Homemaker Shops, Inc.

HOMEMAKER SHOPS Homemaker Shops, Inc. and Retail Store Employees Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC, and Homemaker Shops Representative Commit- tee, Party in Interest. Case 7-CA-17116 April 29, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On November 7, 1980, Administrative Law Judge William A. Gershuny issued the attached Decision in this proceeding. Thereafter, the Gener- al Counsel filed exceptions and a supporting brief. Respondent filed a brief in opposition to the Gen- eral Counsel's brief and in support of the Adminis- trative Law Judge's Decision. 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, and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The General Counsel has filed exceptions to the Administrative Law Judge's failure to find that Respondent violated Section 8(aX2) of the Act by dominating, assisting, contributing to the support of, and interfering with the administration of a labor organization, the Homemaker Shops Repre- sentative Committee (hereafter called the Commit- tee). We find merit in these exceptions. The basic facts are not in dispute. Respondent operates a retail store chain selling linens and other related household goods in six States. Its 32 stores are divided into 3 bargaining units. Group I, the unit involved here, encompasses 16 stores.' The Committee was certified by the Board on October 22, 1976, as the bargaining representative of a unit of all full-time and regular part-time selling and nonselling employees at all Respondent's Group I stores. There is no evidence of involvement by Re- spondent in the formation of the Committee. The Committee is an unincorporated body, with- out a charter, bylaws, or governing rules. It con- I On November 2, 1979, the Charging Party, Retail Store Employees Union, Local 876, United Food and Commercial Workers International Union, AFL-CIO-CLC (hereafter called the Union), filed a representa- tion petition covering nine of the stores in Group I. The underlying charge in this case was filed on November 26, 1979. We find merit to the General Counsel's contention that the Administrative Law Judge errone- ously stated that the General Counsel seeks relief from the alleged unfair labor practices only at the 9 stores of the 16 stores listed in the represen- tation petition. The record shows that the General Counsel seeks to re- strain the alleged unfair labor practices at all 16 stores in Group 1. 261 NLRB No. 50 ducts no general membership meetings, has no reg- ular officers, and makes no provision for the pay- ment of dues. The Committee's operational proce- dures are contained in its contract with Respond- ent. The current contract, which expires in January 1983, provides for one representative and one alter- native from each store to be elected annually in May by secret ballot. The length of the representa- tives' terms was initially set at I year at the prefer- ence of Respondent's president, Freeland. The con- tract provides that the Employee Negotiating Committee shall be elected by the store representa- tives and recognizes the Employee Negotiating Committee for the purpose of bargaining about wages, hours, and conditions of employment. It also establishes a four-step grievance procedure with provisions for participation by the store repre- sentatives and for employees and Respondent to share the cost of any arbitration.s Finally, the con- tract provides for compensation to the representa- tives for time lost from work during meetings with Respondent and when participating in the griev- ance procedure. Respondent schedules both regular and special elections for the Committee's representatives. For example, in August or September 1979, Plant Su- pervisor Himes independently called a special meeting for the purpose of electing a store repre- sentative because the current representative was on extended medical leave. Respondent also provides the ballots and ballot box for the elections. The store manager passes out the ballots and for a time keeps the ballot box at his desk. Then, with an em- ployee's assistance, he counts the ballots and an- nounces the results. At the May 1979 election meeting, an employee attempt to amend the method of selecting alternate representatives was vetoed by Plant Manager Laughead. 3 Only Respondent schedules and, if necessary, reschedules the annual and special meetings it has with the Committee. Regular meetings, usually held in the fall of each year, serve the two pur- poses of discussing new merchandise and company sales policy, and negotiating the terms and condi- tions of employment. The Committee's representa- ' Evidence was presented that the Committee's representatives have processed two informal grievances within the 10(b) period. ' The charge here was filed on November 26, 1979. It is unclear whether this May 1979 meeting occurred within the 10(b) period. We. accordingly, rely on this and other instances predating the 10(b) period for background purposes only. It is well settled that the Board can and will consider events transpiring more than 6 months before the filing of a charge to shed light on the true character of matters occurring within the limitations period, even though under Sec. 10(b) such conduct cannot itself constitute an unfair labor practice. Local Lodge Na 1424, Interna- tional Assoeiation of Machinists. AFL-CIO, et al [Bryan Manufacturing Company] v. N.L.RB., 362 U.S. 411 (1960). See also N.LR.R v. South- ern Bell Telephone & Telegraph Co., 319 U.S. 50, 57 (1943). 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives have met among themselves only prior to these regular annual or special meetings. No mem- bers of management are present at these prelimi- nary meetings where, pursuant to the contract, the representatives select an Employee Negotiating Committee to meet with Respondent and present the Committee's demands. Respondent reimburses the representatives for travel expenses to the meet- ings. It pays the representatives their regular hourly wages both while in attendance at the pre- liminary meetings and, pursuant to the contract, at the negotiation meetings. Respondent also provides the Committee with temporary facilities and coffee for these preliminary meetings. At the November 1979 negotiations for the cur- rent contract with Respondent, the Committee's representatives presented their demands one by one. Uncontradicted testimony shows that Re- spondent summarily granted or denied each demand. Respondent offered no counterproposals. Although Respondent granted some demands in compromised form, the parties did not engage in the usual back-and-forth negotiation of terms that customarily accompanies the process of collective bargaining. The Committee did not try to obtain any proposals by giving up other proposals, nor did it insist that any proposal was mandatory. De- mands denied were usually immediately dropped by the Committee's representatives. Committee de- mands granted included increased insurance bene- fits, dental insurance, a cost-of-living provision, a wage increase, and funeral leave. On November 30, 1979, Respondent called the Committee to a special meeting, attended by Re- spondent's attorney, to discuss with Group I repre- sentatives the filing of the charge in this case, the petition by Local 876, and the propriety of bargain- ing over a new contract covering the nine stores of Group I covered by the petition. At this meeting, the store representatives were told that they could call Respondent's attorney if they had any ques- tions, that he would represent them if they desired, and that they had the right to retain their own at- torney if they preferred. Respondent made no re- quest, promise, or suggestion that it would pay for whatever attorney the Committee retained. On the basis of the above record, the Adminis- trative Law Judge found that Respondent did no more than lawfully cooperate with the Committee. The General Counsel, while acknowledging that the Board has no per se rule with regard to unlaw- ful assistance or domination, contends in exceptions that Respondent's involvement in the Committee's internal affairs exceeds the permissible level of co- operation between an employer and a labor organi- zation and amounts to unlawful domination and as- sistance.4 We agree, and, contrary to the Adminis- trative Law Judge, we find that Respondent has violated Section 8(a)(2) and (1) of the Act by dominating,5 assisting, contributing to the support of, and interfering with the administration of the Committee. In making these findings, we note that the differ- ence between unlawful assistance and unlawful domination is one of degree,6 as is the difference between permissible cooperation and unlawful as- sistance.7 Where, as here, the totality of evidence shows that the labor organization exists essentially at the will of the employer, we are compelled to find that the employer has engaged in both unlaw- ful assistance and domination.8 We also note that the employer's activity in the formation of a labor organization is not a prerequiste to a finding of domination in the administration of a labor organi- zation. 9 In finding unlawful assistance and domination, we rely on the collective import of the following factors: (1) The Committee has no charter, bylaws, or governing rules, no regular officers, and no pro- vision for the payment of dues. 0 (2) The only body of rules governing the operation of the Committee is contained in the bargaining agreement between Respondent and the Committee." (3) Respondent ' See, e.g., Federal Mogul Corporation, Coldwater Distribution Center Di- vision, 163 NLRB 927, 928, fn. 4 (1967), enforcement denied 394 F.2d 915 (6th Cir. 1968). ' Respondent contends that, because unlawful domination is not alleged in the complaint or amended complaint, we should decline to find this violation. The amended complaint (par. 12) alleges: Since on or about May 26, 1979, and continuing to date, Respond- ent has rendered and is rendering unlawful aid, assistance and sup- port to the Homemaker Shops Representative Committee by sched- uling and controlling the election of Committee representatives; by calling, attending and directing meetings of Committee representa- tives, and compensating representatives to attend these meeting; and by providing financial assistance to the Committee by offering legal assistance and by allowing the Committee to use its offices, equip- ment, facilities, and supplies to conduct Committee business. We find that these allegations are sufficient to bring the issue of domina- tion within the scope of the complaint. See Fremont Manufacturing Com- pany, Inc., 224 NLRB 597 (1976), enfd. 558 F.2d 889 (8th Cir. 1977). In addition, where a material issue of unlawful conduct related to the subject matter of the complaint has been fully litigated and the facts nec- essary to decide the question have been adduced without objection by Respondent, the Board is not precluded from deciding the issues, regard- less of whether it has been specifically pleaded. See Kux Manufacturing Corporation, etc., 233 NLRB 317 (1977), enforcement denied in relevant part 614 F.2d 556 (5th Cir. 1980). ' Harold W Koehler, Harold C Koehler and Jerry Koehler, a partnership d/b/a Koehler's Wholesale Restaurant Supply, 139 NLRB 945, 953 (1962), enfd. in relevant part 328 F.2d 770 (7th Cir. 1964). 7 See, e.g., Sunnen Products, Inc, 189 NLRB 826, 828 (1971). 'See Kux Manufacturing Corporation, supra 9 See Goulds Pumps Inc., Vertical Pump Division, 196 NLRB 820, 824 (1972). 'I See Clapper's Manufacturing, Inc., 186 NLRB 324, 334 (1970), enfd. 458 F.2d 414 (3d Cir. 1972). ii See Federal Mogul Corporation, Coldwater Distribution Center Divi- sion, supra at 928; Modern Plastics Corporation, 155 NLRB 1126, 1128 (1965), vacated 379 F.2d 201 (6th Cir. 1967). 442 HOMEMAKER SHOPS exercises sole authority to schedule annual and spe- cial meetings with the Committee and the Commit- tee's representatives only meet prior to these sched- uled meetings with Respondent. (4) Respondent plays a substantial role in determining and oversee- ing the Committee's internal election procedures. (5) The most recent contract negotiations were not characterized by arm's-length bargaining. Respond- ent summarily accepted, rejected, or compromised the Committee's requests, without further counter- proposals. 12 (6) There is minimal evidence of griev- ance handling by the Committee. (7) The Commit- tee's representatives are paid their regular hourly wages plus travel expenses for their participation in all Committee functions. (8) Respondent provides free temporary facilities and coffee for the Com- mittee's pre-negotiation meetings. (9) Respondent offered the Committee the services of its attorney on November 30, 1979.13 On the basis of the foregoing, we find that Re- spondent, since May 26, 1979, has provided assist- ance and support to the Homemaker Shops Repre- sentative Committee, and has dominated the admin- istration of the Committee, in violation of Section 8(a)(2) and (1) of the Act." 2. The General Counsel has also excepted to the Administrative Law Judge's failure to find three separate violations of Section 8(a)(1) of the Act. We find merit in these exceptions. Employee and Committee Representative Brown testified that in early January 1980 she made a per- sonal call, unrelated to union business, on a compa- ny telephone. Respondent's store manager, Chene, stood approximately I to 1-1/2 feet away from her during this call. According to Brown, when she finished the call she turned and asked Chene whether he was "baby-sitting her." Chene an- swered that he had been instructed by Respond- ent's president, Freeland, to find out to whom Brown spoke on the telephone and to inform him of all calls relating to Local 876. Brown testified that she considered the matter a "kind of joke," but that Chene was "very serious in what he was saying." Chene, given an opportunity at the hear- " See Kux Manufacturing Corporation, supra at 320, 323. See also Reed Rolled Thread Die Ca, subsidiary of UTD Corporation, 179 NLRB 56, 63 (1969), enfd. in relevant part 432 F.2d 70 (Ist Cir. 1970). Cf. Newman- Greemn Inc., 161 NLRB 1062, 1067 (1966), enfd. as modified 401 F.2d I (7th Cir. 1968), in which the Board declined to find unlawful domination where there was evidence of insistent bargaining by the labor organiza- tion and successful processing of grievances. We find no merit to Respondent's argument that the presence of favor- able terms in the contract precludes a finding of unlawful domination or assistance. See N.LR.B. v. Newport News Shipbuilding & Dry Dock Ca, 308 U.S. 241 (1939). See also Alta Bates Hospital, 226 NLRB 485, 491 (1976). 1" We do not find determinative that it was not clear from the offer who would be paying for the attorney's services. See Duquesne University of the Holy Ghost, 198 NLRB 891, 900 (1972). " See Goulds PumpA Inc., supra ing to deny the alleged conversation, instead testi- fied that it was "very possible" the conversation took place but did "not recall the exact wording." We credit Brown's uncontroverted testimony and find that Chene created the unlawful impression of surveillance, in violation of Section 8(aXl) of the Act. 's We also find that Respondent's store manager, Laughead, engaged in unlawful interrogation of Gingrich, a Committee representative. Gingrich testified that early in 1980 Laughead asked her if she knew anything about the union activity and from what store it might be coming. She replied to Laughead that she had no idea and would not tell him even if she knew. According to Gingrich, Laughead's questions were casual and occurred on the sales floor. Laughead denied the conversation. The Administrative Law Judge did not explicitly credit either witness but found that the conversa- tion was "innocuous at best." From this, we con- clude that he has implicitly credited Gingrich's tes- timony that the conversation occurred.1" We dis- agree with the Administrative Law Judge's charac- terization of this conversation and find that Laugh- ead unlawfully interrogated Gingrich in violation of Section 8(a)(1) of the Act. t7 Finally, we find that Respondent's store man- ager, Himes, engaged in unlawful interrogation of employee and Committee Representative Kelly. Kelly testified that Himes asked her on November 1, 1979, if she had met with any Local 876 repre- sentatives that day and that she told him "yes." She later overheard Himes relay her response to Freeland on the telephone and asked Freeland if there was anything he should ask Kelly. Kelly fur- ther testified that Himes approached her later that day and asked her what demands the employees were going to make. She gave a vague reply, men- tioning a possible wage increase and medical or dental insurance. Himes corroborated Kelly's testi- mony. The General Counsel sought to further amend the complaint at the hearing to include an allega- tion of 8(a)(1) interrogation by Himes. The Admin- istrative Law Judge initially struck the testimony of the General Counsel's witness at the hearing but permitted Respondent to present its witness and litigate the issue, in case the Board chose to reverse his denial of the motion, or denial of the motion of his Decision. However, because this allegation was " See, e.g., Sports Coach Corporation of America, 203 NLRB 145, 152 (1973). "l We note that Respondent's brief in opposition to the General Coun- sel's exceptions does not deny that the conversation took place but con- tends that, as the Administrative Law Judge found, it was innocuous. 11 See, e.g., Isaacson-Carrico Manufacturing Company, 200 NLRB 788 (1972). 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fully litigated and is closely related to other allega- tions in the complaint we grant the motion to amend and admit the disputed testimony into the record. I Further, we find that Himes' conduct constituted an unlawful interrogation in violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Homemaker Shops, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 876, United Food and Commercial Workers Internation- al Union, AFL-CIO-CLC, and Homemaker Shops Representative Committee are both labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about union activities in order to discourage union mem- bership and activities; and by the creation of the impression of surveillance of union activities, Re- spondent has interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By dominating, assisting, supporting, and inter- fering with the operation and administration of the Homemaker Shops Representative Committee, Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order Re- spondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Because Respondent has dominated, and inter- fered with, the administration of the Party in Inter- est, Homemaker Shops Representative Committee, and has contributed support thereto, it will be rec- ommended that Respondent be ordered to cease and desist from such conduct and that it withdraw recognition from and completely disestablish the Committee as the representative of any of Re- spondent's employees in Respondent's 16 stores in Group I for the purposes of dealing with Respond- " See, e.g., Aluender Daws. Inc d/b/a Alexander's Restaurant and Launge, 228 NLRB 165, 165-166 (1977), enfd. 586 F.2d 1300 (9th Cir. 1978). ent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of work. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Homemaker Shops, Inc., Lathrup Village, Michi- gan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees about union activities. (b) Creating the impression of surveillance of union activities. (c) Dominating, supporting, assisting, or interfer- ing with the operation and administration of the Homemaker Shops Representative Committee or any other labor organization. (d) Recognizing, or in any manner dealing with, the Homemaker Shops Representative Committee, or any reorganization or successor thereof, as the representative of all full-time and regular part-time selling and nonselling employees in Respondent's 16 Group I stores, which constitute the Group I bargaining unit. (e) Giving effect to or enforcing the collective- bargaining agreement covering employees in the Group I bargaining unit and executed on January 2, 1980, with the Homemaker Shops Representative Committee, or to any renewal, extension, modifica- tion, or supplement of said agreement; provided, however, that nothing herein shall be construed to require Respondent to vary or abandon any exist- ing term or condition of employment. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from the Home- maker Shops Representative Committee as the rep- resentative of its employees in the Group I bargain- ing unit for the purpose of dealing with Home- maker Shops, Inc., concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work and completely dises- tablish the Homemaker Shops Representative Com- mittee as such representative; provided, however, that nothing in this Order shall require Respondent to vary or abandon any wages, hours, or other sub- stantive benefits as a result of discussions with the Homemaker Shops Representative Committee, or to prejudice the assertion by its employees of any 444 HOMEMAKER SHOPS rights they derived as a result of such discussions; and further provided that nothing herein shall be construed as prohibiting its employees from form- ing, joining, or assisting any labor organization. (b) Post at its Group I stores in the State of Michigan copies of the attached notice marked "Appendix."' 9 Copies of said notice, on forms pro- vided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Repondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. to In the event that this 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 Pursu- ant 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 After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT interrogate our employees coercively about their activities on behalf of Local 876, United Food and Commercial Workers International Union, AFL-CIO- CLC, or any other labor organization. WE WILL NOT give our employees the im- pression that we are engaging in surveillance of their union activities. WE WILL NOT dominate, support, assist, or otherwise interfere with the operation and ad- ministration of the Homemaker Shops Repre- sentative Committee or any other plant com- mittee or labor organization of our employees. WE WILL NOT recognize, or in any manner deal with, the Homemaker Shops Representa- tive Committee, or any reorganization or suc- cessor thereof, as a representative of our em- ployees employed in our Group I stores, for the purpose of dealing with Homemaker Shops, Inc., concerning grievances, labor dis- putes, wages, rates of pay, hours of employ- ment, or other conditions of work. WE WILL NOT give effect to our January 2, 1980, collective-bargaining agreement with the Homemaker Shops Representative Committee with respect to employees employed in our Group I stores or to any renewal, extension, modification, or supplement thereof; provided, however, that nothing herein shall be con- strued to require that we vary or abandon any existing term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL withdraw all recognition from the Homemaker Shops Representative Committee as a representative of our employees employed in our Group I stores for the purpose of deal- ing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employ- ment, or other conditions of work, and com- pletely disestablish the Homemaker Shops Representative Committee as such representa- tive. HOMEMAKER SHOPS, INC. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge: A hearing was held on September 2, 1980, in Detroit, Michigan, on an amended complaint issued August 12, 1980, alleging violations of 8(aX1) and (2) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer denies any violation of the Act. At issue is whether Respondent unlawfully has ren- dered aid, assistance, and support to the Homemaker Shops Representative Committee (hereafter called the Committee) and whether Respondent engaged in unlaw- ful interrogation and surveillance. Upon the entire record,' including my observation of witness demeanor, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent, engaged in the retail sale of curtains, towels, sheets, and other goods, with annual sales in excess of $500,000 and annual interstate purchases valued in excess of $50,000, is an employer engaged in com- merce within the meaning of the Act. 'Respondent's motion for correction of the transcript is granted. No post-hearing brief was filed by counsel for the General Counsel. 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II1. LABOR ORGANIZATIONS INVOLVED Both the Committee and the Retail Store Employees Union, Local 876, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unlawful Assistance and Support of the Committee The Committee, certified by the Board on October 28, 1976, following an election, is the bargaining representa- tive for sales and nonsales personnel at Respondent's 32 retail stores in 6 States. Three bargaining units have been established: Group I, the subject of this proceeding, covers 16 stores; Groups II and III cover 8 stores each. On November 2, 1979, Local 876 filed a representation petition covering only 9 of the 16 stores in Group I. Its charge was filed on November 26, 1979. While this pro- ceeding, of course, concerns only the alleged unfair labor practices, it is noteworthy that counsel for the General Counsel seeks to restrain Respondent's recognition of the Committee only insofar as these nine stores are con- cerned. If relief is granted, the dominated Committee would continue to function as a labor organization at all other stores. The Committee is an unincorporated entity, with no charter, constitution, bylaws, or other governing rules. It has no regular officers or dues structure and conducts no general membership meetings. There is no evidence of Respondent's involvement in its formation. The Committee was not recognized and there was no rival union claim at the time. The Commit- tee functions through a committee comprised of one rep- resentative from each store, elected annually in accord- ance with a bargained-for provision of the contract. The representatives gather for the first time immediately prior to the regular annual or special meetings called by man- agement and select spokespersons to meet with Respond- ent. Representatives are provided with coffee and tempo- rary basement facilities for their preliminary meeting and, in accordance with the labor agreement, are reim- bursed by Respondent for travel expenses and are paid their regular hourly wages while in attendance. There is no management attendance at these meetings. Elections for store representatives are scheduled, and blank ballots are provided, by Respondent, but there is no evidence of employer interference in the selection of representatives. Ballot boxes often are kept on or near the store manag- er's desk and ballots are counted by employees in con- junction with the manager who announces the results. Regular or special meetings are scheduled and re- scheduled by Respondent. Regular meetings, usually held in the fall of each year, serve two purposes: to discuss new merchandise and company sales policy and to nego- tiate terms and conditions of employment. Two special meetings have been called since the Committee was cer- tified: one, in October 1976, to discuss the Committee's initial contract demands; the other, on November 30, 1979, to discuss the effect of Local 876's petition. Min- utes of the meetings are prepared, but no evidence was offered as to authorship. The uncontroverted evidence clearly reflects a pattern of arm's-length bargaining with not ineffective results. Two 3-year contracts have been executed since 1977. The current contract, dated January 2, 1980, expires Jan- uary 2, 1983. The contract, in usual form, contains a number of provisions noteworthy here: for the annual election of store representatives by secret ballot; for es- tablishing the composition of the negotiating committee; for attendance without loss of pay at negotiating meet- ings and grievance meetings and for reimbursement of related costs; and for a four-step grievance-arbitration procedure under which the elected store representative has a participating role. Negotiations for the current contract, described by Committee Spokesperson Harris, consisted of a discus- sion of demands presented by the three-member negotiat- ing committee. A number of its demands (increased in- surance benefits, dental insurance, cost-of-living provi- sion, wage increase, and funeral leave) were met; others were compromised; and some rejected by Respondent. There is no evidence that Respondent dictated the contract terms or declined to discuss Committee propos- als. At the November 30, 1979, special meeting called by Respondent and attended by its attorney to discuss with Group I store representatives the filing of the charge and petition and whether Respondent could bargain with the nine stores of Group I over a new contract, the store representatives were advised that they could call Re- spondent's attorney if they had questions; that they had a right to retain their own attorney; and that Respondent's attorney would represent them if they so desired. There was no request, promise, or suggestion that Respondent would pay for the services of any attorney retained by the employees' Committee. There is no evidence of domination, actual or poten- tial, of any Committee function and, indeed, the com- plaint does not allege and counsel for the General Coun- sel does not contend that the Committee is the victim of employer domination. Thus, the question presented is whether employer as- sistance and support in the form of coffee for Committee representatives once or twice a year, temporary base- ment office facilities several hours a year, pay and travel expenses for attendance of infrequent meetings, and prep- aration of ballots are violative of Section 8(aX1) and (2) of the Act and require withdrawal by Respondent of its recognition of the Committee as the exclusive bargaining representative of those employees at 9 of the 16 stores in bargaining Group I. The Act does not prohibit all forms of employer assist- ance. Indeed, many today recognize the need for innova- tive and broader forms of labor-management cooperation and assistance. With increasing frequency-and with no fear of an impairment of Section 7 responsibilities-union negotiating demands include pay for grievance handling, permanent meeting rooms for conduct of union business, continued seniority for employees elected to salaried union positions, equity ownership of the business, and participation in traditional boardroom decisions. 446 HOMEMAKER SHOPS Whether employer assistance is violative of the Act depends, of course, not on the nature of the assistance, but rather on its effect on the employees' retention of their freedom of choice and the representative's ability to maintain its independence in dealing with the employer. One particular form of assistance to a weak, unaffiliated representative may unlawfully alter the balance, while the same form of assistance to a strong organization may not. It is for this reason that the decision necessarily is an ad hoc one, resting on a consideration of the record as a whole. I conclude that the assistance rendered by Respondent, under all the circumstances present here, is not unlawful for the reason that the employees' paramount rights under the Act of freedom of choice and independence in dealing with Respondent are neither undermined nor threatened. Without question, the Committee lacks the organiza- tion and trappings of the typical labor union. Indeed, it has no organization at all and functions only on an as- needed basis. But because it lacks the organizational bu- reaucracy, there apparently is no need for the imposition of dues and other membership assessments. Its bargaining methods, however rudimentary they may be, have not been ineffective. Through bargaining, its members enjoy such benefits as dental insurance, rarely found in the typical labor agreement. Whatever may be the modus operandi of the Commit- tee, this can be said: It was conceived and selected solely by the employees, its representatives are freely chosen solely by the employees, its contract demands are framed and advanced solely by its representatives, and in its sub- stantive activities it acts entirely independent of Re- spondent. The Board decision finding employer domination in Kux Manufacturing Corporation, etc., 233 NLRB 317 (1977), enforcement denied in relevant part 614 F.2d 556 (5th Cir. 1980), principally relied on by the Charging Party, is inapposite if for no reason other than the fact that the committee there was established and controlled by the employer. In this case, there is no evidence of such employer involvement. Paragraph 12 of the amended complaint is dismissed. B. The Chene Surveillance Store Representative Brown testified that, in early Jan- uary 1980, she was using a company telephone for a per- sonal call, without having first obtained the required per- mission. Her back was to Store Manager Chene who was standing on the other side of the sales counter, about 1 to 1-1/2 feet away. Brown is certain that Chene overheard the conversation which was not related to union activity. When she completed her conversation with her husband, she turned and asked Chene whether he was "baby-sit- ting her." According to Brown, Chene said he had been told by Company President Freedland that, whenever Brown was on the telephone, to find out with whom she was speaking and about what and to inform him of all calls relating to Local 876. Brown considered the matter "kind of a joke," but Chene, she testified, was "very seri- ous in what he was saying." Chene testified it was "very possible" the conversation took place, but he did "not recall the exact wording." No violation is established, even crediting the testimo- ny of Brown. Local 876's petition was filed on Novem- ber 2, 1979, 2 months prior to this incident. No other similar incidents were testified to at this or any other store. Brown was not identified as an adherent of Local 876. This isolated incident in a multistore bargaining unit during a 10-month period between date of filing and date of hearing does not rise to the level of unlawful activity. Kux Manufacturing Corp., supra, 233 NLRB at 322. Paragraph 1 (b) of the amended complaint similarly is dismissed. C. The Laughead Interrogation Early in 1980, according to the testimony of Store Representative Gingrich, Store Manager Laughead asked her if she knew anything about union activity and from what store it might be coming. She testified that the con- versation occurred on the sales floor, that it was just a casual remark, and that she replied she had no idea and would not tell him even if she knew. Laughead testified that no such conversation occurred. No unlawful interrogation is established. The interro- gation was casual and, considered both objectively and subjectively, was not coercive or intimidating. Indeed, it was innocuous at best. Again, under the circumstances of the case, this isolated question does not rise to the level of unlawful employer activity under the Act. Paragraph I1(a) of the amended complaint is dis- missed. [Recommended Order for dismissal omitted from pub- lication.] 447