F. W. Woolworth Co.

National Labor Relations Board - Board Decisions

Apr 27, 1993

310 N.L.R.B. 1197 (N.L.R.B. 1993)

1197
310 NLRB No. 204
F. W. WOOLWORTH CO.
1 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by discriminatorily reducing the
working hours of unit employees during the period of the Union’s
consumer boycott in support of its bargaining demands, we find that
the record supports the judge’s finding that the hours worked by
newly hired employees, three temporarily transferred assistant man-
agers, and on-call employee O’Brien, materially approximated the
reduction in scheduled working hours of unit employees. In so con-
cluding, we have carefully reviewed the Respondent’s exception
comparing the reduction in hours with those worked by the new
hires, the assistant managers and O’Brien, and the Respondent’s spe-
cific contention that the hours attributable to training of the new em-
ployees should not have been included in the judge’s calculus. The
testimony of the Respondent’s personnel specialist, Ann Thomas, es-
tablishes, however, that at least a portion of employee training time
is spent actually working. We note in addition the Respondent’s con-
tention that the schedule reduction commenced in full the week of
October 27, 1992. The boycott did not start until October 29, 1992,
however, and the record establishes that the first weekly schedule
fully reducing unit employees’ hours commenced the week of No-
vember 5, 1992.
F. W. Woolworth Co. and United Food and Com-
mercial Workers Union, Local 4R, affiliated
with United Food and Commercial Workers
International Union, AFL–CIO, CLC. Case 19–
CA–21256
April 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 31, 1992, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed an answering brief to the
Respondent’s exceptions. The Respondent filed a brief
in reply to the General Counsel’s 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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
Contrary to our dissenting colleague, we agree with
the judge that the Respondent violated Section 8(a)(1)
of the Act by photographing and videotaping employ-
ees. The judge found that the Respondent’s off-duty
employees were engaged in protected union activities
when they stationed themselves in the general area of
the Respondent’s store entrances in order to distribute
handbills to potential customers and appeal to them to
shop elsewhere during the labor dispute with the Re-
spondent. The judge specifically found that handbillers
did not block store entrances. The judge further found
that at most some handbillers stood in front of store
entrances, but that customers were able to walk around
the handbillers. The judge additionally found unsup-
ported the Respondent’s assertion that large contin-
gents of handbillers gathered in front of the entrances.
Indeed, the Respondent’s district manager Kovar testi-
fied that the handbillers moved to the side when he re-
quested they do so. No misconduct by the handbillers
is asserted by the Respondent other than their location.
As the judge recognized, the Board has long held
that absent proper justification, the photographing of
employees engaged in protected concerted activities
violates the Act because it has a tendency to intimi-
date. Waco, Inc., 273 NLRB 746, 747 (1984), and
cases cited therein. Here, the record provides no basis
for the Respondent reasonably to have anticipated mis-
conduct by those handbilling, and there is no evidence
that misconduct did, in fact, occur. Unlike our dis-
senting colleague, we adhere to the principle that
photographing in the mere belief that ‘‘something
‘might’ happen does not justify Respondent’s conduct
when balanced against the tendency of that conduct to
interfere with employees’ right to engage in concerted
activity.’’ Flambeau Plastics Corp., 167 NLRB 735,
743 (1967), enfd. 401 F.2d 128, 136 (7th Cir. 1968).
Accord: NLRB v. Colonial Haven Nursing Home, 542
F.2d 691, 701 (7th Cir. 1976) (‘‘the Board may prop-
erly require a company to provide solid justification
for its resort to anticipatory photographing’’).
In addition, we disagree with our dissenting col-
league’s reliance on the Third Circuit’s United States
Steel decision, which denied enforcement of a Board
Order. United States Steel Corp. v. NLRB, 682 F.2d 98
(3d Cir. 1982), denying enf. to 255 NLRB 1338
(1981). In United States Steel, the Board held that the
fact that the employees publicized their activities is en-
titled to ‘‘little weight,’’ and the Board has continued
to cite its decision with approval. John Ascuaga’s Nug-
get, 298 NLRB 524 fn. 3, 554 (1990), enfd. in relevant
part 968 F.2d 991 (9th Cir. 1992). Finally, the cases
our dissenting colleague cites in footnote 2 of his dis-
sent are not ‘‘analogous’’ because they are based on
the principle that an employer’s ‘‘mere observation’’
of open, public union activity on or near its property
does not constitute unlawful surveillance. When an
employer’s surveillance activity constitutes more than
‘‘mere observation,’’ the Board has found a violation
of the Act. E.g., Gupta Permold Corp., 289 NLRB
1234 fn. 2 (1988); Baddour, 281 NLRB 546, 548
(1986), enfd. 848 F.2d 193 (6th Cir. 1988).
Photographing and videotaping clearly constitute more
than ‘‘mere observation’’ because such pictorial rec-
ordkeeping tends to create fear among employees of
future reprisals. Waco, supra.
Accordingly, for all these reasons, we adopt the
judge’s finding that the Respondent violated Section
8(a)(1) of the Act by photographing and videotaping
employees engaged in union activities without proper
justification.
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See, e.g., Toledo (5) Auto/Truck Plaza, 300 NLRB 676, 679
(1990). (An employer’s photographing of a picket line was unlawful
where there was no showing of anticipated picket line misconduct
and no showing that the action had any lawful or noncoercive pur-
pose.) Cf. Concord Metal, 295 NLRB 912, 921 (1989). (An employ-
er’s photographing of a picket line at a common situs was lawful
where the employer sought to preserve evidence regarding possible
charges of secondary boycott or blocking of ingress and egress.)
2 In analogous situations, the Board does not find employer sur-
veillance unlawful when an employer observes employees who open-
ly solicit for a union in ‘‘full public view.’’ See. e.g., Chemtronics,
Inc., 236 NLRB 178 (1978); see also Hoschton Garment Co., 279
NLRB 565, 566 (1986), and Harry M. Stevens, Inc., 277 NLRB 276
(1985).
3 I also disagree with the judge’s conclusion that the Respondent
failed to provide proper justification for its action. In this regard, I
note that the judge accepted the Respondent’s contention that
handbillers stood in the center of entrances and that customers had
to walk around handbillers to enter and exit. Surely, an employer
need not prove that ingress and egress was willfully blocked before
attempting to acquire definitive evidence on the matter. Otherwise,
it could only seek proof (e.g., photographs) after already obtaining
other proof. In my view, an employer, before photographing events,
must have a reasonable belief that certain conduct might be occur-
ring. Here, evidence that customers had to walk around handbillers
would satisfy a reasonable belief requirement and justify making a
record of events. See Concord Metal, supra at 921 (one incident of
a delayed delivery justified and employer’s taking pictures of a pick-
et line).
1 The caption has been amended to reflect Respondent’s correct
name.
2 All dates refer to the 1990 calendar year unless otherwise shown.
3 I grant the General Counsel’s unopposed motion to correct the
transcript. That motion is designated officially as G.C. Exh. 20.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, F. W. Woolworth Co.,
Butte, Montana, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
MEMBER OVIATT, dissenting in part.
I agree with my colleagues except in the following
respect. Unlike my colleagues and the judge, I would
not find that the Respondent’s photographing of em-
ployees, in the circumstances of this case, violated
Section 8(a)(1) of the Act.
As fully recounted by the judge, the Union here, to
protest the Respondent’s efforts to seek concessions at
the bargaining table, commenced a consumer boycott
of the Respondent’s store. The boycott involved off-
duty employees handbilling customers at the store en-
trances and making oral appeals to customers. The
Union notified the local media of the boycott and this
resulted in at least one television spot that included
interviews with handbilling employees. Several em-
ployees wrote a letter, published by the local news-
paper, appealing for public support of the boycott.
During this period of time, management officials
videotaped and photographed the handbilling employ-
ees. Management sought to support its claim that the
handbilling employees were blocking customer ingress
and egress. Two assistant managers shot about 5 min-
utes of video and about 24 photographs.
In my view, the photographing of employees is not
per se unlawful. Rather, I would look at all the cir-
cumstances to determine whether employees were co-
erced.1 In United States Steel Corp. v. NLRB, 698 F.2d
98 (3d Cir. 1982), the court held that an employer’s
photographing an employee demonstration was not un-
lawful. The employees were protesting the employer’s
failure to provide locker room facilities for female em-
ployees. As here, the employees and the union in
United States Steel successfully sought to publicize
their efforts. Local media showed pictures of the em-
ployees’ demonstration. The court did not hold that
picture taking by a third party necessarily justifies pic-
ture taking by an employer and I agree. But if employ-
ees seek and obtain publicity, this is a significant fac-
tor to be considered in determining whether an em-
ployer’s photographing of employees would tend to
interfere with, restrain, or coerce employees.2
I would dismiss this allegation of the complaint.3
Scott F. Burson, Esq., for the General Counsel.
James J. Pirretti, Christopher J. Hoey, and Michelle M.
DiGello, Esqs., of New York, New York, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. United
Food and Commercial Workers Union, Local 4R, affiliated
with United Food and Commercial Workers International
Union, AFL–CIO, CLC (Union), initiated this proceeding by
filing an unfair labor practice charge against F. W. Wool-
worth Co.1 (Company or Respondent) on December 12,
1990.2 The Union amended the charge on February 1, 1991.
On February 4, 1991, the General Counsel of the National
Labor Relations Board (NLRB or the Board), acting through
the Regional Director for NLRB Region 19, issued a formal
complaint based on the Union’s charge. The complaint incor-
porated a notice of hearing before an administrative law
judge. The General Counsel amended his complaint on May
31, 1991, and at the hearing. As amended, the complaint al-
leges that Respondent violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act).
Respondent timely answered the complaint denying that it
engaged in the unfair labor practices alleged.
I heard this matter from June 18 through 21, 1991, at
Butte, Montana. After carefully considering the record,3 the
demeanor of the witnesses, and the posthearing briefs of the
General Counsel and Respondent, I find Respondent engaged
1199F. W. WOOLWORTH CO.
4 At the hearing, the General Counsel’s motion to amend the com-
plaint for the purpose of deleting pars. 7(a), 8(a) through (c), 9(a)
and (b), and that portion of 10(a) referring to the ‘‘length of proba-
tionary period’’ was granted.
5 Respondent’s direct inflow to its operations in the State of Mon-
tana during the 12 months preceding the issuance of the complaint
exceeded a de minimis amount and its gross sales exceeded the dol-
lar volume established by the Board for exercising its statutory juris-
diction over retail enterprises. Respondent admits that it is engaged
in commerce and in a business affecting commerce within the mean-
ing of Sec. 2(6) and (7) of the Act. Therefore, I find the policies
of the Act are effectuated by exercising the Board’s jurisdiction to
resolve this labor dispute.
6 Under the terms (art. 5) of the parties 1986–1989 collective-bar-
gaining agreement which were in effect at times relevant here, em-
ployees are categorized as: (1) regular—worked at least 24 hours in
6 of the past 12 consecutive weeks; (2) part-time—works more than
8 hours per week on a regularly scheduled basis; (3) casual—nor-
mally works 8 hours or less per week on an on-call basis; and (4)
seasonal—commences and completes employment between Novem-
ber 15 and December 31 or is hired for the garden center between
April 1 and July 1. The casual and seasonal employees are not in-
cluded in the bargaining unit.
in certain unfair labor practices alleged, but not others, based
on the following
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Pleadings
The General Counsel alleges, in essence, that Respond-
ent’s supervisors and agents implicitly threatened employees
with more onerous working conditions, uttered statements de-
signed to interfere with lawful employee handbilling, and
created the impression protected employee activity was under
surveillance by photographing, videotaping, and otherwise
observing employee handbilling activity at the entrance to
Respondent’s Butte store. Such conduct, the General Counsel
believes, independently violated Section 8(a)(1).
The General Counsel further alleges Respondent violated
Section 8(a)(3) because its supervisors or agents canceled or
denied vacation leave and personal days of certain unit em-
ployees; discriminatorily enforced its sick leave policy; al-
tered employee schedules and reduced employee work hours;
used new employees, management trainees, and others to
perform work normally performed by unit employees; and
imposed work schedules not permitted under the expired col-
lective-bargaining agreement.
The complaint also alleges Respondent violated Section
8(a)(5) by altering its employee work scheduling practices
without affording the Union an opportunity to bargain con-
cerning this subject.4
Respondent’s answer flatly denies the conduct attributed to
it in the complaint. In addition, Respondent contests the com-
plaint allegations concerning the supervisory or agency status
of certain individuals but none are relevant to the issues pre-
sented for decision here.
In his brief, the General Counsel moved to ‘‘amend the
Complaint to conform to the proof.’’ The proposed amend-
ment is designed, inter alia, to provide a basis for finding
that Respondent violated Section 8(a)(5) by repudiating its
collective-bargaining agreement with the Union. This claim
rests on a remark to an employee by Respondent’s store per-
sonnel manager, in response to the employee’s postcontract
work schedule complaint, that ‘‘you have no contract.’’
Respondent argues in its brief that the statement, if made,
is true. Further, Respondent argues that the statement is not
coercive, does not interfere with the bargaining process, and
does not repudiate the contract.
I grant the General Counsel’s motion with respect to spe-
cific complaint allegations. I deny the General Counsel’s mo-
tion insofar as it seeks to add the aforementioned repudiation
theory.
Although, as found below, the ‘‘no contract’’ remark was
admittedly made, I have concluded that it is not tantamount
to unlawful repudiation where, as here, the supervisor in-
volved so obviously lacked authority to alter the broad range
of terms covered by the collective-bargaining agreement to
such a degree required for finding repudiation.
B. Facts
1. Background
Respondent, a New York corporation, retails variety goods
at numerous locations across the United States, including
Butte, Montana, where this dispute arose.5 The Butte store,
also known as store 1934, is located in the Butte Plaza Shop-
ping Mall where Respondent and numerous other unrelated
employers lease space from the mall owner. Since 1971, the
Union has represented certain of Respondent’s employees,
primarily all selling floor employees.
In November 1989, K-Mart, a competitor, opened a Butte
retail facility adjacent to store 1934. Not surprisingly, the
new Butte K-Mart had an almost immediate, adverse impact
on store 1934; purportedly its sales declined by up to 30 per-
cent compared to sales for a comparable time periods.
As a rule, the unit regular employees enjoyed stable em-
ployment.6 All who testified reported working regular sched-
ules of 36 to 39 hours per week (exclusive of optional Sun-
day hours) with regular days off and break periods which
rarely varied from one week to the next except for minor in-
stances caused by employee vacations and illness. The last
consistent scheduling variance occurred in about February
1990 when Respondent adjusted to the new reality of K-
Mart’s competition by laying off all part-time employees and
reducing the regular employees’ workweek by 1 hour.
2. The 1990 bargaining
The parties’ 1986–1989 collective-bargaining agreement at
Butte was extended for a 1-year period in 1989. The ex-
tended agreement was scheduled to expire on September 30.
Bargaining for a new agreement commenced August 14
against a backdrop of anxiety represented by the new com-
petition. Respondent approached the bargaining table with a
concession agenda; the Union focused on resisting conces-
sions and altering certain scheduling practices.
Representing the Company at the first bargaining session
were Assistant Corporate Secretary–Assistant General Coun-
sel Christopher Hoey, Regional Personnel Director Donald
Dill, Store Manager Ronald Major, and Store Personnel Di-
rector Sue Joy. The Union’s negotiators were International
Representative Robert Patterson, Union President Pamela
Casagranda-Miller, and an employee committee.
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 For example, some employees sought the liberty to alter their
scheduled workdays provided they arranged for a qualified sub-
stitute. Some claimed that Joy, whose duties included employee
scheduling, consistently refused such substitutions for fear of causing
a scheduling nightmare.
8 Hoey described the exchange as ‘‘one of the most vicious and
personal vendettas directed at an individual I’ve encountered in my
life.’’ However, no one attempted to provide any detail as to what
precisely was said.
9 To the extent that Joy’s meaning is ambiguous, she later ex-
plained:
I have always been good to employees. I try to be as just and
fair as I can be. If they think I’ve been a bitch in the past, they
can just wait, because I’m not going to do anything any more
for them special. I’m not going to go out of my way to do any-
thing like that. In other words, I meant I’m not going to put
their day off with their birth day to make them have two days
together. I’m not going to do any of that kind of stuff.
During the first session, the union negotiators addressed
three or four issues related to Sue Joy’s scheduling prac-
tices.7 Hoey, the Company’s principal spokesperson, sought
specific details about the employee complaints, including the
employee names and dates of the events giving rise to the
Union’s proposals. The union negotiators refused to supply
identifying information claiming that employees feared ret-
ribution by Joy. Company witnesses reported that an acri-
monious exchange followed which Joy obviously interpreted
as an unwarranted personal assault on her benevolence to-
ward employees.8
Joy admits that during the evening following the first bar-
gaining session she told employee Linda Brosovic (one of
the Union’s bargaining committee members) that ‘‘[i]f they
think that I’m a bitch now, wait.’’9 Employee Eva
Holderman said that when she met Joy at work the following
morning, she asked Joy about the previous day’s bargaining
session and Joy angrily retorted, ‘‘Well, it was pick on Sue
Joy day, and [if] you think I was a bitch before, just wait.’’
Holderman said Joy appeared upset so she ‘‘just shut up.’’
Joy denies that she ever made such a remark ‘‘to’’
Holderman but acknowledged that she might have told
Holderman that she had made such a remark.
The parties failed to make progress toward resolving their
differences at the second bargaining session on September 7.
Some evidence shows that the Union made strike threats in
an effort to secure modification of certain company proposals
and that the Company responded with its own threats to hire
permanent replacements if a strike occurred.
On September 10, the union unit members voted to author-
ize a strike and union officials initiated internal procedures
seeking its International’s authorization to engage in a strike
or a boycott to support its bargaining demands. The Inter-
national authorized a boycott outright but vested a regional
official with authority to determine whether or not to call a
strike.
On the other side, Regional Personnel Director Dill pre-
pared a strike contingency plan. District Manager Art Kovar,
a Butte resident who formerly managed store 1934, was des-
ignated to oversee the strike plan implementation at the site.
Dill’s plan anticipated that the store would continue to op-
erate if a strike occurred. It provided for staffing the store
with nine current employees considered likely to cross a
union picket line, at least four assistant managers temporarily
transferred from other stores, one or two regional office spe-
cialists, and replacement employees hired during recruiting
efforts set to begin on September 24. The plan also ad-
dressed 24-hour security, potential common carrier disrup-
tions, and strike-period sales promotions.
At the third session on October 19, Respondent’s nego-
tiators presented their last and final offer, or at least as close
as they cared to come to that. Hoey emphasized that he in-
tended to implement the terms if they were not accepted and
Patterson threatened to strike if he did so. Ultimately, how-
ever, the Union agreed to provide a 72-hour notice before
engaging in a strike and the Company agreed to give a simi-
lar notice before unilaterally implementing any of its bar-
gaining proposals.
On October 21, the unit union members rejected Respond-
ent’s last offer. The following day, Casagranda-Miller noti-
fied Hoey’s New York office of the rejection and advised
that employees would continue to work as usual. Hoey tele-
phoned Casagranda-Miller the following day to confirm the
message and was informed again that the employees intended
to continue working.
3. The consumer boycott
Undoubtedly concerned that Respondent would carry out
its threats to permanently replace striking employees, the
Union decided to engage in a consumer boycott of store
1934 rather than call a strike. The boycott began on October
29.
The most significant element of the boycott involved
handbilling and direct appeals to customers about to enter the
store by off-duty employees posted at the store entrances.
Initially, the off-duty employees also carried picket signs but
use of the signs was discontinued after about a day and a
half at the insistence of an International official who was
concerned about creating an impression that a strike was
progress.
In addition, the Union notified the local media of its action
in order to secure publicity for the boycott. At least one local
television station visited the scene and conducted televised
interviews with union agents and handbilling employees
which were aired. Several employees signed a letter to the
local newspaper editor appealing for public support of the
boycott. That letter was published together with the names
of certain signers.
The store has three entrances reserved for public use. One
entrance—about 13 feet wide—leads into the store from the
enclosed mall area. The two other entrances—each 7-foot
double door openings—lead into the store from the adjacent
parking lot. Off-duty employees and, on occasion, union
agents stationed themselves at each entrance so they could
distribute handbills to approaching shoppers and verbally ap-
peal for them to shop elsewhere during the labor dispute.
Almost from the beginning, management officials—most
particularly District Manager Kovar—accused the handbilling
employees of interfering with the customers’ ingress and
egress at the store entrances. Attorney Hoey, who was not
frequently at the store during the boycott, directed that vid-
eos and photographs be taken to support these claims.
Hoey’s directive was ultimately carried out by two assistant
managers who completed about 5 minutes of video and shot
less than 24 photos.
Only two photos were offered as evidence. Store Manager
Major flatly asserted that the photos reflect handbilling em-
1201F. W. WOOLWORTH CO.
10 The two sequential photos show a customer leaving the store
and entering the mall unobstructed to the left of an off-duty em-
ployee and a man (a nonemployee who regularly spoke with the
boycotters during his walking exercises in the mall) situated roughly
in the center of the store entrance. To their right, another off-duty
employee holds a picket sign.
11 No claim is made that employees trespassed on Respondent’s
mall leasehold while handbilling. However, Respondent apparently
disciplined certain employees overheard making boycott appeals to
customers while on duty.
12 Specifically, Hoey’s letter notified the Union of the implementa-
tion of the Company’s proposals to: (1) reduce Sunday pay from
double time to time and a half; (2) eliminate night differential pay;
(3) eliminate the right of senior employees to claim Sunday work;
and (4) hire part-time students.
13 Cost to sell is a management tool designed to provide decision
makers with a yardstick by which to measure store sales against
wages paid employees. As explained by Dill, and as shown in R.
Exh. 23, cost to sell reflects the percentage of total sales consumed
by in-store salary costs for all employees except the store’s manager
and associate manager.
14 As Thomas explained below, and as otherwise shown, the budg-
et axe fell almost exclusively on unit employees:
JUDGE SCHMIDT: If I might, I have one general thing I would
like for you to clear up. This salary budget that Mr. Dill gave
you applied to almost everyone who worked in the store. Can
you tell me who it did not apply to?
A. To the non-sell, which would be office personnel, assistant
manager, any people that were behind the scenes.
. . . .
By Mr. Burson:
Q. You said ‘‘the people behind the scenes’’ in addition to the
office and assistant manager.
Continued
ployees blocking the mall entrance. In fact, they depict a cus-
tomer exiting the store practically ignored by two employees
engaged in handbilling.10 Apparently, the other photos and
the videos produced similar results; none were offered in evi-
dence and Attorney Hoey wrote in a November 17 memo to
Dill that ‘‘[t]he videos are disappointing . . . I wanted shots
of them blocking the door—not peacefully handbilling.’’
Shortly after the boycott began, District Manager Kovar
and some of the employees engaged in handbilling became
embroiled in a series of tiffs over their location outside the
store entrances.
Employee Mary Dolinger recalled that Kovar angrily told
her that she was disrupting the store business by standing di-
rectly in front of the mall entrance and ask who told her to
stand there. Dolinger reported that the mall manager insisted
that she keep to that position because of complaints of inter-
ference by mall tenants immediately adjacent to the Wool-
worth store.
Linda Brosovic also claims that Kovar told her in the pres-
ence of Darlene Panion, Gloria Trevenna, and Toni Cor that
‘‘it was illegal to stand in front of the store and do the
handbilling.’’ At the time, Brosovic said that she was stand-
ing to the side of the mall entrance. Although Kovar ap-
peared upset, Brosovic nevertheless disagreed with his asser-
tion.
Panion said that Kovar instructed Brosovic, Dolinger, and
herself to remain 10 feet out from the Woolworth mall en-
trance on November 5 so they would not block the entrance.
The following day the mall manager told Panion and
Dolinger that they had to remain within 5 feet of the mall
entrance while handbilling. They reported Kovar’s instruction
from the previous day but the mall manager remained ada-
mant and told them that Kovar should contact the mall attor-
ney if he had any problem with her instructions.
A little later that same day, Kovar again told Dolinger and
Panion that they had to remain 10 feet out from the mall en-
trance. Dolinger told Kovar to speak with the mall attorney
and remained steadfast at her location.
Kovar left and returned a short while later (apparently
after speaking with the mall manager) saying that he was
going to talk to his lawyers and that ‘‘[h]e was going to see
about this.’’ Nothing further came of the matter.11
Kovar told Sharon Henderson and two other employees
who were handbilling at a parking lot entrance that he was
merely being nice to them by allowing them to remain with-
in 5 feet of the entrance. Henderson clearly was more upset
because Kovar put his hand on her shoulder as he spoke, a
gesture she thought was totally unnecessary.
Kovar acknowledged that he spoke to the boycotters about
their location. From the following, his principal objection re-
lated solely to location:
They were standing in the center of the doorway
where our customers should pass and our customers
were having to go around the boycotters to get into the
store and our customers were being interrupted and
stopped along the way as they were trying to enter the
store.
By his account, the boycotters moved to the side when he
requested them to do so. Kovar recalled that he told the boy-
cotters that it was unlawful to block the entrance but denied
that he told any of them that it was unlawful to handbill.
Some employees estimated that up to 50 percent of the
customers to whom they made appeals turned away; others
gave lower estimates. Management officials claimed that
sales declined by about 50 percent almost immediately, a
claim repeated several times in Respondent’s brief. No com-
parative sales records were proffered to establish the precise
effect the boycott may have had on the store’s sales.
On October 31, Attorney Hoey wrote to the Union’s presi-
dent claiming that an impasse had been reached in negotia-
tions and giving the Union the agreed-upon 72-hour notice
that the Company intended to implement portions of its final
offer effective November 5.12 He also advised that the Com-
pany intended to hire a ‘‘pool of permanent replacements’’
in case the employees chose to strike. According to Hoey’s
letter, the ‘‘replacement hiring’’ would commence before
November 5.
The Company concededly implemented portions of its
strike contingency plan when the boycott began. Almost im-
mediately, Regional Personnel Director Dill reconfigured the
store’s personnel budget by reducing it about 10 percent. Dill
claimed that this action was taken to maintain the store’s rea-
sonable cost-to-sell ratio.13
Dill also dispatched Ann Thomas, a personnel specialist at
his Northern California office, to the Butte store. Thomas im-
plemented the reduced salary budget by taking over weekly
employee scheduling from Sue Joy. As a norm, Thomas ex-
plained, regular employee hours were reduced to the min-
imum level sufficient for them to retain employee benefits
which is 24 hours per week.14
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Maintenance, freight room, the non-union, well, I suppose
it was—there is a group of people that are considered key em-
ployees that we have[:] general office, security, freight room,
maintenance, assistant manager, personnel. I think that’s the
ones that were listed.
15 During the boycott, three of the remaining six on-call employees
worked no hours at all. The remaining three worked a total of 32.5
man-hours during the boycott period.
16 In its brief, Respondent asserts that John Cady did not work any
hours during the boycott. G.C. Exh. 19, the exhibit from which this
data was drawn, reflects that Cady worked worked 24.5 hours during
the week ending December 2, the last week of the boycott.
17 The General Counsel’s complaint alleges the reduction in hours
and other scheduling changes separately as unlawful. Nothing indi-
cates that the changes in workdays and break periods resulted from
anything other than the natural consequence of reducing employee
hours. Accordingly, all scheduling changes are lumped together here-
after as reduction in hours.
18 The Company posts a weekly schedule and a daily schedule. In
general, the former reflects reporting and quitting times, the
lunchbreak time, and the assigned department. The latter serves to
provide an update for the weekly schedule as well as showing the
breaktime and, where applicable, the person assigned to relieve for
breaktime. Employees checked the daily schedule for minor revisions
caused by someone taking timeoff.
19 The 4-hour shift rule (1986–1989 contract article 6(f)) reads:
Any employee who is called and reports to work shall be
scheduled four (4) hours or more daily and shall be furnished
not less than four (4) hours work for that particular day or four
(4) hours pay in lieu thereof, except where employee is unable
to work four (4) hours because of personal reasons or for those
whose work period is between 6:00 P.M. and 9:30 P.M. [Em-
phasis added.]
20 Instead, Panion claimed that she learned that her November 5
schedule had been changed to a 4-hour shift when Joy telephoned
her at home later in the evening on November 3 with that informa-
tion.
21 Store Manager Major explained that these individuals are often
referred to as manager-trainees but are actually classified as assistant
managers.
The first postboycott weekly schedule was posted by at
least November 3, covering the workweek commencing on
Monday, November 5. The November 5 schedule reduced
the regular employees’ hours a normal range of 36 to 39
hours to 24 to 26 hours. These reductions were maintained
in effect throughout most of the boycott period.
The weekly payroll hours for October through the first
week in January 199l reflect that 53 employees were on the
payroll immediately prior to the start of the boycott. Eight
are managers, supervisors, or office personnel specifically
identified in the strike contingency plan as persons likely to
work through a strike. Two more, Shirley Paynter and Joan
Yocim, are classed as floor supervisor and security/floor su-
pervisor, respectively. Five carry the 340 designation, mean-
ing that they are nonunit restaurant employees. Seven are
nonunit casual or call-in employees. None of the foregoing
show any unusual cut in hours during the boycott.
Five employees listed on the preboycott payroll show no
active employment prior to or during the boycott. One other
retired on November 5. Of the remaining 25 employees, the
record shows that 24 had their hours cut in the general range
described above throughout the boycott. Only one, merchan-
diser Patti Collins, had no appreciable cut in hours through-
out the boycott.
One on-call employee, Jean O’Brien, worked hours during
the first week the reduced hours policy was in effect which
paralleled her highest preboycott hours. In the following
weeks, O’Brien’s hours nearly doubled.15 The payroll record
also shows Respondent hired three new employees on No-
vember 9, four more new employees on November 16, and
three additional new employees on November 26. Joni
Acebedo, hired on November 9, was terminated after work-
ing 13 hours in 2 weeks. Gregory Parks, hired on November
16, was terminated on November 20 after working 11.75
hours. Debra Bibber, also hired November 16, was termi-
nated on November 25 after working 28 hours.
Altogether, O’Brien and the new employees worked a total
of 417 man-hours during the boycott.16 When the likely
man-hours of the temporarily transferred assistant managers,
discussed below, are added, this number begins to approach
the approximate number of man-hours cut from the unit em-
ployees’ schedule during the boycott.
The drastic changes reflected in the November 5 schedule
naturally caused a ripple effect which produced changes in
the days employees were scheduled to work, and when they
took their breaks and lunch periods.17
Because of the radical scheduling revisions during the boy-
cott period, the daily schedule contained far more scheduling
changes than before.18 As a result, it effectively controlled
the employees work life to a far greater extent than it did
prior to the boycott. Some evidence shows that the daily
changes to the weekly schedule were so last minute that a
few employees missed work shifts.
While at the store on November 3, Darlene Panion learned
from Sue Joy that she was scheduled for 3-hour shifts (6 to
9 p.m.) on Monday, November 5, and Thursday, November
8. As Panion believed that 3-hour shifts were contrary to the
contractual 4-hour shift rule, she protested the scheduling to
Joy.19 Panion claims that Joy responded, ‘‘You have no con-
tract. You’ll work what I schedule you to work.’’ Joy re-
called making those remarks to someone but not to Panion.
By Panion’s account, her shift schedule was later changed
to 5 to 9 p.m. for November 5 but the 3-hour shift for No-
vember 8 was never revised. Panion implied that she was
only paid for the 3 hours she worked on November 8.
According to Thomas, Joy told her that the Panion’s 3-
hour shifts would be a problem under the union contract.
Thomas said that she immediately went to the schedule board
and changed the shifts to 5 to 9 p.m. for both days in the
presence of Panion. Thomas also claims that she apologized
to Panion and told her that it was ‘‘a slip of the pen.’’
Thomas concedes, however, that she neglected to change the
daily schedule for Thursday, November 8. Panion denied that
Thomas ever spoke to her about the 3-hour shifts.20
Shortly after the boycott commenced three assistant man-
agers were temporarily transferred to the Butte store. As a
general rule, company assistant managers perform every facet
of the work in a store.21 James Vivian, an assistant manager
temporarily transferred to Butte during the boycott, described
his usual duties in the following fashion: ‘‘I unload freight,
I stock shelves, run check-outs if needed, take out trash,
sweep the floor; whatever needs to be done it’s our duty to
do it if we’re needed.’’ Generally, this use of assistant man-
agers continued during the boycott.
1203F. W. WOOLWORTH CO.
22 Burns said that Joy insisted on not just a doctor’s note but rather
some showing that she had visited a doctor for treatment. That,
Burns said, would have cost her more than the wages she would
have earned.
Ostensibly, the three assistant managers were transferred to
the store to prevent sabotage of the merchandise ordering,
control, and markdown processes by disgruntled employees.
When they arrived, Kovar assigned each assistant manager to
a section for the purpose of supervising and assisting the sec-
tion merchandisers (unit employees) and the clerks in per-
forming their usual duties. More particularly, they assisted
merchandisers in ordering merchandise, and helped the clerks
put out freight and keep watch for shrinkage, i.e., theft and
misplacement of merchandise. Store Manager Major said that
assistant managers worked their typical 48 hours per week
while at the Butte store.
In the meantime, a notice over Store Manager Major’s
name was posted on November 12 stating that vacations
would be temporarily postponed ‘‘[d]ue to the emergency
which exists in our store.’’ As interpreted, this notice also
was used as justification for denying employees time off for
contractual personal days and the birthday holiday. Boycott
period requests by employees Joanne Black for a contractual
personal day and Heather Burns for her birthday holiday
were denied but both were paid for the days in the December
9 pay period.
The complaint alleges that employee Rich Condon’s vaca-
tion time was canceled during the last week of November.
However, Joy said that Condon, in fact, was accommodated
with time off to go on a preplanned hunting trip. Condon,
who did not testify, was likewise paid for his vacation pay
during the December 9 pay period.
Under the existing sick leave policy, the Company has the
right to require an employee to furnish a doctor’s statement
to support paid sick leave. Concededly, production of such
statements lies within the discretion of the store personnel
manager and have not been uniformly required. Sue Joy ac-
knowledged that she required employees Heather Burns and
Sharon Henderson to furnish a supporting doctor’s statement
for claimed sick days during the boycott.22 Joy explained the
requirement in this manner:
[During] the negotiations which I’m sure that you’re
leading up to, the reason that I asked for the sick slips
from the two people that I did was because that I felt
with the attitude that they had at the time, a lot of them
still had sick days left and it wouldn’t have been be-
neath any one of them, I don’t think, to have put in for
a sick day and not shown up when we needed them the
very most during that particular time when we needed
every clerk that we could have. [Emphasis added.]
On November 17, Attorney Hoey visited the Butte store
to assess the situation. He prepared a handwritten memo-
randum for Dill who was scheduled to be at the store the fol-
lowing day. Among other matters, Hoey suggested that union
employees be used to pack merchandise for shipment to
other stores as a strategic device to ‘‘show we mean busi-
ness.’’
In addition, the Hoey memorandum predicted that sales
would be picking up and hours would have to be added to
the schedule ‘‘largely from the union side.’’ ‘‘Replace-
ments,’’ Hoey added, ‘‘can only be used to fill hours others
can’t, such as the sixth day.’’ At another point Hoey sug-
gested that Dill:
Give Sue and Ann a little more slack in the budget.
We have to have coverage, even if it means more
money for the enemy. We have to cover the store, and
meet Christmas business.
As noted, the boycott ended when terms of a new agree-
ment was concluded on December 3. No claim is made that
any unlawful conduct occurred thereafter.
C. Further Findings and Conclusions
1. The 8(a)(1) allegations
I conclude that Sue Joy unlawfully threatened employee
reprisals following the initial bargaining session. In so doing,
I reject Respondent’s arguments that Joy’s remarks to
Brosovic and Holderman were a mere ‘‘expression of dis-
appointment made to a friend’’ and that the remarks were
‘‘ambiguous and noncoercive.’’
On the contrary, given the context, the remarks have a
clear threatening character. The bargaining table exchange
grew out of efforts by the Union to secure changes in Joy’s
scheduling practices and, as Joy herself made clear by both
her admissions and her subsequent deeds found unlawful
below, she meant to, and did, exercise the discretion vested
in her by the Company to the detriment of employees. Ac-
cordingly, I find Joy’s remark to Brosovic and Holderman
violated Section 8(a)(1) as alleged.
I further conclude that the General Counsel has failed to
prove that Kovar unlawfully interfered with the handbilling
as claimed but I find that no justification existed under the
established standard for photographing and videotaping
handbilling activities.
The complaint couches Kovar’s conduct toward the
handbillers in terms of ‘‘informing employees . . . that their
conduct was unlawful and attempting to move employees
. . . to another location.’’ In his brief, the General Counsel
asserts that Kovar was ‘‘impliedly threatening [employees]
with arrest by characterizing their activity as unlawful.’’ The
proof fails to support this harsh inference suggested by the
General Counsel.
Unquestionably, Kovar provoked a dispute with hand-
billing employees about where they could position them-
selves in relation to the store entrances. However, I find such
conduct alone does not amount to unlawful interference. And
I am unwilling to find that Kovar was ‘‘impliedly threatening
[employees] with arrest’’ as charged by the General Counsel.
Although Brosovic claimed that Kovar told her in the
presence of three other employees that it was ‘‘illegal’’ to
engage in handbilling in front of the store, two of the three
potential corroborating witnesses were not called to testify
and the third did not corroborate Brosovic’s assertion on this
point.
For this reason, and as Kovar claims that he merely told
employees that it was illegal to block the entrances, I find
that the quality of the General Counsel’s evidence is insuffi-
cient to merit the inference that Kovar was impliedly threat-
ening employee handbillers with arrest or any other retribu-
tion. Accordingly, I conclude that Respondent did not violate
1204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Respondent chose not to offer the photos alluded to by Vivian.
Section 8(a)(1) as alleged with respect to Kovar’s efforts to
re-position the handbilling employees.
I conclude, however, that the photographing and
videotaping of peaceful handbilling did amount to unlawful
interference notwithstanding the Union’s efforts to publicize
its boycott activities in the media and the Respondent’s as-
sertions that the employees engaged in handbilling unlaw-
fully interfered with ingress and egress by store customers.
Generally, employer photographing of employees’ con-
certed activities, such as picketing or handbilling, violates
Section 8(a)(1) in the absence of ‘‘proper justification’’ as it
tends to intimidate employees. Waco Inc., 273 NLRB 746,
747 (1984), and the cases cited at fn. 4. This rule conforms
to the broader objective standard used in assessing alleged
8(a)(1) conduct. Under Section 8(a)(1), the test is not wheth-
er the conduct was successful but whether, under all of the
circumstances, the conduct reasonably tends to interfere with,
restrain, or coerce employees in the exercise of Section 7
rights. Jay Foods v. NLRB, 573 F.2d 438 (7th Cir. 1978).
Here, Respondent failed to establish proper justification for
photographing and videotaping employees engaged in
handbilling. I find the claim about blocking store entrances
little more than excited exaggerations by management offi-
cials. At best, Kovar—who obviously concerned himself with
the issue more than anyone—was concerned mostly about
handbillers positioning themselves in the center of the en-
trances. Although it may be true that some customers were
required to walk around the handbillers, any construction of
his testimony which leads to a conclusion that employees
were willfully blocking the entrances could never be justi-
fied.
Major’s fatuous claim that the two photos in evidence
show handbilling employees blocking customer egress—cou-
pled with Hoey’s November 17 assessment of Majors as
overly jittery—strongly colors the Respondent’s justification
evidence. Security Supervisor Ann Marie Dagen’s original
suggestion that large contingents (4 to 6) of handbilling em-
ployees gathered in front of the doorways simply evaporated
on cross-examination. And Vivian’s assertion that he failed
to capture blocked entrances on film because of the speed
with which employees scattered when they saw him taking
photos is unconvincing.23
Joanne Black’s claim that Assistant Manager Lee waited
to photograph her until she approached a customer with a
handbill probably explains to a great extent why even Hoey
could find only evidence of peaceful handbilling after re-
viewing the photographs and videotapes on November 17. In
sum, I conclude that no justification existed for
photographing and videotaping the handbilling activity based
on claims that employees blocked store entrances.
Respondent also argues that the coercive nature of its pic-
ture taking was neutralized by the media attention sought by
the Union. This element was addressed in U.S. Steel Corp.
v. NLRB, 682 F.2d 98 (3d Cir. 1982), where that Court ulti-
mately held that an employer’s photographing of union dem-
onstrators was not coercive. However, the court did not give
controlling weight to the media coverage of the employee
demonstration in that case; it simply observed that third-party
picture taking is one of several factors which should be con-
sidered in determining the coerciveness of employer picture
taking. Id., fn. 17. Later, in Waco, supra, the Board alluded
to the absence of media coverage in finding the employer
picture taking there unlawful.
Neither of the two cited cases had occasion to address the
impact of picture taking on employees who were not photo-
graphed. The circumstances present here suggest that any
thorough analysis cannot focus solely on the photographed
employees in determining the potential picture taking has for
inhibiting the exercise of Section 7 rights by employees.
To the extent that employer picture taking can be said to
be intimidating, the intimidation extends equally to other em-
ployees who observe or otherwise learn of it because their
willingness to participate in the concerted activity could be
diminished. The point made is not unlike the intimidation
suffered when an employee who is undecided about joining
a union overhears his boss threaten to discharge a nearby
employee for signing a union card.
I am not satisfied that the presence of media coverage here
neutralizes the coercive nature of Respondent’s picture tak-
ing. The picture taking occurred at times while employees
were on duty in the store. Vivian said that he took photos
from about 20 feet inside the store and that employees could
not help but see what he was doing. The two photographs
in evidence are from inside the store; if they are typical, as
Hoey and Black suggest, the picture taking occurred in an
atmosphere obviously void of cause to any on-looker.
Sections 7 and 8 of the Act are designed to guarantee em-
ployees the right to engage in union or concerted activity, or
refrain from doing so, free of both employer and union coer-
cion. Applied to the situation scrutinized here, the statute
means all of Respondent’s employees can choose to partici-
pate in all, some, or none of the boycott activities on their
own time. That choice obviously includes the right to partici-
pate in any attendant media coverage.
Where, as here, the Respondent’s picture taking occurred
without any justification easily discernible to those employ-
ees who likely observed it, I find that it would, in fact, have
a tendency to chill their free exercise of the right to partici-
pate in whatever portion of the Union’s boycott activities
they wanted notwithstanding other third-party picture taking.
Clearly, if employees observe management officials
photographing a raucous mob scene preventing customers
from entering or leaving the store, they could be expected to
understand the justification for such action. But if employees
observe management photographing only peaceful
handbilling, as in Black’s case, they could reasonably doubt
management’s true motives.
For these reasons, I conclude Respondent violated Section
8(a)(1) of the Act as alleged in connection with the
photographing and videotaping employees engaged in
handbilling.
2. The 8(a)(3) allegations
Section 8(a)(3) of the Act makes it unlawful for an em-
ployer to discriminate against its employees to encourage or
discourage membership in a labor organization. The fol-
lowing principles, restated by the Board in Hunter Douglas,
Inc., 277 NLRB 1179 (1985), govern the evaluation of evi-
dence in discrimination cases under the Act:
The Board held in Wright Line, 251 NLRB 1083
(1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied.
1205F. W. WOOLWORTH CO.
24 The complaint erroneously alleges that Joy was responsible for
reducing employee hours and other changes found to flow from that.
The proof establishes that Dill set in motion the reduction in hours.
25 In its brief Respondent argues that Burns and Black failed to
give the contractual 30-day written notice for their personal day re-
quests. That claim is of no avail here. Joy did not cite that reason
for denying either request and in Burns’ case the requirement is in-
applicable because she requested to be off for her birthday, an em-
ployee holiday under the contract which is unaffected by 30-day
written notice requirement.
26 To the extent that Respondent argument grounded on the
Board’s decision in Texaco, Inc., 285 NLRB 241 (1987), and its
progeny, is intended as applicable to these leave requests, that argu-
ment is rejected as inapposite. Those cases deal with the continu-
ation of employee benefits during employee strikes. Notwithstanding
Respondent’s strained claim that its employees engaged in a ‘‘partial
strike,’’ no employee strike, in fact, occurred here.
455 U.S. 989, that once the General Counsel makes a
prima facie showing that protected conduct was a moti-
vating factor in an employer’s action against an em-
ployee, the burden shifts to the employer to dem-
onstrate that it would have taken the same action even
in the absence of the protected conduct.
The employer cannot carry this burden merely by
showing that it also had a legitimate reason for the ac-
tion, but must ‘‘persuade’’ that the action would have
taken place absent the protected conduct ‘‘by a prepon-
derance of the evidence.’’ Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). If an employer
fails to satisfy its burden of persua sion, a violation of
the Act may be found. Bronco Wine Co., 256 NLRB
53 (1981).
I find that the General Counsel established a strong prima
facie case with respect to the specific personnel actions of
Sue Joy.24 Joy’s unlawful threat following the first bar-
gaining session to, in effect, become much stricter in accom-
modating employee schedule requests is evident in her treat-
ment of Burns’ request for the birthday holiday and a day
of sick leave, Henderson’s request for a day of sick leave,
and Black’s personal day request.
Respondent’s argument that other employees have been re-
quested to furnish a doctor’s excuses to support requests for
sick leave, although true, is unavailing here. No showing was
made that either employee had a history of abusing sick
leave. I construe Joy’s explanation for denying these two
sick leave requests as tantamount to an admission of an un-
lawful motive as to these specific requests; her reference to
employee ‘‘attitude’’ is obviously little other than a code re-
ferring to the employees’ protected boycott activities.
Likewise, the assertion that Burns and Black could not be
spared on the requested leave days when the regular employ-
ees were working a substantially reduced schedule is not at
all persuasive. This is especially true in light of Joy’s prior
unlawful threat following the first bargaining session. Burns’
and Black’s requests were the type Joy specifically referred
to when she explained the meaning of her threat.25
For the foregoing reasons, I find Respondent has failed to
carry its burden of persuasion with respect to Joy’s conduct
in connection with the disputed sick leave, birthday holiday,
and personal day requests.26 Therefore, I conclude that this
conduct violated Section 8(a)(1) and (3) as alleged.
I further find that the General Counsel made a prima facie
showing that unit employees’ schedule reduction during the
boycott was unlawful.
By engaging in a boycott in support of its bargaining de-
mands, the Union was exercising a lawful economic weapon
available to it in the collective-bargaining process. The show-
ing by the General Counsel that Respondent almost imme-
diately reduced unit employee hours and thereafter covered
most of those hours with the use of newly hired employees,
temporarily transferred assistant managers, and on-call em-
ployees clearly permits an inference that the reduction in
hours was motivated for discriminatory reasons.
Even assuming that the boycott caused a reduction in
sales, the evidence suggests that the extent to which Re-
spondent cut the hours of its regular employees was unneces-
sary simply to meet that situation. Other evidence showing
that the Company responded in a slower and more deliberate
fashion to the store’s drop in sales resulting from the K-Mart
competition a year earlier contrasts with the swift response
it took toward the boycott. The contrasting responses in two
relatively identical economic situations tends to support a
conclusion that the motive underlying its reaction to the boy-
cott was motivated by retaliation rather than by economics.
For these reasons, I am satisfied that, under Wright Line, the
burden of persuasion was shifted to Respondent.
Not surprisingly, Respondent argues that the reduction in
hours was economically motivated, a result of the extreme
drop in sales during the boycott period. Respondent justifies
its use of temporarily transferred assistant managers on the
ground that they have been utilized during prior strikes and
were present primarily to provide security from sabotage by
boycotters of merchandise orders, markdowns, and other rec-
ordkeeping. In addition, Respondent argues that the company
normally hires new employees during the Christmas season
and that the hours worked by eight new employees here co-
incided with hours that the regular employees worked.
Respondent also alludes to three lockout cases in fashion-
ing its defense but it carefully avoided labeling the schedule
reductions as a lockout. Citing NLRB v. Brown Food Stores,
380 U.S. 278 (1965), and Harter Equipment, 280 NLRB 597
(1986), Respondent argues that its actions were permissible
defensive reactions, sanctioned by those cases, to the
postboycott sales reductions and that those cases justify its
use of temporary replacements (including both new employ-
ees and assistant managers) during the boycott period. Those
two cases, Respondent argues, establish that its conduct was
neither unlawful nor ‘‘inherently destructive’’ of employee
rights and it asks rhetorically: ‘‘If Respondent could lockout
its employees and schedule them zero hours, doesn’t it seem
less severe to do what it did in the instant case?’’
Arguing that it had a reasonable fear that the Union would
strike during the busy Christmas retailing season, Respond-
ent, as support for its own postboycott conduct, relies on
Birkenwald Distributing, 282 NLRB 954 (1987). The Board
concluded that the employer there acted lawfully by locking
out its employees and continuing operations with temporary
replacements in circumstances designed to prevent an eco-
nomic strike during a busy season.
Respondent’s evidence that the cut in regular employees
hours throughout the boycott period was motivated by its
lower sales volume is not persuasive. I have reached this
conclusion for the following reasons.
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Respondent sought to buttress its sales-loss claims with evidence
elicited from employees that up to 50 percent of potential customers
approaching the store turned away in response to the boycott appeal.
Even though the Union and its supporters undoubtedly like to be-
lieve that the boycott had a dramatic effect on the store’s sales, it
would be wildly irrational, in my judgment, to infer that sales
dropped by 50 percent based on the employee evidence.
28 In general, the term ‘‘coverage’’ as used here can be defined
as having enough personnel in the store at any given time to readily
assist customers, stock the shelves and racks, and watch for shrink-
age, i.e., shoplifting and other misplacement of merchandise. How-
ever, as Hoey’s testimony on the subject suggests, the adequacy of
coverage is not readily quantifiable in any mathematical sense; he
suggests that it is part of the retailer’s art, so to speak.
29 As the General Counsel failed to prove that Rich Condon was
actually denied any vacation time, I will recommend dismissal of
that allegation.
First, and most importantly, the evidence proffered by Re-
spondent in support of this claim fundamental to its defense
is stunningly weak. For some inexplicable reason, Respond-
ent avoided introducing boycott period sales records to shore
up its claim about the degree of the boycott’s impact. My
difficulty with the nature of Respondent’s evidence results
not from a personal peccadillo about sales records simply be-
cause they exist but rather from my inability to square Re-
gional Personnel Manager Dill’s testimony rationally with
other evidence in the case.
Dill, the management official responsible for the imple-
mentation of the postboycott schedule reductions, asserted
that employee hours were reduced after the boycott began in
order to keep the Butte store’s cost to sell reasonable. Ac-
cording to Dill, the Butte store’s cost to sell typically fell
within an acceptable range of 10 to 11.5 percent.
During the boycott period Dill said, ‘‘[w]e had cost to
sells probably thirteen, fifteen, twelve.’’ The difficulty with
this testimony is that such cost-to-sell figures are totally in-
compatible with the claim by Dill and other management of-
ficials that sales dropped by 50 percent, or more, during the
boycott.
For example, if the merchandise sales reflected in Re-
spondent’s Exhibit 23 were half the amount actually shown,
the cost to sell would skyrocket to 28.23 percent. Cost-to-sell
percentages of 12 or 13, alluded to in the above-quoted testi-
mony of Dill, would be a substantial improvement over the
14.11 percent merchandise cost-to-sell (and the overall 14.64
percent cost to sell) for the ordinary week of June 11, as
shown in Respondent’s Exhibit 23, unless that week was ab-
errant for some unknown reason. In fact, even a 15-percent
cost-to-sell is not that far out of line with what actually oc-
curred during the June 11 week.
Although the boycott unquestionably had some effect on
the store’s sales, the actual degree of the boycott’s impact is
significant where, as here, the opening of the nearby K-Mart
store a year earlier provides some basis for gauging the com-
parative management responses. If, in fact, the two calamities
were comparable in magnitude, an answer would be required
to the obvious question as to why Respondent’s economic re-
action was so slow and deliberate in the K-Mart situation but
with such haste and severity in the boycott situation. How-
ever, Respondent precluded any potential comparison by
choosing to rely on demonstrably questionable testimonial
claims that the impact on its sales from the boycott was
about twice as severe as the impact from K-Mart’s arrival.27
In sum, I find Respondent’s evidence about the boycott’s im-
pact unconvincing.
Second, the use of newly hired employees, at least one on-
call employee, and the cost-subsidized assistant managers
who spent the vast majority of their time performing unit
work is inconsistent with Dill’s cost control claim. The ac-
tual cost savings from the schedule reductions were likely
offset to a substantial degree, if not altogether, by the cost
of these replacements.
Respondent’s claim that the temporary transfer of assistant
managers to the store was justified to provide security
against sabotage of the merchandise ordering, control, and
mark-down process by obviously disgruntled regular employ-
ees fails to account for the number of assistant managers
who were utilized at Butte during the boycott.
Based on Store Manager Major’s and Assistant Manager
Vivian’s testimony, the assigned merchandise security duties
at Butte consumed little of the transferred assistant man-
agers’ time. Clearly, the vast majority of their time was spent
performing routine duties normally performed by the unit
employees. Even, the original strike contingency plan called
for temporarily transferring for only four assistant managers
to Butte in the event of a full scale walkout. Hence, I con-
clude that the three temporarily transferred assistant man-
agers were utilized principally as replacement employees to
meet the store’s inadequate coverage that resulted from re-
ducing regular employee hours.28
Third, Ann Thomas’ testimony that she was following a
‘‘norm’’ in scheduling unit employees which amounted to
the minimum hours necessary for the retention of regular em-
ployee benefits suggests little, if any, correlation between the
sales activity and postboycott scheduling.
Fourth, Major’s announcement postponing vacations and
the denial time off to Burns and Black during the boycott
served no discernible cost-reduction purpose.29 Instead, the
only impact these actions seemingly would have is to compel
the affected employees to remain available for assignment
while other unit employees, in effect, were underemployed.
And fifth, Hoey’s November 17 memo urging Dill to
budget additional hours to provide adequate coverage is
couched in terms (‘‘even if it means more money for the
enemy’’) suggestive of a retaliatory motive.
For the foregoing reasons, I conclude that the preponder-
ance of evidence supports the finding I make here that the
reduction in hours and attendant scheduling changes fol-
lowing the commencement of boycott was designed to pun-
ish unit employees for the Union’s boycott and had little, if
anything, to do with controlling store costs.
Furthermore, I reject Respondent’s argument that its
postboycott scheduling practices are justified under the cited
lockout cases. By claiming an impasse and actually imple-
menting its most significant bargaining proposals concurrent
with the schedule reductions here, Respondent substantially
undercut any available claim that its purpose was in support
of its bargaining demands. Moreover, the claim that this ac-
tion was taken because it feared a strike by employees during
the busy Christmas season fails to withstand critical analysis.
While that claim may well have justified a complete lockout,
the potential harm of a strike during the busy retailing season
still remained after the November 5 schedule changes were
instituted.
1207F. W. WOOLWORTH CO.
30 All outstanding motions inconsistent with this decision are over-
ruled. If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
In my judgment, the circumstances here are comparable in
principle to those in Riverside Cement, 296 NLRB 840
(1989). There, the Board found that Respondent violated
Section 8(a)(1) and (3) of the Act by refusing to permit cer-
tain employees to work if they declined, in support of their
union’s bargaining demands, to provide tools exempted by
contract but which they had historically provided. Rejecting
the employer’s claim of a legitimate lockout, the Board con-
cluded that the employer’s action was unlawful retaliation for
employee union activity.
Based on the foregoing, I find that Respondent’s
postboycott scheduling practices violated Section 8(a)(1) and
(3) as alleged.
However, the General Counsel’s separate allegation con-
cerning Brosovic’s 3-hour shift assignment lacks merit inde-
pendent of Respondent’s overall unlawful scheduling strat-
egy. Put another way, except to the extent that her hours
were reduced generally as a part of Respondent’s unlawful
scheme to punish the unit employees, the allegation that her
3-hour shift assignment was unlawful has not been proven
especially where, as here, at least a colorable contractual
claim exists for such an assignment.
In view of the foregoing conclusions, I find it unnecessary
to consider the General Counsel’s claim that Respondent’s
actions were unlawful as inherently destructive of employee
rights within the meaning of NLRB v. Great Dane Trailers,
388 U.S. 26 (1967).
3. The 8(a)(5) allegation
As the evidence merits the conclusion that Respondent’s
actions in reducing hours and otherwise altering its sched-
uling practices during the boycott were discriminatorily moti-
vated, I find the General Counsel’s allegation that this con-
duct was an unlawful unilateral change in violation of Sec-
tion 8(a)(5) of the Act to be inapplicable to the situation at
hand. To hold otherwise would lead to the anomaly of fash-
ioning a bargaining order remedy requiring Respondent to
notify the Union and provide it with an opportunity to bar-
gain about discriminatory changes in the future. And even if
it is assumed that Respondent’s conduct was a lawful re-
sponse to the Union’s boycott activity, which I do not, no
duty to bargain over tactics responsive to the implementation
of economic weapons in support of collective-bargaining po-
sitions exists. Laclede Gas Co. v. NLRB, 421 F.2d 610 (8th
Cir. 1970).
II. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
Respondent’s activities set forth above, occurring in con-
nection with its business operations, have a close, intimate
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. 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. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by threatening employ-
ees because of issues raised on their behalf during collective-
bargaining negotiations, and by photographing and
videotaping employees engaged in union activities without
proper justification.
4. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act by
discriminatorily: (a) reducing employee hours, (b) denying
employee holiday and personal leave requests, and (c) deny-
ing sick leave requests under its sick leave policy, all during
the period of the Union’s boycott.
5. The unfair labor practices of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
As Respondent has engaged in certain unfair labor prac-
tices, the recommended Order requires it to cease and desist
therefrom and to take the following affirmative action de-
signed to effectuate the policies of the Act.
Respondent is required to make its employees whole for
the losses incurred as a result of reducing the unit employees
scheduled hours during the boycott period, and to make
Burns and Henderson whole for the sick pay discriminatorily
denied them during the same period together with interest in
accord with the Board’s decision in New Horizons for the
Retarded, 283 NLRB 1173 (1987). As Burns and Black were
paid their personal and holiday pay, additional pay for those
days is not required.
Finally, Respondent must post the notice attached to this
decision at store 1934 in Butte, Montana, in order to inform
employees of the outcome of this matter and their rights
under the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended30
ORDER
The Respondent, F. W. Woolworth Co., Butte, Montana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees because of issues raised on
their behalf during collective-bargaining negotiations.
(b) Photographing or videotaping employees engaged in
union activities without proper justification.
(c) Discriminatorily reducing employee hours, denying em-
ployee holiday and personal leave, and denying sick pay its
sick leave policy.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make its employees whole for all losses incurred by
them in the manner specified in the remedy section of the
this decision.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 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.’’
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to determine
compliance with all terms of this Order, including the
amount of backpay and interest due.
(c) Post at its Butte, Montana Store 1934 copies of the at-
tached notice marked ‘‘Appendix.’’31 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained 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 altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that all complaint allegations not
sustained by the administrative law judge’s decision in this
case be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing before an administrative law judge, the
National Labor Relations Board found that we violated the
National Labor Relations Act and ordered us to post and
abide by this notice.
Under the National Labor Relations Act you have the right
to organize; to join or assist unions; to bargain collectively
with your employer through a representative freely chosen by
a majority of employees in an appropriate bargaining unit; to
engage in other group activities for your mutual aid and pro-
tection on the job; or to refrain from any or all of these ac-
tivities.
WE WILL NOT threaten employees because of issues raised
on their behalf during collective-bargaining negotiations with
United Food and Commercial Workers Union, Local 4R.
WE WILL NOT photograph or videotape employees engaged
in union activity without proper justification.
WE WILL NOT reduce employee hours, postpone or deny
employee holidays or personal leave, or refuse to pay sick
pay under our sick leave policy because employees engage
in union activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees who exercise rights guaranteed
by Section 7 of the Act.
WE WILL make employees whole for losses incurred by re-
ducing their hours of work between November 5 and Decem-
ber 3, 1990, and by denying sick pay to Heather Burns and
Sharon Henderson in the same period, together with interest
as required by law.
F. W. WOOLWORTH CO.