G. C. Murphy Co.

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. C.-Murphy Company and Retail Clerks Store Em- ployees Union, Local 1407, As Chartered By Retail Clerks International Association, AFL-CIO. Case 6-CA-7598 March 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 23, 1974, Administrative Law Judge Thomas D. Johnston issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, to which Respond- ent filed a brief in answer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, G. C. Murphy Company, Monroeville, Pennsylvania, its officers, agents, successors, and as- signs, shall take the action set forth in the said recom- mended Order. DECISION STATEMENT OF THE CASE THOMAS D. JOHNSTON, Administrative Law Judge: This case was heard at Pittsburgh, Pennsylvania, on October 16, 1974,' pursuant to a charge filed on June 27 by the Retail Clerks Store Employees Union, Local 1407, As Chartered By Retail Clerks International Association, AFL-CIO (herein referred to as the Union), and a complaint issued on Septem- ber 26. The complaint alleged that G. C. Murphy Company (herein referred to as the Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein referred to as the Act) by unlawfully interrogating employees concerning their union activities and sympathies; prohibiting employees from wearing union buttons; threaten- ing employees with loss of benefits because of their union memberships and activities; and creating the impression 1 All dates referred to are in 1974 unless otherwise stated among its employees their union activities were being kept under surveillance. Respondent in its answer filed on October 1 denied having violated the Act. The issues involved are whether Respondent violated Sec- tion 8(a)(1) of the Act by unlawfully interrogating, threaten- ing, and creating impressions of surveillance of its employees with respect to their union activities or prohibited them from wearing union buttons. The parties at the hearing were afforded full opportunity to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Upon the entire record in this case and from my observa- tion of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent' I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation, with its principal office and warehouse located at McKeesport, Pennsylvania, is engaged in the business of operating a chain of retail stores including a store located at Monroeville, Pennsylvania, which is the only store involved in this proceeding. During the 12-month period preceding September 26, Respondent's gross revenues derived from the operations of its Monroeville store exceeded $500,000 and it received goods valued in ex- cess of $50,000 for use at its Monroeville store directly from points located outside the State of Pennsylvania. Respondent admitted, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent admitted, and I find, that the Retail Clerks Store Employees Union, Local 1407, As Chartered By Retail Clerks International Association, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Interference With, Restraint, and Coercion of Respondent 's Employees Respondent operates a retail department store located at Monroeville, Pennsylvania. Mr. Barns is the store manager and Mr. Phillips is the first assistant manager. Among its supervisory personnel are Katherine Porter, who is the office supervisor, Melvin Beers, who is the assistant manager, and Mr. Round, who is the merchandise manager.' About May 1974 the Union began an organizing campaign among Respondent's employees. The General Counsel presented four witnesses: Ellen Gould, Anna Medwick, Romaine Davis, and Eleanor Rifley, 2 The Charging Party did not submit a brief. 3 Respondent admitted, and I find, that Assistant Manager Beers, Office Supervisor Porter, and Merchandise Manager Round are supervisors within the meaning of Section 2(11) of the Act. 217 NLRB No. 5 G. C. MURPHY COMPANY who testified to certain conduct engaged in by the Respon- dent's supervisory personnel. Each of these witnesses was employed by the Respondent at its Monroeville store and were among those employees engaged in union activities. Ellen Gould testified that on May 18, when she went to the cash office to get some purchase slip forms for which she was responsible for giving to the employees, upon asking Office Supervisor Porter for a purchasing pad, Porter told her she had better take and use them while she could because when the Union got in there would be no more discounts,' take- home layaways, or vacations. Office Supervisor Porter denied having any conversation with Gould about either the purchase pad or company bene- fits. I credit the testimony of Gould rather than Office Supervi- sor Porter and find that Porter threatened Gould that if the Union got in the employees would lose their discounts, take- home layaways, and vacation benefits. Apart from my obser- vations of the witnesses in making this finding it is also-con- sistent with similar conduct engaged in by Assistant Manager Beers as discussed infra. Anna Medwick stated that on one occasion in June as she was leaving the store she observed a sign posted outside on the wall to the effect there would be no passing out of hand- bills on the premises by nonemployees. Upon asking Assist- ant Manager Beers what the sign meant Beers replied it had to do with and pointed to a union button which she had on. According to Medwick when Beers pointed to the button it came off. Medwick testified while they were joking around she asked Beers to return the union button whereupon he replied he wouldn't and asked if he could have it. Medwick told him he couldn't and when he asked again she inquired whether he would wear it. After Beers replied he would wear it she told him he wouldn't and took the union button back. Medwick stated she then asked Beers how he felt about the Union whereupon he replied he had personal reasons for being against it. Medwick stated she did also but still thought it was good and asked him if he thought his employees were worth more and should be getting paid more . Beers agreed but stated they could not afford it. When Medwick men- tioned that the employees at the Gee Bee store which was similar to Respondent started out with higher wages than Respondent's employees, Beers informed her they did not have as many stores and could affort it. Medwick testified during the conversation Beers told her if the union got in it would be like starting new and the older people who had 4 or 5 weeks' vacation would lose that and they would lose their other benefits. Upon asking Beers what benefits, Beers men- tioned the 10-percent discount and the take-home layaway. However, Medwick stated while they were talking Assistant Manager Phillips5 and Mr. Lopretta6 came up and when she told Phillips to tell Beers they wouldn't lose all of the benefits Phillips said everything would be negotiable. Assistant Manager Beers recalled Medwick having asked him about the sign and that they had talked about whether they would lose their benefits whereupon he had told her they would become a negotiable issue. Beers who denied ever tell- 4 The employees receive a 10-percent discount on items they purchase 5 Assistant Manager Phillips did not testify. 6 The record does not establish whether Mr. Lopretta, who did not testify, was employed by the Respondent 35 mg employees they could not wear union buttons, could not recall any conversation regarding the union button and al- though he recalled Assistant Manager Phillips joining in their conversation he did not recall what Medwick said to him. I credit the testimony of Medwick who impressed me as a more credible witness than Beers. Further, Beers not only testified in an evasive manner but Assistant Manager Phillips was not called to corroborate his testimony. Having credited Medwick's testimony I find that Assistant Manager Beers threatened Medwick that if the union got in the employees would lose their vacations, 10-percent dis- counts, and take-home layaway benefits. Although Assistant Manager Phillips informed Medwick these items would be negotiable he did not specifically retract the threat made to her by Beers which threat was similar to those threats made to another employee by Beers, discussed infra However, contrary to the General Counsel's assertion that Beers had unlawfully prohibited Medwick from wearing a union button, I find otherwise. Medwick's own testimony failed to establish Beers had either instructed her to remove the union button or not to wear it and she acknowledged she was joking with Beers about his wearing her union button which he returned to her. Moreover, the undisputed testimo- nies of Assistant -Manager Beers and employees Romaine Davis and Eleanor Rifley established other employees were permitted to wear union buttons while working. Romaine Davis testified that about July Assistant Manager Beers told her he wanted to talk to her about the Union. During their conversation Beers told her if the Union got in the first thing that would probably happen was they would go on strike. Her response was it took at least a two-thirds majority to have a strike vote. Upon her telling Beers she thought she should be getting paid more than the part-time employees, Beers told her he did not have any say-so about their pay. Beers told her if the Union got in they would lose some of their benefits, mentioning their paid vacations and take-home layaways. Beers also told her he had heard about a store that had been on strike for 5 years. After telling him she didn't believe it and asking where he had heard it, Beers told her from the vice president of the company. Davis fur- ther testified during the conversation Beers told her to vote no for the Union. Assistant Manager Beers' version of the conversation was he had made a statement he had heard if they got a union in there they could go on strike and told her about a store that had been on strike for 5 years. Beers also stated he asked Davis what she felt about it and asked her what she would do. Beers could not recall Davis' reply except they would probably just have to go out on strike . Beers denied telling Davis she should vote no. I credit Davis rather than Beers, who I have previously discredited, and find that Beers unlawfully interrogated Davis concerning her union sympathies and threatened her that if the Union got in employees would lose some of their benefits including paid vacations and take-home layaways. Romaine Davis testified that about early July upon asking Merchandise Manager Round why he had not spoken to her' his response was he had been on vacation for, a week. Davis stated when she asked him if he had heard the rumor 7 According to Davis he had not spoken to her in about 3 weeks. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she was being paid by the Union to agitate people' he told her he had. Davis then asked him why he didn't come and talk to her about it because she would have told him the truth if she was. According to Davis during the conversation Round also mentioned their benefits but said he didn't know too much about it because he had not been with the store that long Davis did not recall how they had gotten into the dis- cussion about their benefits. Merchandise Manager Round did not testify and I credit Davis' testimony. The General Counsel contended that Merchandise Manager Round, by having acknowledged he had heard such a rumor, created the impression on Davis that her union activities were being kept under surveillance. Since the General Counsel's theory erroneously assumes that Round could only have learned of the rumor through surveillance of Davis' activities I do not find his acknowledge- ment to Davis that he had heard such a rumor created the impression that her union activities were being kept under surveillance. Although Davis, who operated a register, and worked un- der the supervision of Assistant Manager Beers, further testi- fied that after the union activities began, Store Manager Barns, Assistant Manager Phillips , and Assistant Manager Beers, whose duties admittedly required them to be in the sales areas a great deal of the time, began watching her such conduct was not alleged in the complaint. Accordingly, no finding will be made. Eleanor Rifley stated that during the early part of July at a time she was upset Assistant Manager Beers asked her what was wrong. Rifley stated that, after she made it clear to Beers she thought they should form a union, Beers asked whether she had ever stopped to think of the consequences. Upon her replying they would be able to get better wages and benefits and that she thought their wages were pretty low, Beers told her to look at the other side, and that she could go on strike. When she said she didn't think too much about a strike Beers mentioned a long strike in Baltimore . After talking about it she told Beers since the Respondent was located in the mall she did not think they would stay on strike very long. Accord- ing to Rifley their conversation about the Union had started when she had mentioned better wages and benefits where- upon Beers told her their wages were paid from each in- dividual store and the store could not afford any more wages. Although Assistant Manager Beers recalled having a con- versation with Rifley concerning the Union he did not relate his version. Contrary to the allegations in the complaint I do not find that Assistant Manager Beers during this conversation about the Union, admittedly initiated by Rifley, unlawfully interro- gated her concerning her union activities or sympathies. B. Conclusions and Analysis The General Counsel contended while the Respondent de- nied that the Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating, threatening, and creating im- pressions of surveillance of its employees with respect to their 8 No evidence of the alleged rumor was proffered by the General Counsel union activities and prohibited them from wearing union buttons. Section 8(a)(1) of the Act prohibits an employer from inter- fering with, restraining, or coercing its employees in the exer- cise of their rights guaranteed in Section 7 of the Act. While an employer may communicate to his employees his view on unionism, threats of reprisal including loss of their existing benefits as well as interrogation as to their union sympathies violate Section 8(a)(1) of the Act. See Components, Inc., 197 NLRB 163 (1972). Based upon my findings, supra, Office Supervisor Porter threatened employee Gould that if the Union got in the em- ployees would lose their discounts, take-home layaways, and vacation benefits; Assistant Manager Beers threatened em- ployee Medwick that if the Union got in the employees would lose their vacations, 10-percent discounts, and take-home layaway benefits; and Assistant Manager Beers unlawfully interrogated employee Davis concerning her union sympa- thies and threatened her that if the Union got in the em- ployees would lose some of the benefits including paid vaca- tions and take-home layaways. I hereby find such conduct interfered with, restrained, and coerced employees Gould, Medwick, and Davis in the exercise of their rights guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices occurring in connection with the operations of the Respondent described in section I, above, have a close , intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. G. C. Murphy Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Store Employees Union, Local 1407, As Chartered By Retail Clerks Association, AFL-CIO, is a la- bor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating an employee concerning her union sympathies; and by threatening employees they would lose their vacations, discounts, and take-home layaway bene- fits if they selected the Union to represent them, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and has engaged in unfair labor practices in violation of'Sec- tion 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) - G. C. MURPHY COMPANY of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action to effectuate the policies of the Act. . The General Counsel, citing other Decisions issued by Ad- ministrative Law Judges involving G. C. Murphy Company, seeks as,a remedy a broad order and requests that the Re- spondent be required to post notices in each of its stores located in the Baltimore and Pittsburgh areas. Apart from the fact the appeal procedures involving all of those decisions cited have not been exhausted, since the violations herein found, which were limited to a few instances of unlawful interrogation and threats, involved only the Monroeville store and absent evidence as here to establish the relationship between the Monroeville store and those stores located in Baltimore and Pittsburgh, such request is hereby denied. 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: ORDERS G. C. Murphy Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employees by coercively interrogating them concerning their union sym- pathies and by threatening them with the loss of their benefits including vacations, take-home layaways, and discounts if they select a union to represent them. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the Retail Clerks Store Employees Union, Local 1407, As Chartered By Retail Clerks International Association, AFL-CIO, or any other labor organization to bargain collectively through representa- tives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities except that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: 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. 37 (a) Post at its place of business located at Monroeville, Pennsylvania, copies of the notice attached hereto marked "Appendix."" Copies of said notices, on forms provided by the Regional Director for Region 6, shall, after being duly signed by an authorized representative of the Respondent, be posted 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. Respondent shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be and hereby is dismissed insofar as it alleged unfair labor practices not specifically found herein. 10 In the event the Board's Order is enforced by a Judgment of the 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employees concerning their union sympathies. WE WILL NOT threaten our employees with the loss of their benefits, including vacations , take-home layaways, and discounts in the event they select a union to repre- sent them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join or assist the Retail Clerks Store Employees Union, Local 1407, As Chartered By Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be effected by an agreement requiring membership in a labor organization as a coiidi- tion of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. G. C. MURPHY COMPANY