W. T. Grant Co.

W. T. GRANT COMPANY W. T. Grant Company and Retail Store Employees Union, Local 876, Retail Clerks International As- sociation, AFL-CIO. Case 7-CA-5841 November 3, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 28, 1967, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, W. T. Grant Company, Madison Heights, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete subparagraph (c) and reletter subpara- graph (d) as subparagraph (c) in paragraph I of the Trial Examiner's Recommended Order. 2. Delete the third indented paragraph of the Appendix. ' We find merit in Respondent 's exception to the Trial Examiner's find- ing that Respondent encouraged employees to "sign" a decertification petition or that such a petition was being circulated after November 30, 1966, the date it was filed with the Board's Regional Office The Respond- ent's unlawful conduct occurred several weeks thereafter However, we affirm the Trial Examiner's conclusion that Respondent by its unlawful conduct conveyed the message to its employees that they should associate themselves with the pending decertification petition, a subject of heated discussion during this period TRIAL EXAMINER'S DECISION 93 SAMUEL M. SINGER, Trial Examiner: This proceeding, with all parties represented, was heard before me in Detroit, Michigan, on June 13, 1967, pursuant to charges filed December 22, 1966, and February 27, 1967, and a complaint issued April 14, 1967. The issue litigated was whether or not Respondent, through certain conduct (in- cluding interrogations and employee interviews), inter- fered with, restrained, or coerced employees in violation of Sectu_n 8(a)(1) of the National Labor Relations Act, as amended. All parties appeared and were afforded full opportunity to be heard and to examine and cross-examine witnesses. A brief was received from Respondent. Upon the entire record I and from my observation of the witnesses, I make the following- FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT ; THE LABOR OR- GANIZATION INVOLVED Respondent, a Delaware corporation, is engaged in the sale and distribution of merchandise through retail stores throughout the United States, including its retail store in Madison Heights, Michigan, store 681, the only facility involved in this proceeding. During the year ending December 31, 1966, Respondent's gross volume of busi- ness at its Madison Heights store exceeded $500,000. Within the same period it purchased and received at that store products valued in excess of $100,000, of which products valued in excess of $50,000 came directly from points outside Michigan. I find that at all times material herein Respondent has been and is an employer engaged in commerce within the meaning of the Act. The Charging Party, herein called the Union, is a labor organization within the meaning of the Act. 11. THE UNFAIR LABOR PRACTICES A. Background The Union was certified as the statutory bargaining representative of Respondent's employees on November 28, 1964 On July 8, 1965, the parties signed a collective agreement, to be effective from February 1, 1965, to January 31, 1967. On November 9, 1966,2 in ac- cordance with the terms of this agreement, the Union mailed Respondent a notice of intention to reopen the agreement in order to modify certain provisions. Negoti- ations thereon continued to March 17, 1967. In the meantime, on November 30, 1966, one of Respondent's employees filed a petition for decertification of the Union (Case 7-RD-688).3 The petition and Union's July 1965 contract 4 thereafter became subjects of discussion in the store. ' It is hereby ordered that the transcript be corrected as follows Page 55, line 10, "established from evidence, that" for "established that", and page 55, line 11, "questioning and" for "question that there was " z Unless otherwise noted, all subsequent dates refer to 1966 The petition was later withdrawn (April 14 or 15, 1967) The Union had distributed copies of this agreement to employees 2 -or 3 days after the filing of the decertification petition 168 NLRB No. 16 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Store Manager Stainforth testified that "just about everybody in the store asked [him] question[s] of some sort or other " According to Stainforth and his assistant, Demasi, the newer, part-time employees - young high school students in their "teens" - were particularly inquisitive and both of these company officials spoke to them about company benefits.5 Subjects discussed in- cluded sick pay, vacations, leave of absence, military leave, funeral leave, and holidays. Stainforth and Demasi would compare the benefits in the union contract with those in the company manual before advent of the Union. Stainforth would tell them (as he testified) "that the manual was equal to the contract" as regards benefits. B. The Testimony General Counsel called five employees - all high school students - to support the allegation in the com- plaint that Stainforth and Demasi had uttered coercive re- marks. A sixth (Rie Biehy, an older employee) testified that she was questioned about a charge she allegedly had filed with the Board. 1. Angeluski and Brueckman testified as to a conver- sation with Stainforth and Demasi on a Sunday morning, 2 weeks before Christmas when the decertification peti- tion was being circulated among the employees. Stain- forth began the discussion in the hallway outside his of- fice and then beckoned the employees to continue it in- side. Producing the union contract and company manual in his office, Stainforth proceeded to compare the benefits for the employees to "see who was getting the better deal, going by the contract or the store manual." Angeluski quoted Stainforth that "the union contract and the com- pany policy was just about the same ... and that we hadn't gained anything in the first contract and we were not about to gain anything in the second." The conversa- tion lasted about 15 minutes. While recalling the incident, Stainforth denied telling the two employees that "the union hadn't gained anything for them the first time and wouldn't get anything for them the second time," explaining that the "reason why I didn't [make that statement] was because I knew of the peti- tion. I never thought we would negotiate another con- tract." (He did not claim, however, that he said this to the employees.) According to Stainforth, it was the em- ployees who initiated the discussion on benefits as he walked through the stockroom. He stated that the em- ployees being "young ... were very excited about [the contract recently distributed to them by the Union] ... wanted questions answered"; and that he thereupon showed them the manual and contract to prove they were "basically the same." Demasi did not testify on the specific incident, but in answer to a leading question on direct examination made a blanket denial of "ever hear[ing] any person" state that the Union "wouldn't gain anything for them the second time" as testified by Angeluski 2. Japowicz testified that in the same period, after closing time (around 9 30 p.m.) on a Saturday, he had a conversation with Stainforth and Demasi. Stainforth, who had previously learned from other employees that Japowicz was inquiring about store benefits, asked "if he could straighten any of it out, if he could make anything clear." Stainforth then spent an hour comparing for 5 Stainforth testified that Demasi , a management trainee, was "in charge" of the sales floor and worked "very close" with him on personnel matters He further testified that he had asked Demasi to talk to em- Japowicz the benefits in the union contract with those in the company manual . Among the subjects discussed were funeral leave (in which Japowicz was then particularly in- terested) and merit wage increases. Stainforth's version of the incident is consistent with Japowicz', except that Stainforth stated that the 1-hour conversation also included personal matters. 3. Youngblood testified that Demasi called her into the office during working hours just before Christmas and said that she "probably heard that they were trying to get the union out and he just wanted to talk to [her] about it, not to persuade [her] one way or the other." Demasi "got out" the store manual and the union contract and com- pared various provisions, including vacations and funeral benefits. Demasi asked her "whether [she] decided if [she] was going to vote the union in or not." Youngblood said she "didn't know." The conversation lasted a half hour. Demasi testified that Youngblood, recently hired, merely inquired of him whether she was eligible to vote in the election and that he replied he "believe[d] so." He admitted discussing benefits with her, but insisted that he only responded to questions she put to him. According to Demasi, he first talked to Youngblood on the sales floor and then in Stainforth's office. He indicated that the em- ployee's inquiries followed her complaint that "she hadn't been talked to by the union officials." 4. Grant testified that around the same time (Christ- mas), also during working hours, Demasi asked her to come to the office, where he handed her the union con- tract and manual , had her "read one of them aloud," com- pared the benefits in the two documents, and asked her what she "thought" about them. Demasi pointed out that "they were similar for [her] to see." The conversation took 10 to 15 minutes. Grant could not recall whether she had previously asked Demasi about the store benefits. Demasi did not deny the statements attributed to him by Grant, but indicated he called her into the office because she had questioned him about benefits. 5. Finally, Rie Biehy testified that in a meeting with employees on January 18, 1967, Manager Stainforth re- marked that he "had been down to the Labor Relations Board and spent 8 hours on the witness stand answering questions to charges that had been filed against him. He said there is no need to go any further into [it] some of you girls know what some of the charges are. 116 Later in the day, around quitting time, Stainforth came up to her and said, "Rie, if I ask you a question will you tell me the truth" and, before she could respond, added, "Knowing you, I know you will.... Did you file complaint against me?" Rie answered, "No, I didn't." Stainforth went on to say, "Did I ever take you in my office alone and discuss the union?" When Biehy replied "No, you didn't," Stain- forth said, "You better get it straightened out because your name is signed." Biehy thereupon responded that she would get in touch with the Board "and have it verified." Stainforth conceded referring to "the charges filed against the management of [the] store" in his meeting of January 18, which he called to discuss inventory. He also admitted questioning Biehy after the meeting, but denied asking her if she had filed a "complaint" with the Board or if she had been interviewed by a Board agent. Accord- ing to Stainforth, he only asked Biehy "if at any time" he ployees about company benefits, but not to be "derogatory to anybody." Demasi specifically identified seven employees to whom he spoke 6 The original charge in this case was filed on December 22 W. T. GRANT COMPANY 95 or his district manager had promised her a wage raise "to go against the Union," stating that he put this question to her because the Board investigator had questioned him on this matter. Stainforth testified, "I just asked the question. It bothered me, because I had not done this." C. Concluding Findings 1. Credibility of witnesses Although most employee testimony concerning the statements of Store Manager Stainforth and his assistant, Demasi, is essentially undisputed, there is sharp conflict as to significant portions thereof, including Stainforth's alleged statement to employees that they stood to gain nothing in a second union contract, Demasi's alleged inquiry of Youngblood as to whether she had "decided if [she] was going to vote the union in or out," and Stain- forth's alleged interrogation of Biehy as to the charge she had supposedly filed against Respondent. Based upon my assessment of the comparative demeanor of the wit- nesses, the surrounding circumstances, and the inherent probabilities, I credit the employees' described versions of the incidents rather than those of Stainforth and Demasi. ° All six employees called by General Counsel testified in a sincere and straightforward manner. None appear directly interested in the case through potential gain by imputing to Respondent's officials statements injurious to Respondent. Angeluski, who testified as to Stainforth's remarks about a second union contract, is no longer em- ployed by Respondent, having quit its employ, and there is no indication whatsoever that his leaving was accom- panied by any ill feeling against the Company.' Nor is there any reason to believe that the other employees, still employed by Respondent, would jeopardize their em- ployment by fabrication under oath concerning their em- ployer. On the other hand, Stainforth and Demasi are directly personally concerned in the case, in view of the key issue as to the propriety of their behavior . Both im- pressed me as loyal members of the managerial hierarchy impelled to conform their testimony to what they re- garded to be in the interest of their employer and them- selves. Furthermore, Stainforth appeared less than can- did, and was vague and evasive, on some matters such as the number of employees he had questioned. His asser- tion that he "never discussed the election" is, in the face of the active circulation of the decertification petition and his demonstrated interest in its outcome, and the total surrounding circumstances, incredible. I accordingly credit the described versions of the events as given by General Counsel's witnesses. 2. Interference, restraint, and coercion As the Board and courts have frequently observed, "Any determination of the exact nature and effect of [employer] statements can be made only with due regard for the context of the statements, the characters and economic positions of those who heard it, and the rela- tionships existing between a company and its em- ployees." N.L.R.B. v. Morris Fishman & Sons, Inc., 278 F.2d 792, 796 (C.A. 3). "Words innocuous in themselves can take on a sinister meaning in the context in which they are uttered." Local 901, Teamsters v. Compton, 291 F.2d 793, 797 (C.A. 1). "The test is whether the em- ployer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7). Here, on the heels of a union demand for contract reopening and negotiation and the filing of a petition, Respondent's key managerial officials in charge of the store summoned employees into the store office, the locus of authority, compared at length the benefits pro- vided in the union contract with those allowed by the Company in its nonunion stores, and sought to convince employees that they were not better served by the Union than without it. To drive this message home, the store manager also pointed out to employees that they "hadn't gained anything in the first contract and ... were not about to gain anything in the second." The fair intend- ment of such statements could only have been to make plain to the employees the sterility and utter futility of continued exercise by them of their statutory right to bar- gain collectively. By emphasizing that the Union had been unable in the past and would be unable in the future to gain for them tangible benefits over and above what their employer had seen fit to grant without collective bargaining, Respondent conveyed the unmistakable message that adherence to the Union was a losing cause, that the employees would be better off abandoning it, and that they should associate themselves with the decertifi- cation petition contemporaneously being circulated in the store. "There is no more effective way to dissuade em- ployees from voting for a collective-bargaining represen- tative than to tell them that their votes for such a representative will avail them nothing." Cf. The Trane Company (Clarksville Manufacturing Division), 137 NLRB 1506, 1510. In the arena of industrial relations which the Board daily administers, there is a well-un- derstood distinction between pressure of this type and simple innocent intellectual persuasion.8 Also coercive was Demasi's inquiry of Youngblood "whether she had decided ... to vote the union in or not." This was no mere inquiry as to whether she in- tended to cast a vote in the decertification election, but an inquiry as to how she intended to vote -a matter of her own private concern, statutorily protected from employer intrusion.9 I further find that Stainforth's inquiry of Biehy as to whether she had filed a "complaint" or an unfair labor practice charge also was unlawful. It is unnecessary to consider whether such an inquiry might be innocuous under circumstances other than those presented. Here it was coercive because of Stainforth's prior expressed in- dignation to the employee at the filing of the charge, his failure to assure the employee that her filing of the charge 7 In crediting Angeluski's testimony 1 have not overlooked the fact that Brueckman , who testified on the same incident, did not mention Stain- forth's remarks about a second contract Brueckman 's attention was not specifically called to this matter Furthermore, his failure to testify on this point may well have been due to lapse of memory, a condition not un- common among honest witnesses 8 In making the above findings and conclusions, 1 "place[d] no reliance on words of the respondent disassociated from its conduct " See Sec- tion 8(c) of the Act (Harlan , J , in N L R B v Exchange Parts Company, 375 U S 405,fn 3 ), " Respondent's request in its brief to reopen the record in order to receive testimony as to "the question whether Youngblood or Demasi first raised the question of voting" is denied Contrary to Respondent's contentions, (1) Respondent had ample opportunity to elicit evidence on this simple point , and (2) the question of who initiated the matter is not (as Respondent now claims) "pivotal to the conclusion of violation " 96 DECISIONS OF NATIONAL (as well as her response to his question) would not result in reprisals, and his directing the employee (when the em- ployee denied filing the charge) to "get it straightened out." Under these circumstances, Stainforth's action was tantamount to a request that the employee withdraw a charge she had officially filed with the Board. It goes without saying that the right of access to the Board's processes for vindication of a statutory violation is funda- mental and is to be kept open without roadblocks or hin- drance. Neither employer nor union may restrain, coerce, or interfere with that right, whether or not it deems the charge meritorious - a question for the Board, not a charged party, to decide. See Local 138, International Union of Operating Engineers, AFL-CIO (Charles S. Skura), 148 NLRB 679, 681 Indeed, not even the em- ployee who has filed a charge has the unconditional right to withdraw it, since a public and not private offense is in- volved. See N.L.R.B. v. Edwin D Wemyss, d/b/a Coca- Cola Bottling Company of Stockton, 212 F.2d 465, 468 (C.A. 9). io It is accordingly found that Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act, by coercive questioning con- cerning union activities and concerning the filing of an un- fair labor practice charge, by emphasizing the futility of employee adherence to and representation by the Union, and by encouraging employees to sign a decertification petition." CONCLUSIONS OF LAW 1. By coercively questioning employees concerning union activity and filing of charges with the Board, by emphasizing the futility of continued employee adherence to and representation by the Union, and by encouraging employees to sign a decertification petition, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, in viola- tion of Section 8(a)(1), of the Act. 2. The aforesaid violations are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. It has not been established that Respondent has vio- lated Section 8(a)(1) by promises of benefits as alleged in the complaint. 10 While the General Counsel adduced evidence as to only five specific incidents , these cannot be regarded as "isolated " so as to warrant withholding of a remedial order Cf International Woodworkers ofAmer- ica, Local 3-10, AFL-CIO (Long Lake Lumber Co) v N L R B , 380 F 2d 628 (C A D C.) Although perhaps a few in number , they are neither trifling nor minimal Attempted interference with the Board 's prosecutory process its itself, without more , substantial and senous , striking at the Board 's capability to "keep [s] open the channels created by Congress for the administration of a public law and policy " H B. Roberts of Local 925, Operating Engineers v N L R B , 350 F.2d 427, 429 (C.A.D.C ) Furthermore , of Respondent's no more than 30 employees , at least 7 were involved in these incidents It is also reasonable to assume that Respond- ent's coercive remarks in the active decertification election campaign were communicated to others See Frankel Associates, Inc , 146 NLRB 1556, 1557, Eldo-Craft Boat Co., Inc , 166 NLRB 280 LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend the customary cease- and-desist order in cases of this nature, designed to effec- tuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pur- suant to Section 10(c) of the Act, I hereby make the fol- lowing: RECOMMENDED ORDER W. T. Grant Company, Madison Heights, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively questioning employees concerning union activity or concerning their filing of unfair labor practice charges with the Board. (b) Through coercive pressures emphasizing the futili- ty of continued employee adherence to and representa- tion by the statutory representative of its employees. (c) Inducing or encouraging employees , in violation of the Act, to sign a decertification petition. (d) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of any of their rights under Section 7 of the Act. 2. Post in its store 681, in Madison Heights, Michigan, copies of the attached notice marked "Appendix. " 12 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3. Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply therewith.13 IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. i I At the conclusion of General Counsel's case , I dismissed the com- plaint allegation that Respondent also violated Section 8 (a)(1) by promis- ing increased benefits if they "voted out" the Union, General Counsel having failed to make out a prima facie showing of such violation II In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Tnal Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing. within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " W. T. GRANT COMPANY APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT coercively question our employees concerning union activity or concerning their filing of unfair labor practice charges. WE WILL NOT through coercive pressures emphasize the futility of continued adherence of our employees to and representation by their Union. WE WILL NOT induce or encourage employees, in violation of the Act, to sign a decertification petition. 97 WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- cerise of any of their rights under the Act. W. T. GRANT COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.