Berton Kirshner, Inc.Download PDFNational Labor Relations Board - Board DecisionsApr 4, 1974209 N.L.R.B. 1081 (N.L.R.B. 1974) Copy Citation BERTON KIRSHNER, INC. Berton Kirshner, Inc. and General Warehousemen Local 598, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America Berton Kirshner, Inc., d/b/a The Berton Company and General Warehousemen Local 598, Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Petitioner. Cases 21-CA-11199 and 21-RC-12862 April 4, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 18, 1973, Administrative Law Judge Louis S. Penfield issaed the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We do not agree with the Administrative Law Judge that the taking of pictures of the union representatives' handbilling of Respondent's employ- ees as they left Respondent's premises after work, under the particular facts of this case, violated Section 8(a)(1) of the Act. The record shows that on August 18, 1972, the union representatives first appeared at Respondent's place of business. On this date, one representative drove onto Respondent's parking lot. He was thereafter asked by Kirshner, Respondent's president, to leave the premises, which he did. On August 21, three union representatives appeared at the site and commenced handbilling the employees as they drove out of the parking lot. During this period, Kirshner took several pictures of the handbillers. At the same time, Respondent called the police on the ground that the union representa- tives were trespassing on Respondent's property. Although the police arrived, nothing further oc- r In the conversation relating to her "rehire" as department head, Cook asked for a pay increase of 35 cents per hour. Kirshner offered her an additional 10 cents if she would come back as a rehire thereby forfeiting any 1081 curred; and thereafter, on several other occasions, the union representatives appeared on the scene and handbilled the employees, as they were leaving work, without incident. An examination of the pictures themselves shows that although most of the time the union representatives were beyond the Respondent's property line, standing in that portion of the driveway that would have been an extension of the sidewalk or roadway right-of-way, there were several occasions when the union representatives were standing within Respondent's property line. In these circumstances, including the fact that Respondent promptly called the police on this one date as well as the fact that there were several later handbillings by the Union without incident, we cannot conclude that Respondent by taking pictures of handbillings which in part were on its property engaged in surveillance, or engaged in conduct that would have created the impression of surveillance. Accordingly, we shall dismiss the complaint as to this allegation. We also find merit in Respondent's contention that Judy Cook is a supervisor within the meaning of the Act. The Administrative Law Judge found that Judy Cook and several other department heads were not supervisors, and that various interrogations and statements made to them by Kirshner violated Section 8(a)(1) of the Act. As to Cook, the record shows that at or about the time of the advent of the Union, she was off work due to an illness . When she returned to work, in August 1972, she was "rehired" as a department head and given a 45-cent-an-hour raise over her previous salary.' Cook testified that, as department head, it is up to her to see that the work gets out on time and that the employees have all the stock that they need. While she works right along with the other employees for the major portion of the day, she does direct the work of the other employees, trains new employees, and gives oral reprimands; and if work deficiencies continue, refers the matter to higher supervision for consideration as to whether a written reprimand should be put in the employee's file. In addition, Cook testified that she makes out progress reports on each of the employees in her department on a quarterly basis, rating each employ- ee as to skills, job performance, and attitude according to a point grading system; that she recommends wage increases on these reports; and that these progress reports are used by management for wage increases for the individual employees involved, as well as for giving warning notices to employees with poor performance ratings. In these circumstances, we find that Cook is a supervisor within the meaning of the Act, and shall, according- interest she might have had in the profit-sharing plan from her earlier employment 209 NLRB No. 170 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, dismiss those portions of the complaint involving Cook. In reaching this conclusion as to Cook, we are not unmindful 'of the fact that, initially, the parties tended to "lump" together or treat all department heads on an identical basis. However, as the hearing progressed, it became clear that not all "department heads" were supervisors, and the Respondent so stipulated as to several of them. With these facts in mind, we have carefully reviewed the record as to the supervisory status of Connie Wyble and are of the opinion that the Administrative Law Judge's conclu- sion that she is not a supervisor is adequately supported by the record.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified herein and hereby orders that the Respon- dent , Berton Kirshner , inc., Pica Rivera, California, its officers , agents, successors , and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraph 1(a) and reletter the follow- ing paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election conducted on October 27, 1972, in Case 21-RC-12862 be, and it hereby is, set aside and that Case 21-RC-12862 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] 2 In view of Respondent 's stipulation as to the nonsupervisory status of Johnson, Patterson , and Kelly, we agree with the Administrative Law Judge's conclusion that Respondent violated Sec 8 (a)(1) when Kirshner conducted the postelection poll of those employees whose ballots had been challenged at the election. In addition , in ,iew of the Respondent's and Union's stipulation as to the validity of the seven challenges to ballots at the opening of the hearing for the limited purpose of excising the issue of the challenged ballots from the hearing , we find it unnecessary at this time to pass on the Administrative Law Judge 's recommendations as to challenged ballots APPENDIX found that we have violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represent- atives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activities. WE WILL NOT interrogate our employees as to their union activities or those of their fellow employees. WE WILL NOT solicit grievances of our employ- ees. WE WILL. NO I' make statements to our employ- ees creating the impression of surveillance of their union activities. WE WILL NOT promise or grant economic benefits to our employees in order to encourage them to forgo support of a union. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of their rights. All our employees have the right to join or assist or not to join or assist General Warehousemen Local 598, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, or any other labor organization. BERTON KIRSHNER, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had an opportunity to present evidence and state their positions , the National Labor Relations Board has DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Administrative Law Judge: This consolidated proceeding was heard before me in Los Angeles, California, on February 6, 1973, with all parties represented . The complaint is based on a charge filed on August 22, 1972, by General Warehousemen Local 598, BERTON KIRSHNER, INC. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union. The complaint originally issued on September 27, 1972, and was thereafter amended on December 1, 1972, and further amended at the hearing. The complaint alleges various acts of interference, restraint, and coercion upon the part of Berton Kirshner, Inc., herein called Respon- dent, which are claimed to violate Section 8(a)(1) of the Act. All parties were given full opportunity to participate in the hearing, and after the close thereof Respondent and General Counsel filed beefs. The proceeding in Case 21-RC-12862 involved an election pursuant to a Stipulation for Certification upon Consent Election conducted on October 27, 1972. The results were not determinative, and timely objections were filed. The only objection not resolved concerns alleged unlawful interrogation of employees in a manner concur- rently alleged to be an unfair labor practice. The Regional Director for Region 21 having determined that the issues raised by seven challenged ballots and by the objection should be resolved after hearing directed the consolidation of the unfair labor practice case and the representation case. Upon the entire record in this consolidated proceeding, and upon my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a California corporation engaged in the wholesale sale and distribution of toys and a variety of miscellaneous items from a place of business located in Pico Rivera, California. In the normal course of such business operations Respondent annually purchases and receives goods and products valued in excess of $50,000 directly from firms located outside the State of California. I find Respondent to be engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, and assertion of jurisdiction to be appropriate. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. 7 HE ALLEGED UNFAIR LABOR PRACTICES The conduct alleged as violative of Section 8(a)(1) includes surveillance, and creating an impression of surveillance, by photographing the distribution of union literature to employees, solicitation of employee griev- ances, unlawful interrogation of employees concerning their own and the union activities of fellow employees, a statement to employees creating the impression of surveil- lance, and the promise and grant of economic benefits to encourage foregoing support of the Union. Since in significant measure the lawful or unlawful nature of Respondent's conduct will be determined by the supervisory status of certain employees this issue will be considered first. 1083 A. Respondent's Supervisory Hierarchy Respondent's business is what is known as rack jobbing. Respondent buys a variety of items such as toys, books, notions, party goods, and the like in large quantities. It solicits and obtains orders for these items from supermar- kets and other retail outlets. Its warehouse employees break down Respondent's stocks of products into small quantities, and price them in accordance with orders from the customers. Thereafter they are delivered and displayed by Respondent's drivers who at the same time solicit additional sales . Respondent's sales drivers are represented by another labor organization. This proceeding concerns only the attempted organization of those employees who work at Respondent's warehouses filling the orders. Berton Kirshner is the owner and president of Respon- dent. Respondent's premises include two warehouses one of which, slightly larger than the other, is known as the front warehouse, and the other known as the rear warehouse. In each employees are engaged in pricing and order filling. Vince Bujanowski is superintendent of Respondent's entire operation. At times material to this proceeding Jack Gregory and Richard Caldwell were his assistants in the front and rear warehouses, respectively. The approximately 57 unit employees work in various so- called departments which deal with different products. Each department will have from two to six or seven people in it. Alice McCray is classified as supervisor of the women employees working in the front warehouse department, and Evelyn Smith is classified as supervisor of the women employees working in the rear warehouse. Each of the so- called departments within each warehouse is headed by a girl classified as a department head. Respondent contends McCray, Smith, and the department heads to be supervi- sors. The General Counsel claims neither the warehouse supervisors nor the department heads have sufficient authority to warrant finding them to be supervisors within the meaning of the Act. Alice McCray did not testify. Evelyn Smith testified that she has general responsibility for all the departments in the rear warehouse. She spends a considerable amount of her time in order filling, but will assign herself to work in those departments most in need of help. She will also, on occasion, direct an employee to move from her own regular department to another when she determines this to be needed. According to Kirshner Alice McCray functions in a similar manner in the front warehouse. Kirshner testified that while neither McCray nor Smith have direct authority to hire or fire, each has authority to make recommenda- tions with regard to employees in her respective warehouse, and each has authority to issue warning notices and reprimands to the employees working there. It does not appear, however, that Smith, at least, has had occasion to exercise either the authority to recommend or reprimand. Each one will prepare progress reports upon employees, but neither will participate in decisions as to whether these result in wage increases. Both attend meetings of Respon- dent's management group when such meetings are held. With the exception of some 30 minutes at the end of each day when they fill out reports, department heads work in their respective departments filling orders in the same manner as other department employees. The department 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD head will usually be the most experienced employee in the department, and among other things she will be expected to instruct new employees in their work and to offer them assistance in performing their jobs. Two department heads, Connie Wyble and Judy Cook, testified. A fair appraisal of the testimony of each would indicate that while each functioned as a work leader in her respective department with responsibility to furnish some guidance to other employees in the department, this required little more than giving routine directions, and when matters demanding the exercise of independent judgment arose the department head would turn to her respective warehouse supervisor for guidance and instruction. Department heads do not attend management meetings. I am convinced from a consideration of the record as a whole that Alice McCray and Evelyn Smith, the front and rear warehouse supervisors, are each supervisors within the meaning of the Act. It seems reasonably clear that Kirshner himself, the superintendent and their assistants, are largely concerned in the overall operation of the enterprise with particular emphasis on overseeing sales and deliveries. The order fillers are all women. Order fillers work pursuant to established patterns, but absent the continuing presence of a warehouse supervisor there would not be a management representative readily available to direct and oversee their work performance and to handle needed deviations from the norm. I am satisfied that responsibility for this has been given to the warehouse supervisors, and that each one is directly responsible for work performance of order fillers in her respective warehouse . Higher echelon management reviews their recommendations, and makes ultimate decisions based on independent investigation, but I am convinced that the operation demands, and that warehouse supervisors possess, authority which exceeds routine direction, and that Respondent expects them to use independent judg- ment and responsibly to direct and coordinate the order filling in their respective work areas. Accordingly I find that at all times material Alice McCray and Evelyn Smith were supervisors within the meamng of the Act. The department heads on the other hand, although apparently vested with a greater degree of responsibility than fellow department workers, appear to do little more than engage in routine direction of the employees in their departments, and they regularly turn to the warehouse supervisors, and to others in the management hierarchy, when matters arise which demand the use of independent judgment. Accordingly I find that Connie Wyble and Judy Cook, in particular, and other employees classified as department heads perform as work leaders for Respon- dent , but have not been vested with sufficient authority to be classified as supervisors within the meaning of the Act. B. The Allegations of Surveillance and Creating the Impression of Surveillance in Connection With the Picturetaking on August 21 On August 18, 1972, Union organizers first appeared at Respondent's premises. Their appearance was noted by Kirshner when one drove an automobile onto his parking lot, and he was asked by Kirshner to leave the premises. The next appearance was on August 21 when three union representatives appeared in the afternoon. These organiz- ers commenced handbilling Respondent 's employees as they left the premises in their automobiles . Kirshner observed this and although he did not ask them to leave he took some 15 pictures of the organizers , some showing organizers alone, but many showing them giving handbills to employees in their cars . One unidentified employee asked an organizer what Kirshner was doing taking pictures. The record is not altogether clear if at the outset the organizers were actually positioned inside Respon- dent 's parking lot, but the pictures suggest that for the most part they were standing on the dnveway extension of the sidewalk fronting the street . Shortly after they appeared Kirshner called the police, ostensibly to protest the presence of the organizers on his property. The police appeared shortly thereafter but they did not disturb the handbilling in any way . In the ensuing 2 months the Union carried on an intensive organizational drive which, among other things , included further handbilling at Respondent's premises on five or six additional occasions. On none of these later occasions were pictures taken , nor were the police called , nor did any other incidents occur. Kirshner testified that he took the pictures and called the police because he believed the organizers to be trespassing and to be blocking the driveway. He states that he regarded the picturetaking as necessary to prove such a claim if he was going to pursue efforts to enjoin it. C. The Alleged Solicitation of Grievances Concurrently with the commencement of the union organizational campaign Kirshner held a series of meetings with the warehouse employees. Theretofore employee meetings had not been a regular occurrence . At the outset of such meetings Kirshner told the employees that he was unable to understand what working conditions could be so bad that employees felt compelled to seek a union. According to the testimony of employees Waller and Wyble, Kirshner asked the employees to voice complaints relating to Respondent 's operation . One employee told Kirshner that the restroom in the back warehouse was in a state of disrepair , and that that area lacked a drinking fountain . Kirshner replied that this was the first time that these things had come to his attention but that the request seemed like a reasonable one and that he would take steps to remedy it. Shortly thereafter the restroom, which had been in disrepair for some 9 months , was fixed up, and a dunking fountain was put in . Kirshner continued to urge employees to voice complaints of any sort either by coming to see him or by calling him on the telephone. Kirshner acknowledges that he held some five or six meetings with the employees at which he expressed his opposition to the Union, and at which a variety of matters were discussed including the repair of the restroom and the drinking fountain. Kirshner denies however that he used the word "complaint" claiming it to be a negative sort of word that he did not normally use. While I am disposed to credit the mutually corroborative testimony of Wyble and Waller to the effect that Kirshner actually asked for "complaints ," I deem the difference to be of limited significance for it appears clear that in any event Kirshner expressed himself as concerned with reasons why the BERTON KIRSHNER, INC. employees had sought a union, and made it clear that he would welcome expressions regarding problems in existing working conditions. D. The Individual Interrogation of Cook and Wyble Employee Cook had been on sick leave for approximate- ly 10 weeks prior to August of 1972 because of an operation. According to Cook at some point in August she had a telephone conversation with Kirshner concerning her return to work. Cook told Kirshner that she was ready to come back if she could obtain a raise. Cook testified that Kirshner then asked her "how [she] felt about the union," and that she had responded by saying that she "didn't need it." Cook states that she then asked Kirshner for a 35-cent- an-hour raise and that he responded that "if he could get a `no' vote from [her] and [she would] give up profit sharing and start out as a rehire" he would give her a 45-cent-an- hour raise. Cook agreed to Kirshner's proposal and shortly thereafter came back to work as a department head with the 45-cent raise. Kirshner admits having had a telephone conversation with Cook, and having discussed the Compa- ny's profit-sharing plan with her. He states, however, that he accorded her the 45 cents when she agreed to return to work as a new employee thereby forfeiting a share of Respondent's profit-sharing plan to which she might otherwise be entitled . Kirshner testified that he "frankly don't remember ever asking her or anyone else if she would vote 'no' for the union. I might have said how do you feel about the union or union participation but I honestly don't remember and I feel sure I didn't say will you vote `no' for the union." A few weeks before the election on October 27 Kirshner called employee Wyble into his office . According to Wyble Kirshner asked for her support in the election and "what any of the complaints were of the girls that brought the union into the picture in the first place." Wyble then told Kirshner some of her own complaints, and he asked her if she "would give him some names of the girls that were for the union and against the company in the election." Wyble supplied him with the names of four or five employees. Kirshner ended the discussion by asking Wyble if she "could possibly talk to some of the girls . . . and maybe change their minds." Kirshner does not deny this conversa- tion with Wyble. E. The Statement Allegedly Creating the Impression of Surveillance of Employees' Union Activities Virginia Holmes, an employee, testified that at one of the employee meetings held a few days before the election Kirshner had been discussing the forthcoming election and had asked the employees to vote against the Union. Kirshner solicited questions of the employees , and Holmes asked why he would not let the Union into the plant to have an open debate. According to the undisputed testimony of Holmes Kirshner responded that this "would be cutting his own throat," and that employees would believe the union organizers and not himself . Holmes further testified, again without dispute, that toward the end of the meeting Kirshner had stated to Holmes "that he 1085 knew all about [her ], that [she ] was hired for the union On the following day, at her own request , Holmes went to Kirshner's office to discuss union matters with him. She testified that Kirshner asked her why she wanted the Union, and that when she responded that she was interested in better wages and benefits Kirshner had told her that these were things that would have to be negotiated. She also testified that during the course of the meeting Kirshner showed her the pictures he had taken on August 21 and told her that he had taken such pictures "to scare off the union representatives ." Holmes acknowledges the discussion to have been an amicable one, that it had covered a variety of matters, and that Kirshner had indicated she was free to vote any way she wished but that he hoped that he had her vote . Kirshner admits that he may have shown the pictures to Holmes but he categorical- ly denies that he told her that the pictures were taken to scare off the Union. F. The Polling of the Employees Following the Election As noted above the ballots of seven persons were challenged at the election . It stands undisputed that following the election Kirshner called the employees who had voted the challenged ballots into his office and asked that they vote again the same way they "did in the election, secret ballot, because he wanted to know the outcome of them before they were opened because he didn 't want to come back with a red face ." Thereafter the employees voted and put their folded ballots in a waste basket presumably to be counted later. G. Discussion of the Issues and Conclusions The allegations of the complaint are concerned solely with the lawful or unlawful nature of Respondent's reaction to the Union's organizational campaign. The General Counsel contends that Respondent engaged in a number of acts in derogation of the employees ' rights. In part these are the same acts claimed to have interfered with the conduct of the election . Although the facts are not in substantial dispute, Respondent claims that when consid- ered in the context of the Union 's campaign its conduct should not be found to have so interfered with employee rights that a cease and desist order is called for. Respondent reacted promptly and vigorously to its first knowledge of the Union 's organizational efforts. It challenged the right of the organizers to be on its property, and, when handbilling started , immediately called the police and took pictures of the organizers handing the literature to the employees as they left the plant. This initial approach was abandoned and on the next five or six later occasions the Union handbilled without incident. While no doubt this in some measure served to dissipate the effects of the August 21 picturetaking , the latter was calculated to bring Respondent's concern with union organization to the attention of the employees at the outset of the organizational drive, and also make known to them that Respondent might be making a record from which it could identify the employees who were showing interest in 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization. Respondent claims to have been concerned solely with the problem of the organizers trespassing on its property and blocking egress therefrom. It does not appear from this record that Respondent's actual motive was necessarily one of unlawful surveillance. Respondent, however, took no steps to apprise the employees of its real objective, and it is not unreasonable that under the circumstances they might conclude that it was actually seeking information as to their union interests. Thus while the record does not show that Respondent to have been engaging in surveillance, it shows Respondent to have engaged in conduct calculated to create an impression of surveillance. The Board has often held this, in and of itself, to be an interference with employee rights, and I so find.' The foregoing finding is buttressed when it is considered in conjunction with the series of employee meetings Respondent initiated about the same time. Employee meetings of this nature were not a regular occurrence. It stands undisputed that Kirshner not only made clear to the employees that he was opposed to unionization, but that he made continuing efforts to find out from the employees the problems that caused them to seek union representation. Such efforts resulted in his learning of the restroom and drinking fountain problem, and he responded by taking corrective steps. Thus it appears that Kirshner, whether or not specifically soliciting complaints as such, made it clear to the employees that the Union campaign had made him receptive to their work problems, and that if they spoke up these might be adjusted without the need for a union. General Counsel correctly points out that the Board has held that where an employer during the course of an organizational campaign solicits complaints from employ- ees in a manner from which it can be inferred that corrective action will be taken without the need of a Union it interferes with the rights guaranteed by Section 7. The solicitation here appears to have been of such nature, and I find the conduct to be violative of Section 8(a)(1) of the Act.2 Conduct of a more serious nature is to be found in the interrogation of both Cook and Wyble as set forth above. Respondent contends that it regarded each of these employees to be supervisors, and that under the circum- stances its inquiries were reasonable. I have found above that neither Cook nor Wyble were supervisors within the meaning of the Act. Thus to the extent that Respondent relied upon their supervisory status its reliance was misplaced. Kirshner does not deny that he talked with Cook, or that he may have mentioned the Union to her prior to her return to work. Cook testified in a forthright manner, and I credit her testimony to the effect that Kirshner questioned her as to her union sympathies and told her that if he could get a no vote from her and she would relinquish her right to the profit-sharing plan she would'be given a 45-cent-an- hour raise. Both the interrogation and promise and accord of economic benefit for renouncing the Union stand out as conduct interfering with Cook's Section 7 rights, and are violative of Section 8(a)(1), and I so find. It stands undisputed that Kirshner called Wyble to his office , interrogated her as to her own sentiments and those of her fellow employees, and sought her support to influence others against the Union. Since Wyble like Cook is not a supervisor this clearly is a flagrant example of unlawful interrogation and interference with Section 7 rights in violation of Section 8(a)(1), and I so find. Kirshner 's undisputed statement to Holmes at an employee meeting shortly before the election to the effect that he knew of her union activity was clearly calculated to create an impression among the other employees that Kirshner had taken steps to apprise himself of their union support . It came near the end of the campaign in which the employees had been photographed taking union handbills, and in which Respondent had been holding a series of meetings expressing his opposition to the organization of employees, urging that they vote against the Union, and at which he had been soliciting their grievances in an obvious effort to convince them no union was needed . Making known to employees that the employer is aware that one of their number is a union supporter is reasonably calculated to create an impression that he may also know of the union activities of others, and such impression of surveillance I find to have interfered with employee rights and to be violative of Section 8(a)(1) of the Act. It stands undisputed that following the election Respon- dent called the voters whose ballots had been challenged to his office, and conducted a poll among them so that he might learn the outcome of the balloting before the challenges were opened . These employees were not told that no action or reprisal would be taken against them. It is well established that the polling of employees regarding their union support violates Section 8(a)(1) unless the employer meets certain safeguards, and unless it has legitimate reason for ascertaining a claim of majority. Neither of these requirements was met in the instant case, and under the circumstances the polling was violative of Section 8(a)(1) of the Act, and I so find.3 IV. THE OBJECTIONS AND THE CHALLENGES IN CASE 21-RC-12862 As set forth above this is a consolidated proceeding in which it was directed that a hearing be held to rule on evidence concerning both objections to the election and challenges to certain determinative ballots , as well as on the unfair labor practices alleged. Although the Union initially filed objections on several counts, some were withdrawn , and the only objection upon which a hearing was directed concerned the allegation of the Union that Respondent had "interrogated employees about their Union activities." It was conceded by the Union that all matters relating to this objection were litigated in connection with the evidence in the unfair labor practice proceeding, and no additional evidence was offered relating specifically to this objection alone. In the unfair labor practice case the General Counsel alleged the unlawful interrogation of employees Cook, Wyble, and Smith and the unlawful polling of the challenged voters. I Simplex Time Recorder Company, 165 NLRB 812, Holly Farm Poultry Company, 191 NLRB 44 Industries, Inc, 186 NLRB 210. 3 Struksnes Construction Co., Inc, 165 NLRB 1062. 2 Eagle Picher Industries, Inc, 171 NLRB 293, Reliance Electric BERTON KIRSHNER, INC. Since I found Smith to be a supervisor within the meaning of the Act, Respondent's interrogation of her would not be unlawful, and accordingly the circumstances thereof are not set forth above. The interrogation of Cook, while found unlawful, occurred before the filing of the petition. The polling took place after the election was over.4 As recited above, however, it stands undisputed that Kirshner, under the mistaken impression that Wyble was a supervisor, not only queued her in regard to her union sentiments but asked her about the union sentiments of her fellow employees, and sought her support in persuading them to abandon the Union. I found this to constitute a flagrant violation of Section 8(a)(1). Occurring as it did in the middle of the Union's organizational campaign, and within a week or two of the election, I deem it sufficient standing alone to justify setting aside the election. Accordingly I shall recommend that the election heretofore conducted be set aside and that a new election be directed by the Board. At the opening of the hearing counsel for Respondent and counsel for the Union stipulated that the challenges which the Union had made to seven ballots were valid and should be sustained. The General Counsel did not join in this stipulation. The parties further stipulated that their sole purpose in agreeing that the challenges might be sustained had been to resolve the issues raised without the necessity for taking testimony as to the status of each person challenged, and that the stipulation was without prejudice to receiving testimony as to the supervisory status of any one of those challenged should it he deemed necessary in connection with the unfair labor practice charges. As we have seen above considerable testimony was adduced in this connection, and certain findings ,have been made relative .to the supervisory status of some of the individuals challenged. The ballots of Grace Kelly, Richard Caldwell, Judy Cook, Betty Patterson, Jack Gregory, Beatrice Johnson, and Alice McCray were challenged by the Union on the ground that each was a supervisor. In the unfair labor practice proceeding considerable testimony was adduced concerning the supervisory status of department heads and warehouse supervisors. It is conceded that the superintend- ent and assistant superintendents were supervisors within the meaning of the Act. As set forth above, I found the warehouse supervisors to be statutory supervisors, and the department heads not to possess statutory supervisory status. Jack Gregory and Richard Caldwell were assistant superintendents in charge of the front and rear warehouses, respectively. Accordingly each was a supervisor within the meaning of the Act, and the challenges to the ballots of each must be sustained, and I shall so recommend. I also found above Alice McCray, supervisor in the front warehouse, to be a supervisor within the meaning of the Act. Accordingly I shall recommend that the challenge to her ballot be sustained. Judy Cook testified that she was a 4 In its brief Respondent makes reference to a conversation between employee Holmes and Kirshner which occurred in the latter s office a day or so before the election as a possible incident of interrogation The circumstances are recited above The General Counsel does not claim that what occurred on this occasion constituted unlawful interrogation As noted above this meeting occurred at Holmes' request, and her testimony with regard to her conversation with Kirshner does not signify that anything took 1087 department head. Accordingly I shall recommend that the challenge to her ballot be overruled. The record does not definitely establish the status of Grace Kelly, Betty Patterson, and Beatrice Johnson, no one of whom testified. It appears likely, however, that each one of them was a department head like Judy Cook. Assuming this to be the case I shall also recommend that the challenges to the ballots of each be overruled. Upon the basis of the entire record I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer as defined in Section 2(2) of the Act, and it is engaged in commerce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By photographing and thereby creating the impres- sion of surveillance, by unlawfully interrogating employees as to their union activities and those of their fellow employees, by soliciting grievances of employees, by making statements creating the impression of surveillance, and by granting economic benefits to encourage employees to forego support of the Union, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 4. 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 unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the entire record, the findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDERS Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Photographing the distribution of literature by the Union to its employees. (b) Interrogating employees as to their union activities and those of their fellow employees. (c) Soliciting grievances of employees. (d) Making statements creating the impression of surveillance of employees' union activities. place at this time which exceeded permissible bounds 5 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 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. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Promising or granting economic benefits in order to encourage employees to forego their support of a union. (f) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its Pico Rivera plant copies of the attached notice marked "Appendix."6 Copies of said notice on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED to the Board that the Union's objection to the election be sustained, and that the results of said election be set aside and a new election directed with the provisions of Section 102.69(e) of the Board's Rules and Regulations, Series 8, as amended, governing the filing of exceptions. IT IS FURTHER RECOMMENDED to the Board that in the event it be deemed necessary to count the challenges that the challenges to the ballots of Jack Gregory, Richard Caldwell. and Alice McCray be sustained, that the challenge to the ballot of Judy Cook be overruled, and that the challenges to the ballots of Grace Kelly, Betty Patterson, and Beatrice Johnson be overruled unless it appears that any one of them should possess statutory supervisory authority in accordance with the findings in the Decision. 6 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals United States Court of Appeals , the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board " Order of the National Labor Relations Board" shall be changed to read Copy with citationCopy as parenthetical citation