Retail Clerks Union, Local 770

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Union, Local 770 Retail Clerks Interna- tional Association, AFL-CIO and Carl A. Palmer. Case 31-CA-2728 January 14, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 14, 1973, Administrative Law Judge James R. Webster issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Respondent and the General Counsel also filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. The Administrative Law Judge found , inter alia, that Respondent Union violated Section 8(a)(3) and (1) of the Act by discharging six employees on November 12, 1971, because of their support for the candidate who opposed the incumbent president of Respondent Union in an intraunion election.' The Administrative Law Judge also found that Respon- dent engaged in certain conduct which interfered with the exercise of employees' rights and thereby constituted a violation of Section 8(a)(1) of our Act. We disagree with both of these conclusions. The record evidence shows that Respondent is a local union with approximately 25,000 members. It has an office staff composed of approximately 100 employees. These employees are under the direction and control of the union president who serves as the chief executive officer in charge of the administrative offices. None of Respondent's employees are repre- sented by an outside labor organization and all are required as a condition of employment to become members of Respondent Union after 30 days. With respect to the six employees in question, the evidence shows that they were all discharged on November 12, 1971, the day after the intraunion election. All had been active during the election campaign and had openly supported the candidacy of President DeSilva's opponent. They attended I The Administrative Law Judge dismissed the complaint with respect to the allegation that employee Carl A Palmer was discharged in violation of the Act on September 10, 1971, finding instead that Palmer was discharged because of dereliction of duties at a time when his probationary period was meetings, stuffed envelopes, and passed out literature for the opposition candidate. One of the employees performed functions for the opposition candidate commonly associated with those of a campaign manager. Several of the employees allegedly made remarks favorable to the opposition candidate to union members at the union offices. The decision to discharge the six employees was made solely by the president (and chief executive officer) of Respondent. At the time of the discharge, President DeSilva stated that he took the action in the best interest of the membership who expect unqualified, loyal, and dedicated service. Principally on the basis of this evidence as to motivation, the Administrative Law Judge found that Respondent violated Section 8(a)(3) of the Act by discharging these employees because of their internal union electioneering activities. Such a finding fails to give proper effect to other elements which are necessary as a predicate for an 8(a)(3) violation. Thus, in order to find a violation of Section 8(a)(3) of the Act, there has to be evidence to show that the discharges were motivated by union animus and that the conduct would have the foreseeable effect of either encouraging or discourag- ing union membership. Here, we must start with the fact that each of the six employees was already a member of Respondent Union and that they, like their fellow employees, were required to secure and retain membership in the Union as a condition of employment. There is no evidence that any of these employees attempted to resign his membership. On the contrary, their interest clearly was in effecting managerial change within the organization itself, an objective which required that they maintain their status as members of the Union. Likewise, there is no evidence that any of these employees was engaged in concerted or union activities in seeking a separate and independent representative for the purpose of collective bargaining with Respondent. Accordingly, in view of the lack of any evidence of encouragement or discouragement of union membership by those who were discharged, we shall dismiss the complaint insofar as it alleges a violation of Section 8(a)(3) of the Act. Furthermore, we are not persuaded that Respon- dent violated the Act in any other manner by the discharge of the six employees. The Board has found violations of Section 8(b)(1)(A) in circumstances where a union has taken various discriminatory coming to an end We agree with the Administrative Law Judge's disposition of this allegation . but even if we disagreed with him on this issue, a dismissal of the allegation would nevertheless be required under our theory of the case, which is set forth in the body of our Decision 208 NLRB No. 54 RETAIL CLERKS UNION, LOCAL 770 actions against a member who opposed the reelection of an incumbent union official.2 However, in each of those cases, the discriminatory action was directed at the union member in his capacity as a union member. There is no allegation in the instant case, nor does the record establish, that Respondent took any action against the six employees in their capacity as union members, i.e., Respondent did not fine, discipline, or revoke their membership, nor did it deny them rights or privileges available to other union members during the intraunion election campaign. Instead, Respondent's actions were direct- ed against the six only in their capacity as its employees. In two recent Decisions,3 the Board cited the Labor-Management Reporting and Disclosure Act as the source for the protection of a union member's right to participate fully and freely in the internal affairs of his own union. One of the purposes for which the Labor-Management Reporting and Dis- closure Act was enacted was the regulation and protection of the rights of individuals in a union- member relationship. Unlike the cases previously cited, it is the employer-employee relationship which is the essence of the instant case. Consequently, it would be inappropriate to look to the Labor-Man- agement Reporting and Disclosure Act to find the same underlying public policy to support a violation of our Act where an employer-employee relationship is involved. Therefore, we are persuaded that the proper exercise of our responsibilities requires that we consider and resolve the legality of these discharges within the framework of our own Act. Turning to the question of whether the discharge of the six employees by Respondent violated Section 8(a)(1) of our Act, we would reiterate the fact that these employees were not engaged in organizing activities for the purpose of seeking a separate and independent representative. Nor were they seeking to redress grievances within the framework of the existing employer-employee relationship. Rather, it would seem that the thrust and purpose of their activities was to effect a change in the top manage- ment of their Employer Union, the election activities merely serving as the means by which this goal could be accomplished. However, an employee of a union, like any other employee, has no protected right to engage in activities designed solely for the purpose of influencing or producing changes in the management hierachy. Nor, in pursuing such an object, are the employees in any more favorable posture when these efforts are directed towards a group outside the internal organization itself, such as the union membership or the stockholders of a corporation. An attempt by the dischargees to influence the selection of their chief executive officer is not brought within 357 the protection of the Act because the employer happens to be a union. Finally, the Administrative Law Judge found certain violations of Section 8(a)(1) of the Act relating to Respondent's interrogating and polling employees , soliciting employees to take certain actions, and creating the impression of surveillance of employees . It appears that in each instance Respondent's conduct arose within the context of the intraunion election campaign . Consequently , for the reasons set out above , we find that Respondent's conduct does not violate Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, as alleged in the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 2 Carpenters Local Union No 22, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (William Graziano, d/b/a Graziano Construc- tion Company), 195 NLRB I (fined a member), and Hoisting and Portable Engineers, Local No 4 and its Branches of the International Union of Operating Engineers (The Carlson Corporation), 189 NLRB 366 (denied a member of the use of the union-operated nonexclusive hiring hall) 3 Carpenters Local Union No 22, (William Graziano d/b/a Graziano Construction Company), supra, and Jacobs Transfer, Inc, 201 NLRB 210 The Jacobs case, in which the Board found a violation of Sec 8(a)(1) of the Act, is distinguished from the instant case by the fact that the dischargee's intraunion activities were inextricably tied to his effort to secure changes in employment conditions through changes in the collective -bargaining agreement DECISION STATEMENT OF THE CASE JAMES R. WEBSTER, Administrative Law Judge : This case was heard in Los Angeles, California on September 26, 27, and 28, 1972, upon a complaint of the General Counsel and answer of Retail Clerks Union, Local 770, Retail Clerks International Association, AFL-CIO, herein called Respondent or Union . The complaint was issued on July 28, 1972, on charges filed November 19, 1971, and July 27, 1972. The complaint alleges that Respondent discharged Carl Palmer and six other employees of the Union because they supported and campaigned for the unsuccessful candidate for the presidency of the Union and that Respondent interfered with, restrained, and coerced employees in their right to support such candidate, and that Respondent has thereby violated Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, including my observation of the demeanor of witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following. 1 FINDINGS OF FACT 1. JURISDICTION Respondent is a local union affiliated with the Retail Clerks International Association, AFL-CIO, and main- tains its principal place of business in Los Angeles, California, where it is engaged in organizing unrepresented employees and in representing its members and other employees in collective bargaining with various employers concerning wages, hours, and other terms and conditions of employment. Respondent receives an annual gross income in excess of $500,000, of which in excess of $50,000 is remitted annually to the International Union in Washington, D.C. Respondent maintains collective-bar- gaining agreements with Food Employers Council, Inc., and its employer-members, including Safeway Stores, Inc., Food Giant Markets, Inc., Ralphs Grocery Co., and Voris Grocery Co., which employers are engaged in retail sales within the State of California. Each has an annual gross income in excess of $500,000 and purchases products valued in excess of $50,000 annually from suppliers located outside the State of California or from suppliers from within the State of California who obtain such products from outside the State of California. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ii. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefactory Statement and Issues Respondent is an organization of approximately 25,000 members. On November 11, 1971, there was an election of officers conducted among the members of Respondent. Opposing incumbent Joseph T. DeSilva for the office of president was Samuel Matelson, who at that time was secretary-treasurer of Respondent. Matelson announced his candidacy on September 3, 1971. The election was won by DeSilva. Respondent has an office staff of approximately 100 employees. They are all required to become members of Respondent after 30 days of employment; thus they participated in the election along with other members of Respondent. Six of these employees were terminated on. November 12, 1971, the day after the election, and one employee was terminated during the campaign, on Septem- ber 10, 1971. The issues are: (1) Whether six employees were terminated on Novem- ber 12, 1971, because they supported and campaigned on ' General Counsel's Motion to Correct Transcript dated November 7, 1972, is granted. 2 This finding is based on evaluation of testimony on this issue , which I find to be more determinative of the issue than the general statement of Respondent's counsel in letter to Board agent dated December 27, 1971, in behalf of Matelson for president or because of misconduct including campaigning during working hours. (2) Whether Respondent terminated Organizer Carl A. Palmer on September 10, 1971, because of his support of Matelson or for poor work performance. (3) Whether during the period of the campaign from September 3, 1971, to November 11, 1971, Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning the election; by directing employees to support DeSilva for president; by requesting employees to engage in surveillance of supporters of Matelson; and/or by statements giving the impression of surveillance. DeSilva besides being president of Respondent was chief executive officer in charge of Respondent's administrative offices. Vice President Lois McKinstry was next in charge as the executive administrator. The office force was divided into six principal departments: Research Depart- ment under Hugo Morris; the Membership Services and Employment Department under Marilyn Grace; the Records Department under Evelyn Pugh; Health and Education and Medical Benefits Department under Shar- on Morgan; Maintenance Department under Laurence Dunn; and the IBM operations under Dan DeSilva, son of President Joseph DeSilva. Samuel Matelson was in charge of the organizers employed by Respondent. Each of the above-named supervisors were supervisors within the meaning of the Act in that they effectively made recommendations to the executive staff in respect to hinng or discharging of employees and had authority to discipline employees with warning slips. Under Department Heads Grace, Morgan, and Pugh were assistant supervisors, also called department heads but their functions were to instruct other employees in their day-to-day operations and to oversee their work; they did not have the authority effectively to recommend hinng or firing or to issue warning slips. These were Barbara McKenney under Grace, Nina Jovanovic under Morgan, and Bernadette Frank and Melba Barns under Pugh. Employee Sherry Nelson testified that Jovanovic's contact with her was "as a fellow employee." McKenney testified that if an employee required discipline, she reported it to Department Head Grace who would take care of it. I find that McKenney, Jovanovic, Frank, and Barns are not supervisors within the meaning of the Act.2 B. Discharge of Carl Palmer on September 10, 1971 In the summer of 1971, Respondent started an organiza- tional drive and employed several new organizers. Carl A. Palmer was employed by Respondent on June 28, 1971, as an organizer. He was interviewed by Matelson, who was in charge of organizers, and on recommendation of Matelson he was then interviewed by Vice President McKinstry and President DeSilva. Palmer and several other organizers were assigned by Matelson to organize the employees of Ole's Hardware Company, which has two retail stores, one which he stated that, "Each of the various departments has one or more Department Heads who make recommendations to the Executive Staff, i.e, Lois McKinstry or Joseph T DeSilva, in respect to hiring or discharging of employees " RETAIL CLERKS UNION, LOCAL 770 in Pasadena and one in Rosemead, California. Palmer, along with organizers Vic Lee and Rod Diamond, sought to organize the employees at the Pasadena store. The organizers would approach employees about union benefits and membership as they came out of the store for lunch and after work. Rather frequently, Palmer would leave the store area, stating to Lee or Diamond that he was going to the bank or had something to do in connection with his car or was going to the office or was helping Sam Matelson. During the course of the attempt to organize the Pasadena store, Palmer obtained no authorization cards. Both Lee and Diamond obtained cards. It is the policy of Respondent that an organizer initial cards he obtains. Several meetings with employees of Ole's Hardware Stores were scheduled. For one of the meetings Matelson asked Palmer to pass out notices of the meeting to Pasadena store employees. The meeting was held but no employees from the Pasadena store appeared. As later discovered by Organizer Lee, the employees at this store had not received any notice of the meeting; Palmer had failed to pass them out.3 Palmer did not engage in any campaign activities on behalf of Matelson prior to his discharge. Palmer testified that he had a conversation with fellow organizers Lee and Diamond regarding the campaign for officers of the Union. He told them in substance that he was happy to hear that there would be an election and that some of the so-called democratic principles could be checked up on and there would be a chance for alternatives. Palmer did not recall when the conversation occurred, nor where, nor if he had more than one conversation with the two organizers on the matter. He also testified that he "made clear my support of Sam [Matelson ]," but did not testify how he made it clear. Once a week Respondent holds meetings of organizers at which organizers give reports as to contacts and progress made. These meetings are conducted by Lois McKinstry and Sam Matelson. At one of these meetings, McKinstry asked Palmer why he had not turned in any authorization cards. His reply was that "we work as a team." Organizer Lee reported to McKinstry that Palmer had missed meetings with the organizers as prearranged and that Palmer had failed to pass out notices of a union meeting to the employees at the Pasadena store, and that he generally spent a good bit of time away from the store. On Friday, September 10, 1971, Respondent held a meeting of its executive board. As DeStlva was not present, McKinstry presided over the meeting. When she came into the meeting room she handed Palmer an envelope containing a check and stated "this is your termination. You may leave now." Palmer did not move and as McKinstry started walking back to the head of the table 3 Matelson testified that although he assigned Carl Palmer to pass out the notices of this meeting , nevertheless he and Business Agent Bob Brooks passed out the literature Matelson testified that he was told by an employee who works at Ole's Rosemead store that the reason no one attended the meeting-the second meeting for Ole's employees-was because the employer had found out about the first meeting and who attended and the employees were frightened The testimony of Matelson is very vague and inconclusive as to whether or not Palmer passed out any notices of the meeting to employees at the Pasadena store The one employee that 359 she turned to Palmer, raised her voice, and stated, "I said, you may leave now." Palmer then left. The question is whether or not Palmer was terminated because of support or suspected support of Matelson or because of his poor work performance. At the time of his discharge, Palmer had not engaged in any campaign activities in support of Matelson but had made a vague comment about the campaign to two fellow organizers. There is no question but that his work record was very poor. He did not turn in a single authorization card, and he frequently was absent from his place of duty during working hours. McKinstry may have suspected Palmer of engaging in campaign activities during the working hours that he was away from the Pasadena store. About 3 or 4 days after Palmer was discharged, McKinstry called office employee Grace Panzera into her office and told her that she knew she had been dating Palmer. McKinstry told Panzera that Palmer was discharged because he was inefficient and did not hand out any authorization cards and that he had been campaigning for Matelson during working hours. DeSilva made a similar statement at a meeting of Respondent's executive board 2 weeks after Palmer was discharged. On inquiry by a member of the board as to why Palmer was discharged, he stated that Palmer was fired because he was incompetent and had campaigned on union time, and not because he was a supporter of Matelson. He further offers his opinion as to why McKinstry terminated Palmer at a board meeting and not privately, that "she was probably using self-control because she was so mad at Carl's disloyalty that she probably would have bodily thrown him out of the building instead of terminate him." If Palmer had in fact left his place of duty to engage in campaigning, this would have violated a directive of Respondent and would have been misconduct subject to disciplinary action. Palmer was a probationary employee as were all organizers during their first 90 days of employment. He was discharged summarily without a warning notice-ex- cept for McKinstry's interrogation of him for no authoriza- tion cards-and without any consultation between McKin- stry and Matelson. McKinstry testified that warning notices are not customarily given to probationary employ- ees. The question is-to what extent if any did McKinstry's suspicion that Palmer was campaigningfor Matelson -not just campaigning on worktime-play in the decision to discharge him. That is, would Palmer have been discharged for the faults of inefficiency and inattentiveness to duty manifested in his probationary period, and for suspected violation of the rule against campaigning on duty hours, irrespective of his support for Matelson. In view of the degree of Palmer's dereliction of duties and the fact that the probationary period was coming to an end, I find that Matelson talked to about the second meeting was employed at the Rosemead store and not at the Pasadena store Organizer Lee talked to eight employees of the Pasadena store as to the reason they did not attend the meeting and was told by each that they had not received notice of the meeting Also, in view of the evidence to the contrary and the lack of any details from Palmer and Matelson regarding distribution of literature announcing the second meeting, I do not credit Palmer's testimony that "yes," he passed out notices at the Ole's store 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was discharged for these reasons, irrespective of the fact that he was or might have been pro-Matelson. C. Respondent's Letters to Employees On September 9, 1971, DeSilva sent letters to each of Respondent's employers "asking for a brief written statement expressing your approval of the policies of Local 770 under my stewardship which I will be proud to print in support of my policies." Enclosed with each letter was a sheet that the employee could use in complying with this request, as follows: Mr. Joseph T. DeSilva Retail Clerks Union, Local 770 1515 North Vermont Los Angeles, California 90027 Dear Mr. DeSilva: I endorse your candidacy for the Presidency of Local 770 in the November 1971 Local 770 elections. You have my permission to publish my endorsement as well as the comments which I have made below. Date Signature [Space was provided below the signature for com- ments.] Following receipt of the letters, several employees had conversations with supervisors about them. Janet Coles asked her supervisor, Evelyn Pugh, about the letter and was told that they had to turn the letter in. Coles then signed the letter, but made no comments, folded it and turned it in. Employee Omega Nero was told by her supervisor, Marilyn Grace, to put her comments on the letter and to turn it in to her as soon as possible. Nero put the following comment on her copy of the letter: "I wish to exercise my democratic right at this time by advising you that I will not oppose, nor endorse either candidate by reasons which are personal, and known only to myself." The next day Joel Polk, Respondent's second vice president, came to Nero and told her that DeSilva was very upset because of the comments she made on her copy of the letter. He asked Nero to reconsider and to join DeSilva in the campaign. DeSilva Joined the two and told Nero that he did know that she was mad at him and he asked her to campaign for him. She advised him that she did not have time. Employees Marjorie Caldwell, Sherry Nelson, and Sally McGlassen testified to conversations with Department Heads McKenney and Jovanovic to the effect that they were told to sign the letters and turn them in; but 1 have found that McKenney and Jovanovic are not supervisors within the meaning of the Act. On September 13, 1971, Respondent distributed the following letter to all employees: TO: ALL LOCAL 770 STAFF AND TRUST FUND PERSONNEL AT 1515 NORTH VERMONT FROM: LOIS RE: ELECTION Many of you have asked to meet with Mr. DeSilva or me with regard to assisting Mr. DeSilva in his election campaign. We have not found the time to comply with your request to meet on an individual basis since the work of the Union must continue without interruption. We are, however, planning to schedule group meetings with any of you who desire to assist us at which time we will answer any questions which you may wish to ask regarding this unfortunate situation. We are indicating below, the various times when Mr DeSilva, Hugo, or I can meet with you at other than business hours. Please indicate if you desire to attend a meeting in the Board Room , at 8:00 A.M., or during your lunch hour, or at 5:30 P.M., when the office closes. For your convenience, we will serve coffee and rolls in the morning or sandwiches at lunch, coffee after 5:30 P.M. Please return this bulletin by noon Tuesday, September 14, 1971, indicating your preference. Your offers of assistance are appreciated. 8 am /s/ Lois Lois McKinstry Noon 1 pm 5:30 m Wed. 9/15 --- ---- ---- ------- Thurs. 9/16 ----- ------ ------- Fri. 9/17 ---- Signature The meetings that were held pursuant to this letter were conducted by McKinstry, DeSilva, and/or Morris. One of the luncheon meetings lasted for 20 minutes beyond the lunch period. Employees who attended this meeting were not docked or penalized in any way for their lateness in returning to work. Respondent's letter of September 9, asking employees to take overt action in support of DeSilva, constituted illegal polling and interrogation of employees as to their position and views in the impending election. The letter was implemented by statements of Department Heads Evelyn Pugh and Marilyn Grace, Second Vice President Polk, and President DeSilva. The same is true of Respondent's letter of September 13, 1971, which interrogated and polled employees to identify those who would assist DeSllva in his election campaign. The letters went further than polling and interrogation, which are calculated to elicit verbal responses, and also solicited specific actions to be taken by employees demonstrating their support for DeSilva. D. Alleged Solicitation of Surveillance In early September 1971, DeSilva issued a directive that RETAIL CLERKS UNION, LOCAL 770 there was to be no campaigning during working hours. This directive was made known to all employees. At some date in September 1971, DeSilva came to employee Shirley Hocker in the employment department and asked her if she was friendly with Marjorie Caldwell, who also worked in that department. Hocker answered that she was. The two worked side by side at the employment counter serving the members as they came in seeking employment. Caldwell was a very active supporter of Matelson. DeSilva then told Hocker that he was concerned that there might be campaigning during office hours and he asked her to notify him if there was any kind of campaigning for Matelson or discussion about the cam- paign when members came into the department . He also told Hocker that he would appreciate it if she would relate to him any conversation that she might pick up about the plans of the campaign. A few days later, DeSilva called Hocker at her home about a business matter and during the conversation, Hocker told him that she did not think she was going to hear anything on the campaign. He told her then to just forget it. I find nothing illegal in DeSilva's asking an employee to report rule violations or other misconduct during working hours; furthermore , I find nothing illegal in seeking information about the plans of the opposition candidate in the campaign ; this is not asking about the campaign activities or sentiments of employees . It is not illegal surveillance . But, in soliciting an employee to commit an overt act of support for him, DeSilva is interfering with Hocker's campaign activities, which is equated with her "union activities," and in so doing his conduct violates Section 8(a)(1) of the Act. E. Impression of Surveillance At a meeting of the members of the Union in early October 1971, held in the Knights of Columbus Hall in Inglewood, California, the various candidates spoke relative to the pending election. Business Agent Ted Kastenbaum spoke as candidate for a position on Respondent's executive board and stated that he wished to run as an independent . When President DeSilva spoke, he said that Kastenbaum was not as independent as he sounds; that he had recently met secretly with the opposition ; that DeSilva knew where they had met, what was said and how many were there; that 14 persons were there and that he could give their names and other information about the meeting. Kastenbaum had in fact attended a meeting of the Matelson group at the home of Palmer a short time before and 14 persons had been present in the house. The meeting at the Knights of Columbus Hall in Inglewood was not a meeting of employees of Respondent but of members who were employed in another cominuni- ty. Although the meeting was open to all members , there is no showing that, other than candidate Kastenbaum, any of Respondent's employees were present . On the other hand, it is certainly reasonable to expect that DeSilva's state- ment, made in an open meeting, that he knew who the 14 persons were, was heard by or would be repeated to employees of Respondent , some of whom were among the 14 persons. I find that this statement of DeSilva created an 361 impression of surveillance of the campaign activities of employees, which, as previously mentioned, are equated with union activities , and by this statement Respondent has interfered with , restrained, and coerced employees within the meaning of Section 8(a)(1) of the Act. F. Discharge of Six Office Employees November 12, 1971 On November 12, 1971, shortly before the end of the workday, office employees Marjorie Caldwell , Janet Coles, Lois Felder, Sally McGlassen, Sherry Nelson, and Grace Panzera were each handed an envelope containing a check and a letter notifying each of her termination . The letters were the same, as follows: Enclosed are all monies due to you as of November 12, 1971, which constitutes your current pay, accumulated sick leave, and your pro-rata vacation pay. This is notice of severance of your employment from our organization effective November 12, 1971, for lack of cooperation with your supervisor, unsatisfactory work performance, an indifferent attitude, and conduct unbecoming of an employee engaged to serve the members. I know you will understand that this action is in the best interest of the membership of this union who expect unqualified loyal and dedicated services. The letters were signed by President DeSilva . These were given to the employees by Department Heads Morgan and Pugh . Caldwell and McGlassen tried to see DeSilva but he was in conference with Business Agents Ted Kastenbaum and Melvin Daily. DeSilva told his secretary to tell Caldwell that he would not talk with her, that the matter was closed , and to tell all of the women that the matter is finished. Caldwell, McGlassen, aid Nelson then went to McKin- stry. Caldwell said that the terminations were unfair and asked if something could not be done . McKinstry replied that the terminations were effected by the chief executive officer and that there was nothing she could do about it; that she was not responsible for their terminations. 1. Lois Felder Felder was employed by Respondent in May or June 1968. She worked in the Records Department under Department Head Evelyn Pugh. Her job was to affiliate new members. She processed approximately 15 to 20 new members each day. In the latter part of September 1971, Department Head Bernadette Frank introduced a person to Felder as the son- in-law of Business Agent Andy Anderson, and asked Felder to affiliate him with the Union. During the course of filling out forms, Felder told him that there was going to be an election of officers for the Union and that he should attend some of the meetings . He said "Oh, you mean that thing about Sam Matelson ." Felder said that Matelson was a nice guy. On the following day Felder was called to the office of 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dan DeSilva, son of President DeSilva. Shortly thereafter President DeSilva and the son-in-law of Andy Anderson came in. President DeSilva asked Felder if she knew the young man, pointing to Anderson's son-in-law. Felder replied that she did; that she had affiliated him the day before. DeSilva then asked her if she told him that Sam Matelson was a nice guy. Felder replied that she did not. Felder asked Anderson's son-in-law to say what she had said and he replied that he did not remember. DeSilva then told Felder that if she was going to say anything at all why didn't she say something good about him. Anderson's son- in-law then left the room and Felder stated, "Mr. D., you are wrong." He then told her not to call him Mr. D. and stated that if she wanted to say anything good, she should have said something good about him. He then turned to Dan DeSilva, his son, and told him to take Felder off of the window immediately; that he did not want her to come in contact with the members at all. He also said that Janet Coles and Grace Panzera were to be taken away from the windows that day. President DeSilva left the room and Felder stated to Dan DeSilva that his dad was wrong; that she had campaigned for him but was not going to do so any longer. This occurred shortly before lunch, and when Felder returned from her lunch break she found that her typewriter had been moved to the back corner of the department. Thereafter and until her termination she did mailing, telephoning, and typing. At the same time, the positions of Coles and Panzera were changed from the windows to the back part of the department. During 1971, Felder had received two written warning notices, one dated June 21 and the other dated November 3. In the notice of June 21, Felder was reprimanded for (1) spreading rumors, particularly when they involved the reputation of union personnel; (2) disobeying instructions that she was to observe and not participate in a particular picket line; (3) using an outside agency regarding a problem involving her son rather than using procedures available within the Union; and (4) for tardiness in reporting to work. She was advised that she would be given one more opportunity to perform work in accordance with established union policies. In the November 3 warning notice, McKinstry set forth that the Union had been contacted by three different credit organizations regarding delinquent accounts of Felder. Felder was warned that if her wages were attached or if the Union continued to receive calls regarding this matter there would be no alternative other than to terminate her. Department Head Pugh testified that when Felder was moved to the back part of the department, Pugh noticed that she was getting a number of telephone calls which Pugh later learned were from creditors. Pugh also testified that in the fall of 1971, Felder was late a number of times, but could not testify as to how many. Pugh spoke to a group of girls including Felder regarding tardiness, warning them to please improve; that five tardinesses in I month warrants a warning notice. She did not talk to Felder personally about this matter, but has asked Felder's immediate supervisor to talk to her about it. Pugh also testified that Felder had an inability to follow supervision, but when asked if she could recall any instances, she testified, "No, not any specific instances." 2. Janet Coles Coles started her employment with the Food Benefit Fund in November 1963. The Food Benefit Fund was a trust fund administered by an equal number of employer and union trustees for the benefit of members of Respondent. It was a separate entity from Respondent, however, and maintained a separate payroll. In the fall of 1970, it merged with benefit funds of other locals and moved its offices to Inglewood, California. When it did so, Coles obtained employment with Respondent in its Health-Education and Medical Benefits Department. In June 1971, she was transferred to the Records Department under Pugh. She worked at one of the windows affiliating new members, as did Lois Felder; and as previously mentioned, she was also transferred to the back part of the department in the latter part of September 1971 along with employees Felder and Panzera by order of President DeSilva. At the times involved herein Respondent had seven windows where employees processed or affiliated new members. They also issued withdrawal cards and transfers and received dues and gave receipts. After Felder, Coles, and Panzera were transferred to the back of the depart- ment, their work consisted of processing death claims, attorney referrals, and dues letters. Shortly before her employment, in the Records Depart- ment, in June 1971, Coles was issued a written warning reprimanding her for (1) making criticisms and comments which affect an individual's reputation, (2) making errors on documents such as incorrect social security numbers and omission of birthdates, and not correcting them promptly, (3) not posting or recording complete informa- tion regarding a union member. and (4) for criticizing the work of other employees. The warning notice states that it was being recommended that Coles be transferred to the Records Department and given another opportunity. Shortly thereafter she was transferred to the Records Department. But, according to Records Department Head Pugh, Coles made many typing and/or spelling errors on cards and forms in the processing of new members in her department after the transfer. This was reported to Pugh by Department Head Bernadette Frank. The forms and papers that were completed in the processing of a new member were reviewed by another person on a clearing desk. If a large number of errors appeared, this was reported to Department Head Pugh. In this procedure, Pugh received a report on Coles on the average of about once a week. On one occasion in September 1971 Coles affiliated 18 employees in one day and made a mistake on each one; on one ledger there were five corrections. Pugh spoke to Coles one time in September 1971 regarding her errors, but no written warning was given to her. Pugh testified that Coles was loud and boisterous in dealing with people; that "it is her characteristic"; and that some members objected. RETAIL CLERKS UNION, LOCAL 770 363 3. Grace Panzera Panzera was employed by Respondent on July 25, 1970, and worked in the Records Department. She was assigned to one of the windows and processed new members. In March 1971 she received some training for the PBX Board and on the reception desk, and thereafter she filled in on these jobs when the regular girls were out for lunch or otherwise off from work. On about September 23, 1971, she, along with Felder and Coles, was transferred from the job of processing new members to a job in the back of the department handling mail ; here she had no personal contact with union members or prospective members. Department Head Pugh testified that when she first came to the Records Department in the latter part of August or the first part of September 1971, Panzera was a very excellent employee, but that Panzera liked to work on the switchboard and did not like going back and forth, which Panzera verified. Pugh testified that about a week before Panzera was moved from the window to the back part of the department, Pugh came into the department at lunch to find all of the phones ringing. She answered as many as she could and noticed that Panzera was on one of the phones quite sometime; she picked up another phone on the same line and found that it was a personal call. She told Panzera to please limit her telephone calls and to take care of the calls of the members. Panzera denied that this occurred. Pugh testified that this was the "real reason" Panzera was moved from the window job. Pugh also testified that on about November 10, 1971, Panzera was very dilatory in the handling of a death claim. Panzera was being trained to handle this type of claim; only supervisors were handling them at that time . On November 10 she was given a claim to process at/or about 11 :30 in the morning and it was not completed by the end of the day. According to Panzera, Supervisor Frank was to check back with her and assist her on it, but did not do so. She went to Frank once during the day but Frank said she was busy and would see her later. Pugh also testified generally that Panzera's performance was not up to par and she concluded that this was because she was being shifted between work in the Records Department and the switchboard. 4. Sally McGlassen McGlassen was employed by Respondent on April 28, 1971, as a secretary to President DeSilva. Near the end of June 1971, she was transferred to the Health and Education Department under Sharon Morgan . Her work consisted of interviewing or talking with members regard- ing their benefits and claims and checking eligibility for benefits. On November 12, 1971, McGlassen was given her termination notice by Morgan. After reading it, McGlas- sen asked Department Head Nina Jovanovic if she knew anything about it, and Jovanovic replied she did not. McGlassen had received no warning notices about her work, and the discharge came as a surprise. Although Jovanovic had nothing to do with the discharging of McGlassen , she testified that there were "discrepancies" in the way McGlassen performed her duties; that she had to tell McGlassen several times to stop making conversation with employee Sherry Nelson and wasting time; that on one occasion work was left on her desk unfinished ; that in July 1971 a claim involving $1,200 was mishandled and Jovanovic testified that McGlassen had worked on the claim, although it is not clear what her part in it was. Jovanovic testified that she spoke to McGlassen about the matter , but she could not relate the conversation . McGlassen credibly testified that the first she heard of the error was after her discharge when she was seeing about collecting her unemployment benefits. 5. Sherry Nelson Nelson was employed in May 1969 by the Benefit Fund Office, and like Caldwell and Coles, she transferred to Respondent's office when the Fund moved its offices to Inglewood, California . On the day following her receipt of her termination notice she called Department Head Jovanovic at her apartment about the matter . Jovanovic stated that she was very surprised at it and was very sorry about it ; that she would now have to do Nelson 's work as well as her own. Nelson had received no warning notices about her work. As previously found , Jovanovic is not a supervisor within the meaning of the Act. Although Jovanovic had no part in the discharge of Nelson, she testified that Nelson's main job was 'to file employer reports, and that files were kept by Nelson on her desk for many weeks; that this created a problem for the other girls who would have to look on Nelson's desk sometimes for files. One time in July 1971, Department Head Morgan offered to help Nelson straighten out her desk but Nelson replied that she would take care of it herself. Jovanovic also complained that Nelson was late coming to work on a number of occasions, eight times during the month of October, and Jovanovic talked to her about it. Department Head Sharon Morgan did not testify, nor did President DeSilva. 6. Marjorie Caldwell In 1961 Caldwell started working for the Food Benefit Fund and when it moved its offices in the fall of 1970, she obtained employment with Respondent in its Employment Department under Marilyn Grace. Her job was to try to help unemployed members get together with employers seeking employees. She interviewed members and contact- ed employers . On an average she would have contact with about 50 members during a week . On the weekend of September 25, 1971, Caldwell was called at home by Department Head Marilyn Grace and told that effective the following Monday she would be moved to the Health- Education Department. Grace gave as the reason that they were shorthanded and Caldwell had had prior experience in the Benefit Fund . Thereafter Caldwell worked under Department Head Sharon Morgan ; her job was to alphabetize IBM cards and to check eligibility of members for medical claims and she "stuffed envelopes" with material being mailed to members. In this job she had no official contact with members of the Union. During Caldwell's 10 years of employment with the 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Food Benefit Fund and Respondent she had received no warning notices, nor had her work been criticized. In August 1971 Respondent received a letter expressing appreciation for "outstanding cooperation we have re- ceived from the members of your staff in meeting our recruiting needs, particularly, for the assistance from Marge Caldwell and Bobbie McKenney." After Caldwell was transferred to Morgan's department on September 27, 1971, some of the unemployed members with whom she had had dealings would call for her by name. Department Head Jovanovic told Caldwell that she was not to have dealings with members on the telephone. On October 15, 1971, McKinstry issued a notice to all employees regarding unnecessary telephone calls; particu- larly calls discussing the campaign. On November 5, 1971, Department Head Morgan issued the following memorandum to all employees in her department: To All Employees of the Health Education and Medical Benefits Department: On October 15, 1971, Lois McKinstry issued a warning notice to all departments requesting that no unneces- sary phone calls be made by any employee, particularly calls discussing the campaign on the telephone during working hours. Irrespective of Lois McKinstry's warning, the prohibit- ed activities have continued and this notice is to advise you that this Department has been in violation. I am herewith authorizing Nina Jovanovic to intercept all phone calls being made to or out of this Department and in her absence, for her to designate one of the persons on duty to do the same. Thereafter Jovanovic monitored all telephone calls. If a member called for Caldwell. Jovanovic told the members of the department that would handle his business; if it was one of Caldwell's children calling, Jovanovic would give Caldwell the call. Department Head Jovanovic testified that she does not know of anything that might have triggered the discharge of Caldwell. Her only complaint about Caldwell was that she had personal telephone calls and sometimes stayed on the telephone a long time. On or about September 24, 1971, a union member, James Calafat, came to the office of McKinstry and reported that one of the girls in the Employment Department had talked to him against President DeSilva and for a change in the office of president of the Union; that the girl who did this was an attractive, charming lady with dark brown hair, about 30 years of age and wore large, round glasses. McKinstry concluded that he was referring to Caldwell, as this description fits Caldwell? She told Calafat to put the information in writing. McKinstry then told DeSilva about the conversation. DeSilva directed that Caldwell be 4 To some degree but a lesser degree, this description fits Department Head Barbara McKenney, who did the same type of work, both girls were witnesses 5 Calafat did not testify and I cannot find from the hearsay evidence that the event he related did occur . Caldwell denied the conversation but stated transferred to the Health , Education and Medical Benefits Department as she was familiar with that work and in that department would not have access to the members on working time . The transfer was effected on September 27, 1971. Under date of October 3, 1971, DeSilva received a letter from Calafat setting forth the comments made to him by the above-described person in the Employment Depart- ment. He stated that "she criticized your actions and activities, saying that you had too many outside interests, not paying enough time to union affairs while spending union money . That after 36 years it's time for a change."5 G. Conclusions as to Discharges of Six Office Employees It is well established that active opposition by a union member to the reelection of an incumbent union official is protected activity within the meaning of Section 7 of the Act .6 Caldwell was very active on behalf of Matelson; many of the meetings of his campaign workers were at her home; and she was "sort of" his campaign manager. Respondent was aware of these facts, and to be sure she did not engage in campaign activities during working hours, her work assignment was changed so that she would have no contact with members. Also, Panzera, Felder, Coles, McGlassen, and Nelson were all active supporters of Matelson in his campaign for president of the Union; they stuffed envelopes and passed out literature. Following a report by a new member that Felder had said a good word to him about Matelson, Felder, Panzera, and Coles were moved to job assignments that gave them no contact with members during working time. Coles and Nelson had worked with Caldwell in the Food Benefit Fund before coming with Respondent. Shortly after Matelson an- nounced his candidacy on September 3, 1971, Second Vice President Polk told Coles that he did not want to see her get hurt; that he would rather she not run around with Caldwell; that she should not get involved in any political fight. In late October or early November 1971 Matelson sought and obtained use of an index card file of names and addresses of union members. The Union's bylaws and constitution require that this file not be out of the possession of the Union; and in order to comply with this request, Larry Dunn, department head of the Maintenance Department, was assigned to accompany this file to a meeting with Matelson and his campaign helpers. The meeting was at the home of Marjorie Caldwell, and besides Caldwell and Matelson, all of the girls involved in this case were present except Felder. Several other persons were also present. McKinstry testified that DeSilva rarely discharges employees but usually would transfer employees to other jobs instead. That is what he did when he received reports that certain employees might be engaging in campaigning that although she would never have instigated any conversation such as this, she night have agreed with a member When asked if she remembered anyone saying these remarks to her, she testified "not exactly." 6 Falstaff Brewing Corporation, 128 NLRB 294. modified by 301 F 2d 216 (C A 8, 1962), Hoisting and Portable Engineers, Local No 4 and its Branches of the International Union of Operating Engineers. 189 N LRB 366 RETAIL CLERKS UNION, LOCAL 770 365 during working hours. To engage in such activities during working hours was a violation of a work rule and its violation merited disciplinary action. But I find that the discharges of the six office employees on November 12, the day after DeSilva won the election for president of the Union, was done in retaliation against them for their union or campaign activities on behalf of Matelson and for their opposition to DeSilva. Caldwell, who had worked for the Union or the Union's Benefit Fund for 10 years, was discharged for th-z: assigned reason of too much use of the telephone; Nelson, a 2-1/2 year employee because she kept a cluttered desk; McGlassen, a 6-month employee, for "discrepancies" in her work and for wasting time convers- ing with a fellow employee; Panzera, a 1-1/2-year employee for talking a long time on the telephone and her morale. The reasons assigned for the terminations of Coles, an 8-year employee, and Felder, a 3-1/2-year employee, are more substantial, each having received written warnings during 1971 about their work performance or conduct. But in the cases of all six employees, Respondent was merely setting forth the discrepancies or shortcomings of the employees involved. None of the immediate supervisors, department heads, or even Executive Administrator McKinstry took any part in the decision to terminate these employees. The decision was solely that of the chief executive officer, President DeSilva, who did not testify but stated in his letter to each of the discharged employees, dated the day after he won the election, that the action he took was in the best interest of the membership of this Union who expect "unqualified loyal and dedicated services." I find that he discharged them because of their union or campaign activities in opposition to his reelection to president of the Union. CONCLUSIONS OF LAw 1. By interrogating, polling, and soliciting employees to take actions which denied to them their rights under Section 7 of the Act, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 2. By statements creating the impression of surveillance of employees engaged in rights protected by Section 7 of the Act, Respondent has violated Section 8 (a)(1) of the Act. 3. By discharging Marjorie Caldwell , Janet Coles, Lois Felder, Sally McGlassen, Sherry Nelson, and Grace Panzera on November 12, 1971, because of their support for Matelson for president of the Union, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. Respondent did not violate the Act by its discharge of Carl A. Palmer, nor did it engage in illegal conduct as alleged in paragraphs 8(b), (c) and (h) of the complaint. REMEDY In order to effectuate the policies of the Act, I find it necessary that Respondent be ordered to cease and desist from the unfair labor practices found and from like or related conduct violative of the Act, and to take certain affirmative actions. Respondent having discriminatorily discharged six em- ployees, I find it appropriate that it be ordered to offer them full reinstatement , with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date reinstatement is offered. [Recommended Order omitted from publication.]