W.T. Grant Co.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W.T. Grant Company and Retail Store Employees Union, Local No. 1099, Retail Clerks International Association, AFL-CIO. Case 9-CA-5142 August 25, 1970 DECISION AND ORDER By MEMBERS MCCULLOCH, BROWN, AND JENKINS On March 9, 1970, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the Charging Party filed a brief in support of the Decision. 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 connection with this case to a three-member panel. The Board has reviewed the Trial Examiner's rul- ings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and briefs, and the entire record in this case and hereby adopts the findings, conclu- sions,' and recommendations of the Trial Examiner. We agree with the Trial Examiner that Respondent was motivated by a determination to retaliate against employees for their prounion activities when it institut- ed an automatic and inflexible approach in the applica- tion of its rules and personnel operating procedures. We also agree that Respondent's handling of employee Dixon's medical leave of absence was a consequence of this unlawfully motivated "by the book" approach to such matters and that Respondent violated Section 8(a)(3) and (1) when, as a result, it refused to end Dixon's extended sick leave status and put her back to work upon her notification that she was fully recovered and ready to return. That the desire to punish a prominent union adherent (Dixon's activities ' In the absence of exceptions thereto, we hereby adopt, pro forma, the Trial Examiner's conclusion as to the application of the guidelines of Johnnie's Poultry Co, 146 NLRB 770, to the conduct of Respondent's labor relations coordinator in his investigation in the preparation of objections to the election were the subject of several of Respondent's pending objections to the recent election) and not a lack of work was the reason for refusing to restore Dixon to active status is apparent from all the relevant circumstances. Thus, in the context of a past practice of restoring active employee status promptly, without regard to whether there was a specific vacancy, follow- ing medical leaves of absence and a lack of evidence that any such returning employee was treated differ- ently, Personnel Manager Westfall gave explicit assur- ance to Dixon, when she left for medical purposes on November 8, 1968, that she need not worry as her job would be waiting for her when she returned. This assurance was made with full knowledge of the nature of Dixon's imminent surgery and of the probability of her post-Christmas return. Moreover, in view of the size of the unit (approximately 107 eligible voters in November 1968); Respondent's prac- tice of shifting employees to "cover" work stations of others absent for vacations, illnesses, etc.; Dixon's long and varied experience with Respondent including her valued skill as a cashier; and the fact that Respond- ent was retaining at least one full-time and some part-time employees hired for the Christmas rush, we find incredible Westfall's statement to Dixon that Respondent would not permit her to return on January 28,1969, because it had "nothing open" for her. Accordingly, we are satisfied that, without regard to when the discrimination began, the date on which Dixon's employment income was adversely affected by Respondent's discriminatory actions was, as found by the Trial Examiner, January 28, 1969.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, W. T. Grant Company, Fort Mitchell, Kentucky, its officers, agents, successors, and assigns, 2 Our colleague's sole difficulty in this regard is with our finding as to the date from which backpay for the unlawful discrimination should be awarded There is no doubt that in early March, while hiring employees for the Easter season, Respondent, having struck Dixon's name from its mental list of persons interested in work, further manifested its continu- ing discriminatory motivation by failing to contact Dixon for job openings However, Dixon was not a returning economic striker who must await a job opening or an applicant for employment whose failure to hire Is alleged to have been discriminatory, but an employee who has been discriminated against, with respect to her return from a temporary inactive status, for unlawful reasons In such circumstances , the Board has always ordered as part of the remedy for the unfair labor practice restitution wherever possible of the status which would have obtained absent the discrimination, including the requirement that the employee be made whole for any loss of pay suffered by reason of such discrimination, and we find no reason to require less here 185 NLRB No. 14 W T GRANT CO shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER MCCULLOCH, concurring in part and dis- senting in part: I am in general agreement with the Trial Examiner's disposition of the case, which the majority of the panel adopts in toto. I cannot agree, however, that the evidence supports the conclusion that the discrimi- nation against employee Dixon began on January 28, 1969. The record indicates that no new employees were hired between December 1968 and March 1969. When Dixon returned from sick leave on January 27, 1969, and asked for reemployment, she was told that there were no openings for her. The Trial Examin- er accepts this latter statement as a fact, but assumes that Dixon should have been hired as an extra cashier or in some other "extra" capacity. He cites the fact that, when a Mrs. Gunkle had returned to work, "Respondent wound up with an extra cashier." The testimony shows, however, that, in Mrs. Gunkle's case, the store had had an increase in business. I do not think that this single historical fact convincingly establishes that Respondent had a firm policy of always hiring employees returning from sick leave, regardless of the existing circumstances. I would find, instead, that backpay should run from the time in early March when Respondent began hiring employees for the Easter season, but failed to contact Dixon. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: The charge which gave rise to this case was filed on April 21, 1969, by Retail Store Employees Union, Local No. 1099, Retail Clerks International Union, AFL-CIO, referred to herein as the Union or the Charging Party, against W. T. Grant Company, referred to herein as Respondent On July 31 the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9 (Cincinnati, Ohio), issued complaint. Respondent's answer, duly filed, admitted certain allegations of the complaint and denied others, including the allegation that it had committed unfair labor practices. Hearing was held before me, pursuant to due notice, in Cincinnati, Ohio, on December 10, 11, 12, and 29. Early in the hearing I granted the General Counsel's motion to amend the complaint to add an allegation that Respondent had violated Section 8(a)(1) of the Act when one Opal Crawford, on or about November 8 and 16, 1968, coercively berated employees for their activities on behalf of the Union. At the end of the General Counsel's case I granted Respond- ent's motion to dismiss this part of the case as well as allegations contained in the original complaint that Respond- ent had violated Section 8(a)(1) when Gavonnah Westfall, personnel manager of Respondent's store in Fort Mitchell, Kentucky, threatened an employee with loss of work in late October or early November 1968 if she voted for 89 the Union and coercively berated an employee in late December 1968 regarding her union activities. I ruled that the General Counsel had failed to make out a prima facie case with respect to any of these allegations of the complaint, as amended.' Consequently, the issues litigated before me were (1) whether Respondent discriminated against Emilee Dixon within the meaning of Section 8(a)(3) when it refused to permit her to return to work in January 1969 following an absence caused by illness and (2) whether certain state- ments and actions of Mrs. Westfall soon after a Labor Board election at the Fort Mitchell store on November 8, 1968, and other statements and actions of Lester Margare- ten, Respondent's labor relations coordinator, both before and after the election constituted independent violations of Section 8(a)(1). All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the entire record, including briefs filed by all parties, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, operates department stores throughout the United States. During the year preced- ing the issuance of the complaint in this case its sales exceeded $500,000 and the value of goods shipped directly to the Fort Mitchell, Kentucky, store from outside the State of Kentucky exceeded $50,000 On the basis of these admitted facts, I find that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background In August 1968, the Union began a campaign to organize the employees of the Fort Mitchell store. On September 27 it filed a petition for a Labor Board election in W. T. Grant Company, Case 9-RC-7902. The election was held, pursuant to a Stipulation for Certification upon Con- sent Electrion approved October 22, on November 8. Results were 54 votes for the Union, 45 against, and 4 challenged ballots. On November 14 Respondent filed objections to conduct affecting the results of the election. On February 11, 1969, the Regional Director recommended to the Board that the objections be overruled On March 19 the Board ordered a hearing It was duly held in Cincinnati, Ohio, on April 14 and 15 before Stephen S. Frockt. Among the incidents relied on by Respondent in support of its ' Respondent's motion, which I took under advisement at the end of the hearing, to dismiss the remaining allegations of the complaint, is disposed of by my findings, conclusions, and recommendations herein 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objections that the Union had threatened employees and their families prior to the election were the allegations that Emilee Dixon had threatened Patricia Reeves, her young son, and Sandra Kellerman , as discussed in more detail below. Several of the witnesses who appeared before me testified in that proceeding , including Mrs. Dixon, Mrs. Reeves, and Miss Kellerman On May 27 Hearing Officer Frockt issued his report . He recommended that Respond- ent's objections be overruled in their entirety and that the Board certify the Union as representative of Respond- ent's employees in the Fort Mitchell store. No exceptions were filed to the Hearing Officer's report. Consequently, the Board adopted his recommendations and issued its certificate on June 26. Respondent and the Union entered into a contract which was made effective the same day. B. Credibility and the Opal Crawford Issue In my view, the key to this case lies in Respondent's attitude toward Emilee Dixon's role in the election cam- paign, as evidenced by the representation case proceedings. One of Respondent's objections to the November 8, 1968, election was that "the Petitioner [i.e., the Union] . . threatened employees and their families in an improper manner to support the Petitioner in the election " At the hearing in April 1969 it presented testimony on four inci- dents in support of this contention Emilee Dixon figured in two of them. One involved her remarks several weeks before the election to an employee named Patricia Reeves, and the other involved her remarks to an employee named Sandra Kellerman. While considered separately by Hearing Officer Frockt these two grounds for Respondent's objection together comprised one episode since they happened almost simultaneously and were investigated as one by Respondent. Both incidents, as well as the role they played in Respond- ent's handling of the representation case, were relitigated before me with the same sharp conflicts in the testimony faced by Frockt. In brief, Patricia Reeves' testimony made the exchange between her and Mrs. Dixon ajoking encounter of no consequence between two friends, while Respondent's witnesses all described a Patricia Reeves who was upset to the point of tears at what Mrs Dixon had said to her. Frockt credited both Mrs. Reeves' and Mrs. Dixon's versions of what passed between them and credited Miss Kellerman's testimony of what Mrs. Dixon said to her over Mrs. Dixon's denial.' I disagree as to the former, agree as to the latter ' Hearing Officer Frockt's Report on Objections to Election and Recom- mendations to the Board reads, in pertinent part I credit both Reeves' and Dixon's versions and find that these statements were made as testified to by them This resolution of credibility is supported by the testimony of the Employer's [i e , Respondent's] witnesses They stressed that the alleged threat con- cerned the signing of a union card, and there would have been no need for Dixon to have threatened Reeves for this reason as Reeves had already signed a card on September I I and had made this fact known to Dixon • * * s The undersigned has carefully evaluated the conflicting testimony of Kellerman and Dixon Upon my observation of Kellerman's In the narrative of the facts which follows I have generally discredited Patricia Reeves. I found her version of the events incredible in the face of the testimony of Respondent's witnesses' that Mrs. Reeves spoke and acted at all times prior to the hearing in the representation case like one who felt, whether rightly or wrongly, she had been threat- ened by Mrs. Dixon if she did not support the Union and not, as suggested by the Charging Party, like one who cried because she was being harassed by "Supervisor" Crawford. I have reached this conclusion for a number of reasons. In the first place, I, too, was impressed by the demeanor of Respondent's witnesses, especially Sandra Kellerman. The import of Miss Kellerman's testimony was that the episode had been anything but a joking matter. On the other hand, I was not impressed by Mrs. Reeves' efforts to persuade me that Respondent sought to force her from the beginning to testify against her will that Mrs. Dixon had threatened her I do not attach the same significance as Frockt to the fact that Respondent's witnesses stressed that the alleged threat concerned the signing of an authoriza- tion card or to the fact that Mrs. Reeves signed one of the Charging Party's authorization cards on September 11, 1968, sometime prior to her confrontation with Mrs. Dixon. As to the former, I find below that Mrs. Dixon spoke to Mrs. Reeves about voting for the Union in the approaching election, not about signing an authorization card. For this limited point I have credited the testimony of Mrs. Reeves since she was the only witness who was actually present when Mrs Dixon spoke to her Of greater importance in resolving credibility is the fact that Miss Kellerman, whom I found completely credible, testified that Mrs. Dixon's words to her were in the context of demeanor and conduct while testifying, which impressed me, I credit her testimony that Dixon made the attributed statement to her The undersigned concludes that the Dixon-Reeves interchange was no more than a joking interchange concerning their support of the Union, and accordingly, Dixon's statement cannot be viewed as a threat of reprisal or of personal or family harm, should Reeves fail to support the Petitioner Even viewed in its strongest light, it cannot be found to have impaired Reeves' choice of representatives in any manner Dixon's statement to Kellerman is no more than an isolated statement and the evidence fails to establish that it, standing either alone or when viewed with the other conduct, created an atmosphere of fear and reprisal such that a free election was impossible ' Namely, Miss Kellerman, Nellie Osborne, an office employee who was present during the conversation in the cash office among Miss Kellerman, Mrs Reeves, and Richard Anderson, store merchandise manag- er, Richard Anderson himself, Charles Straffin, manager of the store, Sylvia Beatty, the employee who called "Supervisor" Opal Crawford's attention to the fact that something untoward had happened on the selling floor, and Lester Margareten, the attorney who investigated the episode as a possible ground for objecting to the election and attempted to utilize it in his presentation of Respondent's case in the representation proceeding Before me, Mrs Dixon was not asked about the details of the exchange between her and Mrs Reeves, merely testifying that she had talked to Mrs Reeves about the Union prior to the election She denied ever talking to Miss Kellerman about the Union W T GRANT CO a discussion about voting for the Union, not signing one of its authorization cards. The fact Respondent's witnesses testified that Mrs. Reeves subsequently indicated Mrs. Dixon had threatened her in order to get her to sign a card is, I think, a manifestation of the fact that they simply got the wrong impression from the upset Mrs Reeves when they talked to her.' As to the latter, employees sign union authorization cards for many reasons. I find nothing inconsistent in the fact that Mrs. Reeves signed such a card and yet later was dubious enough about voting for the Union to cause a strong union adherent like Mrs Dixon to speak as she did. In fact, that is exactly the sort of person I decided I was looking at as I observed Mrs. Reeves on the witness stand. The explanation, I am convinced, for Mrs. Reeves' peculiar conduct when a Board agent sought to get an affidavit from her and for her turncoat performance when called as a witness by Respond- ent at the representation case hearing was her resentment over being told that she was being taken out of the jewelry department a day or two before the Board agent came to the Fort Mitchell store and being laid off a few days after that.' More importantly, I have based my credibility resolution on the course of conduct which Respondent pursued in the representation case. Anderson talked to Mrs. Reeves and Miss Kellerman a few minutes after Mrs Dixon spoke to them and was told that Mrs. Dixon had threatened them. Straffin was told the same thing After the election, Respondent, in the person of Margareten, asked employees who had any evidence that the Union had engaged in any irregular conduct during the campaign to come forward with their stones. Among the employees he talked to was Mrs Reeves. Subsequently, even though Mrs. Reeves failed to keep an appointment to tell her story to the Labor Board agent assigned to investigate Respondent's objections, Margareten subpenaed her and put her on the witness stand to tell the story she had told him in support of Respondent's case. No advocate would have taken so fool- hardy a step if Mrs Reeves had given him the cause she claimed to have given him to suspect that her testimony might not be helpful to Respondent. Therefore, I can only conclude that Margareten's version of what passed between them is the correct one, and Mrs. Reeves' story that she told Respondent from the beginning that her exchange with Mrs. Dixon had been only a joking matter comes tumbling to the ground. ' E g , Anderson's description of Mrs Reeves' condition at the time, which I credit, sets the tone of this incident, thus Her conversation was very incoherent She was very upset, and all she was saying, that she was afraid, or she was upset by the constant pressure of-to sign this card, and she had mentioned Emilee Dixon's name, that she was-that there was pressure on the floor And this is what-and then from this point-this time in the cash office was a very short period of time-she said, "Get Sandy [Kellerman] and she will explain it to you " As originally issued, the complaint in this case alleged that Patricia Reeves was laid off on December 24, 1968, in violation of the Act On August 14, 1969, the Regional Director approved the Charging Party's request to withdraw that part of its charge on a showing that it had reached a settlement with Respondent He deleted Mrs Reeves' termina- tion from the complaint At the time of the hearing before me she was working in the Fort Mitchell store 91 A related issue, since it looms so large in the General Counsel's and the Charging Party's theory that she is in some way the villain of the piece, is whether Opal Crawford was a supervisor within the meaning of the Act during the relevant period.' Prior to Respondent's contract with the Charging Party, Opal Crawford, Ruby Craddock, and Frances Dixon had the title "supervisor" and were so designated on the name tag which they, like all employees at the Fort Mitchell store, wore The Union challenged all three at the election. Under the contract, the title "supervisor" was changed to "section head." At the time the contract came into existence, Frances Dixon was promoted to assistant manager, an admittedly superviso- ry position within the meaning of the Act. Opal Crawford and Ruby Craddock became section heads and are now covered by the contract. The duties of "supervisors" before the contract and "section heads" after are identical. There- fore, in order to avoid the confusion inherent in using a term of art in an manful manner, I refer hereafter to the job as section head even though the relevant period is prior to the contract. The hierarchy in the Fort Mitchell store is manager, merchandise manager, assistant managers, section heads, department heads, and clerks without titles. The clerk in charge of a department is called the head of that department even though, in many instances, she is the only employee in it. Section heads, in turn, are in charge of all the departments in a particular area of the store. As such they help department heads prepare orders for merchandise to be stocked and consolidate the orders from their depart- ments. They see to it that each department is staffed and have authority to shift clerks from department to department within their section. However, they must clear a shift with someone over them if it involves an employee not in their section.' Section heads do not ordinarily sell although circumstances not infrequently require them to do so. In summary, their job is to oversee the orderly running of their portion of the selling floor, doing whatever is necessary to stock and man the store and serve the customers The Fort Mitchell store is open 7 days a week. It is manned on Sunday by a reduced, volunteer crew. The assistant managers take turns running the store on Sunday. Each week a section head is designated on the schedule as the "supervisor" of the day However, even though her duties on Sunday are storewide rather than limited 6 M's Crawford testified in the representation case, although not before me Hearing Officer Frockt apparently listened to much of the same evidence as I on this issue However, he found it unnecessary to make a finding 1, too, find the point unimportant since there is no evidence in any way linking M's Crawford with Respondent's decision not to put Mrs Dixon back to work when she recovered from her illness , and since Respondent admitted knowledge of Mrs Dixon's proun- ion activities, regardless of whether it acquired that knowledge through M's Crawford or from some other informant The General Counsel further urges that, even if not a supervisor within the meaning of the Act, M's Crawford "engaged in [antiunion] conduct with Respondent's knowledge and assent as its agent " There is no evidence in the record to establish that she acted as Respondent's agent in opposing organization of the Fort Mitchell employees ' This finding is based on the testimony of Frances Dixon There is much inconclusive testimony in the record about M's Crawford's activities of this sort 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to one specific section, they are not materially different from weekdays. She is never left alone in charge of the store There is no evidence in this record that section heads possess any such unambiguous indicia of supervisory status as authority to hire or fire or effectively recommend hiring or firing or the like. While they do direct the work of department heads and clerks , their duties are routine in the extreme and require the exercise of no independent judgment I find, therefore, that Opal Crawford was not a supervisor within the meaning of the Act when she played her minor role in the events of this case.' C. Facts 1. The campaign The Charging Party's campaign to organize Respondent's employees early took on a Biblical quality, for it turned the Fort Mitchell store into two camps, the Rebates and the Opalites . Rebaites took their name from Reba Masden, an old and valued employee who led the prounion faction Opalites took their name from Opal Crawford, leader of the antiunion group . The turmoil which resulted among the employees caused Charles Straffin , manager of the store, to enforce a rule that neither side was permitted to talk about the Union on the floor during working time. In late September 19689 he had occasion to call Emilee Dixon and employee Lettie Loechel, both staunch Rebaites, to his office to admonish them about violating the rule. He told Mrs. Loechel that Mrs. Dixon was soliciting on the floor and sending recruits to her to sign a card. He told Mrs. Dixon that she was soliciting on the floor and sending her recruits to Mrs Loechel to sign a card. He told both of them to cut it out. Both ladies protested their innocence. On another occasion, he admonished M's. Crawford for violating the rule on behalf of antiunionism. One day in the middle of October, while Mrs. Dixon was showing Sandra Kellerman how to operate the cash register, they discussed the Union. Miss Kellerman said she did not know whether she would vote for the Union or not. Mrs Dixon, angered, said, "Well, if you don't, I'll beat your ass." Miss Kellerman paled. ' This, of course, is an additional ground for holding that Respondent did not violate Sec 8(a)(1) through the activities of M's Crawford Moreover, the only witness who testified about M's Crawford' s activities was Patricia Reeves, whom I do not credit However, when I dismissed that portion of the complaint at the end of the General Counsel's case, I had not yet made either of these findings Therefore, my ruling at that time was based solely on a finding that General Counsel had failed to establish a prima facie case that M's Crawford had "coercively berated employees for their activities on behalf of the Union" even crediting Mrs Reeves Straffin implied that this occurred in mid-October at the time of the crucial Dixon-Reeves - Kellerman episode I base this finding on the testimony of Mrs Dixon and Mrs Loechel, both of whom placed the incident in late September The record is hazy as to the date on which most events occurred , especially in the preelection phase This is of greater significance than usual insofar as findings of independent 8(a)(1) violations are concerned since the 10(b) period begins on October 21, 1968, late in the preelection period Where precise dates are impossible to ascertain, my findings with respect to time and sequence of events are based on the record as a whole Mrs. Dixon had a similar conversation with Mrs Reeves. Mrs. Dixon told her she had better vote for the Union if she knew what was good for her. Mrs. Reeves began to cry Employee Sylvia Beatty observed both incidents When she saw Miss Kellerman turn "white as a sheet" she went to her and asked what Mrs. Dixon had said to her Miss Kellerman repeated the remark . At the first opportunity Mrs. Beatty reported to Opal Crawford that Miss Kellerman and Mrs . Reeves were both upset because of what Mrs. Dixon had said to them M's. Crawford went to the office and told Richard Ander- son, the merchandise manager, that there was trouble on the floor and that Mrs Reeves was crying. He told her to bung Mrs Reeves to the office M's. Crawford did so. Mrs. Reeves was still upset . She did not want to talk in a place where she could be seen by other employees. Anderson took her into the cash office, a secluded room off the main office. Since there are rules about who may and who may not enter the cash room, Nellie Osborne, the store bookkeeper who is authorized to be there, accompa- nied them. Mrs. Reeves was reluctant to tell Anderson what Mrs. Dixon had said to her. She talked about being afraid because of the pressure brought to bear on her . She told Anderson that Miss Kellerman could explain it to him. Anderson sent for Miss Kellerman . Kellerman came to the cash office. She told Anderson what Mrs. Dixon had said to her and urged Mrs. Reeves to do the same . Anderson sent Miss Kellerman back to work . He took Mrs . Reeves to Straffin's office. The conversation was repeated for Straffin 's benefit. He and Anderson tried to calm Mrs. Reeves . They told her that Mrs. Dixon had no right to talk to her about the Union during worktime. They told her that they would speak to Mrs Dixon and assured her that it would not happen again They sent her back to work . They then went for a cup of coffee in the store lunchroom. On the way, Straffin spoke to Mrs . Dixon He told her that what she did on her own time was her own business but that she was not to campaign for the Union during worktime. Gavonnah Westfall is personnel manager of the Fort Mitchell store. As such, she is immediately concerned with hiring and laying off employees. Sometime during the cam- paign, apparently not long before the election when tension in the store was at its peak , she discussed the Union and the campaign with Straffin. She expressed the view to Straffin that, if what the employees wanted was a union, perhaps they should run the store "by the book" like a union store, that is, perhaps they should follow rigidly the conditions of employment usually spelled out in union contracts instead of attempting to accommodate the employ- ees when they sought special treatment . Straffin agreed with her. Respondent sought to persuade its employees to vote against the Union. Its principal weapon was Lester Margare- ten, its labor relations coordinator. Following receipt of the petition, he went to Fort Mitchell from his office in New York on several occasions . Each time he spent several days conducting meetings for groups of employees at which he explained Respondent 's reasons for preferring W. T GRANT CO 93 no union in the store and talking to individual employees in the same vein. He attempted to explain the consequences of unionization and the provisions of union contracts. He undertook to answer any questions which employees raised. Rose Kleier,10 an articulate and intelligent woman who preferred to work only part time, had several One was what would happen to part-time employees if the Union won the election. On November 7 as a group meeting in the stockroom was breaking up, Margareten told her about contract clauses which provide that available hours of work must be given first to full-time employees. He explained that if such a clause were incorporated into a contract at the Fort Mitchell store it might well end her part-time employment." During the weeks just prior to the election, Emilee Dixon was ill. She continued to work even though she was in pain while she waited for word from her doctor to enter a hospital for major surgery. Mrs. Westfall, her friend, was aware that she was suffering, that surgery impended, and that she planned to take advantage of Respondent's leave-of-absence policy so that she could return to her job when she had recovered. On the evening of November 7 Mrs. Dixon obtained copies of Respondent's leave-of- absence application form from Mrs Westfall and took them home with her 2. Respondent's leave-of-absence policy Respondent permits employees to take unpaid leaves of absence for up to 6 months with no break in continuity of service. To this end it employes a form headed "Leave of Absence Application." A formally approved leave of absence is only required when the employee will be gone more than 4 weeks. Consequently, the form is subheaded "(For Unpaid Absences of more than 30 days)." The com- plete form has a small perforated section at the bottom which is captioned "Notice of Completion of Approved Leave of Absence." When an employee requests a formal leave of absence, the top part of the form is filled out in triplicate. The employee signs. The store manager recommends approval by signing. All three copies are forwarded to a district manager. The district manager endorses the request by signing and forwarding the forms to a regional manager. The regional manager endorses the request by signing and forwarding the forms to Respondent's personnel division in New York. The personnel division approves the request 10 Like Patricia Reeves, Rose Kleier was named as a discrimmatee in the complaint and then deleted as a result of the settlement worked out between Respondent and the Charging Party " Mrs Kleier's version of what Margareten said to her was And then he answered their questions, and mine, and he said, "Now remember, Rose," he said , "if the union comes in now, the company will not be able to afford part-time help, and that will mean you " He said, "Now as it stands you have security with the company " He said, "You have been here a long time They know they can rely on you, but now when the union comes in there won't be any part-time help " He said, "That will mean your job " I do not consider this in conflict with Margareten's testimony, being rather Mrs Kleier's lay paraphrase of a technical subject In any event, I credit Margareten. by signing the forms and sending one copy back to the store. Only when the form has been executed in the personnel division is the leave of absence officially granted. When a leave of absence ends, either because the employee has returned to work or has terminated his status as an employee in some way, three copies of the bottom part of the form are signed by the manager and forwarded directly to the personnel division. The personnel division then takes whatever steps are necessary, such as refunding the former employee's contributions to Respondent's retire- ment plan, to wind up the relationship This part of the form reads, in pertinent part: Exact date of return ............... . OR Will not return, Notified by Employee........... (Date) In case of return to active service: 1. Did employee apply for unemployment insurance during absence? .......... 2. Did employee engage in or actively seek other employment during absence9............ On the back of the form is printed a digest of Respondent's rules with respect to leaves of absence for the information of employees. It reads, in relevant part: 4. APPLYING FOR UNEMPLOYMENT INSUR- ANCE AUTOMATICALLY BREAKS CONTINUI- TY OF EMPLOYMENT, REGARDLESS OF TYPE OF LEAVE... . 5. Breaking continuity of employment may not disquali- fy employee for re-employment, but length of service will thereafter be computed from re-employment date. 6. It is expected that full-time or part-time employment will be available at termination of leave, but return to same position, hours of work, or salary cannot be assured In no case can re-employment following leave of absence be guaranteed... as it is not possible to anticipate conditions which may exist at the expira- tion of leave. The record contains evidence of four employees who took leaves of absence for medical reasons prior to Mrs. Dixon's illness and returned to their former positions with- out incident when they had recovered. All four signed leave-of-absence requests either before or within a few days after their last day of work. They are Clarice Brinkman (1965), Myrtle DeMoss (1967-68), Mary Ellen Gunkle (1968), and Lettie Loechel (date unspecified). 3. The postelection period Emilee Dixon did not take the leave-of-absence forms with her when she went to work on the morning of Friday, November 8, 1968. At the store she received a call from her doctor He told her that he had a hospital bed at last and that she was to enter the hospital on Sunday. Mrs. Dixon told Gavonnah Westfall. Mrs. Westfall told her to take care of herself and not worry about her job, 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it would be waiting for her when she returned. Mrs. Westfall reminded her to get her leave-of-absence forms in promptly. Mrs. Dixon voted in the election that day, which, as already indicated, was won by the Charging Party by a 9-vote margin . She left the store at the end of her shift. She was too ill to work on Saturday. She entered the hospital on Sunday and was operated on Monday, November 11 The results of the election were a disappointment to Mrs. Westfall. She determined to do her job "by the book." On Friday, November 9, she initiated an angry conversation with Mrs. Loechel about Mrs. Loechel's changing her day off to Friday without obtaining Mrs. Westfall's permission. She yelled at Mrs. Loechel, "Who gave you the authority to take Fridays off?"12 Mrs. Loechal explained that she had cleared the switch with Anderson some weeks before. Mrs. Dixon remained in the hospital for a week. On November 12 Mrs. Loechel, Reba Masden , and a third employee, Ruth Taylor, asked Mrs. Westfall if, as employees had done in the past, they could change their lunch hour so that they could visit Mrs. Dixon in the hospital. Mrs. Westfall replied, "Since this Union business has come up, there'll be no more special privileges."" On November 14 Margareten sent a letter to all the employees in the Fort Mitchell store. He informed them that Respondent had filed objections to the election because it had evidence "certain threats were made to some employ- ees during this campaign." He invited them to come forward "if the union has threatened or bribed you or other fellow employees. . . so that we may aid the Labor Board in [its] investigation." On November 21 Margareten was in the store pursuing his investigation in support of Respondent's objections. He interviewed several employees who had responded to his letter, gave information which he judged aided his case, subsequently gave affidavits to a Board agent assigned to investigate the objections, and testified as witnesses for Respondent at the hearing in April 1969. Among the employees he talked to that day was Patricia Reeves." He interviewed her in Straffin's office. Straffin was present. Margareten began by explaining his role and his purpose. He told Mrs. Reeves that she did not have to speak to him if she did not want to. He then discussed with her the mid-October episode in which she had cried because she felt that Mrs. Dixon was pressuring her to vote for the Union Mrs. Reeves , in the course of the discussion, " The only conflict in the testimony about this incident is Mrs Westfall's denial that she yelled at Mrs Loechel , admitting only that she was "a little mad " I credit Mrs Loechel 's testimony that she yelled " There is no conflict in the record about this episode Mrs Westfall first mentioned her attitude about going by the Union "book" when counsel for Respondent asked her why she had told the three employees they could not go to the hospital Her reply is revealing Well, I had heard so much about when the union got in we couldn't do this , we couldn't do that, and I was just trying to go by what the union rules and regulations would be It would have been the same throughout the store " Although the record is not clear on the point, I gather that Mrs Reeves was not interviewed because she had responded to Margareten's letter but because Straffin remembered the mid -October episode I assume that Straffin 's and / or Anderson's testimony about what had happened that day was at least part of the "evidence" on which Margareten relied when he filed the objections revealed that Mrs. Dixon had inquired so often about her 2-year-old son who sat with him while Mrs. Reeves was at work that Mrs. Reeves feared Mrs Dixon was threatening to harm the child if she did not vote for the Union. She told Margareten that her father had been beaten up when she was a child during a labor dispute and there had been some fear at the time that a union was to blame Margareten said he thought Mrs. Reeves' testimony would be very helpful to Respondent's case. He asked her to give an affidavit to a Board agent. She agreed. He pointed out to her that he did not have a right to be present at that time, only if she requested it. He told her that he would be available if she did want him there. A day or two before December 18 Anderson told both Mrs. Reeves and Opal Crawford that he was going to take both of them off the jewelry department because the under-the-counter stock was in such a mess. Both cried. On December 18, which happened to be Mrs. Reeves' day off, a Board agent came to the store to interview Respondent's witnesses in the course of his investigation of the objections Margareten sent a management trainee to Mrs Reeves' home to fetch her. Mrs. Reeves hid. The next day Straffin, irritated, told her he thought her not showing up to give an affidavit as she had promised was a dirty trick. On December 24 Respondent laid off Mrs. Reeves and Rose Kleier, along with a number of other employees being let go, because the Christmas season was at an end A day or two before the end of the month, Mrs. Westfall included Mrs. Dixon's name on a list of employees who were terminated effective January 1, 1969, and sent the list to New York This so-called separation report is a monthly requirement of the personnel division . Mrs. Dixon was on the list because she had been absent for more than 30 days without submitting a leave-of-absence form. On January 3 Mrs. Westfall received in the mail from Mrs. Dixon the forms which Mrs . Dixon had taken home with her on November 7, 1968. Mrs. Westfall telephoned Mrs. Dixon and told her that she had sent in only two copies when three were required, that she had filled in some of the blanks wrong, and that she should come to the store to sign new forms. Mrs. Dixon went to the store. She took her husband with her. Mrs. Dixon went to the office to talk to Mrs. Westfall. She left her husband outside. She and Mrs . Westfall got into a dispute over the forms. Mrs. Dixon had indicated on the forms she had mailed in that she was a full- time employee. Mrs. Westfall explained to her that, since she worked 31 and not 35 hours a week, she was, under Respondent's rules, a part-time employee. Mrs. Dixon had filled in the line of the form which reads "Period of 11 Proposed Leave of Absence: From . . . . To . . . . to indicate that it started on her last day of work. Mrs. Westfall explained it was her custom to give as the "From" date the first Friday after the absence began and as the "To" date the first Friday after a date six months later than the "From" date. In this way, the employee got the maximum amount of time possible under Respondent's W T GRANT CO 95 workweek and 6-month leave-of-absence limitation policies. The explanation did not satisfy Mrs. Dixon. She stepped out of the office to confer with her husband. While Dixon was waiting for his wife Straffin came by and chatted. In the course of their conversation, while Mrs. Dixon was present, Straffin told Mr. and Mrs Dixon that Mrs. Dixon had been terminated because she had failed to return the forms promptly. This news upset Mrs. Dixon and concerned Dixon He protested that Myrtle DeMoss had gone to the hospital the year before without signing the forms and had not been terminated. Straffin said that Mrs. DeMoss had signed the forms in time.15 The explanation did not satisfy Dixon Straffin told the Dixons he would try to get Mrs. Dixon's job back. Mrs Dixon told her husband about her qualms over signing forms filled out as Mrs. Westfall wanted her to fill them out. Dixon told her to sign. Mrs. Dixon returned to Mrs. Westfall's office and did so. The "From" date was filled in "11-15-68." As was Mrs. Westfall's custom, Mrs. Dixon dated her signature the same. Straffin signed the forms that day and dated his signature "1/3/69 " The forms were sent to the district manager. He endorsed them on January 7, the regional manager, on January 9 They were approved by the personnel division in New York on Febru- ary 17 A copy was received in the Fort Mitchell store on or shortly before February 28. After leaving the office area, Mr. and Mrs. Dixon stopped in the store to talk to Lettie Loechel. Straffin sought them out there. He had with him a copy of Myrtle DeMoss' leave-of-absence form. He pointed out that the signature dates on that form proved that Mrs DeMoss had submitted her request within 30 days, as required. Dixon protested that the dates were in different colored inks. He thought this indicated that Respondent had altered the dates in some way in order to conceal its discrimination against his wife. He was wrong. On January 27 or 28,16 while her leave-of-absence request was wending its way to New York, Mrs. Dixon returned to the store She told Mrs Westfall that she was fully recovered and ready to return to work. Mrs. Westfall told her that she had no opening for her No new employees had been hired since the Christmas layoff. However, at least one girl , Alberta Vaughan, who had originally been hired only for the Christmas rush but had been retained as a regular employee when the layoff took place, was then working as a cashier, Mrs. Dixon's job just prior to her illness. Mrs. Dixon expressed her disbelief that Mrs. Westfall could not find something for her to do, since she had gained experience in so many different depart- ments in the 6 years she had worked there. Mrs. Westfall said she was sorry, there was nothing she could do about it. Mrs Dixon left and went to a lawyer. The lawyer advised her to file for unemployment compensation. She did so. On January 28 the lawyer wrote a letter to Straffin. It read: This is to inform you that Mrs Emilee M. Dixon ... is now fully recovered from recent surgery. She has been released by her surgeon, Dr. Alfred Jacobs, M.D., Erlanger, Kentucky and has been advised that she may now resume her duties with your Company, as per the report enclosed. Please advise when and where she is to report On February 3 Straffin replied. His letter read: Re: Emilee Dixon Mrs. Dixon has filed application for Unemployment Insurance and in accordance with Leave of Absence Form (enclosed) signed by her has ended all continuity of employment. On February 28 Mrs Westfall filled out the bottom part of Mrs. Dixon's leave-of-absence forms. She altered the "Will not return" line by striking out the words "Notified by Employee" and typing "Applied for unemployment 1- 26-69" in the space provided for a date. Straffin signed the forms. They were sent to New York. Mrs. Westfall began hiring for the Easter season around March 1 She customarily contacts some experienced persons who have formerly worked in the store when she expands the staff to handle seasonal upswings in business She did so this time. She did not attempt to contact Emilee Dixon Straffin learned of this case when the charge was filed in late April. He instructed Mrs. Westfall not to hire Mrs. Dixon as long as the case was pending. Mrs. Westfall has never attempted to contact Mrs. Dixon about working in the Fort Mitchell store since November 8, 1969. Margareten subpenaed Mrs. Reeves to testify in the repre- sentation case in anticipation that she would repeat before Hearing Officer Frockt the information she had given to him on November 21, 1968. She disappointed him. She told Frockt the same story she told me. D. Analysis and Conclusions 1. The Emilee Dixon issue " Mrs DeMoss had gone to the hospital without warning Mrs Westfall had filled out the forms and sent them to her in the hospital to be signed The "From" date and the date of Mrs DeMoss' signature were both filled in by Mrs Westfall as "12-1-67," the first Friday after the beginning of Mrs DeMoss' absence " The date of this incident is important it is, unfortunately, one that is not pinned down precisely in the record I base my finding, therefore, on the following parts of the record (1) The bottom part of Mrs Dixon's leave-of-absence form reads "Applied for unemployment 1-26-69 " However, Mrs Westfall conceded that the date was in error since January 26, 1969, was a Sunday (2) The letter which Mrs Dixon's lawyer wrote to Respondent is dated January 28 (3) Straffin's reply is dated February 3 (4) 1 credit Mrs Dixon's testimony that the sequence of her activities was second visit to store in late January, retaining of lawyer, and finally application for employment compensation Respondent contends that Mrs. Dixon ceased to be an employee not for any reason proscribed by the Act but simply because she violated Respondent's rules with respect to leaves of absence." Mrs. Dixon failed to fill in the 11 Respondent does not contend that Mrs Dixon's prounion activities, including the mid-October episode, gave it legal grounds for discharging her or preclude her reinstatement now I have found above that, in the heat of a tense organizing campaign , she told Mrs Reeves, with serious mien, Mrs Reeves had better vote for the Union if she knew what was good for her and told Miss Kellerman she would spank her if she did not Under the circumstances , neither statement was a threat serious enough to justify Mrs Dixon's discharge then or render her 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forms in the prescribed 30 days Therefore, she was automati- cally terminated effective January 1, 1969. When, on January 3, Straffin and Mrs. Westfall undertook to process a leave- of-absence request for her despite her dereliction and thus restore her continuity of employment, Respondent's argument goes, they did her a favor. If they were motivated in any way by her activities on behalf of the Union, they would simply have done nothing at that point. When, around January 28, Mrs Westfall did not put Mrs. Dixon back to work, she did so only because there was no opening for her. If Mrs. Dixon had been patient, Mrs Westfall would have given her work in due course when an opening occurred. By immediately filing for unemployment benefits when she well knew that doing so violated one of Respond- ent's rules for maintaining her status as an employee, Mrs. Dixon elected to give up her job Mrs. Dixon, Respondent says, was the agent of her own execution, not we Such an argument overlooks many facts in the record. It is obvious, of course, that the basic issue is why Respondent failed to put Mrs. Dixon back to work when she announced, on or about January 28, 1969, that she was well again and ready to return. Was it really because there was no opening at the moment? Or was it because of resentment over her prounion activities during the cam- paign? But a preliminary question which must be answered is-whose motive is Respondent's motive? Mrs. Westfall's is the equally obvious answer. There can be no doubt on this record that Mrs. Westfall acted on her own initiative where all personnel matters were concerned. For example, she testified that she filled out the bottom part of Mrs. Dixon's leave-of-absence form on her own initiative, awk- wardly altering it to fit what she considered to be the relevant fact in the situation, "because [Mrs. Dixon] had filed for unemployment, and there was no other way to handle it that I could see" Straffin corroborated her, and incidentally confirmed that she, not he, was Respondent's operative agent in deciding Mrs Dixon's fate, when he testified: Q. Now, I take it that you leave to Mrs. Westfall some of the thing like filling out these forms and deciding how to write them up; is that right? A. True. All I do is sign them. Q. You are like me maybe, she shoves it under your nose or puts it on your desk, you sign it and send it out, right? A. Right. Therefore, this issue must turn on an inquiry into Mrs. Westfall's motive. I find that Mrs. Westfall was motivated solely by union animus when, around January 28, 1969, she failed to restore Mrs. Dixon to active service. In the first place, Mrs. West- fall's attitude toward the employees, especially prounion employees, had changed as a result of the Union's victory in the election. Her admissions that she discussed a change in attitude with Straffin before the election and was "disap- pointed" at its outcome, as well as her admissions that unfit for further employment now I specifically do not find that Mrs Dixon threatened or intended to threaten Mrs Reeves' child when she inquired about the boy That interpretation was a figment of Mrs Reeves' imagination she did, indeed, berate Mrs. Loechel the day after the election and toughened up her lunch hour policy the follow- ing week, are conclusive. Her abrupt attack on Mrs Loechel was completely unjustified Mrs. Loechel's name had been linked with Mrs. Dixon's during the campaign as a recruiting team for the Union. When this is coupled with the fact that Mrs. Westfall expressly stated only a few days later that she was giving the employees what they wanted- a tough, union-type "book"-her conduct in yelling at Mrs Loechel for changing her day off without clearing first with her can only be explained as another example of the new "book" which she brought into the store as a result of the Union's victory. There is no indication in the record that Mrs Westfall's attitude changed again in the interim between mid-November and late January In fact, she applied her new policy of going by the "book" from mid-November on in Mrs Dixon's case as well She made no effort to get leave-of-absence forms from Mrs Dixon within 30 days Mrs. Masden's, Mrs Loechel's, and M's. Taylor's abortive effort to visit Mrs. Dixon in the hospital was a perfect opportunity to do for Mrs. Dixon what she had done the year before for Mrs. DeMoss, that is, send the forms to the hospital to be signed She did not choose to do so The fact that Mrs DeMoss was rushed to the hospital while Mrs. Dixon was not is a distinction without a difference if Mrs. Westfall's attitude toward Mrs. Dixon were really unchanged after the election Mrs Westfall had another opportunity to treat Mrs. Dixon by the "book" and took it when she listed her on the January 1 separation report. She had a third opportunity and took it when she told Mrs. Dixon around January 28 there was no opening She had a fourth opportunity and took it when she relied on Mrs. Dixon's violation of the unemployment compensation rule to cut her off for good. The only break in this pattern of treating Mrs. Dixon by the "book" was the processing of the leave forms on January 3. In that instance, however, Straffin participated in the decision, as evidenced by his statement to the Dixons that he would try to get Mrs. Dixon's job back for her, and Mrs Westfall was subjected to Mrs. Dixon's suspicious challenge of Mrs. Westfall's way of filling out the forms, an attitude which Mrs. Westfall may well have attributed to Mrs Dixon's prounion militancy and which may well have reaffirmed her feeling that what employees now deserved was the "book." In the second place, the election situation and Mrs Dixon's role therein were far from a dead issue by January 28, 1969. What is important in this connection is not whether Mrs. Dixon had, in fact, threatened Patricia Reeves and Sandra Kellerman. What is important is that Respond- ent seriously believed that she had and was relying heavily on that fact in its effort to reverse the verdict of the election. Mrs. Reeves did not renege on Respondent until the hearing in April It had no reason to think in January that she would. Next, there is the clear evidence of disparate treatment of Mrs. Dixon Mrs. Dixon went to work in the Fort Mitchell store in January 1963, at the time or not long after it opened. Over the years she worked in several different departments, acquiring the necessary experience to handle each. At the time of her illness she was a W T GRANT CO 97 cashier, a skill especially valuable to Respondent There is no evidence in this record that Respondent ever had any complaint about her work at any time or any complaint about her conduct in the store prior to the Union's campaign There is no evidence in this record that Respondent ever before followed its leave rules as strictly as it did in Mrs. Dixon's case. The explanation for this may be, of course, that there never was a prior case just like Mrs. Dixon's, even leaving aside the union activities which color hers. But that explanation cannot offset the evidence of the four other employees who took leaves because they were ill and returned without incident when they recovered The fact that there may literally have been no opening on the day Mrs. Dixon announced she was ready to return does not distinguish her situation. When Mrs Gunkle returned to work Respondent wound up with an extra cashier. The failure to treat an old and valuable employee like Mrs. Dixon the same way under similar circumstances is most plausibly explained by the fact that the one difference in Mrs. Dixon's case-her prominent involvement in the still pending representation case-made her a less valuable employee to Respondent of the Fort Mitchell store, refused to end Emilee Dixon's leave of absence and put her back to work.18 2. The other issues a. Gavonnah Westfall The complaint alleges that Mrs Westfall, "on or about November 8 and 16, 1968. . coercively berat[ed] employees for their activities on behalf of the Union." I have found that, pursuant to her new policy, she yelled at Mrs. Loechel on November 9, and refused to let her and two other employees change their lunch hours in order to visit Mrs. Dixon in the hospital on November 12. In each instance, Respondent violated Section 8(a)(1) of the Act. It is possible to find on this record that, by changing her policies as a result of the Union's victory in the election, Mrs. Westfall discriminated against employees within the meaning of Sec- tion 8(a)(3). However, this point was not fully litigated at the hearing. Therefore, I make no finding that Respondent violated Section 8(a)(3) of the Act by Mrs. Westfall's conduct in these two episodes. Finally, and most persuasively, Respondent's defense will not stand close scrutiny. Mrs Westfall "separated" Mrs. Dixon effective January 1. Yet just a few days later she and Straffin processed her request for a leave of absence as if her status as an employee were unchanged. Ultimately, that request was approved in New York on February 17, restoring Mrs Dixon's continuity of employment and negat- ing the effect, if it ever had any, of the "separation" Thus, Respondent itself never took seriously Mrs. Dixon's first breach of its leave rules, her failure to submit the forms within 30 days. Since the request was ultimately approved, Mrs. Westfall had no reason to think it would not be on the day Mrs. Dixon asked to be put back to work Therefore, Mrs. Westfall could not have been relying on that when she reacted as she did Moreover, she could not have been relying on Mrs. Dixon's applying for unemployment compensation because Mrs Dixon had not yet done so. And that application cannot explain or justify Mrs. Westfall's subsequent failure to contact Mrs Dixon in the period prior to Straffin's instructions in April that she not hire Mrs. Dixon under any circumstances. Respondent's rules specifically state that applying for unem- ployment insurance did not disqualify Mrs. Dixon for a job, it merely cut off her seniority and the perquisites that flow from it. When Mrs. Westfall struck Mrs Dixon's name from her mental list of experienced persons who might be interested in openings as they came up, particularly the openings which occurred at the beginning of the Easter season, she was motivated by her feelings growing out of the Union's victory. Unfortunately for Respondent, she had the rule wrong and, once again, was throwing her new "book" at Mrs. Dixon. For the foregoing reasons, I find that Respondent violated Section 8(a)(3) and (1) of the Act when, on or about January 28, 1969, Gavonnah Westfall, personnel manager b. Lester Margareten The complaint also alleges that Responder isolated the Act by the conduct of Lester Margareten in: (i) On or about November 16, 1968 .. coercively interrogating an employee about whether she signed a union membership card, how the employee voted in the recent election conducted on November 8, 1968 by the Board, and in instructing the employee to furnish testimony and an affidavit of facts, according to the dictates of the said Lester J Margareten, if and when the employee was interviewed by a Board agent about the election proceedings. (ii) During the week before the election of November 8, 1968, . threatening part-time employees with layoffs if the Union was selected as their bargaining agent by the employees. The first paragraph is based on Patricia Reeves' account of Margareten's interview with her when he was investigating Respondent's objections to the election. I have discredited Mrs. Reeves and credited Margareten as to what happened at that time. The second paragraph is based on the testimony of Rose Kleier. While I have not discredited Mrs Kleier, I have described the incident in terms of Margareten's testimony rather than hers. In each incident Margareten conducted himself within the guidelines furnished by the Board for lawyers engaged in lawful efforts to represent their clients. Johnnie's Poultry Co., 146 NLRB 770, 774. He did nothing to interfere with, restrain, or coerce Mrs. Reeves, Mrs. Kleier, or any other employee of Respondent. Therefore, I find that Respondent did not violate any 18 The Charging Party contends that Straffin's admission he told Mrs Westfall, when the charge in this case was filed in April 1969, not to rehire Mrs Dixon establishes a separate violation of Sec 8(a) (4, (3), and (1) of the Act The complaint contains no 8(a)(4) allegation Since this finding adequately remedies the situation, I do not reach the issue raised by the Charging Party 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section of the Act through the conduct of Lester Margareten, 1. Cease and desist from: its labor relations coordinator. Upon the foregoing findings of fact, and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1 W. T. Grant Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local No. 1099, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 By refusing to end Emilee Dixon's leave of absence and put her back to work on or about January 28, 1969, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 4. By coercively berating employees on November 9, 1968, and again on November 12, 1968, for their activities on behalf of a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 6. The allegations of the complaint that Respondent violated Section 8(a)(3) and (1) of the Act by the conduct of Lester Margareten have not been sustained. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent has violated Section 8(a)(3) and (1) of the act by refusing to end Emilee Dixon's leave of absence and put her back to work. Therefore, I will recommend that Respondent offer her immediate and full reinstatement to her former or substantially equiva- lent position without prejudice to any seniority or other rights and privileges previously enjoyed and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her by paying to her a sum of money equal to that which she normally would have earned as wages from January 28, 1969, until the date of Respondent's offer of reinstatement, less her net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following: RECOMMENDED ORDER W. T. Grant Company, its officers, agents, successors and assigns, shall: (a) Discriminating against its employees in order to dis- courage membership in Retail Store Employees Union, Local No 1099, Retail Clerks International Association, AFL- CIO, or any other labor organization. (b) Coercively berating its employees for their activities on behalf of the said, or any other, labor organization (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Emilee Dixon immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make her whole for any loss of pay suffered as a result of the discrimination against her in the manner set forth above under "The Remedy " (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, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its store in Fort Mitchell, Ky., copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's represent- ative, shall be posted by it 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 by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.20 I FURTHER RECOMMEND that the complaint be dismissed insofar as it alleges that Respondent violated the Act by the conduct of Lester Margareten. " In the event no exceptions are filed as provided by Sec 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 Sec 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 the Regional Director for Region 9, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " W T GRANT CO. 99 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights- To engage in self-organization To form, join , or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things WE WILL NOT yell at you for engaging in union activities. WE WILL NOT refuse to take you back to work at the end of a leave of absence or discriminate against you in any other way in order to discourage membership in Retail Store Employees Union , Local No. 1099, Retail Clerks International Association, AFL-CIO, or any other labor organization . You are free to join or not join Local No. 1099 or any other labor organiza- tion as you see fit. WE WILL immediately offer to reinstate Emilee Dixon to her former or substantially equivalent job without any change in her seniority or other privileges she enjoyed before we refused to put her back to work, and WE WILL pay to her any money she lost as a result of our discrimination against her, with interest at 6 percent per annum. Dated By W. T. GRANT COMPANY (Employer) (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 matenal. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.