J. W. Mays, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 942 (N.L.R.B. 1964)

942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In calculating the amount of backpay due, I have not considered as interim earn-
ings the amounts that Fowler realized from the sale of fruit from his small acreage
or whatever he may have earned in doing "custom" work for his neighbors. These
items of income were earned in a manner which did not affect his availability for
employment and had been earned in the past when he had other employment. The
claim of 100 a mile for use of Fowler 's car in commuting to employment and in
seeking employment is a reasonable charge . It was his unlawful discharge which
forced him to drive long distances to employment or in search of it , and the Respond-
ents are not in a position to insist that he do so at a minimum rate . No claim is
made for the additional hours that Fowler necessarily spent in travel to and from
his interim employment . I consider that the dues paid by Fowler to Steamfitters
Local 235, in Portland , Oregon, through which he was referred on more than one
occasion to employment and long distance telephone calls to that Local in connec-
tion with employment to be reimbursable items of expense.
I find that Fowler is entitled to backpay as follows:
Period Interim
earnings
Expenses
Net
interim
earnings
Back pay
Gross Net
1961-
5/1-6/30---------------------- $100 $15 $85 360 hrs @ $2. 55= $918 $833
7/1-9/30---------------------- 1, 560 23 1, 537 520 hrs © 2.55=1, 326 0
10/1-12/31------------------- 8 1, 436 625 811 520 hrs Q 2.65=1,378 567
1962-
1/1-3/31---------------------- 205 103 102 520 hrs Q 2. 70=1, 404 1,302
4/1-6/30---------------------- 1,952 634 1,318 520 hrs Q 2. 75=1, 430 112
7/1-9/30---------------------- 1,541 475 1, 066 504 hrs @ 2.80=1, 411 345
10/1-12/31-------------------- 2, 035 627 1,408 476 hrs @ 2.85=1, 357 0
1962-
1/1-3/31---------------------- 2,462 66 2,396 520 hrs © 2.90=1, 508 0
4/1-6/30---------------------- 158 0 158 520 hrs Q 2.90=1, 508 1,350
Total net backpay due
through June 30, 1963---- 4, 509
Liability for further backpay continues until Fowler is offered reinstatement to his
former job.
[Recommended Order omitted from publication.]
9I have added to interim earnings the sum of $9 which Fowler earned from Wanapum
Powerhouse Joint Venture on October 16, 1961. Fowler did not collect this pay but it is
unclear why he did not do so.
J. W. Mays, Inc. and Local 635, Home Furnishings Employees
Union , Retail . Clerks International Association , AFL-CIO.
Cases Nos. 2-CA-9142,2-CA-9142-2,2-CA-9142-3,2-CA-9142-4,
and 2-CA-9391. June 29, 1964
DECISION AND ORDER
On February 20, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices vio-
lative of Section 8 (a) (1) and (3) of the Act and recommending that it
cease and desist therefrom and take certain affirmative action, as rec-
ommended in the attached Decision. The Trial Examiner also found
147 NLRB No. 104.
J. W. MAYS, INC. 943
that the Respondent had not engaged in certain other unfair labor
practices and recommended that the complaint be dismissed as to them.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to it three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner 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 Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modification.
We agree with the Trial Examiner that Portas and Richardson were
transferred from Respondents' warehouse office to its general office for
discriminatory reasons in violation of Section 8 (a) (3) and (1) of the
Act. We further find, in agreement with the Trial Examiner, that
the discharge of Portas on March 13 for resisting and refusing to ac-
cept the discriminatory transfer of March 9 was further violative of
Section 8(a) (3) and that Portas is entitled to reinstatement with
backpay in accordance with the Trial Examiner's Recommended
Order. Unlike the Trial Examiner, however, we do not equate the
situation of Richardson, who promptly resigned upon learning of
her transfer on March 5 to that of Portas. The working conditions
and terms of employment offered Richardson in the general office were
at least as desirable as those enjoyed by her in the warehouse office.
As found by the Trial Examiner, Respondent's purpose in effecting
the transfer was to impede Richardson's union activity by removing
her from contact with old associates who would be most receptive to
her proselytizing efforts and transplanting her to a "new and unfamil-
iar milieu." It thus appears that Respondent's intention at the time
was not to force Richardson's resignation and that Richardson's con-
tinued employment was not expressly conditioned upon her abandon-
ment of union activity or any other statutory right. Nor was Richard-
son given reason to believe otherwise; since her resignation antedated
the discharge of Portas, it cannot be said that Portas' discharge af-
forded Richardson reason to apprehend that her transfer was a device
for inducing her resignation. Respondent's treatment of Richard-
son is comparable to the situation in which an employer's unfair labor
practice is designed to thwart its employees' union activity while re-
taining them as its employees. In such circumstances, we do not. be-
1 Respondent ' s request for oral argument is hereby denied since , in our opinion ; the en-
tire record in this case , including the exceptions and briefs , adequately set forth the issues
and positions of the parties.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have that an employee is entitled to abandon employment promptly
upon the commission of such an unfair labor practice and claim the
benefits of a constructive discharge . However, we believe that it will
effectuate the policies of the Act to require Richardson's reinstatement
to the position occupied by her prior to her discriminatory transfer.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, J. W.
Mays, Inc., its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, with
the following modifications :
1. 'Section 2 (b) of the Order shall be modified to read as follows :
Make whole the said employees, with the exception of Frances
Richardson, in the manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy," for any loss of pay
they may have suffered by reason of the Respondent's discrimina-
tion against them.
2. The notice appended to the Trial Examiner's Decision shall be
modified to read as follows :
WE WILL offer Frances Richardson and the following employees
immediate and full reinstatement to their former or susbtantially
equivalent positions, and make whole the following employees
for any loss of pay suffered by reason of the discrimination
against them :
Benny Filosa Walter Segarra
Marvin Reid Alice Portas
Ivan Eddie Cohen Frederick Buckley
Vito Cecero M
2 Member Brown approves the Trial Examiner 's disposition of Richardson 's case and he
therefore disagrees with his colleagues ' failure to award backpay, in addition to reinstate-
ment , to Richardson . See Walker Electric Company, 142 NLRB 3214, 1216 ( dissenting
opinion ) ; Electro -Mechanical Products Company, 126 NLRB 637, 648-650; South Bay
Daily Breeze, 130 NLRB 61, 62; N.L.R.B. v. Armour & Co ., 154 F. 2d 570 , 577 (C.A. 10).
In the opinion of Members Leedom and Fanning, the majority decision in the Walker
Electric case supports their conclusions in the instant case. In each of the other cases
cited by Member Brown , the respondent had actually terminated the employment relation-
ship with respect to the position in which the affected employees had been working. Thus,
although these latter cases support the award herein of backpay for Portas , they are not,
in the opinion of Members Leedom and Fanning , authority for an award of backpay where,
as in the case of Richardson , the respondent had taken no action to implement its threat-
ened discriminatory transfer when Richardson resigned.
TRIAL EXAMINER'S DECISION
The charges herein were served upon Respondent on and after February 26, 1963,1
and the first consolidated complaint , in the Case No. 2-CA-9142 series of cases,
1 All events herein occurred in 1963, unless otherwise indicated.
- J. W. MAYS, INC. 945
issued on April 26. Thereafter a complaint issued in Case No. 2-CA-9391, which
was consolidated with. ihe "Other cases. Hearings were held on various dates from
June 10 to October 28 before Trial Examiner Sidney Sherman. Briefs were filed
by all parties.2 The issues litigated were whether Respondent had violated Section
8(a) (1) of the Act by coercive statements, interrogation, and surveillance, and
whether it had violated Section 8(a)(3) and (1.) of the Act by the discharge of 10
employees.
Upon the entire record 3 in the case, and my observation of the witnesses, I adopt
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
J. W. Mays, Inc., hereinafter called Respondent, a corporation organized under
the laws of the State of New York, operates a number of department stores, all
within that State. Its annual gross receipts total more than $500,000. Respondent
annually receives in New York State directly from out-of-State sources goods valued
at more than $50,000.
It is found that Respondent is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
IT. THE LABOR ORGANIZATION INVOLVED
Local 635, Home Furnishings Employees Union, Retail Clerks International As-
sociation, AFL-CIO, hereinafter called the Union, is a labor organization within
the meaning of the Act.
r
III. THE UNFAIR LABOR PRACTICES
A. Cases Nos. 2-CA-9142, 2-CA-9142-2, 2-CA-91.42-3, 2-CA-9142-4
As to these cases, the complaint alleges interrogation concerning union activities,
threats of reprisal for such activities, surveillance thereof, promises of benefits to
induce employees to refrain therefrom, and the discriminatory discharge of nine
employees.
The answer denies all the foregoing allegations.
1. Sequence of events
The Respondent operates a store and adjoining warehouse in Brooklyn, New
York, and several branch stores in the New York City area, employing altogether
more than 3,000 employees. At its Brooklyn store and warehouse 4 there are about
1,000 employees. Early in February the Union began organizing activity at that
store, distributing circulars at the store entrances. On February 18, four employees
(Cohen, Filosa, Reid, and Cecero) accompanied by Wolf, a supervisor, attended
a union meeting, where they received union cards for distribution to fellow employees.
On February 19, two of these four (Filosa and Reid) were discharged. On Feb-
ruary 20, a third (Cohen) was discharged, and the remaining member of the group
(Cecero) was notified on February 21 that he was being laid off. There is disputed
testimony, which will be discussed in more detail later, that on February 21, the fore-
going four employees distributed circulars and union cards at the employee entrance
of the store. Another alleged discriminatee, Segarra, was discharged on February 23.
On February 25, the foregoing five discharged employees began to picket in front
of the store with signs supplied by the Union.
Richardson, on March 2, joined the pickets during her day off. On March 5, she
was notified that she was.to be transferred to another job, whereupon she resigned.
On March 2 Albanese posted some union circulars in a restroom in the store.
On March 6 she was discharged, allegedly for chronic tardiness. Her male friend,
employee Wasson, a union adherent, left work early to accompany.her home. The
next day he was discharged, and, upon leaving the store, joined the picket line.
However, he was rehired the following morning.
2 Counsel for Respondent and the General Counsel are to be commended for the thorough-
ness and accuracy of their briefs.
2 For stipulated corrections of the record, see pp. 1190-1191 and 1262-1268 of the
transcript, and Trial Examiner's Exhibits Nos. 1 and 2.
1 In discussion of Cases Nos. 2-CA-9142, 2-CA-9142-2, 2-CA-9142-3, and 2-CA-9142-4,
all references hereinafter to "the store,." unless otherwise indicated, denote the Brooklyn
store and warehouse.
756-23G--65-vol. 147-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Portas assisted Albanese on March 2 in posting the union circulars in the restroom.
On March 7 she joined the picket line during her lunch hour, and distributed union
literature to some of her fellow employees at their work stations. When, on March 9,
Respondent notified her she was being transferred from the warehouse to the gen-
eral office, she insisted that she would not accept the transfer and steadfastly refused
to comply with Respondent's order that she go to her new station. Finally, on
March 13, after repeated unsuccessful efforts to induce her to accept the transfer,
Respondent discharged her.
2. Discussion
a. The 8(a) (1) violations
(1) The Tabroff-Segarra incident
Segarra testified on direct examination that on February 21, about 6:15 p.m.,
while standing with Supervisor Tabroff near a window on the fourth floor of the
warehouse, they saw, among others, Filosa, Cohen, and Reid, all of whom had re-
cently been discharged, distributing union literature at the employee entrance to the
store (on Bond Street); that, when Segarra asked why Filosa had been discharged,
Tabroff pointed to the foregoing activity at the store entrance, and said, "For that";
and that, when Segarra inquired whether it was not unlawful "to fire people for joining
a union," Tabroff rejoined, "Yes. But we fired them 5 for a different reason."
Tabroff denied, in effect, that there was any such incident. For reasons indicated
at a later point in this Decision, I do not regard Tabroff as a reliable witness. At
the same time, for reasons stated below (see footnote 48), I do not rely on Segarra's
demeanor, although he appeared to be a sincere and candid witness. However, in
view of the circumstantiality of his testimony, I credit him 6 and find that Tabroff on
February 21 stated that Filosa, at least, had been discharged for union activity, and
I find further that Respondent thereby violated Section 8(a)(1) of the Act, as
Tabroff's statement was calculated to deter Segarra from engaging, in such activity.
5In repeating this remark on cross-examination Segarra changed "them" to "him," the
reference at this point being apparently to Filosa, as Segarra's initial inquiry had related
to the reason for Filosa's discharge. In view of this, and the context, I find that Segarra's
use of "them" on direct examination was inadvertent and that "him" was intended.
6In its brief Respondent vigorously opposes any finding that the Segarra-Tabroff in-
cident occurred, pointing to the alleged ineptness of the efforts of certain witnesses to
corroborate Segarra's testimony that Cohen, Reid, and Filosa, among others, were dis-
tributing union literature at the store at the time of Segarra's alleged conversation with
Tabroff. Thus, Respondent cites the equivocal , confused , and vague testimony on the point
of D'Angelo, a union representative, as well as Filosa's equivocation on the same issue.
However, there was explicit and circumstantial testimony by Cohen, Reid, and Cecero that
in the evening of February 21, they, together with Filosa, handed out union circulars and
cards as testified by Segarra. While Respondent points to the fact that the prior testi-
mony, and pretrial affidavits, of the same witnesses omitted from their recital of their
union activities any reference to handbilling on February 21, I do not agree with Respond-
ent that the only permissible inference is that there was no such handbilling. Such prior
testimony was adduced at an early stage of the proceeding, when the witnesses' testimony
and attention were focused on their union activities before their discharge and which
might have contributed thereto, and it was understandable that in this context they would
not advert to their activities after their discharge ,- which could not have prompted their
discharge ; and at that stage of the proceeding no questions were put to them specifically
addressed to their union activities during the interval between their discharge on Febru-
ary. 19 and 20 and February 25, when they began to picket the store with placards. As to
the pretrial affidavits, they, too, are devoted almost entirely to (1) the circumstances lead-
ing to the affiants' discharge and (2) other instances of alleged coercive conduct by the
Respondent in their presence. The only exception to this generalization is, significantly, 'a
reference in Cohen's affidavit of February 28 to the fact that Segarra ( misnamed "Scuderi"
in the affidavit) had told him about Tabroff's remarks, related in the text, above, upon
observing Cohen and the others distributing cards at the employee entrance after Cohen's
discharge. While Cohen might have been well-advised to aver in his affidavit that he did
in fact distribute cards on that occasion, his neglect to do so does not compel the in-
ference that there was no such distribution. Accordingly, I reject Respondent's contention
that the mutually corroborative testimony of Cohen, Reid, and Cecero as to the card dis-
tribution on February 21 is not entitled to credit because of the foregoing alleged self-
contradictions , and I find on the basis of such testimony, in conjunction with Segarra's
testimony, that there was such a distribution on that date by the four discharged
employees. - -
J. W. 1VSAYS, INC. . 947
(2) Promise of benefit
Cohen testified that about 7 p.m., on February 25, after having spent the day on
the picket line, he entered the store and was approached by Katz, Respondent's
general manager, who, after disclosing that Respondent had planned to promote
Cohen, urged him to abandon his union activity and intimated that, if he did so,
Respondent would consider rehiring him "in a better position."
Katz denied that there was any such incident . I was favorably impressed by
Cohen's demeanor, as well as the circumstantiality of the testimony .1 Moreover, in
resolving credibility here, I deem significant the fact that - Cohen imputed to Katz
a reference, in the course of the February 25 conversation, to his experience with
"union trouble" during his employment by "Ohrbach's." Katz admitted such prior
employment and that there had been "umon trouble" at Ohrbacih's, but denied that
he had ever discussed these matters with Cohen . It is difficult to reconcile Katz'
denial with Cohen's knowledge . As the record contains no other plausible explana-
tion for such knowledge,8 it is necessary to conclude that its source was, as testified
by Cohen, the remarks made by Katz on February 25. As I am thus constrained
to reject Katz' denial of this portion of the February 25 conversation, I can hardly
consider any more credible his denial of the rest of the conversation . In view of this,
as well as the circumstantiality of Cohen 's testimony , I credit him , and find that on
February 25 Respondent offered Cohen inducements to abandon his union activity,
thereby violating Section 8 (a) (1) of the Act .9
(3) Surveillance by Wolf
The General Counsel contends that Respondent violated Section 8(a) (1) of the
Act through the surveillance by Supervisor Wolf of a union meeting on February 18.
It is undisputed that on that date Wolf accompanied employees Filosa, Cohen, Reid,
and Cecero to a meeting with union representatives and that, at that meeting, at the
suggestion of a union representative , he signed a union card.
Wolf denied that he went to the meeting at Respondent 's behest or that his purpose
was to engage in surveillance of union activities on behalf of Respondent. He
testified that, although a supervisor , he had long been affiliated with unions in his past
employment, and that his only interest in the union meeting was to verify assertions
made to him by Cohen that one of the Union 's objectives was to improve the economic
status of Respondent 's supervisors , and that he was invited by Cohen to attend the
meeting. Cohen admitted that he discussed the Union's objectives with Wolf
several days before the meeting, and told him in the morning of- the 18th about
the meeting scheduled for that evening, mentioning the names of the three other em-
ployees who were to attend ; that about 2 o'clock that afternoon Wolf offered to
accompany the employees ; and that , in view of Wolf's avowed prounion senti-
7 According to Cohen, the Incident occurred at the "coke machine by the door," and
Katz was accompanied by Shulman , Respondent ' s president, and Palmer , a supervisor.
Cohen placed Shulman as standing about 40 feet from Katz Shulman denied that Katz
in his presence ever promised to rehire Cohen if he abandoned the Union. However, at a
distance of 40 feet Shulman may well not have overheard Katz' remarks . Palmer was not
asked about this incident , although he testified about other matters.
5 Katz asserted that he had disclosed his prior employment by Ohrbaeh 's to a "certain
few" of Respondent 's employees, although not to Cohen . However , no attempt was made
by Respondent to show that any of these other employees had repeated this disclosure to
Cohen. As to the "union trouble" at Ohrbach ' s during his employment there , Katz volun-
teered that it was a matter of "public record," However, Katz ' employment by Ohrbach's
admittedly terminated in 1989, long before Cohen ( who appeared to be in his late twenties)
was likely to take note of such matters as labor disputes , however widely publicized. Nor
does the notoriety of such union trouble explain how Cohen would know that it occurred
while Katz was employed at Ohrbach's.
9 In its brief Respondent contends that Katz ' promise to Cohen, even if made, could not
be deemed unlawful because Cohen was no longer at the time an employee of Respondent,
having been discharged . However , it is too late in the day to argue that it is not unlawful
to make an offer of employment to a discharged employee , or, even to one who was never
before in the Respondent ' s employ, conditioned on renunciation of union activity. Even
the questioning of a job applicant about his union affiliation has long been held to violate
Section 8 ( a) (1). (E.g ., The Murray Ohio Manufacturing Company, 134 NLRB 175, 177 )
Indeed, not only did Katz' offer to Cohen violate Section 8(a) (1), but the fact that Re-
spondent failed to rehire Cohen after he rejected the offer would warrant a finding that
Respondent thereby violated Section 8 ( a) (3) of the Act as well.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments, Cohen agreed. It is undisputed that, apart from a brief demurrer by
Cecero, there was no objection by any of the employees to Wolf's accompanying
them, and that the union officials allowed him to remain throughout the meeting,
although aware of his supervisory status.
It has been held that a supervisor's attendance at a union meeting with the
knowledge and consent of union representatives or employees, is not unlawful
surveillance.10 However, the General- Counsel contends that the gravamen of Wolf's
offense was not his attendance at the meeting but the fact that he subsequently
reported to Respondent the identity of the employees there present.ll While Wolf,
and other witnesses for Respondent, denied that Wolf did in fact report to higher
management the names of those attending the union meeting, or that he made any
mention whatsoever of such meeting prior to March 12, I find, for reasons discussed
below, that he did make such report by February 19, and that this led to the termina-
tion of the four employees involved. However, the question remains whether the
reporting by one supervisor to another of the identity of union adherents constitutes
surveillance. The Board has held that it does not, even though the supervisor making
such disclosure, as here, learned of the identity of the union adherents by attending
a union meeting, at the invitation of a union adherent.12 Accordingly, I find no
unlawful surveillance by Wolf.
(4) Surveillance by Katz
The complaint, as orally amended at the hearing, alleges unlawful surveillance
by General Manager Katz on February 19. The only relevant evidence in support
thereof consists of testimony by Cohen as to a conversation between him and Super-
visor Wolf on February 20, the day after Filosa's discharge (which is discussed in
more detail below). According to Cohen, Wolf told him on the morning of
February 20 that the previous evening another supervisor, Tabroff, had told Wolf
that Filosa was discharged because Katz had found some union cards in Filosa's
locker. Wolf denied the conversation, Tabroff denied making any such statement to
Wolf, and Katz denied that he had ever opened Filosa's locker or found union cards
there.13 Moreover, the Respondent contends that Cohen's testimony is in any event
inadmissible hearsay as evidence of Katz' conduct. Respondent thereby raises a
troublesome point. Had Wolf spoken from personal knowledge, his disclosure to
Cohen of the alleged surveillance might well be deemed competent, even though hear-
say, as an admission by an agent of the Respondent. The question remains whether
the fact that Wolf's alleged disclosure was not based on personal knowledge but on
hearsay information affects its admissibility. While it has been held that admissions
based on hearsay are not incompetent,14 this rule does not appear to apply where,
1OHoward Aero. Inc., 119 NLRB 1531, 1534. Under this holding it would not seem to
be material whether, as General Counsel contends, Wolf invited himself, or, as Respondent
contends, he was invited by Cohen. In either case, there would clearly he consent to
Wolf's attendance at the meeting.
11At the hearing General Counsel in effect disclaimed any contention that Wolf went to
the meeting for any purpose other than, as Wolf testified, to determine what the Union
could do for him. I find, in any event, that that was Wolf's sole purpose ; for, he did not
need to go to the meeting to find out who would attend, Cohen having already told him that.
' South Rambler Company, 139 NLRB 1197, 1198: There it was found that A had at-
tended a meeting, at the invitation of a union adherent, and with the encouragement of B,
a supervisor, to whom A reported on the developments at the meeting. The precise ques-
tion there decided by the Board was whether B had engaged in unlawful surveillance by
his encouragement of A to attend and by soliciting a report from him about the meeting.
As such conduct by B was not deemed surveillance by the Board, it would seem to follow,
a fortiori. that the mere making of a report by Wolf in the instant case would also not
be unlawful.
13 Also, there is a partial conflict between Cohen's testimony and his second pretrial
affidavit (of February 28), as that affidavit imputes to Wolf the statement only that
Tabroff related to him that Katz had found cards in Filosa's locker, but not that this was
the reason for his discharge.
14 Wigmore, Evidence (3d ed.), sec. 1053; 31 Corp. Jur. Sec. p. 1024, footnote 46;
American Law Institute, Model Code of Evidence (1942), pp. 245-246.
The authorities are in agreement, moreover, that admissions may be treated as sub-
stantive, and not merely as impeaching, evidence. Wigmore, supra, sec. 1048(4) ; 31
Corp. Jur. Sec., sec. 273; Model Code of Evidence, supra, at p. 245.
J. W. MAYS, INC. 949
as here, the declarant (Wolf) merely relates that he has heard the admission from
another (Tabroff) and does not purport to be asserting as a fact the matter in issue
(the search of Filosa's locker).15
I find therefore that Cohen's testimony as to Wolf's disclosure is not competent
to prove Katz' surveillance (or the reason for Filosa's discharge).
As there is not other evidence of such surveillance , I will recommend dismissal of
this allegation of the complaint.15
(5) Interrogation
The complaint as amended alleges interrogation on or about March 8 by
Kromash, who was the manager of the warehouse. General Counsel here relies
on the admitted questioning of Portas by Kromash on March 7,17 concerning union
circulars and cards distributed by Portas that day during her lunch hour. Upon
learning of such distribution, Kromash called Portas into his office and elicited
from her an admission that she had passed out the circulars and cards to other female
employees in her working area. According to Portas, when Kromash admonished
her against engaging in such activity on company time, she explained that she had
made the distribution on her own time-i.e., during her lunch hour-and she rejected
a request by Kromash that she sign one of the circulars, which he indicated was to be
placed in her personnel file. Kromash's version differed only in that he claimed to
have pointed out to Portas that, although she had acted on her own lunch hour, she
disturbed the other employees who were still at work,18 and he cited a company rule
against any solicitation "during store hours." Portas admitted at the hearing that the
other employees were not at lunch when she passed out the material and was unable to
recall whether Kromash pointed this out to her. As Kromash's testimony on this
point is not contradicted, I credit him in that respect. It is clear that Portas' distribu-
tion was unprotected, not only because it occurred during the working time of the
other employees, but, apart from that,, because it occurred in a work area.19 It
has been held that interrogation of employees concerning, or reprimanding them
because of, their involvement in unprotected concerted activities is privileged 25
I so find here, and will recommend dismissal of this allegation of the complaint21
(6) The Giordano-Wasson incident
Employee Wasson testified that on March 5 he was, approached, while at work
on the selling floor in the cosmetics department, by two former employees, Cecero
and Reid, and engaged in conversation with them. (As already noted, Cecero and
Reid had since February 25 been picketing the store in protest against their termina-
tion.) According to Wasson, his supervisor, Giordano, observed the foregoing
15 "But the principle does not require the reception of an admission which in form
merely concedes that someone else said something . . . Wigmore, supra, sec. 1053,
footnote 2 (final paragraph).
19 In his brief, General Counsel appears to have abandoned his reliance on Wolf's alleged
disclosure to Cohen as proof of. surveillance by Katz, and appears, for the first time, to
contend that such disclosure, by Wolf, whether or not true, was in itself coercive because
it attributed Filosa's discharge to his union activity. However, as discussion of the con-
tentions of counsel regarding the credibility of the testimony that such-disclosure was or
was not made would unduly prolong this Decision, and as an analogous violation has al-
ready been found with regard to Tabroff's statement that Filosa was discharged for union
activity, no useful purpose would be served by ruling on General Counsel's foregoing
contention.
17 Portas testified that the date was March 9. However, I deem more reliable the nota-
tion of the date made by Kromash on a copy of the union circulars discussed below, which
was received in evidence.
19 This was due to the fact that lunch hours were staggered in Portas' section.
19 Stoddard-Quirk Manufacturing Co., 138 NLRB 615. While there was no documentary,
evidence of any rule against solicitation, other than one prohibiting "personal conversa-
tions" (Respondent's Exhibit No. 31), there was no contradiction of Kromash's testimony
that Portas' distribution violated a company rule. See also footnote 23, below.
29 Kohler Co., 128 NLRB 1062, 1091, 1185-1186; Alamo Linen Service, 136 NLRB 1127.
21 In his brief, General Counsel alleges to be unlawful Kromash's demand that Portas
sign the circular and his disclosure to her of his intention to make the circular. part of
her personnel file. However, this contention necessarily assumes, contrary to. my finding,
that her distribution was protected. See Alamo Linen Service, supra.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident and warned him' that he was being watched by store.detectives and forbade
him to talk to Cecero and'Reid, intimating that he was thereby jeopardizing his job.
According to Giordano, she merely warned Wasson ' against -'socializing" during
working hours with'Cecero and Reid, whom she recognized as-pickets.
Giordano was no longer employedby Respondent when she testified and had no
apparent interest in the outcome of this'proceeding.2 . 2 In view of this, and as I was
favorably impressed by her demeanor, I credit her testimony and find that she merely
cautioned Wasson against engaging during working hours in a conversation, which,
under the circumstances, he was justified in assuming did not relate to the purchase
of cosmetics. As she was thereby merely reiterating Respondent's rule against engag-
ing in "personal conversations," which was valid insofar as it applied to working
time.23 I perceive no violation in this incident.24
(7) Palmer
According to Cohen, about 11 a.m. on.February 25, after picketing for about 3
hours, he entered the Brooklyn store with Segarra, whereupon Palmer, the assistant
store manager, warned Cohen thatPalmer would have to discharge any employee to
whom Cohen gave any cards or with whom he conversed. Segarra corroborated
Cohen. However, Palmer (who was at the time of the hearing no longer in Re-
spondent's employ) denied having any conversation with Cohen on the occasion in
question. I do not deem it necessary to resolve the credibility issue thus posed, as
I find that Palmer's statement, even if made, was not unlawful. If, as Cohen's
testimony implies, Palmer was aware of Cohen's picket- line activity, Palmer was
justified in assuming that Cohen's presence in the store was for reasons not related
to the official duties of Respondent's employees, and in cautioning him against in-
volving the employees in a breach of Respondent's rule against "personal conversa-
tions," as applied to working time 25
Accordingly, I find no violation in this incident.
b. The 8(a)(3) violations
(1) Filosa
As already related, Filosa was discharged on February 19, the day after the union
meeting, which was attended by Wolf. The General Counsel contends that Filosa
was discharged because of, his presence at that meeting. Respondent. denies that
before 'his discharge it knew of Filosa' s union activity and contends that he was
discharged solely because of his responsibility for the untidy condition of a section
of the warehouse.
Wolf denied that prior to Filosa's discharge he disclosed to any other representa-
tive of management the fact that he attended the union meeting.26 Kromash, who
22 Respondent was required to subpena her in order to obtain her testimony. Respond-
ent's counsel, at a later point in the hearing, reported that he had attempted to recall her
to testify about Wasson's discharge but had been unable to effect service of a subpena
upon her.
At the hearing, she freely admitted on direct examination, contrary to her pretrial state-
ment , that Wasson, when admonished by her, retorted, "This is not a concentration camp."
However, the fact that she was more candid in her testimony than at the time of such
pretrial statement, when she was still in Respondent' s employ, might well be deemed to
enhance rather than impeach her credibility as a witness. In any case, even if due weight
were given to this discrepancy, I would not regard it as of any more moment than the
countervailing fact, cited by Respondent, that Wasson acknowledged at the hearing under
cross-examination, that he falsely told Giordano that his discussion with Reid and Cecero
related to theater tickets.
23 See Respondent's Exhibit No. 31. While this rule is not expressly limited to working
time or selling areas, General Counsel does not contend it is invalid for that reason. In
any event, it is clear from the context, as well as from the nature of the prohibited
activity-personal conversations-that the rule was not intended to apply to nonworking
time. Obviously, Respondent did not mean , for example , to forbid employees to engage in
such conversations during lunch.
2+ Even if, as Wasson testified , Giordano warned him that further breach of this rule
could lead to his discharge, I would find such warning of the consequence of breach of a
valid company rule to be privileged.
f See preceding footnote.
29 According to Wolf, he first made such disclosure in a memorandum to Kromash on
March 12 , and, even then, did not reveal the names of the employees who attended. See
Respondent's Exhibit No. 21.
J. W. MAYS, INC. 951
acknowledged responsibility for Filosa's discharge, denied that he was aware at the
time of Filosa's union activity. - However, Ihave already credited Segarra's testimony
that Tabroff on February 21, in effect, admitted that Filosa had been discharged be-
cause of his union activity, although the Respondent had assigned a different reason,
To meet the foregoing evidence of discriminatory motivation, Respondent ad-
duced testimony in support of its aforenoted contention that Filosa. was in fact
discharged because of the untidy condition of his area in the, warehouse. At the
time of his discharge, Filosa worked on the third floor of the warehouse,
his duties being to maintain a current inventory of the merchandise stored there,
to seal all open cartons of merchandise delivered to his area in order to prevent
pilferage, and to reseal any cartons that were opened while in his custody. Filosa
denied, however, that he was ever informed that he was responsible in addition for
sweeping the floor in his area, asserting that he had in fact been admonished by
Supervisor Rosenberg not to bother to sweep the floor as that was the responsibility
of Respondent's porters.
On February 19 Filosa was notified by Warehouse Manager Kromash that he
was being discharged that day, and reference was made by Kromash to the dirty and
disorderly condition of the warehouse area. The notice of Filosa's termination pre-
pared by Kromash cities among the reasons for his discharge the "horrible" and
"untidy" condition of the warehouse area and the "disorderly" estate of the merchan-
dise in that area.
With regard to the events allegedly leading to Filosa's discharge, Kromash testified
that about February 12 he and General Manager Katz, on a tour of inspection of the
warehouse, found open cartons of merchandise on the third floor, merchandise scat-
tered on the floor, and the cartons not properly arranged or secured; that Katz
directed that these conditions be corrected; that Kromash relayed this instruction
to Filosa, who promised to comply; that 3 or 4 days later Kromash and Katz found
the same conditions; that Katz declared that if Kromash didn't remedy the situation
his job would be in jeopardy; that Kromash again admonished Filosa to clean up,
and Filosa again promised to do so; that on February 19, upon returning from a visit
to another of Respondent's stores, Kromash was told by his assistant, Tabroff, that
Katz had again inspected the warehouse earlier that day and had again complained
about conditions on the third floor; and that, upon ascertaining that there had been
no improvement in the situation there, Kromash decided to. discharge Filosa.
Katz corroborated Kromash's testimony regarding the two tours of inspection
they made together. He testified further that he made a third inspection on
February 19 with Tabroff, and, finding the same conditions as before, declared
that whoever was responsible therefor had no right to work for Respondent.
Tabroff corroborated Katz as to this last inspection on February 19. However,
Tabroff also testified that Katz had first complained to him and Kromash about the
condition of Filosa's area late in January and made similar complaints on three
or four occasions thereafter prior to Filosa's discharge; 27 and that Tabroff frequently
admonished Filosa to clean up his area and instructed Filosa's immediate supervisor,
Rosenberg, to see that Filosa complied.
Wolf, who was assistant warehouse manager, confirmed the untidy condition of
Filosa's area during'the week prior to his discharge, and asserted that he called this
to the attention of his superior , Rosenberg . However, according to Wolf, he first
noticed this condition about the first of February, and observed no improvement
between that date and February 19.
Rosenberg failed to corroborate the foregoing testimony of Tabroff and Wolf
that they spoke to him about the condition of Filosa's area.28
It thus appears from the testimony of Respondent's own witnesses that during
the 3 weeks preceding Filosa's discharge Katz made at least six inspections of the
warehouse 29 and that on each occasion he found that the same conditions existed
27 According to Tabroff, he and Kromash accompanied Katz three or four times on in-
spection tours. This was in addition to one or two occasions-when 'Tabroff and Katz
allegedly made such a tour without Kromash, and presumably also in addition to the two
inspections made by Katz and Kromash alone during the week preceding Filosa's discharge.
Thus, If one takes a composite of the testimony of Tabroff, Katz, and Kromash on this
point, it would appear that during the last 8 weeks of Filosa's employment his area was
inspected by Katz at least six times. This is corroborated by Wolf's testimony that Katz
inspected the warehouse two or three times a week.
28 Although Filosa at first denied that during the week before his discharge he was in-
structed to clean up his area, at a later point in his testimony he professed inability to
recall whether Kromash or Tabroff during that week so instructed him Accordingly, I
place no reliance on his denial.
29 See footnote 27, above.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Filosa's area, but that, while criticizing those conditions , Katz did not suggest
that Filasa be discharged on that aoount until February 19, the day after the union
meeting. In view of these circumstances, and, in view of Tabroff's admission to
Segarra that Filosa's discharge was due to his union activity, I find that, while Re-
spondent indicated some concern about the condition of Filosa's warehouse area
prior to his discharge , and admonished him therefor, that was not the true reason
for his discharge but merely a pretext, the true reason being his union activity. I
find further that by such discharge Respondent violated Section 8(a)(3) and (1)
of the Act.
(2) Reid
Reid, who worked on the fifth floor of the warehouse under the immediate
supervision of Rosenberg, was discharged by Kromash about 6 p.m. on February 19.
He had been absent from work on Saturday, the 16th, had attended the union meeting
on the following Monday evening, the 18th, and, on the 19th, had distributed a num-
ber of union cards to other employees.
The validity of the reasons assigned by Respondent for Reid's discharge may best
be appraised by considering first those stated in the pretrial affidavits of the three
supervisors who testified about the matter, namely, Kromash, Tabroff, and Rosen-
berg. Kromash, who made the decision to discharge Reid, stated in his affidavit that
he didso upon hearing from Rosenberg that Reid had been absent without permission
on Saturday, the 16th. Rosenberg's affidavit confirms that he told Kromash about
Reid's unauthorized Saturday absence, and that this led to Reid's discharge. In
like vein, Tabroff's affidavit states that, on Monday morning, the 18th, he warned
Reid of discharge if he was absent one more Saturday, and instructed Rosenberg 30
to discharge Reid if he "took another Saturday off." Moreover, at the hearing Rosen-
berg testified that on Tuesday morning, the 19th, he also warned Reid of discharge
if he were absent on a Saturday 3' However, at the hearing, all three supervisors for
the first time ascribed to Reid a promise by him to Rosenberg to work late on Mon-
day, the 18th,32 which he failed to honor, and attributed Reid's discharge to that
circumstance, as well as to his Saturday absence 33 Thus,- Tabroff, contrary to his
pretrial statement, asserted that on the 18th he warned Reid not only against missing
another Saturday but also against not working on any occasion that he promised
to work, and that Reid agreed to work that same night but did not do so. Rosen-
berg testified that Reid agreed to work Monday night but failed to do, so, and that,
although Rosenberg the next morning merely warned Reid not to miss another
Saturday, he reported the Monday incident to Kromash, who promptly ordered
Reid's discharge. However, as already noted, Rosenberg's affidavit refers only to
a report by him to Kromash of Reid's unauthorized absence the previous Saturday,
and makes no reference to an alleged promise by Reid to work late on Monday.
In the same vein, Kromash testified, contrary to his affidavit, that his decision to dis-
charge Reid was precipitated by Rosenberg's report on the 19th that Reid had not only
been absent on Saturday, the 16th, but had not kept his promise to work late on
Monday.
General Counsel would explain this apparent conflict between testimony and
affidavits on the ground that, after furnishing the foregoing affidavits, Respondent's
witnesses were faced with the problem of reconciling Tabroff's damaging admission
therein that on February 18 Reid was warned of discharge only if he missed another
Saturday with the fact that Reid was discharged on February 19, the day after
the union meeting, and before he had a chance to miss another Saturday; and that,
to remedy this obvious weakness in Respondent's defense, it became necessary for
the witnesses to modify their pretrial versions and to interject at the hearing an addi-
tional pretextual reason for Reid's discharge, namely, his failure to work late
on February 18. I find merit in this contention for the following reasons, in addi-
tion to the aforenoted conflict between testimony and affidavits:
1. Tabrow, who appeared nervous and embarrassed throughout much of his testi-
mony, virtually repudiated his own testimony that he had reported to Kromash
Reid's alleged breach of his commitment to Rosenberg to work Monday night. Thus,
Tabroff testified as follows:
ao Tabroff was Rosenberg's superior
ai Reid and 'Cohen corroborated Rosenberg, except that they place the incident on the 18th.
92 On Monday and Thursday the store is open to 9:15 p.m., about 3 hours later than on
other days
33 In its brief, Respondent characterizes Reid's absence on Monday night, the 18th, as
the "straw that broke the camel's back."
J. W. MAYS, INC. 953
Q. Did you take that up with Mr. Kromas'h?
A. I believe I told him-
Q. As a reason for his discharge?
A. I believe I did, sir.
Q. Is your answer yes or no whether you did or not?
A. I imagine I would, sir.
Mr. LEINER: That's no answer, Mr. Examiner.
The WITNESS: Yes, I would take it up.
Q. Do you remember whether you did or not [sic] tell Mr. Kromash that he
hadn't reported that evening or did Mr. Rosenberg carry the ball on that, do you
know?
A. I believe Mr. Rosenberg carried the ball on that, sir.
Q. You had nothing to do with Reid's discharge, did you?
A. No, sir.
Thus, Tabroff gradually shifted from an attempt to create the impression that he
played a part in Reid's discharge to a categorical disclaimer that such was the case.
2. Reid denied that he promised Rosenberg that he would work Monday night,
and the record suggests no reason why, after having made arrangements to attend
the union meeting in the evening of the 18th,34 he should volunteer to work the same
evening. Concededly, there was no compulsion upon him to work, and it is dif-
ficult to believe that he would want gratuitously to provoke Rosenberg by making
a commitment which he knew he could not fulfill: Accordingly, I do not credit
Rosenberg's uncorroborated testimony 35 that Reid made such a promise. I find,
therefore, that Reid's failure to work late on the 18th was not a factor in, and did
not precipitate, his discharge.36
I find further, in view of the admissions by Rosenberg and Tabroff that they,
in effect, condoned Reid's absence on Saturday (the 16th) provided he did not miss
another Saturday, that such absence did not cause his discharge.
The only remaining question here is whether, as General Counsel contends, Reid
was in fact discharged for union activity. Resolution of this question will be deferred
to a later point in this Decision.
(3) Cohen
Cohen, like Filosa, worked on the third floor of the warehouse. As already
related, he attended the union meeting on February 18. The next day he distributed
union cards to other employees. Late that afternoon he received a telephone call
from Filosa to the effect that he had just been discharged. Shortly thereafter Cohen,
not feeling well, reported to the office of the company nurse, who, after examining
him, called Kromash and asked permission for Cohen to leave. The permission was
granted and Cohen left, as he testified, about 5:15 p.m. Outside the store, he found
Filosa, and adjourned with him to a nearby restaurant. Upon emerging from the
restaurant, they encountered Tabroff, whom Filosa engaged in conversation. Kro-
mash happened to pass by during this encounter. About 5 p.m. the next day
Kromash called Cohen into his office, and, according to Cohen, stated, in effect,
that he was being discharged because he had been seen with Filosa, later adding that
Cohen should have gone home directly when he left the nurse.
According to Kromash, about 5 p.m. on February 19, the nurse called him to
state that Cohen was complaining of a chest pain, that his pulse was rapid, and that
he wished to go home, whereupon Kromash excused Cohen. Kromash added that
later that evening he saw Cohen with Filosa; that the next day he gave considerable
thought to the fact that Cohen, to whom he had shown special consideration, had
24 There is no dispute, and I find that Cohen told Wolf in the morning of the 18th who
would attend the union meeting that evening . It is accordingly clear that Reid was plan-
ning at least as early as that morning to attend that meeting
85 Rosenberg was the only one of Respondent 's witnesses who professed to have been
present when Reid promised to work late Tabroff and Kromash admittedly were not there.
86 It having been found that the immediate reason assigned for Reid's discharge was pre-
textual , no useful purpose would be served by dwelling on Kromash ' s testimony that Reid
had been guilty of chronic absenteeism throughout the 21 weeks of employment , and that
on 4 or 5 occasions during the 2 months before Reid's discharge Kromash had threatened
to discharge him because of such absenteeism . While such testimony was uncontradicted,
and I credit it, it serves only to highlight the fact that Kromash did not see fit to imple-
ment his oft-repeated threats of discharge until the day after Reid attended the union
meeting
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"lied" to him; and he finally became so incensed over Cohen's supposed prevarica-
tion that he decided to terminate him. Kromash denied knowing on February 20
of Cohen's union activity.
As to the discharge interview, Kromash's version was that he taxed Cohen with
lying, explaining to him, "Here you told me-the nurse called me to send you home.
I go out of the building and turn the corner, and there you are." However, the only
reason for discharge given in the termination notice prepared by Kromash was to
the effect that Cohen was "seen loitering outside" the store after receiving permission
to go home because of illness. No reference is made therein to any misstatement
by Cohen, and Cohen denied that Kromash taxed him with lying.
The most puzzling aspect of Kromash's explanation at the hearing for Cohen's
discharge was his insistence that he felt Cohen had lied to him. When asked what
Cohen had lied to him about, Kromash answered, "That he was going home."
However, apparently realizing that Cohen had not in fact told Kromash that he was
going home, he added, "The nurse had called me. And then when I go out of the
building and see him, hanging around the corner." However, as Kromash does not
dispute that Cohen was at that time not in proper condition to return to work, his
failure to go home and rest could hardly have been regarded by Kromash as proof
of dishonesty but only of poor judgment on the part of Cohen with regard to
matters affecting his health. Accordingly, thus analyzed, Kromash's alleged grievance
boils down to a contention that Cohen did not show a proper regard for his own
health, but loitered around the store when he should have been home in bed.
The question arises why Kromash did not forthrightly assign Cohen's neglect
of his health as the reason for his discharge. One explanation that suggests itself
is that Kromash feared that Cohen's indifference to his own welfare might not be
deemed an adequate explanation for his discharge and sought to supply this deficiency
by arbitrarily and baselessly characterizing Cohen's conduct as dishonest. In any
event, the mere fact that Kromash resorted to such an untenable explanation of
Cohen's discharge reflects seriously on his good faith in this regard.
Even apart from the foregoing considerations, Kromash's concern over the fore-
going incident is difficult to understand when one considers that Cohen did not leave
the nurse on February 19 until 5:15 p.m 37 Although Cohen's official quitting time
was 6 p.m., he testified credibly 38 that Kromash normally did not object to his leav-
ing as early as 5:15 p.m. Yet Kromash professed to have been so disturbed at
Cohen's leaving at or about that time on February 19 that he decided to discharge
an employee to whom he had theretofore admittedly been well-disposed.
In sum, I find that the reason assigned by Kromash for Cohen's discharge is not
credible. Whether the true reason was, as General Counsel contends, Cohen's union
activity will be considered at a later point in this Decision.
(4) Cecero
Cecero worked on the fourth floor of the warehouse as a stockman. On
February 19 he attended the union meeting, and the next day he distributed union
cards to other employees. Two days later, on February 21, he was told by Kromash
that he was being terminated because of lack of work. He has not since been re-
called. His termination notice attributes his layoff to lack of work.
Kromash testified that there was not enough work in Cecero's area for the three
men who had been working there. While Kromash insisted at first that Cecero's
selection for layoff was based solely on seniority, and that seniority was the only
consideration in such matters, he promptly retracted this statement when reminded
of prior testimony that Respondent's policy in layoffs was to give consideration to
ability as well as seniority. Kromash acknowledged also that it was his policy to try
to avoid layoffs of deserving employees by transferring them to other departments,
but that he did not apply this policy in the case of Cecero because his performance
was merely adequate. He added that the two men who were retained in Cecero's
area were excellent or very good workers and that one of them had recently been
transferred to another area to avoid laying him off. Kromash was then asked to
explain the following statement on Cecero's termination notice:
a7 Cohen's testimony to that effect is confirmed by the time of departure shown by
Kromash on the termination notice
3e Although Kromash disputed this, Cohen impressed me as a more candid witness than
Kromash, whose testimony I have rejected elsewhere. It was conceded that 'Cohen be-
longed to a special category of employees who were not required to punch out in the
evening.
J. W. MAYS, INC. 955
Since the man [Cecerol was the last of the three to be hired I felt that since all
did their work equally he would have to be the one to be dropped.
Kromash answered that by the phrase "all did their work equally" he did not mean
that all three were of equal ability but merely that they did the same work . However,
so to construe the phrase "all did their work equally" does violence to its plain mean-
ing. Kromash was a fairly literate individual, who appeared to be familiar with
the English idiom, and it is difficult to believe that he would choose such an out-
landish way of saying that all three men did the same work.
I am forced to conclude therefore that he improvised the foregoing explanation
of the language of the termination slip to avoid the effect of the damaging admission
therein that Cecero was as competent as the two who were retained . In view of this,
I reject his explanation for not transferring Cecero when his services were no longer
needed in his area,39 as was later done in the case of one of his fellow workers; 40
and Kromash's lack of candor on this point is persuasive that considerations other
than Cecero's competence motivated Kromash's decision to terminate Cecero rather
than transfer him to another section of the warehouse. General Counsel contends
that such decision was motivated by Cecero's union activity. This contention will
be considered in conjunction with the like contentions made with respect to Reid
and Cohen, as the same considerations are to a large degree common to all three,
with regard to this issue.
Conclusions as to Reid, Cohen, and Cecero
As already related on February 18, Cecero, Reid, and Cohen, as well as Filosa,
attended a union meeting in the company of Wolf, a supervisor, and all four received
union cards for distribution to their fellow employees. Within the next 3 days, all
four were discharged or "laid off." The reasons assigned therefor have been found
to be implausible, either because their supposed derelictions or shortcomings were
invented or patently exaggerated, or because the alleged ground for discharge had
existed for some time without any disciplinary action being taken. The Respondent
would explain the fact that all four employees who attended the union meeting were
discharged within 3 days thereafter as pure coincidence41
Kromash, who was responsible for their discharge, denied that he had any knowl-
edge of their union activity. Wolf, a supervisor, who admittedly had such knowl-
edge, denied that he ever communicated it to his superior, Kromash, or any other
representative of management. Normally such a disclaimer by a supervisor is
suspect, and I do not hesitate here to impute Wolf's knowledge to Respondent, par-
ticularly in view of my finding above, based on Tabroff's admission to Segarra, that
Respondent was aware of Filosa's union activity and discharged him for that reason.
So far as the record shows, the only supervisor who knew of Filosa's union activity,
including his attendance at the meeting, was Wolf. I find, therefore, that Wolf had
by February 19 apprised higher management of Filosa's involvement with the Union.
Accordingly, there is no cogent reason to doubt that he made a like disclosure at
the same time with regard to the three others.42
89 General Counsel attempted to show that Cecero's services were in fact needed there,
and that he was replaced However, I do not believe that the evidence preponderates in
favor of such a finding.
4o Kromash did not deny that he had openings in the warehouse to which he could have
transferred Cecero if he had been deemed qualified, but predicated the failure to transfer
Cecero solely on his alleged limitations
^In support of its "coincidence" theory, Respondent points to the fact that there are
1,000 employees in its Brooklyn store and that there were 19 terminations during the
week of February 18 to 23. However, even so, the odds against any one of the four being
terminated during that week was about 50 to 1, and the odds against any group of four
employees selected at random being terminated within that same week are no doubt
astronomical
42 Even if one takes at face value Wolf's testimony that he attended the union meeting
because he was a longstanding member of another union and was genuinely interested in
learning whether, as Cohen had represented to him, the'Union proposed to improve the
working conditions of supervisors like Wolf, it is clear that Wolf's attitude toward the
Union changed radically when the union representative refused at the meeting to disclose
what'benefits the Union planned to seek for supervisors. Thus, Wolf admitted that the
morning after the meeting he expressed to Cohen his disillusionment with the Union.
See, also, Respondent's Exhibit No. 21, which is in effect an admission that, upon leaving
the union meeting, he decided to cast his lot with management.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having thus found that-Respondent knew of the union activity of the latter three
on February 18, that they were terminated within a few days for derelictions or short-
comings which were either nonexistent or grossly exaggerated, and having found
proof of Respondent's union animus in Katz' coercive offer to Cohen. Tabroff's
admission to Segarra of the reason for Filosa's discharge, and in the discriminatory
discharge of Filosa, I am impelled to find that all three employees were also ter-
minated because of their union activity, and that Respondent thereby violated
Section 8 (a) (3) and (1) of the Act.
(5) Segarra 43
He was originally hired by Respondent in October 1961 and was terminated in
June 1962 because of dissatisfaction with his work. However, in August 1962 he
was rehired as a "trainee" 44 by Bernstein, the buyer in the girls' underwear depart-
ment, after being assured by Segarra's former supervisor that Segarra had shown
some promise but needed close supervision.
According to Bernstein, he was at the outset pleased with Segarra's performance
but began to notice a deterioration in his work about the middle or beginning of
November.45 The alleged deterioration consisted in reporting late for work and
returning late from lunch, errors in computations, and a diminishing interest in his
work. Bernstein testified that on February 21 he recommended Segarra's discharge
to Guggenheim, and that the primary reason for such recommendation was Segarra's
"general incapable attitude, lack of interest."
Guggenheim, Bernstein's superior, testified that he began to check on Segarra's
performance about the middle of November, when he was advised by Bernstein that
Segarra's work was not satisfactory; that Guggenheim on several occasions was unable
to ascertain Segarra's whereabouts; that sometime between February 17 and 21
Bernstein declared that he was "giving up" on Segarra because of his neglect of his
work; and that Guggenheim decided on February 21 to discharge Segarra on
February 23.
However, both Guggenheim and Bernstein were at a loss to explain why Segarra
was given a merit increase on November 24,46 notwithstanding that his work had
already deteriorated to the point where Bernstein felt impelled to call that fact to
Guggenheim's attention.
On February 19 Segarra received 30 or 40 union cards from Filosa, which he
distributed in the store that day, and during the ensuing 4 days. In the afternoon
of the 23rd, according to Segarra, as he was leaving the -receiving room of the
warehouse, he heard someone mention the word "union," and, turning around, he
saw Kromash standing near the timeclock with Lindner, Respondent's vice president,
and Goldberg, one of Respondent's shoppers. Kromash, according to Segarra, was
pointing at him and saying, "That's the kid that's handing out the union cards."
Segarra was discharged about half an hour later. Both Kromash and Lindner
denied the foregoing incident; Goldberg was not called to testify43
In view of the circumstantiality of Segarra's testimony, and Respondent's failure
to call Goldberg to refute such testimony, I credit Segarra.48
43 His name is misspelled in the transcript as "S-e-g-a-r-a." See Respondent's Exhibit
No. 7
"This denotes that he was being trained for the job of assistant buyer.
45 According to Neal, who supervised the third floor of Respondent's store, she noticed a
deterioration in Segarra's work as early as September or October.
46 It was stipulated at the hearing that he received a $5 a week raise on November 24
and there was no contradiction of Segarra's testimony that Bernstein told him the raise
was for meritorious service. Bernstein merely professed inability to recall the incident.
471n its brief. Respondent, in effect, explains the failure to call Goldberg on the ground
that his testimony would have been cumulative and that Segarra's testimony about this
incident was inherently incredible in any event. I do not regard either of these reasons
as persuasive
48 Respondent's able and exhaustive brief points to some apparent self-contradictions in
Segarra's testimony, as well as an admitted misrepresentation by him to Respondent (see
footnote 49, below). The General Counsel's brief points, on the other hand, to various
apparent self-contradictions in Kromash's_testimony In view of these matters, I do not
rely on demeanor considerations here, although I was favorably impressed by Segarra's
bearing on the stand, nor do I give controlling weight to internal conflicts in the witnesses'
testimony with regard to matters not directly related to my findings. I have chosen to
rely instead on an analysis of the testimony on which my findings are directly based and
on any other objective indicia of the veracity of such testimony. Appraising, from this
J. W. MAYS, INC. 957
While I am satisfied that Segarra was not a model employee,49. I am also satisfied
that his shortcomings were considerably exaggerated by Respondent's witnesses, as
such deficiencies did not deter Bernstein from recommending Segarra for a raise.50
I deem it particularly significant, moreover, that Respondent tolerated Segaira's
shortcomings until the very day that Respondent manifested his awareness of
Segarra's union activities.51 I find, therefore, that he was discharged because of
such activities and that Respondent thereby violated Section 8(a)(3) and (1) of
the Act.
(6) Albanese
When discharged on March 6, Albanese was working as a clerk in the receiving
department on the fourth floor of the warehouse. Her immediate supervisor was
Katzman. She had signed a union card on February 19 and, on March 2, during
working time, helped Portas to post union circulars on the walls of the restroom
used by the female employees in the receiving department. Katzman entered the
restroom after the circulars had been posted, and I credit her denial (corroborated
by Portas) of Albanese's testimony that Katzman threatened to show the posters
to Kromash.52 However, there remains to be resolved the conflict: between Albanese
and Katzman as to whether, as Albanese testified, while looking at her, Katzman
stated that she had "a good idea" who posted the circulars. Portas substantially
corroborated Albanese as to the alleged remark by Katzman, but not as to the
direction of her gaze at the time she made the remark. In fact, according to Portas,
the remark was not directed at anyone in particular. General Counsel would have
the inference drawn that the remark implied that Katzman suspected both Albanese
and Portas. However, assuming that the remark was made, I find no substantial
basis in the record, apart from the presence of Portas and Albanese in the ladies'
room, for Katzman's suspecting them. Neither of the girls had engaged in any open
union activity. In fact, the only one of Katzman's subordinates who had engaged
in such activity at the time was Richardson. On March 2, her day off, she had
joined the pickets outside the store and Katzman admitted seeing her on the picket
line. Accordingly, it is just as reasonable, if not more so, to construe the foregoing
equivocal remark (if made) as referring to Richardson. 53 In any event, I was
favorably impressed by Katzman's sincerity and candor and credit her denial of
Albanese's foregoing testimony, notwithstanding Portas' partial corroboration thereof,
that Katzman indicated that she was aware who had posted the circulars.
General Counsel relies also on an apparent contradiction between Katzman and
Kromash regarding what happened later that day. According to Katzman, after
returning to her office, she commented to the girls under her supervision about the
large number of posters in the restroom. She could not recall whether Kromash
was in the vicinity at the time. Kromash testified that he was in fact in the vicinity
and overheard Katzman's remark . He was then confronted, however, with a state-
standpoint, Segarra's testimony as to the foregoing incident, I am impressed not only by
the specificity of his testimony as to the time and place of the incident, but also by the
fact that he involved therein Lindner and Goldberg, with neither of whom lie had any
apparent personal contacts, and that1 he thereby invited contradiction by two hostile wit-
nesses, in addition to Kromash. Had he wished to invent such an occurrence, it seems
highly unlikely that he would gratuitously have placed himself at such it disadvantage.
49 General Counsel cites the fact thatSegarra helped to subdue a thief in the store at
some risk to himself. However, Segarra admitted his lack of punctuality and that on one
occasion (in October or November) he gave Bernstein an untruthful reason for requesting
leave.
60 While Bernstein professed inability to recall the circumstances under which the raise
was given, or the raise itself, lie admitted that it would have to be recommended by him.
Si While Bernstein testified that 6 months was the average trial period for his trainees
(Segarra's second employment lasted about 6 months), he admitted that this was flexible,
and that there' was no fixed rule that unsatisfactory trainees be terminated at the end of
6 months.. Respondent offered no evidence of any particular incident at or near Febru-
ary 21 that might have caused Bernstein to "give up" on Segarra at that particular time.
There is thus nothing to rebut the inference that Segarra's union activity at least acceler-
ated his discharge.
52 At the bearing , General Counsel alleged such threat to be a violation of Section
8(a) (1). However, in his brief he has abandoned this contention.
5 Although Richardson had joined the pickets, it does not appear that there was any-
thing to prevent her from entering the restroom and posting the circulars , if she had been
so minded. _
958 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
ment in his pretrial affidavit admitting to a "conversation" with Katzman in which
she referred to the "union posters" in the restroom . 54 He professed inability to
recall the basis for this pretrial admission , thus leaving open the question whether
this "conversation" was separate and distinct from the remarks he allegedly over-
heard or whether he merely meant this to characterize remarks delivered in his
presence by Katzman . In any event , even if it be assumed that there was a private
conversation between Katzman and Kromash , there is still no evidence that Katzman
conveyed to Kromash any suspicions she may have had as to the identity of the
person or persons who hung the posters , or that, if she did , she named Albanese,
rather than Portas or Richardson.
As to the reasons given for Albanese 's discharge, Kromash cited her frequent
tardiness , which Albanese admitted . She contended , however , that she made up for
such tardiness by staying overtime , without additional compensation . Respondent
disputed that there was such uncompensated overtime. However that may be,55
an employer is not required to adopt a practice of adjusting his employees ' working
hours to accommodate their individual idiosyncrasies . It is undisputed , moreover,
that Kromash , some weeks before her eventual discharge , had ordered Albanese
terminated , but reconsidered before the order was made effective , testifying that he
thereafter attempted to get ,Albanese to mend her ways, but without avail.
Respondent 's timecards for the last 2 months of Albanese 's employment show that
there were few days that she was not late in reporting for work or returning from
lunch . The fact that Kromash tentatively ordered her discharge on a prior occasion
indicates that even before the March 2 incident he did not take lightly the matter
of her chronic tardiness. Yet, were there here adequate proof that Albanese's
union activities came to Kromash's attention on March 2 , as contended by General
Counsel , I would be inclined to find that here , as in the case of Filosa, Reid, and
Segarra, the timing of her discharge warranted the inference that it was at least
accelerated by such activities . However , as I have found that there is here in-
sufficient proof of such knowledge , I attach no significance to the fact that her dis-
charge followed closely upon her union activity, and conclude that she was dis-
charged by Kromash, as he testified , because of her failure , after repeated reprimands,
to show any improvement in her work habits.56
-(7) Wasson
Wasson was hired in November 1961. At the time of his discharge on March 7,
he was employed as a trainee in the cosmetics department of the store under the
immediate supervision of Giordano. He had been so employed since January, but
was dissatisfied with his job.
He was discharged , allegedly for cause , in the forenoon of March 7 and joined
the union picket line that afternoon , but the next morning , after allegedly recon-
sidering his case, Respondent offered him a more desirable job, which he ,accepted.
Thus he lost only one-half day's pay.
As for his union activity , Wasson had signed a union card about March 1, had
lunched daily for the 2 weeks prior to March 7 in a restaurant near Respondent's
.store with Cecero , Reid , and Cohen , and solicited other employees "secretly" in
the restaurant to sign union cards. He testified that on one occasion , on an un-
specified date , he saw a store detective enter the restaurant and direct her gaze at
him. It has already been related that on March 5 he was engaged in a brief con-
versation in the store by Cecero and Reid , who were then picketing, and that his
supervisor, Giordano, reprimanded him for not attending to store business. How-
ever , the only union activity of which Respondent was admittedly aware was his
picketing on March 7 , despite which he was promptly rehired . In view of the
61 Katzman was not asked specifically whether she had a separate conversation with
Kromash about the posters.
5 Albanese , herself, admitted that she worked overtime without pay only three or four
times : As against this, Respondent 's timecards for the last 2 months of her employment
show 32 Instances of lateness in reporting for work or returning from lunch . See also
footnote 56, below.
60 Thus , , on March 2, Albanese 's next to last workday , she was 20 minutes late in the
morning, and 6 minutes late in returning from lunch. ( She punched out at 5:15, her
regular quitting time .) During the entire week ending March 2 she lost a total of 70
minutes due to tardiness . As against this, during that week , she once reported 1 minute
early, once returned from lunch 15 minutes early, and worked a total of 4 minutes over-
time . Thus, according to Albanese 's own "bookkeeping," she owed Respondent 50 minutes
for that week.
J. W. MAYS, INC. 959
various findings of coercion and discrimination already made, a finding of dis-
crimination against Wasson, if made, would be merely cumulative on the issue of
union animus, and by the same token a finding that no violation had been established
here could not alone suffice to negate such massive proof of animus.
Yet, despite the apparent insignificance of this matter, it was vigorously contested
by able counsel at the hearing and in their briefs. About 150 pages of testimony
are devoted to the circumstances of Wasson's discharge and rehire. Respondent
called four witnesses, including its president. Not only were there apparent con-
flicts between their testimony and Wasson's, but such witnesses were not at all
points in apparent agreement with each other. It would not be possible to do
justice to the myriad contentions in the briefs addressed to these alleged conflicts
in the testimony without unduly extending this already overlong Decision, and with-
out unduly delaying the processing of this case at the Trial Examiner's level, with
the risk of further substantial delay at the Board level.57 It seems unconscionable
(1) to subject to such delay, and to that extent to withhold reinstatement and back-
pay from the eight employees whom I find herein to have been the victims of dis-
crimination, and (2), from the Respondent's standpoint, to increase, by such delay,
the amount of any backpay that it may ultimately have to pay. -
Accordingly, in order to expedite the processing of the instant cases, I have decided
to give priority to the other matters involved herein, reserving the issue of Wasson's
discharge for consideration in a Supplemental Decision to be issued hereafter.58 This
cannot prejudice any of the parties concerned, except Wasson, and, as for him, he is
not seeking reinstatement and will merely suffer some additional delay in the resolving
of the question whether he is entitled to a half-day's backpay.59
(8) Portas and Richardson
In view of certain striking similarities between their cases, the circumstances under
which Portas and Richardson ceased to be employed by Respondent will be con-
sidered jointly.
Both were young ladies in their late teens, and at the time of their termination
in March were working side by side in the receiving department on the fourth floor of
the warehouse. Richardson had been so employed since July 1961 and Portas since
July 1962. Both did bookkeeping work, and Portas, in addition, operated a teletype
machine, which transmitted information to Respondent's branch stores. The work
of both had been admittedly highly regarded by Kromash. Early in March both
picketed the store outside their working hours, Richardson on March 2, her day off,
and Portas on March 7 during her lunch hour, and within a few days after picketing
each girl was notified by Kromash that she was being transferred to the general
office.
In each case Kromash alleged that the reason for the transfer was that he had
recently observed a deterioration in the efficiency of both employees, which he at-
tributed to the tensions or pressures peculiar to their work in the warehouse, and
that he felt that a transfer to the more tranquil atmosphere of the general office
would be beneficial. Richardson promptly quit (on March 5) rather than accept the
transfer and Portas persisted in rejecting the transfer until March 13, when she was
discharged.
The General Counsel contends that in both cases the transfer was discriminatory
because prompted by the girls' union activities, that Portas' discharge for resisting
the discriminatory transfer was therefore unlawful, and that Richardson's resignation
to avoid a discriminatory transfer should be deemed an illegal constructive discharge.
The initial issue here is, therefore, whether Kromash's motive in ordering the trans-
fer was, as the General Counsel contends, their union activity or, as Kromash main-
tained, his desire to eliminate the conditions which he believed had adversely affected
their work. According to Kromash, this condition, in the case of Richardson, was
the pressure exerted on her by Respondent's buyers to expedite bookkeeping entries
57 That a ruling by me on the merits in Wasson's case, whatever its nature, would be
appealed to the Board seems not unlikely in view of the vigor and tenacity so far ex-
hibited by counsel in litigating this issue. -
In such Supplemental Decision I will, of course, be free to take official notice of any
findings herein that may bear on the motivation for Wasson's discharge, including matters
of credibility.
59 Precedent for this procedure of withholding decision on part of a case may be found
in the Trial Examiner's action approved by the Board in Equitable Life Insurance Com-
pany, 133 NLRB 1675, footnote 3, and in the Board's action in Dube Manufacturing Cor-
poration, 142 NLRB 431, and 142 NLRB 812. -
960 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
affecting their merchandise, which pressure led to frequent verbal clashes between
Richardson and the buyers. He explained that .he' believed that a transfer to the gen-
eral office would be salutary because there Richardson would have no direct contact
with the buyers. Richardson admitted her difficult relations with the buyers and
corroborated the testimony of Kromash and Tabroff that they had reprimanded her
the during the last 2 weeks of her employment. However, contrary to Kromash,
Richardson denied that her differences with the buyers were a recent development,6Q
insisting that they had prevailed throughout her employment in the receiving depart-
ment. Katzman, Richardson's immediate supervisor, also contradicted Kromash as
to the recency of Richardson's failing, testifying that the first manifestation that she
observed occurred in December 1962, about 3 months before Richardson quit. To
the extent that she is thus corroborated by Katzman, I credit Richardson, and find
that her differences with the buyers dated back at least to December 1962. The fact
that Kromash tolerated this situation until a few days after he saw Richardson on
the picket line 61 militates in favor of a finding that her picketing, rather than the
reason assigned by Kromash, prompted him to order her transfer. This finding is
fortified by consideration of the circumstances which led to the attempt to transfer
Portas, which will be next considered.
On March 1, Portas returned from a month's leave of absence.
According to Kromash, he observed that, after Portas returned from her leave of
absence, her work suffered a marked deterioration, which consisted in neglect of her
bookkeeping entries and her teletyping, unusual talkativeness, and excessive visits to
the restroom. He testified that he attributed this to her concern over her mother's
ill health, which concern, he felt, was aggravated by the tension under which she
labored in the receiving department, and that he believed that she might recover her
former efficiency in the more tranquil atmosphere of the general office. Here, again,
Tabroff corroborated Kromash as to the deterioration in Portas' bookkeeping and
teletyping. However, Katzman, Portas' immediate supervisor, while also corroborat-
ing Kromash in this regard, insisted that, far from becoming too talkative and
ambulatory, as Kromash claimed, Portas, upon returning from leave, became mel-
ancholy and would "sit and stare ." While Portas denied that her work deteriorated
after her return , she admitted that she was disturbed, for personal reasons, upon
learning on March 1 of Segarra's recent discharge 62 I am inclined therefore to credit
Katzman that there was a change in Portas' attitude on March. 1, but that this
manifested itself in fits of depression rather than in the exuberance described by
Kromash. While this discrepancy may not appear at first blush to be material, I
deem it significant in that it is persuasive that Kromash, contrary to his testimony,
paid little attention in fact to Portas' deportment prior to March 7. Perhaps even
more significant is the difficulty Kromash encountered in attempting to fix the date
when he first considered transferring Portas and the date when he actually decided
to transfer her. As already noted, Portas returned from leave on March 1. During
her first week back on the job she worked March 1, 2, 6, and 7. On March 7,
during her lunch hour, Portas had picketed outside the store and distributed union
literature in the warehouse. Kromash admittedly was promptly apprised of the
latter activity and, notwithstanding his equivocal testimony to the contrary, I find
that he learned about the same time of her picketing.63 On March 9, Kromash an-
nounced her transfer. Kromash vacillated as to the date when he began to con-
sider transferring Portas. Initially, he averred that, having observed on March 1
that Portas had become unusually talkative and visited the restroom every 15 or 20
minutes, he began on March 2 to think about transferring her. However, when
pressed further on the point, he indicated that he might have started to think about
a transfer as early as March 1, the very day she returned from leave.64 Thus, his
°° According 'to Kromash, Richardson' s difficulties with the buyers began 6 weeks or a
month before her resignation and were particularly marked during the last 2 weeks of her
employment.
°i While, at the hearing, Kromash professed inability to recall.the incident, he in effect
admitted in his pretrial affidavit that he saw Richardson picketing on March 2 and I so
find on the basis of this admission.
°2 She referred to Segarra as her "boy friend."
63 Kromash at first testified that he did not recall Portas' picketing activity, but soon
thereafter denied any knowledge thereof. In view of this lack of candor, and the open
and notorious character of the picketing, I do not credit his denial and find that it came
to his attention on March 7.
. °4 Thus, after testifying to receiving complaints about Portas' teletypes on March 1 or 2,
or on both dates, he asserted that he began, to consider a transfer even before he received
these complaints.
J.. W. MAYS, INC. 961
final position on this point was, in effect, that, although Portas' work had been "excel-
lent" or "very good" for many months prior to March 1, a slackening in her work
over a period of i or 2 days induced him to consider transferring her. As to the
date of his actual decision to transfer her, Kromash, at first, gave the date as about
March 6 or 7, but wheh his attention was directed to the fact that March 7 coincided
with the date of Portas' union activity he promptly moved the date of his decision
back to March ,4, when she had been at work only 2 days. When recalled to the
stand about 2 months later, he, at first, confessed inability to recall the date of his
decision to transfer Portas, later reverted to the March 6 or 7 date, then settled on
March 6, but finally confessed, "I can't be sure if I definitely made up my mind
Wednesday (March 6). I was thinking about it." Thus, his final position on this
point was, in effect, that he may not have reached any decision before March 7.
It appears from the foregoing that Kromash, after admitting that he may have
decided on the transfer on March 7, made an abortive effort to forestall any inference
that the decision was related to Portas' union activity on March 7 by professing to
have reached that decision at an earlier date, but, when forced by this line of testi-
mony into an implausible position, namely, that only 2 days' observation of Portas
convinced him that she could not take the pressure of work she had been doing very
ably for many months, he decided that moving his decision, in effect, back to March 7
would be the lesser of two evils.
As March 7 was the date originally assigned by Kromash, 'and finally reverted to
by him, albeit with obvious reluctance, I find that his decision was made on that date.
. The question remains whether his'decision was dictated by the alleged dramatic
decline in Portas' efficiency or by her union activity on March 7. Even by that
date she had been back on the job only 4 days, and it is difficult to believe that
Kromash, who admittedly had tolerated the shortcomings of Reid and Albanese for
many months without disciplinary action, would give such short shrift to Portas,
despite her excellent record. If, as he claimed, his only motive was to improve
her frame of mind, and thereby restore her efficiency, it is not clear how he could
expect to do so by forcing her to take an assignment to which she objected so
strenuously.
In view of this, as well as 'Krotnash's abortive effort to conceal the fact that his
decision to transfer Portas was reached on the same day that he learned of her union
activity, and his inability 'even to 'describe correctly -Portas' deportment which al-
legedly inspired his decision to transfer her,85 I can give little weight to the reasons
assigned by Kromash for her`tcarisfer.
Moreover, even apart from the foregoing, it seems a strange coincidence that
about the same time that Portas and Richardson engaged in union activity there
was such a dramatic deterioration in their work as to impel Kromash to seek to
remove them from contact with their old associates (who by reason of their long
association with'the two girls 'would be most likely to be receptive to their prose-
lytizing efforts),66' and transplant them to a new and unfamiliar milieu. This
remarkable coincidence in timing as to both girls, considered in the light of Kro-
mash's demonstrated union animus, is persuasive that Kromash regarded the com-
mon problem in both cases to be not their inability to cope with the working
conditions in the receiving department but their union activity and that the reason
for the transfer'was to impede such activity by transplanting them to an unfamiliar
milieu.67
65 As already noted (footnote 64, above), Kromash testified that the idea of transferring
Portas occurred to him after observing her alleged unruly behavior upon her return to
work and even before he received any complaints about her.
oe While Portas denied at the hearing that she felt that she could solicit more effectively
in the warehouse than in the general office, her opinion on the matter, even if sincere,
would not necessarily have been shared by Iiromash. Moreover, a more reliable clue as
to Portas' feeling on this point, as well as Richardson's (as to whom see the text below),
may be found in their spontaneous outbursts, when notified of the transfer, charging that
it was directed at their union activities.
67 While Kromash had heretofore 'not hesitated to discharge employees for union activity,
the adoption of milder measures in the case of Portas and Richardson may have been due
in part to their excellent prior records and in part to the fact that Respondent had already
been served with the charges filed with the Board as a result of Kromash 's prior discharge
actions.
756-236-65-vol. 147-62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, therefore, that Kromash decided to transfer both Portas and Richardson
because of their union activity, and in order to impede such activity, and that the
assignment of Portas and Richardson to the general office was therefore in violation
of Section 8 (a) (3) and (1) of the Act.
However, as already related, neither employee actually accepted the assignment,
Richardson choosing to quit and Portas provoking a discharge. At this point,
Respondent raises the contention that there was no discharge of Richardson, actual
or constructive, but merely a voluntary resignation, and that Portas' transfer, even
if discriminatory, does not render unlawful her discharge for refusal to accept
the transfer.
As to Portas, her case appears to be controlled by the Board's decision in South-ern California Associated Newspaper, a corporation, d/bla South Bay Daily
Breeze,68 cited by the General Counsel. There the Board found unlawful the dis-
charge of an employee for refusal to accept a discriminatory transfer, albeit to a
more desirable job. In view of this authority,69 I find that by discharging Portas
the Respondent violated Section 8(a) (3) and (1) of the Act.
As to Richardson, Respondent points out that, while a resignation to avoid a
transfer to a less desirable or more onerous job has been held by the Board to be
a constructive discharge, here the transfer was to a more desirable job, the general
office being a more comfortable 70 and less hectic place to work, and there was to
be no change in Richardson's pay or any material change in her duties. While
Richardson, at the hearing, ascribed her refusal of the transfer to her reluctance to
leave her old associates and the work with which she was familiar, I do not credit
her, but find rather that, as she indicated when informed of the transfer, she
resented the transfer because she felt it was designed to curb her union activities.
General Counsel's main reliance is upon South Bay Daily Breeze, supra, and
Steel Industries, Incorporated.71 However, in the latter case the transfer was to
a job which was less desirable, at least from the standpoint of the employee, because
it interfered with her family responsibilities. While South Bay Daily Breeze in-
volved a discriminatory transfer to a more desirable job, there, as already noted,
the employee did not quit, but was discharged for rejection of the transfer. I am
aware of no case involving the question here presented-whether a voluntary res-
ignation to avoid a discriminatory transfer, which resignation is motivated solely
by awareness of the antiunion reason for the transfer, constitutes an unlawful con-
structive discharge. However, it is difficult to perceive any sound reason for a
different result in the case of an employee, like Richardson, who quits to avoid a
discriminatory transfer to a better or equally desirable job, and an employee like
Portas or the employee in South Bay Daily Breeze, who provokes discharge by re-
fusing to accept such a transfer. In the one case there is a voluntary quit, in the
other a forced discharge. In each case the employee has chosen to resort to self-
help rather than accept the transfer and file a charge with the Board.72 It is true
.that where, as in Portas' case, the employee merely objects to the new assignment,
the employer has a locus poenitentiae or opportunity to reconsider and rescind his
discriminatory action. However, it is unrealistic to assume that employers bent on
discrimination will avail themselves of such opportunity. Moreover, such an op-
portunity to rescind is equally available in the case of an employee, like Richardson,
who quits. All that the employer has to do is to offer,to take the employee back on
her old job.73
118 130 NLRB 61, enfd . as modified 299 F. 2d 677 (C.A. 9).
'51 perceive no merit in Respondent's contention that South Bay is distinguishable be-
cause of Portas' Insubordinate attitude in refusing the transfer. Insofar as this conten-
tion implies that Portas was discharged for the peremptory manner in which she rejected
the transfer, it is not supported by the record. It is clear that Respondent condoned her
manner until it became convinced that she would not accept the transfer.
78 The general office, unlike the receiving department, was air conditioned.
71138 NLRB 1235, enforcement denied 325 F. 2d 173 (C.A. 7).
48 Cf. Walker Electric Company, 142 NLRB 1214, where the Board held that two em-
ployees who quit rather than be represented by an illegally assisted union were not con-
structively discharged. Their proper recourse, according to the Board, was to file a charge.
However, the Board there-made it clear that it was dealing with a-case that involved a
,quit because of "the mere existence of unlawful conditions" and that its, holding was
limited to that sort of case.
78 There is no reason to suppose that Richardson would have persisted in her decision
to quit if Eromash had rescinded her transfer.
J. W. MAYS, INC. 963
As I am therefore unable to find any valid distinction between Portas' case
and Richardson's, I conclude that she was unlawfully constructively discharged and
that the Respondent thereby violated Section 8 (a)(3) and (1) of the Act 74
B. Case No. 2-CA-9391
This case concerns the Respondent's branch store at Massapequa, Long Island.
The complaint alleges that early in May 1963, Respondent through its supervisor,
Military, threatened employees at that store with reprisals for union activities, thereby
violating Section 8(a)( I) of the Act, and that Respondent discharged Buckley on or
about May 29, 1963, because of his union activities, thereby violating Section
8 (a) (3) and (1) of the Act.
The answer avers that Buckley was laid off on May 29, but otherwise denies the
foregoing allegations.
1. Sequence of events
On April 4 Respondent opened its Massapequa store, and on that date Buckley was
hired as a porter. Initially, his duties were to perform porter work wherever he
might be needed in the store, and he was subject to call by any department in the
store. His immediate supervisor was Bradford, ,the head porter. After about 3
weeks he became dissatisfied with his working conditions under Bradford and, at
his request, was assigned to the receiving department, which was supervised by
Picone, the manager of that department. Buckley worked under the direction of
Military, and at least one of his tasks was to sort out an inordinate amount of hangers
that had accumulated in the receiving department. Buckley signed a union card and
some time in April obtained about a dozen cards which he passed out to other em-
ployees during the next 2 weeks. About 5 p.m., on May 29, he was notified by
Serpenti, Respondent's personnel manager at Massapequa, that he was being laid off
(according to Serpenti's version) or discharged (according to Buckley's version).
He has not since been recalled.
2. Discussion
a. The 8(a)(1) issue
General Counsel contends that early in May, Military, an alleged supervisor, made
a remark to Barton, a stockboy in the receiving department, which constituted a
threat of reprisal for union activity. Respondent denies that (1) Military was a
supervisor, (2) the remark was made, and (3) if made, it constituted an unlawful
threat.
As to Military's supervisory status, the record shows that he works in the hanging
room of the receiving department, where cartons of garments are received from the
delivery platform, and he sorts the cartons according to their contents and distributes
them to the girls in the hanging room , who remove the garments from the cartons
and place them on hangers . In May, about 18 girls and 4 men worked with Military
in the hanging room. Unlike such other employees, he received a salary (in the
amount of $95 per week ),75 and was not paid for overtime.. He effectively recom-
mends to Picone , the manager of the receiving department,. that overtime work be
done, and which employees should be assigned to such work. The other employees
in the hanging room look to Military for. instructions regarding their work. He ob-
tains extra help from Picone, as needed ., 'Apart from Military, there were only two
admitted supervisors 76 for the approximately 50 employees 'working in-the receiving
department in May, and during the frequent absences of .the two supervisors from
the hanging room he was the only one available to give directions to the employees.77
74 Respondent does not contend that, even if Portas' transfer was due to her union
activity, it was lawful because the only activities ofPortas of which it is charged with
knowledge-the poster-hanging during work hours, her distribution of union literature in
a work area and during the work time of other employees , and her picketing of Respond-
ent's store while still in its employ-were not protected. As this defense was not raised
in connection with Portas' transfer and discharge,' it must be deemed to have been waived
and there is no need to consider it. (However, it may be noted that Portas' picketing on
her own time, unlike the activities held by the Board to be unprotected in the "slowdown"
and "work-and-strike" cases, did not involve any interruption of her regular duties:)
76 The other nonsnpervisory personnel working with Military were paid from $50 to $65
a week.
76 Picone and his assistant, Valle.
77 The foregoing findings as to Military's *supervisory status are based on a synthesis of
the testimony of .Military and Picone , and Buckley 's credible testimony.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing , I find that Military is a supervisor within the meaning
of the Act.
Military's remark: According to Buckley, in mid-May, during his lunch hour, he
distributed union cards in the receiving department to two fellow-employees , Barton
and Smith , and Barton signed the card but , before returning it to Buckley, consulted
Military, who was in the vicinity, and who observed, "If you get caught signing the
card, you will. be fired." Barton, substantially corroborating Buckley, testified that
under the circumstances related above, Military told Barton not to let "Vinnie" 78
see the union card or Barton would be "fired."
In view of the foregoing corroboration of Buckley by Barton,79 I do not credit
Military's denial of the foregoing remark,80 and find that Military in effect told Barton
that he would be discharged by Picone if he learned that Barton had signed a union
card.
Respondent contends that Military's remark, if made, should not be deemed
coercive, as it was merely uttered in response to Barton's request for advice and
Military did not threaten that he would visit any reprisals. However, I deem the
case of Layton Oil Company, 128 NLRB 252, 253, 271, to be controlling here. In
that case the Board affirmed afinding by a Trial Examiner of a violation of Section
8(a)(1) based on a warning by a minor supervisor to an employee not to let the
respondent 's manager see that the employee had a matchbox bearing a union insignia
or the manager would discharge him. While there , as here, the statement might be
deemed friendly advice, its necessary and foreseeable effect was to cause the employee
to apprehend that he was inviting discharge by engaging in union activities 81
Accordingly, I find that by Military's remark Respondent violated Section 8(a) (1)
of the Act.
b. The discrimination against Buckley
Buckley and two representatives of the Union , Tuohey and Zaretzky , testified that
on May 29 Buckley had lunch at the Bow -Wow Restaurant near Respondent 's store;
that, as he had done on many prior occasions during May, he sat at a table with the
two union representatives ; that one of Respondent 's salesmen , Hammer, and a "Mr.
Milton" entered the restaurant and glanced in Buckley 's direction ; and that Hammer
asked one of the union representatives , "How is business ?" About 5 o'clock that
afternoon Buckley was called into the office of Personnel Manager Serpenti, and,
according to Buckley , she told him he was being discharged . He added that, when
he asked if his work was unsatisfactory, she assured him that that was not the case
but that he had "been seen and reported talking to the union men." Serpenti denied
making this remark , her version being that Buckley was laid off for lack of work
and that she explained this to him . While she was at the time of the hearing no
longer in Respondent's employ, and testified for Respondent under subpena , she. was
then working for an employment agency which serviced Respondent , among others.
Respondent sought to buttress Serpenti 's version of the interview by adducing evi-
dence that Buckley's services were in fact no longer required and that this was the
only reason for his separation . Picone , who assumed responsibility for the decision
to lay off Buckley, testified that late in April or early May he had received orders to
retrench ; that by May 29 , the work of sorting the pile of hangers, to which Buckley
had been assigned , had been completed; and that , in view of this, Picone, on May 29,
told his assistant , Valle, to ask Serpenti to try to find work for Buckley elsewhere,
and, failing that , to lay him off . Valle and Serpenti confirmed that-this message was
delivered by Valle to Serpenti on May 28 or 29, that Serpenti reported to Valle that
no other work could be found for Buckley , and that Valle thereupon decided to lay
Buckley off, pursuant to Picone 's directive.
78 Barton testified that he took this to refer to Picone , whose first name was Vincent.
He testified for the General Counsel under subpena and had no apparent interest in
the proceeding , being no longer in Respondent's employ , and not affiliated with any union.
While Smith did not testify , I draw no adverse inference therefrom, in view of General
Counsel ' s exhibition at the hearing of a letter from a veterans' hospital certifying that
Smith was unable to appear due to illness.
80 While admittink.that in May Barton mentioned to him that he was being solicited by
the Union , Military denied that he made any rejoinder.
81 See also R.C. Can Company, 144 NLRB 210. While Military's statement was in form
a prediction of action that would be taken by higher management , and the Board has held
predictions to be privileged where they merely foretell action that a respondent employer
may be compelled to take by circumstances beyond his control, that obviously is not the
case here , as Military ' s statement was,.in effect a prediction that Picone would voluntarily
use his economic power over Barton to visit reprisals on him for engaging in union activity.
J. W. MATS, -zN C. 965
However, the validity of Picone's contention -that Buckley was laid off for lack
of work is effectively negated by persuasive evidence in the record that (1) Buckley
finished his special hanger-sorting job about 3 weeks before May 29, and (2) there-
after he was assigned to other duties in the receiving department which continued to
be performed after May 29 by other personnel. These points will be considered
seriatim.
(1) As already related, Picone ascribed his decision on May 29 to lay Buckley off
to a conjunction of two events-his receipt of a directive to retrench and the fact
that Buckley had finished sorting the "mountain" of hangers that had accumulated in
the hanging room. However, it is clear from the testimony of Respondent's own
witnesses that both events had already occurred about 3 weeks before May 29. Thus,
both Military and Valle corroborate Buckley's testimony, which I credit, that the
collection of hangers had been reduced to normal proportions early in May,82 and
Katz testified credibly that he had issued the directive to retrench late in April 83
Thus, insofar as Picone's testimony implies that he decided to lay Buckley of im-
mediately upon the completion of his special job, it conflicts with the credited testi-
mony of Respondent's own witnesses and must be rejected, Thus, taken at its face
value, Picone's testimony fails to offer any credible explanation for Buckley's
termination.
(2) Even if, giving Picone the benefit of the doubt, one-construes his testimony to
be that Buckley's completion of the sorting of the surplus hangers early in May
was not the immediate, but merely an underlying, reason for Picone's decision, and
that the immediate reason was that by May 29 there was no more work available of
the sort that Buckley had been doing (including hanger-sorting), such testimony
would likewise not withstand analysis. Military testified, without contradiction, and
I find, that, after finishing his hanger-sorting task, Buckley's job was to "pile up
hangers in the corners" and help Military open cartons of merchandise, and that
after Buckley left it was necessary to press into service Valle, a supervisor, as well as
an employee borrowed on a part-time basis from another department, to help Military
open cartons. Even if it be assumed that this task alone would not have justified
retaining Buckley on a full-time basis, Picone admittedly was aware that Buckley
was available for, and, indeed, would have preferred, a part-time job S4
As it has been found that the work Buckley had been doing in the receiving depart-
ment immediately prior to May 29 was not completed on that date but continued to
be performed by others after Buckley's departure, I find that the reason given by
Respondent at the hearing for Buckley's termination is not supported by the record,
and that Buckley was not in fact laid off for lack of work-85 This circumstance,
coupled with the evidence of Picone's union animus afforded by Military's warning
to Barton, tends to corroborate Buckley's version of his exit interview with Serpenti,
and, for this reason, as well as demeanor considerations, I credit Buckley and find
that Serpenti did in fact tell him that he was being discharged because it had been
reported to the Respondent that he had been seen with union organizers.86
89 Valle placed the date about a month after the date the store opened (April 4)
33 As already noted, Picone, himself, testified that he received the directive late in April
or early in May.
84 Picone testified that about a week before May 29, he rejected Buckley's request to be
allowed to work part time.
85 In view of this finding, it is not necessary to evaluate the conflicting contentions as
to the validity of Respondent's reason for selecting Buckley for discharge rather than
another porter stationed in the hanging room, who, at the age of 70, was more than
20 years older than Buckley Nor is it necessary to pass upon General Counsel's conten-
tion based on Respondent's records (General Counsel's Exhibits Nos. 18 and 19), that dur-
ing the same week that Buckley was terminated Respondent hired two new employees in
the receiving department (Respondent, in opposition to this contention, presented evi-
dence of the decline in the number of -porters during the same period. See Respondent's
Exhibits Nos 47 and 49, as to the admissibility of which I reserved ruling at the hearing.
They are hereby ordered admitted in evidence.)
"There is no contradiction in the record of the, mutually corroborative testimony of
Buckley and the two organizers that for a period of about 4 weeks they had met during
lunchtime at the Bow-Wow Restaurant, near Respondent's store, which admittedly was
frequented by Respondent's employees and supervisors, and that the last such meeting
occurred an -May 29, several hours before Buckley's interview with Serpenti. They testi-
fied further, as related above, that at this last meeting one of Respondent's salesmen,
Hammer, approached them, observed Buckley's presence, and exchanged a noncommittal
remark with one of the organizers. Hammer admitted that there was such an exchange,
and that he knew that the individual to whom he spoke was a union organizer, but in-
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find further that , by discharging Buckley because of his union activity, Re-
spondent violated Section 8(a) (3) and (1) 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 con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent violated Section 8(a) (3) and (1) of the Act
by discriminating against Filosa, Reid, Cohen, Cecero, Segarra, Portas, Richardson,
and Buckley. It will accordingly be recommended that Respondent be required to
offer them reinstatement to the same or substantially equivalent positions, without
impairment of their seniority or other rights and privileges. It will also be rec-
ommended that Respondent be required to reimburse all discriminatees for any loss
of pay they may have suffered by reason of the Respondent's discrimination against
them; by paying to them a sum of money equal to, the amount they would normally
have earned as wages from the date of their discharge 84 to the date of such offer
of reinstatement, less their net earnings during that period. Backpay shall be
computed on the basis of calendar quarters, in accordance with the method pre-
scribed in F. W. Woolworth Company, 90 NLRB 289, and interest at the rate of
6 percent per annum shall be added to net backpay, in accordance with Isis Plumb-
ing & Heating Co., 138 NLRB 716.
In view of the nature of the violations found herein, particularly the discrimina-
tory discharges, a potential threat of future-violations exists which warrants a broad
cease-and-desist provision.
CONCLUSIONS OF LAW
1. By warning of reprisals for union activities, and by offering inducements to
abandon such activities, Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, and has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. By discriminating 'against employees because of their union activities, the Re-
spondent has violated Section 8 (a) (3) and (1) of the Act.
sisted that it occurred some weeks after Buckley's termination, that he did not see Buckley
at the Bow-Wow or even know who he was While not a supervisor on May 29, Hammer
occupied a unique status. Not only had he formerly been a supervisor, but he was a
brother-in-law of the then chairman of Respondent's board of directors, and had worked
for Respondent since its first store was opened in 1926. (The General Counsel's wit-
nesses testified that Hammer was accompanied by an individual identified by Buckley only
as "Mr. Milton." While it was established that Respondent had no employee by that
given name or surname at Massapequa, it does not necessarily follow that, as Respondent
contends, the General Counsel's witnesses invented Mr. Milton. 'It is just as reasonable
to infer that they were merely mistaken as to the individual's correct name, as it is diffi-
cult to believe that, if they had wanted to fabricate the incident, they would have in-
volved therein someone whose existence could readily be disproved.)
In view of the mutually corroborative testimony of General Counsel's witnesses that
Buckley was present on the occasion of their encounter with Hammer, and in view of his
admission that he promptly reported the encounter to a representative of management
(who was not produced at the hearing), a finding that It was this report to which Serpenti
had reference in her May 29 interview with Buckley might be deemed warranted. How-
ever, it is not necessary to resolve this point. Serpenti's admission, as found above, that
Buckley was discharged for consorting with union organizers suffices to establish Respond-
ent's knowledge of such activity (as well as the reason for the discharge), and it is not
incumbent upon the General Counsel to establish whether the source of such knowledge
was Hammer or another one of the many employees and supervisors of Respondent, includ-
ing Valle, who, as was stipulated at the hearing, frequented the Bow-Wow during the
period that Buckley was meeting there with the organizers.
17 Or in Richardson's case, constructive discharge.
J. W. MAYS, INC. 967
RECOMMENDED ORDER
Upon the entire record in the case , and the foregoing findings of fact and conclu-
sions of law, it is recommended that Respondent , J. W. Mays, Inc., of Brooklyn,
New York , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Local 635 , Home Furnishings Employees Union,
Retail Clerks International Association, AFL-CIO, or in any other labor organiza-
tion, by discriminating against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Warning employees of discharge because of their union activities, or offer-
ing them inducements to abandon such activities.
(c) 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 the above-
named Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right is affected
by the provisos in Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to the employees listed in the attached Appendix A immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges.
(b) Make whole the said employees, in the manner set forth in the section of
the Trial Examiner's Decision entitled "The Remedy," for any loss of pay they
may have suffered by reason of the Respondent's discrimination against them.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Order.
(d) Post at all its stores and at its warehouse in Brooklyn, New York, copies
of the attached notice marked "Appendix B." 88 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of at least 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writing, within 20
days from the date of receipt of this Decision, what steps the Respondent has taken
to comply herewith 89
It is further recommended that all allegations of the complaint in Cases Nos.
2-CA-9142, 2-CA-9142-2, 2-CA-9142-3, and 2-CA-9142-4, as to which no viola-
tion has been found be dismissed, except for the allegation that Robert K. Wasson
was discriminatorily discharged, ruling thereon being reserved.
B8 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order "
sa In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Benny Filosa Walter Segarra
Marvin Reid - Frances Richardson
Ivan Eddie Cohen Alice Portas
Vito Cecero Frederick Buckley
968 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT warn employees of discharge for union activities or offer them
inducements to abandon such activities.
WE WILL NOT discourage membership in Local 635, Home Furnishings Em-
ployees Union , Retail Clerks International Association , AFL-CIO, or any other
labor organization , by discriminating against employees with regard to their
hire or tenure of employment or any other term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist Local 635, Home Furnishings Employees Union , Retail Clerks Inter-
national Association , AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities , except
to the extent that such right may be affected by the provisos in Section 8(a)(3)
of the Act, as amended.
WE WILL offer the following employees immediate and full reinstatement to
their former or substantially equivalent positions , and make them whole for any
loss of pay suffered by reason of the discrimination against them:
Benny Filosa Walter Segarra
Marvin Reid Frances Richardson
Ivan Eddie Cohen Alice Portas
Vito Cecero Frederick Buckley
All of our employees are free to become, remain , or refrain from becoming or
remaining , members of Local 635, Home Furnishings Employees Union, Retail
Clerks International Association, AFL-CIO, or any other labor organization.
J. W. MAYS, INC.,
Employer.
Dated- ------------------ By-------------------------------------------
(Representative) ( Title)
NOTE.-If the above -named employees are currently serving in the Armed Forces
of the United States, we will notify them of their right to full reinstatement after
discharge from the Armed Forces, upon application , in accordance with the Selective
Service Act and the Universal Military Training and Service Act of 1948 , as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York , Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
J. W. Mays, Inc. and Home Furnishing Employees Union Local
635, Retail Clerks International Association , AFL-CIO. Case
No. 2-RC-12899. June 29, 196.E
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed tinder Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Bertram T.
Kupsinel. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
147 NLRB No. 105.