Tempo Discount Center

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gamble-Skogmo, Inc., d/b/a Tempo Discount Center and Local 11, Retail Store Employees Union, Retail Clerks International Association, AFL-CIO. Cases 7-CA-12501 and 7-RC-13211 September 20, 1976 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On June 3, 1976, Administrative Law Judge Mi- chael O. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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, con- clusions and recommendations of the Administrative Law Judge and to adopt his recommended Order, as modified.' ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT threaten you with discharge in the event that Local 11, Retail Store Employees Union, Retail Clerks International Association, AFL-CIO, or any other union, wins a represen- tation election. WE WILL NOT prohibit you from engaging in union activities protected by the Act on our premises. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Gam- bel-Skogmo, Inc., d/b/a Tempo Discount Center, Traverse City, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order, as modified below. 1. Substitute the following for paragraph 1(b): "(b) Prohibiting employees from engaging in union activities, protected by Section 7 of the Act, upon Respondent's premises." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election conducted herein in Case 7-RC-13211 on November 13, 1975, be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] i Respondent has excepted, inter aka, to par 1 (b) of the recommended Order as being too broad. We agree and shall accordingly modify the rec- ommended Order GAMBLE-SKOGMO, INC., d/b/a TEMPO DISCOUNT CENTER DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: These consolidated cases were heard in Traverse City, Michigan, on April 1, 1976. The charge was filed by Local 11, Retail Store Employees Union, Retail Clerks International Asso- ciation, AFL-CIO, herein the Union, on November 14, 1975. (All dates hereinafter are 1975 unless otherwise speci- fied.) On the same date, the Union filed parallel objections to conduct affecting the results of election.' On December 29, the said Regional Director issued the complaint in the 'The Union's petition in Case 7-RC-13211 was filed on September 17 and pursuant to a stipulation for certification upon consent election ap- proved by the Regional Director for Region 7 of the National Labor Rela- tions Board on October 15, a secret ballot election was conducted on No- vember 13. Following issuance of the Regional Director's report and recommendations on challenged ballots , to which no exceptions were taken, the amended tally of ballots reflected that, of approximately 60 eligible voters, 25 cast votes for the Petitioner-Union, and 26 cast ballots against the Petitioner-Union A majority of valid votes counted were not cast for the Petitioner-Union. 226 NLRB No. 11 TEMPO DISCOUNT CENTER 41 instant unfair labor practice proceeding and, on January 7, 1976, issued the report and recommendations on objec- tions (and challenges) which directed a hearing before an Administrative Law Judge to resolve material issues of fact raised by the outstanding objection and such potentially objectionable conduct as was discovered in the course of the investigation of the unfair labor practice charge. The cases were consolidated for hearing and decision. It was further directed that following the issuance of the Adminis- trative Law Judge's Decision- Case 7-RC-13211 (objec- tions) be transferred to the National Labor Relations Board, herein the Board, in Washington, D.C. The complaint and report on objections allege that Gamble-Skogmo, Inc., d/b/a Tempo Discount Center, herein Respondent or Tempo, interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act, and interfered with the conduct of the election by threatening employees that support for the Union would prevent promotion to supervisory or managerial positions,2 threatening employees with discharge if the Union won the election, and restricting the movement of employees within Respondent's store-to prevent discussions about the Union. Respondent timely filed its answer to the complaint deny- ing the substantive allegations thereof. Upon the entire record in this case, including my obser- vation of the witnesses and their demeanor, and after con- sideration of Respondent counsel's brief and General Counsel's oral argument, I make the following findings of fact and conclusions of law: 1. THE BUSINESS OF RESPONDENT AND THE UNION'S LABOR ORGANIZATION STATUS Jurisdiction is not in issue. The complaint alleged, Re- spondent admitted, and I find that, at all times material herein, Respondent has been engaged in the operation of a retail department store in Traverse City, Michigan, and has been an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. The complaint alleged, Respondent admitted, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES _ Jeffery Lofquist began his employment at Tempo in June 1974. He worked in several positions before being assigned to the automotive department in or around July 1975. He was referred to as the automotive department head or manager but, I conclude, was neither a supervisor nor managerial employee.3 2 It was alleged that this conduct occurred before the-filing of the petition. It,would not, therefore, constitute objectionable conduct. Goodyear Tire and Rubber Company, 138 NLRB 453 (1962). 3 Pursuant to the stipulation for certification upon consent election, the automotive manager was excluded from the agreed -to bargaining unit, as were licensed department employees, management trainees, store manager, merchandise manager, operations manager , appliance manager, receiving manager, professional employees , guards and supervisors. The record re- flects that there are two employees in the automotive department , including Lofquist. They work overlapping shifts, one working daytime hours and the Lofquist testified in regard to two alleged conversations with Harold Schroeder, the store manager;4 According to his testimony on direct examination, Lofquist went in to Schroeder's office at the end of August to ask about a pro- motion and Schroeder told him, "I know you want to go into management, but if you are a member of the union, you can't go into management." The affidavit which Lof- quist gave to an agent of the Board during the investigation of the charge, however, stated that, "On or about August 31st, Harold Schroeder told me I was the automotive man- ager. Schroeder called me into the office. He said I didn't have to worry about the union anymore because now I was automotive manager and would not be allowed to vote." On redirect examination he indicated that there were two conversations and, on examination by the Administrative Law Judge testified that in the initial conversation, at the beginning of August, he was told that he would not be allowed to vote if he was a manager, and in the second conversation, around the end of that same month, he was told that if he was in the Union he could not be a part of management. Schroeder testified that the first knowledge he had of any union activity was on September . 12 when Edwin Hughes, the union business representative, came to the store, told Schroeder that he had enough cards to support an election and asked Schroeder "to honor the cards." Schroeder further denied being in the store on either Au- gust 31 or September 1.5 He denied ever telling Lofquist anything to the effect that union activity would prevent him from being promoted.' He testified that he received a copy of the election agreement from the Board, either Oc- tober 10 or 11, which excluded the automotive manager from the unit. He thereupon informed Lofquist of his ex- clusion from the unit and told him that he "would not be able to vote for the union or vote at the union election." While the matter is not free from doubt, I am inclined to credit Schroeder rather than Lofquist. In addition to the comparative demeanor of the two witnesses, I take particu- lar note of the contradictions between Lofquist's testimony and his affidavit and the inconsistencies and lack of coher- ence in his testimony while being questioned during the various phases of direct and cross-examination. I also note that other than Lofquist's testimony the record provides no evidence of union activity or Schroeder's knowledge there- of prior to September. I deem it improbable that Schroeder other working from midday until the store closes at 9 p in. Lofquist, at $2 75 per hour, receives 25 cents per hour more than the other employee He is paid a premium for any overtime hours worked . He assists the merchandise manager in ordering merchandise , stocks shelves, and sells tires and batter- ies He does not schedule the other employee's hours but believes that he could "advise him what to do " He does not have the authority to hire or fire employees but may recommend discipline to the operations manager It does not appear, however, that his recommendations are acted upon with- out the operations manager's independent investigation. Based on the fore- going, I conclude that Lofquist possesses none of the indicia of supervisory status. As his role in ordering merchandise does not amount to anything more than advising the merchandise manager of what goods are selling or need replacing, I do not deem him to be managerial. See N.L.R B v Bell Aerospace Company, Division of Textron, Inc, 416 U S. 267 (1974) 4 Schroeder's supervisory status was admitted. 5 It appears from the sign in sheet that Lofquist did not work on August 31 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have made the statements attributed to him by Lof- quist in the absence of some union activity.6 Accordingly, I find that General. Counsel has failed to sustain his burden of proof in regard to this alleged threat. Cynthia Dort, an office clerk employed since September 6, testified that on the evening of October 28 Schroeder came into the office area, sat down, and initiated a conver- sation which led to a discussion of the Union. He invited her questions and she asked him whether she would lose any of her benefits if the Union came in. He told her that the benefits were negotiable. He also told her: . that there was a chance of employment being cut, and that I could lose my job. I would lose my job because of a cutback. Due to the union coming in there would be higher wages, and that is why there would be a cutback. She stated that he emphasized that this was not a fear tac- tic or threat, but a fact. She further testified that, in re- sponse to her statement that she would like to work 40 hours per week, Schroeder told her that he did not know how the hours were "budgeted" and that he would have to discuss it with Mr. Waslewski, the operations manager. Schroeder's testimony did not -materially differ from Dort's. He testified that Dort initiated the conversation, asked him questions about benefits and that he: explained to her that our budgets were based on the dollars, and that if there was any monetary increase due to a union contract, that I would have to layoff my employees until I got down to that budgeted dol- lar. I indicated that budgets were pre-set. So I hadn't really had any authority in changing them. She asked if that meant she might be laid off. According to his testimony, Schroeder: quite frankly said I wasn't sure, but there could be a possibility that . . . she might be laid off because of that, yes. Schroeder testified in regard to the budget procedure. He explained that in approximately June and November bud- gets for the 6-month periods beginning in August and Feb- ruary are prepared, projecting sales for those periods. The budget for salaries would then be based on a percentage of projected sales. Variances from the budgeted figure for sal- aries require approval at higher corporate levels and, when increases requested, are permitted most reluctantly, if at all. Whether Dort's version or that of Schroeder is credited the statement, I find, constituted an unlawful threat that unionization would result in discharges, including Dort's. At the time Schroeder spoke to Dort the Union had placed no economic demands upon Respondent. Schroeder could not, at that point in time, objectively conclude that the Union would seek, or Respondent capitulate to, economic demands which would require a reduction in force to stay within budgeted allowances for salaries. Neither could Schroeder objectively predict whether his corporate supen- 6 Employee Gary Hanna testified only that the union activity began in August or September ors would deny him authorization to increase his budget for wages, perhaps-in response to savings elsewhere or in- creased sales, so that elimination of employees other than by natural attrition (another unpredictable factor) could be avoided. Schroeder's statement to Dort was not a "pre- diction . . . carefully phrased on the basis of objective fact" conveying "an employer's belief as to the demonstra- bly probable consequences beyond his control . . . or a management decision already arrived at," such as was held permissible by the Supreme Court in N.L.R.B.,v. Gissel Packing Co.,,Inc., 395 U.S. 575 (1969). See North, Star Re- frigerator Co., 207 NLRB 500, 505, fn. 21 (1973). As was pointed out in Wausau Steel Corporation, 160 NLRB 635, 640 (1966), enfd. in this regard 377 F.2d 369 (C.A. 7,1967), "In any event, advent of the Union would have meant only that [Respondent] had to bargain over wage demands, not that he had to grant increases...." Accordingly, I find and conclude that by threatening to discharge employees if the Union came in Respondent violated Section 8(a)(1) of the Act. On November 12, the day before the election, it was reported to Schroeder and Regional Operations Manager David Imrie that employee Gary Hanna was. discussing the Union with a second, employee. The second employee had a nervous condition and the conversation was purportedly upsetting him. Schroeder went to see that employee and Irmie went to Hanna in the sporting goods department where Hanna worked. Irmie told Hanna that he had com- plaints from employees that he had been harassing them with union talk. He told Hanna that in the 24-hour period before the election union talk was not permitted and di- rected him to stay in his department. Hanna noted that the election was still more than 24 hours away.' Hanna had been active in the Union's campaign and his role in the organizational efforts was known to manage- ment. Prior to Irmie's conversation with him these union activities were carried on within the store relatively openly and without managerial interference. Irmie's statements, however, proscribed the continuation of that activity. Irmie's informing Hanna of a 24-hour "quiet period" ap- parently was intended as a reference to the Board's Peerless Plywood rule. If such was intended, he misspoke. That rule only prohibits election speeches, on company time, to massed assemblies of employees within the 24 hours preceding an election. The Board noted that: "Such a speech, because of its timing, tends to create a mass psychology which over- rides arguments made through other campaign media and gives an unfair advantage to the party, whether employer or union, who in this manner obtains the last most telling word." Peerless Plywood Company, 107 NLRB 427, 429 (1953). The rule does not apply to casual solicitations of employees which cannot be characterized as "speeches" to "massed assemblies" of employees. Business Aviation, Inc., 202 NLRB 1025 (1973). Respondent contends that Irmie's intent was not to in- terfere with solicitations, rather his actions were prompted by his concern for the nervous condition of the other em- 7 The_ foregoing version of events is derived from the testimony of Hanna, whom I deem to be a credible straightforward witness possessing an ade- quate memory of the relevant events Irmie's testimony was not in substan- tial conflict with the testimony as set forth above. TEMPO DISCOUNT CENTER 43 ployee. This may be true. However, as the Board has re- peatedly stated, "motive or intent is not the critical element of an 8(a)(1) violation. Rather . . . the test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Guerdon Industries, Inc., Armor Mo- bile Homes Division, 218 NLRB 658, fn. 23 (1975); The Cooper Thermometer Company, 154 NLRB 502, 503, fn. 2 (1965). Irmie's statement to Hanna, I find, unduly re- stricted permissible union activity during the critical 24- hour period before the election. As such, it violated Section 8(a)(1) of the Act. Conduct Affecting the Results of the November 13 Election As stated at the outset of this Decision, the Regional Director consolidated the representation and complaint proceedingssince'both presented like issues. Having found that certain conduct of Respondent constituted interfer- ence, restraint, and coercion violative of Section 8(a)(1) of the Act, I further find that such conduct also interfered with the exercise of a free and untrammeled choice in the election held on November 13.8 Accordingly, I recommend that the election in Case 7-RC-13211 held on that date be set aside and a rerun election be conducted. CONCLUSIONS OF LAW 1. By threatening employees with discharge in the event that the Union won the representation election and by un- duly restricting employees from engaging in permissible union activities in the store during the preelection period, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 2. The unfair labor practices described above affect commerce within the meaning, of Section 2(6) and (7) of the Act. 3. The unfair labor practices described above have inter- fered with the employees' right to a free and untrammeled choice in the election conducted among Respondent's em- 8 While the Union's objections did not specifically allude to Irmie's state- ments to Hanna, the Board law is clear that evidence of objectionable con- duct uncovered during the course of an unfair labor practice investigation and litigated in a consolidated complaint-representation case can form the basis for setting aside the election even though those matters were not raised by the objections Monroe Tube Company, Inc, 220 NLRB 302 (1975), Na- tional Electric Coil Div, McGraw-Edison Company, 184 NLRB 691 (1970) ployees on November 13, 1975, in Case 7-RC-13211 and have tainted the results of that election. 4. Respondent has not engaged in any unfair labor-prac- tices not specifically found herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDERS Respondent, Gamble-Skogmo, Inc., d/b/a Tempo Dis- count Center, Traverse City, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: - (a) Threatening employees with discharge in the event the Union wins the representation election. (b) Prohibiting employees from engaging in union activ- ities upon Respondent's premises. (c) In any like or related manner interfering, with, re- straining, or coercing employees in -the exercise of A heir rights under Section 7 of the Act. 2.. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its Traverse City, Michigan, store copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's repre- sentative, shall-be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the election conducted in Case 7-RC-13211 on November 13, 1975,- among Respondent's employees be set aside and that the Regional Director conduct a rerun election at such time as he deems the circumstances permit a free choice on the issue of rep- resentation. 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. 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 "