The May Department Stores Co.

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The May Department Stores Company and New Furniture & Appliance Drivers, Warehousemen & Helpers Local 196 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases 21-CA-8892 and 21-CA-8964 August 11, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On May 6, 1970, Trial Examiner Eugene K. Ken- nedy 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 de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed a reply 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 briefs, 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, as modified herein, and hereby orders that the Respondent, The ' In sec 111, B, 10th par , of his Decision, the Trial Examiner inadver- tently states that the complaint alleges unlawful surveillance as occurring on December 18, in contradiction of his correct observation in footnote 4 of the Decision that the complaint does not allege a violation of the Act on that date He finds that unlawful surveillance did occur on December 18 Since the matter was fully litigated and since the record amply supports the Trial Examiner's conclusion, we adopt the finding that Respondent en- gaged in unlawful surveillance on the date in question May Department Stores Company, Los Angeles, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order as modified below: Insert the word "protected" before the words "union activities" in the first paragraph of the notice. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: The issues presented by this matter involve questions of al- leged unlawful surveillance, unlawful interrogation of employees, and unlawful reprimand of an em- ployee in connection with activities protected by the National Labor Relations Act, as amended, herein the Act. This case was heard in Los Angeles, California, on February 17, 18, 19, 24, 25, and 26, 1970.' Upon the entire record, upon consideration of the briefs filed by the General Counsel and Respon- dent, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND JURISDICTION OF THE BOARD The May Department Stores Company, herein Respondent, is a corporation with a place of busi- ness and warehouse in Los Angeles, California, and is engaged in the operation of a nationwide retail department store enterprise. During the calendar year 1968, which is a representative period, in the course and conduct of its business operations, Respondent sold products valued in excess of $500,000 During the calendar year 1968, which is a representative period, in the course and conduct . of its business, Respondent purchased and received goods and services valued in excess of $50,000 directly from outside the State of California. Respondent is, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED New Furniture & Appliance Drivers, Warehousemen & Helpers Local 196, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein the Union, is a labor organization within the meaning of the Act. ' The consolidated complaint was issued on January 27, 1970, the charge in Case 21-CA-8892 was filed November 4, 1969, and the charge in Case 21-CA-8964 was filed on December 24, 1969 184 NLRB No. 102 THE MAY DEPARTMENT STORES COMPANY 879 III. THE UNFAIR LABOR PRACTICES A. Background and Prefatory Comments The events relied on by the General Counsel to establish unfair labor practices are: (a) A series of episodes in which a group of Respondent's execu- tives,' from a distance of about 10 feet, watched Respondent's employees as they were being ten- dered union literature by union organizers as the employees were leaving work. In addition, on one occasion, employees on the union organizing com- mittee were observed in the same manner as they were distributing union literature along with the regular union organizers; (b) two incidents where allegedly unlawful interrogation of employees about union activities were made by Respondent's super- visors; and (c) one instance where an employee received a reprimand which was incorporated in his personnel file for allegedly violating Respondent's rule against soliciting during working hours. In order to establish a violation under the first category of incidents set forth above, characterized as surveillance, the General Counsel offered the testimony of union organizers and employees along with photographs. Respondent, in connection with the alleged unlawful surveillance, as part of its defense offered the testimony of several of its ex- ecutives and also relied, to some extent, on photo- graphs. In this connection it is noted that, in addi- tion to the physical stationing of the executives as observers, the General Counsel includes in his in- dictment of Respondent's surveillance a display of a camera and an incident when an executive was ostensibly making some inscriptions on a piece of paper during the time the union organizers and em- ployees of the union organizing committee were at- tempting to distribute union literature as the em- ployees were leaving Respondent's premises. There were indications that Respondent's at- titude toward its employees had some paternalistic characteristics consistent with an atmosphere wherein management representatives were to be re- garded as friends by the employees and union or- ganizers by implication were to be regarded as non- friendly. This impression was gained from observing the demeanor of the employee witnesses and management witnesses during the course of their testimony as well as from specific portions of testimony in the record. William Carroll, vice president and personnel director for Respondent's California operations, of- fered three reasons why he decided to station Respondent's executives as observers of the hand- billing on all occasions when union literature was distributed. He stated that he stationed the execu- tives and supervisors so that they would be present on each distribution of union literature to em- ployees because he wished to have present "faces that would be familiar to all employees and perhaps put them at ease " and "should there be any circum- stances that might cause a disruption or any harass- ment in view of the fact that the employees in the building had in the past rejected the Union, we would have someone there to be of whatever assistance might be needed" and "thirdly, knowing that in the past when there had been numbers of Union representatives that close to the entrances, grouped the way these people were grouped, that the Courts had seen fit to give relief; and the only way we could present the situation was through wit- nesses and with some testimony as to what oc- curred, and the representatives were there for those purposes." In the absence of any probative evidence that the employees were in any way harassed, intimidated, or even annoyed by any union representative dur- ing the entire course of the handbilling, Respon- dent's assumption of the role as defender of its em- ployees against the union representatives could only be based on speculation as to the nature of fu- ture conduct of the union organizers . The evidence in the record relating to their conduct does not sug- gest any latent or possible threat to the safety or well-being of Respondent's employees. Con- sequently, the probabilities flowing from the facts in this record establish that the maintenance of Respondent's executives on at least eight occasions in proximity to the union handbilling manifested a connotation of disapproval on the part of Respon- dent to the employees with respect to the hand- billing, since the stationing of the executives as ob- servers had no apparent justification stemming from the conduct of the union handbillers. In connection with an incident of allegedly un- lawful interrogation about which there were con- flicting versions, Respondent's witness, William Tyler, Jr., a supervisor who allegedly made the in- terrogation, testified as follows: 0. Well what was the conversation? A. It was just sorting out the merchandise that had to be moved. It just started off as I re- call, that he was to go to the sixth floor and pick up various parts or load of merchandise to move to a certain area. And at that point he brought up the subject of the Union. Q. Can you recall in words or substance what he said about that subject? A. He felt that he had-well, he said directly that he thought he had cut his throat last night. I asked him what did he mean. And he said, "Well, I guess you saw what I did." And I said, "No I didn't see it; but I understand `The term "executive" appears somewhat more appropriate here than the term "supervisor" although the terms as used here are not mutually ex- clusive The group observing the distribution of union literature included the top level of management personnel at the facility involved Among the group at various times observing the distribution of union literature to em- ployees were Andrew Briggs, superintendent of the entire facility, Dennis McFarlane , his assistant , and Peter Sanchez , assistant manager in charge of the workrooms Levi Ives, another executive who reported directly to Briggs, was included among the observers The employees at the facility in- volved numbered in excess of 300 880 DECISIONS OF NATIONAL what happened " And at that point the subject went back to daily-what his daily activity would be on the job. And then I walked away. This conversation was with an employee, Richard Arvizo, who had been designated by the Union as a member of the employee organizing committee. The conversation had reference either to Arvizo's distribution of union literature on the previous evening, or his observing it being distributed. Tyler's version is consistent with the assumption of guilt by an employee because he was witnessed by his supervisor peacefully distributing, or observing the distribution of, union literature and by clear im- plication Respondent's supervisor acquiesced in this assumption of guilt for such conduct by an em- ployee. Another incident in the record supporting the im- pression that Respondent's posture manifested to its employees was one that equated loyalty to Respondent as necessarily including opposition to the Union is found in an incident involving em- ployee Charles Gannon. His credited and uncon- tradicted testimony concerns a conversation he had with Supervisor Charles Harkins: Q. All right. Now, would you tell us, please, what he said to you and what you said to him. A. In his friendly way, he said, "Oh, I see that your friends are out there again." What he meant was the Teamsters a couple of days be- fore. 0. All right. What else did he say? A. Then, he asked me whether Jason Mur- ray was handing out leaflets; and I did not give him an answer of yes or no to him. Q. Did you say anything at all to him? A. I had said, "Could you not see whether he was out there, because you were across the street." On cross-examination in connection with the conversation with Harkins, Gannon was asked if Harkins said anything further, and Harkins replied: "Well, he said that he could not understand why Murray would do something like that." This com- ment of Respondent's supervisor, by necessary im- plication, made it evident to an employee that handing out union literature or observing it being handed out was regarded as something less than proper by Respondent. The photographs of the executives as they ob- served the union handbilling reflect a group made prominent by their attire. At one point in the record the executives were characterized as the men in suits and ties to distinguish them from the rank-and-file employees on the occasions of the union handbilling. This distinction in attire would tend to arrest the attention of the employees ' There were two occasions when cameras were displayed by Respon- dent's representatives during the course of the handbdhng McFarlane, Respondent 's personnel manager, had a camera on display during the handbilling on December 18, and Thomas Annable, a professional LABOR RELATIONS BOARD emerging from the building, and the stationing of Respondent's top ranking executives only when union organizers were present would likely tend to inhibit employee response to the handbilling. This was so because the foregoing points to an at- mosphere were an employee would feel uncom- fortable accepting union literature under the scru- tiny of Respondent's executives. B. The Surveillance The dictionary definition of surveillance includes both open and spying observation. Here the surveil- lance is claimed to be unlawful in large part because of the openness and prominence of the ex- ecutives and supervisors observing the distribution of the union literature, the open display of cameras,3 and the prominent stationing of an ex- ecutive making notes as employees were leaving the building. The General Counsel claims unlawful in- terference based on the camera display and prominent note-taking , as well as the stationing of the executives in the proximity of the employees being tendered union literature . All of the conduct and posture of Respondent 's representatives, which is the subject of this dispute, occurred in plain view and within approximately 10 feet of employees as they were leaving work through what is charac- terized in the record as the employees ' entrance. The union handbilling occurred on September 23, October 1 , 7, 16, 22, and 28 , November 5, and December 18, 1969.4 The executive would be present from about 4:20 p.m ., shortly before the end of a shift at 4 . 30 p.m ., until shortly after 5 p m. The number of Respondent 's representatives ob- serving the union handbilling ranged from three to seven. As previously stated , the handbilling was generally carried out by nonemployee union representatives . However, on November 5, em- ployees from the organizing committee also joined in distributing union literature. The surveillance occurred at a portion of Respondent 's building called the employees' en- trance . The entrance way was 1 1-1 /3-feet wide and was recessed from the sidewalk about 3 feet. The sidewalk on which the people distributing union literature positioned themselves was 12 -feet wide. There were as many as five union organizers sta- tioned approximately abreast of the entrance way at one time during the handbilling , although they of necessity had to move about as the employees emerged from the building. A declared purpose for the presence of Respon- dent's executives during all of the handbilling was to gather evidence to be used in the event an appli- cation for an injunction was indicated and in order to call the police if a disturbance occurred . That no freelance photographer , had one on display on October 7 ' Unless otherwise indicated, all dates herein are 1969 The complaint was issued on December 18 and does not allege a violation of the Act on that date THE MAY DEPARTMENT STORES COMPANY application for an injunction was made nor the po- lice called, although the entire sequence of the handbilling was conducted under the close scrutiny of Respondent 's executives , is a testimonial to the appropriate conduct of those distributing union literature. At the close of the day shift approximately 300 employees would emerge from the building at 4:30 p.m. It would ordinarily take about 5 minutes for them to leave the building. Probably some dif- ference in the tempo of the employee departure was caused by the handbilling. Pausing by em- ployees to accept or glance at a handbill would ac- count for some delay. It is problematical to what extent the exiting of employees was slowed by the physical presence of the persons distributing handbills.' The number of persons distributing handbills at the employees' entrance ranged from less than five to seven. The Union's aim was to make the hand- bills available to anyone who wished to have one within the brief time required for the approximately 300 employees to leave. It seems reasonable to assume that any obstruc- tion of the employees' entrance and the delay occa- sioned was slight or otherwise Respondent would have moved to take steps to correct the situation, inasmuch as obtaining evidence for an application for an injunction was a declared purpose of the presence of the supervisors observing the hand- billing. Franklin O'Leary, one of the union organizers, credibly described the scene consistent with the description of Sanchez, "It wasn't really possible to line directly in front of the door because the people came out in a hurry.and we would more or less have to stand behind each other. As the front guy missed them the next one would hand them a hand- bill and so on." O'Leary witnessed more than 50 employees refusing leaflets, and Taylor, another or- ganizer, saw some " senior citizens" refusing them. Dennis McFarlane, personnel manager of Respondent for the facility involved in the dispute, arranged for freelance photographer Tom Annable to be present on October 7 for the purpose of tak- ing photographs. Annable was present when people were coming out of the employees' entrance and he left the scene some time after 4:30 p.m. One of the photographs introduced by the General Counsel shows Annable pointing a camera in the direction of the employees' entrance. The testimony of Per- ' Sanchez, one of Respondent 's executives, estimated the handbilling on occasions caused a delay of 5 to 10 minutes in the departure of the em- ployees Sanchez was an executive who commenced working for Respon- dent on October 13 He made some notes relating to the November 5 handbdlmg which were incorporated in the record These notes reflect some zeal on the part of Sanchez in gathering data presumably unfavorable to the Union , and for this reason it seems likely that his estimate of the delay is exaggerated , inasmuch as no other Respondent 's witness did more than to characterize the handbilling as causing some backing up or slowing down of employees " Mihalow , the chief organizer, requested organizers O'Leary and Taylor 881 sonnel Manager McFarlane, as well as Annable, places Annable in the vicinity of the employees' en- trance, with his camera in plain view, at a time when the employees were leaving work. As previously indicated, the complaint alleges unlawful surveillance as occurring on December 18. It was on that date McFarlane took pictures of the handbilling and was present with his camera in plain view of departing employees. This conduct is consistent with Respondent's previous actions designed to indicate that the employees were under observation when in the presence of the union or- ganizers. Peter Sanchez, a recent addition to the executive staff of Respondent, commenced working for Respondent on October 13, 1969. He was present about half an hour during the handbilling on November 5, making "cryptic" notations on the blank part of a union leaflet. This attracted the at- tention of Joseph Mihalow, the union representa- tive in charge of distributing the handbills. Pictures in the record show Sanchez making notations at a time when the employees on the union organizing committee were also handing out union literature. November 5 was the day employees joined the regular union organizers in distributing literature, and one photograph shows an employee member of the handbilling group looking at Sanchez while Sanchez was apparently making notes.' C The Alleged Unlawful Interrogations There were two incidents relied on by the General Counsel as constituting unlawful interroga- tion of employees with reference to union matters. One involved employee Richard Arvizo, and the other, employee Charles Gannon. The alleged unlawful interrogation of Arvizo in- volved a supervisor, Walter Tyler. In his testimony, Arvizo claimed Tyler came up to him on the morn- ing of October 2 and asked him if he was for the Union or the Company, and that he replied he would have to read the pamphlets to find out for himself. Tyler's version of a conversation with Arvizo was set forth above in connection with an attempt to depict the atmosphere in which the alleged unlaw- ful surveillance occurred. Tyler testified that on some occasion in the fall of 1969, on the morning following the distribution of union literature, Ar- to attempt to see what Sanchez was writing Both testified they glanced over Sanchez' shoulder and saw a list of names Charles Gannon, a witness for the General Counsel, described the nature of Sanchez ' writing con- sistent with Sanchez ' description of his markings Since there is no indica- tion in the record that Sanchez was writing on more than one union leaflet, it seems likely that O'Leary and Taylor were in error Nevertheless, the fact remains that the new executive , stationed in a prominent position, was ap- parently making notes while observing employees emerging from the em- ployees ' entrance and while employees were distributing handbills It is also noteworthy that this was the first occasion employees were in the group dis- tributing union literature 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vizo came up to him and said that he had thought he had cut his throat the previous evening. When Tyler asked him what he meant, Arvizo replied, "Well I guess you saw what I did"; and Tyler re- plied, "No, I didn't but I understand what hap- pened." Both Tyler and Arvizo are agreed only on the fact that one conversation pertaining to the Union occurred between them. Aside from their agree- ment on this, their respective versions are con- sistent with two conversations: one occurring on October 2 and one on November 6, the morning after Arvizo first distributed handbills, inasmuch as Arvizo on October 1 did not do anything except perhaps to observe handbills being distributed, but on November 5 he "did" something; that is, he dis- tributed handbills. Although this hypothesis seems possible, the record does not warrant such an in- terpretation in view of the clear indication by both Tyler and Arvizo that only one conversation involv- ing the Union occurred. Accepting the premise that only one conversa- tion with reference to the Union occurred, Tyler's version is more credible as it does not appear likely to have been a product of Tyler's imagination. Although not free from doubt, the version of Ar- vizo is rejected as not being supported by an adequate measure of proof. Consequently, it is found the General Counsel has not established that interrogation of Arvizo relative to the Union oc- curred on. or about October 2 or any other occa- sion. The alleged interrogation of Charles Gannon in- volved his supervisor, Charles Harkins. Harkins did not testify. Gannon appeared to be a trustworthy and credible witness. On November 7, Gannon went into Harkins' office to discuss some matters relating to his work. Harkins, in a friendly manner, referring to recent union handbilling, said, "Oh I see that your friends were out there again." Then Harkins asked Gannon if employee Jason Murray was distributing leaflets, and Gannon did not respond, but asked Harkins whether or not he could see Murray since Harkins was across the street. Harkins went on to say to Gannon that he could not understand why Murray "would do something like that." Murray was an employee under Harkins' supervision and was one of the em- ployees designated as being on the organizing com- ' The rule read MANAGEMENT BULLETIN TO ALL PERSONNEL NOTICE The Company Policy regarding solicitation is stated below It is a violation of store rules for outsiders to come on Company premises to solicit for any purpose which would interfere with the work of storemembers or tend to irritate our customers Our invitation to the public is to enter and to use certain areas of our premises for shopping and purposes incidental thereto No solicitation by outsiders mittee in a letter from the Union to Respondent dated October 31, 1969. Gannon explained that because of Harkins' position and the interposing people, Harkins would have had difficulty in seeing Murray distributing literature at a time when Gan- non saw Harkins in front of the employees' en- trance on November 5. Irrespective of whether or not Harkins was in a position to see Murray, the in- terrogation and comment addressed to Gannon are clear interference, restraint, and coercion by a su- pervisor with respect to protected activities. D. The Menchaca Incident Frank Menchaca had been an employee of Respondent for about 7 years. He was a member of the union organizing committee and had been designated as such in the communication to Respondent from the Union dated October 31. Menchaca had also been an observer for the Union in an election conducted by the National Labor Relations Board On December 2, Menchaca was called into the office of Levi Ives, an assistant to Superintendent Briggs. Menchaca's superior, Charles Harkins, was present in the office with Ives. When Menchaca en- tered the office, Harkins handed him a copy of Respondent's no-solicitation rule 7 After Menchaca had read the paper containing the no-solicitation rule, Harkins told him he had been soliciting and Menchaca replied that he didn't know what Har- kins was talking about, and Harkins rejoined with an admonition to Menchaca not to play games. Harkins then asked Ives if he had anything to say, and Ives replied that Harkins had come straight to the point. Menchaca persisted in denying he had done any solicitation during working time. Ives refused to give Menchaca any indication as to the nature of the solicitation, when it occurred, its du- ration, or the person who was allegedly solicited by Menchaca. A "Personnel Comment Slip" was then prepared and signed by Harkins and Ives to be incorporated in Menchaca's personnel record. This personnel comment slip stated: Employee interviewed this date regarding violation of the "no solicitation rule" during working time. He was also given a copy of the "no solicitation rule" to read at this meeting. Employee was informed that any violation of Company premises is permitted, and no outsiders are to be per- mitted in any restricted area It is also a violation of store rules for storemembers to solicit other storemembers or to be solicited for any purpose during their working time Working time is for work , and storemembers cannot perform their work properly if interfered with solicitation Any statement issued prior to this date on this subject is rescinded Any solicitation in violation of this policy is improper solicitation MAY COMPANY-CALIFORNIA March 11, 1968 THE MAY DEPARTMENT STORES COMPANY of this rule by him in the future would result in severe disciplinary action. The basis for this action by Respondent stemmed from a report made to Ives by an employee of 17 years named Josephine Bojorquez. On November 19, Bojorquez asked to speak with Ives and on this occasion told him about alleged events involving Menchaca. At this time she did not tell Ives when these alleged events occurred, but as the record un- folded, it developed they were placed by her ap- proximately 2 months earlier.' There is considerable confusion reflected in the testimony of both Bojorquez and Ives relating to the occasion when she talked to Ives about Menchaca. On direct examination, the testimony of both Bojorquez and Ives has Bojorquez first com- plaining to Ives about Menchaca asking her to sign a union card at work. On cross-examination they both conceded that Bojorquez first complained about Menchaca's asking her to sign a union card as he was driving her home from work. It was after she had related this to Ives that he asked her if there were any other incidents and it was then that Bojorquez told Ives that Menchaca had asked her to sign a union card at work. On his direct examination, Ives said he specifi- cally asked Bojorquez if Menchaca had asked her to sigma union card at work. On cross-examination, Ives denied that he had asked Bojorquez if Menchaca had approached her on worktime. Bojorquez also told Ives that Menchaca, about a week after his alleged solicitation at worktime, asked her if she didn't feel funny about being the only one who had not signed a union card. Ives did not make any inquiry from Bojorquez when these alleged events occurred or how much worktime was consumed. The testimony of Bojorquez estimated that the comments of Menchaca during worktime took from 2 to 3 seconds. After receiving this report from Bojorquez, Ives prepared a document for her signature as follows: To Whom It May Concern: This is to inform management of May Com- pany that Frank Menchaca, a checker in the 67 building, 1st floor, approached me during working hours and solicited my signature of (sic) a application for membership on a Teamster Union card. Since my refusal to sign a card he has periodically approached me during working hours and asked if I don't feel funny working and not having signed a card. My reply was "No." I give this statement of my own free will. /s/ Josephine Bojorquez Witnessed: Levi R. Ives and C. Harkins On cross-examination, Bojorquez admitted she did not know what "periodically" meant and was sure she did not tell Ives that she was bothered by "This timing of the events is determined since Bojorquez placed the first event with Menchaca prior to September 27, when the first handbilling oc- curred 883 Menchaca's comments which were the subject of her complaint to Ives. Based on the foregoing testimony of Ives and Bojorquez and assuming, arguendo, it merits any credence, it would appear the strongest case that could be made against Menchaca for violating Respondent's "no solicitation rule" is that about 2 months prior to the complaint of Bojorquez to Ives, Menchaca had, on one occasion when he did not have a card with him, asked Bojorquez to sign a card during working hours. This request took about 2 or 3 seconds. About a week later during working time he allegedly asked Bojorquez if she didn't feel funny about being the only one who had not signed for the Union. This latter alleged event does not spell out a violation of the Respondent's "no sol- icitation rule." In sum, the violation of the "no sol- icitation rule" based on the evidence offered by Respondent consists of an event occurring 2 months previous to its reporting which took 2 to 3 seconds and, according to the testimony of the per- son allegedly being solicited, did not bother her. Although the record supports a finding that Bojorquez did make a complaint to Ives on or about December 2, 1969, concerning Menchaca, it does not support a finding that Menchaca, in fact, solicited her signature during working hours. Although the precise reason for Bojorquez' report- ing Menchaca's solicitation of her signature while driving her home from work is undisclosed by this record, it must be found that she was motivated by animosity toward Menchaca. Otherwise, no plausi- ble reason is suggested for her reporting an episode that occurred 2 months previously. Since she only mentioned Menchaca's solicitation during working time, it is probable that this did not play a signifi- cant part, if any, in her motivation in complaining about Menchaca to Ives. It may well have appeared to Bojorquez at the time as an added complaint she could make about Menchaca even though it was not based on objective fact. In any event, her testimony is so unreliable that it cannot support a finding that Menchaca, in fact, solicited her signature for a union authorization card during working hours. With respect to Respondent's reliance on this statement of Bojorquez as a basis for issuing a reprimand to Menchaca and incorporating it in his personnel file, there are additional factors to be considered. Ives' failure to inquire from Bojorquez when the alleged solicitations occurred, his failure to make an inquiry if it interfered with her work, his literary license in using the term "periodically" although Bojorquez at most. mentioned only two episodes during working hours when she was approached by Menchaca about the Union, and only one occasion when she made a claim that she was being solicited by Menchaca during working hours, all points to the failure of Respondent to make an adequate in- vestigation of Menchaca's alleged dereliction. In addition, Menchaca's guilt was assumed, judging from the conduct of Ives and Harkins, when 427-835 0 - 74 - 57 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Menchaca was first confronted with his alleged violation . He was handed the no-solicitation rule, and, after he read it and denied he had broken it, his denial was ignored and a reprimand incor- porated in his personnel file. In short, the record amply warrants a finding that there was no reasona- ble basis for Respondent 's alleged belief that Menchaca had violated the "no solicitation rule," in view of its failure to make a reasonable investiga- tion and in distorting the information that it ob- tained from Bojorquez. Menchaca's denial of talking to Bojorquez about union matters during working hours or soliciting her signature during working hours was straightfor- ward and credible and consistent with his denials as reported by Respondent 's witnesses . Therefore Respondent did not have a reasonable basis for be- lieving Menchaca had violated the "no solicitation rule" while engaging in activities protected by the Act. E. Concluding Findings With respect to the alleged unlawful surveillance by Respondent 's executives and supervisors; three to seven executives and supervisors , within approxi- mately 10 feet of the employees' entrance, ob- served the distribution of union literature for the entire time that it was being distributed on at least eight occasions. Since they were present during this entire period, it follows that no employee would be in a position to accept any union distribution unless he wished to consider the probability of being ob- served by one of Respondent's representatives. The attitude of Respondent as being unsympathetic to union organization was reflected above. The presence of these executives and supervisors coin- cided with the refusal of some employees to accept union leaflets, including "senior citizens." This noticeable refusal among this class of employees suggests apprehension of economic reprisal if hand- bills were accepted. " Briggs did not testify with respect to any alleged incident McFarlane testified as follows with respect to this subject of abusive language directed to Briggs by a union organizer Q What did Mr Young do and say9 A Well, he somewhat attempted to badger Mr Briggs, in my opinion He was making remarks such as, "By the time we're through with you, you will lose more hair " And I think Mr Briggs said something to the point of, "Why don't you mind your own business " And the other gentlemen then remarked , "Are you losing your cool," and so forth and carried on like this Q Where was Mr Young carrying on in relation to where Mr Briggs was standing9 A They were approximately a foot and a half, two feet apart Q Were they facing each other9 A No They were at angles with each other This testimony of McFarlane contains the only admissible evidence in the record bearing on misconduct of the union organizers Since this was the only testimony produced although there were many potential witnesses to any other untoward action , it must be fairly assumed that this was the strongest type of deviation from a norm of genteel conduct that could be charged to the union organizers 10 The following were recitals in the application for an injunction 12 On or about September 13, 1968, between the hours of 5 00 o'- clock p in and 10 00 p in defendants established, assembled and congregated pickets around plaintiff's service building located at Respondent's claim that the surveillance was in- itiated and continued because of the anticipation of unlawful conduct by Respondent's representatives does not withstand scrutiny. No probative evidence of any misconduct by any union representatives was offered by Respondent despite the presence of ex- ecutives at all distributions, who were there specifi- cally to watch for such misconduct. Any intracompany discussions at which alleged misconduct of union representatives was charac- terized by Respondent's officials can hardly serve • as a substitute for the testimony of officials present during all the distributions and at a time when such characterized misconduct allegedly occurred. For example, as an alleged basis for the continua- tion of the stationing of the executives in a position to observe the handbilling, comments at a con- ference of Respondent's officials on October 2 were introduced into the record. William Carroll, vice president and personnel director for May Company of California, testified that McFarlane, personnel manager, and Briggs, superintendent, described the conduct of union organizers as using abusive language with some personally directed to Briggs, and described the reaction of female em- ployees who felt intimidated. In view of the fact that McFarlane and Briggs, who both testified, failed to substantiate this intracompany conversa- tion,9 it must be concluded that the version given to Carroll was not warranted by actual occurrences. It was Respondent's contention that a prior episode, occurring about a year previously and in- volvin a different union, when there was mass• picketing at the same location and an injunction was obtained by Respondent, warranted the presence of the supervisors and executives as evidence gatherers in the matter. The basis on which the injunction in the prior episode was granted reflects a major disparity in the type of conduct carried on by pickets in the previous episode and the organizers involved in this proceeding. 10 Jefferson and Grand, Los Angeles, California Said pickets were there congregated in and on the sidewalks, driveways and pedestrian walkways adjacent to plaintiff's service building, and in particular in front of the two customer entrances of said service building which was, on said occasion , open for a warehouse sale Said pickets carried and wore picket signs, and walked following one another at a distance of no more than two to three feet apart in a rapid manner , forming two single file columns moving in opposite directions in front of said ser- vice building and more particularly, the two customer entrances to said service building and in all of the driveways to the parking lots to said service building, in a manner calculated to impede pedestrian and vehicle traffic and render it difficult, if not impossible , to enter plain- tiff's service building and parking lots 13 At all times mentioned on September 13, 1968, in addition to the picketers, said defendants, utilized bull horns operating simultane- ously with messages directed at customers and prospective customers of plaintiff, and in addition thereto defendants stationed directly in the middle of the sidewalk leading into plaintiff's service building persons distributing literature , which persons along with the bull horns and the sheer number of the pickets intimidated , threatened , coerced, an- noyed and harassed plaintiff's employees, customers , prospective customers and others while such persons were seeking to enter or leave plaintiff 's service building ( Resp Exh 15 (a) p 5, II 17-30 to p 6,11 1-24) THE MAY DEPARTMENT STORES COMPANY In view of the obvious dissimilarity in the events described in the injunction proceeding from those involved here, it is found that using the prior episode as a basis for continuing the surveillance in this matter was not warranted after September 23. Respondent's alleged reasons in stationing execu- tives to observe the handbilling on that date has at least a surface plausibility, but this record offers no basis for a finding that the surveillance after that date had any reason other than to intimidate and interfere with the union handbilling. Persistence in the surveillance after September 23 without a law- ful objective retrospectively establishes that the ob- servation on that date was at least in part not without an intent to unlawfully interfere with em- ployees' organizational rights. It is unnecessary therefore to determine whether Respondent's al- leged reasons for surveillance would justify other- wise unlawful interference with rights of employees protected by Section 7 of the Act The foregoing establishes there was no lawful basis for the Respondent to continue having its su- pervisors and executives stationed at the em- ployees' entrance during every occasion the hand- bills were being offered to the employees emerging from the Respondent's building. In the context of the events and circumstances presented by the record, it is clear that the presence of Respondent's executives and supervisors on September 23, Oc- tober 1, 7, 16, 22, and 28, November 5, and December 18, at the employees' entrance to its warehouse facility, interfered with, and tended to interfere with, restrain, and coerce, Respondent's employees in the exercise of their right to self-or- ganization. A finding from a recent Board Decision is applicable to the facts presented by this record, Tex Manufacturing Company, 180 NLRB 808: We agree with the Trial Examiner's finding that Respondent's stationing of supervisors at the plant exit gate interfered with the distribu- tion of union literature and constituted surveil- lance of union activities within the meaning of Section 8(a)(1) of the Act. Our finding is based upon evidence that Respondent only began stationing supervisors at the plant gate after the Union commenced handbilling activi- ties, at this location, and the absence of any plausible reason for positioning supervisors at the plant gate. In such circumstances, we can only infer that Respondent's action was for the purpose of discouraging and deterring em- ployees from engaging in handbilling activities, a right guaranteed them by Section 7 of the Act. Respondent's display of a camera at the em- ployees' entrance during the handbilling activities, irrespective of whether pictures of employees were taken, would inevitably tend to have a coercive and 885 restraining effect upon the employees. The em- ployees would have no knowledge why a camera would be displayed except to gather evidence to be used against them. Since the camera was displayed where the employees would likely see it as they were leaving work, it follows that in the context of the events presented by this record, this display by Respondent interfered with, restrained, and coerced and tended to interfere with, restrain, and coerce the employees in the exercise of their rights under Section 7 of the Act. The same result flows from the display of apparent note-taking by Sanchez on November 5. On this date he was in a prominent position to be seen by the employees leaving work, and for about 45 minutes, at intervals, was making notations, or appearing to do so, on a piece of paper. November 5 was the first date that em- ployees engaged in handbilling. One of the photo- graphs in this record shows the employees standing at the employees' entrance and a few feet away, facing them, was Sanchez making notes on a piece of paper. For the reasons stated previously, it has been found that the record does not adequately support a finding that Tyler interrogated Arvizo on the oc- casion claimed by the General Counsel and by the testimony of Arvizo. With respect to the interrogation of Gannon by Supervisor Harkins, it has been found that such in- terrogation did occur and that Gannon was inter- rogated with respect to whether or not an em- ployee-member of the union organizing committee distributed handbills. It has been further found that on this occasion Harkins made the comment "I can't understand why Murray would do a thing like that." It is noted that Gannon characterized Har- kins' opening comments as friendly, wherein Har- kins said, "Oh, I see your friends were out there last night." This type of attitude, so far as this record goes, may or may not have extended to the inter- rogation concerning Murray and also the comment of disapproval about Murray's engaging in hand- billing activity. However, even if the friendly at- titude persisted throughout all of Harkins' com- ments, it would not immunize them from being violations of the Act." As has been previously found, this record does not warrant a finding that Menchaca solicited a signature for the Union during working hours even for a period of 2 or 3 seconds. The record does sup- port a finding that Respondent's investigation of the supposed violation on the part of Menchaca was practically nonexistent and evidenced a disposition to seize upon any adverse report against Menchaca, in part at least, because of his role as a union ad- vocate. A statement in Arkansas Grain Corporation, 166 NLRB 1118, is an appropriate description of the episode involving Menchaca: " See Arkansas Grain Corporation, 160 NLRB 309, where the fact that the interrogating supervisor was a personal friend of the employee did not confer immunity against otherwise unlawful interrogation 886 DECISIONS OF NATIONAL In our opinion, the dubious nature of the warnings and the questionable circumstances under which they were issued, when con- sidered in the light of Respondent's opposition to employee organization and its knowledge of Edwards' role as a union adherent, adequately establish that the warnings were issued as part of a campaign of harassment against Edwards because of his union activities. For these reasons, we find, contrary to the Trial Ex- aminer, that the Respondent violated 8(a)(3) and (1) of the Act by issuing warnings to Ed- wards which could be used to support a future discharge.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in sec- tion III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is, and at all times material herein has been, an employer within the meaning of the Act. 2. The Union is, and at all times material herein has been, a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed them by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating against Frank Menchaca, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 12 Even assuming , arguendo , that Respondent had a basis for a reasonable belief that Menchaca had violated the "no solicitation rule" where , in fact, he had not , this would not immunize Respondent 's act from being in viola- tion of Section 8(a)(I ) of the Act In such circumstances , good faith on the part of the employer is not a defense if the employee had not, in fact, broken a company rule in engaging in protected activities N L R B v Bur- nup & Sims, Inc , 379 U S 21 However, as previously indicated, this record does not provide a basis for a reasonable belief on the part of Respondent that Menchaca had violated the "no solicitation rule," nor probative evidence that the rule was broken ' 1 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein LABOR RELATIONS BOARD 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. In order to remedy the adverse ef- fect of Respondent's action with respect to Menchaca's alleged violation of a no-solicitation rule, it, will be recommended that Respondent delete and remove all reference to this incident from Menchaca's personnel file and that it inform Menchaca in writing that this has been accom- plished. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, it is recommended that Respon- dent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in surveillance of employees' union activities or interrogating employees with respect to union activities. (b) Discouraging membership of its employees in the Union by incorporating in employees' per- sonnel files warnings for engaging in protected ac- tivity. 2. Take the following affirmative action which is found will effectuate the policies of the Act: (a) Delete from Frank Menchaca's personnel file all references to an alleged violation of Respon- dent's "no-solicitation" rule involving Josephine Bojorquez. Notify him in writing that this has been accomplished. (b) Post at its facilities in Los Angeles, Califor- nia, which were involved in this proceeding, copies of the attached notice marked "Appendix. 1113 Co- pies of said notice, on forms provided by the Re- gional Director for Region 21, shall, after being duly signed by an authorized representative, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 14 shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " THE MAY DEPARTMENT STORES COMPANY IT IS FURTHER RECOMMENDED that , unless on or before 20 days from the receipt of this Decision and Recommended Order Respondent notifies the aforesaid Regional Director in writing that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in New Furniture & Appliance Drivers, Warehousemen & Helpers Local 196, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, by giv- ing adverse personnel comment slips to em- ployees engaging in union activities. WE WILL NOT engage in surveillance of our employees ' union activities or interrogate them 887 with respect to such union activities. WE WILL remove from Frank L. Menchaca's personnel file a personnel comment slip repri- manding him for allegedly violating a company no-solicitation rule. THE MAY DEPARTMENT STORES COMPANY (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 849 South Broadway, Los Angeles, California, Telephone 213-688-5229.