Weiss & Geller, New York, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1943

51 N.L.R.B. 796 (N.L.R.B. 1943)

In the Matter of WEISS & GELLER , NEW YORK, INC., and LOCAL 20,
AMERICAN ADVERTISING GUILD, U. O. P. W . A. (C. I. 0. )
Case No. C-2607.Decided July 28, 1943
DECISION
AND
ORDER
On May 7, 1943, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in, and was engaging in, certain unfair labor practices, and
recommending that ' it cease and desist therefrom and take certain
affirmative action, as set forth in a copy of the Intermediate Report an-
nexed hereto. Exceptions were thereafter filed to the Intermediate
Report by the Union and the respondent, and the respondent also filed
a brief in support of its exceptions. On July 8, 1943, oral argument
was held before the Board. The Board has considered the rulings
made by the Trial Examiner at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions and recommendations made by the Trial Exam-
iner with the following additions:
It appears from the record that on January 8, 1943, Mrs. Doris Jones
became a mother. We shall order the respondent to make Jones whole
for any loss of wages from March 7, 1942, the date of the discrimination
against her, to November 8, 1942, a 'date when Jones might reasonably
be expected to have left her work as a result of her pregnancy, and
from February 8,1943, a date when normally she would have been again
available for employment,' to the date of the respondent's offer of
reinstatement.
' It has been held under the New York State Unemployment Insurance Law that, in the
absence of proof to the contrary, a claimant fot unemployment insurance benefits is
considered unavailable for employment after the seventh month of pregnancy, Unemploy-
ment Compensation Interpmetation Service, 2877 N. Y. A., Benefit Series, Vol. 3, No. 3,
pp. 71-72. The New York State Labor Law prohibits the employment of women in certain
occupations within 4 weeks after delivery Consol Laws , Labor Lazo, Sec 148. The
maternity leave standard suggested by the Children's Bureau of the U. S Department of
Labor, after consultation with a number of industrial health and labor experts, is 6
weeks befoie and 2 months after delivery, Standards for Maternity Care and Employment
of Mothers in Industry, July 1942.
51 N. L. R. B., No. 125.
796
WEISS & GELLER, NEW YORK, ircC. 797
In affirming the Examiner's conclusions with respect to Helayne Ross,
we find that neither Geller nor Model made a bona fide offer to Ross of
other employment. -
ORDER
Upon the basis of the above findings of fact and upon 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, Weiss & Geller, New York, Inc., New York
City, and its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Local 20, American Advertising
Guild, United Office and Professional Workers of America, affiliated
with the Congress of Industrial Organizations, or in any other labor
organization of its employees, by discriminating with regard to their
hire or tenure of employment, or any term of condition of employ-
ment;
(b) In any other manner interfering with, restraining, or coercing
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 :
(a) Offer to Doris Jones immediate and full reinstatement to her
former or substantially equivalent position or to one which she is
qualified to fill, without prejudice to her seniority and other rights
and privileges;
(b) Offer to Helayne Ross immediate and full reinstatement to a
position substantially equivalent to the one that she held at the time
of her discharge, provided that such vacancy exists, without preju-
dice to her seniority and other rights and privileges, or in the event
no such vacancy exists, place her upon a list for preferential hiring,
in the manner provided in the Section of the Intermediate Report
annexed hereto entitled "The Remedy";
(c) Make whole-Doris Jones for any loss of pay she has suffered
by payment to her of a sum of money equal to the amount which she
normally would have earned as wages during the period from March
7, 1942, to November 8, 1942, and from February 8, 1943, to the date
of the respondent's offer of reinstatement, less her net earnings during
such periods, and less her 2 weeks' severance pay ;
(d) Make Helayne Ross whole for any loss of pay she may have
suffered because of respondent's discrimination against her as to her
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire and tenure of employment in the manner set forth in the Section
of the Intermediate Report. annexed hereto entitled "The Remedy";
(e) Post immediately in conspicuous places in its New York office,
and maintain for a period of at least sixty (60) consecutive days from
tlie, date of posting, notices to its employees stating : (1) that the re-
spondent will not engage in the conduct from which it is ordered to
cease and, desist in paragraphs 1 (a) and- (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's
employees are free to become or remain members of Local 20, Ameri-
can Advertising Guild, United Office and Professional Workers of
America, and that the respondent will not discriminate against any
employees because of membership or activity in that or any other
labor organization ;
(f) Notify the Regional Director for the Second Region, in writing
within ten (10) days from the date of this Order what steps respon-
dent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED -that, the complaint be, and it hereby
is dismissed, insofar as it alleges that the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (3) of the Act with respect to Sylvia Rosenthal.
INTERMEDIATE REPORT
Mr. Sidney Reitman, for the Board.
Drechsler & Leff, by Mr. Herbert Ferster, of New York City, for the respondent.
`Boudin, Cohn & Gliclcstein , by Mr. Leonard B. Bondin, of New York City for
the Union.
STATEMENT OF THE CASE
Upma a, charge duly filed an March 28, 1942; by Local 20, American Advertising
Guild, United Office and Professional Workers of America, affiliated with the
Congress of Industrial Organizations, herein called- the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Second Region (New York City), issued its complaint dated February 22, 1943,
against Weiss & Geller, New York, Inc., New York City, herein called the
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance: (1) that the respondent did, on or about March 7, 14, and 21, 1942,
respectively, discharge employees Doris Jones, Sylvia Rosenthal and Helayne
Ross, and has since those dates refused to reinstate the said employees for the
reason that they joined or assisted the Union or engaged in other concerted
activities for the purpose of collective bargaining; (2) that the respondent
from on or about February 27, 1942, vilified and disparaged the Union, questioned
employees about their union membership and urged and warned employees to
refrain from becoming or remaining members of the Union ; and (3 ) that by
0
WEIS'S & GELLER, NEW YORK, INC. 799
these acts the respondent interfered with, restrained, and coerced its employees
in the exercise of their rights as guaranteed in Section 7 of the Act.
The respondent filed its answer on March 4, 1943, wherein it admitted the
jurisdictional allegations of the complaint, denied the commission of the unfair
labor practices alleged and pleaded affirmatively that the positions formerly held
by Jones and Ross had been abolished; that Jones, Rosenthal, and Ross obtained,
or could have obtained by use of reasonable diligence, substantially equivalent
employment, that they declined and' refused offers thereof, and hence were no
longer employees within the meaning of the Act.
Pursuant to notice, a hearing was held from March 15, 1943, to March,2a,.1943,
at New York City, before Mortimer Riemer, the undersigned Trial Examiner,
dilly designated by the Chief Trial Examiner. The Board, the respondent, and
the Union were represented by counsel and all participated in the hearing: Full
opportunity to be heard, to' examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties.
At the close of the Board's case the respondent moved that the complaint be
dismissed. This motion was denied. At the close of the hearing both the Board
and the respondent moved to amend the complaint to conform to the proof insofar
as it related to matters of form. The motion was granted. Decision was re-
served on the respondent's motion to dismiss, and this motion is dealt with as
indicated hereinafter. All parties were granted an opportunity to argue orally
before the Trial Examiner but waived this privilege. The parties were also given
the opportunity and a time was fixed for the filing of briefs with the Trial Ex-
aminer. Thereafter the Union alone filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Weiss & Geller, New York, Inc., the respondent herein, is a New York corpora-
tion having its office and principal place of business in New York City, where it
operates an advertising agency. The respondent prepares copy and art for pub-
lications in which its clients' advertising appears. During the year 1942, the value
of advertising placed by the respondent for clients with offices outside the State
of New York approximated $500,000. In the same year, approximately one half
of the respondent's clients maintained offices in States of the United States other
than the State of New York. Approximately all of the respondent's clients manu-
facture, sell, and distribute products in interstate commerce. The respondent
published or caused to be published, during 1942, approximately 100 percent of
the value of its clients' advertisements in approximately 600 newspapers and
magazines having a national circulation. It uses radio also as a media for
advertising clients' products. The respondent admitted that it is engaged in
interstate commerce within the meaning of the Act.
.At the time of the hearing the respondent used 100 to 150 newspapers and
magazines of national circulation for the purpose of distributing the copy and
art of-its clients and employed 14 employees including all officers and executives.
II. THE ORGANIZATION INVOLVED
Local 20, American Advertising Guild, United Office and Professional Workers
of America, is a labor organization affiliated with the Congress of Industrial Or-
ganizations, admitting to membership employees of the respondent..-
800 DtFCISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges; interference, restraint and coercion
Preliminary and apposite to a consideration of the three discharges herein,
are events occurring prior thereto, particularly in February, 1942. Hereafter
each discharge will be considered separately but in relation to this preliminary
discussion.
Max A. Geller, the respondent's president, had been the treasurer of Weiss
& Geller, Inc., an Illinois corporation with its principal office in Chicago. In
January, 1940, Geller opened a New York office for Weiss & Geller, Inc. There-
after, the agency acquired accounts of substantial importance in the advertising
field. In December 1941, the respondent corporation, Weiss & Geller, New York,
Inc:, was organized with Geller as president and principal stockholder. The
incorporation of the respondent did not affect the nature of the services formerly
performed by Weiss & Geller, Inc., and the latter's employees in New York
continued their employment with the respondent corporation.
At the end of January 1942, the respondent finished its operations with a
net loss of some four or five thousand dollars. Contributing in a small degree
to the loss In net operations were payments in overtime and for absences of
some ,of the employees. In an effort to reduce this item of expense, Geller
issued an inter-office communiccation dated February 13, 1942, to the office
staff wherein he stated :
I am opposed to any of the girls working beyond the required hours unless
some pressing need demands it, in which case Mr. Model' will issue the
instructions. Where such over-time work is done, it will be paid for in
accordance with the requirements of the law.
In like manner, because I have found that our operations have been
clogged and otuside help has been called in-at great expense to the agency-
because of frequent absences, I have concluded that effective today, all
absences will be charged to the person absent and the amount deducted
from their salaries.
Prior to the issuance of this memorandum, some of the employees had filled
their time sheets indicating weekly hourly' employment in excess of 40• hours.
Model had questioned the accuracy of these figures and in some cases disallowed
overtime pay after consultation with the employees involved and their agree-
ment , according to his testimony, that they had not in fact exceeded 40 hours of
work.
Apparently, however, when the respondent felt overtime was justified, payment
was made therefor. There is no evidence that prior to February 13, 1942, the
respondent had docked employees for absences due to illness or other factors.
The notice therefore indicated that, in the future, overtime payments would
be made only when approved by Model and that absences would be charged
against the employee.
Geller's memorandum served to bring to a head employee dissatisfaction
with the overtime problem. According to Doris Jones' testimony, which the
undersigned credits, she and other employees had worked overtime in the weeks
preceding February 13, 1942. The record discloses that, during this period,
the agency was "overburdened with work," and in January, 1942, Jones and
Sidney G. Alexander, radio and media director, urged upon Geller the hiring of
additional personnel. The loss of one individual from the media department
" Mark Model, the respondent 's production manager.
WEIS'S & GELLER, NEW YORK, INC. 801
added to the burden. Geller, however, was reluctant to hire extra help because
of the loss of a substantial account.
After the overtime notice was distributed, Jones was instrumental in ar-
ranging a meeting of the employees, thereafter held on Monday, February 16,
1942, at the 42nd Street Cafeteria. This meeting, herein referred to as the
cafeteria meeting, was attended by Jones, Sylvia Rosenthal, Helayne Ross, Helen
Pet, Belle Kramer, and Rhoda Goldstein. Thereat the employees considered
what should be done about Geller's memorandum, which they considered unfair.
Jones advocated seeking the assistance of the Union. Goldstein, who was sec-
retary to three of the respondent's account executives, opposed'doing "anything
as drastic as going to the union," and instead suggested that the proper thing
for the employees to do would be to lodge individual protests with Geller. It
does not appear that any employee, following this meeting, individually ap-
proached Geller.
According to the testimony of Ross, on the afternoon of February 18, 1942,
Geller approached her while she was at work and stated, "A fine thing, my
employees meeting behind my back." A few minutes later Geller called Ross
to his office and asked her to read a letter, which he had received from Sam
Drantiff, the respondent's office boy.' Ross testified further, that after reading
the letter, Geller stated that lie ought to have discharged all those who, like
Drantiff, had refused to sign the overtime memorandum ; that eventually every-
one that Geller "let go" would write such letter, bespeaking their loyalty and
seeking reinstatement. He then asked Ross why she and others had not
initialed the memorandum.
Geller's testimony respecting this incident is illuminating. He denied that
he said anything to Ross about employees meeting behind his back, testifying
that at that time he did not know of the cafeteria meeting.' He admitted, how-
ever, that he showed Ross the Drantiff letter' The undersigned finds that Ross'
version of the entire conversation is substantially correct and that Geller in
fact knew that some of his employees had attended the cafeteria meeting.
Moreover, the undersigned does not believe that Geller's sole purpose in calling
Ross to his office was to have her read Drantiff's letter. The undersigned be-
lieves, rather, that Geller had a larger purpose in view, to warn his employees
that he looked with disfavor on any action which he interpreted as personal
disloyalty to him.
2 Geller had discharged Drantiff for his refusal to initial the overtime memo on February
13 On February 17, Drantiff wrote Geller, beseeching an interview, stating that he had
been a "fool," asking for a "second chance, and if not a second chance, an opportunity"
to speak with Geller. lie was subsequently rehired. Drantiff, at the time of the hearing
was 17 years of age.
3 Geller testified that he first learned of the cafeteria meeting about March 16, 1942,
from Belle Kramer, who did not mention the Union.
' In this connection, be testified :
I showed her the letter and said "Here, Helayne, I think this is a very
interesting letter. You know I fired the kid because he didn't show me the courtesy
of acknowledging a memorandum that I sent out. I send out frequent memoranda and
any man or any woman that fails to acknowledge It, that what is in the memorandum
has been read-," and I said, "The kid failed to acknowledge it for a couple of weeks,
so I told Model to fire him " And I said, "Look at the cute letter he wrote me about
the fact that'just to talk to me would be a privilege, and that he has made a terrific
mistake and' he was sorry"
I thought the letter was cute and I said to Ilelayne that is why I took him back,
and that is about the extent of the conversation.
r t s s , a' t s
I may have used the word "loyalty," . . . I think I have used the word "loyalty"
practically all my life.
802 DECISIONS OF NATIONAL LABOR RELATIONIS BOARD
Following the cafeteria meeting on February 16, Jones arranged for a second
meeting of the employees to be held at the union headquarters on February 24,
1942. Those who had been present at the cafeteria meeting, plus additional
employees, attended this second meeting.' Jones and Rosenthal were union
members at this time. The others attending the meting joined the Union that
night and made plans to organize the balance of the respondent's employees eli-
gible for membership in the Union. The next union meeting, prior to the first of
the discharges, was held on March 5, 1942. It was attended by Jones and Ross
among others.
1. The discharge of Doris Jones
Jones was hired in January'1940 by Weiss & Geller, Inc., as a general 'office
secretary at a salary of $25 a week' The office at that time consisted of Geller,
Alexander, who became media and radio director, and later vice president, Model,
production manager, Jones and two clerical employees. The office acquired new
accounts, Jones gathered experience in her work, and in the fall of 1940 she
became Alexander's secretary and his assistant in media and radio work. Jones'
work during this period was to prepare media schedules, issue publicity releases,
and handle general correspondence, all under Alexander's direction.
In December 1940, Jones' salary was raised to $28 per week and about this time
certain of her recommendations to improve and facilitate the work of the media
department were adopted. About November 1941, Jones sought a $10 raise from
Geller. He told her that her work merited this increase but due to the loss
of the substantial Axton-Fisher Tobacco Company account, a compromise would
have to suffice and Jones' salary was raised to $33. The increase was accompanied
by a note from Model congratulating Jones on her "splendid work." On Febru-
ary 1, 1942, Jones was promoted to the position of Assistant Media and Radio
D rector, and the respondent issued an appropriate release, which appeared in
the press, noting the fact' Alexander had complete confidence in Jones and
permitted her to sign his correspondence.' He testified that she was capable and
efficient. At a Christmas party in 1941, given by Columbia Pictures Corporation,
one of the respondent's accounts, which was attended by Alexander and Jones,
Alexander praised Jones, placing her "on a pedestal." At the hearing, Alexander
sought to deprecate this admitted praise, testifying that this was "the usual pro-
cedure to accord a man in your agency; by saying everyone is [a] cock-eyed
wonder." The undersigned concludes and finds on the basis of all the testimony
that Jones was, as Alexander testified, a capable and efficient employee, and one
to whom salary increases and promotions were given in recognition of her
ability.
Jones was a member of the International Union before joining the staff of
Weiss & Geller, Inc. Thereafter, she transferred her membership to the Ameri-
can Advertising Guild, the Union herein. Even before the cafeteria meeting
which was the first sign of concerted activity, Jones had espoused the cause of
trade unionism among the employees. Jones was the leading spirit, in arranging
both the cafeteria meeting on February 16 and the meeting held at the Union's
office on February 24. She invited those who attended the latter meeting to
join the Union. Following this meeting Jones was assigned to speak to employees
' Goldstein, however, who was opposed to the Union, did not attend.
6 Jones had about 10 months ' previous experience in the advertising business. Jones is
graduate of Cornell University with a B. A. degree, having majored in English literature.
'r Geller testified that he created this title despite the fact that Jones "knew nothing
about radio." At another point Geller testified that the promotion was in recognition of
Jones' "good service as a secretary, and not in recognition of any knowledge she had of
media" ; that it was intended "to give her a feeling of confidence" and "to encourage her."
WEISS & GELLER, NEW YORK, INC. 803
who were not present at either meeting. Jones talked to her co-workers about the.
Union, for the most part reserving these discussions for the ladies' roam. When+
Jones' own media department had been "sewed up" she solicited the membership,
of employees working elsewhere. Jones also invited two of the executives' sec-
retaries to attend meetings. The undersigned was favorably impressed by Jones'
hearing and demeanor as a witness, her conduct on the stand, her sincerity of
purpose, and her courtesy and candor in response to questions. It is abundantly
clear on the basis of this record that she was, and remained during the term,
of her employment, the key figure and leading spirit in the Union's effort to
organize the respondent's employees
The complaint alleges the discriminatory discharge of Jones on March 7, 1942,
because of her union membership and concerted-activities.' At the hearing, Geller
gave three reasons for the discharge of Jones, viz, errors committed in servicing.
the Columbia Pictures Corporation account, the so-called Nedick's incident, and
Jones' memorandum of March 1, 1942. The undersigned turns therefore to a
consideration of these matters urged by the respondent as a defense to, and justi-
fication for, the discharge of Jones.
In June 1941, Weiss & Geller, Inc., was appointed advertising counsel for
Columbia Pictures Corporation, herein called Columbia. In September or October,
1941, Jones, in addition to her other duties, began work on this account. Her
responsibility was to receive information from Columbia over the telephone, give
this information to other employees in the media department, and to supervise
in general the preparation, from other data and information maintained in the
respondent's office, or Columbia's cooperative advertising schedules. These,
operations were entirely mechanical but did involve precise attention to details
of newspaper advertising rates, lineage requirements and standards, and Co-
lumbia's relations with motion picture exhibitors throughout the country. From
time to time Columbia complained about inaccuracies occurring in the handling
of the account In December 1941, Alexander cautioned his department to use.
greater care in its' work because too many mistakes were being made. In Janu-
ary 1942, Jones commented to Geller that Columbia was strict in its attention
to detail and had detected even minor errors and that additional help was needed
in the media department. Apparently Alexander also felt errors were due in
part to understaffing. About this time Alexander again conferred with his staff
in an attempt to reduce the errors in servicing the Columbia account. It is plain
from exhibits introduced in evidence that errors were made by media department
employees in the preparation of Columbia's schedules. Jones, who exercised a
general over-all supervision on the detail work of this account, acknowledged
that errors occurred. Geller likewise knew of the errors, for he testified that
Alexander and,Joseph Cohn, the respondent's Columbia account executive, had
told him of Columbia's "minor complaints."
The matter of errors was brought to a head by a fetter written to Geller on
February 17, 1942, by David A. Lipton, Columbia's publicity and advertising
director. In this letter Lipton complained of the respondent's services; of
inaccuracies "in the preparation of cooperative newspaper set-ups"; and stated
that the criticism was no reflection on any individual but that the problem was
one of "proper organization." Lipton mentioned that he had "had a number of
conversations regarding the proper handling" of the account.
• The,first thing that Geller did upon receipt of the letter was to show it toJones.
After she had expressed her regret, Geller said he would talk to -her about. it
later. He returned to his office and called Alexander and Cohn into conference,
telephoned to Lipton, and sent Cohn to Lipton's office to ascertain the cause of
the complaints. Lipton told Cohn that there had been a misrouting of advertis-
540612-44-col 51-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOAiRD
ing material to theatres and to newspapers, that orders were sent out late and
closing dates missed Cohn testified that Lipton said that he had no fault to
find with Geller, Alexander, or himself, but he did criticize the way the account
was administered. Geller testifield that Alexander told him the fault was due
entirely to the way Jones had handled mechanical details. Geller testified further
that Lipton told him that Columbia had listed all of the errors, 47 in all, and lie
was under the impression that Lipton told him that Jones was responsible for
the errors. Lipton, in a statement introduced in evidence, denied naming Jones
as the party responsible for the errors, or mentioning the number of errors, for,
the reason that he had no exact knowledge of the details. No one ever saw the
alleged list of 47 errors except Columbia employees. The respondent made no
effort to check this alleged list to determine which of the respondent's employees
had made the mistakes and to see how many of the errors were attributable to
the respondent rather than to Columbia. The undersigned believes it highly
improbable that Alexander would place the entire blame on Jones for the Colum-
bia mistakes. The plain inference from Alexanders testimony concerning his staff
conferences is that he believed his whole department was at fault. The under-
signed does not credit Geller's testimony that Alexander told him that Jones
was entirely to blame for these failures.
That the respondent, particularly Geller, was disturbed on receipt of the letter
from Columbia is understandable. This is manifested by the letters written
Columbia by Cohn and Geller, on February 19 and 20, to assure it that everything
would be done to eliminate the mistakes. However, the respondent took no action
to discipline Jones. From the voluminous testimony relating to Columbia's letter
the undersigned finds that the respondent sought merely to assure Columbia that
Geller, Cohn, and Alexander were not responsible for the mistakes, and did not
at that time place the responsibility on Jones. Indeed, Jones testified without
contradiction and the undersigned finds, that following receipt-of the letter she
-was told by both Alexander and Cohn not to worry about it and that the trouble
would be eliminated.
As a result of the Columbia letter, Geller decided to obtain additional help and
he instructed Alexander to seek out an experienced man in radio and media work.
Around February 28, Alexander interviewed Lester Mallets, an individual who had
previously worked for the respondent. Jones, fearful that the hiring of Mallets
would jeopardize her own future, spoke to Alexander, who assured her that her
position as assistant radio and,media director was in no danger . She testified
further, and the undersigned finds, that Alexander also told her that she "was
head and shoulders above the other girls in the office" and that "people in the field
spoke about [her] so highly."
On the afternoon of February 25, 1942, Geller told Jones that, he had an appoint-
ment the following morning with executives of Nedick's, one of the respondent's
accounts. He asked Jones ,to get him the short term rates that would have to be
paid for cancelling Nedick's advertising contracts in the "News" and "Mirror."
The following morning Jones told Geller that she did not have the information
necessary for an exact figure but that if he wanted a rough estimate , she "would
have it ready in a minute." . Geller, who was indisposed at the time, abruptly told
Jones he was "disgusted" with his "whole organization" and departed for Nedick's
after leaving instructions with Jones to have, Alexander call him when he came in.
Shortly after Alexander arrived at the office, he was told by Jones what Geller
wanted, and in 10 to 15 minutes he calculated the rough estimate and phoned it to
Geller for his Nedick's conference. Jones' explanation for her failure to give
Geller the requested information was her reluctance to furnish an approximate
figure rather than an exact estimate . She admitted That the files contained suffi-
WEISS & GELLER, NEW YORK, IN-C. 805
-cient information and that she could have furnished Geller an approximate state-
ment but hesitated to do so without Alexander's approval. Jones testified about
this incident only in rebuttal, it having been developed in the respondent's case as
one of the reasons for Jones' discharge. There is no substantial dispute about the
matter. It is clear that Geller sought certain information and Jones did not supply
the information that Geller wanted for his conference. Whether Jones was
justified or not in hesitating to furnish an approximation need not be decided.
The real question is whether this incident can justifiably be said to have 'entered
into Geller's determination to discharge her or whether it is an instance of a
situation resurrected to justify in retrospect an otherwise discriminatory discharge.
In late February, Model told Jones that there was need for more technical
assistance in the media department and that Alexander was urging the hiring of
a mail assistant. Jones sought Model's advice as to whether she should prepare
a memorandum for Geller outlining her feelings about the department, the way
it was run, and the cause of its inefficiency. After Jones prepared the memoran-
dum, she showed it to Model who expressed agreement with its contents.
Geller went to his home, ill, directly after his conference at Nedick's on
February 26.8 On March 3, Jones mailed Geller a copy of her memorandum.
This document was, an attempt on Jones' part to justify her own contribution
to the work of the media department,,despite understaffing, which she claimed
was the root of the difficulty therein and the cause of errors. The significant
portion of the memorandum in view of Jones' discharge is the paragraph with
regard to the Columbia account reading as follows :
3. That a written record of errors kept from the beginning of our associa-
tion shows malice and' premeditation on Columbia's part, a political situa-
tion about which I had no fore-knowledge. If I had, obviously, we would
have somehow managed to give the account extra special super care.8
In addition, Jones wrote that it "seems almost incredible" that her "ability
and contributions to this organization should be questioned at this late date."
She called to Geller's attention her work on various accounts since her first asso-
ciation with Weiss & Geller, Inc., and Alexander's words of praise made on
February 28, that she was "head and shoulders above the rest of the girls in
the office, in efficiency, ability and intelligence." The undersigned has found
above that Alexander did in fact-so praise Jones on February 28, 1942.
Geller received the memorandum at his home on March 4. He testified that
when he finished reading it he concluded that there was no place in his office for
Jones. Paragraph 3, quoted in full above, was the portion of the memorandum
which determined, so Geller testified, that he could employ Jones no longer, for
it reflected a frhme of mind in a personal service business which could not be
tolerated. Geller testified further that on March 5, therefore, he telephoned
Alexander and told him that in view of the memorandum, the Nedick's incident,
and because of the Columbia letter described above, Jones was to be discharged
and Mallets hired at a salary of $50 per week. Geller's testimony in this regard
was corroborated substantially by Alexander, who testified also that Geller
stated that he could not tolerate criticism of a client.
According to Jones' testimony which the undersigned credits, Alexander told
her on March 5 that she was to be discharged as of March 15, because Geller
8 He remained there until March 9, 1942 , when he returned to his office.
The Board offered to prove, by cross -examination of the witness Cohn , that there were
two factions at Columbia , one of which had opposed the transfer of its account to the
respondent 's' agency and that this opposition was the explanation for Columbia's assiduous-
ness in "cataloguing" the errors made since the inception of the account. The offer was
rejected.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insisted that a male assistant be hired. She expressed surprise and chagrin
and asked Alexander if it would not be possible for her to continue in the
media department in a lesser capacity at a lower salary. Alexander volunteered
to ask this of Geller. On March 6, Alexander told Jones that he had not yet
spoken to Geller, and on March 7, Alexander told Jones that Geller would not
permit her to remain in any capacity and she was to be dismissed as of that
day with 2-weeks' severance pay. Alexander also told Jones that he would
reveal the real reason- for her dismissal in '2 -months.10
Norma Zaret Brendt was employed during this period as the respondent's
bookkeeper. It was Brendt who made out Jones' final salary check from a
special checking. account. She testified that on Monday, March 9, when Geller
returned; she went--to his office to, ask him how to enter that check and that
Geller replied: "You know Doris Jones has been fired. She tried to organize
this place." She testified further that Geller inquired whether anyone had
"approached or contacted" her about the Union ; that Model who was present,"
interjected that Brendt had been with the respondent such a short time that
the Union "probably didn't bother with her" and Joseph F. Bloom, an account
executive, stated: "Oh, she is probably a C. I. O. delegate." Bloom testified
that he could not recall the event and that he never heard Geller tell Brendt
that Jones had been discharged because of her union activities. Model denied
that any such conversation was held in his presence. Geller denied Brendt's
testimony. Brendt was a highly credible witness and so impressed the un-
dersigned. Model was obviously ill at ease and at times not completely forth-
right in his answers. Bloom was equivocal respecting this incident, and
Geller's denial is not credited by the undersigned, who finds that these re-
marks were made substantially as testified to by Brendt, and that the respond-
ent thereby interfered with, restrained, and coerced the employees within the
meaning of Section 7 of the Act.
On March 9 and 10, Jones returned to the office to complete unfinished busi-
ness and, to ask Model'for a letter of recommendation. Model gave her a flatter-
ing letter which stated inter alea: "Her work on such major advertising accounts
as The' Axton-Fisher Tobacco Company and Schenley Distillers Corp., her in-
telligent handling of the merchandising and media operations, and the leader-
ship which she took in her department, won her rapid advancement. As a
result, she was recently appointed Assistant Media Director of the Agency."
Model told Jones the letter did not do her justice and that lie signed it in "fear"
and trembling." . Alexander told Jones -that-he'-would; give her a -letter 'of recom-
10 Alexander' s version of these conversations' is less detailed and vei y brief. He testified
that on March 6, he called Jones to his office and dismissed her, calling to her attention
the "repeated advice" he had given her "to toe the mark on Columbia." Ile admitted that
becauge of his friendship'for Jones be gave her the "courtesy and decency to say" that, he
would take up her request for continued employment in another capacity. There is no
testimony that he referred Jones' request to Geller. Geller remained at home between
February 26 and March 9, 1942.. While he was there, his office associates were in
frequent contact with Gellei's wife, relaying, through her, Information concerning the
office and Its activities.
11 On Saturday, March 7, Edna Mae Miller was interviewed by Model and Alexander
for the position of secretary to Alexander. During the inteiview, Model urged Miller not
to associate with other employees because there was some "trouble makers in the office';
Model admitted his reference to "trouble makers" but testified that he meant thereby Marie
Medici, the, telephone operator and Rhoda Goldstein, a secretarial employee. The under-
signed does not credit this explanation. There is no evidence to support Model's
charactei izat ion" of''Medici and Goldstein gs "trouble makeis. " Rather the undersigned
believes and finds that Model in effect warned Miller not, to, associate with any union'
members or their activities.
WEISS & GELLER, NEW YORK, INC. 807
mendation provided she resigned formally from the respondent's staff. This
Jones refused to do. Geller when asked for a letter of recommendation told
Jones he would speak to her about it later but he gave her no such letter.12
As heretofore related, Sam Drantiff, the respondent's office boy, had been dis-
charged for his refusal to initial Geller's overtime memorandum. He was reem-
ployed, about a week later and_ was, working for, the, respondent at the time of
the hearing. He testified that on 1Vlarch 11, 1942; Geller`,' called ~him •to' his office
and asked him if he had been "approached'.' by anyone to join a union and told
him that Mrs. Jones "was just fired, and that a few other girls were going to
be fired." He testified further that Geller said that Drantiff was young and had
a great chance "to learn the advertising field" and if he had any problems on
his mind to speak to Geller who would be glad to "settle" them ; that if any of
the girls spoke to Drantiff about anything "that would harm the busi-
ness . . ., any activities," to tell Geller, and when "raise time came around,"
Geller would remember it. Geller's version of this conversation is set forth in
the margin." Drantiff, although young, testified under supoena and impressed
the undersigned as a careful and conscientious witness. The undersigned credits
Drantiff's testimony and finds that Geller inquired as to the union activities of
his employees, suggestively linked Jones' discharge to such activities, and sought
to encourage Drantiff to disclose the nature of continuing union activity by
promise of future salary increases, thereby interfering with, restraining, and
coercing the employees within the meaning of the Act.
On March 12, Jones telephoned `Alexander to inquire whether he had received
a memorandum which she had at his request, prepared for her successors on
procedure for handling the Columbia account. During the course of the conversa-
tion, Alexander told Jones that he had received a phone call from a prospective
employer with reference to Jones, that he had praised her capabilities, and he
inquired whether she would take the position" In that conversation Alexander
said he would disclose the true reason for Jones' discharge in two weeks"
12 This finding is based on Jones' testimony, denied by Geller. Geller testified that it
was the respondent 's practice to give a discharged employee, regardless of cause, a letter
of recommendation Model testified that he spoke to Geller before he gave Jones the
letter, denying, however, that lie signed it in "fear and trembling." The undersigned does
not credit this denial. o
". I had not seen Sam since I- got his letter. I had ordered him reinstated.
That overtime memorandum I sent out came back to me without Sam's initial there, as
you recall. He had been fired. IIe,had.boen rehired and had written the letter
I called him in and I said, "Sam, I want you to know that the letter I got from you
was a cute one. I hkeed it. I ordered you reinstated, and if you have a-good head on
your shoulders, tell me who in God's name asked you not to pay me the respect of
acknowledging a memorandum that is sent out? You know that is sent out every day
of every week "
And Sam said, "well , one of the girls told me not to "
I said, "Do not be a damn fool or pay any attention to the girls. You are a young
boy. You are in this concern. You know it is a growing business , and you are going
places. . . . I am working hard, and you are working hard You have to be
attentive. . . . You know Hulbert Hauser came as an office boy and became an
assistant production manager later on handling the Columbia account. . . . This is
a wonderful place It is a changing business, and you could go places. I started at
the bottom and I climbed up. Do not pay any attention to nonsense. Go on and do your
best " That was the extent of the conversation.
14 It developed subsequently during the hearing that the "prospective employer" was
John Gronfein, a friend of Jones. At her instigation he telephoned Alexander because of
Jones ' suspicion that she had been discharged for union membership and to test Alexander's
reasons for Jones' dismissal and determine what kind of a recommendation he would make.
Gronfein had no such position available for Jones.
15 This finding is based on Jones' testimony , denied by Alexander.
808 DECISIONS OF NATIONAL LABOR RIELATlONMS BOARD
On March 25, Sylvia Elfenbein , the Union 's organizer, called upon Geller in
an attempt to effect reinstatement of the three dischargees . 16 This fact was.
known to Alexander . Jones telephoned Alexander on March 26 and held a
lengthy phone conversation with him. During the conversation , Alexander
told Jones that she was jeopardizing . her future in, the advertising , profession
by pressing charges of discrimination , that the Union representatives who'called
upon Geller were "flunkies ," and that the Union could not help but on the
contrary would hurt Jones. He told Jones that it "doesn't pay to become a
martyr to the cause" and said that if Jones were reinstated "they'd pile" her
with "so much work " that she could not do it and that they would "humiliate and
embarrass" her so that she would be forced to leave. He stated further that
the Columbia letter could be used to justify Jones' discharge despite the fact
that Alexander knew the mistakes were caused by Ross and Helen Pet.34
In analyzing the various conflicts in testimony and the contradictory reasons
for Jones ' discharge it is apparent at the outset that errors and mistakes were
made by the respondent 's agency in connection with the Columbia account. Jones
made no attempt to disguise this fact , and it may well be that she , as the person
who supervised the detail on the account , was thereby responsible in part for
the errors . But Geller and his other executives were aware of the existence
of errors before the respondent received Columbia 's letter on February 18. Even
after the letter was received , Geller made no move to discharge Jones and
it was not until he received her memorandum on March 4 that according to
Geller, he determined that she should be discharged because he believed that
document reflected- a frame of mind inimical to his business interests.ls The
paragraph which aroused Geller had been shown to Model by Jones prior to
its delivery, to Geller . Model expressed no disagreement with its contents 19
On February 19, Cohn, at Geller's suggestion , had written to Lipton :
Occasionally errors can , no doubt, occur. Whether they be through our fault
or through Columbia 's fault is immaterial . Whether the faults occur through
too much pressure and too little time on the part of those with whom , we dead
at Coluoribia is of no consequence . Our Job is to send orders out correctly.
We may err occasionally , for I understand , "' tis human ." ( Emphasis
supplied.)
This letter was approved by Geller , despite the imputation therein that Colum-
bia was equally at fault. When Cohn 's letter is considered in relation to Jones'
private memorandum , intended only for Geller, the latter 's alleged wrath at
16 Rosenthal had been discharged on March 14 and Ross on March 21, 1942.
17 These findings are based on Jones' testimony corroborated by a verbatim transcript of
the phone conversation, except for preliminaiy greetings and closing remarks, taken down,
in shorthand and typed by Elfenbein, who listened in on an extension phone to the
conversation. Alexander did not specifically deny Jones' testimony or contradict the
transcript which was in evidence. Ile testified that on March 26 he received a phone call
and a "young lady announced herself as Miss Jones" ; that be expressed surprise and
lack of knowledge concerning Elfenbein's visit on March 25, and that other than for the
fact that there was some general conversation about his promotion to the position of vice
president, the conversation ended IIe' denied knowledge of Jones' union membership or
the implication of her testimony and the transcribed remarks that she had been discharged
for reasons other than the Columbia letter.
18 The undersigned believes the Nedick's incident to be of no significance in determining
the ultimate question of nhether Jones was discharged because of her union activities.
In retrospect it added fuel to the fire no doubt, but as Geller adnrits. his actions with
respect to Jones on this occasion were hasty and ill-tempered, due no doubt to his illness,
and the information he sought was quickly supplied by Alexander without harm to the
client's account
19 See complete paragraph quoted in full at p. 8, supra.
WEISS & GELLER, NEW YORK, INC. 809
Jones for privately expressing a belief that appears to have been shared by
Cohn, as well, is not convincing. Rather, the undersigned believes that the
explanation lies elsewhere. Prior to February 16, 7942, Jones had been recog-
nized by the respondent as a hard-working employee who merited salary advances•
and promotion to a position of responsibility and prestige among the respond-
ent's other employees. When the Columbia letter was received on or about
February 18, 1942, the respondent took no action to discipline Jones. Instead
she was told not•to worry about it, and on February 28, while Geller was home
ill, Alexander praised her abilities ; yet on March 5 she was notified that Geller
had directed her discharge as of March 15, the only reason given being that
Geller insisted on a male assistant to Alexander. On March 7, Jones was sum-
marily dismissed at Geller's instruction, according to Alexander.
Coincidentally with these events, Jones was becoming active as a leader in
the Union's effort to organize the respondent's office. It will be remembered
that it was at her suggestion that the meeting took place on February 16 at the-
cafeteria in protest against Geller's overtime memorandum. After the Union
meeting on February 24, to which she invited the others who then joined, she
started to solicit new members in the office. Although Geller testified that he
did not learn of the Union membership of Jones and the other dischargees until
Elfenbein's visit on or about March 25, the undersigned finds that he had knowl-
edge thereof prior thereto. As already found, he knew of the cafeteria meeting
as early as February 18. Geller impressed the undersigned as a man who kept
in close touch with the activities in the office. Even while he was home ill be-
tween February 26 and March 9, 1942, he was kept informed through Model, who
spoke to Geller's wife by phone almost every day. Furthermore, Geller's remark
to Brendt on March 9 that Jones had tried to organize the office, and his sug-
gestion to Drantiff that he inform Geller of any activities that might harm the
business, convince the undersigned that Geller had all along been aware of
Jones' union activity and that he was determined to rid himself of her influence
at the first presentable occasion. Jones' memorandum, which contained a
gratuitous criticism of a client, presented the oportunity. Geller seized upon,
it and the discharge followed. The undersigned is of the opinion, based upon
the entire record herein, and finds that the respondent discharged Jones because
of her union membership and concerted activity, discriminating in regard to her
hire and tenure of employment, and thereby discouraging membership in the
Union and interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.20
2. The discharge of Helayne Ross
Ross was hired by Model in August 1941 as a typist in the media department,
Her starting salary was $15 a week, and in January 1942, the salary was in-
creased to $18 a week. During Ross' employment she assisted Jones and others
in the preparation of schedules for Columbia, and worked on other office accounts.
20 In reaching this conclusion the undersigned has not credited nor based any findings
on the dubious testimony of James A. Paganelli, called by the Board, who testified that
about March 15, 1942, while operating an elevator car in the office building partially
occupied by the respondent, lie heard Geller publicly remaik to a third person that Jones
was no longer employed ; that the Union was trying to organize the office ; and that
other employees would be discharged. I'aganelli's testimony in other matters was even
less convincing.
Likewise the undersigned doems it unnecessary to a decision herein to resolve the
conflict in testimony between Brendt and Geller and others that, in late 'larch 1942,
Geller asked Cohn to obtain a more explicit letter from Columbia, definitely pinning
responsibility for the errors in the Columbia account upon Jones. Cohn and Geller both
denied any such conversation or the incident.
:810 DECISIONS OF NATIONAL LABOR RiELATIONIS BOARD
Ross attended the cafeteria meeting on February 16, 1942, at Jones' invitation
and joined the Union at the meeting held on February 24, 1942. She admitted
that she never disclosed her membership to any of the respondent's executives.
It was Ross' credible and uncontradicted testimony which the undersigned ac-
cepts, that on the afternoon of March 12, 1942, Alexander called her to his office
and there hadethe following conversation:
Well, as I • came into his office ehe said---he understood there was a move-
ment going about the office amongst the girls to organize the office, and he
said, "Helayne, it is not a bad idea, you girls trying to get the best out of
your jobs," but he also said that wasn't what he wanted to talk to me about
at the present moment.
Mr. Alexander said that he wanted to speak to me at this time because
everyone thought that I was the leader, or at least one of the leaders, of this
movement. He said that Mr. Geller had asked him about me, if I was a
member of the union or of the movement, and Mr. Alexander said, "Definitely
not, Max. She is one of the nicest kids we have got here. She is an honest
worker and always comes in early and stays late if anything has to be done,
any extra work." . . . Mr. Alexander said, "Helayne, even though I
said you are O. K. to Mr. Geller, I believe you ought to watch your step and
take care, do your work and nothing else."
Well, he again warned me to watch-out, and -as•-I lef-tw-the•,office, he--said,
"Doris Jones was fired for other reasons than her incompetency." m
Ross testified that she understood Alexander to mean that she would be dis-
-charged as had Jones if she "did not watch out."
Following Jones' discharge on March 7, Ross was apparently under the mis-
taken impression that she was to succeed Jones as Alexander's secretary. She
testified that Alexander offered her this post ; Alexander denied it. Ross did,
however, handle some of the work formerly done by Jones in the week following
the latter's discharge. When Miller started work on March 16 as Alexander's
secretary, Ross realized that the position was not to be hers. On March 17, Ross
complained to Geller that she had been struck "below the belt" ; that she had
.been promised Jones' job and that Alexander screamed at the girls and brought
them to tears. She testified further that she asked Geller to see what could be
done about this. Geller's version is not substantially different, except that he
testified that Ross did not say she had been promised Jones' job and- that she
-stated she was unhappy.
The testimony of both is in accord that Geller told Ross that Alexander was
an important executive whose services could not be dispensed with because of
Ross' feelings in the matter. Ross testified further that Geller urged her to
"patch up" her differences with Alexander. Geller testified on the other hand that
he told Ross that if she "were willing," he "would give her a job, or try to make a
job for her in another department, but so far as media was concerned, working
for Alexander, she was finished."
Ross also testified that in the same conversation Geller started to talk about
Jones, saying that he understood Jones was "telling people on the outside" that
she had been discriminatorily discharged; that Geller knew Ross was a friend
of Jones and that he had always considered Jones his friend until she had done
"this" to him while he was at home ill. According to her further testimony:
21 Alexander's only testimony respecting this entire conversation was to deny the con-
cluding portion of Ross ' testimony that he had stated Jones was discharged for reasons
other than incompetency.
WEISS & GELLER, NEW YORK, I\-C. ° 811
Mr. Geller at that time asked me if I was a member of the union. I denied
it; I denied being a member and, without taking my denial into consideration,,
he continued saying, "Well, it you girls wanted a union, why didn't you come
right in and tell me about it? I wouldn't have stopped you."
Geller denied this testimony, testifying that he never mentioned Jones in his con-
versation with Ross and denied that he asked Ross if she were a union member.
The undersigned credits Ross' testimony and finds Geller to have made these
latter remarks substantially as testified to by Ross.
After Ross' conversation with Geller on the afternoon of March 17, she con-
tinued to work in the media department under Alexander. The undersigned
credits Ross' testimony that on March 19, Geller asked her how she was getting
along with Alexander and that she replied that she was getting along all right."
The record contains voluminous and contradictory testimony concerning events
leading up to the discharge of Ross, which occurred on Saturday, March 21.
Herein, is set forth a summary based upon Ross' testimony which the under-
signed finds to be credible because consistent with what the undersigned believes
is the pattern of this case as disclosed by the entire record.
On March 20, Alexander told Ross that Geller had related to him the sub-
stance of the conversation between Ross and Geller on the previous Tuesday,
March 17, and that Geller was determined to rid the office of those employees
involved in the movement to organize the office, including Ross, who was "sup-
posed to be the big shot after Doris Jones left." On Saturday, March 21, both
Alexander and Ross were called to Geller's office. There Geller told Ross that
since the latter had expressed a "distaste" for working under Alexander it would
be preferable for Ross to work elsewhere in the agency or leave the respondent's
employ altogether and that Geller did not want Ross to continue working if she
was unhappy in her relations with Alexander. Ross told Geller that Peter
Artzt, the copy chief, had not spoken to Belle Kramer, his secretary, for weeks,
that the latter was "pretty unhappy," but Kramer had not been asked to leave.
Geller insisted, however, that he did not want Ross to stay. Later in the morn-
ing, Model told Ross she was discharged because Geller thought Ross was not
happy working with Alexander. Ross replied that this was not true, whereupon
Model said that after Jones had been discharged,for her efforts at organization,
Ross was left to carry on her work, and Geller was determined to stamp out the
movement. There is some testimony, but it is not clear, that before the moment
of actual discharge by Model, Geller had offered Ross another position elsewhere
in the agency, but it is clear, and the undersigned finds, that Model's action pre-
ceded any final determination by either Geller or Ross respecting another position.
The undersigned also finds that on March 21, Model offered Ross a temporary job
in the checking department, stating at the same time that Geller thought it was
"not a job" for her, but that if Ross wanted this temporary position an employee
would be discharged in order to make room for Ross. It does not appear from the
record that anything further was done about this."
On March 23, Ross returned to the office to jet a letter of recommendation
from Alexander, which he gave to her. While there, Ross complained to him
that whereas Jones, who was allegedly discharged for incompetence, received
severance pay, Ross received no severance pay, although she was allegedly dis-
charged merely for being "unhappy." Ross testified further that Alexander
-1
The undersigned is of the opinion that the respondent made no genuine effort to place
Ross in another position but rather that the tenor of all the testimony on this issue was
to impress Ross with the futility of further employment because of her union membership,
thus forcing her to quit and thereby effecting a constructive discriminatory discharge.
812 °DEiCISIONS OF NATIONAL LABOR RELATIONS BOARD
said to her that the reason she and Jones "were fired was because of trying to
.organize the office." Alexander denied generally that he stated in his con-
versation with Ross on March 21, 1942, that Jones and Ross were discharged
for their union activities. He did not specilically deny this conversation on
March 23, 1942. The undersigned credits Ross' testimony and finds this, con-
versation to have occurred substantially as related by Ross.
Model gave'Ross a letter of recommendation which, met with Geller's approval.
This letter praised Ross' work as a typist and stenographer and stated that Ross
was a "hard-working individual who has a fine personality and cooperative
;nature . . ." Attached to the letter was Model's personal note wherein he wrote :
The attached statement is wholly in line with my thinking. I do think
that your personality is a highly commendable one, although you have
allowed it to be influenced adversely during the last couple of months.
(Italics added.)
Don't let anybody lead you-you ought to be in that position.
Every good wish to you for a happy future ! Drop in and see us.
Sincerely,
i MARK MODEL.
At the hearing Model testified on direct examination, that by use of the phrase
"influenced adversely," he meant that Ross had become lax in her habits and
followed the poor example set by Medici and Goldstein, two employees heretofore
mentioned. On cross-examination, Model admitted that his letter of recom-
anendation was not an honest expression of opinion, because Ross was not in fact
-a "hard-working, individual" ; that this was "sugar coating" He also admitted
that he likewise had Jones in mind when he wrote that Ross had allowed her-
self to be "influenced adversely." 2a
In determining the real reason for Ross' discharge, the undersigned has fully
considered the fact that Ross complained about Alexander's conduct and super-
-vision of her work. Indeed, Geller might well have viewed the incident as one
'disruptive'of efficiency and satisfactory personnel relations. In the transcript
of the Jones-Alexander conversation of March 26, 1942, which was introduced
in evidence, Alexander said: "He [Geller] formed a definite dislike for her
'[Ross] on the basis of her criticism of me. I suppose that you know she went
in to complain about me." As opposed to this reasonable ground for dismissal,
the undersigned has likewise fully considered Ross', undenied testimony of her
,conversation with Alexander on March 12,'which indicates Geller's suspicion
of Ross' union membership, and which, coupled with Alexander's friendly warn=
ing to Ross "to watch" her step, present the reasonable basis for a contrary
inference. Thus, two conflicting reasons for the discharge are offered. In
'reaching a conclusion respecting Ross' discharge, the entire record herein, par-
'ticularly Geller's animus against concerted action by his employees, his re-
marks to Drantiff and Brendt, which reveal Geller's inclination to deter any
movement which would thwart his personal relation towards those employees,
-and Model's statement that Geller was determined to stop organizational activity
are pertinent. The undersigned is persuaded and concludes that, if Geller had
any other ground to discharge Ross, his ultimate decision was motivated en-
tirely by his feelings about the Union. Hence, the undersigned finds that the
In a statement Model executed on April 21, 1942, for a field examiner of the Board,
Model made no mention therein of Medici or Goldstein. At that time he wrote : " * * n
I meant by 'influenced adversely' that Miss Ross was not the same girl I had hired originally.
Since she had become very ftiendly with members of the staff including Miss Jones, her work
became lax "
WEIS'S & GELLER, NEW YORK, INC. 813
-respondent discharged Ross for her union activities in violation of the Act
-and that the respondent has discriminated in regard to hire and tenure of em-
ployment of Ross, thereby discouraging membership in the Union.
3. The Bloom meeting
Under date of March 30, 1942, the Union mailed -the respondent's employees
.a mimeographed" letter stating, that "proceedings have been started" against
the respondent for the discriminatory discharges of Jones, Ross, and Rosenthal;
.that Geller had thereby violated "Federal law" ; that "notice" thereof had been
filed with the Board and "upon the successful completion of this case," the
respondent would be ordered to reinstate the dischargees "with full back pay."
The following paragraph concluded the letter :
Let us ask Mr. Geller-is he being patriotic, is he fulfilling his duty
as an American citizen, by ignoring in Wartime the very laws of our
democracy which we are all fighting so desperately to preserve.
On April 2, 1942, Frances Buck, Geller's secretary, notified the employees
that a meeting would be held that noon in Geller's office. Preparatory to the
:meeting, an inter-office memorandum signed by Joseph E. Bloom, was distributed,
.also notifying the employees of the meeting.24 Fifteen or 16 employees attended
the meeting which was presided over by Bloom ; Model was present and Alexander
,entered after the, meeting commenced.- Bloom opened the meeting by stating
it was called because of the Union's letter, and he then proceeded to read it
-paragraph by paragraph. Bloom stated that Jones had been discharged for
inefficiency, referring to the Columbia letter ; that Ross had become emotionally
-involved with Alexander ; and that Rosenthal was a temporary employee. Alex-
ander entered at about this time and mentioned that Ross was a "sweet young
girl" who "became attached to him." After Alexander left, Bloom stated that
neither he nor Geller was opposed to membership in the Union and Bloom
-would personally guarantee the employees their jobs if they joined the Union.
He added however, that there was no need for employees to join the Union,
for Geller's door was open to receive individual complaints. Bloom added that
the office was "just one big happy family." Finally Bloom proposed that he
-would draft a letter to the Union stating the facts substantially as outlined
at the meeting and that the- letter would be distributed for employee approval.
The next day Bloom sent a notice to the office staff, attaching a copy of his pro-
posed letter to the Union and asking the employees to initial the copy of the letter
if it met with their approval or in the event of disagreement with its contents
to speak to Bloom about it.
In this letter, Bloom wrote that the employees were "incensed" at the
Union's letter of March 30, because of misstatements and untruths contained
.therein ; that Geller had never refused to permit employees to exercise their
-right of collective bargaining and that his door was always open to discuss
employee and personal problems ; that the respondent had never intimidated
its employees and that they resented any reflection upon the patriotism and
24 Bloom was at this time one of the respondent's account executives, having joined the
agency in September 1941. The respondent's account executives service the agency's
.accounts. They are in intimate touch at all times with the client's needs and act as liaison
men between agency and client. Alexander stated that the position of media and 4adio
director "was probably the most important position in the agency with the exception of
the account executive, the man who controls the account " The undersigned finds that
account executives are supervisors. At the time of the hearing, Bloom was the respondent's
-vice president in charge of media.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Americanism of Geller. The copy was initialed by 17 employees including
executives."
Although it is plain that Bloom's language at the meeting was guardedly
phrased to avoid any inference of intimidation , the undersigned is of the
opinion that the meeting , . occurring in the setting peculiar to this case and
following as it , did the discharge of three employees , -was intended to, and
did in fact , act as warning to the employees to refrain from union membership
or activities. Bloom's poignant reminder in his statement at the meeting that
union membership was unnecessary meant, in the undersigned 's opinion, that
it was also disfavored by the respondent . Connected as it must have been in
the employees ' minds with the discharge of Jones, Ross , and Rosenthal, it
was a pointed suggestion that the respondent did not favor union representa-
tion for its employees. Moreover , any employee who failed or refused to sign
the letter would be compelled to expose himself as opposed to the respondent's
views and as a sympathizer with the Union . The undersigned finds that
thereby the respondent interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
B. Alleged unfair labor practices
1. The discharge of Sylvia Rosenthal
Rosenthal was hired around January 12, 1942, for a temporary position as a
switchboard operator , receptionist , and clerk . She was hired to take the place
of Marie Medici , the regular switchboard operator, who was on vacation. Model
testified that on or about January 19, 1942, he , with Geller's approval, told
Rosenthal that her position would be permanent and that, when Medici re-
turned, the respondent "might put her [Medici] at a typewriter."
When hired , Rosenthal was a member of another local of the International
Union. Previous to the issuance of the overtime memorandum on February
13, Rosenthal had spoken to employees about the Union. After the memorandum
was issued, Rosenthal referred to it as a disgrace and mentioned that at her
previous place of employment she had enjoyed many advantages because of
the Union. She testified without contradiction 'that, when Drantiff refused
to initial the overtime memorandum , she exclaimed , "Good boy, Sam," and
that this remark was overheard by Buck, Geller's secretary. She testified
further that Buck asked her why she had said this, and that she replied that
"everyone is entitled to their own opinion." Rosenthal attended the cafeteria
meeting on February 16 and the union meeting on February 24, 1942.
Medici returned from her vacation about January 26, 1942. Thereafter, Rosen-
thal continued at the switchboard and Medici was put on typing. About March 1,
Model told Rosenthal that Medici was proving to be an inefficient typist but that
the respondent could not discharge her because - Medici's father was one of the
agency's clients. For this reason, therefore, Medici replaced Rosenthal as the
switchboard operator, and Rosenthal was given work as a typist. Rosenthal
expressed her belief that she had lost her skill as a typist, but Model said this
would be taken into consideration.
Rosenthal testified that on Saturday afternoon, March 14, Model said to her :
Miss Rosenthal, l am sorry to have to tell you we will have to let you go.
We are reorganizing our staff and we are in need of a crack-a-jack stenog-
2 The findings above respecting this meeting are based upon documentary evidence and
the mutually corroborative and undenied testimony of Miller and Brendt who attended
the meeting.
WEISS & GELLER, NEW YORK, INC. 815
rapher. As you know, you are not one, and that is what we are looking
for... .
Geller testified that, about March 12, Model told him that his experiment with
Rosenthal as a typist had not worked out, and that he would have to let her go.
Geller approved of this action to be taken. Model testified substantially to the
same effect.
The undersigned concludes and.finds on the basis of this testimony that Rosen-
thal's discharge was for cause, not connected with her union activities, dictated
by business reasons and that thereby the respondent did not violate Section
8 (3) of the Act.t Accordingly, it will be recommended hereafter that this al-
legation of the complaint be dismissed.
2. The questioning of employees by the respondent's attorney
Under date of March 30, 1942, J. E. Kearns, field examiner of the Board, wrote
the respondent informing it that a charge had been filed by the Union alleging
the discriminatory discharge of Jones, Ross, and Rosenthal and suggesting a
conference to discuss the matter. Upon receipt of the letter, Geller called Joseph
Tiefenbrun, his general counsel, to his office. Geller testified that he showed
Tiefenbrun Kearns' letter, stated that he knew nothing about the entire matter,
and asked Tiefenbrun "to take care of it."" According to Tiefenbrun's credible
testimony, he took the letter and went to Brendt, the bookkeeper, and asked for
information concerning the employment history of Jones, Ross, and Rosenthal.
He then asked her what she knew about union activity or if she knew anything
about the letter, and that she replied that there had been "some talk about a
union." 27 Tiefenbrun told Geller that Brendt knew nothing about union activities,
but since the Board's letter referred to discriminatory discharges he believed it im-
portant "to learn what union activity had been going on for which there had
been a discharge." Tiefenbrun then returned and asked a majority of the em-
ployees "substantially the same question and didn't get any more informa-
tion ..."
The Board has held that where an attorney exceeds the scope of legitimate
preparation of the respondent's defense by questioning employees about matters
which are not at issue, such. questioning may be a violation of the Act. Here,
however, Tiefenbrun asked employees what they knew of union activity. He
(lid not ask them to disclose their union membership, a question-which has been
found not permissible tinder these circumstances There was no thieat of coer-
cion or intimidation in anything he said or did. . Even by Brendt's own testimony,
the only witness called by the Board on this point, all Tiefenbrun asked was
whether she had been "contacted . . . in reference to the union." The tinder-
signed' concludes and finds that the respondent did not thereby violate the Act
by reason of Tiefenbrun's activity '
IV. THE EFFECT OF THE UNFAIR L'BOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in section
III above, occurring in connection with the operations of the respondent described
in Section I herein, have a close, 'izitimate,"and substantial relation to trade,
2U Geller, by his own admission, knew as early as March 26, by reason of his talk with
Elfenbein, of the union activities. And it has been found above that he knew of the
cafeteria meeting as early as February 18, 1942.
21 Brendt testified that Tienfenbrun asked her whether she "had been contacted by
anyone in reference to the union." and that she replied that she had not been.
28 Matter of N. & W. Overall Company, Incorporated, etc, decided Apr. 14, 1943.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. TILE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act and to restore as
nearly as possible the status quo existing prior to the commission of the unfair-
labor practices
The undersigned has found that the respondent discriminated in regard to the
hire , and tenure of employment of Doris Joines and Helayne Ross because of their
membership in the Union . The respondent urges that , even assuming a discrimi-
natory motive for the discharge of Jones and Ross, it should not be required to,
reinstate either or both individuals because of the fact that the positions formerly
held by these employees were discontinued in the spring of 1942, and thereafter
the particular positions were never filled.
Lester Mallets was hired on or about March 14, 1942, to perform certain of the
duties formerly performed by Jones in connection with the Columbia and other-
accounts . Edna Mae Miller was hired on March 9 , 1942, and apparently com-
menced work on March 16, 1942, as Alexander 's secretary , thus performing in
part some of the services formerly handled , by Jones in that capacity . It appears
from the record that the respondent's business suffered a decline in the spring of
1942. And although new accounts were acquired thereafter , . and 'in connection
with one, the Schenley account, the respondent added four employees to its staff,
Mallets was nevertheless discharged on June 6, 1942 , and Miller was discharged
on July 31 , 1942. It appears from the record that after their discharges no single
individual was hired expressly to take over the functions previously performed
by Mallets and Miller . Geller testified without contradiction , that in the adver-
tising agency business , it was the practice , when an account was lost, to discharge-
those employees whose duties were confined to the servicing of the account. Con-
versely when a new account of substantial proportions was acquired from an-
other agency , it was likewise the practice to take with the account a certain num-
ber of the employees who had serviced the account at the previous agency. This
then would account for the hiring of the four empolyees in July of 1942 when the.
Schenley account was acquired , those employees having previously worked on this
account at the former agency.
With respect to Jones, the record does not 'satisfactorily disclose in the under-
signed's opinion that, absent discrimination , her services would have been dis,-
continued either with the decline of business or by the acquisition of new accounts.
Jones had been with the agency since its establishment , and it is clear from,
the entire testimony herein, and the undersigned has found , that she was a
capable, hard -working employee , whose services in the undersigned 's opinion
would not necessarily have been discontinued for reasons which affected the.
respondent 's total business . It is indeed possible that after Mallets was dis-
charged, had Jones still been in the respondent 's employ, it would not have
been necessary for the respondent to have hired one Black, who was taken, on
in July 1942 in connection with the acquisition of the Schenley account. It
appears that Black's services were substantially along the line of work per-
formed by Jones, and there is no reason to believe that Jones could not have
carried on this work . The undersigned is of the opinion that the purposes of
the Act will be effectuated only if Jones is reinstated to the position , or sub-
stantially the same position , she held ' at the time of her discharge and anything
less than restoration to that position would not effectuate the policies of the Act.
WEISS & GELLER, NEW YORK, IN'C. 817
A similar conclusion may be reached with regard to Ross. She, was one of
several stenographers employed by the respondent. While the record shows
that the respondent hired one Draw to take the place of Ross on March 23,
1942, and that Draw was discharged on May 29, 1942, when the respondent's.
services in connection with the Old Quaker account were substantially lessened,
it was not clearly established that, had Ross not been discriminatorily discharged'
on March 21, she would necessarily have been dropped from the respondent's
employ on May 29, 1942. The stenographic job was not unique, While Ross
may have worked more on some accounts than others, it does not follow that-
there would have been no work for her to do after the Old Quaker account
services were reduced, nor does it follow that Ross, who started with the,
respondent in, August 1941, would not have been accorded greater consideration
than the recently hired Draw and would not have been retained in preference
to one of the other stenographers.
The undersigned will therefore recommend, with respect to back pay for Ross,
that she be made whole for any loss of earnings she may have suffered by redson
of the respondent's discrimination against her by payment to her of a sum of
money equal to the amount she would normally have earned as wages during
the period between the date of the respondent's discrimination and the date of
offer of reinstatement, or if the respondent have no work such as Ross is qualified
to do, then between the date of the respondent's discrimination and the date
that respondent places Ross on a preferential list for hiring and so notifies her,
less, in either case, her net earnings " during each of those periods.
With respect to the back pay due Jones, the following circumstances are to
be considered. Jones was discharged on May 7, 1942. On January 8, 1943,
Jones became a mother. The undersigned sustained an objection to the re-
spondent's counsel inquiring when Jones would have terminated her employment,
absent discrimination, because of her pregnancy, on the ground that the ques-
tion was highly conjectural and impossible of accurate answer because of the
many varying factors in such a situation. Moreover, it should be apparent
that Jones would not have returned to work immediately after the birth of-
her child assuming that there had been no discrimination against her. There-
fore, the undersigned's recommendation with respect to back pay to Jones
will take into consideration these circumstances. The undersigned will recom-
mend that the respondent make payment to Jones of an amount equal to that
which she would have earned as wages during the period from the date on
which, absent' discrimination against her, she would have continued her em-
ployment to the date when because of her pregnancy and the customs and
practices of the respondent's business it would have been necessary for her
to relinquish her position, and from the date when Jones in the normal course
of events, following January 8, 1943, and with due regard to the respondent's
customs and practices as well as the condition of Jones' health would have re-
turned to work, to the date of the offer of reinstatement, less her 2-weeks'
severance pay and her net earning,30 during said period.
"By net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his-
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440.
Monies received for work performed upon Federal, State, county, municipal, or other
work-relief projects shall be considered as earnings . See Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
11 See footnote 29. supra.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to receipt of the letter from the Board dated March 30, 1942, the
respondent conferred with the Regional Office respecting the charges that had
been filed by the Union . On April 13, 1942, Geller issued instructions to the
executives that it was the respondent 's policy "to have no discussion of any
kind with its employees respecting their union affiliation ," and the executives
were instructed to "desist from any conversations , of any kind of nature," with
any of the employees regarding union matters . On July 2, 1942, the respondent
posted on its bulletin board a notice in the language of Sections 7 and 8 of
the Act, pursuant to suggestion from the then Regional Director of the Second
Region. At the same time Geller sent another memorandum to his executives
containing the following advice from the respondent 's attorneys : "Call in each
.of your supervisory employees and instruct them that they are not to discuss
the posted notice with any of the employees . This instruction must be rigidly
followed ." The undersigned does not believe that the posting of the notice
and the instructions to the respondent 's executives were sufficient in and of
themselves to overcome the effect of the respondent 's prior and continuing un-
fair labor practices. Hence, the undersigned will hereafter recommend that
the respondent post the usual notice appropriate to the findings herein made.
Upon the basis of the foregoing findings of fact and upon the entire record in
,the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 20 , American Advertising Guild, United Office and Professional Workers
of America , affiliated with the Congress of Industrial Organizations , is a labor
organization , within the meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Doris
Jones and Helayne Ross, thereby discouraging membership in Local 20, Amer-
ican Advertising Guild, United Office and Professional Workers of America, the
respondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 ( 3) 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 in
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and ( 7) of the Act.
5. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act by discharging Sylvia Rosenthal.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, Weiss & Geller , New York , Inc., and its
officers, agents , successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Local 20, American Advertising Guild, United
Office and Professional Workers of America, affiliated with the Congress of
Industrial Organizations , or iii any other labor organization of its employees,
by discriminating with regard to their hire. and tenure of employment, or any
term or condition of employment ;
(b) In any other manner interfering with, restraining , or coercing its em-
ployees 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 bar-
gaining, or other mutual aid or protection as guaranteed in Section 7 of the Act.
WEISS & GELLER, NEW YORK, INC. 819
2 Take the following affirmative action which the undersighed finds will
effectuate the policies of the Act :
(a) Offer to Doris Jones immediate and full reinstatement to her former or
substantially equivalent position or to one which she is qualified to fill without
prejudice to her seniority and other rights and privileges in the manner provided
in the Section entitled "The remedy" ;
(b) Offer to Helayne Ross immediate and full reinstatement to a position
substantially equivalent to the one that she held at the time of her discharge,
provided that such vacancy exists, without prejudice to her seniority and other
rights and privileges, or in the event no such vacancy exists, place her upon
a list for preferential hiring, in the manner provided in the Section entitled
"The remedy" ;
(c) Make whole Doris Jones and Helayne Ross for any loss of pay they
may have suffered by reason of the respondent's discrimination against them
as to their hire and tenure of employment in the manner set forth in the Section
entitled "The remedy" ;
(d) Post immediately in conspicuous places in its New York office, 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 recommended that it cease and desist
in paragraph 1 (a) and (b) of these recommendations: (2) that the respondent
will take the affirmative action set forth in paragraph 2 (a), (b), and (c) of
these recommendations; and (3) that the respondent's employees are free to
become or remain members of Local '20, American Advertising Guild, United
Office and Professional Workers of America, and that the respondent 'will not
discriminate against any employees because of membership or activity in that
or any other labor organization;
(e) Notify the Regional Director for the Second Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipts of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint be dismissed in so far as it alleges
that the respondent has engaged in unfair labor practices by the discharge of
Sylvia Rosenthal.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and -four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof. As further provided in said Section 33, should any party desire permis-
sion to argue orally before the Board, request therefor must be made in writing
to the Board within ten (10) days from the date of the order transferring the
ease to the Board.
MORITMER RIEMER,
Trial Examiner.
Dated May 7, 1943.
540612-44-vol. 51-53
c