J. C. Penney Co., Inc.

J. C. PENNEY CO. 313 J. C. Penney Co., Inc. and Retail Store Employees Union Local No. 214, affiliated with the Retail Clerks International Association , AFL-CIO. Case 30-CA-2277 February 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 16, 1973, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, both the Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief to the General Counsel's exceptions. 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 and to adopt his recommended Order,' as modified below. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) by engaging in threats of loss of advancement opportunities and certain acts of surveillance directed toward James Calvert. However, we also find, contrary to the Administrative Law Judge, that Respondent further violated Section 8(a)(1) by interrogating its employ- ees during the union organizing campaign.2 The facts, which are more fully detailed by the Adminis- trative Law Judge in his Decision, reveal that on March 23 Supervisor Roger Jacobchek asked em- ployee James Calvert about the union campaign, if he, Calvert, was ready to write a union contract, if he had another union meeting that evening, and when and where the meeting would be held. The record also shows that on one occasion in late February or early March Supervisor Gene Ehlers asked employee Janelle Kieser if she was in a hurry to get home because she was going to a union meeting that night. On another occasion, during that same period, Ehlers asked Kieser, as the latter was pulling an empty shopping cart into the housewares department, whether she didn't have anything better to do. She explained that she had been pulling the cart back to the stock room where empty carts are kept. Then, Ehlers again asked her if she was going to a union meeting that night. In late March, Supervisor Ray Bang asked employee Paul Carr, as the latter was leaving a local restaurant, if he had been having one of his union meetings that night. The Administrative Law Judge concluded that the foregoing interrogations were not unlawful. In each case, he found that they arose out of a chance encounter and that they contained no evidence of animus . Moreover, while the Administrative Law Judge conceded that the interrogations of Kieser by Supervisor Ehlers was "somewhat suspect," he found that they were not coercive, apparently because he accepted Ehlers' testimony that he and Kieser enjoyed an informal friendly relationship, and further, according to Kieser's own testimony, she and Ehlers had many other informal conversations with no mention of the union. We disagree. Rather. we find, in view of the surrounding circumstances, including the other instances of unlawful conduct during the time the employees were involved in a union organizational campaign, that the foregoing instances of interroga- tion were coercive and did interfere with the exercise of employee rights under the Act. Further, we fail to see how other casual conversations between offend- ing supervisors and employees minimizes the coer- cive nature of an interrogation, merely because those other conversations occurred without further en- croachment upon employees' statutory rights. Ac- cordingly, we find that the Respondent, by interro- gating employees Kieser and Carr, violated Section 8(a)(1) of the Act. AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 3 and 4 of the Administrative Law Judge's Decision and substitute the following: "3. By interrogating employees about their union activities, by threatening an employee with loss of advancement opportunities because of his activities on behalf of the above-named Union, and by I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (CA. 3. 1951) We have carefully examined the record and find no basis for reversing his findings. We find no ment in Respondent's contention that it would not effectuate the policies of the Act to issue a cease-and-desist order in this case. In our view the incidents of unlawful interrogation , threats, and surveillance warrant issuance of a remedial order. Frankel Associates, Inc, 146 NLRB 1556, 1557, Alamo Linen Service, 136 NLRB 1127, 1128 However, the remedy being ordered herein is based upon the violations found in this case and is not dependent upon violations of the Act found against Respondent in the past at other locations in other cases. Therefore, we do not rely upon the Administrative Law Judge' s comments concerning past violations of the Act. 2 In agreement with the Administrative Law Judge and for the reasons stated by him, Member Kennedy would affirm the Administrative Law Judge's findings that these casual incidents of interrogation were noncoer- cive in character and did not constitute interference with and restraint or coercion of employees' rights in these circumstances. 209 NLRB No. 50 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in surveillance of such activities during the employees' nonwork time, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. "4. General Counsel has failed to establish by a preponderance of the evidence . that Respondent violated Section 8(a)(1) of the Act by surveying the activities of its employees on company time." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent J. C. Penney Co., Inc., Sheboygan, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified. 1. Insert the following as paragraph 1(a) of the recommended Order and reletter the succeeding paragraphs accordingly. "(a) Interrogating employees about their union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and ordered us to post this notice. WE WILL NOT interrogate our employees about their union activities. WE WILL NOT threaten employees with loss of advancement opportunities because of their activities on behalf of Retail Store Employees Union Local No. 214, affiliated with the Retail Clerks International Association, AFL-CIO, or any other labor organization. WE WILL NOT keep under surveillance the union activities of our employees during their nonwork time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. All our employees are free to become and remain members of Retail Store Employees Union Local No. 214, affiliated with the Retail Clerks Internation- al Association, AFL-CIO, or any other labor organization. J. C. PENNEY CO., INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: The sole issues presented in this case are whether the Respondent, J. C. Penney Co., Inc., violated Section 8(a)(1) of the Act by interrogating employees concerning their union sympathies and activities, by engaging in surveillance of employees' union activities, and by threatening an employee with loss of advancement opportunities because of his union activity. The proceeding was initiated by a charge filed on March 26, 1973,1 by the Retail Store Employees Union Local No. 214, aff/w The Retail Clerks International Association, AFL-CIO, pursuant to which complaint issued on June 22. On July 10, hearing was held in Sheboygan, Wisconsin. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. INTRODUCTION Respondent is engaged in the retail sale of general merchandise with retail outlets throughout the United States, including a retail store located in Sheboygan, Wisconsin, the only facility involved in this proceeding.2 The store in question is located in a shopping mall and employs between 300 and 400 employees depending on the season. James Calvert is employed by Respondent as a salesman in the sporting goods department. About January 1, he contacted the Union with regard to organizing Respondent's store and met with a union representative on January 4 or 5, when he received union authorization cards which he thereafter solicited other employees to sign. I Unless otherwise indicated, all dates appearing hereinafter are in 1973. 2 Commerce is not in issue. The complaint alleges, the answer admits, and I find, that Respondent meets the Board's standard for the assertion of jurisdiction over retail stores. J. C. PENNEY CO. Within 2 or 3 weeks he had obtained signatures of approximately 25 to 35 employees. About January 12, Store Manager Franklin Kaberna conducted a meeting of about 50 employees in which he advised them of the possibility they would be approached by a union representative and asked to sign a union card. Among other things, he pointed out the costs of union membership , including the matter of union fines in strike situations, enumerated the benefits Respondent provided its employees, praised Respondent as a good place to work, and advised the employees to think these matters over before deciding to sign a card. It appears from the testimony of Calvert that several other such meetings were held, but the record describes only what occurred at the January 12 meeting . There is no contention that any statements made at any employee meetings were violative of Section 8(a)(1) of the Act. It is alleged, however, that Respondent engaged in certain acts of interference shortly thereafter. ii. THE ALLEGED UNFAIR LABOR PRACTICES A. Interrogation The complaint alleges eight instances of interrogation, four of which can be disposed of somewhat summarily. According to Janelle Kieser, a sales clerk, on one occasion in February or early March , as she was leaving work in the evening , Supervisor Gene Ehlers asked her if she was in a hurry to get home because she was going to a union meeting that night. She told him no. Nothing else was said. On a second occasion during the same period of time, as Kieser was pulling a shopping cart into the housewares department, she encountered Ehlers and he asked her if she didn't have anything better to do. She explained that the cart was empty and that she had been pulling it back to the stockroom where empty carts are kept. Ehlers again asked her if she was going to a union meeting that night. According to employee Paul Carr, in the latter part of March, he had a chance meeting with Supervisor Ray Bang as he was leaving a local restaurant , and Bang asked Can if he had been having one of his union meetings that night. Can told him no just a pageant meeting involving the Jay Cee's. According to Calvert, he had a chance meeting in the store with Supervisor Roger Jacobchek on March 23, and Jacobchek asked him how the Union was coming. Calvert asked Jacobchek what he meant and Jacobchek said are you about ready to write your contract. Calvert didn't reply and Jacobchek asked if he had another meeting that night and Calvert told him yes, and Jacobchek asked where the meeting was taking place and the time . Calvert told him. Jacobchek did not make any comment of any significance and Calvert concluded the conversation by asking Jacobchek to come to the meeting. At some point in this conversation Jacobchek told Calvert "between you and me I hope you get them in." As I have indicated, the allegations that Respondent violated Section 8(a)(1) of the Act by virtue of the four 315 foregoing instances of interrogation may be disposed of summarily. There is no serious dispute that the interroga- tions occurred except in the case of Supervisor Jacobchek and I do not credit him. In the case of Supervisor Bang's interrogation of Carr, Bang gave a slightly different version of what was said , but I credit Can. Nevertheless, I conclude that the interrogations were not unlawful. It is evident that each instance of interrogation arose out of a chance encounter and there was nothing in any of the conversations to suggest that Respondent entertained any animus against the employees if they were attending umon meetings. The most searching questioning was by Jacob- chek and its noncoercive character was explicitly eviden- ced when Jacobchek told Calvert "between you and me I hope you get them in." The fact that Supervisor Ehlers twice asked employee Keiser about going to a union meeting is somewhat suspect, but Ehlers described the existence of an informal friendly relationship between him and Keiser, and, according to Keiser's own testimony, she and Ehlers had many other informal conversations with no mention of the Union. Under the circumstances, the casual interrogation presented by the four instances just described cannot be deemed to constitute interference with, or coercion of, employees within the meaning of Section 8(a)(1) of the Act. The four remaining allegations of unlawful interrogation involve employee Calvert, as do the allegations of surveillance and threats, and for this reason are best considered in the context of the entire conduct relating to Calvert. B. The Interrogation, Surveillance, and Threats of James Calvert 1. The facts As indicated earlier, Calvert began his union activities in early January. Sometime in mid-January as Calvert was walking by the office of Personnel Manager Robert Dussenberry, Dussen- berry called him in. According to Calvert, Dussenberry told him that he knew Calvert was involved in organiza- tional activity and he told him that he wanted to make one thing clear, namely, that when Calvert was signing people that he was doing it on his own time as well as on the solicited employee's own time. Calvert indicated that he would do that. In early January, Calvert's immediate supervisor, Rich- ard Ewald, approached Calvert and told him that he was speaking to him as a friend and that it was just between them, but he didn't think that what Calvert was doing would get him anywhere in the Penney Company. Calvert indicated that he needed a better income and Ewald agreed with him on that score but added that the attitude Calvert was taking wasn't going to get him anywhere .3 In mid-January, Calvert began to have doubts about the wisdom of what he was doing and began to wonder if he had not been ruining his chances for advancement with the Company. With this in mind he sought out Store Manager Kabema and asked to speak to him. He told Kaberna a This conversation was offered as background of the attitude of Respondent towards Calvert and not as independent Sec 8(aXI) 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about his involvement in the Union and asked Kaberna if the involvement would hurt his chances in management. Kaberna replied by asking Calvert if he was a hunter. Calvert said he was and Kaberna then said "well, aiming for Penney management in the Penney Company is like aiming at a target. You have to aim directly at it . . . . You don't go to outside sources ... that's it, I can't say any more than that." In the middle of February, Supervisor Ewald was talking to an insurance agent friend of his at a desk in the department and Calvert came over. When he did so Ewald told his friend to try to sell some insurance to Calvert but that he had work to do and Ewald left. While Calvert and the insurance agent were talking Store Manager Kaberna came up behind them and asked the insurance agent if he could help him with something. The insurance agent said he had better go and left. Kaberna asked Calvert who the man was and Calvert told him that he was an insurance man. Later that day Calvert asked Ewald if Kaberna had said anything to him about the incident and Ewald told him that Kaberna had asked him if the man in question had been a union representative. On a Saturday in February, Calvert was in the store returning a pair of slacks and was at the slack rack in the men's department with Paul Carr, salesman in that department. While they were there Personnel Manager Dussenberry appeared about four counters away. Dussen- berry kept Calvert under surveillance throughout his stay in the slack department . At some point, he used a phone in the department and shortly thereafter two other supervi- sors appeared. Thereafter, as Calvert visited other areas of the store, he was followed. He spent 2 hours that afternoon either in the store or adjacent stores. On or about February 28, during a break period, Calvert was sitting at the snackbar in the store with two other employees who were also on break. They were asking him questions about the Union. According to Calvert, as they were sitting there Kaberna walked up behind him, put his hand on his shoulder and said "What's that you're saying about the Union." Calvert replied that the other employees had been asking him questions and he had been answering them. Those employees left and Kaberna sat down and ordered a glass of milk. Kaberna told Calvert that he had heard that several people to whom Calvert had spoken about the Union had changed their minds and decided to back out of the Union, and he understood that most of the people wanted their authorization cards returned. He told Calvert that the employees had told him that they had been told untruths about the Union and had been very misinformed. Calvert told him he had no knowledge about that at all and from what he understood everyone was perfectly satisfied. While they were sitting there John Conto, described by Calvert as an employee who had just been promoted to management, either went by or was standing at the end of the lunch counter. Kaberna pointed to Conto and told Calvert, "there's a man that's going to go places in the Penney Company . . . he has a good management attitude." Kaberna added, "he will probably be going places that you could have gone." Kaberna finished his glass of milk and left with the parting remark "Jim, it's pretty well died out in the store. Let's keep it that way." In early March, Calvert was waiting on a customer and Supervisor Ehlers came up to them and asked the customer whether he could help him with something. Instead of answering him, the customer told Calvert it looked like Calvert was busy so he would come back later and he left. Ehlers asked Calvert if that was one of his union representatives and Calvert told him that he would be crazy to have one of them there on store time . He accused Ehlers of killing a sale and Ehlers just laughed and left. Respondent's store is equipped with about 10 one-way mirrors through which the sales floor may be kept under surveillance to detect any possible shoplifters . Sometime in February or March, Store Manager Kaberna positioned himself at one such mirror which overlooks the sporting goods department where Calvert works and other parts of the selling area . Shipping room employee Steinke observed Kaberna and during his lunch period he told Calvert that Kaberna had been watching him that morning. 2. Analysis and conclusions The foregoing is based on the testimony of Calvert which is in many respects undisputed . In some respects, I have reservations about Calvert's credibility. Thus, his being in the store while off duty assertedly to exchange slacks and coincidentally spending about 2 hours in and out the store suggests to me that he may have been there for some other reason ; namely, solicitation. On the other hand, I was simply not impressed by Respondent's witnesses. Thus, neither Ehlers nor Kaberna gave a convincing explanation for approaching Calvert when from outward appearances he was talking to customers. As to Dussenberry, I found him less than candid in testifying about his knowledge that Calvert was engaged in union activities ; he admitted to a suspicion when from all indications he knew what Calvert's activities were. On balance, therefore, I have given credence to Calvert's testimony where it conflicts with that of Respondent's witnesses. The question remains whether on Calvert's testimony a finding is warranted that Respondent violated the Act. The answer to that is in part yes and in part no. The complaint alleges that Kaberna twice threatened an employee with loss of advancement opportunities because of his union activities. This allegation relates to Kaberna's remarks to Calvert in his office and at the snackbar. In his office, Kaberna used the example of the hunter to answer Calvert's question whether his involvement with the Union would hurt his chances in management and his example clearly implied that if you want to get ahead with Penney, you don't go to the Union. The example, then, was an implied threat to Calvert of loss of advancement opportu- nities because he had engaged in union activities. As I have indicated above, my finding is based on Calvert's description of his conversation in Kaberna's office, however, it is not dependent on that credibility resolution because Kaberna admitted using the example of the hunter. True, Kaberna testified that he assured Calvert expressly that his union activities would not affect his advancement opportunities , but Calvert denied this and I credit him because Kaberna's alleged assurances were J. C. PENNEY CO. inconsistent with his example of the hunter. Apart from that, even if he uttered assurances with one breath, he destroyed them with the next. The foregoing conclusion is consistent with Kaberna's statement to Calvert at the snackbar on February 28. On that occasion, Kabema used the example of another employee who, apparently, was not a union supporter, and who had a good management attitude and would probably be going places Calvert could have gone. The implied threat of loss of advancement opportunities is clear. My finding is based on Calvert's version of Kaberna's remarks, but I see no essential difference between his version and Kaberna's. In addition to finding that Kaberna threatened Calvert in his conversation at the snackbar, I find that Kaberna was engaged in surveillance. Calvert was on breaktime and so were the employees with whom he was talking. By injecting himself into the scene Kaberna broke up the conversation. According to him, he had gone to the snackbar for a drink and it was an accident that Calvert was there at the same time and it was only natural and sociable to join him and speak to him. I might have been willing to accept this explanation were it not for the fact that there were too many instances when Calvert was clearly being kept under surveillance. In light of those other instances, and the content of Kaberna's remarks to Calvert at the snackbar, I reject Kaberna's explanation for his presence and conclude he was engaged in surveillance of Calvert and trying to impede him in engaging in union activities on nonwork time. The complaint also alleges that Kaberna's conduct on the occasion constituted interrogation, and Kaberna's opening remark "What's that you're saying about the Union" certainly was a question about Calvert's union activities. However, I do not consider the remark interroga- tion as the term is usually applied. Kaberna already knew about Calvert's union activities, and the remark was not used to find out anything about such activities; rather, it was part of the act of unlawful surveillance in which Kaberna was engaging at the time. To label the incident as interrogation would be inaccurate. All that remains for consideration are the allegations of interrogation by Dussenberry and Ehlers, and surveillance by Dussenberry and Kaberna. I find no merit to these allegations. The allegation of interrogation by Dussenberry relates to the incident when Dussenberry called Calvert into his office. On that occasion, according to Calvert's own testimony, Dussenberry remarked that he knew Calvert was involved in organizational activity. This certainly was not interrogation in form, and while in some circumstances Dussenberry's remark could be construed as a rhetorical question designed to elicit information, this clearly was not the case here; rather, the remark was prefatory to a warning to Calvert to confine his union activities to nonwork time. Moreover, apart from the fact that the complaint does not so allege, as it is evident that the purpose of the remark was to warn Calvert, I also conclude See Hosiery Corp of America. 175 NLRB 180 5 The incident when Kaberna interrupted Calvert who was having a conversation with an insurance agent is not adverted to in General 317 that the remark ought not be construed as conveying the impression of surveillance. The most troubling aspect of Dussenberry's remark is that Dussenberry appears to have promulgated a no- solicitation rule which may be unlawful either because it prohibited only union solicitation or because it was promulgated for the purpose of interfering with union activities among the employees? I have not addressed myself to the implications thus presented by Dussenberry's remarks, because the complaint did not allege the promulgation of an unlawful no-solicitation rule and the matter was not litigated. I do not intend to suggest that the complaint should have alleged the promulgation of an unlawful rule, and only mention the matter because I believe the existence or nonexistence of a valid no- solicitation rule is a factor to be considered in determining the legality of Respondent's surveillance of Calvert's activities. The allegations of surveillance relate to Dussenberry's conduct when Calvert was in the store exchanging slacks, Kaberna's observation of Calvert's work area through a one-way mirror, and Ehler's interruption of a conversation between Calvert and a customer (an incident which is also alleged to involve unlawful interrogation ) 5 In each instance, Respondent's witnesses gave explanations for their behavior and denied they were engaged in surveil- lance. I do not credit those explanations . I am persuaded from the frequency of the occurrences and the circum- stances surrounding them that they were attributable to the fact that Respondent had Calvert under surveillance. The question is was such surveillance unlawful. Respondent contends that such surveillance is not unlawful because "it would be nothing more than surveillance in the work area designed to ascertain whether individuals on duty were performing their assigned tasks rather than engaging in union activities." It is settled law that work time is for work and I agree that surveillance of employees on company time stands on a footing different from surveillance on nonwork time . But an employer does not have an unqualified right to engage in surveillance of employees on company time. The guiding principle was well stated in Mason & Hanger-Silas Mason Co., 167 NLRB 894, 910. Unquestionably, an employer has the right to demand that every employee spend every minute of company time working and has the right to discipline every employee who fails to work every minute, whether the amount of time wasted is 1 minute or 20 minutes. But the amount of time involved, the effect on the efficient operation of the business, the Company's attitude generally toward the use of its time for something other than work and all of the other circumstances must be considered in determining the Company's motive for acting in the case under consideration. If an employer normally does not enforce his right to insist that every minute of his time be spent working, i.e., permits various types of Counsel's brief and apparently General Counsel does not contend that incident involved unlawful surveillance. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "outside" activity on company time, it becomes necessary to determine why he acted in the case to be decided. Of course, one possible explanation for the contrast between an employer's general nonenforce- ment of his right and his strict enforcement of it in a particular case is his attitude toward the nature or the purpose of the activity involved. In sum, the validity of a respondent's conduct, be it interrogation, surveillance, investigation, or disciplinary action, must be determined on the basis of the entire record and conduct which would be valid in one case may not be valid in another. Thus, if an employer discharges every employee who is late even once, it would almost certainly be found that he did not violate the Act by discharging the union president the first time the latter did not report on time. But the conclusion might well he different in a case in which the record established that the employer had never before taken any action against employees who were regularly late, the distinguishing fact being the dispa- rate treatment of the union president and other company employees. Applying this approach to the record in this case, it appears to me evident that the evidence is insufficient to support a finding of a violation. In the first place, each incident of surveillance occurred when Calvert was on company time, or speaking to an employee (Carr) who was on company time. Dussenberry's admonition to Calvert, and his testimony that the admonition was delivered because an employee has a responsibility to attend to customers, indicate that Respondent expects work time to be for work, and General Counsel adduced no evidence that Calvert was treated disparately from other employees. In Ohio Hoist Manufacturing Co., 189 NLRB 686, and Mason & Hanger-Silas Mason Co. Inc., supra, there was disparate treatment. In Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527, the interrogation of an employee about another employee's union activities on company time was deemed unlawful for several reasons, including the fact that the no-solicitation rule was unlawful and was applied to discriminate against union solicitation only. The record in this case lacks such factors. It is true that Respondent appeared very concerned about Calvert's union activities, so much so that it engaged in unlawful surveillance of those activities on nonwork time. Nevertheless, the principle that work time is for work is so well imbedded in the law that the mere fact that Respondent has engaged in some unfair labor practices does not deprive it of the right to require employees to confine their activities on company time to their assigned duties. Without more, the record must be deemed insufficient to warrant a finding that the surveillance of Calvert on company time, and Ehler's interrogation about the identity of Calvert's customer, were violative of Section 8(a)(l) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent contends that even were I to find a violation of the Act herein, as alleged, the violations would be of the most minimal and technical nature, not warranting the issuance of an order. Accordingly, Respondent contends the complaint should be dismissed. In support of this position, Respondent cites American Federation of Musi- cians, Local 76, AFL-CIO, 202 NLRB 620. That case is readily distinguishable. It involved a single threat to a supervisor by a union, apparently inadvertently made, subsequently remedied, and not part of a pattern of harassment against supervisors. As minor as this case may be in the scheme of our national and industrial life, it falls precisely within the scheme of the Act and the policies which that Act was enacted to foster and encourage. At the heart of those policies is the policy of freedom from restraint or coercion for employees who desire and seek union representation. That policy was thwarted here. Calvert, the principal union supporter, even more, the one who started the organizational activity, was twice threat- ened and once surveilled under circumstances tending to interfere with his engaging in union activities on nonwork time. In addition, the surveillance frightened away two other employees. While this is only 3 out of 300 to 400 employees, Respondent's unlawful conduct has served to deprive them of their Section 7 rights and may well have been sufficient to kill the organizational activity. In my judgment, Calvert is entitled to assurances of freedom from threats and all employees are entitled to know they enjoy the rights guaranteed by Section 7 of the Act. At the hearing Respondent adduced testimony that a separate unit of its employees at an automobile service center adjacent to the store herein had been successfully organized by the Union herein without any charges of unfair labor practices. I attach no significance to such evidence. A cursory glance at the table of cases in digests of Board decisions involving J. C. Penney reveals that Respondent has violated the Act on many occasions .6 In my judgment, dismissal of the complaint in this case is not warranted. The activities of the Respondent set forth in section II, above, occurring in connection with its operations de- scribed 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. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 6 E.g.. 204 NLRB No 20,202 NLRB 1108, 172 NLRB 1279, 172 NLRB 662, 160 NLRB 279. J. C. PENNEY CO. 319 CONCLUSIONS OF LAW 1. J. C. Penney Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union Local No. 214, affiliated with the Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening an employee with loss of advance- ment opportunities because of his activities on behalf of the above-named Union and by engaging in surveillance of such activities during the employee's nonwork time, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and 2(6) and (7) of the Act. 4. General Counsel has failed to establish by a preponderance of the evidence that Respondent violated Section 8(a)(1) of the Act by surveying the activities of its employees on company time or by the interrogation of employees. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? Respondent, J. C. Penney Company Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec 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 (a) Threatening employees with loss of advancement opportunities because of their activities on behalf of Retail Store Employees Union Local No. 214, affiliated with the Retail Clerks International Association, AFL-CIO, or any other labor organization. (b) Engaging in surveillance of the union activities of its employees during nonwork time. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Post at its Sheboygan, Wisconsin, facility, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of the complaint found not to have been sustained by a preponderance of evidence be dismissed. A 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 National 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 "