could
not. L'ogoff asked Freeland if that was an official warning and he said that it
was After that, the Guild distributed "Markup" to its members by mail.
Bogoff received her copy of "Markup" by mail at her office. On one occasion,
she left a copy on her desk and Freeland saw it. He told her to remove it
immediately or he would tear it up.18
Freeland testified that he took it upon himself to prohibit any of the employees
in his department from distributing "Markup" in the plant whether on their own
time or not.
According to Fairchild, an executive of the respondent, he was informed in
early April that the Guild had filed charges with the Board against Fairchild
Publications Corporation, an affiliate of the respondent, alleging interference,
restraint, and coercion in connection with the distribution of "Markup" in the
plant, and that Bogoff had made certain statements at the Regional Office in
regard to these charges 20
In April Bogoff, in the course of her duties, had occasion to go into another
department of the plant, and while there she spoke to Mrs. Lack, an employee,
about the latter's son who had been reported missing in action. Bogoff then
went down to the ladies room on the next floor and spoke to another employee
who also knew Mrs. Lack's son. When Bogoff returned to her office, she found
a telephone call for Freeland from Miss Magliano, assistant advertising man-
ager. Freeland was out of the office at the time, and when he returned, Bogoff=
advised him of the call. After talking to Magliano, Freeland accused Bogoff[
of going off the floor to engage in Guild activities. Freeland further said to Bogoff
"There were approximately 7 employees in the advertising service department. No
doubt Freeland was referring to employee Vivian Miller, a copy writer in his department
She had been elected treasurer of the Guild. However, she never became active in the
Guild's organizational campaign.
18 Freeland's denial of having said that to Bogoff is not credited and the undersigned
finds that he made the statement substantially as testified to by Bogoff.
'fl The foregoing findings are based upon the credible testimony of Bogoff.
21 The record does not disclose the present status of this case. The charges were not di-
rected against the respondent.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"You and your ilk have made yourself obnoxious in the eyes of all reasonable
thinking people." 21
Fairchild testified that in April or May he was informed by Miss Magliano,22
that one of the employees in her department had quit her job because she had
been told by Bogoff that the respondent could not continue to pay the wages it
was then paying ; that he immediately contacted Bogoff by telephone and told
her "That if they 23 did not stop spreading stories that would probably ruin the
credit standing of the organization , [ the respondent ] that I would take legal
steps to stop it." Fairchild further testified that Bogoff endeavored to ask him
what he meant , but that he did not give her a chance to say anything . He told
her that was all he had to say, and then hung up the receiver . Fairchild admitted
that he did not give Bogoff any explanation whatsoever as to why he had said that
to her. He did not tell her what he had heard or who had told him . He further
admitted that he did not investigate the truth or falsity of Magliano 's statement,
and that he had no proof other than Magliano 's word that Bogoff had ever made
such a statement , also that he did not give Bogoff an opportunity to either deny
or admit it.
According to Freeland , in April while reviewing the statistical report 21 for the
preceding month which had been prepared by Bogoff, he discovered an error
in the lineage figures. As a copy of the report had already been sent to Fair-
child's office , Freeland sent Fairchild a memorandum showing the correct figures,
also apologizing for not 'having checked the report before sending it to him. How-
ever, he endeavored to place the blame on Bogoff The error consisted solely
in reporting more lineage than was actually sold The credit in dollars was
correct. It was Freeland 's duty to check these reports before releasing them ;
however, as they were of such minor importance , he did not always do so. Bogoff
had been previously told by Freeland that these reports were not important, but
' as they were required by management , they had been preparing them for years.
•It is significant that Bogoff had been preparing these reports for the past 14
months, but not until after she became active in the Guild, had Freeland ever
made any check of them after they had been released. Freeland admitted that
part of these statistical reports could have been dispensed with and the informa-
tion obtained elsewhere , also that he always allowed a certain margin of error
in them and that he himself had made errors in them. Bogoff admitted the error.
Her testimony in regard to this incident , which is credited by the undersigned,
reads as follows:
When I went to compare the lineage of all the publications of which I
make a report of, what the service department had serviced during that
month, the 1944 figures were correct but when I went to copy the 1943 figures
of the corresponding month, the first three figures were right but my eyes
slipped. I copied the 1942 figures for the last one, the total of 1942 ... Later,
about 17 days later, when he [Freeland ] was going over the reports, he
called me over and he said , "Miss Bogoff , if you add these figures , you will
see they don't jibe, that you made an error."
21 This finding is based upon the credible testimony of Bogoff.
22 Alagliano did not testify at the hearing and the respondent gave no reason for not
calling her.
23 Fairchild did not explain why he used the word "they" in connection with what he
,told Bogoff
24 A statistical report was prepared each month in the advertising service department for
the preceding month , showing the lineage sold and the value in dollars . Copies were
retained in the department and.also sent to Fairchild ' s office after they had been checked
by Freeland . These reports were for statistical purposes only.
WOMEN'S WEAR COMPANY 415
Bogoff corrected the figures and gave the report gack to Freeland, and nothing
more was said about it to her by anyone.
Fairchild testified that in March or April Freeland informed him that he was
having "difficulty" with Bogoff, and "wanted to know what he should do as
far as severing connections were concerned ;" that he told Freeland it would
be inadvisable to discharge Bogoff because it would appear that it was being
done on account of her Guild activities ; that Freeland did not tell him wbat
"difficulty" he was having with Bogoff and that he did not ask him what he
meant by it. Fairchild further testified that on that occasion, Freeland told
him that Bogoff had been distributing "Markup" in the plant. Freeland admitted
that this was the first time he had ever made any complaint to Fairchild about
Bogoff, although she had been working for Freeland for more than a year. It is
significant that this complaint to Fairchild was coincident with Bogoff's Guild
activities.
According to Freeland, in May when Bogoff gave him the statistical report
covering April, he discovered an error in the lineage figures, but it was corrected
before the report was released.
In May Freeland again spoke to Fairchild about Bogoff. The testimony of
Fairchild in respect to this conversation reads as follows :
He [Freeland] said he had reached a point in the case of Miss Bogoff when
he felt lie would have to let her go at that particular time, that he just could
not put up with her. He tried to work it out and hoped he could work it
out as I asked him to do on the previous occasion, and he said it just
reached a point where he could not do it, and he felt for the morale of the
department and for the good of the organization, that it would be better
if her connection were severed . . . I told him I was going out of town,
that I would think it over and let him know just exactly what I thought
about it because I told him before, we would be accused of discharging her
for Guild activities where she was an organizer on the fifth floor of the
building, and apparently my belief or my snap judgment at that time was
correct.
Upon Fairchild's return to New York City, he authorized Freeland by telephone,
to discharge Bogoff.
At 5: 00 p in. on Thursday, June 29, 1944, as Bogoff was preparing to leave her -
office, Freeland handed her an envelope and said to her "Miss Bogoff, we are
parting company as of now." Bogoff was taken completely by surprise and asked
him if he were displeased with her work. Freeland replied "We are tempera-
mentally unfit for each other. This job was not cut out for you, and here is
your envelope with the pay in it." Upon discharging Bogoff, the respondent
paid her for the remainder of that week and also gave her three additional weeks
salary. The following notation, signed by Freeland, appears on Bogoff's discharge
slip. "Complete incompetence, including inability to cooperate with members of
the department and the organization." Bogoff has not been reinstated and
desires to return to work for the respondent z5
Contentions of the respondent in respect to the discharge of Bogoff; conclusions
The respondent contended that Bogoff was discharged because she was generally
inefficient, incompetent, offensive, unreliable, unable to get along with others, a
poor stenographer, and untidy in her work. The record fails to support any of
these contentions and the undersigned finds no merit in them.
a' These findings are based upon the credible testimony of Bogoff. Freeland testified,
that he also told Bogoff that she was "mentally" unsuitable.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent, in seeking to justify its discharge of Bogoff, sought to show
that her general attitude toward her work and her fellow employees was such as
to justify her discharge "for the morale of the department" as stated by Freeland
to Fairchild just prior to Bogoff's discharge
There was some testimony that Irving Koch, an advertising solicitor, became
annoyed with Bogoff on one occasion, because she would not stop her work and
find some advertising maps for him although he had no supervisory authority
whatsoever over Bogoff. He spoke to Freeland about it, but Freeland passed it
off as inconsequential and said nothing about it to either Bogoff or Fairchild.
The respondent attempted to show that Bogoff neglected to send the monthly
bills to the bookkeeping department on time. According to the testimony of
Tillie Acker, the respondent's bookkeeper, she received approximately 1,000 bills
each month from 50 or 60 different people in the plant, one of whom was' Bogoff
in the advertising service department; that the bills were supposed to reach
the bookkeeper's office by the sixth of the month so that they could be paid not
later than the tenth ; that if the bills did not come in on time, she would telephone
to the employee concerned ; that in submitting her report to Fairchild, if all the
bills were not paid she would have to explain that they had not come in; that
this occurred every month. The evidence discloses that there was no dereliction
of duty on the part of Bogoff in this respect, and that other departments, as well
as Bogoff's did not always send in their bills on time, because they were not always
received on time. It is fair to presume that in the ordinary course of business,
some of these bills would not reach the respondent on time Fairchild was no
doubt aware of this fact, as he never said anything to Freeland or Bogoff about it.
According to Freeland, Bogoff was not accurate in filing. The record does not
support this contention. -Prior to hiring Bogoff in January 1943, the advertising
service department had been without a typist or filing clerk for several months,
and the files were not in an orderly condition. When Bogoff began work, Free-
land told her that the files were not in good shape and requested her to straighten
them out. She did so, and was complimented by Freeland. Also Freeland's
testimony that Bogoff frequently made errors in her typing is not convincing
and is without merit. Bogoff was an experienced stenographer and typist before
she was employed by the respondent. She had also passed the United States
Civil Service examination for stenographers and had been offered a position.
Freeland testified that he did not discharge Bogoff on account of the Koch inci-
dent, delay in sending bills to the bookkeeper, errors in filing or errors in typing,
and that he did not report any of these things to Fairchild, since they were
"petty and trivial" matters, but that they all contributed toward her discharge '
It is very significant that Freeland never made any complaint to Fairchild about
Bogoff until March, just after Bogoff had become active in the Guild. It is also
significant that Freeland never gave Fairchild any specific reasons why he
recommended logoff's discharge, and that Fairchild never requested any details
Freeland told Fairchild that she should be discharged simply for the morale of
the department and for the good of the organization.
The record Is clear and the undersigned finds that the sole reason which
motivated the respondent in discharging Bogoff was her Guild membership and
activities. Freeland's friendly attitude toward Bogoff underwent a decided
change soon after she joined the Guild, and his reason for it was that she had
"stuck her neck out" and had to take the consequences. Both Diamond and
28 Freeland also testified that in September 1943, he overheard part of a conversation
between employee Tarlow, a copywriter, and Bogoff in which Tarlow told Bogoff that he
should spank her, but that he said nothing to Fairchild or.Bogoff about it because he
considered it "petty and trivial."
WOMEN'S WEAR COMPANY 417
Fairchild were hostile to the Guild Diamond expressed his dislike to the Guild
in no uncertain terms. Several employees in his department had complained
to him that Bogoff had annoyed them by soliciting them to join the Guild. Dia-
mond promptly threatened any one with discharge who solicited for the Guild
during working hours Fairchild charged the Guild with being responsible for
delaying the approval of wage increases in the plant Bogoff's open activities
on behalf of the Guild had rendered her persona non grata in the plant so far
as the management was concerned.
The respondent contended that any discriminatory motive in connection with
Bogoff's discharge is rebutted by the fact that neither Vivian Miller, the Guild's
Treasurer, nor any member of the Guild other than Bogoff was discharged.
The undersigned finds no merit in this contention The Board has held• that a
complete "house cleaning" of union members and supporters is not essential to
a finding that an employee has been discriminated against 27
Upon the entire record in the case the undersigned finds that the respondent
discriminated in regard to the hire and tenure of etployment of Loretta
Bogoff by discharging and refusing to reinstate her because of her membership
and activities in the Guild ; thereby discouraging membership in the Guild and
interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act. The undersigned further finds that
by the anti-union statements and conduct of Brain Freeland as found above,
which are attributable to the respondent, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECIr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in and is engaging
in unfair labor practices affecting commerce, it will be recommended that it cease
and desist therefrom and take certain affirmative action which the undersigned
finds will effectuate the policies of the Act.
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of Loretta Bogoff Therefore it will be recommended that
the respondent offer to her immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her seniority or other
rights and privileges, and that the respondent make her whole for any loss of pay
she may have suffered by reason of the respondent's discrimination against her,
by payment to her of a sum of money equal to the amount which she would nor-
mally have earned as wages during the period from the date of the discrimination
against her to the date of the respondent's offer of reinstatement, less her net
earnings n during said period.
27 Stewart Warner Corporation and United Steel Workers of America, Local 2937
(C. I. 0.), 55 N. L. R B. 593
ea By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CO'NOLusioNS OF LAW
1. Newspaper Guild of New York, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the hire and tenure of employment of Loretta
Bogoff, and thereby discouraging membership in Newspaper Guild of New York,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
3. By'interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Women's Wear Company, New York,
New York, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Newspaper Guild of New York or any other
labor organization of its employees, by discharging or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard to their
hire and tenure of employment or any terms or condition of their employment ;
(b) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist Newspaper Guild of New York or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in con-
certed activities, for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Loretta Bogoff immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her seniority or other
rights and privileges ;
(b) Make whole Loretta Bogoff, in the manner set forth in the section entitled
"The remedy," for any loss of pay she may have suffered by reason of the respond-
ent's discrimination against her ;
(c) Post at its plant at New York, New York, copies of the notice attached
hereto, marked "Appendix A". Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. R. B. 440. Monies received
for work performed upon Federal, State, county, municipal, or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. N. L R. B., 311
U. S 7.
WOMEN'S WEAR COMPANY 419
posted. Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Second Region in writing, within,
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D C, an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all motions or objections)
as he relies upon together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to argue
orally before the Board request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
W. P. WEBB,
Trial Evaminer.
Dated March 21, 1945.
1LRB 577
(9-1-44)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Newspaper Guild of New York or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
We will offer to the employee named below immediate and full reinstate-
ment to her former or substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed, and
make her whole for any loss of pay suffered as a result of the discrimination.
LORETTA BOOOPr
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard
662514-46-vol. 63-25
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
WOMEN'S WEAR COMPANY
(Employer)
By -------------------------
(Representative) (Title)
Dated -----------------------
NarE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
0