M. E. Blatt Co.

National Labor Relations Board - Board Decisions

Feb 26, 1943

47 N.L.R.B. 1055 (N.L.R.B. 1943)

In the Matter of M. E. BLATT- COMPANY and RETAIL CLERKS INTER- NATIONAL PRO1ECTIvE ASSOCIATION, LOCAL No. 1358, AFFILIATED WITH THE A. F. OF L. Case No. C2371. Decided February 26, 1943 Jurisdiction : department store industry. Unfair Labor Practices Interference, Restraint, and Coercion: , posting of a notice designed to discourage membership in charging union; complaint dismissed as to allegations that respondent had disparaged the union, engaged in surveillance of union mem- hers or leaders, and discriminatorily transferred an employee from one position to another in its store. Company-Dominated Union: formation of independent union after respondent had failed completely to dissipate effects of prior unfair labor practices and displayed continued hostility to outside union ; disparate treatment accorded organizing efforts of the two unions ; participation of supervisory employees in formation and administration of inside union; effect of above facts not changed by posting of notice purporting to indicate neutral position on part of iespondent. Reriiedial Orders: cease and desist unfair labor practices ;dominated organiza- tion disestablished. - Mr. Jerome I. Macht, for the Board. Cassman d Gottleib, by Mr. Harry Cassman, of Atlantic City, N.'J., and Wolf, Block, Schorr and Solis-Cohen, by Mr. Samuel A. Gold- berg, of Philadelphia, Pa., for the respondent. -Mr. Albert K. Plone, of Camden, N. J., for the Union. Mr. Paul M. Salsburg; of Atlantic City, N. J., for the Association. Miss Mary E. Perkins, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed on April 10, 1942, by Retail Clerks Inter- national Protective Association, Local No. 1358, affiliated with the A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by-its Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint, dated June 10, 1942, against M: E. Blatt Company, herein, called the respondent,- alleging that the respondent' had -engaged and was engaging in unfair 47 N. L R. B., No. 136. 1055 1056 DROI'SIIOn--a OAF NATIO\NAL LABc R• REIATION;S: BOARD- labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by notice of hearing, were duly served upon the respondent, the Union, and Organized Workers' Association of the M. E. Blatt Co. of Atlantic City, N. J., it labor organization alleged to have been domi- nated by the respondent and herein called the Association. In respect to the unfair labor practices, the complaint, as amended, alleged in substance : (1) that, since March 1942,'^the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by various acts including (a) the posting of an unlawful notice; (b) statements denouncing and disparaging the Union, its organizers, and members, (c) the question- ing and surveillance of union members, (d) the discriminatory transfer of Dorothy Reitzler, an employee, from one position in the respondent's store to another, and (e) urging and warning its employees not to become or remain members of the Union ; (2) that from and after April 1942 the respondent had dominated and interfered with the formation and administration of the Association and had contributed support to it; and (3) that by_the foregoing conduct the respondent had violated Section 8 (1) and (2) of the Act. In its answer and: amended ans i-er;to the;complauit,'dat'e Jarie^20 and July 10, 1942, respectively, the respondent denied that it is engaged in commerce, and that it had engaged in the unfair labor practices alleged. In its answer and amended answer to the complaint, the Association denied that it had been or was dominated, interfered with, or assisted by the respondent. Pursuant to notice; a hearing was held between July 13 and 20, 1942,` at Atlantic City, New Jersey, before Samuel Edes, the Trial Examiner duly designated by the Chief Trial Examiner. At the commencement of the-hearing, the Association was granted leave to' intervene. The Board, the respondent, the Union, and the Association were represented by counsel, and participitated iii the hearing. full -opppytunity:to,be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was -afforded all paities. During the hear- ing the Trial Examiner granted ^themotion of,counsel for the Board to amend the complaint by adding the names of Clifford Johnson and Russell Cohen to the naives of agents through whom it was alleged the respondent had engaged in unfair labor practices. The Trial Exam-r iner denied a motion by counsel for the respondent to dismiss the com plaint for failure of proof at the conclusion, of the Board's case, and- reserved ruling on a motion by counsel for- the iespondent to dismiss the complaint on the ground that the respondent was not subject to the, Act. The latter motion the Trial Examiner denied in- his Intermediate M. E. BLATT COMPANY 1057 ' Report. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter'the Trial Examiner filed his Intermediate Report, dated" October 14, 1942, copies of which were duly served upon all the parties. He found that the respondent had engaged and was engaging in unfair labor practices affecting commerce, within the meaning of Sec- tion 8, (1) and Section 2 (6) and (7) of the Act, but recommended dismissal of the allegations in the complaint that the respondent had disparaged the Union or its members, engaged in surveillance of union members and leaders, or discriminated against Dorothy Reitzler, within the meaning of Section 8 (1) of the Act; or that it had engaged in any unfair labor practices within the meaning of Section 8 (2), of the Act. He recommended that the respondent cease and desist from the unfair labor practices found, and that it take certain affirmative action designed to effectuate the policies of the Act. Both the respondent and the Union filed exceptions to the Intermediate Report and briefs in support of their exceptions. At the request 'of the Union, and pursuant to, notice duly served .on all parties, a hearing for the. purpose of oral argument was held before. the Board in Washington, D. C., on December 1, 1942. The respondent and the Union, were represented by counsel and partici- pated in the argument. The Board. hasi considered the exceptions and , briefs filed, by the parties and, insofar as, the exceptions are, inconsistent with the- findings, conclusions, and order set, forth- below, finds them to, be4ithout 'merit. Upon the entire record: in the case, the Board, makes the following : FINDINGS OF FACT I. TiIE BUSINESS OF THE RESPONDENT The respondent, a New, Jersey corporation, has its, principal office and place of ,business in, Atlantic City, New Jersey, where it conducts a, retail department store business• for the purchase, sale, ands distri- bution- of general merchandise, including household furnishings and equipment, wearing apparel, notions, cosmetics, and other commodi- ties. During 1941 the respondent's wholesale purchases of merchan- dise for the operation of its business totalled $1,530,842: Approxi- mately 95 percent of such merchandise was acquired by and' shipped to the respondent from points outside the State of New Jersey. In . this period, the. respondent's gross sales amounted' to $2,332,292. In- cluded in these sales was merchandise in the, amount of $16,326, which was shipped by, the respondent to points outside the State of New Jersey. They respondent employs approximately 300 employees. 513024-43-vol 47-67 1058, DECISIONS OF NATIONAL LAJ30 ,R RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Retail Clerks International Protective Association, Local No. 1358, affiliated with-the American Federation of Labor, is a labor organiza- tion admitting to membership employees of the respondent. Organized Workers' Association of the M. E. Blatt Co. of Atlantic City, N. J., is an unaffiliated labor organization admitting to member- ship employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the notices of March 18,19.1' In a prior proceeding instituted against the respondent under Sec- tion 10 of the Act, the Board, on February 14, 1942, issued a Decision and Order,1 finding that the respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to., them by the Act, and ordering the respondent to reinstate five em- ployees, who, the Board found, had been discharged by the respondent because of their'activities on behalf of the Union. The order further directed the respondent to post, and maintain for 60 days, notices to, its employees stating, m sum: (1) that the respondent would not dis- courage membership in the Union by discrimination in regard to hire,, tenure, o'r any-term or, condition : of employment,,and would not in any other manner interfere with, restrain, or coerce its employees in the, exercise of-the,rights guaranteed in Section 7 of the Act;. (2) that, it would offer reinstatement and back pay to the discharged employees, and (3) 'that, its employees were free to become: or remain members of the Union without fear of discrimination against them on account of such membership or activity. About the middle of March, the Union commenced a renewal of its campaign to Organize the respond- ent's employees which, apparently, had come to a'halt during the pendency of the Board proceeding against the respondent. • On-March 18, 1942, the respondent posted two notices, side by side, on the bulletin board of the store. One of the notices appeared to be in substantial compliance with the terms of the Board's• order.2 The other read in full as follows : 1 Matter of Al. E Blatt, Company and Retail Clerks International Protective Association, Local No. 1358, affiliated ith the A. F. of L., 38 N. L. R B. 1210. 2 This notice read in full as follows NOTICE TO EMPLOYEES This Company will not in any manner interfere, restrain or coerce its'employees in the exercise of right of self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their ov,n choosing, and to engage in concerted activities for the purpose of collective baigainnig and other manual [sic] 'aid or' protection, as guaranteed by Section 7 of the National' Labor-Relations Act,' nor will this Company discourage membership in Retail Clerks International , Protec- tive Association Local No. 1358 , affiliated with the American Federation of Labor, - M. E. BLATT COMPANY TO THE EMPLOYEES OF THE COMPANY 1059- Due to recent rulings regarding the National Labor Relations Act, employees may be approached by representatives of one or more labor organizations to solicit their membership. Under these circumstances, we feel that our employees have a right to a statement of our attitude with reference to this matter. We recognize the right of every' employee to`join any union: that he may wish to join, and such membership will not affect his position with the company. On the other hand, we feel that, it should be made equally clear to each employee that it is not at all necessary for him to join any labor organization, despite, anything he may be told to the contrary. Certainly, there is no, law which requires, or is intended to compel, you to pay dues to any organization. For the last twenty-five year's this company and its employees have enjoyed a happy relationship of mutual confidence and understanding with each other. Employees may continue to deal directly with us or with the head of their respective department as they have in the past regarding matters affecting their interests. We believe that our' interests in this business are mutual and can best be promoted through confidence and cooperation. M. E. BLATT COMPANY. Max E. Blatt, president of the respondent, and Barney Silberman, secretary and comptroller of the respondent, testified that the latter notice, was, posted together with the notice required by order of the Board for the, reason that they had received reports that the Union' had been threatening workers with the loss of their jobs and with the prospect of high initiation fees, if they did not apply for member- ship at once.- In these circumstances, Blatt testified, the respondent., believed that the employees were entitled to know its "attitude about- the whole business." . This explanation, however, does not appear to square with the facts.' If the respondent was genuinely interested 'merely in counteracting the threats purportedly made by the Union,3 the way was open to the or any other labor organization of its employees by discriminating in regard to hire and tenure of employment or term or condition theieof This Company has offered immediate and full reinstatement , to their former or sub- stantially equivalent positions , to employees alleged to have been discriminatorily discharged , without prejudice to their seniority and other rights and privileges, and' have made payment of the wages each 'of them would normally have earned from the date of the discharge to the date of the offer of reinstatement less his or her net - earnings during that period. M. E BLATT Co. s There was conflicting testimony at the bearing as to whether of not threats of the kind which Blatt and-Silberman , testified were reported to them were in fact made by those who were soliciting membership in the Union. • 1060 DECISIONS OF -NATIONAL 'LABOR -RELATIONS BOARD accomplishment- of that end by a simple statement of the fact that job security with the respondent was not dependent upon union member- ship or non-membership . The text of the notice posted by the re-' spondent , however, indicates plainly that the respondent was inter- ested in far more than the counteraction of any threats by union organizers . That text , in unambiguous terms, called upon the-em- ployees-to continue to deal directly with the respondent in the future, as they had for 25 years in the past , without the intervention of labor organizations , and clearly implied that such intervention would con- stitute the antithesis of a relationship based upon mutual ' confidence and cooperation between the respondent and its employees . Issued at a time when the Union was seeking to organize the employees, the notice constituted a campaign appeal by the respondent directed toward defeating the efforts of the Union. The fact that the notice , in part, also indicated that union mem- bership would not jeopardize the job security of employees , and that the accompanying notice posted by direction of the Board declared, in addition , that the respondent would not interfere with the rights guar- anteed employees in Section 7 of the Act, does not, in our view, alter the situation . Read together in the light, most favorable .to the re- spondent , the entire text of the two notices . indicated-that the respond- ent would not discriminate against employees because of union membership or interfere with their statutory right to self -organization, but antithetically imported , in addition , that the best interests of the employees would be , served if they refrained from union organization. The respondent's emphasis upon direct dealing , and the continuation of a past "happy , relationship" in which labor,o-rgi ,nizations,played no, part, stood out in, bold relief against, , and in intention and effect substantially, nullified, its simultaneous profession of recognition of the right of employeesrto, organize . The employees , were aware of the fact that j,ust, immediately prior to , the posting of the notices the re- spondent , as found by the Board , had engaged in coercive and dis- criminatory, activity, against the - Union, in violation of the Act. They knew, too,, that the Union was then engaged in a campaign to secure their allegiance . In these circumstances , it cannot be supposed that the employees would overlook or pass off lightly any indication of the respondent 's wishes. In the . context of all, the circumstances set, forth ,, this. notice marked the respondent as a partisan . candidate for. the allegiance of the em- ployees , in, opposition to. the Union ,, and constituted a, deliberate and forceful effort by the respondent to discourage its employees from membership and activity in the Union . We find, as did' the Trial Examiner, that by. posting such a notice the respondent interfered with, restrained , and coerced its 'employees in the exercise , of the rights guaranteed in Section 7 of the Act. M. E. ,BLAT I COMPANY 1061 B. Dom2nation of. and interference with the formation of the& Associa- tion, and contribution o f support to it The Board's order in the earlier proceeding against the 'respon'dent 4 was issued on February 14, 1942, and the respondent's notice to its -employees, posted in asserted compliance with that order, appeared on -March 18,1942. The respondent, however, as already has been pointed out, was not content to post merely the notice required by the Board's order, which in the ordinary course of events would have operated to dissipate the effect of its prior unfair labor practices. Instead it added a further notice intensifying, rather than lessening, the impression already created among its employees that it was hostile to the Union, and preferred not"to deal with it under any circumstances. Shortly thereafter, in the first week in April 1942, a new labor organization, the Association, made its appearance. In the interval between the posting of the March 18 notices'and the appearance of the Association, the respondent made repeated efforts to curb union activity in the store. On March 26, Dorothy Reitzler, an .employee found by the Board in the earlier case to have been dis- charged because of her activities in' the Union, was reinstated by the respondent pursuant to the Board's order. Sue Witsky, secretary to Herman Vollins, the buyer and head of the shoe department, secured a number of applications for membership in the Union on the morning of the day that Reitzler was reinstated. She testified, and he-r testi- mony is credible, that she secured the applications while she was performing her regular duties in the store, and that this activity did not unduly interfere with either her own work or that of others, since - her work normally required her to move about the store in other de- partments. At noon, Vollins called her into his office, reprimanded her for soliciting, and told her that the did not care what she did after hours, but that during the store hours she was not to solicit in the store. From then until about the end of March, Witsky was confined to her own department, and Vollins took over those of her duties whieh involved moving about the store. She was required to report to Vollins whenever she wished to leave the dIepartment.s Vollins testified that he did not know at the time what' organization Witsky belonged to. Since this incident took place about 2 weeks prior to the formation of the Association, however, it is apparent that Vollins could not have been ignorant of the fact that it was the Union for which Witsky was soliciting. The respondent maintains a fountain and restaurant in its store, and the Union's campaign was discussed by the employees who ate 4 See above , Section III A. _ At the end of this period , Vollins complained that the added work was too onerous for him, and Witsky was allowed to resume her regular duties, with the understanding that she was not to solicit for the Union . She did not thereafter do so. 1062 DECISIONS OF' NATIONAL 'LABOR RELATIONS BOARD -lunch and breakfast, at the fountain. Abrainoff and' Howell; the Union's organizers, on occasion had breakfast there, had discussed the Union, and had solicited the' membership of one of the waitresses and of a fountain boy, John Ponzio. Ponzio, a,w'itness for the respondent, . testified that on the morning after a union meeting sometime in 'March," Pask, the manager of the fountain, called to him the em- ployees under his supervision and told them that they were not to dis- cuss the Union during working hours, although he did not care what they did after hours. ' Ponzio testified that at the time Pask issued these instructions, neither 'Ponzio nor any, of the other employees 'had engaged in any union activity, and that he assumed that .the. occasion for Pask's instruction was that "he didn't want our department rattled with a lot, of fellows running in and out ,and talking about Union." Pask was not called as a witness,by the respondent. We credit Ponzio's testimony and find, accordingly, that Task issued instructions designed to curtail discussion of the Union 'in the fountain, at least so far as his subordinates were concerned. A Bessie Cliazin, a salesgirl in the handbag department on the first floor, joined the Union and attended its first meeting on March 26. 'Thereafter she wore her union button in the store and talked in favor of the Union with the other girls in her department. ' On April 1, the morning' after the second meeting of the Union, during the free period between 8:45 and 9: 00 a. M.,7 Chazin engaged in conversation with one Weisinger, an employee in one of the departments adjacent to hers • on the first floor, who used the same cash register used by Cliazin. While she was still talking to Weisinger, Mary Price, the buyer and 'head of the department in which Weisinger worked, accosted Chazin -and brusquely ordered her to get to work. Since it was not yet time for the employees to be in their departments, Chazin felt that the 'reprimand was unjust and reported it to Byers, the respondent's per- sonnel director. Byers agreed that Price should not have reprimanded Chazin under the circumstances, but added, "But we are stopping the girls from discussing the union in the store." About April 1, 1942, a group of the employees began to discuss plans for the formation of the Association. The idea appears to have originated with Georgianna Hicks, a girl employed at the will-call desk with Reitzler, who testified that the thought of forming , an 'unaffiliated organization was suggested to her by her father. She 6 Ponzio testified that Pask issued his instructions after a union meeting and about 2 weeks before the 'formation of the Association . The formation of the latter organization took place during the period from about April 3 to April 9; and since the first meeting held by the Union after it resumed its campaign appears to have been held on, March 26, it is probable that this incident took place on March 27. 7 Employees reported to work at 8: 45 a. in., but were not required to be in their depart- ments until 9: 00, when the store opened. n -M. E. BLATT COMPANY - 11063 discussed the, idea -With employees Lillian Rosenberg,"- Ann, Finiiell, ,Joseph Lambert,"'' Kathryn Schilling, and Mary Agnes' Harrington, in gatherings at the' fountain -arid 'at her home.-, , , 4 , , , .. As a result of 'the discussions among these. employees; it was. de- cided to hold a meeting on the evening of April- 2,. at,.a meeting -hall • in the Stanley 'Restaurant near the respondent's store: During'-the ,day on.-April- 2, word, of this meeting was spread through the -store by these employees by word of mouth. Hicks testified, "We, told :everybody we seen." -So effectively was the news 'spread' that some 250 or more employees attended the meeting. The meeting- was pre- ,sided over,by, Lambert, who stated that its purpose was to consider ,the formation of 'a labor, organization. Rosenberg introduced -Har- ,rington's sister, who told of her satisfactory experience with an un- .afliliated union at the Bell Telephone Company. Rosenberg then spoke again, saying, among other things, that such an organization would be better -than an "outside organization" to improve condi- tions, although in her, own opinion conditions could not be better. 8 Rosenberg is employed in the executive office of the respondent , and has • charge of the respondent 's pay roll . The pay -roll records with which she works include those of buyers and executives , certain of which the respondent refused to disclose or allow to be intro- duced into evidence , on the ground -that they were confidential Questions which arise over `the commissions of particular employees are taken up with Rosenberg by the employees involved . On occasion , in the absence of Silberman , the respondent ' s secretary and comp- troller, she signs the work-cards of contingent employees . ' Silberman acted as the major spokesman for the respondent at the hearing . Although Silberman has a ` private office ,which he uses to receive people, he usually sits at a desk in one of the two outer offices on the executive floor. Rosenberg 's desk adjoins his, in a partitioned -off space which contains only her desk ; Silberman 's ; that of E . S. Ireland , the office manager ; and that of Claude Dilks , a bookkeeper. She has been employed by the respondent for 12 , years and re- ceives a salary of $26 a week . She is not related to Aaron Rosenberg , the respondent's superintendent. - Fennell is employed by the respondent in the capacity of statistician , the only person with that title so employed She has worked for the respondent for'19 years and receives a salary of $ 30 a week. She compiles monthly inventory -control sheets based upon the purchases , sales, salaries , and other costs of the different departments , which are then distributed to the department heads. She has her desk in a railed -in space known as Blatt's "outer office ," from which Blatt's private office opens on one side , and Silberman's private office opens on the other. In the course of her duties she has access to, and fre- quently uses the latter office, where certain of the files are kept. The outer office is occupied -only by Fmnell 's desk, which immediately faces . the gate ; and by the desk of Cameron Blatt 's personal secretary . In this location Finnell is at times approached by employees 'who come `to the office with- matters for Blatt's attention when questioned about his motive for posting the March 18 notice discussed above, Blatt-testified that he had posted it on the basis of information given him by Finnell , that solicitors for the Union were threatening the employees. 10 Lambert is the senior of the respondent 's two furniture salesmen ; as such, be is one of'the two highest paid salesmen in the store . The other is Julius Hoffman, who earns as much or slightly more than Lambert, although he has been employed only a year or so. Hoffman also took part in the formation of the Association , and secured the use of the 'halls for the Stanley and Flornblau meetings . Lambert's salary and commissions average $50 a week, and at times reach $ 60 or more ,' as compared to the earnings of the ordinary sales , clerks , which at this time averaged about $14 or $15 a week. Lambert has been employed by the respondent for 16 or 18 years, and , some 5 or 6 years ago ,' held the official -position of assistant buyer in the furniture department . While he no longer holds that title, he still exercises some supervisory and managerial powers, in 'that he signs employee passes, OK's tranfers , and advises the buyer on purchases. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - The next day, April 3, a group of people including Rosenberg, Finnell, Hicks, Lambert, and Claude Dilks,ll went at noon to the office of a local attorney, Paul Salsburg,12 to get his advice and help - in forming an organization. It was decided to organize the Associ- ation as a non-profit corporation, and Salsburg set about preparing the necessary papers. He provided the group with a form for mem- bership application cards, and on the same afternoon application cards were printed. Sometime on April 3, the respondent posted the following notice : To OUR EMPLOYEES : It has come to our attention that a group. of our employees have met to form an organization for the purpose of collective bargaining and we wish to repeat that it is not necessary for any employee to join any organization or to pay dues to any organization in order to continue in our employ. M. E. BLATT CO. Despite the apparent reference to the. Stanley meeting, Silberman 'testified for the respondent as follows, concerning the posting of this notice : In my travels through the store I had heard in ever so many different parts . . of various threats that some of our em- ployees were receiving, as to whether to join a certain union known as the A. F. of L. at that particular time, or if they waited later they would have to be forced to pay an exorbitant initiation fee, so after I overheard several of those I thought it was my duty as an officer of the company to post this notice informing our employees as to the feelings and inten- tions of the company, which was similar to the previous notice we had posted on March 18. This was the only explanation offered by the 'respondent as to its motive in posting the notice. I The next day was Saturday, April 4, the day before Easter and a very busy time for the store. Yet on Saturday and the following Monday the employees named above carried on a membership cam- 1 1' Claude Dilks is a bookkeeper ; the precise nature of whose duties does not clearly appear, other than that he compiles information received from the various departments, and is not concerned merely with the keeping of accounts payable and receivable . He has been em- ployed 7 years , and at the time of the formation of the Association received a salary of $30 a week. DIIks is one of the four occupants of the office in which Rosenberg works. He testified that he subsequently solicited for the Association among employees who work on the fifth floor where the executive offices are located , although he stated that in every case his solicitation " was carried on off company time and property. 12 Salsburg was consulted because his daughter, Shirley, was one of the employees at the respondent's store, and an acquaintance of the employees who were interested in forming the Association. ` M. E. BLATT COMPANY 1065 -paign- in the store so intensive that sometime on Monday Lambert reported to Salsburg that they had secured over 200 members, and a letter to this effect was prepared and presented to the respondent on Tuesday. The leading solicitors for the Association were Rosenberg, Finnell, Schilling and Hicks. These employees, singly or together, were seen on nearly every floor of the respondent's store during the 2 days in question, soliciting applications for the Association. All asserted that they carried on their solicitation either during their lunch hours or their shopping hours.13 They admitted, however, that they ap- proached employees in other departments while the latter were on duty. In any event, it is inconceivable that the respondent, through its supervisors, could have been unaware of the unusual activity on behalf of the Association. Supervisory employees also engaged in solicitation or other activity on behalf of the Association. Russell Cohen, supervisor of the mark- ing room,14 solicited the membership of employee Roy Stout in the store during working hours. Dorothea Watts, a sales clerk in the cosmetics department on the first floor, testified that Elizabeth Creigh- ton, a supervisor under Price,15 approached her early in the Associa- tion campaign and-told her that she was "surprised at her," that she was "the only girl in, Miss Price's department" who belonged to the Union. Watts testified that Creighton told her that all the other girls were going to belong to the Association and asked Watts if she weren't going to join too. Creighton did not specifically deny -the foregoing testimony. She testified generally that she never solicited for the Association, and "never discussed any union in the store with anyone." Her general denial in this regard is unconvincing, and we find that she made the statements attributed to her by, Watts. Chazin 13 The hours from 9 : 00 to 10 : 00 a. in ; and from 5: 00 to 6: 00 p. in. are periods during which, with the permission of their department head, store employees are allowed to leave their departments to do their personal shopping in other parts of the store . These periods are known as the shopping hours. 74 Cohen is in charge of the marking room , in the receiving department . He opens boxes of merchandise , checks their contents against invoices , and distributes the merchandise to the girls in the inatking room to mark retail prices on each item of goods. It is his duty to see that the girls mark the merchandise , properly and, if they do not, to report that fact to Joseph Alkazin , traffic manager of the store , under whose supervision the receiving department falls while Cohen does not have power to hire or discharge the girls in the marking room , he makes recommendations to Alkazin on the needs of the marking room as the amount of work increases or decreases We find, as did'the Trial Examiner, that Cohen is a supervisory , employee. 1 Mary Price is the buyer and head of some eight departments , including the cosmetics department . Creighton handles the stock in the departments under Price with the exception of the cosmetics department , and does no selling herself She has direct charge of the sales- girls in these departments , tells them what to do, and transfers them from department to department as they are needed. Should a particular salesgirl not perform her duties prop= erly, Creighton reports that fact to Price ," although she is without bower to discipliiie or discharge the girls herself. She has authority to sign shopping passes and merchandise credits. We find, as did the Trial Examiner , that Creighton is a supervisory employee. 1066 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD testified,that she _overheard Creighton, in a conversation with Mabel Reger, -superoisor2of-the, auditing department,", say,to-Reger, "When I get through talking to them, there will be two less? meinbers for the AFL." Creighton denied the truth of this testimony. Chazin's tes, timony is credible, however, and consistent with other evidence which shows that both Creighton and Reger favored the Association and that Creighton had intervened on its behalf against the Union. We, find that Creighton made the .statement attributed to her by Chazin. - Stout also testified without contradiction that on Saturday after- noon, April 4, he saw Reger in the respondent's recreation room with Rosenberg, Finnell, and Hicks, dividing up application blanks for the Association. The three latter employees. were seen later in the day soliciting applications among the employees. 'Reger testified that she did not solicit for the Association "in [her] department . . . on the sixth floor," but did not deny Stout's testimony. We find that Reger also assisted in the solicitation campaign on behalf of the Alssociation. - - - There is no evidence that any of the activity in connection with the Association's campaign met with reprimand from the respondent, although it' took place only 2 or 3 days after the respondent's per- sonnel director had informed Chazin that the respondent was "stop-- ping, the girls from talking union in the store." That the respondent knew of the formation of the Association is shown by the testimony of Blatt, the respondent's president, who testified that Lambert told him -of it in a conversation in the -furniture, department on either ' Saturday or Monday. In contrast, however, to its complacence with regard to the inten- sive activity on behalf of the Association described above, the re spondent continued to reprimand members of the Union for minor infringements of an alleged rule against conversations during store hours.17 Reitzler testified that on Saturday, April 4, the first day of , the Association's campaign, Skelly, a union member, came to 'the will-call desk during her lunch hour to speak to Reitzler, who was then on duty although not busy with any customers. Byers, the respondent's personnel director, approached the desk, and asked Skelly if she was on her lunch hour. Upon receiving an' affirmative answer, Byers said, "Miss Reitzler isn 't, so beat it," and then said to Reitzler , "Don't these girls know that this is our busy Saturday, that you have other things to do than talk?" Byers did not deny this testimony. Reitzler further testified without contradiction that on the same day she saw Hicks, Martha Brokenshire, a corset fitter, and 10 The respondent admitted and we find , as did the Trial Examiner , that Reger is a super- visory employee. 17 Byers and other supervisors testified generally that whenever they saw employees gathered in conversation , they told the employees to disband. ivy. E. BLATT COMPANY 1067 May Byrnes ,- the buyer and head of the corset depa ;rtinen"t; standing together, ' while' Hicks, after allowing Byrnes to examine an - applica tion blank, divided a pile of them that she was carrying ' and gave- half to Brokenshire . Byrnes reprimanded neither Hicks nor Broken- shire. We credit Reitzler 's testimony as to these incidents. At about the same time Chazin, employed in a department adjoin-' in that of Dorothea Watts on the first floor; stopped to speak to the later while passing by her counter . Creighton , who had on another occasion characterized . Watts as the only union member in Price's -department , thereupon accosted Chazin and , told her, to , "get over to your department ; get out of here." ' At noon on Monday, April 6, Rosenberg , Lambert , and Hicks decided to hold a meeting that same evening . A sign was posted on a car in the alley by the employee entrance , and notice of the meeting was spread through the store during the afternoon by word of mouth. Hicks again ; according to her own testimony , told everyone she saw about the proposed meeting. The meeting was attended by 100 or more of the employees . The certificate of incorporation was signed that night , and the next morning Lambert presented to Blatt a letter prepared by Salsburg , notifying Blatt that the Association had over 200 members 18 and setting forth in detail the steps toward incorpora- tion which had been taken . Some half -dozen or more copies of this letter were distributed by Schilling and Hicks to various employees who circulated them through the store . Employees to whom copies of the letter were shown signed to indicate that they had seen them. The circulation of this letter, also , took place at least in part during working hours. Again, there is no evidence that any of the Associa- tion members involved were reprimanded for engaging in this activity.- During the succeeding week, Rosenberg, Finnell , Schilling , and Hicks also circulated through the store without reprimand , and while other employees were on duty, a form prepared by Salsburg for employees' to revoke their membership in the Union. - On the morning of April 9, Salsburg notified Lambert that he had prepared the constitution and bylaws for the Association , and Schil- ling was sent to his office at lunch time to get them . On her return, word was spread to a number of'the organizers of the Association that these documents could be seen in the furniture department, and- Lambert, Schilling , Finnell, Hicks , Cohen, and a number of other employees congregated in one of the model. rooms on- the furniture floor to inspect them and read them over. Some of the employees' ie Lambert testified that he notified Salsburg sometime on Monday of the number of appli- cations secured, amounting at the time to just over 200. Dilks, the Association's treasurer, testified that 202 people joined the Association,'of whom 26 have since left the respondent's, employ. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named secured shopping passes in order to attend. While this gather- ing was too amorphous to be called a "meeting," it appears to have lasted from a quarter to half an hour, and, is,,ample proof that con- gregations or group conversations of the employees were, on some occasions at least, tolerated by the respondent,19 contrary to the gen; eral -statements of supervisors, advanced primarily to justify the reprimands directed against union members, that such conversations were uniformly broken up. The general contrast between the treatment accorded by the respond- ent to the activities on behalf of the Association, and that which it accorded activities on behalf of the Union, is marked.. Witsky, for example, who solicited for the Union during the first morning after Reitzler was reinstated, was at noon reprimanded by her buyer, and thereafter confined to her department. Schilling, on the other hand, whose duties as secretary to the buyer in the furniture department correspond to those of Witsky, testified that for about 3 days she went about the store soliciting applications for membership on behalf of the Association, and approaching employees who were on duty. There is no evidence that she was ever reprimanded in any way for this activity. Again, Ponzio, a witness for the respondent, testified that, when employees gathered, and union organizers discussed the Union and solicited union membership, at the respondent's fountain, the fountain employees were called in by the manager and warned that they were not to participate in any discussion of the Union during working hours. Yet it was freely admitted by witnesses for the respondent and the Association that a week or so later most of the formative plans for the Association were made by, and that numerous applications were secured from, employees gathered at the fountain; and Stout testified that during the Association campaign he saw Hicks give application blanks to the clerk at the fountain. Ponzio himself. was one of the organizers for the Association.' Nowhere does it, appear that the respondent raised any objection to such activity. On the evening of April 9, at a meeting of the Association held at the Knights of Columbus Hall, the constitution and bylaws were adopted and officers were elected. On April 10, the respondent notified the Board that it had received requests for recognition from "two labor organizations," the Union and the Association, and that the respondent would bargain with whichever could show a majority, "In view of the conflicting claims of the two," it requested the advice of the Board. There is no evidence that the Union had at this time requested recognition of the respondent. On the same day the Union- 1. 11 While it is not clear where the supervisor of the furniture department was at the time' this gathering took place, it may be noted that Cohen, a supervisor, was present. M. E. BLATT COMPANY 1069 filed charges that the respondent had dominated and interfered with", the formation of the Association. The officers of the Association are : Lambert, president; Cohen, vice president; Dilks, treasurer; Finnell, corresponding secretary; and Reger, recording secretary. These five officers, together with Rosen- berg and an employee named Parker 20 constitute the board of direc- tors of the organization. In view of the power vested in the board of directors to enter into contracts with the respondent with the rati- fication only of the executive council 21 we think it significant that Cohen and Reger, supervisory employees of the respondent, are directors. Chairman Millis is of the opinion, moreover, that the respondent's domination of the administration of the Association is additionally evidenced by the presence on this board of Lambert, Rosenberg, Fin- nell, and Dilks 22 Lambert, while he performs the duties of a salesman, is clearly, by reason of his high earnings and long employment with the respondent, on a different footing with the respondent's managerial officials than the' ordinary sales clerks earning $14 or $15 a week. As such he saw fit to inform Blatt, the respondent's president, of the plans for the Association before it was formally organized .23 Rosenberg is in charge• of the respondent's pay roll ; Finnell and Dilks are the respo'ndent's statistician and a bookkeeper, respectively. Although these individuals are not supervisory employees, it is to be noted that they hold' positions of such it chara; ter" as to identify them with the management rather than with the ordinary sales clerks, with whose interest they have little in common. Rosenberg, Finhell, and Dilks, moreover, work in the resp'ondent's executive offices, where their only coworkers are Silberman, a major spokesman for the respondent in matters of its labor relations; Ireland, the office manager;' and Cameron, Blatt's personal secretary. The close identification of these employees with the formation and administration of the Association, must have indicated to the regular store employees that the Associa- tion had the approval of the respondent.24 21 Parker is an elevator man 21 The executive council consisted of the 7 directors themselves , plus 11 delegates repre- senting various parts of the store. 22 The views set forth in the text as to the significance of the participation of these em- ployees represent the opinion of Chairman Millis, rather than the decision of the Board. See Mr. Reilly's concurring opinion. 23 Blatt testified, "He never spoke to me about unions before . We have never had this condition before, and as far as Mr. Lambert talking to me, he is one of our very oldest employees. Any employee can talk to me " 24 See N L R. B v. Tovrea Packing Co , 111 F. (2d) 626 (C. C. A 9), cert den 311 U. S 668; N L. R. B v. American Mfg. Co, etc, 106 F (2d) 61 (C. C. A. 2), affirmed as modi- fied, 309 U. S 629. See also Matter of J G Boswell Coinpany, a corporation, et al. and Cotton Products and Grain Mill Worl crs Union, Local No. 21798, A. F of L, 35 N. L. It. B. 068 ; and Matter of Northwestern Mutual Fire Association, a corporation, et al and Office Employees Union , Insurance Division, Local 22)18, affiliated with the American Federation of Labor, 46 N L R B. 825. 1070 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS On the basis of-the foregoing facts, we conclude that the respondent has interfered with the formation and administration'of the Associa- tion and contributed support to it. Impelling us to this conclusion' are many factors, none of them decisive, but which, taken together, convince us that the respondent's employees were not afforded the full freedom in their choice of- representatives which the Act guar- antees. A major factor is the background against which the formation of the Association took place. The respondent's hostility to the Union, as evidenced by its prior unfair labor practices, was well known to its employees and constituted a powerful influence upon them. ' The respondent, by posting its notice of March 18, 1942, not only nullified the remedial effect- of the accompanying notice which the Board had prescribed, but impressed upon the minds-of its employees 'that its hostility to the Union continued. The selection by the employees of another labor organization while such an atmosphere of hostility to the Union persisted cannot have been free .21 A comparison of the respondent's March 18 notice with the stated purposes of the Associa- tion, indeed,, strongly indicates that the formation of the Association took place in direct response to the suggestions embodied in that notice 26 -The 'disparate treatment accorded' by the respondent to the two labor organizations necessarily 'exerted a further potent influence upon the choice of employees already impressed with the respondent's distaste for the Union. While activity on behalf of'the Union ap- pears to have been, of substantial proportions during the last 2 weeks of -March, the respondent from the first sought to discourage such 25 "Known hostility to one union and clear discrimination against it may indeed make seemingly trivial intimations of preference for another union powerful assistance to it." International Association of llfachsnists v. N. L. R B., 311 U. S. 72. Ri The notice referred to 25 years of "happy relationship of mutual confidence and under- standing ," and stated that the interests of the respondent and its employees were mutual and "can best be promoted through confidence and cooperation ." The purposes of the Association set forth that it was formed "to promote , further, and strengthen the rela- tionship" between the employees and the respondent; to "establish and maintain a spirit of cooperation" between them ; and to take such action at all times "that may promote a .happier relationship and establish a closer bond" between the respondent and the em- ployees ( Emphasis added ). - Nor is there necessarily any inconsistency between the re- spondent 's call for a continuance of "direct dealing" and the formation of the Association -for the stated purpose of "peaceably settling all controversial problems ... in an orderly and dignified manner ," when one considers the active part taken in the formation and promotion of the Association by Creighton , Reger , and Cohen, supervisory employees of the respondent In our opinion, the piospect of dealing with the respondent through em- ployees such as these may well have appealed to the employees as "direct " dealing with the respondent, when contrasted with the alternative of baigaining through the Union, an orgainization toward which the respondent had proved itself hostile. In the opinion of the Chairman,-this reasoning is equally applicable, to the participation of Rosenberg, Finnell, and Dilks, confidential employees in the executive offices, whose opportunity for direct con- tact with either Blatt or Silberman need not be questioned . See footnote 22. M. E.: BLATT.TCOMPANY'T 1071 activity, not only by posting the March 18 notice,'but by attempting; through its supervisors, to put an end to it in a more direct fashion. The respondent's' personnel director herself, just prior to the forma- tion of the Association, stated that such was the respondent's purpose. The first public meeting to organize the Association was held on April 2, and on the following day "the respondent posted a notice stating that the employees need not join any union in order to hold their jobs. While it might appear from the posting ' of this notice that the respondent intended to.remain neutral in any ensuing contest between the Union and the Association for the affiliation of the em- ployees, the respondent's subsequent conduct made it clear to all con- cerned that its true position was not ,one of neutrality. The record shows that during the next 2 business days immediately following the posting of this notice, a very intensive membership' campaign for membership in the Association, which could not have -escaped the notice of supervisory employees, was carried on in the store, par- ticipated in by supervisors, and with the result that by Monday evening, April 6, 3 days after the committee first approached Sals- burg and 2 days after solicitation started in _the store, the Association was firmly established as an organization, with a membership of over 200. The membership campaign was accompanied and followed by other overt activities-verbal notification of meetings, the circulation through the store of copies of the April 7 letter to Blatt, the gathering on the seventh floor to discuss the constitution and bylaws, and' the solicitation of revocations of membership in the, Union-all of which were compressed into the short space, from start to finish, of 7 work- ing days. Yet, despite the 'respondent's asserted policy against union activity during working hours, so strictly enforced against the Union both before and during this period,, there is_ not the slightest evidence that this widespread and flagrant activity by Association supporters met with-any opposition whatsoever from' the-.respon'dent.`Whether or not the respondent's course of,action in stopping discussion;of.the Union in the store during working hours, in itself, constituted inter- ference with the rights of its employees prior to the formation of the Association, the employees must have inferred, as we- do, that the respondent's failure to apply the same strict treatment to Association activity could mean only that the respondent approved the formation of the Association and favored it over the Union. The participation of supervisory employees in its formation and administration gave further assistance to the Association. Creighton, Reger, and Cohen 27 lent their- efforts to the "membership campaign, and the two latter supervisors later became officers of the Association. 27 We agree with the Trial Examiner that Lambert, Hicks, Rosenberg, Schilling, Finnell, Johnson, Brokenshire, Burns, and Shafer, alleged in the complaint to be supervisory em- ployees, do not in fact have supervisory status. 1072 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Their activities did not occur here as isolated incidents in an atmos- phere otherwise free from indications of the employer's choice. The respondent had already, by seeking to discourage activity on behalf of the Union' and by the disparate treatment accorded the, Union and the Association, demonstrated its hostility to the Union and its preference for the Association. In this context the acts of Creighton,. Reger, and Cohen are attributable to the respondent and constituted additional interference with the freedom of the employees in choosing a represen- tative.28 In the opinion of the Chairman, the activity of Lambert, Rosenberg, Finnell, and Dilks in promoting the Association is also, under the circumstances present here, attributable to' the respondent. Nor can the posting of the April 3 notice absolve the respondent from liability for the situation brought about by its hostility to the Union, in its disparate treatment of the two organizations, and the par- ticipation of supervisory employees in the formation of the Associa- tion.29 It may be noted, moreover, that while this notice repeated the statement of the earlier notice, that no,elnployee need join any organi- zation in order to continue in the respondent's employ, it did not, like the earlier notice, carry the additional admonition that the respondent preferred to, have. its employees, deal directly with, it, rather than through any labor organization. It seems clear, from the. whole rec- ord, that as long-as the,Union'was the,only organization. seeking to en- roll the respondent's employees, the respondent impressed upon the employees that it preferred the, continuation of a "happy relationship" in which labor organizations played no part, and sought to discourage any activity in,the store on behalf of the Union. But, with the appear- ance of the Association, the. respondent's preference, for dealing "di- rectly" with its employees, and, its insistence that union, activities be carried on, only outside the. storeseemed to end. In view of our findings set forth above, we are unable to agree with the. Trial Examiner that the. respondent preserved. a, neutral attitude toward the competing labor organizations and, hence, did,not.unlaw- fully assist the Association. Und' i all:the•circumstances, we find. that the respondent has dominated and interfered with the formation and administration of the Association, and, contributed support to it, thereby interfering' with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 28 International Association of Machinists , etc. v N L R B , 311 U S 72 28 "The right freely to organize w ithout coercion or intimidation is an empty one, unless there is authority under the statutory scheme to safeguard it, and the necessity for doing so, calls for more appropriate action by the employer than mere declarations of neutrality and impartiality , even though in good faith proclaimed " Consumers Power Company v. N L. R B , 113 F. (2d) 38, 44. The explanation offered by the respondent for the posting of this notice, moreover , leaves as in considerable doubt as to whether the respondent's ti ue intent was to assume a neutral position. M. E. BLATT COMPANY 1073 C. Other alleged interference , restraint, and coercion 1. Alleged disparagement and surveillance During March and April, two of the organizers of the Union, Wil- liam Abramoff and Charles Howell , engaged in the distribution of union literature at the employees ' entrance situated at the rear of the respondent 's store. Abramoff and Howell testified that on each of these occasions . the respondent 's superintendent , Aaron Rosenberg, appeared at the entrance and, in the presence of other employees, called the organizers "racketeers" and "gangsters" and stated that the Union was an "un-American " organization . Rosenberg admitted he was present and observed the distribution of union literature in this period. He testified that he was normally present at the entrance during the morning and evening hours ' when the employees entered and left the store. He denied that he ever made the statements attrib- uted , to him by Abramoff and Howell . On one occasion , according to Rosenberg , he merely asked the two organizers to stand away from the doorway in order not to block the passage of employees leaving the store. Moreover , Frank Brenner , an employee , who observed Abramoff and Howell distributing literature on' various occasions during this period, denied that Rosenberg made the statements attrib- uted to him. Elmer Paulin, in charge of the delivery of furniture by the respondent, was also present during one of the times that Rosen- berg allegedly addressed the union organizers in disparaging terms. He, denied that any such , statements were made. None of the, "many" employees in whose presence , according to Abramoff , such statements. were made were called to testify. In all of the circumstances , and from his observation of the witnesses , the Trial Examiner did ' not credit the testimony of Abramoff and Howell in this regard, nor do we. We, find, as did the Trial Examiner, that Rosenberg did not make the statements attributed to him • by Abramoff and Howell. Abramoff and Howell also testified that on each of several occasions when they were walking through the respondent 's store, Rosenberg followed them about from department to department . Eloise Skelly, one of the salesgirls, testified that in the period in which she wore her union button in the store Rosenberg followed her every time she left her department , and that on one occasion he stared at her while she was making a purchase . Rosenberg admitted that he met Abramoff and Howell in the store at various times. He denied that he, ever followed them or any opt the employees about. The uncontroverted evidence establishes that Rosenberg's duties as superintendent take him through the store from 10 to 15 times a day. It would not, 513024-43=vol. 47-68 1074 DECISIONS OF NATIONAL', LABOR. RELATIONS BOARD therefore, appear extraordinary that. Rosenberg should encounter Abramoff and Howell in various departments of the store and that he might seem, in their view, to be following them when in fact engaged upon regular business. This would also be true in the case of Skelly. Many, of the employees wore union buttons. Nor was Skelly other- wise an outstanding figure in the union drive. In our opinion, as in that of the Trial Examiner, the evidence is too speculative and insub- stantial to warrant a finding that Rosenberg deliberately followed Abramof,'Howell, and Skelly and kept them under surveillance. 2. The alleged discriminatory, transfer of Dorothy Reitzler Pursuant to the order ' of the Board issued February 14, 1942,30 Dorothy Reitzler, an active member of the 'Union, was reinstated to employment with the respondent on or about March 25, 1942. At the time of her reinstatement, Reitzler was told by Elizabeth Byers, the respondent's personnel director, that she was to be stationed at the will-call desk of the store upon a permanent basis. Reitzler worked at the will-call desk with Georgianna Hicks, the only other employee at the desk. Hicks had worked at the desk more than 2 years. In short order considerable friction developed between Reitzler and Hicks. Reitzler was an active proponent of the Union. Hicks became one of the leaders in a movement to form the Association. Both, the evidence establishes, engaged in solicitation and other organizational activity in and about the store during working hours. Each took exception to the activity of the other. Reitzler confronted Hicks with an accusation that she had been assigned to the will-call desk so that Hicks could watch her rind report her union activity to the respondent. Hicks testified that Reitzler neglected her work as a result of union activity, thereby making it necessary for Hicks to do more than her proper share of the work. There was no evidence that the respondent was aware of any difficulty between the two girls in this period. On April 4, Byers, the personnel director, asked Reitzler to substi- lute as cashier in the lingerie department for a week in order that she might grant the request of the regular cashier for leave. Reitzler consented. She worked as cashier from April 6 for about 2 or 3 days when she became ill and was away from work for the remainder of the week. On April 13, Reitzler reported for work and was directed by Byers to 'return to the will-call desk. Reitzler was, on duty for about 15 minutes when Byers came to the desk and advised her that she would have to find another place in the store for her because Hicks refused to continue to work with her. Byers explained to 81 See footnote 1, supra. M. E. BLATT COMPANY 1075 Reitzler that she could' not transfer Hicks because Hicks had been at the will-call desk for a considerable period and was fully familiar with the work, while Reitzler was entirely new in that position. Byers advised Reitzler, further, that'the only reason Hicks had assigned for refusing to work with her was that there was a "personal" difference between them. At the hearing, Hicks testified that in addition to reasons of a personal character, she refused to continue working with Reitzler because Reitzler 'neglected her duties in order to engage in union activity, leaving Hicks to shoulder the burden of work at the desk. According to the undontroverted testimony, of Hicks, however, she never advised Byers that Reitzler's union activities or neglect of work was one of the reasons she would not work with Reitzler. The evidence is insufficient to -sustain a finding that the transfer of Reitzler from the will-call desk to the position as cashier was related to any activity by Reitzler on behalf of the Union. So far as appears, Byers' action in transferring Reitzler was dictated only by a 'desire to avoid friction of a personal character between.Reitzler and Hicks. The evidence discloses that Byers was not aware of any difference between the two employees based upon Hicks' disapproval of Reitzler's union activities. With knowledge only that Hicks, an employee of more than 2 years experience at the will-call desk, would not work with Reitzler, who was totally new at the desk, for reasons personal to Hicks, it would appear to be only normal conduct on the part of Byers to transfer the latter.31 The transfer did not effect any reduction in Reitzler's salary; nor does the evidence disclose that the position to which Reitzler was transferred was less desirable in any other way. * The record, moreover, does not show that any purpose. by the. respondent' to interfere with the Union or union activities would'be achieved by such transfer. - In all of the circumstances, we find, as did the Trial Examiners that the transfer of Dorothy Reitzler was not discriminatory and that by such transfer the respondent did not interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the, respondent set forth in Section III.A and B, above, occurring in connection 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 si It was contended at the hearing that Hicks was a supervisory employee , and that her conduct in securing the transfer , Iin part because of Reitzler 's union activities, is attribut- able to the respondent As stated above '(see footnote 27) we agree with the -Trial Examiner , that Hicks is not a supervisor. 1076 DECISIONS -OF NATIONAL' LABOR RELATIONS BOARD several States and tend to lead to labor disputes burdening and' obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order the respondent to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it. We have found that the Association is not the free choice of the employees and as a consequence it is incapable of representing the employees for the purposes of collective bargain- ing. In order to effectuate the policies of the,Act and to free the employees of the respondent from such domination and interference, we shall order that the respondent refrain, both now and in the future, from recognizing the Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish the Association. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Retail Clerks International Protective Association, Local No. 1358, affiliated with the A. F. of L:, and Organized, Workers' Asso- ciation of the M. E. Blatt Co. of Atlantic City, N. J., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering"with the formation and admin- istration of the Association and contributing support to it, the respondent has engaged and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act.' 4. The foregoing unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1). of the Act by disparaging the Union, by engaging in surveillance of union members or leaders, or by dis- M. E. -BLATT COMPANY 1077 criminatorily transferring Dorothy Reitzler from her position-at the will-call desk. ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire` record in 'the case, and. pursuant to Section 10 (c) of the National- Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, M. E. Blatt Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Organ- ized Workers' Association of the M. E. Blatt Co. of Atlantic City, N. J., or with the formation or administration of any other labor organization of its employees, and from contributing support to said' Association or to any other labor organization of its employees, and completely disestablish the Association. - - (b) In any other manner interfering with, restraining, or coerc- ing its 'employees in the exercise of the ,right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. - 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : I (a) Withhold recognition from and refrain from recognizing Or- ganized Workers' Association of the M. E. Blatt Co.. of Atlantic City, N. J., • as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Post immediately in conspicuous places in and about its store in Atlantic City, New Jersey, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating ('1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a') and (b) of this Order; and (2) that it will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the respondent dis- paraged the Union and its members, engaged in surveillance of union members or leaders, or discriminated against Dorothy Reitzler by transferring her from her position at the will-call desk. 1078 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD -MR. FPM: M. LEISERSON- took no part•in the consideration of the above decision and order. MR. GERARD D. REILLY, concurring : I concur in foregoing Decision and Order. I disagree with the, Chairman, however, that the finding should rest in any degree upon the participation of Lambert, Rosenberg, Finnell, or Dilks. Not only were these employees without supervisory status, but there is insuffi- cient evidence to convince me that, their participation was either directed or authorized by the management. In the absence of one or the other of these factors, it is my opinion that the respondent cannot be held answerable for their activities. • The record shows, however, that Reger, Cohen, and Creighton, em- ployees undeniably of supervisory status, took an active part in promoting the Association. Two of these supervisory employees now_ hold office in it. Byrnes, one of the respondent's buyers, witnessed activity on behalf of the Association without reprimanding the par- ticipants, whereas advocates of the Union were held to strict compli- ance with the rule against solicitation. All of this conduct, attributa- ble to the respondent, took place, moreover, against a background of hostility to the Union, and formed part of the larger pattern of dis- parate treatment of the two labor organizations. For these reasons, I-concur in the result reached by the Chairman, and agree that ,the Association should be disestablished.