Bon Marche

National Labor Relations Board - Board Decisions

Aug 11, 1992

308 N.L.R.B. 184 (N.L.R.B. 1992)

184
308 NLRB No. 39
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We find that the totality of the evidence here supports the judge’s
findings that the Respondent coercively interrogated employee Holly
Kelley in violation of Sec. 8(a)(1) of the Act. We particularly note
that the evidence shows a pattern of interrogations involving Kelley,
that Kelley was not a known union adherent at the time they oc-
curred, and that these interrogations did not occur in a context free
from other unfair labor practices.
2 The judge stated in his decision that Store Managers Tom Good-
man and John Doll, Store Operations Manager Julie Stengem, and
Laura King, Kelley’s immediate supervisor at the time, were present
when the Respondent unlawfully reprimanded Kelley for certain re-
marks she made to another employee. Although the record shows
that Stengem and King were the only supervisors who attended that
meeting, our correction of this misstatement does not affect the
judge’s conclusion that the Respondent’s conduct violated the Act.
3 In finding that Kelley’s discharge violated the Act, we do not
rely on the the 10th paragraph of the judge’s ‘‘Analysis and Conclu-
sions’’ in which he concluded ‘‘[i]t is significant that the written
warning which Hartmann gave to Kelley on July 28 was unlike other
warnings that Hartmann had previously issued to other employees.’’
Additionally, the judge stated in his decision that the Respondent
has an alarm system that protects the cash office where Kelley
worked. The record shows, however, that the security system the
judge was referring to covers only the cash vault within that office.
Although it is clear that the alarm protecting the vault would not
cover the cash drawer where, in some instances, Kelley and other
employees inadvertently left the Respondent’s money at the end of
their shifts, we note Kelley’s testimony that it was her understanding
that the Respondent had another alarm system which protected the
entrances to its facility. In any event, we agree with the judge that
Kelley’s union activity and not her failure to remove money from
the cash drawer was the motivating factor in the Respondent’s deci-
sion to discharge her.
4 All dates are in 1990 unless otherwise noted.
Allied Stores Corporation d/b/a The Bon Marche
and United Food and Commercial Workers
Union, Local No. 367. Cases 19–CA–20829, 19–
CA–21154, 19–CA–21211–1 and 2, and 19–RC–
12155
August 11, 1992
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 28, 1991, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
We adopt the judge’s findings that the Respondent
violated Section 8(a)(1) of the Act by coercively inter-
rogating employees,1 by creating the impression that
employees’ union activities were under surveillance, by
promulgating and enforcing an unlawful bulletin board
policy prohibiting the posting of union-related material,
and by reprimanding2 and issuing a written warning to
employee Holly Kelley. Although we also agree with
the judge that the Respondent unlawfully discharged
Kelley,3 for the reasons set forth below we reverse his
finding that the Respondent further violated Section
8(a)(3) by failing to provide Kelley with additional
hours as a rover at the Respondent’s department store.
Finally, as discussed fully below, we affirm the judge’s
recommendation that the unfair labor practices the Re-
spondent committed during the critical period were
sufficient to warrant setting aside the election in the
representation case.
1. The evidence shows that during the election cam-
paign Kelley worked as an hourly employee in the
cash office of the Respondent’s department store. On
March 16, 1990,4 the Respondent’s store personnel
manager, Sharon Hartmann, informed Kelley that the
Respondent was reducing her hours because another
employee in her department with greater seniority had
requested additional hours of work. No exceptions
were filed to the judge’s finding that the Respondent’s
action did not violate the Act. During this conversa-
tion, Kelley asked Hartmann if she could work addi-
tional hours as a ‘‘rover,’’ which is a sales associate
who floats from department to department within the
Respondent’s store. Although there is an unresolved
conflict between Kelley’s and Hartmann’s testimony as
to the response that Hartmann made, they agree that
Hartmann generally said that the Respondent would at-
tempt to accommodate Kelley’s request. Thereafter, ac-
cording to the varying testimony that Kelley gave,
Kelley worked between 1 and 10 shifts as a rover from
March until July when she resumed working about 40
hours per week in the cash office.
The judge found that the Respondent afforded
Kelley, a known union adherent, discriminatory treat-
ment by failing to give her additional hours as a rover.
Because the evidence showed that during the period
Kelley was seeking additional hours the Respondent
hired between 5 and 12 new employees to work part-
time as rovers on its sales floor, the judge found that
the Respondent had not treated Kelley in accordance
with its admitted policy of giving its more senior em-
ployees a scheduling preference. He also relied on evi-
dence that a department supervisor had told Kelley in
May, while she was working as a rover, that manage-
ment was reluctant to assign her more hours in that ca-
pacity because it feared that, in light of her cash office
experience, she would ‘‘count down’’ (steal money
from) the sales registers. The judge stressed that the
Respondent presented no evidence to substantiate that
suspicion. Thus, based on the conflicting reasons he
found that the Respondent offered to justify its failure
to assign Kelley additional hours and the evidence that
185BON MARCHE
5 Because of our disposition of this issue, we find it unnecessary
to reach the Respondent’s contention that the complaint was not suf-
ficiently broad to cover the violation that the judge found.
6 The Respondent’s other unfair labor practices occurred either be-
fore the Union filed the representation petition or subsequent to the
May 18, 1990 election. Further, although Goodman’s interrogation of
Kelley occurred on March 7, 1990, which was the same day that the
Union filed the instant petition, we note that the Respondent has
failed to establish here that its unlawful conduct preceded the filing
of the petition.
7 Contrary to our dissenting colleague, we do not find that the Pe-
titioner’s alleged ability to communicate with the eligible voters dur-
ing the election campaign has a significant bearing on whether the
Respondent’s elimination of unfettered access to its bulletin board
tainted the election. We conclude that the Respondent’s modification
of its bulletin board policy had a coercive impact on the election re-
sults in part because it deprived the unit employees of a benefit they
enjoyed before the organizing campaign began and necessarily hin-
dered communications between the voters themselves during the crit-
ical period.
8 Other cases cited by the Respondent in this connection are also
clearly distinguishable. In McIndustries, Inc., 224 NLRB 1298,
1301–1304 (1976), the sole critical period violation was a super-
visor’s statement on one occasion to union handbillers that they
should move several feet back (off company property) while distrib-
uting handbills; one handbiller actually did so while the others re-
mained in place. In Accurate Products, 170 NLRB 1517, 1524
(1968), the Board adopted a finding that an overbroad no-
solicitation/no-distribution rule was not objectionable because it had
been on the books for 8 years, had not been protested by the union
during three previous elections, and was not in fact forced. (The
election was, however, set aside on other grounds. Id. at 1526.) In
Continued
there was additional work available which newly hired
employees were performing, the judge found that the
Respondent discriminated against Kelley in the assign-
ment of rover hours.
Contrary to the judge, we do not find that the Re-
spondent’s failure to assign Kelley more rover hours
violated the Act. There is no evidence here that the
Respondent has a practice of assigning an employee
rover hours to compensate for any reduction in hours
worked within the employee’s own department. Al-
though the judge stressed that the Respondent departed
from its seniority policy in hiring new rover employees
while Kelley was working reduced hours, we note the
lack of evidence showing that the Respondent’s senior-
ity policy applied beyond departmental lines. The
record also fails to establish that the Respondent re-
fused to assign Kelley rover hours when she requested
them following her March 16 conversation with Hart-
mann. Indeed, according to Kelley’s own testimony,
the Respondent assigned her to work a shift as a rover
in the only instance that she called the Respondent
specifically requesting that work. Furthermore, Kelley
admitted that she may have received as many as 10
rover shift assignments, and this is not clearly incom-
patible with Hartmann’s vague promise that Kelley
could possibly be allowed to pick up extra hours as a
rover. Finally, we conclude that the low-level super-
visor’s statement to Kelley suggesting that manage-
ment questioned her integrity provides no basis for
finding discrimination here in the absence of a link be-
tween that degrading comment and Kelley’s union ac-
tivity. Therefore, although we agree with the judge that
the Respondent has discriminated against Kelley in
other respects, we do not find that there is sufficient
evidence here to establish that the Respondent violated
the Act by failing to assign Kelley additional hours of
work.5
2. We have found that during the critical period the
Respondent violated Section 8(a)(1) of the Act by pro-
mulgating and enforcing an unlawful policy restricting
the use of its lunchroom bulletin board and by Store
Manager Tom Goodman’s coercive interrogation of
employee Kelley.6 Regarding the Respondent’s bulletin
board policy, the evidence shows that before the ad-
vent of the Union the Respondent permitted its em-
ployees to use the bulletin board to advertise personal
items for sale and for other announcements. After the
organizing campaign began, the Respondent prohibited
employees from posting any literature that was unre-
lated to their work. Goodman told employees during a
meeting that ‘‘this was his house, and . . . you cannot
put anything you want up [on the bulletin board]; you
have to have our permission.’’ Employee Kerry M.
Kinville gave uncontroverted testimony that on two oc-
casions during the campaign she observed management
officials removing prounion literature she had posted
on the lunchroom bulletin board. The Respondent’s
change in policy violated Section 8(a)(1) as the judge
found and clearly affected the entire bargaining unit
that the Union sought to represent.7
The Respondent has argued, citing Heartland of
Keyser, 275 NLRB 168 (1985), that conduct of this na-
ture without more is insufficient to justify setting aside
the election. In rejecting the Respondent’s contention,
we note that Heartland of Keyser involved a new em-
ployer which, in the absence of disparate enforcement,
was free to set its own policies about the use of its
bulletin boards and that about 3 weeks before the elec-
tion there the employer began allowing all literature to
be posted on its bulletin board for a reasonable period
of time. Thus, Heartland of Keyser did not involve an
employer which, as here, was found to have changed
its bulletin board policy in response to the union orga-
nizing campaign. Furthermore, unlike the employer
there, the Respondent has engaged in other conduct
that may have interfered with the election results. We
stress in this regard that the Respondent’s store man-
ager, who was its highest ranking official at the facil-
ity, interrogated employee Kelley about her union ac-
tivities and, as the judge found, during this conversa-
tion, ‘‘by obvious implication, made it clear to her that
a promotion to a managerial position [Kelley was seek-
ing] would be more likely in the event she elected to
oppose the union.’’8
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
G & H Towing Co., 168 NLRB 589 (1967), the only critical period
interference with solicitation was a refusal to allow a particular
Teamsters organizer to engage in off-duty, on-premises solicitation;
the Board noted that Teamsters literature was freely posted on the
bulletin boards. Id. at 592. The only other critical period misconduct
was a somewhat ambiguous threat by a supervisor supporting one of
two competing unions made to a supervisor supporting the other
union, in the presence of employees, and an instance of picket line
misconduct by one union that occurred away from the polling place
after most of the votes had been cast. Finally, Perth Amboy Hospital,
279 NLRB 52 (1986), has no precedential significance at all regard-
ing the point on which the Respondent cites it. Only the respondent
employer filed exceptions in that case, and the Board’s adoption of
the judge’s recommendations concerning the election was therefore
merely ‘‘pro forma.’’ Id. at 52 fn. 3.
9 Clark Equipment, supra at 505.
10 The judge recommended that a broad cease-and-desist order
issue against the Respondent. However, we have considered this case
in light of the standard set forth in Hickmott Foods, 242 NLRB 1357
(1979), and have concluded that the narrow cease-and-desist order
is appropriate. We shall modify the judge’s recommended Order ac-
cordingly.
Contrary to the Respondent, we also find that the
present case is distinguishable from Clark Equipment
Co., 278 NLRB 498 (1986), in which the Board found
that certain isolated 8(a)(1) violations in a unit of more
than 800 employees did not warrant setting aside the
election. Id. at 505. The Board also noted, as to the
interference with the distribution of union literature in
that case, that the fact that the interference was ‘‘mo-
mentary only’’ was ‘‘relevant’’ to the question whether
the election should be set aside. Id. Here, the Respond-
ent engaged in two violations of Section 8(a)(1) in a
much smaller unit and the unlawful change in its bul-
letin board policy, as stated, affected all the unit em-
ployees. For these reasons, we conclude that this is not
a case in which ‘‘it is virtually impossible to conclude
that the misconduct could have affected the election re-
sults.’’9 Thus, we find it appropriate here to apply our
usual policy, set out in Dal-Tex Optical Co., 137
NLRB 1782, 1786 (1962), of directing a new election
when an unfair labor practice has been committed dur-
ing the critical period.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 4.
‘‘4. The Respondent has violated Section 8(a)(3) and
(1) of the Act by discharging employee Kelley on Sep-
tember 16.’’
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.10
We shall order the Respondent to offer Holly Kelley
immediate and full reinstatement to her former job or,
if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and
make her whole for any loss of earnings or other bene-
fits she may have suffered by reason of the unlawful
discharge in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We shall also
order the Respondent to remove from its files any ref-
erence to Kelley’s unlawful reprimand, written warn-
ing, and discharge and to notify her that this has been
done and that these unlawful actions will not be used
against her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, Allied Stores Corporation d/b/a The Bon
Marche, Olympia, Washington, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding
their union activity, creating the impression of surveil-
lance of employees’ union activity, and promulgating
and enforcing an unlawful bulletin board policy that
prohibits the posting of union-related material.
(b) Reprimanding and issuing written warnings to
employees in reprisal for their union activity.
(c) Discharging employees because of their union
activities.
(d) In any like or related manner interfering with,
restraining, 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) Offer Holly Kelley immediate and full reinstate-
ment to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights or privileges pre-
viously enjoyed, and make her whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in
the remedy section of the decision.
(b) Remove from its files any reference to Kelley’s
unlawful reprimand, written warning, and discharge
and notify her in writing that this has been done and
that these unlawful actions will not be used against her
in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of the Order.
187BON MARCHE
11 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(d) Post at its facility in Olympia, Washington, cop-
ies of the attached notice marked ‘‘Appendix.’’11 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) 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 election held on
May 18, 1990, in Case 19–RC–12155, is set aside and
that this case is severed and remanded to the Regional
Director for Region 19 for the purpose of conducting
a new election.
[Direction of Second Election omitted from publica-
tion.]
MEMBER OVIATT, dissenting in part.
I would not set aside the election which the Union
lost by more than a two-to-one margin. The majority
does so based on the Employer’s withdrawal of a ben-
efit by limiting its lunchroom bulletin board to work-
related items, and on a single interrogation. The Peti-
tioner, however, could, and did, easily communicate
with the employees through its access to them in the
store itself, as well as in mall areas adjacent to the
store. The Petitioner’s organizing campaign appears to
have been a sophisticated one that included the dis-
tribution of a campaign videotape to all eligible voters.
The restriction on use of the bulletin board is thus un-
likely to have had any meaningful effect on the em-
ployees’ votes. The restriction, in my view, does not
warrant setting aside the overwhelming rejection of the
Union even when coupled with the one unlawful inter-
rogation. That interrogation occurred some 2-1/2
months prior to the election, there is no showing of
dissemination, and there were no other untoward inci-
dents during the critical period. Accordingly, I would
not set the election aside.
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.
WE WILL NOT coercively interrogate our employees
regarding their union activity, create the impression of
surveillance of our employees’ union activity, and pro-
mulgate and enforce an unlawful bulletin board policy
that prohibits the posting of union-related material.
WE WILL NOT reprimand and issue written warnings
to our employees in reprisal for their union activity.
WE WILL NOT discharge our employees because they
engage in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you under Section 7 of the Act.
WE WILL offer employee Holly Kelley immediate
and full reinstatement to her former position or, if that
position no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed, and WE WILL
make her whole for any loss of earnings and other
benefits she may have suffered as a result of the dis-
crimination against her, with interest.
WE WILL remove from our files any references to
Kelley’s unlawful reprimand, written warning, and dis-
charge and notify her in writing that this has been and
that these unlawful actions will not be used in any way
against her.
ALLIED STORES CORPORATION D/B/A
THE BON MARCHE
George I. Hamano, Esq., for the General Counsel.
Thomas E. Platt, Esq., of Seattle, Washington, for the Re-
spondent.
Finley Young, Esq., of Tacoma, Washington, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice, a hearing in this matter was held before me
in Olympia, Washington, on March 19, 20, and 21, 1991.
The charges in the captioned cases were filed by the United
Food and Commercial Workers Union, Local No. 367 (the
Union), on various dates between April 2 and November 9,
1990.
The petition in Case 19–RC–12155 was filed by the Union
on March 7, 1990. An election was conducted on May 18,
1990. The tally of ballots shows that of approximately 105
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates or time periods hereinafter are within 1990 unless oth-
erwise specified.
eligible voters, 26 votes were cast in favor of the Union and
71 votes were cast against the Union. Thereafter, the Union
filed timely objections to the election.
On June 11, 1990, the Regional Director for Region 19 of
the National Labor Relations Board (the Board) issued an
initial Report on Objections, notice of hearing, and order
consolidating cases, wherein the unfair labor practice cases
were consolidated with the representation matter. The Re-
gional Director issued a third order consolidating cases on
December 31, 1990. The consolidated complaint alleges that
Allied Stores Corporation d/b/a The Bon Marche (the Re-
spondent or the Company) has violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). The Re-
spondent’s various answers to the aforementioned pleadings
deny the commission of any unfair labor practices.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General counsel,
counsel for the Respondent, and counsel for the Union.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with an office
and place of business located in Olympia, Washington,
where it is engaged in the business of operating a department
store. In the course and conduct of its business operations,
the Respondent annually purchases and receives goods and
products valued in excess of $50,000 directly from suppliers
located outside the State of Washington.
It is admitted, and I find, that the Respondent is now, and
at all material times herein has been, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all ma-
terial times herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE FACTS
The representation petition in Case 19-RC-12155 was filed
on March 7, and the election was held on May 18, 1990,1
in the following unit:
All employees employed by the Employer at its
Olympia, Washington facility, including employees em-
ployed in the leased shoe and jewelry departments, and
cosmetics counter managers, but excluding all guards
and supervisors as defined in the Act, and all ‘‘high
board’’ students.
The Union did not prevail in the election, and on May 24
it filed timely objections.
Holly Kelley worked for the Respondent from October
1988 until September 13, 1990, when she was discharged.
She worked in the cash office from February 1989 until the
date of her discharge. Prior to that time she worked on the
sales floor as a sales associate. Kelley attended several union
organizing meetings including the first meeting called by the
Union which was held on Friday, February 24. On Monday,
February 27, Cash Office Manager Cathy Nicks spoke with
Kelley in the cash office. Nicks asked Kelley how she felt
about the Union. Kelley replied that she was ‘‘neutral.’’
Nicks went on to say that the Union was not any good and
would not do Kelley any good, and that the Union would
just harass the people and not get them anywhere. Nicks told
Kelley to feel free to ask her any questions she may have
about the Union.
Nicks testified that she did not recall having this conversa-
tion with Kelley.
That evening Store Operations Manager Julie Stengem ini-
tiated a conversation with Kelley in Stengem’s office.
Stengem said that someone had told her that Kelley had at-
tended the union meeting. Kelley acknowledged that she had.
Stengem said, according to Kelley, ‘‘Well, what is your
opinion concerning the Union?’’ Kelley said she was still
neutral, and was trying to weigh the pros and cons of union
representation. Stengem replied that she knew Kelley would
make a ‘‘professional decision.’’ Stengem said that someone
had told her that at the meeting the Union promised the em-
ployees better wages and benefits. Kelley replied that was
not so, and that the union representatives made it very clear
that they could not promise anything; all they could do was
negotiate and try their best. Stengem said that she and Kelley
had a good enough relationship that if Kelley had any ques-
tions or was unhappy, she could talk to Stengem about these
matters. She also said that she didn’t need anyone to ‘‘com-
municate between us’’ and that a union was unnecessary.
Thereafter, Kelley attended several meetings called by the
Respondent and attended by most of upper management and
the employees. Gilbert Graham, director of labor relations for
all of the Respondent’s 40 department stores in 6 states, ap-
parently conducted several of the meetings and made it clear
that he was aware of the union activity and was opposed to
the Union.
Kerry Kinville is a sales associate in the Woman’s World
and coats departments. She actively participated in the union
organizing campaign. Kinville testified that a company meet-
ing was held on February 26. Most of the employees at-
tended. Graham and Store Manager Tom Goodman were the
spokesmen for the Respondent. Graham said that he under-
stood there had been a union meeting to organize the em-
ployees and he was there to talk to the employees about why
a third party was not needed and why the employees already
had a ‘‘contract.’’
Graham held three meetings with the employees to advise
them about the Union. On of the meetings was initiated by
the employees. At one meeting Graham showed the employ-
ees a wage progression document to demonstrate that the Re-
spondent did have policies and procedures that would offer
protection to employees in certain situations. Regarding se-
niority and staffing, Graham pointed out the store policy that
‘‘where merit and ability are equal, then tenure should be
used for the assigning of hours and schedules.’’ This has
been in effect since 1984.
189BON MARCHE
2 Sharon Hartmann’s name appears variously in the record as Shar-
on Hartmann, Sharon Dishion, and Sharon Dishion-Hartmann.
On March 7, the day the Union filed the representation pe-
tition, Kelley had a meeting with Store Manager Tom Good-
man. Kelley had requested the meeting to discuss the possi-
bility of entering the Respondent’s manager training pro-
gram. When Kelley walked into Goodman’s office, he imme-
diately asked her what her position was regarding the Union.
Kelley said she hadn’t made up her mind yet. He told her
that she had been working there for 1-1/2 years and was
earning what someone who had worked there for 2 years
would have been making. He said, according to Kelley, that
‘‘I take care of my people,’’ and asked her if she was pre-
pared to pay $125 in union dues and initiation fees. Kelley
said no, she couldn’t afford that. There was discussion of the
manager trainee program. Goodman said he valued Kelley’s
expertise as a cash office associate, and would get back to
her about the manager trainee program. He mentioned that
the Respondent’s Tacoma, Washington store had a union and
‘‘that if anyone wanted to work in a union store, he’d gladly
transfer them, because he did not want a union in his store.’’
Goodman testified that during the aforementioned con-
versation, Kelley asked what it would take to become a de-
partment sales manager. Goodman explained the program to
her, and after some discussion, Kelley told Goodman that she
was very interested in the opportunity. During the course of
the conversation, Goodman told her that a manager may have
to be willing to relocate and, in this context, he told her that
if someone was interested in relocating to the Tacoma store,
which happened to be unionized, that type of thing could be
worked out.
Several employees had been circulating an antiunion peti-
tion among the employees at the store. Kelley initially de-
cided that she was against the Union and signed the petition
on March 10. However, on March 12 she removed her name
from the petition by drawing lines through her name.
On March 16, Kelley was advised by Store Personnel
Manager Sharon Hartmann,2 that her hours were being re-
duced. There were four nonsupervisory employees in the
cash office, namely, in order of seniority, Jeanne Pontius,
Susan Price, Kelley, and Laura King. Hartmann explained to
Kelley that Pontius, who had been on a reduced schedule of
16 to 25 hours per week, had requested more hours because
of financial hardship, and that Price wanted to work 16 hours
a week; as a result, there were not enough hours to permit
Kelley to work her customary schedule of 35 to 40 hours,
and she would thereafter be working only approximately 22
hours per week. Kelley explained to Hartmann that she sup-
ported herself and, like Pontius, had financial obligations and
need to work full time. In this regard, Kelley suggested that
King, who had the least departmental seniority, be transferred
to another department so that Kelley could maintain her full-
time schedule; Kelley added that the cash office had pre-
viously operated for several months with just three associates
and a manager. Hartmann replied that transferring King
would not work out, because it was necessary to have more
employees who were trained on cash office procedures so
that the cash office would have a sufficient number of quali-
fied employees to cover for holidays and vacations. Kelley
mentioned that in the past one of the gift-wrap employees
would be assigned to the cash office on a temporary basis
to fill in for employees’ holidays and vacations. Hartmann
said that the particular gift-wrap employee Kelley was refer-
ring to did not work for the Respondent any longer, and that
‘‘it doesn’t work that way.’’
Kelley then asked if she could pick up extra hours as a
‘‘rover,’’ an associate who has no assigned department but
floats from department to department on a daily basis. Hart-
mann said that that was a possibility and that when the next
weekly schedule came out Kelley would be placed on the
schedule as a rover and could pick up extra hours in this
manner. Kelley said that was fine with her.
Hartmann’s version of the aforementioned conversation is
generally consistent with Kelley’s account. Hartmann testi-
fied, however, that there was more to the conversation. She
also told Kelley that the cash office could not operate with
only three associates and a manager, as one of the associates,
Price, worked only a limited number of hours, and that com-
pounded the staffing problem. According to Hartmann,
Kelley told her that she had worked on the selling floor prior
to working in the cash office, and expressed an interest in
relinquishing her position in the cash office and returning to
work on the selling floor on a full-time basis. Hartmann told
Kelley that there were no full-time positions open on the
selling floor, and Kelley asked if she could become a full-
time rover. Hartmann said she could not guarantee that
Kelley would be able to work more hours as a full-time
rover, but that Kelley should call her on days that she was
not scheduled to work in the cash office, or on days that she
had a short shift in the cash office, and Hartmann would try
to accommodate her.
Hartmann testified that she attempted to accommodate
Kelley when she could, but that Kelley’s availability as a
rover was somewhat limited, as exhibited by several ‘‘avail-
ability of hours’’ documents which Kelley filled out. How-
ever, the documents show that from March 23 to May 30,
Kelley was available as a rover or as a cash office associate
during the entire Monday through Sunday period, with the
possible exception of Sunday and the night shift on Tuesday,
for which periods Kelley entered the notation ‘‘check with
me.’’ Following May 30, she was available for all shifts dur-
ing the 7-day week except between the hours of 5:30 to 9:30
p.m. on Tuesdays and Wednesdays.
Kelley was upset with the Respondent for reducing her
hours, and thought the reduction was in retaliation for her
decision to remove her name from the antiunion petition,
which she believed the Respondent’s management had seen.
On March 20 she met with several union representatives in
a restaurant in the shopping mall in order to advise them of
her concerns. The restaurant is located directly across from
the entrance of the Respondent’s store. During Kelley’s con-
versation with the union representatives, both Lori Johnson,
cosmetics manager, and Hartmann, entered the restaurant and
glanced at papers on the table at which Kelley and the union
representatives were sitting. According to Kelley, one of the
papers was headed ‘‘Account of Harassment’’ in letters large
enough to be legible to someone standing up. Kelley said
‘‘hi’’ to Hartmann, and she did not respond. Thereafter, ac-
cording to Kelley:
And then Tom Goodman walked out to the very edge
of The Bon Marche court, which is just a phrase to de-
scribe the area that’s right in front of The Bon. It’s
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The record does not indicate the number of rover hours which
the Respondent actually assigned to Kelley during the period when
her full time hours in the cash office were reduced.
4 Counting down the registers is a method of stealing money by
making it appear that the cash register sales were fewer, or of a less-
er amount, than the actual cash register transactions. Apparently,
cash office employees had the expertise to adjust the cash register
transactions in this manner.
open. People can sit down. He walked up and stood
there with his arms crossed and observed us and me
and the union people and Kim Rinehardt in the Pockets
Restaurant for quite a while.
A representation hearing was held on March 27. Kelley
testified as a witness on behalf of the Union. She was also
an observer for the Union during the election held on May
18. Further, Kelley appeared in a 20-minute video which the
Union produced and provided to each employee on the eve
of the election. It was admitted that the video was viewed
by Respondent’s managers. Kelley played a prominent part
in the video, which consisted of a lengthy discussion be-
tween a union representative and several employees. In the
video Kelley expressed her feelings in support of a union
contract for the employees.
Kelley worked as a rover on a limited basis. She appar-
ently would check the cash office schedule to see if she had
been given hours as a rover in any other department; if she
was not listed as a rover on this schedule, she would then
check the rover schedule maintained in the personnel depart-
ment. Kelley testified that she was given only a limited num-
ber of rover hours.3 Further, according to Kelley, during this
period the Respondent was hiring new employees who were
being assigned as rovers. These employees, according to
Kelley, were hired in March and were assigned to work as
rovers from 4 hours per week to as many as 30 or 40 hours
per week. Although some employees with more seniority
than Kelley were also working as rovers, Kelley testified that
only ‘‘a couple’’ of rovers on the separate rover schedule
which is kept in the personnel office had more seniority than
Kelley.
Nancy Threadgill, a current employee, testified that she
observed that approximately 12 new employees were hired in
March.
Employee Kerry Kinville testified that in early January she
had a conversation with her supervisor, MacKenzie, regard-
ing the fact that the slow part of the retail season was ap-
proaching, and that Store Manager Goodman had made it
very clear that the store would be working with a skeleton
crew, that there would not be rovers working on the floor,
and that things would be tight, but that she was going to do
her best to get Kinville as many hours as possible. However,
according to Kinville, a week or two after the first employee
meeting in March the Respondent began hiring new employ-
ees, and hired about 10 of them in a 2-week period. Many
of them were working 40 hours per week and were given full
shifts on the floor.
Personnel Manager Hartmann testified that it is customary
to hire new employees in the spring of each year, as it is
necessary to have a larger number of employees during that
season in order to provide replacements for employees who
will be taking their vacations, and also because of an antici-
pated seasonal increase in business. However, she believes
that only four or five new employees were hired during the
time period in question.
Hartmann described the store’s scheduling problems. The
store is open 7 days a week, with several shifts each day,
including evening shifts. Scheduling under these cir-
cumstances is a difficult process, and it is necessary to have
a sufficient number of employees available in order to allow
for flexibility and contingencies.
On three or four occasions, Kelley worked as a rover in
the men’s furnishings department under the supervision of
Manager Cheryl Knight. On about May 19, Kelley asked
Knight when she would be permanently assigned to Knight’s
department as a full-time rover. Knight replied that ‘‘upper
management told her that I would not be allowed to work
. . . as a rover any more because they were afraid I would
count down the registers.’’4 Kelley asked why she would
want to count down the registers on the sales floor where she
could be observed; and added that if she wanted to steal
money she could do so back in the cash office with the door
shut. Kelley testified that both Laura King and Jeanne
Pontius had been permitted to work on the sales floor after
working in the cash office.
As a result of not being given sufficient hours as a rover,
Kelley began working for another employer on a part-time
basis.
In July, Kelley’s hours in the cash office were increased
to her former schedule as Price had left and Pontius was
transferred to another department. The cash office apparently
operated with three associates and one manager from July
until September 13, when Kelley was terminated.
Cash Office Manager Cathy Nicks testified that during the
summer of 1989 both she and Kelley were applicants for the
position of cash office manager. Nicks, who had not worked
in the cash office prior to that time, was given the job, and,
according to Nicks, Kelley resented the fact that she was
having to train Nicks in cash office procedures. This caused,
initially, a ‘‘strained, stilted’’ relationship. In the fall of
1989, Nicks felt that the relationship continued to be some-
what strained, and that this was affecting Kelley’s perform-
ance. Both Nicks and Store Operations Manager Stengem
spoke ‘‘informally’’ with Kelley during a meeting in October
1989, regarding Kelley’s attitude and ‘‘accuracy in count-
ing,’’ as, according to Nicks, Kelley ‘‘continually made mis-
takes’’ counting money. Kelley was not given a written
warning, and there is no evidence that Kelley’s attitude and
performance did not improve or become acceptable after that
discussion.
Kelley testified that she believed the aforementioned con-
versation took place in September rather than October 1989,
but admits that she was cautioned about her attitude and
work performance.
On July 28, Kelley received a written warning for failing
to follow proper closing procedures in the cash office. Dur-
ing a meeting with Manager Nicks and Personnel Manager
Hartmann, Kelley was told that on Friday, July 24, she had
not placed the $2000 cash office window fund back into the
vault at the end of the business day, and that the money had
been left in the window drawer overnight. This is contrary
to company policy. Kelley was told that she would need to
review cash office policies and procedures with Nicks fol-
lowing the signing of the written warning. During this meet-
ing with Nicks and Stengem, Nicks told Kelley that she was
191BON MARCHE
5 However, there was conflicting record testimony regarding
whether the lock on the cash drawer was functioning properly during
the period in question.
a good employee, that she was aware of cash office policies
and knew what to do, and that ‘‘we are entitled to make our
mistakes.’’ She said she would review the policies with
Kelley, as Stengem had instructed. Kelley said that she did
not recall leaving the money out, but that she was sorry if
she did so. She signed the written warning. The warning, en-
titled ‘‘Record of Personnel Interview,’’ states:
On 7/24/90 Holly Kelley was responsible for closing
the cash office. That evening Holly left the $2000
change fund in the cash office drawer (unsecured) in-
stead of placing the money in the store safe which is
the standard cash office procedure.
Holly must show immediate improvement in her at-
tention to the detailed policies and procedures, which
the cash office position requires, or further disciplinary
action may be taken.
Holly should review cash office policies and proce-
dures with her manager Cathy Nicks to insure her un-
derstanding of all procedures and ensure the security of
the cash office funds.
Kelley testified that although she had apparently left the
money in the drawer overnight and had neglected to put it
in the vault, she believed the cash drawer was locked.5
Kelley testified that on various occasions cash office asso-
ciates or the cash office manager neglected to return the cash
fund to the vault at the end of the day, as set forth in the
following four examples.
Thus, Kelley testified that in the fall of 1989, she discov-
ered that Pontius, who had closed the cash office the night
before, had left out the change fund in the cash office draw-
er. Kelley told the then cash office manager, Luana Bue,
about this and Bue, Kelley, and Pontius had a conversation
about it. Bue told Pontius that she had left out the money
overnight, and Pontius said she was sorry and would try not
to do it again. Pontius received no written warning.
In about November 1989, employee Katherine Hitchman
left out the change fund and Kelley discovered it in the cash
drawer the following morning. Kelley told Cathy Nicks, who
had become the cash office manager, about the matter.
Kelley does not know whether Hitchman received any warn-
ing or discipline for this, and, although Nicks was called as
a witness by the Respondent, she did not specifically testify
regarding this matter.
In July, 2 weeks before Kelley received her written warn-
ing, Pontius had again neglected to place the change fund in
the vault and it was left out overnight. Kelley pointed this
out to Pontius, but did not tell Nicks about the incident as
she did not want to get Pontius in trouble.
In early 1990 Nicks left out the change fund in the cash
drawer the preceding evening. Again, Kelley discovered this
the following morning and told Nicks about this. Nicks said
she was sorry.
Nicks testified that when she discovered that Kelley had
not placed the cash fund in the vault, but had left it out over-
night in the window drawer, she reported this to Stengem.
Nicks believes that the drawer was not locked, as she does
not recall having to get a key to unlock it on the morning
in question. She was not aware of any other cash office em-
ployees who had left the window fund unsecured overnight;
nor was she advised by Kelley in early 1990 that she had
left out the window fund. Further, as mentioned above, she
does not recall having a conversation with Kelley about the
Union in February.
Tina Crowther is a current employee of the Respondent.
She is a sales associate in the children’s department.
Crowther testified that on July 4, she was assigned to close
the register for the day. She forgot to turn in the cash bags,
containing from about $200 to $600, to the cash office at the
end of the shift. Rather, she left the bags in the stockroom
when she picked up her coat at the end of the day. When
she got home from work there were two messages on her an-
swering machine. Both were from Personnel Manager Hart-
mann. The first message was to advise her that the bags were
missing. The second message was to advise her that the bags
had been found in the stockroom. Less than a week later,
Operations Manager Stengem remarked, in passing, on the
selling floor, that this ‘‘was not a good thing to do, that it
was wrong.’’ A few days later, Crowther was called in to
Hartmann’s office. Crowther’s department manager, Mac-
Kenzie, was also present. Hartmann asked Crowther if she
was under any sort of pressure which would cause an ‘‘un-
professional act’’ of that nature. Crowther said she was okay,
and that she understood how serious the matter was, and that
she would not do it again. Nothing was said about her job
being in jeopardy, and she received no written reprimand.
Kimberly Rinehardt, a social worker, shares an apartment
with Kelley. Both she and Kelley are from the same home-
town. Rinehardt became acquainted with Nicks through
Kelley. On July 31, Rinehardt invited Nicks to lunch, pur-
portedly to discuss personal matters relating to social work
assistance for Nick’s son. During the luncheon conversation
Nicks began talking about what was happening at the store.
Rinehardt stated that employees of the Respondent should be
able to get the wages they wanted without being harassed.
Nicks, according to Rinehardt, stated that any employee who
was not happy with the wages could go elsewhere, and ‘‘an-
grily gripped the table and told me that The Bon Marche was
not trying to set up Holly [Kelley] or get Holly, that if Holly
was to leave The Bon Marche, it would be by her own hand,
something she did herself.’’ Nicks said things like, ‘‘Holly
needs to change her attitude; Holly needs to watch out; Holly
needs to be careful.’’
During the aforementioned conversation, the warning that
Kelley received for leaving out the $2000 cash fund was dis-
cussed. Rinehardt testified that Nicks said that she was satis-
fied with Kelley’s positive response to the warning.
Rinehardt, who apparently was thoroughly familiar with the
happenings at the store, said she thought it was interesting
that Pontius had engaged in similar conduct and had not been
written up. Nicks, who had her mouth full, nodded affirma-
tively, but did not verbally respond. Rinehardt then brought
up the fact that an employee from the childrens’ department
had left about $300 in the back room and had not been writ-
ten up. Nicks replied that she, Nicks, didn’t have anything
to do with that. Rinehardt thanked Nicks for treating Kelley
fairly and as a friend.
Nicks testified that she was ‘‘just shocked’’ when
Rinehardt invited her to lunch, as this had never happened
before. She acknowledged, however, that both she and
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rinehardt shared a common interest in psychology as she
had received a degree in that field and Rinehardt was com-
pleting her course work for a psychology degree. Further,
Rinehardt, who was working as a social worker for the State
of Washington, had indicated on prior occasions that she
might be able to give Nicks some leads regarding child care
for her son.
According to Nicks, Rinehardt said that the real reason she
invited Nicks to lunch was to thank Nicks for her under-
standing and support of Kelley. She spoke about Kelley’s
family background and shared other personal insights. During
the course of the conversation, Nicks said that Kelley was
a valuable employee with much potential; she said that ev-
eryone made mistakes, and she hoped that Kelley would be
able to put the written warning in perspective and move for-
ward in a positive manner. Nicks recalled nothing further
about the conversation. She did not deny that she expressed
to Rinehardt that Kelley needed to change her attitude, or to
be careful, or to watch out.
On August 13, after Pontius was no longer working in the
cash office, Kelley noticed that she was scheduled to work
a fraction of an hour less than Laura King, a less senior em-
ployee, during the following week. This apparently occurred
because Kelley was required to work a Sunday shift that
week and a Sunday shift contains fewer hours than shifts on
other days. Kelley took the schedule to Hartmann’s office
and told her about this, and explained that as a result of what
had happened some months earlier when her hours were re-
duced because Pontius, a more senior employee, wanted
more hours, Kelley believed that she was entitled to more
hours than King. Kelley explained that it was not necessarily
the number of hours that troubled her, as the difference in
hours was negligible, but rather it was the principle of the
matter; and that as the more senior person in the department,
she was entitled to more hours. Hartmann said she would
talk to Stengem about the matter. However, the schedule was
not changed.
Kelley then spoke to Stengem about the schedule. Kelley
explained to Stengem that it was the principle of the matter,
rather than the number of hours, that concerned her. Stengem
asked whether Kelley was asking her to make changes that
adversely affected the Respondent’s business so that Kelley’s
ego wasn’t hurt, and explained that if Kelley worked a dif-
ferent shift this would put her in an overtime situation and
require the Respondent to pay her overtime pay. Kelley sim-
ply reiterated that as the senior employee, she was entitled
to more hours than King. Stengem said, ‘‘Well, Holly, we’re
not here to get you; we’re not out to get you and take your
hours away.’’ Stengem refused to change the schedule.
Thereafter, there were no other problems with Kelley’s
schedule.
Personnel Manager Hartmann testified at length and pro-
vided documentary evidence of the fact that, due to complex
scheduling considerations, it was not uncommon that a more
senior employee would, on occasion, necessarily receive
fewer hours during a given week than a less senior em-
ployee.
About the first week of September, Kelley happened to see
Cheryl Knight, manager of the men’s furnishings department,
near the cash office. For a reason unexplained in the record,
Knight’s status was being changed from that of a manager
to that of a sales associate. Kelley said to her, in a joking
manner, ‘‘Oh, hi, you’re going to be a peon.’’ According to
Kelley, Knight ‘‘kind of laughed, and she looked over at
John Doll [who had recently replaced Goodman as store
manager] and I followed her gaze and saw John Doll stand-
ing there and looked back at her, and she laughed a little bit
more, and then we just both went our separate ways.’’
Shortly thereafter Kelley was called to Stengem’s office.
Those present were Kelley, Stengem, Laura King, John Doll,
and Tom Goodman. Stengem said that she had heard that
Kelley was making derogatory comments about employees.
Kelley answered that she didn’t know what Stengem was
talking about. Stengem said that ‘‘a certain someone’’ said
that Kelley had called Knight a peon. Kelley said yes.
Stengem told her to refrain from calling any of the employ-
ees peons, as the Company does not approve of this. Kelley
said she didn’t know that Knight was offended, but that she
would call her and discuss it with her. She said she would
refrain from using derogatory remarks.
Later that day Kelley spoke to Knight and said that she
was sorry, and asked if she was offended. Knight said no,
she wasn’t offended, and that ‘‘it just goes in one ear and
out the other; don’t worry about it; I wasn’t offended at all.’’
Kelley then asked why she had been reprimanded. Knight re-
plied, according to Kelley, that Store Manager John Doll told
her that he was offended, and Julie Stengem also thought the
remark was inappropriate. Kelley said that she didn’t mean
to cause all the ruckus. Again Knight said she wasn’t of-
fended, and added, ‘‘you need to be careful what you say,
because they will use it against you.’’
Rinehardt also had a conversation with Knight about the
‘‘peon’’ incident. Rinehardt happened to be at Respondent’s
store in order to pick Kelley up from work. She approached
Knight who, insofar as the record indicates, continued to oc-
cupy her managerial position, and jokingly said, ‘‘I hear
you’re going to be a peon.’’ Knight, according to Rinehardt,
‘‘got really serious’’ and said that she was not the one who
was offended by that comment; rather, John Doll overheard
the comment and was offended, as was Stengem, but Knight
had no problem with it. Rinehardt testified that:
Then we were talking about why she [Knight] was step-
ping down from management, and she had said that it
was a matter of conscience, that she needed to step
down; she couldn’t handle the stress any more. And she
said that Holly [Kelley] needed to be careful, that she
had been in on meetings where management had dis-
cussed Holly and other troublemakers and that she
needed to watch her back, that management didn’t for-
get.
Rinehardt suggested that Knight talk to the Union about this,
and Knight said, according to Rinehardt, that ‘‘she didn’t
want to be involved, that that was part of the reason why she
was stepping down and that she would just root for Holly
from the sidelines.’’
Knight, called as a witness by the Respondent, is currently
a sales associate in the men’s furnishing area. Knight testi-
fied that she ‘‘just kind of smiled’’ when Kelley made the
‘‘peon’’ remark to her although she thought the comment
was inappropriate and unprofessional. Later. Stengem ap-
proached her and asked if it was a private joke, or whether
193BON MARCHE
6 This is a different fund from the window fund, and is the amount
of money kept in the cash office cash register during the day. This
money is also to be placed in the vault when the cash office is
closed.
her feelings were hurt. Knight said that she felt ‘‘slighted a
little’’ but that it was ‘‘no big thing’’ and that she was okay.
When questioned further about the incident, Knight testi-
fied that she was ‘‘shocked’’ at Kelley’s remark and it
‘‘stunned’’ her. Asked to explain why she was shocked,
Knight testified:
Because I was stepping down, and I was making deci-
sions for my family at the time, and I don’t like to let
down my company. I was real supportive of it, and it
was a decision of personal choice, but just to be
slammed for doing it, I felt kind of out of place.
Knight said that the remark was disrespectful, and that ‘‘you
don’t slam friends when they’re down.’’ Several days later
Kelley apologized to her.
Knight was asked only two questions by Respondent’s
counsel regarding her conversation with Rinehardt, namely,
whether Knight knew Rinehardt and whether she ever told
Rinehardt words to the effect that the Respondent was out
to get Kelley. Knight said that she knew Rinehardt but that
she did not make such a statement to her. On cross-examina-
tion, Knight admitted that she attended management meetings
during the organizing campaign as she was a manager at that
time, that things going on in the store regarding the Union
were discussed at these meetings, and that it was general
knowledge that Kelley was involved in the union campaign.
Kelley testified that on September 11, Laura King, who
had been promoted to cash office manager that week in place
of Nicks, advised Kelley that she was going to have to report
to Operations Manager Stengem that Kelley had left the
$100 change bag fund in the cash office cash register drawer
when she closed the previous Sunday night.6 Kelley said that
she would be fired for that because they were looking for an
excuse to fire her, and suggested that perhaps she should just
quit before she was fired. King said that she doubted that
Kelley would be fired, and added, ‘‘I can’t lose you now.’’
On September 13, Kelley was called in to Personnel Man-
ager Hartmann’s office. Stengem was also present. Kelley
testified as follows:
[Hartmann] said that I had allegedly left—I had left out
the $100 change fund and that, given the severity of the
situation, did I leave the money out? And I said, I don’t
remember leaving the money out, you know, but if I
did, I’m sorry. And she said well, this is a severe case.
They said something about procedures and policies, and
I said, I’m aware that I could get terminated for this,
and they just shook their heads and dismissed me and
said that they would call me back later with their deter-
mination whether or not they were going to fire me, so
I went back to the cash office.
Kelley testified that she made the remark about being fired
because she believed it had been stated in her prior written
warning that any similar violation of policy would be cause
for termination. However, Kelley was mistaken, as the prior
written warning did not so state.
About 20 minutes later Kelley was called back to Hart-
mann’s office. Stengem was present. Kelley was told that
given the severity of the problem, they had no choice but to
terminate her. Kelley said that she was really sorry, and left.
Personnel Manager Hartmann testified that it was common
knowledge that Kelley was part of the union campaign effort.
On September 9 Hartmann was told that Kelley had failed
to place the $100 cash register fund in the vault and had left
it in the cash register drawer in the cash room overnight. She
called Kelley to her office on September 13. Kelley acknowl-
edged that she had left out the money, and that this was the
second time it had happened. She said she was sorry, that
she realized this was a severe policy violation and she could
be fired for it, and said that she was sure it would not hap-
pen a third time. Hartmann said she would get back with
Kelley regarding the matter.
Hartmann then contacted Gilbert Graham, director of labor
relations, in accordance with the Respondent’s policy that
Graham was to be involved in the event of a possible termi-
nation of any associate. Hartmann told Graham about the
July 24 incident and the September 9 incident, and said that
Kelley had left the money out on two occasions within a rel-
atively short period of time. She told Graham that she con-
sidered Kelley’s conduct to be grounds for ‘‘possible termi-
nation.’’ Graham asked Hartmann several questions, such as
how long Kelley had been with the Respondent, how long
she had been employed in the cash office, and whether
Kelley had made any other errors during her employment. It
was decided that Kelley should be terminated. There was no
discussion of Kelley’s union activity during the conversation.
Hartmann then called Kelley back to the office, and ad-
vised her that she was being terminated immediately.
Hartmann testified that to her knowledge the only employ-
ees who have been discharged during her 1-1/2 year tenure
as Personnel Manager have been either probationary employ-
ees who were terminated within the 90-day probationary pe-
riod for various work-related reasons, or, in the case of other
employees, for theft of money or property. The Respondent
proffered no evidence to the contrary.
Hartmann also testified that department managers were not
authorized to issue written warnings; rather they were issued
only by Hartmann. The Respondent introduced five written
warnings into evidence. Four of the warnings were issued in
August, September, and October 1989, and February 1990.
Each denotes that it was ‘‘originated by’’ Personnel Manager
Sharon Dishion (currently Sharon Hartmann), and specifies
the nature of the employee’s unsatisfactory work perform-
ance or, in one instance, excessive tardiness. Each warning
notice specifically states that further instances of such con-
duct will or may result in ‘‘termination.’’ The fifth warning
is dated December 8, 1990, subsequent to Kelley’s termi-
nation, and was issued to another cash office employee for
also neglecting to place the window fund of $3000 in the
vault at the end of the day. The language contained therein
is identical to the above-quoted language contained in the
warning notice issued to Kelley, with the exception that
Kelley’s warning specifies that if immediate improvement is
not shown, ‘‘further disciplinary action may be taken,’’
whereas the December 8, 1990 warning states that ‘‘further
disciplinary action will be taken.’’ (Emphasis supplied.) Hart-
mann was not asked, and did not explain, why the warning
she gave to Kelley did not advise her of the possibility of
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
termination, or why the wording of the December 8, 1990
warning was different from the warning given to Kelley.
Labor Relations Director Graham testified that all termi-
nations of hourly associates must be approved either by
Graham or by a designated individual in the central office.
Regarding Kelley’s union activity, Graham testified that,
‘‘Certainly, I was aware that she was prounion. I mean, she
spoke up in meetings and made it very clear, plus I’d seen
the video, so it was quite clear that she was strong for the
union.’’ Graham further testified that during his conversation
with Hartmann there was a review of Kelley’s work perform-
ance, because:
[O]bviously, knowing the fact that she was a very
strong proponent of the union, and in my capacity as
director of labor relations, I knew that this was a sen-
sitive termination and that I wanted to ask questions
and fully understand what was happening before termi-
nation took place, and that’s why I was asking about
length of service, and priors [sic] and things of that na-
ture so that I could get a very good handle on this to
make the proper decision.
Graham testified that it was not mandatory that an em-
ployee be discharged after two warnings. Rather, according
to Graham, ‘‘There is discretion, always some discretion.’’
Graham went on to testify that the two warnings, coupled
with the fact that Kelley had made errors in the past in
counting money, warranted her discharge, as the nature of
her job was to be accurate and safeguard the funds of the
company. Graham stated that the possibility of placing
Kelley in a sales position, which work Kelley had previously
performed, was neither contemplated nor discussed during
his conversation with Hartmann.
Goodman testified that during his tenure as store manager
of the Olympia store, the ‘‘termination of an employee is
precluded [sic] with at least three written warnings, unless
it’s a termination for theft.’’ However, Goodman did not par-
ticipate in the decision to terminate Kelley, as he had been
assigned to manage a different store prior to that time.
Graham testified that Goodman was incorrect that Respond-
ent’s policy required three written warnings prior to termi-
nation of an employee.
Shari Thompson was a sales associate from April 1989
until October 1990. She was a member of the Union’s orga-
nizing committee. Thompson testified that Audry Raymond,
also a member of the Union’s organizing committee, returned
to work after an absence, and worked as a sales associate in
the same department as Thompson. It was believed that Ray-
mond had more seniority than Thompson as a result of hav-
ing previously worked for the Respondent, and that Raymond
was therefore entitled to more work hours than Thompson.
However, Marie Miller, a manager trainee and Thompson’s
supervisor, had previously told Thompson that productivity,
rather than seniority, governed the allocation of work hours.
Thompson complained to Miller, and said that she, Thomp-
son, should have more hours than Raymond because her pro-
ductivity was greater. Thereafter, Thompson’s hours were in-
creased, and Raymond’s were decreased. Thompson assumed
that this was because of her higher productivity.
Raymond did not testify in this proceeding. It is the Gen-
eral Counsel’s contention that Raymond should have been
given more hours than Thompson because Raymond had
greater seniority, and that the Respondent deviated from its
past policy of allocating working hours on the basis of se-
niority as a result of Raymond’s union activity. It is the Re-
spondent’s position that both Raymond and Thompson were
equally involved in activity on behalf of the Union as mem-
bers of the Union’s organizing committee, and that even if
the Respondent had misapplied its policy of allocating hours,
the favoring of one union adherent over another cannot con-
stitute discrimination. Further, the evidence proffered by the
Respondent demonstrates that, in fact, Thompson, not Ray-
mond, had greater seniority.
Thus, Personnel Manager Hartmann testified that initially
the manager trainee, Marie Miller, believed that Raymond
had more seniority than Thompson. However, Hartmann ex-
plained to Miller that Raymond’s break in employment was
longer than 30 days and that therefore her seniority was not
retroactive and was less than Thompson’s, who was hired
prior to Raymond’s return. According to Hartmann, Miller
was simply mistaken when she told Thompson that produc-
tivity rather than seniority was utilized as a basis for allocat-
ing work hours; rather, seniority, not productivity, was the
operative standard, and Thompson had greater seniority.
Sue Wood is a sales associate in the children’s department.
Her supervisor is Michelle MacKenzie. During the past 3
years she received the department’s achiever’s award for
having the highest sales in the department. She was on the
Union’s organizing committee, solicited signatures on author-
ization cards, and attended union meetings. During various
meetings called by the Respondent she expressed her pro-
union views.
On October 24, Wood arrived at work on time but went
directly to the stockroom to put her coat away, and, while
in the stockroom she discussed something with her manager,
MacKenzie. When she returned to the sales floor it was 5
minutes later than her reporting time, and Wood filled out
a time discrepancy form stating that she was at work on
time. Wood testified that she has had occasion to utilize this
form on the average of about twice a month. She filled out
the form and placed it on top of the cash register. Later, Di-
vision Manager Pam Rupert passed by and saw the form, and
told Wood that the form was incorrect as Wood had not
come to work on time, and that, in fact, she had come in
late. Wood told her to ask Rose Johnson, an employee in an-
other department, as Wood and Johnson had arrived at work
together that morning.
Apparently, the gravamen of the complaint allegation in-
volving this matter is that, as a result of Wood’s union activ-
ity, Rupert simply was unwilling to accept, at face value,
Wood’s statement that she had in fact arrived at work on
time, and disputed Wood’s assurance that she had not been
late. Some manager other than Rupert apparently signed the
form for Wood, and she lost no pay as a result.
Rose Johnson, a current employee of the Respondent, tes-
tified regarding the discrepancy form matter. She said that on
the day of the incident, she was approached by Division
Manager Rupert who asked her if she and Wood had entered
the store together. Johnson said that she and Wood had come
through the door at the same time. Since the respective de-
partments of Wood and Johnson are apparently at opposite
ends of the store, Johnson would be in no position to know
when Wood arrived at her department.
195BON MARCHE
7 This incident is unrelated to the preceding incident involving Di-
vision Manager Rupert.
In the first part of November, during Wood’s monthly re-
view, Manager MacKenzie told Wood that she was rated ex-
cellent in all respects. MacKenzie also pointed out that Wood
had been late to work one day during the review period.7
Wood disputed this, explained what had happened, and
claimed that she was being harassed. She refused to sign the
form. According to Wood, Jeanne Pontius, who worked with
Wood, was late almost every day either in arriving at work
or in returning from breaks.
Personnel Manager Hartmann testified that the monthly
sales associate review form is designed as a communication
tool, and is utilized to evaluate the associates’ performance
in various aspects of their work, namely, customer service,
sales production, credit performance, attendance, personal
trade, appointment sales, and dress code. The review for any
given month is delayed from a 1-1/2 to 2 months due to the
fact that the sales performance information is automatically
transferred from the selling floor cash registers into the cen-
tral computer system for all stores, located in another city,
and is later forwarded to the particular store. Compiling and
forwarding the information causes a substantial lapse of time
between the end of a review month and the date of the actual
review with the associate. However, records of certain items,
such as attendance, sales production, and credit performance,
are kept in a ‘‘brown’’ book in the personnel office, and the
managers obtain this information from the book prior to the
employees’ monthly evaluation. The records show that ap-
proximately 10 percent of the review forms of the employ-
ees, including that of Pontius, included information to the ef-
fect that they had been late or tardy during the period in
question. Hartmann testified that the managers are simply in-
structed to point this out to the employees, so that the em-
ployees may monitor their attendance record, and that this is
not considered a warning or an indication of adverse action.
Regarding the fact that Division Manager Rupert, who did
not testify in this proceeding, refused to sign Wood’s various
time discrepancy forms, it is the Respondent’s contention,
and Hartmann so testified, that some managers simply are
more cautious than others, and that this had no effect on
Wood’s overall performance rating.
On about November 2, a customer wanted to buy a coat
for her child at a sale price, although no sale was in
progress. Wood said that she would ask her manager. Wood
then went to the restroom while the customer continued look-
ing at the coats. In the interim, the customer apparently
asked Manager MacKenzie whether she could have the sale
price, and MacKenzie said no, as the item was not on sale.
Upon returning from the restroom, Wood asked MacKenzie
whether Wood could give the customer the sale price. Wood
acknowledged that prior approval is required to give a sale
price on a nonsale day. MacKenzie told Wood, ‘‘Well, if you
told her she could get it, then go ahead and give it to her.’’
Wood did so, although she had not previously promised the
customer the sale price. On November 5, Wood received a
written warning for the incident.
Wood testified that she was falsely accused of writing a
derogatory note to her supervisor, MacKenzie. Someone had
written ‘‘fuck you’’ on a work list that MacKenzie had left
for the employees, and had apparently put the list on
MacKenzie’s desk in the stockroom. MacKenzie asked both
Wood and another employee whether either of them had
done this and they both said no. Wood testified that even
though they said they were not responsible, MacKenzie went
on to state that ‘‘We won’t stand for this,’’ as if she did not
believe them. About a week prior to this time they had both
complained to the personnel manager about MacKenzie’s fre-
quent absences from the department.
During the union organizing campaign, Store Manager
Goodman held a meeting with the employees and told them
that there was going to be a change from the incentive sys-
tem to a new commission system. Goodman testified that he
thereafter met with employees on an individual basis to ac-
quaint them with the new commission system. He reviewed
their individual sales for the preceding year in order to dem-
onstrate how the system would have benefited them had it
been in effect during the fall of 1989. He met with over half
of the approximately 100 employees during the course of 4
or 5 days. He made no comparison of the commission sys-
tem with the wages paid at unionized stores of the Respond-
ent.
Sheri Thompson, a sales associate, testified that in March
or April she was called in to Goodman’s office and he spoke
to her for about 30 minutes regarding the new commission
program for sales associates. Goodman explained the pro-
gram to her and, using her monthly sales figures for the prior
month, demonstrated to her that she would be making $100
to $200 more per month under the new commission program.
Thompson testified that Goodman also told her that she
would not have such a commission system in a union store.
Goodman testified that the commission system had been
under consideration for quite some time, and that the em-
ployees had been made aware of this. He said that he had
previously held a meeting with all the sales associates in Oc-
tober 1989, and discussed the commission system. He told
them that he had received some very favorable comments re-
garding the commission system from various sales associates,
that the matter was in the process of being explored, and that
the Respondent would ‘‘be pursuing’’ that in the next year.
He again mentioned the commission system during a meeting
with the employees in January 1990. Goodman testified that
he has been a proponent of the system for a long time, and
that he had been working on it for at least 6 months prior
to October 1989, although he had never initiated individual
conversations with the sales associates about the commission
program until the Union began organizing the employees.
Employee Rose Johnson testified that she heard rumors of
a commission system far in advance of the union campaign,
and that in January, during her review, Manager MacKenzie
asked her what she thought about Respondent going to a
commission system. Johnson said that would be fine as long
as her wages were not reduced. MacKenzie told her that the
wages would remain the same, but that the employees would,
in addition, receive a commission on their sales.
Employee Kerry Kinville testified that during a monthly
review in late February, Manager MacKenzie told her that
Goodman was looking into the possibility of a commission
program, and that it would be like the one in effect at the
Tacoma store. MacKenzie demonstrated to her on a piece of
paper how the program would work, and said that they had
not yet decided to implement the program but that they were
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Of the Respondent’s 40 stores, 13 are unionized.
just trying to find out what the employees’ opinions were re-
garding the program.
Documentary evidence introduced by the Respondent
shows that the commission system has been under consider-
ation since June 1988, when a task force of the parent cor-
poration of the Respondent recommended that ‘‘By Fall
1990, 100% of all sales people . . . shall be on the
Federated/Allied Incentive Commission Plan.’’ The stated
written objective of the plan is to ‘‘obtain the highest quality
sales associates and managers through a superior compensa-
tion program.’’
On March 13, 1989, Graham recommended that the pro-
gram be implemented at the Respondent’s stores. It was im-
plemented at various unionized stores of the Respondent in
early 1990, after collective bargaining with the unions.8 By
memo dated March 13, 1990, Graham advised that the com-
mission program would be placed in effect at four additional
stores, commencing in May for three of the stores, including
Respondent’s Olympia store, and commencing in August for
the fourth store ‘‘as part of their normal wage progression.’’
During the union organizing campaign, union-related mate-
rial was taken down by management from the bulletin board
in the lunchroom. Prior to this time employees were per-
mitted to use the bulletin board to advertise personal items
for sale or for other announcements. After the campaign
began the bulletin board was limited to work-related items
only. Goodman announced this change at a meeting. He said,
according to employee Sue Wood, ‘‘This was his house, and
. . . you cannot put anything you want up there; you have
to have our permission.’’
Nancy Threadgill, a current employee, testified that she at-
tended a meeting on March 10 at the Respondent’s premises.
Various upper level representatives of the Respondent were
present, including Uhrich, the corporate head of labor rela-
tions and Labor Relations Director Graham’s superior,
Graham, and Goodman. One employee asked why the Re-
spondent would not permit union-related material on the bul-
letin board. Uhrich said that it was ‘‘his house,’’ and that the
employees couldn’t put anything on the bulletin board. He
said that he was adamant about not wanting a union, that he
didn’t want any part of the union, and didn’t like unions.
Then Goodman spoke up and said that everything had to be
preapproved before it was placed on the bulletin board.
Threadgill testified that prior to the union campaign, there
were no bulletin board restrictions, and the employees were
free to post wedding and birth announcements, and items for
sale. When the union campaign began, such material was no
longer permitted, and only work-related information was
posted.
Employee Kinville testified that above the bulletin board
in the lunchroom was the title ‘‘The What’s Happening
Board.’’ Employees could post anything on this board with-
out permission. Kinville posted union-related documents on
the board on a daily basis. On March 21, Kinville posted a
comparison sheet, comparing the pros and cons of union rep-
resentation. Kinville was in the lunchroom when Store Man-
ager Goodman came in and removed the document, tore it
in half, and threw it in the garbage can. He put the thumb-
tack in his pocket and left. A few weeks later, Manager Lori
Johnson came in to the lunchroom and took down a union
booklet, entitled ‘‘Why Unions?’’ which Kinville had posted.
Store Manager Goodman testified that during the union
campaign he removed both prounion and proemployer mate-
rial from the bulletin board after he was advised by his supe-
riors that the bulletin board belonged to the store, and that
no union-related material of any kind, whether in favor of or
against union representation, was to be posted. According to
Goodman, the bulletin board remained ‘‘open and available’’
to the employees for the posting of personal notices; how-
ever, Goodman also testified that he informed employees at
a meeting that they had to have management’s permission
before they posted anything on the bulletin board.
Labor Relations Director Graham testified that there has
been a longstanding policy at all of the stores that prior ap-
proval by the store manager must be given before items are
placed on the bulletin board. However, compliance with this
policy is not monitored every day, and when the union cam-
paign began, ‘‘a directive from corporate’’ required the im-
plementation of the policy, and prohibited any propaganda,
either for or against the Union, from being posted on the bul-
letin board. Graham further testified that the policy permitted
the posting of other types of material, apparently with man-
agement’s approval, and that he observed that such material
was posted on the bulletin board throughout the preelection
period. He also testified that employees at the store were per-
mitted to wear and did wear both prounion and antiunion
buttons on the sales floor.
On October 29, employee Kinville had not been able to
clock in on time as someone was using the register when she
arrived at work. The employees clock in by entering their
employee number into the cash register. Later that evening
Kinville asked Division Manager Pam Rupert to sign her
time discrepancy form, and Rupert refused to sign it as she
did not see Kinville come in. She told Kinville to have her
manager sign it. Kinville said that her manager didn’t see her
come in. Rupert said that she would have to take the form
to a different manager, Lori Johnson. Kinville had Leo Cox,
another manager, sign the form when he walked by even
though he did not see her come in to work. Kinville said that
it was customary for sales associates to fill out a time dis-
crepancy form and leave it on the cash register, and that
when a manager came by the manager would always sign it
regardless of whether he or she had personal knowledge of
the employees’ remarks on the form.
On October 30, Division Manager Rupert approached
Kinville and very loudly asked her where she had been, why
she was not in her work area, and who was covering for her.
Kinville had had some business-related things to do and had
asked Katie Woods, a manager of two adjacent departments,
to cover for her. Kinville told Rupert this. Rupert said that
Woods was unable to cover Kinville’s area as Woods had
customers of her own, and she told Kinville to get back to
her department right away. Kinville had never been con-
fronted in this manner prior to this time.
In November, Kinville was given her monthly review for
the month of September, as the reviews are customarily de-
layed for up to 2 months. Manager Reni Rodriguez gave her
the review, which evaluates employees in various areas, such
as sales, credit applications, absenteeism, and general per-
formance. Rodriguez told Kinville that, although it did not
appear on the September review, she had been late twice for
197BON MARCHE
the month of October and that this would be reflected on her
next review in December. Kinville testified that there is no
category on the review for being late, and she asked
Rodriguez how she was supposed to know that she was late.
Rodriguez said that it was listed in a ‘‘black book.’’ During
her next review, in December, Kinville was told that she had
been late two times in the month of October. Kinville ac-
knowledged that her prior manager, Katie Woods, during a
review for the month of May, noted that she had been late.
Kinville testified that she was not scheduled to work on
the Saturday after Thanksgiving by her supervisor, Reni
Rodriguez, although she was normally scheduled to work on
Saturdays. She complained to Division Manager Lori John-
son about this and was told that the scheduling for that week
was complicated, but that Johnson would try to figure it out
and let her know. Later she received a call from Johnson,
who said she was sorry, but that she was not able to figure
out how to schedule Kinville for that Saturday.
Manager Rodriguez testified that Thanksgiving week was
an unusual week for scheduling as the store is closed on
Thanksgiving. Rodriguez scheduled Kinville to work the Fri-
day after Thanksgiving, which is the busiest day of the year.
As a result of various scheduling considerations, it was not
feasible to schedule Kinville for both Friday and Saturday.
IV. ANALYSIS AND CONCLUSIONS
A. The Unfair Labor Practices
Kelley testified that on February 27, 3 days after she at-
tended the Union’s first organizational meeting, her super-
visor, Cathy Nicks, asked her how she felt about the Union,
and went on to advise Kelley that the Union would not do
the employees any good. Later that day, Operations Manager
Julie Stengem called Kelley into the office and said that
someone had advised Stengem that Kelley had attended a
union meeting, and asked Kelley her opinion of the Union.
I credit Kelley’s accounts of these conversations, and find
that such interrogation by Nicks and Stengem is violative of
Section 8(a)(1) of the Act. Further, I find that Stengem’s re-
mark to Kelley regarding the Respondent’s knowledge of her
attendance at the union meeting created the impression that
her union activity and the union activity of other employees
were under surveillance, and is also violative of Section
8(a)(1) of the Act. DeCasper Corp., 278 NLRB 143, 145
(1986); Thriftway Supermarket, 276 NLRB 1450, 1457–1458
(1985); Roseburg Lumber Co., 278 NLRB 880, 887 (1986).
On March 7, the day the election petition was filed by the
Union, Store Manager Tom Goodman asked Kelley how she
felt about the Union during a meeting which Kelley initiated
for the purpose of discussing the Respondent’s management
training program. During the discussion, Goodman advised
Kelley that he did not want a union in his store, and told
her that ‘‘I take care of my people.’’ He also told Kelley that
he would gladly transfer any employee who wanted to work
in a unionized store to one of the Respondent’s stores that
was unionized. I credit Kelley’s account of the conversation,
and find that Goodman coercively interrogated Kelley and,
by obvious implication, made it clear to her that a promotion
to a managerial position would be more likely in the event
she elected to oppose the union. By such conduct the Re-
spondent has violated Section 8(a)(1) of the Act.
I do not find, however, that Goodman threatened to invol-
untarily transfer employees to unionized stores because of
their union activity. According to Kelley’s account of the
conversation, Goodman clearly stated that he would be glad
to transfer them if they so requested. Such a statement does
not amount to a threat of retaliation against employees who
prefer union representation.
I do not find that the record evidence demonstrates that the
Respondent discriminated against Kelley by reducing her
hours of work in the cash office on March 16. In this regard,
I credit the testimony of Personnel Manager Hartmann and
find that Kelley’s hours were reduced because another em-
ployee with greater seniority desired to be placed on a full-
time schedule, and that staffing considerations required that
the complement of employees in the cash office not be re-
duced.
However, it is clear that between 5 and 12 new employees
were hired during the spring, and that Kelley could have
been given additional hours as a ‘‘rover’’ in preference to
newly hired part-time employees. The record shows that
Hartmann was well aware of Kelley’s union activity at this
time, and of Kelley’s expressed need to earn more than she
was earning after her hours in the cash office had been sub-
stantially reduced; and Hartmann had on file the forms that
Kelley had submitted showing that Kelley was available for
assignment either as a rover or as a cash office associate dur-
ing virtually all shifts of the entire 7-day workweek. I credit
Kelley and find that in May, when she was working as a
rover in men’s furnishings under the supervision of Manager
Knight, she was told by Knight that ‘‘upper management’’
was reluctant to give her more hours as a rover because of
the possibility that Kelley would steal money from the cash
register. This indicates that Hartmann’s failure to schedule
Kelley for more hours as a rover was not dictated by sched-
uling considerations, as Hartmann testified, but rather by Re-
spondent’s suspicions that Kelley may be dishonest; and the
Respondent has proffered no evidence to substantiate this ap-
parent suspicion.
Given the conflicting reasons for the failure to provide
Kelley with more work as a rover, coupled with the credible
record evidence that there was substantial rover work avail-
able which was being performed by newly hired employees,
and that the Respondent’s admitted policy was to give more
senior employees preference in scheduling, I conclude that
the record evidence establishes that the Respondent’s failure
to provide Kelley with more hours of work was
discriminatorily motivated in violation of Section 8(a)(1) and
(3) of the Act. I find that such unlawful conduct extended
from March 16, the date of Kelley’s reduction of hours in
the cash office, until some time in July, when she was again
given full-time hours in the cash office.
I find that the record does not establish that the scheduling
of Kelley to work a fraction of an hour less than Laura King,
a less senior employee, during 1 week in August, was
discriminatorily motivated. Rather, valid business consider-
ations dictated this schedule.
It is clear that Kelley failed to return the $2000 cash office
window fund to the vault on July 24, and that she left out
the $100 cash register fund on September 11, some 6 weeks
later. The record shows that such breaches of cash office pol-
icy are considered to be significant, and that in some in-
stances they may go unreported by the cash office associate
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 There is record evidence to the effect that it would be possible
for someone to lean through the cash office window from the out-
side, and open the cash drawer located beneath the window, and re-
move the money. However, the likelihood of such an occurrence
during times when the store is closed and cash has been inadvert-
ently left in the drawer is extremely improbable.
10 I discount Personnel Manager Hartmann’s explanation that,
while she had knowledge of this infraction by the sales associate,
she did not deem it to be serious enough to warrant a written warn-
ing as the primary training and job of a sales associate on the selling
floor is to sell and deal with customers; conversely, according to
Hartmann, the primary training and responsibility of a cash office
employee is to properly handle money. It is clear that both sales as-
sociates and cash office associates handle money and deal with cus-
tomers, and that the proper handling of money in accordance with
established procedure is necessarily a substantial part of the job of
both categories of employees.
who discovers the error in an effort to protect her fellow as-
sociate from the possibility of discipline. The record also
shows, however, and in this regard I credit Kelley’s testi-
mony, that neglecting to return the cash office funds to the
vault is a not uncommon occurrence, and that cash office as-
sociates and even managers have inadvertently failed to re-
turn the various funds to the vault at the end of the workday.
Further, the record evidence shows that even though the
money is left overnight in the cash office, and is not placed
in the vault as it should be, it is nevertheless relatively se-
cure in the locked and alarmed cash office.9
I credit Kelley and find that in the fall of 1989 two dif-
ferent cash office employees left out money in the cash of-
fice overnight, that this was reported by Kelley to the then
cash office manager, either Luana Bue or Nicks, and that in-
sofar as the record shows, neither associate was given a writ-
ten warning. I further find that in early 1990, Cash Office
Manager Nicks committed a similar infraction and that this
was pointed out to Nicks by Kelley. And when a sales asso-
ciate neglected to bring the cash bags, possibly containing as
much as $600, to the cash office at the end of the day and
rather left them in an unsecured room where employees have
their personal belongings, this associate was not given a writ-
ten warning by Hartmann.10 Thus, the record shows that
prior to the written warning given to Kelley, no other non-
probationary employee received other than a verbal rep-
rimand for failing to follow established money-handling pro-
cedures.
It is significant that the written warning which Hartmann
gave to Kelley on July 28 was unlike other warnings that
Hartmann had previously issued to other employees. Thus
each warning given by Hartmann to four other employees
specifies that further infractions either will or may result in
termination. The warning notice given to Kelley, however,
does not mention termination, but rather states that ‘‘further
disciplinary action may be taken.’’
I credit Kelley’s friend and roommate, Kimberly
Rinehardt, and find that former men’s furnishing manager,
Cheryl Knight, told her that Kelley needed to be careful, that
Kelley’s name, along with other ‘‘troublemakers’’ had been
discussed at management meetings, that Kelley should
‘‘watch her back,’’ and that management didn’t forget.
Knight, who succinctly and unconvincingly denied making
such statements, did not impress me as a credible witness.
Further, Knight made a similar statement to Kelley, whom I
credit, when she told Kelley to be careful about what she
said because ‘‘they will use it against you.’’
It is admitted that Kelley’s extensive activity and involve-
ment with the Union was widely known. Indeed, Labor Rela-
tions Director Gilbert Graham testified that because of
Kelley’s overt union activity, the determination to discharge
her was a ‘‘sensitive’’ and carefully considered matter. He
also testified that company policy did not dictate the manda-
tory discharge of an employee for the second infraction of
improperly handling money, and that the appropriate dis-
cipline under the circumstances was entirely discretionary.
I conclude from the foregoing that the written warning
given to Kelley on July 28 was discriminatorily motivated,
as alleged, as it was the first written warning issued by the
Respondent for similar types of infractions, and occurred fol-
lowing the period when Kelley had been discriminatorily de-
nied hours as a rover, as found above. It is apparent that
there was no standard policy for the issuance of such written
warnings, and that verbal admonitions were considered to be
sufficient. The Respondent has failed to provide a legitimate
reason for such disparate treatment, and I find that the writ-
ten warning was violative of Section 8(a)(1) of the Act.
I further find that the credible evidence demonstrates that
Kelley was discharged because of her union activity. The
policy infractions committed by Kelley, although serious,
were not flagrant, uncommon, or harmful to the Respondent,
and under such circumstances termination is admittedly dis-
cretionary rather than mandatory. Indeed, according to Store
Manager Goodman, it was the Respondent’s policy that the
discharge of an employee should take place after three rather
than two written warnings. The record shows that except for
the two infractions, Kelley was considered to be a highly
qualified employee; she was one of two acceptable can-
didates for the position of cash office manager, and in March
she advised Store Manger Goodman that she was interested
in a career with the Respondent. The Respondent has not
proffered any convincing rationale for exercising its discre-
tion in the manner it did. Moreover, as found above, former
Manager Knight, in no uncertain terms, advised Kelley’s
friend, Rinehardt, that Kelley was considered by management
to be a ‘‘troublemaker’’ and that Kelley should be careful
and ‘‘watch her back.’’ I conclude from the foregoing that
Kelley was discharged in violation of Section 8(a)(1) and (3)
of the Act.
Kelley’s ‘‘peon’’ remark to Manager Cheryl Knight was
clearly an innocuous remark made spontaneously without any
malicious intent. It constituted no more than everyday rep-
artee among friends. Regardless of whether Knight, for some
inexplicable reason, felt offended, it is clear that the Re-
spondent overreacted by admonishing Kelley for making a
remark that would not reasonably have offended a fellow
employee who was stepping down from a managerial posi-
tion. Perhaps it may have been appropriate for the Respond-
ent to advise Kelley to be circumspect about what she said
to Knight in view of Respondent’s apparent knowledge that
this was a highly sensitive subject with Knight. However,
Kelley was not privy to Knight’s perception of the matter;
and the Respondent’s subsequent admonishment of Kelley
appears to confirm what Knight later told Kelley, namely
that she should be careful about what she says because ‘‘they
will use it against you.’’ I find that the admonishment of
199BON MARCHE
11 Ideal Electric Co., 134 NLRB 1275 (1961).
Kelley for the ‘‘peon’’ remark was discriminatorily moti-
vated in violation of Section 8(a)(1) of the Act.
I find no merit in the General Counsel’s contention that
Raymond, rather than Thompson, should have received more
hours of work. Both Thompson and Raymond were known
to be active union adherents. Thompson was allocated more
hours because she was the more senior employee, as Ray-
mond’s prior seniority was not reinstated after her break in
employment.
I find no merit in the General Counsel’s contention that
Sue Wood, an active union adherent, was harassed by the
Respondent in retaliation for her union activity. The fact that
Division Manager Pam Rupert refused to sign her time dis-
crepancy form on one occasion, without more, is insufficient
to establish an unlawful motivation on the part of Rupert;
further, this did not reflect adversely upon Wood. Regarding
the sale of the child’s coat to a customer, it is clear that
Wood was told by her manager, MacKenzie, not to sell the
coat at the sale price unless Wood had previously assured the
customer that she would be given the sale price. Following
this conversation with MacKenzie, it appears that Wood dis-
regarded MacKenzie’s instruction. I therefore find that the
written warning given to Wood was not in retaliation for her
union activity. Finally, the fact that Manager MacKenzie was
attempting to discover who had written some vulgarity on a
work list that MacKenzie had prepared for the employees’
use and, in this regard, questioned Wood and another em-
ployee about whether they were responsible, appears to be no
more than a legitimate prerogative of supervision to inves-
tigate matters of improper employee behavior.
There were four or five incidents involving the alleged dis-
criminatory treatment of employee Kerry Kinville, known to
be an active union adherent. On October 29, Kinville was
unable to clock in on time as someone was using the cash
register on which the employees were to clock in. Division
Manager Pam Rupert refused to sign Kinville’s time discrep-
ancy form, which indicated that Kinville had arrived at work
on time, as Rupert did not observe Kinville when she came
in to work. Later, a different manager signed the form for
Kinville. On the next day, Kinville had been out of her de-
partment as she had some business-related matters to take
care of. As she was returning, Rupert asked her where she
had been, and why she was not in her work area, as there
was no one covering her department. She told Kinville to re-
turn to her department right away. Kinville did not receive
a written warning for being away from her department. Dur-
ing monthly reviews in November and December, Kinville
was told by her manager that she had been late twice during
each review period. Finally, Kinville was not scheduled to
work the Saturday after Thanksgiving by Manager Reni
Rodriguez, although she customarily worked on Saturdays.
I conclude that the record evidence simply does not sup-
port the contention that the conduct of the aforementioned
managers toward Kinville was motivated by her activity on
behalf of the Union. There is no evidence that Kinville was
singled out for such treatment, or that Rupert was attempting
to fabricate some reason to give Kinville a reprimand, or that
the Respondent was falsely accusing Kinville of being late
in order to initiate some adverse action against her. Further,
I credit the testimony of Manager Rodriguez and find that
her failure to schedule Kinville for the Saturday after
Thanksgiving was due to legitimate scheduling consider-
ations, as Thanksgiving week posed unusual scheduling prob-
lems. The foregoing isolated and unrelated incidents occurred
as much as 6 months following the election, at a time when
no union activity was prevalent at the store. I find that these
incidents, whether viewed singly or collectively, do not dem-
onstrate any design by the Respondent to treat Kinville in a
discriminatory manner. Moreover, the Respondent acknowl-
edged that Kinville is considered to be a good employee, and
the aforementioned matters have resulted in no warnings or
unfavorable monthly evaluations.
It is clear that prior to the union organizational campaign
the employees were permitted to use the lunchroom bulletin
board for any legitimate purpose. They were not required to
obtain permission from management to post appropriate no-
tices, and their access to the bulletin board was not restricted
in any manner. The Respondent abruptly changed this policy
upon the advent of the Union, and thereafter the employees
were no longer permitted to utilize the bulletin board for any
purpose; and union-related material which employees had
posted was conspicuously removed by management. Such
conduct on the part of the Respondent which inhibits em-
ployees from posting union-related information in the lunch-
room where it may be conveniently seen and read by all em-
ployees is clearly violative of Section 8(a)(1) of the Act. See
Liberty House Nursing Homes, 236 NLRB 456, 461 (1978);
Connecticut Color, Inc., 288 NLRB 699, 704 (1988); Stanley
Furniture Co., 244 NLRB 589, 592 (1979); Dawson Carbide
Industries, 273 NLRB 382, 386 (1984); Springfield Jewish
Nursing Home, 292 NLRB 1266, 1275–1276 (1989).
The Respondent’s announcement to the employees on
March 28 that a new commission program would be imple-
mented in May had clearly been in the planning stages long
before the advent of the Union. It had previously been imple-
mented at other Respondent’s stores, including at least one
store represented by the Union herein; and the Respondent’s
parent corporation required that it be placed in effect at all
stores with a specified volume of business. Contrary to the
position of the General Counsel, the record evidence does
not demonstrate that the commission program was either an-
nounced or implemented in response to the union organiza-
tional campaign; rather it was simultaneously placed into ef-
fect at the Olympia store and other stores in accordance with
predetermined valid business considerations.
In this regard, I do not credit the testimony of employee
Thompson to the effect that Goodman told her that there
would not be a commission program at a union store. In fact,
the commission program was in effect at union stores. More-
over, although Goodman had private discussions with some
50 other employees regarding the new commission system,
there is no evidence that Goodman made this alleged state-
ment to any of them.
B. The Election Objections
The Union filed four distinct election objections. The first
objection alleges as objectionable conduct the unfair labor
practices alleged in the complaint which occurred between
the date of the filing of the election petition and the date of
the election.11 I find merit to the Union’s objection that Store
Manager Goodman coercively interrogated employee Holly
Kelley on March 7; that after the election petition was filed
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Cf. Clark Equipment Co., 278 NLRB 498, 505 (1986); Metz
Metallurgical Corp., 270 NLRB 889 (1984).
the Respondent unlawfully discontinued its bulletin board
policy and thereafter refused to permit the posting of union-
related material and required that employees receive prior au-
thorization to post any other type of material; and that begin-
ning about March 16 and continuing throughout the
preelection period and thereafter, the Respondent
discriminatorily failed and refused to assign work as a rover
to Kelley.
At the hearing the Union withdrew two of its election ob-
jections. The fourth, and final, election objection is as fol-
lows:
On or about May 12, 1990, the Employer dissemi-
nated a memorandum in question-and-answer form
which misstated and overstated the amount and method
of collection of Union dues, fees, and assessments. Spe-
cifically, the document stated that the Union charges
every new member an initiation fee, which is not the
case; stated that the Union would charge an initiation
fee for every re-hire who comes in (the Union does not
charge an initiation fee if a re-hire has taken a with-
drawal card); and stated that the Union may require
contributionsto strike funds and other special assess-
ments, without stating that all such contributions and
assessments must be approved in advance by the mem-
bership.
It is clear that the foregoing objection must be dismissed,
as alleged misrepresentation during the preelection period
may not be used to set aside an election. In Midland Na-
tional Life Insurance, 263 NLRB 127 (1982), the Board stat-
ed that:
[W]e will no longer probe into the truth or falsity of
the parties’ campaign statements and . . . we will not
set elections aside on the basis of misleading campaign
statements.
See also UARCO, Inc., 286 NLRB 55 (1987).
I conclude that the Respondent’s aforementioned unfair
labor practices which it committed following the filing of the
representation petition herein on March 7, and which the
Union included as timely filed election objections, are suffi-
cient to establish that the Respondent has interfered with the
employees’ freedom of choice. Contrary to the contention of
the Respondent, it is reasonable to conclude that the Re-
spondent’s unlawful conduct, which included the denial to all
employees of the right to utilize the Respondent’s bulletin
board for the posting of union-related material, and the dis-
criminatory denial of working hours to employee Kelley, a
staunch and highly visible union advocate, affected the re-
sults of the election.12 I shall therefore recommend that the
election held on May 18 in Case 19–RC–12155 be set aside
and that a second election be directed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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. The Respondent has violated Section 8(a)(1) of the Act
by coercively interrogating employee Holly Kelley, by creat-
ing the impression that employees’ union activity was under
surveillance, by issuing a written warning to Kelley for fail-
ing to place the cash fund money in the vault, by
reprimanding Kelley for making an apparently innocuous re-
mark to then Manager Cheryl Knight, and by promulgating
and enforcing an unlawful policy restricting the use of the
lunchroom bulletin board in a manner which precluded the
posting of union-related campaign material.
4. The Respondent has violated Section 8(a)(3) and (1) of
the Act by failing to provide Kelley with sufficient hours as
a rover subsequent to March 16, and by discharging Kelley
on September 16.
5. By the various unfair labor practices found above, spe-
cifically those occurring following the filing of the petition
herein on March 7 and extending through the date of the
election on May 18, the Respondent has interfered with the
freedom of choice of employees, and it is recommended that
the election in Case 19–RC–12155 be set aside and that a
second election be directed.
6. Except as found above, the Respondent has not engaged
in the other unfair labor practices as alleged in the complaint,
nor has it engaged in other objectionable conduct encom-
passed within the Union’s election objections.
THE REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (3) of the Act, I recommend that it be required
to cease and desist therefrom and in any other manner inter-
fering with, restraining, or coercing their employees in the
exercise of their rights under Section 7 of the Act. Moreover,
the Respondent shall be required to post an appropriate no-
tice attached hereto as an appendix.
Having found that the Respondent unlawfully failed to
provide employee Holly Kelley with sufficient hours as a
rover, and that it discharged her in violation of the Act, the
Respondent shall be required to make Kelley whole for any
loss of pay as a result of the discrimination against her, and
reinstate her to her former position of employment without
prejudice to her seniority or other rights and privileges. Said
backpay is to be computed in accordance with the Board’s
decision in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest on such backpay to be computed in accordance
with the Board’s decision in New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]