Leggett's Department Store of Princeton, West Virginia, Inc.

LEGGETT'S DEPT. ' STORE OF PRINCETON, W. VA., INC. 403 merce among the several States, and 'tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Decedent and the Respondent have engaged in certain unfair labor practices, the Trial Examiner will recommend that the Respondent cease and desist therefrom, and take affirmative action to effectuate the policies of the Act. In his proposed "remedy" General Counsel urges that the Respondent be required to refund dues and initiation fees deducted from employees' pay since June 26, 1960. The Trial Examiner believes that the Board decision in Duralite Co., Inc., 132 NLRB 425, released on July 26, 1961, is governing in this case. There the Board declined to order refund of dues because it did not find that the union involved "was a company-dominated union and does not order its disestablishment," relying upon the Supreme Court decision rejecting the "Brown-Olds" principle in Local 60, United Brotherhood of Carpenters v. N.L.R.B., 365 U.S. 651. For this reason General Counsel's proposed remedial recommendation is rejected. At the hearing General Counsel specifically disclaimed any wish to have the contract involved set aside, and the complaint contains no allegation of company domination, or even of assistance to the UMW within the meaning of Section 8(a) (2) of the Act. Upon the basis of the foregoing findings of facts and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS of LAW 1. District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By entering into and maintaining a contract containing an unlawful union- security clause, and by requiring checkoff authorizations to be signed at the time of employment application, thereby encouraging membership-in a labor organization, the Decedent and the Respondent have engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act. 3. 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.] Leggett's Department Store of Princeton , West Virginia, Inc. and United Store Employees Union, Local 347, Retail ,, Whole- sale & Department Store Union , AFL-CIO. Case No. 9-CA- 2369. May 29, 1962 DECISION AND ORDER On January 24, 1962, Trial Examiner Benjamin B . Lipton issued his Intermediate Report herein, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate . Re- port attached hereto . The Trial Examiner also found that the Re- spondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to such allega- tions.i Thereafter, the Respondent filed exceptions to the Intermedi- ate Report. 'As no exceptions have been filed with respect thereto, we adopt pro forma the Trial Examiner's recommendations that these allegations be dismissed. 137 NLRB No. 42. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,2 the Respondent's exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications and additions.' The Respondent excepts to the Trial Examiner's finding that White's remark to Hammed, "Weren't you ashamed to come through that door this morning," was attributable to the Respondent and con- stituted a violation of the Act. In the prior proceeding 4 the Trial Examiner found White to be a supervisor within the meaning of the Act. The evidence in the record of this proceeding discloses no change in the status of White nor did the Respondent offer any evidence which would necessitate a reconsideration of the prior finding. More- over, White made his remrak to Hammed in the presence of Tolley who did not censure White or repudiate the remark. We therefore find that the statement was attributable to the Respondent and viola- tive of Section 8 (a) (1) of the Act. The Respondent excepts to the Trial Examiner's finding that Tol- ley's statement that: "You know who is going to pay for this, don't you? It is going to come out of our profit sharing," was violative of Section 8(a) (1) of the Act. The statement was made to Assistant Manager Chilcote, Supervisor White and his wife, and employee Bal- lard and her husband on the morning the Intermediate Report in the prior proceeding (footnote 4) was publicized in the local newspaper. Although this remark undoubtedly precipitated employee Ballard's conduct later that same morning in beginning a quarrel with Hammed, we believe the statement to be too ambiguous under the circumstances to support a finding that the Respondent violated the Act. 2 In the Intermediate Report the Trial Examiner inadvertently stated that the date of Tolley's harsh treatment of Hammed concerning the anklets occurred on May G, 1961. It is clear that the date intended was May 3, 1901, and it is corrected accordingly In its answer and at the hearing the Respondent admitted the factual allegation as to commerce set forth in the complaint but denied the conclusion drawn therefrom that the Respondent has been engaged in "commei ce " and in operations "affecting commerce" within the meaning of the Act The Respondent is a West Virginia corporation , engaged in the operation of it retail department store at Princeton , West Virginia, had gross sales of more than $500,000 during the year 1960 , a representative period, and purchased and caused to be shipped to it in west Virginia directly from points outside the State of West Virginia more than $100,000 worth of dry goods and wearing apparel On these facts we find that the Respondent meets the Board 's jurisdictional standards and is en- gaged in commerce within the meaning of the Act , and that it will effectuate the purposes of the Act to assert jurisdiction herein. Carolina Supplies and Cement Co, 122 NLRB 88 134 NLRB 1171. LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 405 ORDER Upon the entire record in the case, and pursuant to Section 10(e) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Leggett's Department Store of Princeton, West Virginia, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discriminating in any manner against employees for filing charges or giving testimony under the Act, and discouraging mem- bership in United Store Employees Union, Local 347, Retail, Whole- sales & Department Store Union, AFL-CIO, or in any other labor organization, by discharging, laying off, refusing to recall, or in any other manner discriminating against its employees in regard to their hire or tenure of employment, or any term or condition of employment. (b) Harassing, threatening, or coercing its employees in an effort to cause them to quit their employment, for the purpose of discourag- ing membership in any labor organization, or in reprisal for giving testimony under the Act. (c) Precipitating and encouraging acts of violence and harassment by its employees against other of its employees, and adopting or con- doning the same, for the purpose of discouraging membership in any labor organization, or in reprisal for giving testimony under the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as au- thorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Betty Hammed immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights or privileges, and make her whole for any loss of pay in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security payment records, timecards, personnel records and reports, and all other records, as set forth the the section of the Intermediate Report entitled "The Remedy." (c) Post at its Princeton, West Virginia, store, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby-is, dis- missed insofar as it alleges violations of the Act not found herein. is In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a decision and order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discriminate in any manner against our employees for filing charges or giving testimony under the Act, and we will not discourage membership in United Store Employees Union, Local 347, Retail, Wholesale & Department Store Union, AFL- CIO, or in any other labor organization, by discharging, laying off, refusing to recall our employees, or in any other manner dis- criminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT, for the purpose of discouraging membership in any labor organization or in reprisal for giving testimony under the Act : 1. Harass, threaten, or coerce our employees in an effort to cause them to quit their employment. 2. Precipitate and encourage acts of violence and harassment by our employees against other of our employees, and adopt or condone the same. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 407 to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all 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 by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Betty Hammed immediate and full reinstatement to her former or substantially equivalent position, Without preju- dice to her seniority or other rights and privileges, and make her whole for any loss of earnings, including bonuses and profit shar- ing, she may have suffered by reason of the discrimination against her. All our employees are free to become, remain or refrain from be- coming or remaining members of United Store Employees Union, Local 347, Retail, Wholesale & Department Store Union, AFL-CIO, or in any other labor organization, except as that 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. LEGGETT'S DEPARTMENT STORE OF PRINCETON, WEST VIRGINIA, 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. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding , which was heard before Benjamin B . Lipton, the duly designated Trial Examiner, in Princeton, West Virginia, on October 26, 1961, involves allega- tions by the General Counsel that the Respondent committed certain independent violations of Section 8(a) (1) and engaged in discriminations against one employee in violation of Section 8(a)(3) and (4) of the National Labor Relations Act. All parties were represented and participated in the hearing, and at the close thereof the Respondent argued orally on the record. Respondent's motion to dismiss the complaint is disposed of in accordance with the findings below. The General Counsel filed a brief which was duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED 1 Respondent, in its Princeton, West Virginia, retail department store operation, had during the year 1960 a gross volume of sales in excess of $500,000, and a direct inflow of goods in interstate commerce valued in excess of $100,000. Accordingly, 1 find that Respondent is engaged in commerce within the meaning of the Act. United Store Employees Union, Local 347, Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Official notice of prior case In June 1961, a hearing was held on a complaint against the instant Respondent in Case No. 9-CA-2278, involving the same department store, the same parties, and alleged violations of a character similar to those in issue here. On December 12, 1961, the Board issued its Decision and Order in the earlier case finding that Re- spondent had engaged in and was engaging in certain unfair labor practices 2 Accord- ingly, and as requested by the parties at the hearing herein, I have taken official notice of the transcript and record in the prior proceeding, and I also take notice of the Board's Decision and Order as to which I am, of course, bound? In that case the Board found that Respondent, from early December 1960 through April 7, 1961, had committed numerous acts of coercion and restraint against employees on account of their union activities, including threats of discharge, promises and grants of benefits, interrogations, and surveillance, and had unlawfully discriminated against eight employees in regard to their hire and tenure of employment. Concerning Betty Hammed, about whom revolve all the issues in the present case, the Board found, inter alia, that Respondent had threatened her with discharge, and with transfer; had directed the office girls to listen in on her telephone conversations, permitted super- visors and employees to surround her in an effort to get her to quit, and engaged in other harassments to make her quit; and had constructively laid her off by so treating her as to require a doctor's care and force her to remain away from work from February 16 to 25 and from March 3 to 17 .4 These events in the prior case neces- sarily form the setting and background against which the allegations in the present proceeding must be viewed. B. Issues in present case The alleged violations of Section 8(a) (1) fall into two categories: (1) those com- mitted directly by named supervisors, consisting of threats against Hammed of dis- charge and transfer, and the ejection of a customer from the store, in the presence of employees, in effect because the customer expressed her sympathy to prounion em- ploye Hammed; and (2) those committed by certain admitted employees, alleged in the complaint as agents of Respondent, specifically that Respondent engaged in "encouraging, permitting, condoning, and failing to take any steps to prevent the harassment, derision, and ridicule of certain of its employees sympathetic to the Union, by certain of its other employees " It is also alleged that Respondent violated Section 8(a)(3) and (4) by the constructive layoff of Hammed during four periods of her absence from work, because of her union activities and her giving testimony in the earlier proceeding. Respondent admits, and I find, ,that Ernest G. Tolley, store manager, and Lawrence C. Chilcote, assistant store manager, are supervisors under the Act. Although de- nied, I also find that James B Laury, first floor manager, and James A. White, base- ment manager, are supervisors.5 C. Chronological facts and conclusions 1. The anklet incident On May 3, a few minutes before closing time at 5:30 p.m., Store Manager Tolley came up to Hammed in the accessories department, picked up a children's anklet 'Leggett's Department Store of Princeton, West Virginia, Inc, 134 NLRB 1171 2 Ibid 2 E g, Paramount Cap Manufacturinq Company v N L R B , 260 F 2d 109, 113 (C A 8) N L.R B v Reed & Prince Manufacturing Company, 205 F. 2d 131, 139 (C A. 1), cert. denied 346 U S 887; E V Pi entice Machine Works, Inc, 120 NLRB 1691 ; Cranston Print Works Company, 117 NLRB 1834 'All dates herein are in the year 1961 unless otherwise specified 5Leggett's Department Store of Princeton, West Virginia, Inc, 134 NLRB 1171. LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 409 and threw it down beside her, shouting "Mrs. Hammed, look at that date. How many times am I going to have to tell you to clean off these counters." The anklet, which was soiled, had a code marking which indicated it had been in the store for 3 years. The store employees, including Hammed who was head of her department, were previously instructed to remove from the selling counters articles so coded. Hammed told Tolley she was off the next day but had asked Miss Willis (in the department), who said she would start on that work in the morning. Tolley said, "I don't want her to do it. I want you to do it. I am tired of this, Miss Hammed, and I am not going to tolerate you much longer." Tolley's reprimand of Hammed took place in the presence of Assistant Store Manager Chilcote and four employees.6 Chilcote in essence corroborated Hammed. What was wrong, he said, was the manner of Tolley's reprimand-"making a big scene over two pairs of anklets that were out of date. He never did it to any other employee in our store . . I would say it was the most severe of any I had witnessed in my time in the store." 4 Tolley's testimony about this incident in general conforms with that of Hammed and Chilcote, but he denied the asserted severity of the reprimand and indicated he has spoken to other employees in the same manner. Noting, significantly, that Chilcote is in the higher echelon of management, I credit his testimony and that of Hammed, after having given full account to my observation of the demeanor on the stand of the witnesses testifying as to this incident. Finding Following closely in point of time the extensive and flagrant conduct of Respond- end, particularly Tolley, in threatening and pressuring Hammed in an effort to cause her to quit, all of which was found unlawful by the Board, I conclude that Tolley's harsh treatment of Hammed in connection with the anklets on May 6, including his threat that he was not going to tolerate her much longer, was a con- tinuation of the same course and constituted a breach of Section 8(a)(1). 2. Alleged mockery, ridicule, and harassment by employees a. Ellis On May 6, Hammed testified she was going through the store to punch the time- clock in the morning when she passed employees Helen Ellis and Sybil Thomas 8 and her foot touched Ellis. She heard Ellis say, after Hammed was a step or two in front of Ellis, "Look at that damn hussey." Hammed continued on her way and started down the strairs where she saw Manager Tolley and employee Naomi Guard standing at the landing. Ellis had no recollection of such incident, and denied that she made such remark at this or any other time. Finding I can perceive no violation with respect to this incident, considering it separately or in conjunction with any other evidence, even assuming the facts as described by Hammed. Among other things , the evidence falls far short of establishing responsi- bility, let alone knowledge, of Respondent or that the remark was coercive under Section 8 (a) (1) 9 b. Guard Hammed stated further that, as she got close to Tolley and Guard standing at one of the jewelry counters, employee Guard said to her, after Tolley started to leave, "Good morning, you old trouble-maker." Guard admitted calling Hammed an "old trouble-maker" but remembered it only in connection with another incident on June 19 involving a Mrs. Barker, described below, explaining that Hammed 0 Hyatt and Winfrey did not testify, Ellis did not remember the incident; Guard did not hear any sharp reprimand 4 Chilcote was assistant store manager since October 1950 8 Thomas did not testify 9 Cf., e.g, N I, R.73 v Gibbs Corporation, et al , 297 F 2d 649 (C A. 5) : Austin Con- crete Works, Inc., 132 NLRB 184; Cabinets, Inc, et at., 130 NLRB 1378 ; Sherry Manu- facturing Company, Inc, 128 NLRB 739: Martel Mills Corporation, 118 NLRB 618; and also N L R B v Fred P Weissman Co , 170 F. 2d 952 (C A. 6), cert denied 336 U S 972, cited by General Counsel. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provoked the remark by embarrassing Guard while she was waiting on a customer. Tolley was not questioned specifically as to this incident. Finding I am not satisfied on the evidence that Tolley, whose back was turned, overheard the alleged remark, if it was made. Even assuming the facts as described by Hammed and that Tolley overheard the remark, I find no violation essentially for reasons indicated as to Ellis, above. Following the above incidents and as a result thereof, Hammed said she pro- ceeded to telephone her father, a deputy sheriff. As she was dialing, she saw employee Guard running upstairs and she later heard a receiver lift. (The telephone system in the store permits a person to listen in on a conversation by merely lifting another telephone in certain locations on the premises.) Guard denied she ever listened in on any of Hammed's calls. She testified concerning an occasion she had gone to the stockroom for some stock, had picked up the stockroom telephone to use it, but hung up when she heard someone, unknown to her, was on the telephone. Finding Bearing in mind the Board's finding in the earlier case that Respondent unlawfully instructed employees to listen in on Hammed's telephone conversations, I never- theless find no violation as to this incident. Hammed's testimony is too vague and speculative as to the identification of Guard; in any event, I credit Guard's testimony, if it relates to the same incident, that her act in picking up the telephone was not intentionally to listen in on Hammed. Hammed related that, after her telephone conversation, she went back to her department where she saw Guard go to Laury, the first floor manager, and both then went to employees Jerry Alvis and Sybil Thomas, with Guard "whispering" to these various individuals. Finding It is not clear whether or not the General Counsel is alleging the "whispering" as part of the "listening in" incident, or separately. In any case, I find no violation as I cannot conceive such evidence as establishing coercion by Respondent. Alleged 8(a)(3); Hammed's Absence May 6-13 Continuing, Hammed testified that the morning of May 6 went on until about 11 o'clock when she saw Tolley in her department and approached him, saying, "Mr. Tolley, I am just so nervous I could not possibly finish out the dav. Before I leave I want you to know what has happened. When I passed Miss Ellis this morning she called me a damn hussy. I heard Miss Guard say, `Good morning, you old trouble-maker.' I am just too nervous to continue out the day. I won't be back after lunch. He said, `You are not too nervous to work.' . I assured him I was and I just could not make it. . . . My dad was waiting for me at the front door. [Later, on the way out], I stopped and said, 'Mr. Tolley, I will try to make it back in Monday morning [May 8].' He said, `Miss Hammed, I am sorry.' I said, 'No, you are not, because you would stop this, because you are the one person in the store that could.' With that I left the store and went home [and did not return to work] until the following Saturday, which was May 13th." Finding The complaint alleges that Respondent constructively laid off Hammed in viola- tion of Section 8(a)(3) during her absence from May 6 to 13. I have considered the background of the earlier case in which the Board found, on specific evidence, that Respondent had constructively laid off Hammed, during two periods of absence ending March 17, by so treating her as to require a doctor's care and force her to remain away from work. The record is not such that I can find in this instance that the conditions prevailing in early March had a continuing and proximate relation to the cause of Hammed's absence in May. Nor, in view of the particular evidence before me, am I able to hold that the anklet incident on May 3 had a cognizable effect in precipitating Hammed's departure on May 6. As I have found no har- assment or coercion on Respondent's part respecting the incidents on May 6 which induced Hammed's subjective apprehensions and assertedly caused her absence during the neriod in question. I cannot hold Respondent legally responsible for the absence within Section 8(a) (3). LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 411 c. Guard and Ballard On June 16, Hammed returned to work after her absence during the days of the Board hearing in the earlier case. She testified that "through the entire day the different employees mocked me with various things from the hearing." One inci- dent was specifically related by Hammed in which employee Guard was standing at a dumbwaiter and an employee on a different floor-"which sounded like Janet Ballard, I cannot be sure"-called down, "Is that the truth." Guard, looking in Hammed's direction, said, "That is the truth, the whole truth, and nothing but the truth, so help me God." Hammed further stated generally that Guard said the same thing that day "many times, many times with the same expression , and then other times they were different." Guard could recall no such expressions made by her: Ballard was not asked. Assistant Manager Chilcote testified generally that, shortly after the prior Board hearing for a period of 2 to 3 weeks, he heard practically everyone on the main floor imitate and engage in name calling of Hammed, such as, "How are you today, Doll? How are your nerves today?" "Yes, precious!" "I will tell the truth, the whole truth, and nothing but the truth." Chilcote mentioned names of employees, not including Ballard, an office clerical, but including Guard. As a consequence, Chilcote issued general instructions to employees that such conduct was uncalled for and he would not permit it. He said that when be was in charge he stopped it. He also told Manager Tolley that, in the future, if he heard anyone in the store calling anyone such names, he "was going to take the two people involved and dismiss them from the store, personally. . . Tolley said, "Chilcote, I cannot help what these people do in here during the day." The next day Hammed told Tolley, "I want you to know I was mocked all day yesterday about the different comments that were made throughout the hearing at the courthouse." Tolley replied, "Miss Hammed, I just want you to get up here in your department and do your work and mind your own business." Finding The particular allegations in the complaint are against Guard and Ballard. I dismiss as to the latter as the evidence is insufficient even to identify her. Chilcote's testimony was generally corroborative of Hammed. While I credit Hammed, I find no violation as to Guard. Especially in light of the measures taken by Chilcote, there is no proper basis to hold that Respondent authorized, ratified, or encouraged the conduct, or that it was otherwise legally responsible therefor, even assuming the repeated remark made by Guard constituted such harassment as would other- wise come within Section 8 (a) (1) . d. Belcher and Guard On June 17, about noon , Hammed was waiting on a customer at the greeting card rack when , as she testified , she was "hit with the full force of someone behind me that knocked me head first across the card rack. I freed my dress from the drawer and I saw Miss Guard and [employee ] Alma Belcher laughing. Miss Belcher struck me." She saw Supervisor Laury standing there after she completed the sale and, without telling him what occurred , said, "Mr. Laury, I am shaking apart. I cannot take much more of this. I am going back to use the phone." On the way to the telephone Hammed saw Tolley, and she told him, "I want you to know I have been knocked over the greeting card drawer ." He asked who had bumped her and, on being informed it was Belcher , said he would speak to her. Hammed remarked , "I am not going to get into any kind of violence like this, no matter what they do or say to me. I am going to let the law take care of my side of it " In Tolley's presence, Hammed telephoned the local justice of the peace, told him "some of what had happened ," and made an appointment with him for later that day. Belcher testified that she and Guard were coming through Hammed's aisle on the way to clock in , that there was a basket of shoes in the aisle and drawers pulled out so that only about a 6-inch space was clear to pass through, that she "barely bumped" Hammed unintentionally as she was coming by , saying "Excuse me," and that Hammed said, "I dare you to do that again ." Guard corroborated Belcher. Tolley testified he spoke to Belcher and Guard about the incident : the version he received was substantially as they testified ; he nevertheless admonished them "from now on to watch it." Findings I believe the "bumping" was not intentional . In any event, the evidence is in- sufficient, in my view, to attribute responsibility to Respondent or to sustain the 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asserted violation. The complaint alleges the "laughing" by employees Belcher and Guard as an incident of harassment. The General Counsel has offered no authority, and I know of none, which remotely tends to support a finding of action- able coercion based upon such conduct as laughing, even if its purpose was other than mirth. On any theory of the General Counsel, I must also reject this latter allegation. 3. The Barker incident On June 19, about 4:45 p.m., Hammed was waiting on a customer, Alisa Barker, who was also her personal friend and a former employee at the store. Hammed had told Barker about an incident between herself and one of the employees. As Barker was leaving with her purchase, employee Guard left the customer she was attending, walked up to Barker, and both then became engaged in an argument. Hammed testified that Supervisors Tolley and Laury were standing nearby listening, that she saw Tolley cross over and get Barker by the arm, lead her to the door, open the door, and put her out of the store. Barker's testimony was that Guard rushed up to her, asked if she was talking (with Hammed) about Guard, and threatened to slap her; that Tolley came up, caught hold of her arm, told her, "Out, out, out," opened the door, and gave her a shove out. Tolley testified that as Barker was leaving, while still talking to Hammed, Barker moved "pretty close" to Guard; that Guard excused herself from her customer and "got into words" with Barker; that he hard "loud talking," walked up and separated them, and told Guard to go back to work and Barker "to go on with her business and everything would be all right." He denied touching Barker, saying "Out," or escorting her to the door. Guard testified that Barker came up to her, "shook her finger in my face while I was waiting on the customer and says, `Betty, Doll, if anybody in here says anything to you or lays one finger on you you let me know and I will take it up with them." Guard said she then called Hammed "a trouble- maker because I think that was trouble." When Tolley intervened, Guard related that he only said, "Girls, this is no place for that kind of stuff. Mrs. Barker, you go on, and Miss Guard, you go on back to work;" and that he did not grab Barker by the arm, take her to the door, or put her out. Laury's version corrobo- rated in detail the testimony of Guard and Tolley. Findings Concerning the above incident, the General Counsel alleges that Respondent violated Section 8 (a) (1) in that Tolley, in the presence of employees, ejected from the store a customer whom employee Guard had threatened to assault for having expressed support of one of its employees sympathetic to the Union (i.e., Hammed). I disagree that the evidence establishes a violation, considering the incident against the full background. There is no direct material conflict in the various descriptions of the incident, except as to whether Tolley physically took hold of Barker and escorted her to and through the door. My finding would be the same whether or not he did. Undisputed testimony shows provocation by Barker of Guard, real or imaginary. The altercation between them was therefore essentially of a personal nature. I cannot infer that Tolley heard Guard threaten to slap Barker, or that he was aware of any support expressed by Barker relating to Hammed's union activity. Tolley's intervention can reasonably be found as having the objective only of halting a disturbance in the store If he did eject Barker, as she and Hammed testified-without passing on the propriety of his method-I cannot conclude that it had a purpose or effect proscribed by the Act In light of these findings, I must also dismiss the separate allegation in the complaint that Guard threatened to as- sault a customer because of Hammed's union activity, and that such conduct was an additional act of harassment for which Respondent was liable. A further allegation is that employee Guard on June 19 threatened to assault Hammed Hammed testified- After the Barker incident and shortly before closing time, Guard told her, "Miss Hammed, we are going to get this straightened out before you go home. You cannot fight your own battle. You have to call out- siders." At this point Hammed telephoned in an attempt to call a policeman and then went unstairs to check out for the day. When she got to the head of the stairs, Guard was there and, in the presence of other employees, pointed a finger at Hammed, saying. "You can stop right there. You have gone far enough." Hammed walked around her to the telephone and "again called the police " Manager Tolley was sit- ting behind his desk in his office about 10 feet away and "saw Miss Guard and I." Guard said . "I should just slap your face." Hammed replied, "Why don't you do it, Miss Guard? Here is the best place T know to do it. Mr. Tolley, I am mighty glad you are hearing this. This makes it all the nicer." Tolley did not reply; "he dropped his head." LEGGETT'S DEPT. STORE OF PRINCETON, W. VA., INC. 413 Guard testified they were not in Tolley's office but in an outer office next to his where the girls were getting their handbags at leaving time. Guard stated they "had words," that she "was very disgusted and angry with the way Mrs. Barker came in there and I was telling [Hammed] I did not appreciate it, not one bit. . .. She just grinned." Guard in effect denied any threat to slap Hammed. Tolley recalled Hammed and Guard coming upstairs to check out on June 19 but did not hear any- thing that was said between them. Finding In the circumstances and the heat of the "words" being exchanged, I do not con- sider Guard's expression, "I should just slap your face"-if it was made-as a "threat to assault." Nor does Hammed's testimony reasonably establish that Tolley heard such a "threat." if made. And even assuming it was made and heard by Tolley, I find that it was not coercive and that, in any event, Respondent bore no legal responsibility for the remark. Alleged 8(a)(3); Hammed's Absences June 20 and June 26 to July 3 On June 20, Hammed worked only until about 12:30 p.m She testified she had been ill the night before (impliedly from the events of that day), and during the morning of June 20 she "got so sick" she had to go to Chilcote, from whom she obtained permission to go home. She returned the next morning and worked through Saturday, the 24th, of the same week. Finding For reasons described as to the May 6 absence, above, I find no merit in the General Counsel's allegation that Respondent constructively laid off Hammed in violation of Section 8(a)(3) and (4) from 12:30 to 6 p.m. on June 20. The complaint also alleges that an absence by Hammed "from on or about June 26, 1961, to on or about July 3, 1961," similarly constituted a constructive layoff for which backpay is sought. Finding There was, indeed, no evidence introduced that Hammed was absent during this period, nor was there any attempt to show or even argue, apart from the complaint, that such absence was caused by Respondent. If it is inferentially expected that an assumption be made of the fact of such an absence and that it was caused by a con- tinuing pattern of harassments, which appears to be the General Counsel's broad theory, I nevertheless reject the specific allegation as devoid of support or merit 4. Alleged threat to transfer Hammed On July 19, Hammed was summoned to Manager Tolley's office where, in addition to Tolley, there were Supervisors Laury and White and an office girl, Miss White. As related by Hammed, Tolley told her he was going to call up the employees one at a time "to straighten out the thing in the store." Hammed reminded Tolley of a recent meeting in which Tolley told the department heads that, if they had employees who would not work or cooperate with them, to come to him and he would supply different help. She said, "Mr. Tolley, you know Miss Guard doesn't speak to me and hasn't since last December [when the Union started organizing the store]. She goes in and out of the department as she chooses and doesn't bother to tell me when she is leaving." Tolley replied, "You know if I told Miss Guard she had to work and cooperate with you, she would leave us tomorrow." He asked Hammed if she would like to be moved (from the first floor) to the top floor. She "assured him" she did not, and said she liked the accessory department, and her figures showed she was making money for the company. Laury, in charge of the first floor, told Tolley that Guard was "most suited" for that floor. Tolley then said, "Miss Hammed, it looks like you will take the lesser of two evils and take the top floor " (Hammed testified she did not know what he meant by this remark.) Tolley continued by asking Hammed if she wanted Guard moved from the department. Hammed indicated that if he wanted Guard left in the department that was "just fine" with her; all she was asking was help that would work and cooperate with her. Tolley concluded the interview with the statement that Guard would be back from vacation the next week, he would discuss it with her, but "one of you have got to go." Laury testified "there was a lot of trouble going on in the hosiery department between Miss Guard and Mrs. Hammed . We were talking and we told Mrs Hammed that something was going to have to be done, that we were going to have to transfer her or Miss Guard to some other department of the store because we could 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not tolerate what was going on in that one department." He stated that there was no decision made then or thereafter to transfer either of them. Tolley testified, "I was trying to get the store back in order . . . trying to do what I thought was right ... to get down to business and just to find out, I asked Mrs. Hammed, 'What would you do?' Would she be satisfied upstairs or somewhere else. It hadn't been too long ago until Mrs. Hammed asked me to transfer her somewhere else. Just anywhere, she would take anywhere. . . So we just didn't do anything. We just talked about the situation and hoped that it worked out." He said they also talked about transferring Guard. Finding The separate violations in the complaint alleged against Tolley and Laury are, in my opinion, without support. In the foregoing versions, as to which there is no material conflict and which substantially coincide, I find no threat to transfer nor to demote from the position of department head as implied in the allegations.10 Chil- cote's testimony generally of an intent by Tolley discriminatorily to transfer Hammed and to get rid of her does not supply the necessary evidence that such was the purpose and effect in this instance. Even if the testimony is assessed in a light most favorable to the General Counsel's position and giving full background effect to the Board's holdings in the prior case, the actual evidence shows no more than an exploratory interview consistent with a legitimate concern to eliminate a condition in the acces- sories department stemming from a personality conflict between Hammed and Guard. 5. Events after Trial Examiner's decision in Case No. 9-CA-2278 On July 22, the Intermediate Report in the prior case, supra, had been released and was described in the morning newspapers locally. Hammed credibly testified that she had just checked in to her department when employee Janet Ballard came up to her, asked if she "was ashamed to walk down the street," and caught both Ham- med's shoulders and started shaking her. Hammed tried to get to the telephone but Ballard forced her against the glove rack and told her no, she was not going to use the telephone. Ballard said, "aren't you ashamed to raise a daughter like Teresa?" Hammed went upstairs into Tolley's office with Ballard following her. Present in the office were Tolley, Assistant Manager Chilcote, and Supervisors Laury and White. Hammed said, "Mr. Tolley, . I would like to tell you what [Ballardl said about my daughter." He stood up from behind his desk and replied, "I don't want to hear a word you have to say. I wouldn't believe it if you said it. The best thing you can do is go back to work." White spoke up, "Mrs Hammed, did you read the morning paper?" Hammed: "I sure did, all three of them." White: "Weren't you ashamed to come through that door this morning?" Hammed: "No, I am proud of what I stand for today." Tolley: "You can go back to work" Hammed• "No, I am too nervous." Laury: "We are all nervous, too." Ballard came inside the door and took hold of Hammed's arm, saying. "Mr. Tollev has heard all he needs to hear of this " Tolley stepped around his desk and told Ballard to leave Hammed alone and then instructed Hammed to go back to work. Hammed said, "No, Mr. Tolley, I am too nervous to even try to finish up the day. I am going home, but I will be back." She told him she would notify him later in the day when she would be back, and then left the store. Chilcote testified briefly concerning these events. Except as to variation in minor detail, he generally supported Hammed His version was that Tolley answered Hammed when she came up to his office that day, "No. I have lost all respect for anything you might have to say in regard to any things that are happening to you." Chilcote added that after Hammed had left he turned and pointed to Ballard and said, "This girl, Mr. Tolley, is out of place this morning. Her job is our office help, not to correct the help," but Tolley made no reply. Supervisors Laury and White, who testified at the hearing, were not ouestioned about the above incidents. Manager Tolley's testimony was not materially incon- sistent with that of Hammed; on cross-examination he said he did not remember seeing Ballard touch Hammed. Nor is Ballard's testimony substantially in conflict. She indicated that on the morning of July 22 when she happened to be downstairs -she was in effect provoked by a "dirty look" from Hammed; that when Hammed -started to use the telephone she "was going to walk right over me and I had my hand .on her shoulder lightly pushing her back." According to Ballard, all that happened 10I note the complaint attrihntes the "lesser of two evils" statement to Laury, rather than to Tolley as Hammed testified. LEGGETT'S DEPT. STORE OF PRINCETON , W. VA., INC. 415 after they went upstairs was Hammed's statement to Tolley that she was going home, Tolley's instruction to Hammed to go back to work, and a remark by Ballard, "Mrs. Hammed, you are as able to work as I am." She denied having her hands on Hammed upstairs. Based on her demeanor on the stand and the weight of all the evidence concerning these incidents, I do not credit Ballard in the respects inconsistent with Hammed and Chilcote. Another item of evidence, which I regard as important and significant, is the un- denied and credible testimony of Chilcote concerning a discussion in the store of the publicized Intermediate Report on the morning of July 22 among Tolley, Chilcote, Supervisor White and his wife, and Janet Ballard and her husband. Tolley said, "This is just a ruling handed down by the Trial Examiner. You know who is going to pay for this, don't you. It is going to come out of our profit-sharing." As shown in the record, the employees participate in the profit-sharing plan on the basis of prescribed conditions. Findings While Tolley did mildly reproach Ballard in the office upstairs to leave Hammed alone and to go back to work, I find this was scarcely sufficient in all the circum- stances of that day. Indeed, Assistant Manager Chilcote was openly disturbed by Ballard's conduct and plainly sought to move Tolley to correct the situation, but his remark to Tolley found no response. It is reasonable, and I conclude, that Tolley precipitated and was effectively responsible for Ballard's behavior on July 22, absent later disavowal or discipline of Ballard, when he indicated that the backpay recom- mended by the Trial Examiner in the prior case would have to come out of profit sharing. This latter statement in and of itself was violative of Section 8(a) (1). These factors, combined with Tolley's refusal to listen to Hammed's complaint about Ballard and his mean statement that he lost all respect for what she might have to say about things happening to her, add up in my judgment to unlawful harassment, restraint, and coercion of Hammed and the employees generally, particularly in light of the similar and other unfair labor practice findings already outstanding against Respondent. I reach the same conclusion with respect to Supervisor White's remark, "Weren't you ashamed to come through that door this morning." Certainly, the part played by Hammed in the earlier case, as well as her established union sympathies, gave rise to these July 22 incidents and conduct, which are attributable to Respond- ent and constitute deprivations of the guaranteed rights of employees under Section 7 of the Act. The 8(a)(3) and (4); Hammed's Absence Since July 22 In the morning of July 22, following her departure from the store, Hammed tele- phoned her family physician, familiar with her general condition of health. This was the same doctor involved and identified in the record and Board decision of the prior case who had "ordered her to stay away from the store for awhile" during her absences found by the Board as constructive layoffs. He again advised her to remain away from work. Afterward that day she telephoned Tolley at the store and told him she had called her doctor and was advised "to remain away from work until my condition and all had improved and conditions at the store had improved, and I was too nervous to work, and T would call him on the evening before I felt like I could come back to work." Tolley said, "All rightee." 11 On August 7, Hammed, per- sonally visited her doctor. On her request, the doctor wrote on a small prescription form bearing his heading-"This is to state that Betty Hammed called me on the telephone July 22 seeking medical advice. She stated that she was extremely nervous and I advised her to rest until her condition improved." 12 At all times after July 22 Hammed remained away from the store and no attempt to communicate was made either by Hammed or Respondent. On July 28 the charge in this case was filed with the Board on behalf of Hammed, and Respondent was served a true copy thereof by registered mail dated July 31. On August 5', there was a meeting with Manager Tolley in his office attended by Assistant Manager Chilcote, Supervisors Laury and Shoda, and employee Guard. Chilcote credibly testified that it was then decided that since Hammed had been gone and had not called, she should be relieved of her department and in her place Guard 11 The text reflects Hammed's credited testimony. Tolley's version was not mconrstent 12 The exhibit was offered and admitted , over objection, not for the truth of the matter stated therein but for whatever weight, if any, it might be entitled to as corroborative of Rammed's testimony. 416' DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be given charge Chilcote explained how that decision would adversely affect Hammed's earnings: "When a person is dismissed from a regular duty in the line of department head ., that would mean that as of that point and for that year there would be no [bonus] paid from that department as a department head," the bonus being computed on the basis of 2 percent of the annual net profit of the department.13 Findings In the prior case the Board found separate violations in Respondent's treatment of Hammed, including (a) urging her to get her pay and walk out, (b) prohibiting her from talking, (c) directing the office girls to listen in on her telephone conversations, (d) offering her advance pay without working, if she would quit, (e) threatening to fire her when she declined to quit, (f) refusing to permit her to take a customary vacation, (g) threatening to "fix" her when she declined openly to react to certain provocations and harassments by Tolley, (h) permitting supervisors and employees to surround her in an effort to get her to quit, and (i) constructively forcing her layoff for two periods under circumstances similar to those on July 22. (It is noteworthy that Respondent was on notice of the Intermediate Report, ultimately adopted by the Board, when the proscribed conduct against Hammed took place on July 22.) Of serious impact and weight on the question is the credible testimony in the present case of Assistant Manager Chilcote, in effect constituting admissions by Respondent Several times Tolley mentioned to him regarding Hammed that he was going to have to transfer her "upstairs or downstairs or out the front door." A month before the hearing, Tolley told Chilcote he was just going to get rid of Hammed from her de- partment, that "She has got to go, and I am going to see that she goes." In July 1961. Supervisor White said in the presence of Chilcote and Tolley that "Miss Schultz was sent down to the basement and if you send Hammed down I will get rid of her too." 14 The conditions in the store on July 22, after the publicity of the earlier Inter- mediate Report, reasonably and understandably became intolerable to Hammed, e g., Tolley's indication that the recommended backpay would have to come out of profit sharing; his inciting and countenancing Ballard's harassments and violence against Hammed; his refusal to listen to Hammed's complaint about Ballard; his statement that he has lost all respect for what Hammed might have to say; and Supervisor White's humiliating implication that Hammed should be ashamed, because of her role in the prior case, to even make an appearance in the store. Such conduct, consistent with Respondent's well-demonstrated determination to force Hammed out, I find was calculated to and did successfully make Hammed's job unbearable.ls Her ultimate departure on July 22, in face of the kind of reception accorded her by management after her vindication by the Trial Examiner, was a rational recation which would be that of any self-respecting employee. The act of removing Ham- med on August 5 from her job as department head was a mere formality. Until that time Respondent was perhaps not sure whether Hammed would attempt to come back, as she had on previous occasions when she had indications, through the inter- vention of her father, a deputy sheriff, and on Tolley's assurances, that the unlaw- ful pressures against her would cease. When Respondent received service of the charge filed with the Board on July 28, it was then apprised and on notice that Hammed would remain out until there were proper assurances that the objectionable conditions were eliminated. I find, as alleged, that Respondent in effect or "constructively" terminated or laid off Betty Hammed on July 22, and at all times since, and that on August 5 it formally removed her from her position as department head of the accessories department, all 13 Shoda did not testify ; Guard was not questioned Tolley was questioned concerning the August 5 meeting only on cross-examination and he admitted that Guard was pro- moted to Hammed's position, later saying, "That may not be permanent " As to Hammed, he said he considered her at the time as in temporary layoff status Laury testified Guard was not made a department head but was merely "looking after" the department Against Chilcote, the fact that Respondent had notice of the charge herein mailed to it on July 31, the inconsistencies in their testimony, and their demeanor as witnesses, among other things, I do not credit Tolley and Laury. 14 The threat is implicit although it appeared that Schultz was still working at the time of the hearing Tolley was not asked about this statement; White did not recall 15 See, e g, N LRB. v Palm Beach Broadcasting Corp , 155 F. 2d 805 (C A 5) N.L.R B. v. Saoc-Glassman Shoe Corporation, 201 F. 2d 238 (C A 1) , Olin Industries. et at., 97 NLRB 130, 133, 149. LEGGETT' S DEPT. STORE OF PRINCETON, W. VA., INC. 417 because of her union activities and sympathies and because she gave testimony in Case No. 9-CA-2278, supra, and thereby violated Section 8(a)(3) and (4) of the Act 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 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 IV. THE REMEDY Respondent is already under a broad injunction, by virtue of the Board Order on December 12, 1961, to cease and desist in any manner from infringing upon the rights guaranteed employees in Section 7 of the Act, and specifically from engaging in the enumerated unfair labor practices found in the prior case. Particularly in view of the findings herein, I can recommend no less than the repetition of a broad cease-and- desist order. Having found that Respondent has engaged in certain unfair labor practices, I will also recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found, inter alia, that Re- spondent violated Section 8(a) (1) by announcing, upon the publication of the Inter- mediate Report in Case No. 9-CA-2278, that the backpay recommended by the Trial Examiner (for eight employees) would come out of the profit sharing participated in by its employees. Because of the unusual character of such an announcement and the implications of its widespread and seriously coercive impact on the organizational activities of its employees and on their ability to obtain effective redress under the Act, I will recommend not only that Respondent cease and desist from such announcements but,that it affirmatively issue a proper retraction thereof. It will be recommended that Respondent offer Betty Hammed immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she would normally have earned in the form of wages, bonuses, and profit sharing, absent the discrimination, from the date of the termination or layoff on July 22, 1961, to the date of the offer of reinstatement, less her net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Store Employees Union, Local 347 Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating against Betty Hammed because she gave testimony under the Act and because of her union activities and sympathies, thereby discouraging mem- bership in the above-named labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4) and (3) of the Act. 3 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Except as found herein with respect to Jane Ballard's conduct on July 22, 1961, Respondent has not violated the Act in connection with the conduct of employees Naomi Guard, Janet Ballard, Helen Ellis, and Alma Belcher alleged in the com- plaint as agents of Respondent. [Recommendations omitted from publication.] 64985G-63-vol. 137-28