Hochschild Kohn, Division of Supermarkets General Corporation

HOCHSCHILD KOHN Hochschild Kohn, Division of Supermarkets General Corporation and United Food & Commercial Workers Union, Local 692, United Food & Commercial Workers International Union, AFL-CIO, CLC. Case 5-CA-12322 February 11, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On August 25, 1981, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the General Coun- sel filed an answering 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, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER 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 and hereby orders that the Respondent, Hochschild Kohn, Division of Supermarkets General Corpora- tion, Bel Air, Maryland, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has requested oral argument This request is hereby denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 158 F.2d 362 (3d Cir 19511 We have carefully examined the record and find no basis for reversing his findings In finding that Respondent violated the Act by observing activities of the employees and union organizers in the mall corridor immediately out- side the store entrance, Member Hunter has considered this conduct in light of the myriad of other surveillance activities fiound unlawful by the Administrative Law Judge, as well as the record evidence that at least some guards displayed pad and pencils while watching the union activity DECISION STATEMENT OF THE CASE FRANK H. ITKIN, Administrative Law Judge: The unfair labor practice charge in this case was filed by the Union on June 13, 1980. A complaint issued on August 260 NLRB No. 25 21, 1980, and was later amended at the hearing. The hearing was held in Baltimore, Maryland, on April 13 and 14, 1981.1 Briefly, the General Counsel contends that Respondent Employer-in resisting Charging Party Union's organizational effort at its Hartford Shopping Mall store-violated Section 8(a)(1) of the National Labor Relations Act by, inter alia, granting merit pay in- creases to its employees in an attempt to discourage their support of the Union; increasing the number of its secu- rity agents for the purpose of engaging in and creating the impression of engaging in surveillance of employee union activities; engaging in surveillance of employee union activities; coercively interrogating an employee; and harassing an employee because of her union inter- ests. Respondent denies that it has violated the Act as al- leged. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs of counsel, I make the following find- ings of fact and conclusions of law: FINDINGS OF FACT The Union is admittedly a labor organization as al- leged. Respondent is admitedly an employer engaged in commerce as alleged. The Union initiated an organiza- tional drive at Respondent's store in the Hartford Shop- ping Mall in Bel Air, Maryland, during March 1980. The Union filed a representation petition with the Board's Regional Director on April 9, 1980, and an election was conducted at the store on June 6, 1980 (Case 5-RC- 11179). The evidence pertaining to Respondent's conduct during the organizational campaign is discussed below. A. The Merit Wage Increases Employee Splendora Gilmore testified that the Union's organizational campaign commenced at Respondent's Hartford Shopping Mall store during March 1980; that she held the first union meeting at her home on Sunday, March 23; and that she, and her coworkers, thereafter solicited the union membership of employees in the store lounge, parking lot, and nearby mall area. Gilmore ex- plained how, commencing on Monday, March 24, I went to work and had the [union] cards with me, and I got some cards signed in the employees' lounge, and inside the Mall, and in the parking lot. Union Representative William Pfeifer also recalled that "during the course of that first week, I would estimate that there were at least 50 employees who signed . . . [union] authorization cards" 2 Store Manager James Hor- inka acknowledged that he first learned of this union ac- tivity on Monday, March 24. Initially, the above unfair labor practice case was consolidated with pending objections in a related representation proceeding (Case 5-RC- 11179) for purposes of hearing, ruling, and decision The Union. howev- er, later moved io withdraw its objections in the representation case The Union's motion was granted and the representation case was severed from the above proceeding. by order dated August 6. 1981 2 Respondent employs approximately 135 employees at its Hartford Shopping Mall store See G C Exh l(g) lb7 I)FCISIO()NS ()1 NA'I()ONAL l.AHBOR REFI ATIONS ()ARI) Employee Gilmore testified that "about the first or second week when the Union campaign started" she and a number of her coworkers attended a meeting in Store Manager Horinka's office. Gilmore recalled that Person- nel Director Kenneth Morgan was also present and he talked to us about the Union, the bad things about it and after the meeting was just about con- eluded he stated there were 25 merit raises coming downi for the Hartford Mall store. Gilmore, an employee at the Hartford Mall store since it opened in 1977, explained that this was the first meeting which had ever been called by management where "Merit increases were announced." Gilmore also noted that previously, she had been told by former Personnel Manager Peggy Ross that Respondent had "discontinued the policy of granting merit wage increases." In addition, employee Gilmore testified that, during late March or early April 1980, Personnel Manager Wil- liam Warner called me in, and he told me that I was one of the ones to get a merit raise. . . . I thanked him . . . [and] he says, "with all this Union business going on it can't do any harm." I said to him, "well, it can't do much good either from . . my stand- point." And he says, "1 guess not." The parties stipulated that the number of unit person- nel in the Hartford Mall store "remained approximately the same in 1978, 1979 and 1980," or about 135 employ- ees; that only two unit employees had received merit wage increases in 1978; that only one unit employee had received a merit wage increase in 1979; and that some 25 unit employees had received merit wage increases in 1980.3 Further, the parties stipulated that "most of these [25 or 26] increases were given on March 27. 1980() ap- proximately two or three, however, were given on March 28, 1980"; and the "increases were retroactive to March 24, 1980." (See Resp. Exhs. 3(a)-3(z).) 4 Personnel Director Morgan described "the process by which merit increases are granted" by Respondent. in part as follows: Normally what happens is some period following year end-our fiscal year ends the end of January- we request from each store manager recommenda- tions for merit increases as well as an amount Following that, the managers normally submit to us, over a period of the month of February, the person- nel reviews of the employees that they would like to recommend . . . . Subsequently the decisions are made concerning amounts and how many : (One additional emplhoyee had recceied such all increase in 1979 and in 1980; however, he ..,as apparently not in the unit. 4 Employee I.ea Hull testified that D)epartment Manager Robert Cohee, in January 1979. told her "that he was putting [herl name in for a merit raise." A few months later, as Hull recalled, "he said that t11chs- child did not give out merit raises anymore " Bull, in the past, haid rineer "attended a meeting called by Management at which merit increases were announced" Also see the testimony of employees Ruth Shelley. Naomi O'Conno:r, I aurie (iladden. and Vera I.ieght This "process" "normally" takes "approximately six to eight weeks." I note, however, as the parties stipulated, that the two merit increases given to unit personnel in 1978 were "received" in April and September of that year: and that the one merit increase given to a unit em- ployee in 1979 was "given" in August "retroactive to July" of that year. In the instant case, the 1980 increases were granted on or about March 27 and 28, retroactive to March 24. Morgan further described the "factors . . . taken into considration . . in the granting of merit increases." They include, inter alla, "employee performance and work habits." Morgan generally claimed that all 25 or 26 employees receiving merit increases in 1980 had "good performance appraisals." I note, however, that one such unit employee, Craven, was rated as "need[ing] improve- ment" in "job performance" in his January 1980 apprais- al. (See G.C. Exh. 2(t).) A number of others were rated only "average." (See, generally, G.C. Exhs. 2(a)-(z).) I also note that employee appraisals resulting in the merit increases granted to unit employees in 1978 and 1979 show, with minor exception, "above average" ratings. (See, generally, G.C. Exhs. 4(a) and (b) and 5(a).) Fur- ther, there is, in the instant case, a noticeable absence of documentary evidence which would specifically show the actual recommendation of the store manger and the actual date when the decision to grant the merit increase ,,as in fact made." Morgan further testified that he visited the Hartford Shopping Mall store during late March 1980 and held employee meetings to discuss Respondent's opposition to the Union's organizational campaign. He denied, inter a/lia, making any "anouncement" at "any of these meet- ings . . . that 25 or 26 increases would be given to the employees at Hartford." However, he acknowledged that "the subject of merit increases" did "arise at these meetings" assertedly as a result of employee "questions about the process." Store Manager Horinka claimed that he "received a phone call from Mr. Morgan requesting recommenda- tions for merit increases for the Hartford Mall store"; that he then "reviewed the personnel jackets and the performance ratings of all the employees and also con- sulted with [his] top management and made [his] deci- sions"; and that he gave "the recommendations" to Morgan. Horinka claimed that by "approximately mid March, but definitely before March 24, 1980," he was "contacted to go ahead with the recommendations." Horinka acknowledged that the employees were "first notified" of the 1980 increases on March 27 and 28 "or shortly thereafter." Horinka noted that about March 24, after observing union activity in the store, "I became concerned that the Company might be at that point ac- cused more or less . . . [of] influencing certain employ- ees . . . due to the Union activity." Horinka discussed this concern with Morgan, who in turn spoke with coun- ' Morgan also claimcd that, ii grantilng the I980 increases, manage- menl considered. inter uiu, "the fact that K-Mart was opening right acrossh US I," and "the White Marsh facility . was scheduled 'o open" Morgal acknowledged that the White Marsh facility swas not scheduled to open until the spring of 1981 IhX HOCHSCHII D KOHN sel, and Morgan later told Horinka "that we were legally required to proceed with the merit increases as we would if there was no . . . Union activity .... " Hor- inka acknowledged that. in granting these increases in 1980, he did not explain to the employees. orally or in writing. Respondent's "policy on the merit increases" or his "concern."" Discussion Counsel for the General Counsel argue that here "an inference must inevitably be drawn that the announce- ment, timing and granting of these merit increases Vras il- legally motivated by Respondent's desire to influence employees to oppose the Union organizing campaign." in violation of Section 8(a)(1) of the Act. Counsel for Re- spondent argue that the "1980 merit increases swere lawful as they were planned, announced and granted without regard to the presence of Union activities." The United States Court of Appeals for the Fifth Cir- cuit, in restating the pertinent legal principles in ,Lf .R.B. v. WKRG-7V Inc., 470 F.2d 1302, 1307-08, 1308 (5th Cir. 1973). commented: We cannot ignore decisional acceleration in em- ployee benefits preceded bhy months of lethargy. Lightning struck only after the union's rod was hoisted. In this case the wage readjustments anid other benefits, to say nothing of the initial an- nouncement of these benefits, were clearly a coun- terweight to [the Union's] organizational efforts. To permit a company to time its announcement and al- location of benefits in such a fashion would be a great disservice to the ideal of organizational free- dom so deeply imbedded in the [Act]. For, as the Supreme Court had observed earlier in INL.R.B. v. Er.'change Parfl Co., 375 U .S 405, 409 (1964). The danger inherent in 'sell-timed increases in bene- fits is the suggestion of a fist inside the velvet glo, e. Employees are not likely to miss the inference that the source of benefits now conferred is also the AlIso see the tiliortin) of Personnllel 1 Mlrager V\ ariler. ,. ho ackno .]I edged, inter a/ui. speakLing t1lll in cplosee (Gilmore sshen he gac tier the "merit increa'se" im 1l80 lte "as asked "Did .ou e r sa tio her that this merit raise can't hurl Illh all this Union husiness going on. He re- sponded, in part: "I don'l rememher malkig th;at statemtcm n Arid. store merchandiser Cheryl Suliga testifiedc ircr dia. thal at a ti;rttrdI store meeting. "here Morgan spoke itand emphlocc Gilmore "s as also presenl. Morgan did loit "anrriunce" he granitirg of the nterit itklrclas. tio the emplosees Suliga similarls tesified %.lth repect to a mectling ilt- tended hy emCplloeest I icghi and () I'Connlr Sulnigai \,as later aked "..cre salaries discussed, ncril i rais. " She re.ponded. In pa.rt "I dll t rerrint.- her that . it's heen a long line ago I credit the tesimhlony of emplosee CGilnlore as. recited a;ho ;e She inl- pressed me as a credlble airl Irustaorlh \s ilniss Hier Teslimonyl I, suh slanlialed in pertinent part hi the credihbl tcstlrnlllons of tnion Rpepre- sentative Pfeifer, anrld the credihl lestinmonN os' cnlploseesC Itill, S li11c\. O'Connor. Gladden. arid I leght Insofar as the tetinior s of lMorgai. Horinka. Warner. and Suliga diflfers writh the Itctlniions of (iimolre. i1nA the testimmony of employees IBull. Shcllcs. ()'Ctonnlllr. (ilddel. illd Lieghi. I find the testimony of the litter toi he mriore complete anld trrut worlh) The testimlny of Mnrgan, Horlnkal. arner. nier id Suliga ,i.a, i; times 'ague, incomplete. unclear. anid cII ntradlcilr source from which future benefits must flow and which may dry up if it is not obliged. The credible evidence of record in this shoxws that, prior to the commencement of the Union's organizational campaign in March 1980, Respondent Employer had granted only a nominal amount of merit wage increases to the unit employees. Two employees had been given such raises in 1978 and only one employee had been given such a raise in 1979. Indeed, employees credibly testified that they had been told by various supervisory personnel that Respondent had "discontinued the policy of granting merit wage increases," However, commenc- ing on Monday, March 24. 1980, the Union launched its organizational activities at Respondent's Hartford Mall store. Approximately 4 days later, management granted to some 25 unit employees merit wage increases retroac- tive to Monday, March 24. Employee Gilmore credibly recalled that Personnel Manager Warner, in announcing this unprecedented merit increase to her, said: ". w. with 1ll this Union business going on it can't do any harm " And, the subject of this unusual increase xwas dis- cussed at meetings between upper management and the employees wxhere management also voiced its strong op- position to union representation. Moreover, manage- ment's asserted business reasons for this unusual increase do not swithstand close scrutiny. Thus. Personnel Direc- tor Morgan claimed that Respondent was following its "normal process" here. However, a comparison betvxeen the granting of the 1980 increase with those granted in 1978 and 1979 shows that the granting of such an in- crease on March 27 or 28, retroactive to March 24, vsas certainly not "normal." Likewise, some of the employees given this raise were rated "average" unlike in prior years. Indeed, one employee given this raise was rated helosw average. And, management's claim that it granted this sudden increase because of anticipated competition in the spring of 1981 is, on this record, incredible In sum. I find on this record that Respondent violated Section 8(a)(1) in granting and announcing the granting of these increases to the unit employees. as alleged. I am persuaded here that the announcement, timing, and granting of the 1980 merit increases were calculated to discourage employee union activities B. T'he Conducl of Store Security Guards Employee Gilmore testified that, prior to the Union's 1980 organizational campaign at the Hartford Mall store. there swere only tw'o security guards or protection offi- cers who regularly worked there. Gilmore explained: "There vcre tvio there, but usually one at a time [x.as] on, except in busy hours . . .they might have ti. o " Gilmore added that, on occasion. "if they had to go to court there vwouldn't be any security guards on." However. after the Union initiated its drive at the Hart- fiord Mall store, as Gilmore further testified, the number of guards kept increasing .... Toward the middle [of the campaign] we had a feye more [guards]. and then the last couple (if weeks, there . as anyv, htre from eight to ten. I guess. 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gilmore recalled that she observed 4 guards in the store in April, 4 or 5 guards in the store during early May; and 8 to 10 during the "three weeks before the elec- tion." 7 Respondent's director for security, Wayne Carpenter, acknowledged, inter alia, that "there was a certain amount of increase in the number of [his] people [guards] assigned to this particular store" "during the time leading up to the election"; that "guards .... not normally as- signed to the Hartford store went to the Hartford store because of the impending election"; and that although the guards' duties . . . didn't change . . . there was an extra added feature . . . the Union organizers. Carpenter agreed that guards are "supposed to keep an eye on activity"; "watching employees is a standard part of our functions"; and "we were to enforce the no solici- tation rule or policy." Carpenter was asked: "... .'our guards' duties were added to because of this Union activ- ity . . .?" He claimed: "Ever so slightly, yes, sir." Employee Gilmore further recalled that, during the campaign, You would go out into the Mall, and they [the guards] had chairs lined up at the edge of the Hochschild store that leads out into the Mall, facing the Mall, and watching . . we just took for grant- ed that they were watching us ... They were all watching the Mall. which they had never done before. The Union's organizers, as Gilmore explained, were "right outside" in the mall. Security guard Francine Pla- tycia was particularly observed by Gilmore "standing at the Mall door with a pad and pencil in her hand, looking out at the Mall" and "she was writing .... " Platycia, as Gilmore recalled, "could see me and a couple of other co-workers . . . talking to a Union organizer." And, em- ployee Bull noted: "Anytime we went out in the Mall they were watching us. We were watched when we spoke to other employees." Prior to this campaign, Bull did not see security guards "standing at the Mall en- trance." Also see the testimony of employees Gladden, Lieght, and Shelley.' Employee Gilmore further testified that about May 30, shortly prior to the scheduled election at the store, I [Gilmore] went out to the Mall to talk to Billy Pfeifer, the Union organizer, and I sat out there to talk to him and Francine [Platycia] came over and sat between us . . and she carried on a conversa- tion with us, and she was there the full length of I Employee IBull similarly testified that "the fariher vwe got in(o lhe campaign the more people [guards] they put on staring with one or two at the beginning and ending up eight to II at the endi.. .it as gradual increase" Also see the testimony of emploece Gladdeli N Union Representative Pfeifer testified "I would sit in the Ma;ll land wait for the emplovees to ctmle out inl their lunch breaks to talk to Ihenl or other breaks Arid. w:hile I was siittig there. I could sec protec- tion people standing at the Mall entrance just waltching me and my ac- tions, to see who was coming to t ilk to me" time I was there, my break time. When I got up and left then she left. And, employee Lieght testified to the following dis- cussion with the assistant director of protection, Leon Parker, during the campaign: I [Lieght] had been out in the Mall and was leaving to go home. This would be about 5:30, and Mr. Parker followed me through a passageway leading to the outside. Mr. Parker asked me how is the Union going, and I said okay. He said, you have meetings? And I said, yes. He said, how many people come to these meet- ings? And I said, 50 to 75. He said, come off of it, it was only 30-1 heard there was only 34. And I said, then why did you ask me.!' Store Manager Horinka claimed that, after the Union's organizers "first appeared," the "normal complement" of store security guards "basically remained at two." Hor- inka also claimed that the guards were not increased until a store "tent sale" on or about May 21 or 26 and, later, following the entry to the store by union organiz- ers on or about May 30 or June 3. There were assertedly no records available showing the actual number of guards on duty during the Union's campaign. Further, Horinka denied engaging in surveillance of employee Bull's union activities in the parking lot area. Security Director Carpenter claimed that the store used more than two guards during the campaign, "roughly three times, possibly more"-during that "tent sale" and "following an incident of an apparent Union build up the Friday before the election." Carpenter also testified: Q. Sir, did it ever come to your attention during the course of this campaign through communication with your guards of your guards ever having to break up a large organization of business agents at one particular location in the store? A. No, sir. ' earlier. during the campaigin about March 26. as employec Bull re- called. I came in and sat in our employcee parking lot. which is across from our side entrance iand I altempled to get people to sigin Union cards I rancinc P'latllia approac;hed my truck and asked me whiat I was doing, iand I said shI didn't reaill want tlo know I could see her and Mr l orinka stallding a the Mall ciiirancc. at the door. lookillg out at rny Sc2hiclc Subscquenly, or tilt dals f the clection. Junme , as clnploec Bull fur- ther testified. securit guard l)altid Fromm was obhscred following an ¢nlployce. (ietorge C rra· i 1o the polling place anld standing in the hall- "ailN It'ilc 170 HOCHSCHII D KOHN Q. So this-you say that there was a situation that involved a build-up of Union representatives. but your guards never got involved in having to disperse Union representatives because they may be blocking entrance or exit to your facility?' A. I believe that the incident you are referring to occurred the Friday prior to the election. It was a build-up of Union organizers at the north entrance to the store, impeding traffic flow in and out. If I am not mistaken, and I am not totally accurate, they were asked to leave and they left. Q. They were asked to leave and they left. A. Yes, sir. Q. All right. It was that simple. A. It normally is, 'es, sir. Q. So the build-up of your guards is not what caused this little incident to go awnay. They were just asked to leave and they left. A. The build-up didn't occur until the following day. I Guard Platycia claimed. inter alia, that it was usual or normal for her "to sit at the front mall door to the store" and that she "may have sat there with a pad and pencil," performing a "test and check program." Platycia claimed that "it's highly likely" she walked "across the sales floor with a pad and pencil on several occasions during the campaign period." She also admittedly approached employee Bull who was seated in a parked pickup truck in the parking lot area. She then "saw a blue card being passed around and this was in the beginning of the cam- paign." She related this incident to upper management. She denied, inter aliu, engaging in surveillance "of cm- ployee Union activities"l'' Discussion The "law is clear that an employer's surveillance of union activity can unlawfully inhibit the exercise of [em- ployee] rights to engage in concerted action." in viola- tion of Section 8(a)(1) of the Act. Cf. N.:L.R.B. .. 4ero Corporation, 581 F.2d 511, 512 (5th Cir. 1978). An em- ployer may also violate this statutory proscription by "creating the impression of surveillance" of employee union activities. Cf. N.L.R.B. v. Redwing Carriers. Inc., '° Security guard Frotlmm denied. intr litau, engaging in surveilance of employee protecled activities on the dly of the electitn,. June it Frommln acknowlcedged that he was Htslindig leatr the polling iarea Ihal da he- cause he assertedl) " as "obsersing a po-ssihle shoplifer" and he "lin- gered in that areal" for that realsoit FrIomnm uilS inlsrucled It "''eav e the area And Assistant t)ireclor of P'rintctiln Parker gcnerally atcknoIiedged "talking" it emploNee I icght during thee L mpain alhul thi [11 (l11 ie claitmed that ",he , ai s ,tlunrtecrilg iall the intfirm;llon " I Stlorc merchandiser Suliga recalled ai large groiup (ft Illilonl oIrgaTll- ers "impeding traffic into the toret" (in NMis 3( and Ihe entrr hs the 1i- ganizers into the store (in June I I credit the testimony of emplsees (Gilmore. Bull. and iegill ia, de- tailed in this section TheN impressed mir ;as noted iupra. ias rust\ norlhs and reliable witnesses Their Icstit11111n s. is ill part. mutuall y corroborail e and substantiated by the credibhl testimony of employlces, (;laidden and Shelley and Union Repre'senlati, es Pfeifer tInsofar as the Icestiino! If Carpenter. Platycia, Hlorinka. Fromm. Parker. and Suhllgl ilnnlcls Wilt the testimony of (iilmore. Hull. I eght (iladden. Shelle?. aind l'Icifer, I credit the testinlony of the latter ulnsnesses ia more (cll;l cd. ci mplite. and trustlotrlth 586 F.2d 1066 (5th Cir. 1978). Moreover, unwarranted attempts by management to pry into employee union ac- tivities, coupled with management's stated opposition to unionization and efforts to create the impression of un- lawful surveillance, may also constitute coercive interro- gation proscribed by Section 8(a)(1) of the Act. See, gen- erally, .:L.R.B. v, Gladding Keystone Corporation, 435 F.2d 129., 132-133 (3d Cir. 1970), and V.L.R.B. v. Isaac Rubin and Mfarion Kane, d/b/a Novelty Products Co., 424 F.2d 748, 751 (2d Cir. 1970). The credible evidence of record, recited above, makes it clear that management, in response to the Union's 1980 organizational drive, substantially increased the comple- ment of its security guards during the campaign. These guards were charged by management with the duty of enforcing Respondent's no-solicitation rule. These guards were repeatedly observed by employees seated in chairs, "lined up at the edge of the . . store . facing the mall. and watching" the employees meeting with union organizers on their breaktimes. These guards, as employ- ee Gilmore credibly testified, "had never done [this] before." And, as employee Bull credibly recalled, "any- time we went out into the mall they were watching us- we were watched when we spoke to other employees." Indeed, security guard Platycia conspicuously positioned herself at the store entrance "with a pad and pencil in her hand, looking out at the mail . . . and . . . writing." On one occasion. Platycia went out into the mall and sat between employee Gilmore and the union organizer. When Gilmore "got up," Platycia "left." On another oc- casion. Platycia confronted an employee parked in the parking lot area, engaged in organizational activity, and "asked [the employee] what [she] was doing." Platycia and Manager Horinka later stood at the store door "looking out at [the parked] vehicle." Subsequently, on June 6, when the Board-conducted election was in prog- ress at the store, guard Fromm was witnessed following and observing employees in the polling area. In like vein, the assistant director of protection. Parker, followed em- ployee Lieght in the mall area, pointedly quizzed the em- ployee about union meetings, and then attempted to convey to the employee the impression that management had heard how many employees were in fact at the union meetings. I find and conclude here that the above conduct far exceeds any reasonable or legitimate business interests of Respondent. Clearly, Respondent, by this unprecedented buildup of security personnel and their accompanying conduct, was attempting to create among the employees the impression that their protected union activities were under surveillance and, further. was engaging in pro- scribed surveillance. In addition. Supervisor Parker's pointed interrogation of employee Lieght about union meetings, coupled with his statement that management. in effect. knew how many employees attended these meetings. was plainly coercive. In short, such conduct tended to impinge on employee Section 7 rights, in viola- tion of Section 8(a)( 1) of the Act.' 2 ': t Citlllse fotr Respondcllet argues that Recsplondent Is inot resiplnllslhe for hC [ITCICris ' tL11titlL 't It 1 "pro.teC.tiO nlp .t1'ec,. C(utiel tl1.' ( 'ittuittuci 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Conduct of Sandra Jones Employee Naomi O'Connor actively supported the Union during the campaign. O'Connor, as she testified, authored a prounion letter entitled "The 500-Hour Truth," on or about May 25, 1980. She distributed this letter among her fellow employees. She was told, the next day, that Supervisor Sandra Jones had referred to her as an "ignorant bitch" because of this letter. O'Con- nor immediately complained to Store Manager Horinka who, in turn, related O'Connor's complaint to Supervisor Jones. Later that same day, about May 26, as O'Connor was leaving the parking lot in her vehicle, Supervisor Jones started following O'Connor in another vehicle. When O'Connor attempted to "speed up," Jones would do like- wise, following "too close for comfort"-"she was right on my bumper." This car-following went through a number of traffic signals for about three-quarters of a mile. Later, O'Connor again complained to Horinka. O'Connor told Horinka that "if it happened again I'd go to the police, not to him [and] he said . . . that's about all you can do .... " Supervisor Sandra Jones testified that Horinka spoke to her about the car-following incident and she told him: "I didn't do it, run anyone off the road." Jones generally denied "following O'Connor home in a dangerous fash- ion." I credit the testimony of O'Connor. She impressed me as a reliable and forthright witness. Her account of this incident rings true on the record. In sum, I find that Su- pervisor Jones. angered at employee O'Connor's conm- plaint to upper management with reference to O'Con- nor's union literature, followed O'Connor at high speed in a dangerous manner. Such conduct was sufficiently re- lated to employee O'Connor's union activities anid tends to interfere with employee Section 7 rights, in violation of Section 8(a)(1). WVltile prolctioln cmplo.cees w5erc inslructed IiO pcrIfrnil tioil t Ihorall;l duties requirinrg enlployce surcillance thei Acre ,. .ar incd not o violate the right ofr cmployees engaging in IlIiOIn acli\:itie ilTlhus. if tile C( nompitny's protectii erilployees 'enigaged Iii illegal sir- \'cillatlce Ihe L nlployer certalily did niot authllorize it Management has admitled that the assistant dircctor 1of protectioll. Parker. 'was a "supervisor " As for the condllucl of securilt guards like 'latlcia, tnailagcrilCli expressl) ;lutlhorized Ihlenl to criforci its ro-sulici- tatilon rule arid Ciolilpalti piolicy Mana;gementr cannetl nol\ he heard Io complain that the guards, in enforcing this policy. exceedcd Iheir express authority by engagilg ili 'illegal" conduct As the Fifth Circuit perti- nerilly stated in Itfendrit .uaogc,rn(,ttir (tiftpuan. [Iix .I.R /I.. 121 1 2d I(X). 104 (5th Cir 10)63 W¥hen. as dolle tere, anl employer sets out to camlpaligli agaiillS a uniron, one o(f lhe risks is thali litr or /ca.l. iglnorance. or otihciisc. firemen. supervisors, anid simila;r rcprcseutalics ii chalnpionring Ihc anti-uniul cause ill overstep the nlark Since it is the policy ,rf Ithc Act to protect employces imi a free choic. ,of a hargaiiglli representa- tive. the law looks It, whalt the listenlcr-c niphlcs reasiionahly couhll ha'e inferred frolm what w;s said antd done hy oneC iathl rti/ed to engage in tile anti-Lunion preelecilii ca;mpa;ign It is hlhal tie said or did, not sw hat he %'as told I( Saly, do, itr ,int sax or di. Itlalt Crluuns Further. the Employer, having used its security guards "as all il lulnrtiell- talirl and agenlt il impede selfi-rganilzalion," is hiound by their coiducl Cf Cleur Lake liespirul, 223 N.RI R I, 8 (1976) CONCI USIONS 01 LAW 1. Charging Party Union is a labor organization as al- leged. 2. Respondent is an employer engaged in commerce as alleged. 3. Respondent violated Section 8(a)(l) by engaging in surveillance and creating the impression of engaging in surveillance of employee union activities; by announcing and granting employees merit wage increases in an at- tempt to discourage their support of the Union; by coer- cively interrogating an employee about union activities; and by harassing an employee because of her union sup- port. 4. The conduct found unlawful here affects commerce as alleged. THI Ril NiMH) To remedy the unfair labor practices found above, Re- spondent will be directed to cease and desist from engag- ing in such conduct and like or related conduct and to post the attached notice. l : ORDER'14 The Respondent, Hochschild Kohn, Division of Super- markets General Corporation, Bel Air, Maryland, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Announcing and granting merit wage increases to its employees in order to discourage their support of United Food & Commercial Workers Union, Local 692, United Food & Commercial Workers International Union, AFL.-CIO() C C or any other labor organization. (b) Engaging it surve illance of or creating the impres- sion of engaging in surveillance of employee union acti v- i ties. (c) Coercively interrogating employees about their union activities. (d) Harassing employees because of their union sup- port. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action: (a) Post at its store in Bel Air, Maryland, copies of the attached notice marked "Appendix. " "' Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof. and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including E ' rrors iii tie Iraniscripi }a',c' hbeell toted anid cirrected I" I the c' ,ent itn ccepti l s arc ftiled as pro, idcd h, Sc' 1()2 46 I1' liL RuleCs andlf Rcgtillilons I t' tlhc Na ti lN l t I hor Rekllllonis thailrd tihe tiiidiigs eld l. COitlusilns aill rc'cont I c'tiTilc'd ()rdCr hlIreit shall. as pros lded Ilm Se' 11)2 48 of tihe Rules and RegtJlatluIls hT. adopted hby the iard land ccitotie ils fildings. conciilusiis. Miid (O)rder, lid ,all ohjletiois thereto shaill bc deilltcl d isaivc ft r all purpo,es i'' l I 'c, iite ll lihat this O)rder is n:liorccd h i a Judgmenc l lof a UnIltcd States Coiurt ofI Appeals. Ihe i ords ill ihe n tii, ce readilg "''Posled h, ()rder of the Nailionil lhabor Rclarloits S)loard" shaill re'd -Posted Pursa- a1irl to a JLudglletnt ilf Ihtc L itted Slatei' C('ouirt of Appca.il, llfituring all ()dilt of tilc Nait oill I aihor Rtliluwls Itoird 172 IO()CHSCHII D KOIHN 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 co'v- ered by any other material. (b) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith APPENDIX NollCIt To EMPI o I- -s POS'l II) BH ORI)IR OF 01I l NAIIONAI, LABOR R-IAItIONS BOARD) An Agency of the United States Governiment After a full hearing at which all parties had the opportu- nity to present their evidence, the National Labor Rela- tions Board has found that we, Hochschild Kohn. Divi- sion of Supermarkets General Corporation, have violated the National l abor Relations Act and has ordered us to post this notice. We therefore notify you that: WI- Wt 1. Nor announce and grant merit wage increases to our employees in order to discourage their support of United Food & Commercial Work- ers Union, Local 692, United Food & Commercial Workers International Union, AFL-CIO-CLC, or any other labor organization W. '11ii i NOI engage in surveillance of or create the impression of engaging in surveillance of em- ployee union activities. Wil \111i NOIT coercively interrogate our em- ployees about their union activities. Wl Wt11 NOI harass our employees because of their union support. 'VI wllil NOT ill any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. HOCtISCHII ) KOHIN, DIVISION 01 SUPER- M1ARKIi'IS GF NiHRAI CORI'ORITION 173