Bj'S Wholesale Club, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 611 (N.L.R.B. 1990)

BJ'S WHOLESALE CLUB 611
BJ's Wholesale Club, Inc. and United Food and
Commercial Workers Union, Local 27, AFL-
CIO, CLC. Cases 4-CA-17318, 4-CA-17386,
4-CA-17386-2, 4-CA-17435, and 4-RC-16783
January 31, 1990
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 11, 1989, Administrative Law Judge
Stephen J Gross issued the attached decision The
Respondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified, 2 and to adopt the recom-
mended Order The judge found that the Respond-
ent threatened to discipline or discharge Carmella
Dryden in violation of Section 8(a)(1) We agree
In March 1988, the Union began an organizing
campaign at the Respondent During that cam-
paign, employee Carmella Dryden actively sup-
ported the Union Several employees told Carl
Johnston, the Respondent's general manager, that
authorization cards were being solicited during
working time One employee told Johnston that
Dryden offered him an authorization card while
both were supposed to be working Johnston subse-
quently called Dryden into his office The Re-
spondent's operations manager, Joan Mosolovich,
was present as a witness At this meeting, Johnston
told Dryden that he had heard that she had solicit-
ed an employee while the employee was working
He then read from a "corrective interview" that
contained the following language
Hourly employees have complained that you
solicited them during working hours for non-
business reasons You are aware of company
policy of no solicitation as stated in orientation
and posted notices in the club You have been
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In the absence of exceptions, we adopt pro forma the judge's findings
concerning the objections and challenges However, the judge inadvert-
ently ordered that the Regional Director should open and count the chal-
lenged ballot of Daniel Moody We find that Moody's ballot should not
be opened and counted since the parties stipulated that Moody is not eli-
gible to vote
observed leaving your work station on April
18 and April 19 for these soliciting activities
You are not to solicit employees for any reason
during working hours What you do with your
personal time is your business but we will not tol-
erate more soliciting on company time Further
violation could lead to corrective action up to
and including termination You cannot take on
clock employees away from their work for so-
liciting reasons at any time [Emphasis added ]
After this meeting, proumon campaigning contin-
ued during breaktime Notwithstanding her inter-
view with Johnston and Mosolovich, Dryden at
least some of the time solicited in the breakroom of
the store during working hours at locations within
earshot of managers However, Dryden testified
that the door to the breakroom was closed Man-
agement did not criticize or discipline Dryden for
those activities
The judge found that, while certain of Johnston's
remarks were statements that he could properly
make, in the aggregate Johnston's remarks to
Dryden were confusing and ambiguous and were
uttered in the course of a disciplinary interview
He found that any employee leaving that meeting
with Johnston and Mosolovich would reasonably
have been fearful that he or she might be disci-
plined if the employee continued to solicit for the
Union during his or her paid breaks Accordingly,
the judge concluded that the Respondent violated
Section 8(a)(1) by threatening to discipline or dis-
charge Dryden As noted, we agree but, in view of
the Respondent's contention that this alleged viola-
tion was de minim's, we here elaborate on our rea-
sons for doing so
We note that in finding the violation the judge
stated that under prevailing Board precedent a "em-
ployers presumptively violate the Act if they tell
employees that they are precluded from soliciting
for the union 'during working hours' or 'on compa-
ny time' since both terms suggest that employees
are thereby being prevented from engaging in
union activities during their paid breaks" Our Way
had reinstated the standards of Essex International,
211 NLRB 749 (1974), for evaluating published no-
solicitation/no-distribution rules In Essex Interna-
tional, the Board set out the following schematic
for analyzing such rules
A rule prohibiting solicitation during "work
time" or "working time" is, in our opinion,
sufficiently clear to employees to justify re-
3 See Our Way, Inc , 268 NLRB 394 (1983) (discussion of the term
"working hours"), Alert Medical Transport, 276 NLRB 631, 663-664
(1985) (employer's use of the term "company time")
297 NLRB No 90
i
612 4 s DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I
wiring the party attempting to invalidate the
rule to show, by extrinsic evidence, that, in the
context of a particular case, the rule was com-
municated or applied in such a way as to
convey an intent to restrict or prohibit solicita-
tion during breaktime or other periods when
employees are not actively at work On the
other hand, in our opinion, a rule prohibiting so-
licitation during "working hours" is prima facie
susceptible of the interpretation that solicitation is
prohibited during all business hours and, thus,
invalid We would therefore require the em-
ployer to show by extrinsic evidence that, in
the context of a particular case, the "working
hours" rule was communicated or applied in
such a way as to convey an intent clearly to
permit solicitation during breaktime or other
periods when employees are not actively at
work [Emphasis added 211 NLRB at 750]
Essex International has two goals First, as an
evidentiary rule allocating burdens of proof, it
eased the Board's task in determining solicitation
rule violations that arise frequently but remain very
fact-driven Second, it established a prophylactic
rule enabling employers to have a degree of confi-
dence that their instructions, policies, and rules on
the subject would not be challenged Thus, the
phrases "working time" and "working hours" took
on important legal significance
In applying this standard here, we find that the
statement that Johnston read to Dryden unques-
tionably establishes a prima facie violation It pur-
ported to prohibit solicitation during "working
hours" It was therefore incumbent on the Re-
spondent to show that it would "permit solicitation
during breaktime or other periods when employees
are not actively at work" Essex International, 211
NLRB at 750 The statement taken as a whole does
not clearly convey that message, nor did the Re-
spondent offer any other evidence of clarifying
statements The fact that the statement was uttered
as a response to Dryden's improper solicitation
during working time does not dispel the statement's
broader implication that lawful solicitation may be
prohibited as well It is true that, following the dis-
ciplinary warning, Dryden did continue to solicit
in an apparently closed-door breakroom, which the
judge characterized as "within earshot of manag-
ers," and no further action was taken against her
Nonetheless, we find this evidence insufficient to
rebut the prima facie case under the standard of
Essex International and Our Way
Contrary to our dissenting colleague, we think
dismissal of this complaint allegation on the ground
that it is a "single isolated occasion" carries the
risk of short-circuiting the goals of the Essex Inter-
national rule, particularly its prophylactic purpose
In such circumstances, we think the judge was cor-
rect in finding the violation
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, BJ's Whole-
sale Club, Inc , Wilmington, Delaware, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
DIRECTION
IT IS DIRECTED that the Regional Director for
Region 4 shall, within 10 days from the date of this
decision, open and count the ballots of the employ-
ees listed below, and prepare and serve on the par-
ties a revised tally in Case 4-RC-16783 If the re-
vised tally reveals that the Union has received a
majority of the valid ballots cast, the Regional Di-
rector shall issue a certification of representative
However, if the revised tally shows that the Union
has not received a majority of the valid ballots
cast, the Regional Director shall certify that a ma-
jority of the valid ballots has not been cast for the
Union and that the Union is not the exclusive rep-
resentative of the members of the bargaining unit
Stacy Butcher Mary Jones
Hernan Caraballo Doris Matthews
Patricia Chase Patsy McGuckm
Evelyn Cook Janet Nowakowski
Bonnie Crossen Shirley Pennington
Kimberly Demko Steve Rohrer
Casey Eickmeyer Kerrie Ryan
Robert Jackson Warme Stewart
MEMBER CRACRAFT, dissenting in part
I disagree with my colleagues' conclusion that
Section 8(a)(1) was violated by a statement made to
employee Dryden In the entire circumstances of
this case, the remark to employee Dryden on a
single isolated occasion is insufficient to constitute
a violation of the Act Accordingly, I would dis-
miss the complaint in its entirety
Margarita Navarro-Rivera, Esq , for the General Counsel
Robert E Wachs, Esq (Wolf Block, Schorr & Sobs-
Cohen), of Philadelphia, Pennsylvania, for the Re-
spondent Employer
Michael F Tumolo, for the Charging Party Union
DECISION
I INTRODUCTION
STEPHEN J GROSS, Administrative Law Judge Re-
spondent BJ's Wholesale Club, Inc operates a chain of
BJ'S WHOLESALE CLUB 613
retail establishments All of the events at issue here oc-
curred between March and June 1988 at the New Castle,
Delaware facility of that chain (I will henceforth refer
to the New Castle facility as BJ's ) In March Local 27 of
the United Food and Commercial Workers (the Union)
began an organizing campaign at BJ's A few months
later, on June 17, the Board conducted an election
among BJ's employees pursuant to a Stipulated Election
Agreement 2 Of the 103 ballots cast, 39 were for and 42
were against representation by the Union There were 22
challenged ballots
During the course of the campaign the Union filed a
series of unfair labor practice charges against BJ's And
after the election the Union filed objections to BJ's con-
duct during the campaign Ultimately the Union's
charges and objections, and the challenges to the ballots,
led to a consolidated complaint and an order consolidat-
ing the objections and challenges with the unfair labor
practice allegations 3 I heard the matter in Wilmington,
Delaware, on December 5 through 9, 1988 The General
Counsel and Respondent have filed briefs 4
II WAS ROBERT JACKSON AN AGENT OF
RESPONDENT, AND, IF SO, DID JACKSON
UNLAWFULLY INTERROGATE AN EMPLOYEE
Personnel in BJ's receiving department unload trucks
bringing merchandise to BJ's, handle the clerical duties
associated with the receipt of the merchandise, and then
move the merchandise from BJ's receiving dock into
storage areas inside the facility At all rele:rant times
Robert Jackson was BJ's "receivmg supervisor" The
General Counsel claims that Jackson is an agent of Re-
spondent and that Jackson unlawfully interrogated a BJ's
employee Respondent admits that Jackson had a discus-
sion with a receiving department employee about the
Union But Respondent denies that what Jackson said
during that conversation may be attributed to Respond-
ent Respondent also argues that Jackson's remarks were
Respondent admits that It is an employer engaged in commerce for
purposes of the National Labor Relations Act (the Act), and that the
Union is a labor organization within the meaning of the Act
2 The unit All regular full-time and all regular part-time employees,
excluding managers, confidential employees, and guards There are about
115 employees in the unit
3 The procedural events were as follows
April 22—Union's charge in 4-CA-17318
April 25—Union's election petition
May 23—Union s charge in 4-CA-17386
May 31—Union's charge in 4-CA-17386-2
June 16—Union's charge in 4-CA-17435
June 17—Election
June 23—Complaint in 4-CA-17318 Issues
June 24—Union's objections to election
August 31—Report on objections and challenged ballots
Sept 13—Consolidated complaint Issues
Nov 16—Order further consolidating cases and scheduling con-
solidated hearing Issues
Dec 5—Amendment of the consolidated complaint (see tr 5)
Dec 7—Amendment of the consolidated complaint and withdraw-
al by the Union of Objection 5 (see Tr 370)
4 Respondent has filed an unopposed motion to correct the transcript
The motion is granted except that the proposed correction to p 370 is
changed to "grant the motion to amend the complaint and the request to
withdraw the objection The motion correctly notes that the parties stip-
ulated that the following persons were not eligible to vote in the June 17
election Baumgardt, Jones, Moody, and Payton
not unlawful even assuming that Jackson's remarks are
attributable to Respondent
The Conversation at Issue
Jackson called a part-time forklift operator, Larry Wil-
liams, into the receiving department office, and the two
proceeded to discuss the union campaign In the course
of the discussion Jackson asked Williams if Williams had
signed an authorization card When Williams said that he
had not, Jackson asked him if he knew anyone who had
signed a card and if he knew anyone who was passing
cards around Williams responded "no" to both ques-
tions About that time Jackson noticed that another em-
ployee, outside the office, was listening to the conversa-
tion through the office's open window Jackson slammed
the window shut
Two witnesses testified about that conversation Jack-
son and the employee who overheard it Williams did
not testify
The following section of this decision considers Jack-
son's role at BJ's It concludes that Jackson was not an
agent of Respondent for purposes of obtaining informa-
tion about the Union and that, moreover, no employee
could reasonably believe that Jackson was an agent of
Respondent for such purposes Since Jackson's remarks
are accordingly not attributable to Respondent, I need
not resolve the question of whether Jackson's questions
of Williams would have violated the Act had they been
uttered by an agent of Respondent
Jackson's Role at BJ's
BJ's receiving department was headed by the receiving
department manager who, all parties agree, was a
member of Respondent's management 5 The other per-
sonnel m the department were the receiving supervisor
(Jackson), a clencal employee, four "receivers" (who un-
loaded trucks), and about a half-dozen forklift operators
Jackson described the job of receiving supervisor as
one of assisting the receiving department manager and
making "sure that the overall [receiving] operation was
running smoothly" That meant that Jackson scheduled
truck arrivals, determined which bays the arriving trucks
ihould use, told the receivers which trucks they were to
unload, ordered the receivers to do such tasks as
straightening piles of pallets, relayed orders from the re-
ceiving manager to the forklift operators when the man-
ager had to leave the receiving area, and checked on the
paperwork produced by the receivers, the receiving de-
partment clerical, and quality control employees when
they worked in the receiving department
The receivers went to Jackson with questions about
paperwork, about whether a pallet was acceptable or
not, about where to receive an unscheduled truck, and
the like When a receiver submitted incorrect paperwork,
Jackson told the receiver about it On at least one occa-
sion Jackson was present when the receiving department
5 BJ's promoted Jackson to receiving department manager shortly after
the election, and It is clear that when Jackson testified he considered him-
self aligned with management
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
manager disciplined a receiver, and on that occasion the
manager asked Jackson "if he had anything to add"
Jackson spent most of his time on paperwork, sitting at
the same table in the receiving department's office as the
clerical (The manager had a desk of his own ) But Jack-
son spent some time on the dock, and occasionally
would help unload a truck—"when we had an overdose
of trucks," as one employee put it
Was Jackson a "supervisor," within the meaning of the
National Labor Relations Act (the Act) Jackson had the
title of "receiving supervisor," of course But a title be-
stowed by an employer cannot determine status for pur-
poses of the Act Rather, that depends on the authority
of the individual, mapped against the standards set out in
Section 2(11) of the Act See Bakers of Paris, Inc , 288
NLRB 991, 1007 (1988)
It is evident, however, that Jackson was not a supervi-
sor for purposes of the Act Jackson was not authorized
to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, or reward any BJ's employee, or to adjust
any employee's grievance, or "effectively to recom-
mend" any of those actions Jackson did "direct" em-
ployees But telling employees which truck to unload,
and the like, does not amount to "responsible" direction
of employees within the meaning of Section 2(11) E g,
Sears, Roebuck & Co, 292 NLRB 753, 754 (1989) Final-
ly, the one instance in which Jackson participated in the
receiving manager's discipline of an employee does not
add up to evidence of authority on Jackson's part to ef-
fectively recommend discipline of employees
Was Jackson an agent, or apparent agent, of Respondent
even though he was not a supervisor* The question is
whether employees of BJ's could reasonably believe that
Jackson was acting on management's behalf when he
questioned Williams about union activity E g, Ohmite
Mfg Co, 290 NLRB 1036 (1988), Futuramik Industries,
279 NLRB 185 (1986)
Respondent chose to label Jackson's position "receiv-
ing supervisor" And in everyday parlance "supervisor"
means a person who directs and oversees the work of
others Moreover Jackson did tell receivers what work
to do, his wage rate was considerably higher than the re-
ceivers', Jackson did correct them, he served as interme-
diary for some purposes between the receiving manager
and the other employees in the receiving department,
and there is that one occasion in which the receiving
manager asked Jackson to participate in the disciplining
of an employee
But Jackson testified that management did not ask
Jackson to speak to employees about the Union's cam-
paign and did not ask Jackson for information about the
campaign that he might have gleaned from employees
And that testimony stands unrebutted
Moreover many of the attributes of the receiving su-
pervisor position proclaimed Jackson's lack of connec-
tion with management He did not go to management
meetings He punched the same timeclock the other re-
ceiving department employees did, and he worked the
same hours He received an hourly wage, and that wage,
while higher than the receivers', was the same as the
forklift operators
The conversation at issue was between Jackson and a
forklift operator Thus we need not concern ourselves
with Jackson's relationship with BJ's receivers And
while Jackson did sometimes serve as intermediary be-
tween the receiving manager and the forklift operators,
Jackson and forklift operators received the same rate of
pay, and Jackson ordinarily did not give even trivial di-
rections to forklift operators Moreover there is no indi-
cation that forklift operators ever came to Jackson with
questions, or that Jackson ever corrected anything they
did Under these circumstances I cannot conclude that
any BJ's employee could reasonably believe that Jackson
"spoke for management" 6 when Jackson questioned Wil-
liams: See Adair Standish Corp, 290 NLRB 317 (1988)
t
III CARMELLA DRYDEN'S MEETING WITH CARL
JOHNSTON AND JOAN MOSOLOVICH
During the period at issue in this proceeding Carmella
Dryden was a BJ's employee She actively supported the
Union's campaign Carl Johnston is the general manager
of BJ's Several employees told Johnston that authoriza-
tion cards were being solicited during working time
And one employee told Johnston that Dryden offered
him an authorization card while both were supposed to
be working
Johnston responded by calling Dryden into his office
on April 19 Johnston had BJ's operations manager, Joan
Mosolovich, join Dryden and him, as a witness 7 John-
ston started the conversation by telling Dryden that he
had heard that she had solicited an employee while the
employee was working He then read from a "corrective
interview" that contained the following language
Hourly employees have complained that you so-
licited them during working hours for nonbusmess
reasons You are aware of company policy of no so-
licitation as stated in orientation and posted notices
in the club You have been observed leaving your
work station on April 18 and April 19 for these so-
liciting activities
You are not to solicit employees for any reason
during working hours What you do with your per-
sonal time is your business but we will not tolerate
more soliciting on company time Further violation
could lead to corrective action up to and including
termination You cannot take on clock employees
away from their work for soliciting reasons at any
time
Read literally, at least, that statement is a confusing
one BJ's employees have two breaks during the day a
45-minute lunchbreak for which they clock out and back
in, and a shorter break during which they do not clock
out At one point the statement specifies that employees
"are not to solicit employees for any reason during
working hours," and at another point suggests the same
thing—again using the term "working hours" Standing
6 Ohnute, supra at 1036
7 Respondent admits that both Johnston and Mosolovich are Ells su-
pervisors, within the meaning of the Act, and that both are agents of Re-
spondent
BJ'S WHOLESALE CLUB 615
alone that could only mean that employees could not so-
licit for the Union even during their off-the-clock lunch-
breaks, much less during their on-the-clock breaks But
elsewhere the statement says "what you do with your
personal time is your business but we will not tolerate
more soliciting on company time" That surely author-
izes union activity during employee lunch periods But it
appears to forbid such activity during on-the-clock
breaks And arguably all of that is modified by the state-
ment's reference to Dryden having "been observed leav-
ing your work station for soliciting activities"
and by the last sentence in the statement "You cannot
take on clock employees away from their work for solic-
iting reasons at any time"
In any event Dryden responded by saying that she did
not leave her work station during her working time to
solicit for the Union, that she engaged in union activity
only on her breaks Johnston asked Dryden to sign the
corrective interview (to show that it had been read to
her) She refused Dryden asked for a copy of the cor-
rective interview Johnston refused, and the meeting
ended 8
Dryden testified that she understood Johnston to have
been saying that—in her words
I can do what I want, but not in BJ's Wholesale
Club He doesn't care what I do on the outside But
as far as in Brs, I will not solicit on my break times
and lunch time What I do on my own time outside
[13J's] is my own business, and that is how it was
put to me
I credit that testimony as expressing Dryden's under-
standing of what Johnston said to her But as my re-
counting of the facts of the interview indicates, Dryden
misunderstood Johnston in that Johnston drew no inside-
the-store, outside-the-store distinctions
Prior to Dryden's meeting with Johnston and Mosolo-
vich, Dryden and other employees had campaigned vig-
orously for the Union, often doing so in the store while
they were on their breaks Management did not Interfere
with those activities After that meeting prounion cam-
paigning in the store during breaks continued Moreover
notwithstanding her interview with Johnston and Moso-
lovich, at least some of the time Dryden solicited in the
breakroom of the store during working hours at loca-
tions within earshot of managers—although, said
Dryden, the door to the breakroom was closed Manage-
ment did not criticize or discipline Dryden for those ac-
tivities
Management's Interview with Dryden—Conclusion
The Act ordinarily protects the solicitation of union
authorization cards by employees during any times when
they properly are not actually engaged in work E g,
National Micronetics, 277 NLRB 993, 1002 (1985) Thus
employers presumptively violate the Act if they tell em-
ployees that they are precluded from soliciting for the
8 Dryden s recounting of events often seemed to be obviously maccu
rate I accordingly have based my factual findings almost entirely on the
testimony of Johnston and Mosolovich, rather than on Dryden's
union "during working hours," or "on company time,"
since both terms suggest that employees are thereby
being prevented from engaging in union activities during
their paid breaks Our Way, Inc , 268 NLRB 394 (1983),
Alert Medical Transport, 276 NLRB 631, 663-664 (1985)
Here, moreover, Johnston told Dryden that she would
be disciplined for such activity—perhaps fired It is true
that Johnston also told Dryden that she could not "take
on clock employees away from their work" and that
Dryden had "been observed leaving her work station,"
both of which statements Johnston could properly make
But all things considered, Johnston's remarks were con-
fusing and ambiguous, and were uttered in the course of
a disciplinary interview I think that any employee leav-
ing that meeting with Johnston and Mosolovich would
reasonably have been fearful that he or she might be dis-
ciplined if the employee continued to solicit for the
Union during his or her paid breaks I accordingly con-
clude that Respondent thereby violated Section 8(a)(1) of
the Act in that Respondent threatened to discipline
Dryden for engaging in protected activity
I cannot conclude, however, that Johnston's state-
ments to Dryden amounted to the promulgation of "an
oral policy prohibiting solicitation by employees during
working hours "(Amended par 5 of the complaint )
Johnston did state such a policy to Dryden, as Just dis-
cussed But that statement of policy was ambiguous, as
also Just discussed And BJ's did not promulgate it gen-
erally, it was uttered only once, in a private meeting
with one employee Moreover BJ's never enforced any
such policy Even in Dryden's case, Dryden was disci-
plined for engaging in union activity when she should
have been working, not for doing so during a break And
other BJ's employees were well aware that they could
solicit for the Union during their lunch periods and their
breaks
I accordingly will recommend dismissal of the allega-
tion that Respondent maintained an unlawful policy con-
cerning solicitation See Standard Motor Products, 265
NLRB 482, 484 (1982)
" IV MOSOLOVICH'S TALK WITH BARSKY
As touched on earlier, Joan Mosolovich is Brs oper-
ations manager Harry Barsky is a BJ's employee—he
carried out custodial and maintenance duties at Brs He
was, and is, ardently proumon Barsky actively and
openly solicited authorization cards in Brs facility
during his breaktimes
In May four BJ's employees complained to Mosolo-
vich that Barsky had threatened them Two employees
told Mosolovich that Barsky had threatened them "with
his opinions" Another employee told Mosolovich that
Barsky had threatened his girlfriend about the Union
And the fourth employee told Mosolovich that Barsky
had said that "he had better watch his back"
Mosolovich responded by calling Barsky into her
office and telling him that some employees had com-
plained that he had threatened them Barsky got upset
He denied that he had ever threatened anyone and asked
who had voiced the complaints Mosolovich refused to
give Barsky any names and went on to suggest that
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Barsky communicate his views to other employees at
lower decibel levels (Mosolovich apparently used the
word quiet in the course of this part of their conversa
tion That led Barsky to think that Mosolovich was
saying let s keep this quiet )
On the witness stand Barsky again denied that he had
ever threatened anybody about anything
Barsky—Conclusion
If Barsky had in fact threatened employees then of
course, it is clear that Mosolovich was justified in speak
mg to Barsky about those threats BJ s indeed could
have disciplined Barsky for such threats And I am con
vinced that Mosolovich honestly and reasonably believed
that Barsky had behaved in such a way as to lead several
employees to believe, reasonably that Barsky was threat
emng them That being the case, Mosolovich s remarks
to Barsky were lawful, even treating them as disciph
nary, unless the General Counsel proved that Barsky did
not in fact threaten anyone E g Magnolia Manor Nurs
mg Home, 284 NLRB 825 (1987), K & K Transportation
Corp, 262 NLRB 1481, 1494 (1982)
That brings us to Barsky s denial that he threatened
anyone I do not credit that denial For one thing he
demonstrated that he was willing to he 9 More impor
tantly there was something about Barsky that leads me
to think that he could indeed appear threatening even
when he did not Intend to and was not aware that he
looked threatening where a passionate disagreement de
veloped during a conversation between Barsky and
anyone else
I accordingly will recommend that paragraph 10 of
the complaint, relating to the Barsky Mosolovich con
versation be dismissed
Even if I were to credit Barsky s claim that he did not
utter anything that could reasonably have been heard as
a threat moreover I would still recommend that that
paragraph of the complaint be dismissed Mosolovich
had good reason to talk to Barsky about his apparent
threats There is no hint in the record that Mosolovich s
decision to call Barsky into her office was prompted by
any union animus on Mosolovich s part or that Mosolo
vich s intent was to discourage the employee from sup
porting and assisting the Union (in the words of the
complaint) In Mosolovich s talk with Barsky, neither she
nor Barsky used the word union And, most impor
tantly Mosolovich did not discipline Barsky—nothing in
what Mosolovich said to Barsky amounted to discipline,
and Mosolovich made no entry in Barsky s personnel
record about the incident
9 Barsky claimed without qualification that he did not know the
names of employees he talked to about the Union But the record shows
that he did know their names I appreciate that Barsky might well have
testified that way because he felt that he had at least impliedly promised
those employees that he would not divulge their names Nonetheless
Barsky unhesitatingly testified to something that he knew was not the
case
V IRWIN RITZ S MEETINGS WITH EMPLOYEES
At all relevant times Irwin Ritz was vice president for
employee relations for Zayre Corporation Respondent
was a subsidiary of Zayre 10
Ritz visited BJ s on four occasions during the Union s
organizing campaign and met with groups of employees
on three of those visits (BJ s management called groups
of 10 to 15 employees into the employee lounge, where
Ritz would speak to them )
The General Counsel alleges that at at least some of
those meetings Ritz threatened the employees that Re
spondent would not bargain with the Union even if the
employees selected the Union to be their collective bar
gaining representative
The General Counsel s allegation is supported, to some
extent, by the testimony of employees Ashe, Dryden,
and Moody Respondent s witnesses Ritz and Johnston
on the other hand testified that Ritz at no time made
any such threat
I credit Ritz and Johnston not Ashe, Dryden or
Moody (I do not doubt the sincerity of the employees
testimony Rather I think the three either misunderstood
or misremembered what Ritz said ) I thus conclude that
the complaint s allegation pertaining to Ritz meetings
with employees should be dismissed
VI BJ S DISCHARGE OF EMILY WALKER11
Emilyn Walker began working at BJ s in late April
She began working as a cashier there on May 16 During
the period we are concerned with, BJ s policy was to
discipline cashiers for daily overages or shortages—BJ's
calls them variances —of $5 or more Under that
policy
1 The first variance resulted in an oral warning
2 A second variance within 30 days of the first result
ed in a written warning
3 BJ s put the cashiers on probation if they had a
third variance within 30 days of the first
4 BJ s fired cashiers who had variances during that
probationary period 12
The record shows that ars pursued that policy disci
plimng and firing cashiers in accordance with it
Walker had a $10 shortage on May 28 and a $5 short
age on May 29 On May 30 Walker received a written
warning which stated that another variance within 30
days would mean probation On June 4 Walker had an
overage of $9 98 BJ s put her on probation On June 7
she had a shortage of $5 In accordance with its policy
on such matters BJ s fired Walker on June 10
The General Counsel claims that BJ s fired Walker for
her union activity which amounted to wearing a union
pin— Vote Yes—for a couple weeks starting in mid
May In support of that position Walker claims that at
the time BJ s fired her, her supervisor said in Walker s
10 The relationship between Zayre and Respondent has since changed
See Tr 600 But the Issues in this proceeding are not affected by that
change
" Walker married subsequent to the events at Issue here and now uses
her husband s name Starkey
12 When Walker became a cashier she signed a statement acknowledg
mg that she was aware of that policy
'HI'S WHOLESALE CLUB 617
words, "if it wasn't for the Union, she probably would
have kept me"
I think that Walker testified honestly about the inci-
dent—but that Walker's recollection is faulty I credit
Respondent's witnesses who testified that Walker was
fired solely because of her mistakes as a cashier, and that
the conversation between Walker and her supervisor at
the time she was fired related exclusively to BJ's cashier
policies, to Walker's variances, and to expressions of
sympathy that did not include references to the Union
I accordingly conclude that Respondent's discharge of
Walker did not violate the Act
VII THE CHALLENGES AND OBJECTIONS
Challenges
Ballots of the following 22 employees were chal-
lenged
Stacy Butcher Doris Matthews
Hernan Caraballo Patsy McGuckin
Patricia Chase Janet Nowakowski
Evelyn Cook Shirley Pennington
Bonnie Crossen Steve Rohrer
Kimberly Demko Kerne Ryan
Casey Eickmeyer Warme Stewart
Robert Jackson Emily Walker
Mary Jones Maureen Walsh
Stipulations have taken care of all but two of the chal-
lenges Under the stipulations, the persons on the above
list who were eligible to cast ballots at the June election
were Butcher, Caraballo, Chase, Cook, Crossen, Demko,
Eickmeyer, Jones, Matthews, McGuckm, Nowakowski,
Pennington, Rohrer, Ryan, and Stewart
The persons on the above list who, according to the
parties' stipulations, were not eligible to cast ballots
were Baumgardt, Cullen, Moody, Payton, and Walsh 13
The remaining two ballots were cast by Jackson and
by Walker The Union challenged Jackson's ballot on the
ground that he was a supervisor In light of my discus-
sion of Jackson's employee status in part II of this deci-
sion, I conclude that his ballot should be counted As for
Walker, BJ's challenged her ballot on the ground that
she had been discharged pnor to the election The Union
contends, of course, that notwithstanding that discharge,
Walker was eligible to vote because the discharge was
unlawful Since I have concluded that the discharge was
not unlawful, I conclude that Walker was not eligible to
cast a ballot
Objections
Seven objections are at issue, numbers 2, 3, 4, 6, 10,
13, and 17 14
'' Baumgardt and Moody were no longer BJ's employees at the time
of the election Payton had not become a RN employee on the eligibility
cutoff date Cullen was a guard Walsh was a confidential employee
14 The Regional Director's report refers to an additional Objection 5
But during the hearing the Union withdrew that objection (see fns 3 and
4, above)
Objection 6 relates to the Barsky-Mosolovich incident
According to that objection
On or about May 16, 1988, the Employer
began telling known Union sympathizers to stop so-
liciting other employees for Union support, and tell-
ing known Union sympathizers they would be fired
if they don't stop soliciting other employees for
Union support, and by continually -reprimanding
and harassing known Union sympathizers for solicit-
ing other employees for Union support
As this decision's discussion of the Barsky-Mosolovich
incident indicates, my recommendation is that Objection
6 should be dismissed
Objection 10 claims that Brs fired Emily Walker be-
cause of her support for the Union I recommend that
this objection be dismissed See part VI, above
Objection 13 claims that BJ's management told em-
ployees that if the Union won the election I recommend
that that objection be dismissed See part V of this deci-
sion, above (relating to Ritz' meetings with employees)
Objection 17 claims that agents of the Employer told
employees that their wages would be cut if the Union
won the election While some of the testimony of em-
ployees Dryden and Moody supports that objection, I do
not credit it In some of Ritz' meetings with employees,
Ritz did refer to the possibility of reductions in benefits
in the event that the Union won the election As Ritz put
it, the Union, in the course of bargaining with Respond-
ent, might be willing to give up benefits the employees
already had in order to get something that was important
to the Union, like a checkoff clause Ritz gave as an ex-
ample a Zayre's collective-bargaining contract with a
newly selected union that decreased the amount employ-
ees could receive for outstanding performance But Ritz
was entitled to make that argument I accordingly over-
rule Objection 17
The remaining three objections-2, 3, and 4—relate to
Johnston's discipline of Dryden (see part III of this deci-
sion, above) According to those objections
BJ's told employees that they could not at any time
solicit union cards on the Company's property (Objec-
tion 2)
Brs told "certain known union supporters that if the
company even hears that they have been soliciting
union cards the employees will be fired" (Objection 3)
On about April 18 BJ's began disciplining employees
because they were soliciting union cards (Objection 4)
The record fails to support any of those claims The
record does show that Johnston did unlawfully, albeit
ambiguously, forbid Dryden to "solicit employees for
any reason during working hours" or "on company
time" But Johnston uttered those words on April 19
Since the Union did not file its election petition until
April 25, Johnston's conduct occurred outside the criti-
cal period It thus "cannot provide a basis for sustaining
an objection" Data Technology Corp, 281 NLRB 1005,
1007 (1986), Ideal Electric Co, 134 NLRB 1275 (1961) 15
' 5 Even had the Union filed its election petition prior to the Johnston-
Dryden incident I would conclude that, even though the vote could con
Continued
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
The accompanying recommended Order requires Re-
spondent to cease and desist from engaging in the kind of
conduct found unlawful in part III of this decision, and
requires Respondent to post appropriate notices
ORDER' 6
The Respondent, BJ's Wholesale Club, Inc , New
Castle, Delaware, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Threatening to discipline or discharge employees
for engaging in activity, when the employees are proper-
ly not working, in support of Local 27 of the United
Food and Commercial Workers, or any other union
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its facility in New Castle, Delaware, copies
of the attached notice marked "Appendix " 1 7 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent's rep-
resentative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found
IT IS HEREBY DIRECTED that, as part of his investiga-
tion in Case 4-RC-16783 to ascertain representatives for
the purpose of collective bargaining with the Employer,
the Regional Director for Region 4 shall, within 10 days
ceivably turn out to be very close (see Keith Austin Inc , 288 NLRB 646
(1988)), the incident did not require setting aside the election in view of
the nature of the incident, the length of time between its occurrence and
the election, the vigor of the Union's election campaign, the lack of any
evidence of dissemination of Johnston's remarks, and the size of the unit
See, e g, Clark Equipment Co, 278 NLRB 498 (1986) , Metz Metalurgical
Corp, 270 NLRB 89 (1984), General Felt Industries, 269 NLRB 474
(1984), Caron International, 246 NLRB 1120 (1979), Coca-Cola Bottling
Co, 232 NLRB 717 (1977)
16 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
17 If 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 Nation-
al Labor Relations Board' shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
from the date of this Direction, open and count the bal-
lots of the employees listed below and thereafter prepare
and cause to be served on the parties a revised tally of
ballots, including in that tally the count of the ballots of
such employees If, according to the revised tally, the
Union receives a majority of the valid ballots cast, the
Regional Director shall certify it as the exclusive bar-
gaining representative of the employees in the appropri-
ate unit Otherwise, the Regional Director shall certify
that a majority of the valid ballots has not been cast for
the Union and that the Union is not the exclusive repre-
sentative of the members of the bargaining unit
Stacy Butcher Dons Matthews
Hernan Caraballo Patsy McGuclun
Patricia Chase Daniel Moody
Evelyn Cook Janet Nowakowski
Bonnie Crossen Shirley Pennington
Kimberly Demko Steve Rohrer
Casey Eickmeyer Kerrie Ryan
Robert Jackson Warm Stewart
Mary Jones
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
You have the right to engage in union activities any
time you (and any other employees with whom you are
communicating) properly are not working WE WILL
NOT threaten to discipline or discharge you for doing
that
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
that Section 7 of the National Labor Relations Act guar-
antees you
WE WILL permit you to engage in activity supporting
or opposing Local 27, or any other union, at any time
you and those with whom you are communicating are
properly not working
RT's WHOLESALE CLUB