McCrory Corp.

BRITT'S DEPT. STORE 613 Britt's Department Store, Division of McCrory Corp. and Retail Clerks Union, Local No. 455, chartered by Retail Clerks International Association, AFL-CIO. Case 23-CA-4912 June 14, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 9, 1974, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. had engaged in the alleged unfair labor practices. A hearing in this proceeding was held before me, and both the General Counsel and Respondent filed briefs. Upon the entire record in this case, and from my observation of the witnesses and their demeanor, I make the following: 2 FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a corporation organized and existing by virtue of the laws of the State of Texas and is engaged in the business of operating retail department stores in various States including Texas. During the past 12 months, the Respondent has sold and distributed products with a gross value exceeding $500,000 . During the same period of time, the Respondent also purchased goods from points and places located outside the State of Texas valued in excess of $50,000, and which goods were shipped directly to its retail department store located at 315 Northline Mall, Houston, Texas. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 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 and hereby orders that Respondent, Britt's Department Store, Division of McCrory Corp., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Judge: Based on a charge filed on November 2, 1973,1 by Retail Clerks Union, Local No. 455, chartered by Retail Clerks Interna- tional Association, AFL-CIO, herein the Union, a com- plaint against Britt's Department Store, Division of McCrory Corp., herein the Company or Respondent, was issued on December 18 alleging violations of Section 8(a)(1) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint, denying it I All dates are in 1973 unless stated otherwise. 2 All credibility resolutions made herein are based on a composite evaluation of the demeanor of the witnesses and the probabilities of the evidence as a whole. 3 The following named persons occupied the positions set opposite their names and are admitted supervisors within the meaning of Sec. 2(11) of the Act: Donald Wood Store Manager Elsie Geer Personnel Manager Evelyn Conine Supervisor III. THE UNFAIR LABOR PRACTICES It is alleged that on various dates in September and October, Respondent's supervisors interrogated and threat- ened employees,and told them their support for the Union was an act of disloyalty, and it is also alleged that one employee was asked to tell a fellow employee not to join the Union .3 Around the first of September the Union instituted efforts in attempts to organize the Respondent's employ- ees, and authorization cards were also distributed to the employees. It was during this period that the 8(a)(1) violations occurred .4 The Respondent argues that the General Counsel has failed to sustain his burden of proof and that there was no evidence showing the employees felt threatened or intimi- dated, and further maintains that, even assuming, arguen- do, that the incidents were unlawful, they were so isolated so as not to warrant the issuance of a remedial order. Employee Susan Howard works at the service desk in the credit department, and credibly testified that in September, after the Union had started its campaign, Supervisor Elsie Geer asked her if Gloria Nash, a coemployee, had signed a card. Howard further testified that at a later occasion, on or about October 20, Supervisor Geer again called her into 4 On or about October 26, the Union filed a petition to be certified as the collective-bargaining representative, and the Board's Regional Office proceeded with the petition for certification when the Union agreed that the pendency of the unfair labor practice charge herein should not stay the holding of the election . The election was held on January 10, 1974 , but the Union failed to obtain a majority of the votes. The results of the election were then certified and no objections with respect thereto were filed by the Union. The Respondent's store here in question has about 80 employees. 211 NLRB No. 95 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the office to work on a schedule, and Geer told Howard she wanted to ask her something, and then stated, "I heard you signed a union card, and I'm real disappointed in you. You are going to be letting Mr. Wood down." Geer then also asked Howard if Ella Rogers had signed a union card.5 Susan Howard also credibly testified that, in the latter part of October, Store Manager Donald Wood was leaving the service desk when he told her, "Talk to your little friend and tell her not to join the Union." Howard said that as he made this statement Wood turned around and looked at Janice Wilson.6 Employee Dorothy Smith credibly testified that on or about October 16, Supervisor Evelyn Conine approached her in the work area where she was assigned and asked if she was going to join the Union. Smith replied that she was thinking about it, and Conine said, "You'd better not." Smith then questioned why and Conine replied, "You'd lose all the benefits that you have." Upon inquiring to what benefits she was referring, Conine stated, "Things like paid vacation and retirement plan." Although Smith is a rather new employee and is not presently receiving any of these benefits, she will become eligible later on for existing company benefits such as paid vacations, life and health insurance, and retirement coverage. It is further noted that by this time Smith had already signed her authorization card.? It is well-established Board and court law that in determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act, and, of course, the fact that the employees were neither fearful nor apprehensive of their rights is immaterial. In crediting the witnesses for the General Counsel, it is noted that both Howard and Smith are still employed by Respondent and they stand to gain nothing by testifying adversely to Respondent, and, as also pointed out, this is especially true since the Union lost the election. From the demeanor of the witnesses and for other reasons noted herein, it is obvious that Supervisors Geer and Conine did not want to admit to anything that would put them in bad stead with the Company, and certain aspects in their testimony is readily indicative thereof. There is an argument by the Respondent that the Union's accord to proceed with the election, in spite of the pending charge in the instant case, is indicative of its belief that the rights of the employees had not been violated. However, regardless of whatever belief the Union may or may not have had in permitting the election, the illegal 5 Supervisor Geer denied the above but then admitted one union conversation with Howard in October, but stated that on this occasion she said absolutely "nothing" while Howard "volunteered" that she (Howard) was not interested in union activities and had been advised not to get involved fi While Manager Wood specifically denied this statement attributed to him by Howard, he admitted that Janice Wilson was a new employee and worked in the same area where Howard was assigned 7 Supervisor Conine denied ever talking to Smith about the Union, but subsequently testified that she did talk to Smith almost everyday about business or work. conduct and statements here in issue have not been retracted or remedied in any way. Moreover, the state- ments attributed to the Company were made on more than one occasion, and, therefore, cannot be deemed an isolated incident and especially so since major supervisors were involved, including the store manager. The foregoing testimony which has been credibly attributed to the Respondent includes instances of unlawful interrogations concerning employee memberships or activities in the Union, threatening loss of benefits, and soliciting the help of an employee in asking another not to join the Union. All of which, under these conditions, reasonable probability, purposes, setting, and sequence of events here, have the effect of interfering and restraining the employees and constitute violations of Section 8(a)(1) of the Act.8 IV. THE REMEDY Since I have found the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, I shall recommend that they shall cease and desist from such activity and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the basis of 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: ORDERS Respondent, Britt's Department Store, Division of McCrory Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union member- ships and activities. (b) Threatening employees with loss of benefits. 8 Since there is not even an indirect threat or promise in the statement made by Supervisor Geer to Susan Howard that she would be " letting Mr Wood down" in signing a card, I hereby dismiss this allegation in the complaint 9 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 BRITT'S DEPT. STORE (c) Soliciting the assistance of employees in asking coemployees not to join the Union. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Post at its places of business copies of the attached notice marked "Appendix." 10 Copies of said notice, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that paragraph 7(d) of the complaint be dismissed. 10 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 615 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL, LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees about their union membership or activities. WE WILL NOT threaten employees with loss of benefits. WE WILL NOT solicit the assistance of employees in asking other employees not to join the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. Dated By BRLTT's DEPARTMENT STORE, DIVISION OF MCCRORY CORP. (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Dallas-Brazos Buiilding, 1125 Brazos Street, Houston, Texas 77002, Telephone 713- 226-4296.