Marshall Field & Co.

DECISIONS AND ORDERS OF THE NATIONAL LABOR RELATIONS BOARD In the Matter of MARSHALL FIELD & COMPANY and DEPARTMENT STORE EMPLOYEES UNION, LOCAL 291 OF UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA , C. I. O. Case No. C-1854.-Decided August 8, 19.4,1 Jurisdiction : retail department store. Unfair Labor Practices Interference, Restraint, and Coercion: employer held responsible for anti-union remarks, conduct, and attempted espionage of supervisory employees. Adoption of rule, and threatening employees with discharge for violation thereof, prohibiting union activity and discussion during working hours in large retail department store, held not to violate Section 8 (1) of the Act. Dtscriminaion: discharge of two employees for union activity; previous transfer and demotion of one of these employees from supervisory position because of her union activities held not violative of Act. Remedial Orders: reinstatement and back pay awarded. Mr. Robert R. Rissman, for the Board. Pope cfr Ballard, by Mr. Ralph E. Bowers and Mr. Henry E. Sey- farth, of Chicago, Ill., for the respondent. Mr. Francis Heisler, of Chicago, Ill., for the Union. Mr. Herbert N. Shenkin, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a second amended charge duly filed on December 19, 1940, by Department Store Employees Union, Local 291 of United Retail, Wholesale and Department Store Employees, affiliated with the Con- gress of Industrial Organizations,' herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Regional Director of the Thirteenth Region (Chicago, Illinois) issued its com- plaint dated December 28, 1940, against Marshall Field & Company, Chicago, Illinois, herein called the respondent, alleging that the - i The name of the parent organization prior to January 1941 was United Retail and Wholesale Employees of America , and it was in this a - ne that the charges were filed. 34 N. L. R. B., No. 1 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hear- ing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) discouraged membership in the Union by, on or about May 22, 1940, discharging Anice Swift, and on or about June 1, 1940, discharging Georgia Papas Kelly,2 employees in the respondent's State Street department store, and thereafter failing and refusing to employ them, for the reason that they had joined and assisted the Union and its predecessor Marshall Field Employes' Pro- gressive Association, herein called the Association, and had engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection; (2) since May 1, 1940, advised, urged, and warned its employees not to become or remain members of the Association or of the Union; (3) threatened with discharge any em- ployee who became or remained a member of or was active in behalf of the Association or the Union; and (4) by the foregoing and by other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 17, 1941, the respondent filed its answer admitting substantially the allegations of the complaint concerning the nature and interstate character of its business, but denying that it had en- gaged in or was engaging in the alleged unfair labor practices. Pursuant to notice a hearing was held from February 20 to March 6, 1941, at Chicago, Illinois, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and par- ticipated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues. At the opening of the hearing the Trial Examiner granted a motion of counsel for the Board to amend the complaint by extending to February 19, 1941, the period during which the unfair labor practices were alleged to have oc- curred. During the course of the hearing counsel for the respondent moved to strike certain testimony of Georgia Papas Kelly with regard to a conversation she had with two employees of the Fair Store, a retail department store in Chicago, Illinois. The Trial Examiner reserved decision on this motion and denied it in his Inter- mediate Report, referred to below. At the close of the hearing counsel for the Board moved to conform the complaint to the proof and counsel for the respondent moved to conform the answer to the 2 Erroneously referred to in the complaint as Georgia Pappas Kelly and sometimes referred to in the record as Georgia Kelly, Georgia Ann Papas, and Georgia Papas. MARSHALL FIELD & COMPANY 3 proof. Both motions were granted by the Trial Examiner without objection. During the hearing the Trial Examiner made numerous rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed all the 'rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the conclusion of the hearing the Trial Examiner offered all parties an opportunity to argue orally before him but only counsel for the Board took advantage of this offer. The parties were also advised that they might file briefs with the Trial Examiner but no briefs were submitted. On April 3, 1941, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served upon the respondent and the Union, wherein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from such practices, that it offer reinstatement with back pay to Anice Swift and Georgia Papas Kelly, and that it take certain other remedial action. The respondent filed exceptions to the Intermediate Report and to the record on May 8, 1941. The respondent and the Union filed briefs with the Board on May 28 and June 7, 1941, respectively. At the request of the respondent a hearing was held before the Board in Washington, D. C., on June 24, 1941, for the purposes of oral argument. The respondent and the Union were represented by counsel and participated in the argument. The Board has considered the respondent's exceptions, and the briefs filed by the respondent and the Union, and, in so far as the exceptions are inconsistent with the findings of facts, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Marshall Field & Company, an Illinois corporation, has its prin- cipal office and place of business in Chicago, Illinois. At its store in Chicago, herein referred to as the State Street Store, the respond- ent conducts a retail department store business for the purchase, sale, and distribution of a general line of merchandise including food products, household furnishings and equipment, hardware, electrical supplies, sporting goods, cosmetics, dry goods, books, stationery, lug- gage, wearing apparel, and other commodities and merchandise. The State Street Store is the only enterprise of the respondent involved in this proceeding. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent owns all the stock in Frederic Nelson, a retail de- partment store at Seattle, Washington ; in Marshall Field & Com- pany, a New Jersey corporation ; and in the Davis Company, an Illi- nois corporation. It also owns and operates a woolen mill and a bedspread mill at Spray, North Carolina; a rug mill at Leaksville, North Carolina ; and a blanket mill and a sheeting mill at Draper, North Carolina. In addition to the above mills, the respondent owns and operates three other textile mills located in North Carolina and two mills located in Virginia. Approximately 85 per cent of the raw materials used in the- manu- facturing processes at the mills located in North Carolina and Vir- ginia is purchased outside the States of North Carolina and Virginia. Approximately 90 per cent of the finished products manufactured by each of the said mills is sold and transported to points located outside of the States of North Carolina and Virginia. The products of the said mills are sold through salesmen, retailers ,, and mail-order houses located in various States of the United States. The respondent owns and operates a plant located at Zion, Illinois, where it is engaged in the manufacture , sale, and distribution of cur- tains. Approximately 90 per cent of the raw materials used at this plant is purchased outside of the State of Illinois . Approximately 80 per cent of the finished products of this plant is sold and trans- ported to points located outside the State of Illinois. The total cost of the raw materials and supplies used during 1940 by the respondent in its manufacturing operations at the above- named mills and plants was approximately $8,000,000. For the same period the total value of the sales of the finished products was in excess of $15,000,000. In its business the respondent uses approximately 500 trade marks. Its products are manufactured , sold, and distributed under the trade name of Karastan Rug Mills, Zion Lace Curtain Mill , and Marshall Field & Co. The respondent owns and operates five retail depart- ment stores, four of which are located in or around Chicago, and one in Seattle, Washington; and six warehouses and delivery stations, all located in or around Chicago. It also has offices and display rooms in New York City. For the year ending December 31, 1940; the total cost of the mer- chandise purchased by respondent for use and resale at its State Street Store was in excess of $30,000,000 . Approximately 80 per cent of the purchases was made at places outside of the State of Illinois and was transported to the State Street Store by railroad, common carrier, truck lines, respondent 's own trucks, and by United States mail. Approximately 2 per cent of the total purchases was made in foreign countries. The total sales of the State Street Store MARSHALL FIELD & COMPANY 5 for the same period were in excess of $40,000,000. Approximately 12 per cent of the total sales was made and transported by railroad, common carrier, truck lines, respondent's own trucks, and by United States mail to customers-located outside the State of Illinois. In connection with the operation of the State Street Store, the re- spondent operates approximately 120 delivery trucks, and during peak sales periods, approximately 240 trucks. One of respondent's trucks makes daily deliveries from the State Street Store exclusively to places in the State of Indiana ; 2 others, which also make deliveries in Illinois, each make 1 trip daily to Indiana. The respondent advertises its products in newspapers and maga- zines, and by radio and direct mail, at an annual cost of approxi- mately $2,250,000. The number of employees in the State Street Store varies from the permanent staff of approximately 7,500 to 14,000 at the Christmas season. II. THE ORGANIZATIONS INVOLVED Department Store Employees Union, Local 291 of United Retail, Wholesale and Department Store Employees of America, 'affiliated with the Congress of Industrial Organizations, is a labor organiza- tion admitting to membership all the respondent's regularly employed employees of the State Street Store exclusive of supervisory em- ployees who have authority to hire or discharge. Marshall Field Employees' Progressive Association was an un- affiliated labor organization admitting to membership all the re- spondent's regularly employed employees in the State Street Store, exclusive of supervisory employees who had authority to hire or discharge. In July 1940 the Association affiliated itself with the United Retail, Wholesale and Department Store Employees of Amer- ica 8 and the Union became its successor. The Association, inter- changeable with the Union, is sometimes hereinafter called the Tjnion. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Formation of the Association and the Union In November 1939 about 8 employees of the respondent met and discussed the possibility of forming a labor organization at the State. Street Store. On April 30, 1940, about 12 employees met at the home of one of them in order to discuss the matter further. Shortly thereafter, this group distributed among the respondent's employees See footnote 1, supra. 451260-42-vol. 34-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies of a proposed representation plan fpr the formation of a labor organization at the State Street Store. On May 8, at a meeting, attended by 12 employees, the proposed representation plan was unanimously adopted and the Association came into being. A mem- bership drive which was then planned soon bore fruit, for at the next meeting, held on May 15, approximately 150 of the respondent's employees attended. At this meeting it was decided to meet again on May 22 for the purpose of electing officers and "to form a con- crete organization" among the employees of the State Street Store. Anice Swift, the guiding spirit in the formation of the Association, was elected chairman at the May 22 meeting. The membership also elected other officers and adopted a "statement of policies" under which the Association thereafter functioned. On June 1, Swift and Georgia Papas Kelly, together with the other representatives of the Association, distributed to the employees of the respondent copies of a booklet which contained the "statement of policies" and the names of the various officers and , representatives of the. Association. The distribution took place in the store during business hours and at a bus terminal, frequented by the employees and located directly across the street from the store. Enclosed in this booklet was a circular urging the respondent's employees to attend the next meeting of the Association which was to be held on June 4. Copies of the repre- sentation plan, the "statement of policies," the announcement of the June 4 meeting, and the Telescope, a weekly organ of the Association, were handed from time to time to supervisory and non-supervisory employees both inside of and at the entrances to the State Street Store. The members of the Association did not keep their member- ship or activities secret, for they openly solicited members on com- pany time and property. The respondent admits that several days prior to the May 22 meeting Swift requested permission to print in the Field Glass, a publication which the respondent prints and dis- tributes to its employees weekly, the announcement of the May 22 meeting. The respondent refused permission on the ground that, by thus granting to the Association the use of the respondent's facilities, it would be putting itself in the position of fostering an employee organization. The Association continued to hold meetings every 2 weeks until July 2 when the membership unanimously adopted a resolution to affiliate itself with the United Retail, Wholesale and Department Store Employees of America, affiliated with the C. I. 0.4 On July 23 the Union received its charter from this organization and the officers of the Association then became the officers of the Union. A See footnote 1, supra. MARSHALL FIELD & COMPANY 7 2. Interference with the formation of the Association; anti-union statements of the respondent's supervisory officials A day or two after the May 15 meeting of the Association, Martin Heckmann,.a salesman in the book section for 6 years and treasurer of the Union, was questioned by Mrs. Hahner, the buyer 5 in the book section, as to whether he had attended that meeting. Heckmann admitted having attended the meeting and Hahner thereupon said to him that she liked his work and that "she didn't want to see anything happen to him" and therefore she did not think it was ad- visable for him "to get mixed up in that sort of thing." On the day following the Association's June 4 meeting, Hahner asked Heckmann whether he had attended this meeting. He testified that he admitted being there and that the following ensued : She again told me that she didn't want to see anything happen to me, and that the organization that we had was inexperienced, that we should have gone to school, and that I shouldn't get mixed up with Mrs. Swift, because she was merely using me to keep the Progressive Association together so that she could file a case with the Labor Board. She also told me that she knew Mrs. Swift was fired because of inefficiencies arising from her activities. * * * * * * * She also told me that if the Union got in, that she would no longer be able to permit us to take extra time on our passes; and that our vacations would be taken away from us, and that she wouldn't be the boss in the section any more, that she would refer complaints to some board and they would dismiss us. , While Heckmann was on his vacation in September 1940, he spent some time distributing copies of the Telescope to the respondent's employees as they entered the store. On one occasion he handed a copy to Hahner, who said to him : . . . What are you doing here? . . . I am paying you to take your vacation . . . I don't want you working against the company while we are paying you to rest up so that you can come back herein the fall and do a good job. 5 The respondent admits that buyers and assistant buyers have supervisory status. The buyer is the executive head of a section and in addition to his function of purchasing merchandise for the department , is the management's representative responsible for its operation He decides when additional help is needed and is the person to whom the sales force looks for instructions . Assistant buyers help the buyers generally in the operation of the section. S DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richard Steele, a salesman in the book section for the past 15 years, testified as follows concerning a conversation he had with Hahner on May 25: She said first that there was something she had been wanting to ask me, and following that asked me whether I had been approached by any of these labor people. Well, I disclaimed any knowledge of what she meant by "these labor people," but told her that I had attended, the two meetings-or two meetings. So she went on from there to say that when she had been called upstairs,' that she had told them that none of her people had gone to this meeting, because her people always came to her first with any problems that they might have. She said that they laughed at her and told her that if these people get what they want, there won't be any need for you. Then she said, "You didn't talk, did you?" I told her I made a couple of suggestions. * * * * * * * Well, she went on to say, "Well, whenever things get out of my hands, there is nothing that I could do about it, anyone can be let go for poor service, or something of that sort, and there is nothing that I can do." Steele also testified that Scheele, one of Hahner's assistants,' spoke to him shortly after the May 15 meeting and mentioned that Mrs. Hahner was feeling a bit upset because a rumor was going around to the effect that merchandise car- riers were forming a union of some sort, and then he added the question, he said, "I don't believe that they will get far with the salespeople, do you? I think that the salespeople are pretty well treated, don't you?" Neither Hahner nor Scheele were called as witnesses for the re- spondent. We find that they made the statements attributed to them by Heckmann and Steele. During the first week in August 1940, Sidney Baker, an elec- trical maintenance employee, was called from his work by Peter Barr, his foreman. Barr spoke to Baker privately in the fire-pump B The word "upstairs " refers to the respondent's executive offices. 7 See footnote 5, supra. MARSHALL FIELD & COMPANY 9 room and Baker testified as follows concerning the ensuing con- versation:. A. Well, he said he wanted to have a little talk with me, now that I had understood there was a rumor around the offices, had a meeting the previous day, and he liked me as a good fellow, he didn't want to see anything happen to me, my work was all right, and thought that this being mixed up in this Union business wasn't doing me any good, and if there was a layoff or getting rid of anybody why seniority wouldn't count with me. That if I was laid off due to Union activities it would be kind of a black eye, and if I got down as an agitator I would have, a tough time getting a job anywhere on State Street in any of the other Department Stores. Q. Did you say anything to him? A. Yes, I asked him what he thought about the organization. Q. Tell us the entire conversation between you and Mr. Barr in that pump room on that day? A. Well, we talked about several things. He said that he kind of looked out for himself and he thought I ought to look out for myself, look out for number one. He said he knew two or three of the younger fellows were mixed up in the organization, didn't want to see me get mixed up and be a martyr for a cause like that. I was old enough to have better sense. Q. What did you understand him to mean when he said you would not get a job on State Street? A. Well, he said if I was fired or let out from Marshall Field's with a mark against me that I was an agitator, that I would probably have a tough time getting a job in any other store on State Street. We find that Barr, who did not testify at the hearing, made the statements attributed to him by Baker. Louise Bonbicino, an employee in the candy kitchen for more than 4 years, testified as a Board witness under subpena that Mrs. Taylor, her superior, requested her to attend meetings of the Union in order to ascertain for Taylor who, among the respondent's employees, were members of the Union. Bonbicino further testified that after dis- cussing the matter at home, she informed Taylor that she had decided not to spy on the Union, whereupon Taylor said, ". . . well it was all right if I didn't want to go, she would ask somebody else to go." 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bonbicino's testimony was not denied, and we find, as did the Trial Examiner, that Taylor tried to get her to spy on the Union. We have held on numerous occasions that attempts by employers to persuade and urge employees to become informers and report the organizational activities of their coworkers are violations of the Act .8 Such anti-union conduct is but one step removed from industrial espionage.9 The respondent urged at the hearing that the activities described above did not, in fact, constitute unfair practices because several of the employees testified that they were not intimidated and that they remained members of and active in behalf of the Association and the Union despite the remarks attributed to the respondent's supervisory officials by the said employees. This contention is without merit. The question here presented is whether the acts and conduct of the respondent constituted interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed in the. Act. Evidence concerning the effect or lack of effect of the respondent's acts on particular individuals is not decisive of this issue.10 We find that the respondent, by attempting to spy upon meetings of the Union; by interrogating its employees regarding their union membership; and by the anti-union remarks and conduct of Hahner, Scheele, Barr, and Taylor, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Shortly after the formation of the Association, the respondent put into force a rule forbidding union activity or discussion on company time and property. In his Intermediate Report, the Trial Examiner found that the respondent had violated Section 8 (1) of the Act by threatening its employees with discharge if they engaged in union discussions on company time and property while permitting them to discuss any other subject. He found, further, that this change in the respondent's labor policy was directed specifically against the Association and the Union and was intenued to discourage member- 8 See Matter of Fansteel Metallurgical Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 66, 5 N. L. R. B. 930, enf'd as mod. N. L. it. B. v. Fansteel Metallurgical Corporation, 306 U. S. 240 , aff'g as mod . 98 F. (2d) 375 (C. C. A. 7) ; Matter of Consolidated Edison Company of New York, Inc., at al. and United Electrical and Radio Workers of America, affiliated with the Committee for Indus- trial Organization, 3 N. L. It. B. 71, enf' d as mod. Consolidated Edison Company of New York, Inc., at al. v. N. L. it. B. at al., 305 U. S. 197 , aff'g as mod . 95 F (2d ) 390 (C. C. A. 2) ; Matter of Fruehauf Trailer Company and United Automobile Workers Federal Labor Union No. 19375, 1 N. L. R. B. 68, enf'd N. L. it. B. v. Fruehauf Trailer Company, 301 U. S. 49, rev'g 85 F. (2d) 391 (C. C. A. 6). See footnote 8, supra. 10Brown Paper Mill Company, N. L. It. B. v., 108 F. (2d) 867 (C. C. A. 5) enf'g 12 N. L. R. B. 60, cert. den. 310 U. S. 651; Matter of The Ohio Fuel Gas Company and District #50, United Mine Workers of America, 28 N. L. it. B. 667, and cases cited in footnote 6 therein. MARSHALL FIELD & COMPANY 11 ship in those organizations. While there is some evidence justifying the Trial Examiner's conclusions, we are not prepared to say that, in the operation of a retail department store, it is violative of the Act to proscribe union activities on company time and property. We recognize the fact that employees in the State Street Store are con- stantly engaged in serving the public, and that a rule such as is here involved is reasonably adapted to the operation of such a business. We do not hold that the adoption and enforcement of such a rule cannot, under any circumstances, be contrary to the Act, but hold merely that there is not sufficient evidence in this case to show that the action of the respondent in adopting and enforcing the rule, under the circumstances here present, constituted interference with, or restraint or coercion of the respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharges The complaint alleged that the respondent discharged Anice Swift on or about May 22, 1940, and discharged Georgia Papas Kelly on or about June 1, 1940, and thereafter refused to reinstate them because of their union membership and activity, thereby discriminating in regard to hire and tenure of employment and discouraging member- ship in the Association and in the Union. In its answer the respond- ent denied that it discharged or refused to reinstate the said employees for the reasons alleged, claiming affirmatively that it discharged them for cause.11 Swift was first employed by the respondent for temporary sales jobs during the Christmas seasons of 1930 and 1931. Between Aug- ust 1936 and December 1937 she was employed in respondent's adver- tising bureau as an assistant copy writer. When first employed in the advertising bureau, Swift received $30.00 per week; in March 1937 she received a $5 a week increase. Swift took maternity leave in December 1937 and after the birth of her child decided to resign her position. In January 1939, while working for the Works Progress Adminis- tration, Swift was requested by Mildred Bartlett, director of the respondent's Training Division, to return to the respondent's employ to assist in the compilation of -certain manuals and booklets. On March 20, 1939, Swift accepted this position and was assigned to the Training Division. Her salary was then fixed at $30 per week. The Training Division is responsible for the initial and the continued 11 At the hearing the respondent referred to these two employees as having been "per- manently laid off." Bergen, respondent's personnel manager, testified that the only dif- ferences between a discharge and a permanent lay-off were that in the latter case the employee is eligible for reemployment and receives separation pay. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training of the respondent's sales force 12 Swift's duties in this department were largely confined to writing and editing training manuals and booklets used by the sales force and to the holding of meetings with sponsors- in the Home Furnishing Division. The evidence indicates that Swift was rehired in the Training Division in 1939 as a selling supervisor 14 in the Home Furnishing Division, and that she was, therefore, a member of the respondent's supervisory staff. As shown above, Swift was the guiding spirit in the formation of the Association and throughout its existence was its leader. It was through her guidance and leadership that the Association was formed. She prepared the representation plan and the "statement of policies" which were adopted by the Association, presided over all its meetings and became its first chairman. She had the representation plan "dittoed" at her husband's office and assisted in its distribution. She likewise assisted in the distribution of the "statement of policies." In July 1940 she became chairman of the Union. Swift's membership in and activities in behalf of the Association early became known to the respondent. Garrett L. Bergen became, personnel manager of the State Street Store on or about April 22, 1940, and shortly afterward Bartlett informed Bergen that Swift was discussing an employee organization with employees from other divisions of the store who were coming to the Training Division to see Swift. Bergen told Bartlett that he thought it was a serious matter for Swift who was in "a position of responsibility and influ- ence," to .engage in organizational activities because the respondent might thereby be charged with forming a company-dominated union; but he did not request Bartlett to advise Swift to discontinue her union activities, nor did he advise Swift to do so. Bergen did warn Swift not to make any statements that the Association had or might have the respondent's approval. Swift testified and the record sup- ports this testimony that she had not in fact been making any state- ments to the effect that the respondent approved or was supporting 12 All new employees first report to the Training Division where they are instructed in general store policies , location of various departments in the store, general duties of their job , mechanics of handling sales checks and the like . Prior to April 1940, the Training Division reported to the personnel manager, but now it reports to the vice president in charge of operations. 13 Sponsors train the sales persons after they are placed on the selling floor; attend to the adjustment of customers' complaints; and take care of correcting errors made by the sales persons under their supervision. 14 The duties of a selling supervisor include holding weekly meetings with sponsors and acquainting them with system procedures and with the various problems which arise regarding the adjustment of customers ' complaints . These duties also include the dis- semination to sponsors and to the sales force of information regarding new merchandise and the latest fashions and styles. In the performance of her duties a selling supervisor spends a great deal of her time in the departments under her supervision . The selling supervisors are directly under the supervision of Bartlett, the director of the Training Division. MARSHALL FIELD & COMPANY 13 the Association. The only other step Bergen took at this time was to put into force the rule 15 prohibiting discussions of unionism on company time and property. Furthermore, on or about May 6, 1940, Swift was called into the office of Palmer, the respondent's vice presi- dent in charge of operations, who discussed with her "the ideas that were incorporated" in the representation plan. Within a few days of Swift's talk with Palmer, Bartlett informed her that she was to discontinue holding weekly sponsor meetings, to remain within the limits of the Training Division, not to. spend any time on the selling floors of the Home Furnishing Division and to confine herself to the task of revising "Let's Go to Work," a booklet containing the respondent's rules and regulations distributed by it to new employees. Shortly after that, on May 11, Bartlett informed Swift that the respondent had decided not to revise "Let's Go to Work" and that therefore her services were no longer needed in the Training Division. Swift immediately saw Palmer, who informed her that he was reorganizing the Training Division and that he did not believe that she fitted into the picture. He told Swift that the decision to drop her was final, and he directed her to see Bergen in order to find out whether there was anything else in the store for her. On the same day, May 11, Swift saw Bergen. He suggested that she see Donald Keith, who was setting up a new department, known as Out-of-Town Promotion, and that perhaps Keith could use her services. Swift immediately went to Keith who outlined the job to her and informed her that it involved occasional traveling with him out of town for several days at a time. Swift told Keith that she was interested in the job, but that she would first have to ascer- tain whether she could arrange to have her mother come to Chicago from Texas to care for her children while she was on these trips. Keith consented to allow Swift a few days to enable her to ascertain whether she could make the necessary arrangements. Swift then took leave of absence until May 16, on which day, according to her testimony, she advised Keith that she would accept the job provided she did not have to leave Chicago until after May 23. Swift testified that she informed Keith that she had arranged her household affairs so that she could go out of town on May 23. She further testified that the reason she waited until May 16 before definitely deciding to take the out-of-town job was the fact that on May 15 the Association had planned an important meeting for May 22; and that, when she accepted the job, she wanted to be sure that she would be in Chicago on May 22. It is not clear from the record whether Swift specifi- cally informed either Bergen or Keith of the May 22 meeting when she started on her new duties. There is no doubt, however, that 11 See Section III, A ( 2), supra. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bergen was aware of the meeting for, as noted above, Swift had re- quested permission of Mrs. Hyatt, editor of the Field Glass, to print an announcement of the May 22 meeting in that publication. Hyatt took the matter up with Bergen, who refused to grant the permission. Swift testified that Keith assured her that she would not have to leave Chicago until after May 23 and with this assurance she started upon her new duties. Keith's testimony in regard to his conversa- tions with Swift on May 11 and May 16 is substantially the same as Swift's, except that he testified he hold Swift, contrary to her testi- mony, that she would have to leave Chicago not later than May 23. The Trial Examiner, who had an opportunity to observe the witnesses, credited Swift's. testimony in this regard and found that Keith in- formed her she would not have to leave Chicago before May 23. This finding is supported by the fact that, by Keiths' own admission, he had been working on the particular survey on which he wanted Swift to accompany him (see infra) for about 4 or.5 weeks, and it was not until May 21 that Keith, in a discussion with H. B. McBairi, the respondent's executive vice president, under whom Keith worked, fixed a deadline for completion of the survey on May 25. We adopt the Trial Examiner's finding. About 1:34 on the afternoon of May 21 Swift was informed by Keith to make arrangements to leave with him that evening for Grand Rapids, Michigan. Swift told Keith that she could not ar- range her personal affairs to make the trip on such short notice, stating further that, relying upon his assurances that ,she would not be obliged to leave town before May 23, she had not arranged to have her mother come to Chicago before that date. Keith, however, was adamant in his demand that she leave with him that night, and ignored Swift's plea that she be permitted to leave Chicago on the night of May 22 and join him the following day. Keith testified that he insisted upon Swift's leaving that evening because he had promised McBain the report on May 25 and that it could not properly be completed until the trip had been made by both of them and their observations recorded. Because of Swift's inability to make the trip, Keith instructed her immediately to see Bergen and he made the trip accompanied by an employee of the respondent's research bureau. When Swift reported to Bergen she repeated her reasons why she could not make the trip that evening, and reminded him of the Association meeting on May 22. Bergen informed her, however, that because she had refused to make the trip, her job with Keith was terminated. Bergen then instructed Swift to finish her day's work and see him on May 24. Bergen was otherwise engaged on that day, but on May 25 he informed Swift that there was no other position for her in the store and that he was therefore obliged to: discharge her. MARSHALL FIELD & COMPANY 15 There is no substantial disagreement as to the events of May 21. Upon extremely short notice, Swift was ordered to make an out-of- town trip which would have prevented her from attending the im- portant Association meeting of May 22. The respondent was aware of this meeting. As indicated above, Swift had been very careful, in accepting the job with Keith, to stipulate that she would not have to go out of town until after May 23. Keith had agreed to this. Under these circumstances, and in view of the other unfair labor practices heretofore adverted to, we are of the opinion that Swift's discharge was a consequence of the respondent's disapproval of her Association activities, and that the events of May 21 offered the respondent a pretext, upon which it seized, to rid itself, once and for all, of the leading figure in the Association. Supporting evidence for this conclusion is found in the uncontra- dicted testimony of Doris Ganoung, who, while working in the milli- nery department, went to see Miss Wood, then the employment man- ager, about securing employment elsewhere in the store. During this interview, which occurred about the middle of June 1940, the question of unionism arose, and Wood told Ganoung that , . . . she (Wood) was an individualist, that she didn't be- lieve in Unions, that one time she worked in an office, a railroad office in the East, and that there was an attempt made there to form a Union, and that one of the men who had been there for the longest time and was about to receive his pension, was very active in this Union, and it did not succeed, the Union did not go through, and he lost out, and she said, "That is what hap- pens to people that join Unions." Later in this conversation Ganoung asked Wood whether "Mrs. Swift had been let go because of her Association activities." Wood replied : You don't think that the management-you don't think the management can have people like Mrs. Swift in the store under- mining the employees. It should be noted that this conversation occurred several weeks after Swift's discharge. In reviewing Swift's case certain facts stand out. The record is clear that her services were perfectly satisfactory in the Training Division. She received frequent compliments on her work, and in October 1939, was given a $5 per week increase in pay. It is also clear that the respondent transferred Swift from the Training Division because of her activities in behalf of the Association. We do not find that this transfer was, in violation of the Act. The respondent, under the peculiar circumstances of this case, was 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD justified in taking away Swift's supervisory authority and transfer- ring her to another job. When Swift went to work for Keith, how- ever, she had no supervisory authority, and since we find her dis- charge to have been caused by her Association activities, she is entitled to the full protection of the Act. Georgia Papas Kelly was first employed by the respondent in 1931 as a saleslady in the handkerchief section. While so employed she was rated by the section manager as one of the best employees there. In 1932 she was transferred to the fabric section and in 1935 was made head of the custom tailoring department. Her duties, among others, included advising customers in the selection of materials for and the designing and fitting of garments. In February 1939 she was transferred to the millinery division as a saleslady and within 2 weeks was made a sponsor.16 The respondent contended at the hearing that some time around the middle of March 1940, Kelly was replaced as sponsor by Miriam Boyer at the request of William C. Stetson, merchandise manager of the millinery division, and that she was discharged on June 1 because of her poor sales record. Kelly was a sponsor in the millinery division when Stetson be- came merchandise manager of that division in October 1939. Shortly after Stetson assumed his duties he advised the personnel division that he was dissatisfied with the way Kelly was performing her duties and that he wanted her replaced ; in the latter part of February 1940 he hired Boyer to replace Kelly. Boyer had never worked in a department store before, and she spent several weeks training in another section before reporting to the millinery division. Stetson testified that about the middle of March he informed Kelly she was being replaced as sponsor by Boyer, but that he would keep her in the millinery division as a saleslady. He testified that he also told Kelly he was going to allow her to draw the same salary because he believed she could sell enough merchandise to warrant her doing so. Stetson testified that Kelly accepted the demotion and seemed perfectly willing to stay and sell under those circumstances. Kelly testified that Stetson did not tell her that she was being replaced but told her he was bringing in an older girl to take over some of her responsibilities. The credible evidence shows that Kelly continued with the duties she had performed prior to the time Boyer came into the millinery division, except that she discontinued conducting fashion shows and attending meetings with sponsors. These latter duties Boyer as- sumed. The evidence also shows that most of Kelly's time prior to 11 The sponsors receive a salary plus a percentage on their net sales. Salespersons receive a drawing account against commissions. See footnote 13, supra. MARSHALL FIELD & COMPANY 17 and after Boyer's arrival in the Millinery division was spent adjust- ing, crediting, and exchanging merchandise returned by customers and that she therefore did not have much time in which to sell, Stetson testified that when Kelly was relieved of her sponsor's duties she should have spent all of her time selling and that she had no right or authority to do anything else. However, the record is clear, and the respondent does not deny, that Kelly continued to have a "signature" which permitted her, among other things, to approve "exchanges," and' "returns," and to accept customers' checks for the purchase of merchandise. The respondent maintained that Kelly 's low sales record was due to her lack of interest in selling , but offered no evidence in support thereof. Although Stetson testified that he complained to Bailey, the personnel manager of the division , and to Bergen, that he could not keep Kelly in his division because of her low sales record and because of her lack of interest in her work, he admitted that he never discussed the matter with Kelly . The record shows that Kelly was an able and conscientious worker and that she was never informed that her work was not up to standard . Instead she was often com- plimented on her work and for the interest and ability which she displayed in training new employees.17 Kelly was among the first to become active in the Association and was one of the 12 persons present at the May 8 meeting ; she was elected a representative at the May 22 meeting. She was very active in the Association's behalf and assisted in the distribution of its liter- ature in and near the store, but not while she was on duty. She was never told that she was violating any company rule by distribut- ing union literature or discussing unionism on company property. However, Kelly testified without contradiction that shortly after May 8, Miss Conopa, an assistant buyer in the millinery division, said to her ... there wasn't any need of my passing these plans to our employees because they were happy . And that-she asked me if I knew what would happen to me if I kept on with union activities, and I said no, and she said, why, I could be fired for it. On June 1, 1940, while on her lunch hour, Kelly distributed copies of the Association's "statement of policies" in the store. At about 4 o'clock that afternoon she was informed by Bailey that she was discharged. Bailey gave her no definite reason for her dismissal, but said that Stetson had nothing to do with it. At Bailey's sugges- tion, Kelly saw Miss Wood, then employment manager, who told her 17 When Swift returned to the respondent's employ in March 1939, as part of her training she was assigned to a sponsor to learn sectional procedures. Swift's instructor, Miss Bowles, assigned her to Kelly, saying that Kelly was one of the best sponsors in the store. 1S DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she had tried to find a job for Kelly in some other department, but that there was no vacancy. Kelly testified as follows concerning her conversation with Wood : A. . . . During the course of the conversation, she said I had no business being interested in this union, because I was paid under the management, I was in a supervisory position and paid under the management and was not under the rank and file. Q. Did she say anything else? A. Well, she wanted to know how I would feel if I had a store like Marshall Fields and they picked someone out for-someone that was slated for an executive position and would turn against them. I told her I did not turn against Fields, that I was interested in Fields one hundred per cent, and consequently I was interested in the employees. Neither Bailey nor Wood testified and we accept as true Kelly's version of her conversations with Bailey and Wood on June 1. Wood's remarks to Kelly are particularly significant in view of the respondent's reasons for Kelly's discharge. The respondent con- tends that Kelly was relieved of her duties as a sponsor, given ordi- nary sales duties in the millinery section and was discharged when her sales did not come up to par. The respondent concedes that sponsors are not required to meet any sales quota and that was the reason they were paid on a salary and commission basis. It is clear that if Kelly continued to perform certain non-selling duties her sales would necessarily be low. The statements by Wood are clearly at variance with the respondent's position on Kelly's discharge. We also accept as correct Kelly's version of what was told her by Stetson at the time Boyer came into the millinery division, for it is consistent with the fact that Kelly retained her "signature," with the fact that she continued to be paid a salary and commission,18 and with Wood's statements to Kelly. To sum up, Kelly had a long and satisfactory employment record in the State Street Store. Prior to any Association activity, she was replaced as sponsor in the millinery division by Boyer, but she con- tinued to perform many of the non-supervisory duties of a sponsor. Persons performing these duties in the supervisory position of sponsor do not have a sales quota to meet, because they do not have time enough for selling. Kelly's creditable employment record, the complete ab- sence prior to her discharge of any complaint or warning as to the quality of her work, and Wood's remarks on the day of her discharge, "Stetson admitted that only the buyer, two assistant buyers, Boyer and Kelly were paid on a salary and commission basis during this period, and that the regular sales force was paid on a drawing-account basis with a fixed quota of sales to meet. MARSHALL FIELD & COMPANY 19 lead to the conclusion that Kelly was discharged and refused rein- statement, not because of a poor sales record, but because of her promi- nence in and activity in behalf of the Association. We find that the respondent discharged Anice Swift on May 25, 1940, and Georgia Papas Kelly on June 1, 1940, and thereafter re- fused to reinstate them, because of their union membership and ac- tivity, and thereby discriminated in regard to their hire and tenure of employment, discouraged membership in the Association and in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 operations.of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effec- tuate the policies of the Act. We have found that the respondent discriminated in regard to the hire and tenure of employment of Anice Swift and Georgia Papas Kelly by discharging and, refusing to reinstate them because of their union membership and activity. We shall therefore order the re- spondent to offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. We shall also order that the respondent make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them: (1) by payment to Anice Swift of a sum of money equal to the amount of money she would normally have earned as wages from June 8, 1940,19 to the date of the respondent's offer of reinstatement, less her net earnings 20 during said period; and (2) by payment to I Although Swift was discharged on May 25, she received 2 weeks ' separation pay. 20 By "net earnings " is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia Papas Kelly of a sum of money equal to the amount she would nornfally have earned as wages from June 1, 1940, the date of her discharge, to the date of respondent's offer of reinstatement, less her net earnings 21 during said period. CONCLUSIONS OF LAW 1. Department Store Employees Union, Local 291 of United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Marshall Field Employes' Progressive Association, was a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Anice Swift and Georgia Papas Kelly, thereby discouraging membership in the above-mentioned labor organizations, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Marshall Field & Company, Chicago, Illinois, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Department Store Employees Union, Local 291 of United Retail, Wholesale and Department Store Employees of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, bargain collectively through representatives of their own choosing and to engage in concerted 11 See footnote 20, supra. MARSHALL FIELD & COMPANY 21 activity for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Anice Swift and Georgia Papas Kelly immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole said Anice Swift and Georgia Papas Kelly for any loss of pay which they may have suffered by reason of the re- spondent's discrimination against them by payment to them, re- spectively, of a sum of money equal to that which they would normally have earned as wages from June 8 and June 1, 1940 , respectively, to the date of the offer of reinstatement, less their net earnings 22 during said period; (c) Post immediately in conspicuous places throughout its State Street Store and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stat- ing: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) above; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) above; and (3) that the re- spondent's employees are free to become or to remain members of Department Store Employees Union, Local 291 of United Retail, Wholesale & Department Store Employees of America, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of his membership in or activity in behalf of said labor organization; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. MR. EDWIN S. SMITH, dissenting in part : The Trial Examiner, in his Intermediate Report, found that the respondent had violated Section 8 (1) of the Act by threatening its employees with discharge if they engaged in discussions regarding union matters on company time and property. I agree with the Trial Examiner's conclusions, and dissent from that portion of the Board's decision which holds to the contrary. The record shows that the respondent altered its labor policy shortly after the formation of the Association, and adopted a rule prohibiting discussions of union activities on company time and property. Both before and after the adoption of this rule, discussions on other sub- jects were permitted freely as long as there was no interference with 22 See footnote 20, supra. 451269-42-vol, 34-3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business. The record discloses that the employees were not notified of the existence of the rule, and only became aware of it when in- fringements of it were reported to their supervisors, who would then threaten them with discharge for engaging in such activities. Under these circumstances, the Trial Examiner correctly concluded : ... that the amendment to the respondent's labor policy was directed specifically against the Association and the Union and was intended to discourage membership in those organizations .. . This conclusion is fortified by the testimony of several of the re- spondent's officials to the effect that they often engaged in discus- sions with employees during -working hours on subjects foreign to the respondent's business. Furthermore, Frank Lundy, who just prior to the hearing became head of the packing and inspecting divisions of the State Street Store but who for 3 years theretofore was per- sonnel manager of the non-selling departments with 3500 employees under his supervision, testified that he could recall no instance when an employee had been reprimanded for engaging in conversation on company time and property except two instances in both of which the subject was unionism. It is clear that to prohibit discussions of unionism while at the same time permitting all other types of con- versation discourages employee self-organization. The adoption and enforcement of the rule proscribing such conduct is a violation of Section 8 (1) of the Act, and I would so find.23 I also dissent from the finding of the majority of the Board that the demotion and transfer of Swift from the Training Division was not a violation of the Act.24 Swift was never warned about her union activities in the Training Division, or told to discontinue them. The respondent merely admonished her not to make statements which would indicate that the Association had the respondent's approval. It was established that Swift never made such statements. The re- spondent advised certain of its supervisory employees to adopt a neutral position regarding union matters, but Swift was not so ad- vised. Yet, although other supervisory employees engaged in anti- union activity, as the Board has found, Swift alone suffered penalty. The respondent admits that it demoted Swift. because of her ac- tivities on behalf of the Association; it asserts that its motive was to avoid the implication that by Swift's activities the respondent was supporting the Association within the meaning of Section 8 (2) of 2s See Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N. L. R. B. 292, enf'd as mod . N. L. R. B . v. Botany Worsted Mills, 106 F. ( 2d) 263 (C. C. A. 3) ; Matter of Paragon Die Casting Corporation and National Association of Die Casting Workers, 27 N. L. R. B 878. 24 Although the complaint did not allege that this demotion and transfer was dis- criminatory, the issue was fully litigated at the hvtring, and there is no obstacle to a finding as to this phase of the ease. MARSHALL FIELD & COMPANY 23 the Act. Under the circumstances set forth above, and in view of the unfair labor practices which the Board finds were committed by the respondent, I do not believe this assertion. I believe, and would find, that the respondent demoted and transferred Swift in order to discourage union activities among the employees. The respondent further argues that Swift, as a member of its supervisory staff, is not entitled to the protection of the Act. This contention is clearly without merit.25 I would find that by demoting and transfering Swift the respond- ent discriminated in regard to the terms and conditions of her em- ployment, within the meaning of Section 8 (3) of the Act. 21 National Labor Relations Board v. Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8) enf'g Matter of Skinner & Kennedy Stationery Company and St. Louis Printing Pressmen's Union No . 6, Inc., at al., 13 N. L. R. B. 1186; see National Labor Relations Board v. Christian Board of Publication, 113 F. ( 2d) 678 (C. C. A. 8), enf'g Matter of Christian Board of Publication and Allied Printing Trades Council of St. Louis, Missouri, 13 N. L. R. B. 534. As the Board said in Matter of Chambers Corpora- tion and Allied Stove Mounters and Stove Processors International Union, Local No. 86 (A. F. of L.), 21 N. L. R. B. 808, 830 : ". . . Granted that the respondent may properly inhibit its foremen from interference with employee self-organization by adopting a non- discriminatory rule requiring foremen to -refrain from activity in any labor organiza- tion . .., it may not, in the absence of such a rule and without warning, discriminate against a foreman for his union membership or interest."