Fabric Mart Draperies, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fabric Mart Draperies , Inc. and Branka Veljkovic. Cases 13-CA-8740 and 13-CA-9013 May 12, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On November 26, 1969, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Exam- iner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed cross-exceptions to the Trial Examiner's Decision and a brief in support of cross- exceptions and in answer to Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in' con- nection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions,' cross-exceptions, and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as herein modified. The Trial Examiner found, and we 'agree, that Respondent constructively discharged Branka Veljkovic on January 3, 1969, in violation of Section 8(a)(3) and (1) of the Act; that she should be offered immediate and full reinstatement to a position substantially equiva- lent to her former position, without prejudice to seniority and other rights and privileges; and that she should be made whole for any resulting loss of pay from January 3, 1969, to the date she is offered reinstatement, less her net earnings during that period. The Trial Examiner also expressed the "opinion based on . . . medical evidence . . . that Veljkovic's physical condition did not preclude her from engaging in her regular work as a sewer for more than at most a few days beyond January 3, 1969 . . . and that for all practical purposes her backpay should start with April 1, 1969, when she applied for reemployment and was turned down." However, the Trial Examiner "[made] no findings thereon" because he regarded this question as a matter for determination at the compliance stage of this proceeding. We do not agree with these statements for the following reasons: As the Trial Examiner correctly found, Respondent on September 26, 1968, punished Veljkovic in violation of Section 8(a)(1), (3), and (4) of the Act by assigning where she was exposed to a draft which became increas- ingly cold during the approximately 3 months until Janu- ary 3, 1969, when she became ill and told her foreman that she was unable to work. The Trial Examiner also properly found on the basis of the credited testimony of Veljkovic's personal physician, Dr. Robert A. Best, that the draft at her work station so aggravated her arthritic condition as to prevent her from going to work early in January. The record further shows that it was not until April 1, 1969, that Dr. Best, who examined Veljkovic on five separate occasions, released her as medically fit for employment As it is clear from the foregoing that Veljkovic, who was constructively discharged on January 3, 1969, was unable to work from that date until April 1, 1969, because of illness which was attributable to the unlawful conduct of Respondent, we disavow the.Trial Examiner's "opinion" and affirm his "finding" that the backpay period should extend from January 3, 1969, to the date of an offer of reinstatement by Respondent.' According- ly, there remains for the compliance stage only a determi- nation as to the amount of backpay. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that Fabric Mart Draperies, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Delete from paragraph 2(a) of the Trial Examiner's Recommended Order the words "in the section of this Decision entitled `The Remedy' " and substitute therefor the words "in the Board's Decision." this work area As the presence of one other employee would not affect the validity of his finding that this work station was "essentially isolated ," we find it unecessary to evaluate the opposing contentions of the parties Y See M F A Milling Co , 170 NLRB No I1 1 , American Manufactur- ing CompanA, of Texas, 167 NLRB 520 TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner: The Charging Party herein is Branka Veljkovic, a woman of foreign birth, who commenced-'erhployment with the Respondent Company as a sewer of fabrics in 1966, was discriminato- rily discharged on December 22, 1967, and was reinstated on June 24, 1968, as a result of a prior unfair labor practice proceeding before the Board pursuant to an order of a Trial Examiner after a full trial." ' her to a "remote and essentially isolated work station"' ' As reported in the Decision of Trial Examiner Butt in Case 13-CA-8198 and the Order of the Board adopting Examiner Bott's Decision which are of record herein as G C 's Exh 3 Examiner The General Counsel and Respondent differ as to the correctness Bott's Decision was issued on June 6, 1968, the Board adopted his of the Trial Examiner's finding that a cutter was also assigned to Decision on July 22, 1968, Branka Veljkovic was returned to work 182 NLRB No. 55 FABRIC MART DRAPERIES ' The issues in the present proceeding are whether the Respondent, upon reinstating Branka Veljkovic, sub- sequently committed various acts with respect to her in violation of Section 8(a)(1) and (4) of the National Labor Relations Act, and eventually caused her discrimi- natory constructive discharge- as of January 3, 1969, in violation of Section 8(a)(3) of the Act. The specific issues under Section 8(a)(1) are: (1) the assignment of ,Veljkovic upon her reinstatement on June 24, 1968, for a period of 20 days to an isolated work station as retribution for using Board processes; (2) her later reassignment to an isolated station from September 26, 1968, through January 2, 1969, as further retribution ,for using Board processes; (3) loss of hours of work by Veljkovic brought on by illness allegedly provoked by the discriminatory assignment of work from Septem- ber 26, 1968, through January 2, 1969;2 (4) alleged failure of Respondent to reemploy Veljkovic on April 1, 1969, pursuant to her reapplication for employment; (5) alleged unlawful interrogation of Veljkovic by Respondent's Vice President William Shapiro on or about July 15, 1968, about her conversation with an agent of the Board and alleged insulting remarks by Shapiro during the course of the interrogation to her concerning her country of origin and personal appearance; (6) alleged statement by Respondent's President Morris Shapiro to Veljkovic on or about October 21,1968, upon her complaints about her working conditions, that she would be assigned to any area of the plant that Respondent decided to place her, and that she could quit if she was dissatisfied; and (7) an alleged unlawful interrogation of Veljkovic on or about November 10, 1968, by Respondent's Vice President William Shapiro about the charge she filed in Case 13-CA-8740 herein on October 29, 1968, and alleged insulting remarks to her by Shapiro during the course of the interrogation concerning the country of her origin. Additionally there are issues under Section 8(a)(4) and (1) of the Act of whether Respondent engaged in the conduct and acts described in the above sentence under numbers (1) through (4) because Veljkovic filed charges or gave testimony under the Act. The consolidated complaint herein was issued on July 14, 1969, together with an order consolidating the two indicated cases for trial and decision. The charge in Case 13-CA-8740 was filed on October 29, 1968, and by Respondent on June 24, 1968, approximately a month before the Board entered its order adopting Examiner Bott's Decision 2 This issue reflects an oral amendment at the trial of par VII (c) of the complaint Originally, the subparagraph in question read (c) During the period from January 3, 1969, through March 31, 1969, Respondent did cause Branka Veljkovic to lose hours of work As amended the subparagraph now reads (c) From January 3, 1969, through March 31, 1969, Branka Veljkovic did go on sick leave, and that as a result of such sick leave, she did lose hours of work, and that the sick leave was a result of an illness caused by the discriminatory assignment of work from September 26, 1968 through January 2, 1969 The amendment was allowed by the Trial Examiner subject to the condi- tion that it be submitted in writing The Examiner deems the statement of the amendment by General Counsel in his brief to be a compliance of the condition 391 served upon Respondent on October 30, 1968. The charge in Case 13-CA-9013 was filed on April 8, 1969, and served on Respondent on April 10, 1969. The case was heard at Chicago, Illinois, on August 26 and 27, 1969. Briefs have been filed by counsel for General Counsel and by counsel for Respondent. These have been carefully reviewed and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation engaged in the manufacture and sale of draperies with a factory and showroom in Chicago, Illinois, and various stores else- where in Illinois, Indiana, and Wisconsin. During the year prior to the issuance of the complaint, Respondent manufactured and sold, products at retail, the gross value of which exceeded $1,000,000. During the, same period, Respondent purchased materials outside the State of Illinois valued in excess of $1 million which materials were shipped directly to it in Illinois. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent's factory in Chicago is the only one of its facilities involved in this proceeding. 11. THE LABOR ORGANIZATION INVOLVED At all times here pertinent Respondent had a contract with Local,No. 18, Upholsters' International Union of North America, AFL-CIO, covering wages, hours, and working conditions of certain of its employees at its Chicago facility. The Union is a labor organization within the meaning of Section 2(5) of the Act.3 III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent's principal place of business is a one- story 67,000-foot plant at 1401 East 95th Street, Chicago, Illinois, built to its specifications 3 years ago where it maintains a factory, showroom, and warehouse. The Chicago plant manufactures the draperies sold at Respondent's, various retail stores in Illinois, Indiana, and Wisconsin. Morris and William Shapiro, brothers, are president. and vice president of the Company, respec- tively, and have held such offices for the past 16 years. Respondent's business has expanded and prospered under their management. Their executive offices are at the Chicago plant. The principal manufacturing activity at the plant is the manufacture of draperies. The Company employs between 60 and 70 women in its drapery department to sew draperies. At the time here pertinent the Respond- ent also maintained an upholstering department at its 8 The findings of the above paragraph are based in part on the findings of Examiner Bott in the prior proceeding in Case 13-CA-8198, supra , and in part on the record in the present proceeding 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chicago plant where it employed approximately nine meh and two women. In ' 1968, Respondent had gross sales of $5,800,000 from its total operations, of which approximately $5,700,000 was derived from the sale of draperies and the 'remaining $100,000 from its uphol- stering activities. This proceeding relates solely, to Respondent's uphol- stery department where the. Charging Party, Branka Veljkovic, was employed. As heretofore noted, Branka Veljkovic after her discri- ninatory discharge of December 22, 1967, was reinstated on June 24, 1968, pursuant to the order of a Trial Examiner in a prior unfair. labor practice proceeding against the Respondent. A native of Yugoslavia, she was hired by Respondent in May of 1966' and assigned to sewing work in the drapery department. In July of 1967, she was transferred to the upholstery department where she sewed covers for upholstered furniture. The upholstering department where Veljkovic worked prior to her discharge consisted of a corner room divided into two parts by a horizontal wall and a connecting door.' The upper or north part of the divided room was the larger of two. This 'was the work shop where all of the upholstering employees worked. The lower or south part of the room was used for the storage of completed upholstered furniture and janitor supplies. 'The double room occupied by the upholstering depart- ment is markedly distinguishable 'from all other spaces in the same general area' of the plarit as it is enclosed by concrete walls from floor to ceiling whereas all other adjacent and nearby areas are separated one from the other only by open wire fences that extend only, halfway to the 16-foot ceiling. Upon.her reinstatement, Veljkovic was isolated from the rest of the upholstery workers in the north room of the department and placed at a work station in the adjoining south room where she was required to work alone. This assignment to an isolated work station took place after Veljkovic had called Vice President William Shapiro in response to a letter she had received offering her reinstatemnt. Her credited testimony shows that in speaking to Shapiro she said that she understood from the letter that the Company "want me to come back" and that Shapiro replied, "I don't want you. My lawyer wrote that letter." , Being unhappy with her new work station because of its isolation from all the other upholstery employees she asked Knute Miller, her foreman, shortly after her recall why she had been isolated to the storage room away from all the other upholstering employees. Miller replied that was what she "deserve[d]." William Shapiro testified that he assigned Veljkovic to the, storage room because he needed more space in the regular upholstery workshop. This testimony is not credited because other testimony by Shapiro shows that the upholstery department had the same number of employees throughout the period here involved and for further reason that the testimony of President Morris Shapiro also shows that additional room was not needed until the usual fall expansion of business later in the year. Not receiving any satisfaction from her foreman on her complaint about being isolated to the storage room, Veljkovic complained about her working conditions to Richard Simon, a regional agent of the Board who took an affidavit from her on the matter. It appears that the Board agent took the matter up with Respond- ent's management because shortly thereafter William Shapiro on or about July 15 looked Veljkovic up at her work station in the storage room where according to her credited testimony he took her to task and interro- gated her about her complaint to the Board as follows, "Branka, are you starting trouble-making trouble for us? What did you tell over there? What are you complain- ing' for, you big animal?" She admitted to Shapiro that she had given the Board agent a written statement on her complaint. The next day Shapiro 'put Veljkovic back to work at her old work station in the regular upholstery work shop where all the other upholstery employees worked. On about August 1, 1968, Veljkovic spoke to Business Agent Martin, Garber of the Union representing the employees in Respondent's upholstery department con- cerning overtime for work on Saturdays and vacation pay she believed she was entitled to, but as nothing came of this she again spoke to Garber on September 25 about the matters and also raised the question of whether she was not'entitled to a raise. Both conversa- tions took place at Veljkovic's work station while Fore- man Miller was in the room. Garber retired to talk to William Shapiro privately about these matters. Later Veljkovic was summoned by Foreman Miller to meet with Shapiro and Garber in the Company's cafeteria. There Shapiro informed her that she would be moved to a different job at a different machine where she would be put to sewing cushions exclusively and that he expected her to produce 16 to 18 cushions per day. Garber protested this work level as being wholly impossi- ble. The outcome of the dispute over Veljkovic's pro- posed work level and claimed overtime is not reflected by the record but Garber did secure for Veljkdvic a 10-cent wage raise 'per hour. The next day, September 26, she was transferred out of the fully enclosed upholstery room to an adjacent open area whose only, separation from other open space was an open wire fence as heretofore described. Although now isolated from the regular upholstery department, she was within talking distance of other employees on the other side of the fence. Her new work area was about the same size as the regular uphol- stery room or approximately 30 feet wide by 65 feet long. Her sewing machine was placed in the northwest corner of the fenced-in area. In her new work station, she sat with her back against the rear wire* fence and her right side against the fence on the west side of the wire enclosed area. The wire fence ' to the south of her separated her fenced area from the shipping and packaging department. The south side of the latter department had a double sliding door,, about 25-feet wide in all, leading to a shipping platform at which trucks were loaded and unloaded. The doors were kept open approximately 2 hours each day for loading purpos- FABRIC MART DRAPERIES es. When the door was open , there was nothing to stop the cold air from the outdoors from reaching and blowing on Veljkovic at her sewing machine some 80 feet from the door . Documentary evidence of record shows that the weather in Chicago in December and January 1968, was quite frigid. (A diagram showing the various areas described above is hereto annexed as Appendix A. Among the areas depicted is a fenced- in area marked "New Uph . Dep't." Veljkovic's new work station was in the northwest corner of this area at the place marked " Sewing Machine.") Shortly after her transfer to her new work station in the fenced-in area, Veljkovic complained to Foreman Miller about the cold drafty condition around her station during a substantial portion of each day from the open doors of the shipping department. Some two months later in early December she also complained , to Miller about the lack of heat from the ceiling vent above her work station . He told her he could not do anything about it . Two days later she again bitterly complained to Miller 'about the coldness at her work station and pleaded with him to do something about it . He replied that he would try to get the building engineer to look into it. As the condition was not correct- ed, she ' again spoke to Miller the following week and begged him to get her more heat as she was finding it impossible to work at her unheated work area. He ieplied that he would 'see about it but nothing was done . Some days later she took sick with a cold and felt discomfiture in her ' nose , neck , and back. This made her' so ill that she was out fora day on sick leave . Upon returning to her job the following morning she spoke to Miller as she reported to work and asked him if the lack of heat had been fixed . He replied, "No, not yet." An hour later when Miller approached her work station , she again asked him if he could do something about giving her more heat as it was very cold and she was feeling sick again . He told her he Could do nothing for her until he saw the building's engineer. She had no heat at all that morning as no heat was coming from the heat vent above her. At noon she again began, to sneeze and feel pain in her head , neck , and back and being unable 'to continue work she went home for the afternoon . The next morning before starting - work she again asked Miller if he had had the heating situation corrected . He replied not yet. Later that morning the engineer came to her station and opened the vent so that heat could come through. Both before and after the heat vent was corrected to give the area around Veljkovic ' s work station more adequate heat, she was still subject to drafts from the open door in the adjoining shipping and packaging depart- ment for 2 or more hours a day while trucks were being loaded or unloaded . Some days after the heat had been fixed , she again complained to Miller about the frigid winter wind coming from the outdoors through the open doors of the adajacent shipping ' department. She complained that the draft caused her pain in her back. She also complained to Miller from time to time about being isolated from all the other upholstering 393 employees who were stationed in the regular enclosed upholstering room where working conditions, including heat and light, were better. She testified that she was the only upholsterer worker placed in the fenced-in open area. On the other hand, the two Shapiro brothers testified that a cutter was also transferred out with Veljkovic from the regular upholstering room to the wire fenced area and that he was placed along side of her some 3 or 4 feet away. As Veljkovic was not called on rebuttal to dispute the testimony by the Shapi- ros that the cutter was also transferred, with her to the new area, their testimony is'credited and her testirrio- ny to the extent that' it conveyed the impression that she was the only upholstery 'worker transferred out of The regular upholstery room to the fenced-in but otherwise open area is not credited. Veljkovic also complained to management from time to time about the poor electric lighting over her work area and about her malfunctioning sewing machine'. During the same period that Veljkovic made, her com- plaints to management about the unsatisfactory working conditions at her new work station, she also made the same complaints to Board agents. About the middle of October, she telephoned the aforementioned Board agent, Richard Simon, and complained about the working conditions at her new work station." Two days later Simons interviewed Veljkovic.at her home after working hours about her complaints. In the meanwhile, Foreman Miller, beset and troubled by Veljkovic's constant com- plaints, brought her complaints to the attention of Presi- dent Morris Shapiro and asked him to speak to her; he thereupon went to her station and asked: "Branka, are you still trying to make trouble for us? What'about are complaining over there? What for?" She repeated her complaints about her malfunctioning sewing machine, the poor lighting, and her dissatisfaction with her new work station. Her credited testimony shows that Shapiro replied, "You try to, teach us how to run the business. If you don't like it, why don't you quit." Shapiro in his direct examination was asked by Respondent's attorney if he had told Veljkovic on this occasion that he had "the right to assign her wherever he pleased throughout the plant." Shapiro stated that he did not recall the exact wording he had used in talking to Veljko- vic but stated "I may have indicated that her assignment to this area was very much in order, and that was where she was going to work . . . that was our decision, and there was no reason why she could not work there. 11 About a week later , Veljkovic met with Board Field Examiner Rush Hall and signed the charge herein in Case 13-CA-8740 which was filed on October 29, 1968, and served upon Respondent on October ' 30, 1969. Vel- ' While Vellkovic's testimony shows that she complained to Board Agent Simon- about the working, conditions, at her new work station, her testimony does not specifically show lust what she complained about to Simon ' The inference, however, is clear from the record that her complaints to Simon were the same as she had been making to management, namely, the drafty condition around her work station, the poor lighting over her sewing machine, and the faulty operation of her sewing machine 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jkovic's credited testimony shows that some days after she signed the charge Vice President William Shapiro, who had jurisdiction over the upholstering department, came to her station, placed his copy of her charge before her and demanded, "Do you read English" Did you write her, this)" Upon her acknowledgment that she had signed the charge, Shapiro said to her, "What country you come from" you should be sent where you come from " Shapiro admits questioning Veljkovic if she had signed the charge, but denies making the remarks attributed to him by Veljkovic His denial is not credited Veljkovic was kept at her new work station from September 26, 1968, until January 2, 1969, despite numer- ous protests each week to Foreman Miller that she was finding the cold blasts blowing on her through the open doors of the shipping department intolerable Vice President William Shapiro acknowledged that Miller frequently called his attention to Veljkovic's complaints about her discomfort from the draft During one of her protests to Miller, Veljkovic sought to demonstrate to him her discomfort from the draft by inviting him to station himself at her work station She said to him, "I like you to stand here Just to stand where I sit for eight hours Wind from the door, and when motor running, open door, it is cold outside It come right in my back I asked him to stand where I sit down for eight hours " On January 2 while at work she came down with a bad cold and felt pain in her neck and back The next day, a Friday, she telephoned Miller she was unable to work that day because of illness and that she was going to see a physician Miller told her to take care of herself On the following Monday, January 6, she saw her physician, Robert Best, M D , at his office at the Whiting Clinic at Whiting, Indiana, with complaints of trouble in her hip and inner left calf muscle Dr Best, who was General Counsel's first witness, testified that from his physical examination of Veljkovic he determined that she had a flare up of an old arthritic condition in her back which had been discovered by X-ray on February I of the previous year The X-ray report of that date by radiologist R L Mason, M D , of the same Whiting Clinic (G C Exh 2) states "The lum- bar vertebral bodies and interspaces are normal, except for the lumbosacral joint, which shows a mild degree of narrowing and degenerative osteoarthrosis " The report also shows that her left hip was "normal, with no evidence to suggest inflammatory or neoplastic dis- ease " Dr Best testified that "there is practically no medical doubt that her [Veljkovic's] condition could be aggravated" by a draft on her from the cold outdoors at her work station At the time her back was X-rayed, Veljkovic was 42 years of age, weighed 182 pounds, and was 5 feet, 1 inch in height Dr Best's testimony shows that the "forties are when people get some arthritic changes " Although the X-ray did not show arthritic changes to an abnormal degree, Dr Best testified that the mild degree of osteoarthrosis in her lumbosacral joint in combination with overweight was sufficient to cause the symptons for which she sought medical relief Dr Best testified that she is at least 50 pounds overweight Although the condition of Mrs Veljkovic's lumbosacral joint is commonly referred to as arthritis, the correct medical name for the condition is osteoarthrosis This is the term used in the X-ray report Osteoarthrosis is a permanent condition which worsens with age, but its symptoms vary from person to person Such symp- toms may become better or worse in the course of days or weeks or months Following his January 6 examination of Veljko.'ic, Dr Best placed her on a pain relieving drug and advised her to stay off work for 2 weeks He examined her again on January 20, found her condition unchanged, prescribed the same drug treatment, and advised her to still stay off work He examined her again on February 13 and March 4, found her condition the same, and again advised her to stay home But on March 13, he found her back, legs, and reflexes were normal and discontinued medication for her He gave her a note upon her request for her employer to the effect that she had been under his care from January 6, 1969, and could return to work on April 1 During the course of her illness, Veljkovic on or before January 19, 1969, called Foreman Miller again to notify him of her continuing illness and to inquire whether the Company required a medical certification of her illness from her doctor Upon instructions from Miller, she obtained a form for this purpose from the Union which Dr Best filled out and sent to the Company In the meanwhile, the Respondent had decided to close up and discontinue its upholstering department as of January 19, 1969, and to thereafter contract out all of its upholstering orders All employees in the upholstering department were terminated on January 19, excepting for a single employee who asked for and received a transfer to its fabric department The credited testimony of Veljkovic shows that Miller did not inform her about the closing of the upholstering department when she called him at the indicated time in January At about the same time that Veljkovic called Miller in mid-January, Veljkovic received a telephone call from Respondent's switchboard operator who told her that Vice President William Shapiro had asked her to inquire how she felt and when she would be returning to work Velkovic replied that she was going to see her doctor in a day or two and would let the Company know immediately after that when she could return to work The switchboard girl told her that she had been instructed by Mr Shaprio to tell her that she was not to report to work without first telephoning the Company Like Foreman Miller, the switchboard operator did not inform Veljkovic that the Company's upholstery department had been or was about to be discontinued After seeing her doctor, Veljkovic called the Company to leave word that she would stay home for another 2 weeks upon advice of her doctor, but as noted above she remained away for a much longer period on the subsequent advice of her doctor FABRIC MART DRAPERIES On the first day of April, Veljkovic telephoned William Shapiro to tell him that her doctor had released her for work, and asked when she should report for work. Shapiro told her that the upholstering department had been closed and that there was no work for her any more. She asked what had happened to her former coworkers in the department. Shapiro replied that they had been laid off. She asked whether she too was laid off. Shapiro said, "Yes." Her final question was, "Could I anything do?" The Examiner interprets this as a request for work in other departments of the Company. Shapiro responded, "No, no more work. "5 Although Shapiro in talking to Veljkovic told her in effect that he had no work for her anywhere in the plant, the record by stipulation shows that the Respondent had hired women from January 1969 to the date of trial herein in August 1969 for work in its drapery department comparable to the sewing work Veljkovic had done when she was employed in the Company's drapery department from May of 1966 until June of 1967. When counsel for General Counsel during his redirect examination of Veljkovic asked her why she had made no further efforts to contact the Company for employ- ment after her conversation with Mr. Shapiro on April 1, she stated, "I was afraid to talk anymore with Mr. William [Shapiro]. He is not glad to take me back. It is plain he don't want me. He move me from one place to another." The principal reason given by the Shapiros for Veljko- vic's above-described second transfer out of the regular upholstering shop is similar to the reason they gave for not having immediately returned her to the regular upholstery shop upon her reinstatement on June 24, 1968, pursuant to Board order. Respondent's asserted reason for Veljkovic's second transfer out of the uphol- stery shop on September 26, 1969, is that it needed more space in the shop in order to put on additional upholsterers whose work with large pieces of upholstery would necessarily require more work space. The evi- dence, however, shows that Respondent in fact did not hire additional upholsterers after Veljkovic's transfer out of the regular upholstering shop. The record further shows that at about, or possibly before, the time of Veljkovic's transfer, Respondent's board of directors had already determined to close out or discontinue its upholstery department and that Foreman Miller of the shop had been so informed. It should be noted, as stated in General Counsel's brief, that General Counsel does not contend "that Although Shapiro in his testimony at first denied that he had such a conversation with Veljkovic, he later admitted the conversation when confronted with an affidavit he had given the Board on May 21, 1969, showing that such a conversation had actually taken place The affidavit, however, states that the conversation took place on January 20, 1969. Shapiro could not explain the discrepancy between the January 20 date given in his affidavit for the conversation and the April 1 date given by Veljkovic in her testimony as the date of the conversation The Examiner credits Veljkovic that the conversation took place on April 1, 1969 395 the disestablishment of the upholstery department on January 20 [1969], was, in itself, violative of the Act." There is no evidence in the case that Respondent was dissatisfied with either the quality or quantity of the work performed by Veljkovic. In the prior proceeding before the Board involving Veljkovic as a Charging Party and the Respondent, the Trial Examiner found that "Veljkovic was a competent worker, and, as a matter of fact, Shapiro chose her out of group of 50 sewers to train as an upholsterer." The only persons who testified in this proceeding are the Charging Party Veljkovic and her physician, Dr. Best, and the two Shapiros as officers of the Respond- ent. Discussion and Conclusions The above findings of fact compel the conclusion that Respondent is in violation of Section 8(a)(1), (3), and (4) of the Act as alleged in the consolidated complaint and detailed in the statement of the issues shown in the forepart of this decision. Although the record shows Mrs. Veljkovic, the Charg- ing Party, to be a competent and valuable worker, the record here as well in the prior proceeding also reveals that she is a highly emotional and difficult person, much given to complaints and the aggressive assertion of her rights. It is thus understandable why her relationship with the management of Respondent has been strained both before and after her reinstatement. Counsel for Respond- ent in his brief concedes "that the relationship between Branka [Veljkovic] and Shapiro [Vice President William Shapiro] was not a friendly one, and Shapiro was overly sensitive to Branka's constant complaints." Respondent in its brief further concedes that the "instances indicated in Branka's testimony in connection with name-calling and insults, are manifestations of Shapiro's irritation. f1 The concern here , however , it not into the interperson- al relationship between Veljkovic and the two Shapiro brothers who run the Company 's business , but whether the Respondent through the Shapiros as its chief officers engaged in overt conduct and acts in violation of the Act. Of this the record leaves little doubt . Respondent's first act upon reinstating Veljkovic on June 24, 1968, was to assign her to an isolated work station in a storage room separated from the adjoining regular uphol- stering shop where all the other upholstery employees worked . While it is normally the prerogative of an Employer to place an employee anywhere in the plant he sees fit, such an act of placement becomes suspect where the motivation appears to be retribution against the employee for using the processes of the Board. The record here clearly points to such a motivation in the assignment to Veljkovic to an isolated work station away from all other upholstery employees. The first indication of this was William Shapiro 's remark to her when she applied for reinstatement that he didn't want her back , but was in effect doing so only pursuant 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the advice of counsel. The second indication is that Foreman Miller of the upholstery department told her when she complained about her new isolated work station that that was what,'she "deserved." These statements by Shapiro and Miller and the fact that the Respondent failed to show any credible economic or business reason or, need' for isolating Veljkovic from the rest of the upholstery employees plainly show an intent to punish her for filing the charges in the prior proceeding leading to her reinstatement. Accordingly, it is found that the act of assigning Veljkovic ,to an isolated work station upon her reinstatement because of her charges in the prior proceeding is a violation of Section 8(a)(1), (3), and (4) of,the Act. _ Further and factually related 8(a)(1) violations also stem from Respondent's act in assigning Veljkovic to an isolated work station. As protests about her isolated work station to her foreman did no good, she complained about her new work station to Board Agent Simon on or about July 15, 1968. The reaction from management was immediate. William Shapiro engaged her in interroga- tion concerning her complaint to the Board and accused , her of, making trouble for the Company .and in the course of his questioning called her an animal. This interrogation of Veljkovic concerning her contact with an agent of the Board is in violation of Section 8(a)(1). N.L.R.B. v. Kolpin Bros. Co., 379 F.2d 488, 490 (C.A. 7). The derogatory remark to her that she was an animal is also in violation of Section 8(a)(1) in the light of the connecting circumstances. J. A. Wasserman, Maryland Sportswear Company, 104 NLRB 70, 73; Stiney's Corp., tia Wolfies, 159 NLRB 22, 25, 26. But as heretofore noted, Mrs. Veljkovic's complaint to a Board agent gained her favorable action. She was returned to the regular upholstery shop on July 16; 1968. But on September 26, 1968, she was again moved out of the upholstery shop and placed at a new work station in an open area in the plant where she was exposed to a draft from the outdoors. Respondent's asserted reason-for this second change of work stations for Veljkovic was that it needed space in the regular upholstering shop for the planned hiring of -additional upholsterers. But inasmuch as the record shows that at or about the time Veljkovic was moved ,out of the regular upholstery shop, Respondent had already deter- mined to discontinue its upholstery department and as in fact no new upholsterers were hired prior to the closing of the upholstering department on January 19, 1969, the Examiner finds that reason given for Veljko- vic's second transfer' out of the regular shop cannot be credited. After her second transfer out of,the regular upholstery shop, Veljkovic lodged numerous complaints to Foreman Miller and also to Board agents about her new isolated work station and its health hazard due to drafts from the outdoors. In mid-October 1968 these brought Presi- dent Morris Shapiro to her work station where he berated her for making the complaints and told her to quit if she didn't like her working conditions. In the light of all the circumstances, the Examiner finds that the remark to her that she could quit if she didn't like where she was working was an implied threat of dis- charge because of her continued complaints to Board agents about her working conditions, in violation of Section 8(a)(1) and (4) of the Act. ` , Later, in November 1968, William Shapiro interrogat- ed Veljkovic concerning the charge she had filed in Case 13-CA-8740 herein and during the interrogation said to her that she ought to be sent back to the country of her native birth. The Examiner finds this interrogation unlawful in violation of Section 8(a)(1) of the Act and finds that Shapiro's remarks to Veljkovic that she should be sent back to the country of her origin under the circumstances of the interrogation to be an additional violation of Section 8(a)(1). As the record fails to show any bona fide business or economic reason for Veljkovic's second removal from the regular upholstery shop to a remote and essen- tially isolated work station and as all the evidence points to the conclusion that this second change of work stations for Veljkovic was motivated by a desire for retribution because of the charges she had filed in the previous case and the complaints she made to Board agents about her working conditions after her reinstatement, the Examiner finds and concludes that Respondent's assignment of Veljkovic to the new work station in an open area was in violation of Section 8(a)(1), (3), and (4). The final issues herein relate to Veljkovic's loss of her job with Respondent for the second time. In the prior proceeding, it was found that she had been'discrimi- natorily discharged. In the present proceeding, the issue is whether she was constructively discharged as of Janu- ary 3, 1969, by Respondent's conduct and acts, in viola- tion of Section 8(a)(3) of the Act. On the latter question, the entire record must be taken into consideration. This shows that from the date of Veljkovic's reinstatement, the Respondent has taken steps to show that she was back in its employment on sufferance and to create situations designed to cause her voluntary withdrawal from the employment of the Company. The first such step by the Company was her assignment upon reinstatement to an isolated work station, away from all other upholstery workers, in a separate room in which she was the only employee. The record strongly indicates that Veljkovic's sucess in obtaining a reassignment to the regular upholstery shop by her complaints to a Board agent and her subse- quent complaints to the Union's business agent concern- ing her right to a wage increase and backpay for overtime and holiday,pay, increased Respondent's determination to get rid of her. As a result of the intercession of the Union's business agent, the Company on September 25, 1968, agreed to give her a 10-cent-per-hour raise, but at the same time informed her and the business agent that she would be moved to a different job at a different machine. The next morning, September 26, she was again transferred out of the regular upholstery room, but this time as shown above to an open area where she was exposed to the draft from the outdoors for two or more hours each day. As heretofore shown, Respondent did not show any credible business purpose FABRIC MART DRAPERIES in this second shifting of Veljkovic out of the regular upholstery shop. Despite protests several times a week to her foreman of which Vice President William Shapiro from time to time was apprised and complaints to a Board agent, she was kept at her drafty work station for a period of approximately three months until January 3, 1969, when the draft at her work station so aggravated the preexisting arthritic condition of her back as to prevent her from reporting to work on that day. She reported her illness to the Company and kept the Compa- ny informed from time to time of her condition and of the periodic advice of her physician that she abstain from work. The record shows that the Company led her to believe that it had placed her on sick leave. When on April 1, 1969, she telephoned William Shapiro to tell him she was now well enough to work and ready to return to her job, Shapiro told her that the upholstery department had been discontinued and that she no longer had a job with the Company. This was the first notice she had received from the Company that the upholstery department had been closed and her first notice that she no longer had a job with the Company. Under these circumstances, the Examiner finds and concludes that Veljkovic was discriminatorily and constructively discharged in violation of Section 8(a)(3) of the Act as of January 3, 1969, when she reported inability to report to work because of illness. Under the same circumstances, the Examiner finds and concludes that Respondent's failure and refusal to reem- ploy Veljkovic on April 1, 1969, when she applied for reemployment is a further violation of Section 8(a)(3) of the Act. In connection with the latter determination, it is noted that in view of the fact that Respondent was continuously hiring sewers for its drapery depart- ment, it was in a position to give Veljkovic a promise of employment as a drapery sewer when she called William Shapiro on April 1 and begged for any job when she learned that her old job as a cushion sewer for the upholstery department had vanished with the closing of that department, but chose not to. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operation, of 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1)(3) and (4) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. 397 It was found above that Respondent constructively discharged Branka Veljkovic on January 3 , 1969, in ` violation of Section 8(a)(3) and ( 1) of the Act . According- ly, it will be recommended that she be offered immediate and full reinstatement to a position substantially equiva-, lent to her former position , without prejudice to seniority and other rights and privileges , and that she be made whole for any resulting loss of pay from the date of her discharge on January 3, 1969 , to the date she is offered reinstatement , less her net earnings during that period . Such backpay shall be computed on a quarterly basis in the manner prescribed by the 'Board in F. W. Woolworth Company., 90 NLRB 289, and shall include interest at 6 percent as provided by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Although the Examiner is of the opinion based on the medical evidence herein that Mrs. Veljkovic 's physi- cal condition did not preclude her from engaging in her regular work as a sewer for more than at most a few days beyond January 3, 1969 , under corrected work conditions at her work station and that for all practical purposes her' backpay should start with April 1, 1969, when she applied for reemployment and was turned down , the Examiner makes no findings thereon as this is a matter for determination at the compliance stage of this proceeding . See Cambria Clay Products, 215 F.2d 48 , 56 (C.A. 6), and Martech Corporation, 169 NLRB 479 , at fn . 2 in Board 's Decision and Order. It may also be noted that Respondent was in the position to restore Mrs. Veljkovic to her position as a sewer of upholstery in its upholstery department from the date of her constructive discharge on January 3 to 19, 1969 , when Respondent discontinued its upholstery department . Notwithstanding the closing of its upholstery department , the evidence shows that Respondent would have no difficulty in finding for Mrs. Veljkovic substan- tially equivalent employment as a sewer in its drapery department where she had worked as a sewer before her transfer to the upholstery'department. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. It will also be recommended , in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following: CONCLUSIONS OF LAW 1. Respondent, Fabric Mart Draperies, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. By interrogating Branka Veljkovic about her con- tact with the National Labor Relations Board and her 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union or protected concerted activities, and by harassing and threatening her with discharge because of said activi- ties, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1). 4. By transferring Branka Veljkovic to an isolated and less desirable work station, and refusing to reemploy her after she was on a leave of absence, because of her union or protected concerted activities, and because she filed unfair labor practice charges against Respondent and testified against it at a prior unfair labor practice hearing, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Fabric Mart Draperies, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, support of, or activi- ties on behalf of Local No. 18, Upholsterers' Internation- al Union of North America, AFL-CIO, or any other labor organization, or discouraging the filing of unfair labor practice charges or the giving of testimony in unfair labor practice cases, by transferring employees to isolated or undesirable work stations, refusing to reemploy employees on leaves of absence, or in any other manner discriminating against them in regard to their tenure, terms, or conditions of employment, because of their union or other protected concerted activity, or because of their unfair labor practice charges filed with or their testimony in any proceeding before the National Labor Relations Board. (b) Interrogating employees in a coercive manner con- cerning their union activities or sympathies or their conversations with any agents of the National Labor Relations Board, harassing employees or threatening employees with loss of employment if they continue to engage in such protected activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights protected by Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: , (a) Offer to Branka Veljkovic immediate reemploy- ment in her former or substantially position without prejudice to her seniority or other rights and privileges, and to make her whole in the manner set forth in the section of this Decision entitled "The Remedy" for the discrimination against her. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a determination of the amount of backpay due under the terms of this Decision. (c) Post at its factory in Chicago, Illinois, copies of the attached notice marked "Appendix B."" Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered with any other material. (d) Notify the said Regional Director, in writing, with- in 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply here- with.7 fi In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " See page 399 for Appendix A. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership or activi- ties in Local 18, Upholsterers' International Union of North America, AFL-CIO, or any other labor organization, or discourage the filing of charges with or the giving of testimony in any proceeding of the National Labor Relations Board, by transfer- ring employees to isolated or less desirable work stations, refusing to reemploy employees on leaves of absence, or in any manner discriminate against employees with regard to their hire or tenure of employment, or any term or condition of employ- ment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local No. 18, Uphol- sterers' International Union of North America, FABRIC MART DRAPERIES AFL-CIO, or any other labor organization , to bar- gain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or, to refrain from any or all of such activities except to the extent that such right, may be affected by an agreement requir- ing membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the Act. WE WILL OFFER to Branka Veljkovic immediate and full reinstatement to her former or substantially equivalent position without prejudice to any seniori- ty of other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered as a result of the discrimination against her FABRIC MART DRAPERIES, INC. (Employer) Dated By 399 (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions, concerning this notice or compliance with its provisions, may be directed to the Board's Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois 60604, Tele- phone 312-353-7572. APPENDIX A oROER PROCkSSINV, DEPT. ^AcMJINC' duTrINc- TANi.E V , 1 4Ew^_k I CwrTERJ Q :,.0VA RNFA rr R a--- '301- WIRE FEAJfE Ox IGINAI- El PNO I.. sr I Ie 1 N G- ,DrPT. q2 Dougi.6 Door' y tic W UPH. Dlrtr. QovERNXAraF^ `a,JiRE Ft A-1 SHIPPING SK PAal K A&IMC• 11 r F SLIPI146 DOOR REC e I v / NC A2 I FABRIC MART S W 01 RCA