Globe Shopping City

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 663 (N.L.R.B. 1973)

UNITED MERCANTILE INC.
United Mercantile Incorporated ; United Mercantile,
Inc., No. 2; and United Mercantile, Inc., No. 3;
d/b/a Globe Shopping City and Retail Clerks
Union, Local No. 455 Chartered by Retail Clerks
International Association , AFL-CIO. Cases 23-
CA-4403, 23-CA-4464, and 23-RC-3828
June 29, 1973
DECISION , ORDER AND CERTIFICATION
OF RESULTS
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 14, 1973, Administrative Law Judge
John P. von Rohr issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed cross-exceptions and a brief in support thereof
and a brief in answer to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order to the extent consis-
tent herewith.
Respondent excepts, inter alia, to the scope of the
Administrative Law Judge's recommended posting
provision. Although the Administrative Law Judge
found that Respondent committed violations of Sec-
tion 8(a)(1) of the Act at its Pasadena store only, he
recommended that Respondent be required to post a
notice at each of its stores located in Harris County,
Texas. Under the circumstances, we believe the post-
ing of the notice should be limited to Respondent's
Pasadena store.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent , United
Mercantile Incorporated ; United Mercantile, Inc.,
No. 2; and United Mercantile Inc., No . 3; d/b/a
Globe Shopping City, Houston , Texas , its officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order , as so modi-
663
fied:
1. Substitute the following sentence for the first
sentence in paragraph 2(a):
"(a) Post at its Pasadena store , located in Harris
County, Texas, copies of the notice attached hereto
and marked 'Appendix."'
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Retail Clerks Union,
Local No. 455 chartered by Retail Clerks Internation-
al Association , AFL-CIO, and that said labor organi-
zation is not the exclusive representative of all the
employees , in the unit herein involved , within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.
1 In the absence of exceptions, we adopt pro forma the Administrative Law
Judge's recommendations that the objections to the election conducted in
Case 23-RC-3828 be overruled. Accordingly, inasmuch as the Union did not
receive a majority of the valid votes cast, we shall certify the results of the
election.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon
charges, duly filed, the General Counsel of the National
Labor Relations Board, for the Regional Director of Region
23 (Houston, Texas), issued a consolidated amended com-
plaint on December 14, 1972, against United Mercantile
Incorporated; United Mercantile, Inc., No. 2; and United
Mercantile, Inc., No. 3; d/b/a Globe Shopping City, herein
called the Respondent or the Company, alleging that it had
engaged in certain unfair labor practices within the meaning
of Section 8(a)(1) of the Act. This case was consolidated
with a proceeding involving objections to conduct affecting
the results of an election (Case 23-RC-3828). The Respon-
dent filed an answer denying the allegations of unlawful
conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Adnumstra-
tive Law Judge John P. von Rohr in Houston, Texas on
January 22 and 23, 1973. Briefs were received from the
General Counsel, the Union, and the Respondent on Febru-
ary 27, 1973, and they have been carefully considered. Upon
the entire record in this case, and from my observation of
the witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the answer admits, that Re-
spondent consist of three separate corporate entities, sub-
sidiaries of an Illinois corporation known as the Walgreen
Co., and operates seven retail outlets known as Globe Shop-
204 NLRB No. 109
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ping City stores in the Houston, Texas, area. These stores
are engaged in the retail sale of goods, softwear, hardware,
and sundry items . During the last calendar year, Respon-
dent stores made purchases of goods in excess of $50,000
from outside the State of Texas, which goods were shipped
directly to it from points and places outside the State. Dur-
ing the same period the total sales of the stores were in
excess of $500,000.
I find that Respondent is engaged in commerce within the
meaning of Section 2(5) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union , Local No. 455, Chartered by Retail
Clerks International Association , AFL-CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
The Union commenced an organizing campaign among
Respondent's employees employed at its seven (7) retail
stores located in Harris County, Texas, on April 2, 1972,
and filed a representation petition in Case 23-RC-3828 on
August 2, 1972. Pursuant to a Decision and Direction of
Election issued by the Regional Director of Region 23 on
October 11, 1972, an election was conducted on November
9, 1972, in the following unit found to be appropriate:
All regular full-time and regular part-time selling and
nonselling employees employed by the Employer and
its licensees , Morse Shoe, Inc., and Zale Corporation in
Harris County, Texas; but excluding employees of
Uniroyal Merchandising Co., Inc., Gardenland, Inc.,
and Rice Food Markets, all store office clerical em-
ployees, store detectives, guards, professional employ-
ees and all supervisors as defined in the Act.
The result of the above election, as reflected in the tally
of ballots, was that of approximately 837 eligible voters, 712
cast valid ballots, of which 297 were "for" and 415 were
"against" the Union. There were 71 challenged ballots,
which were not sufficient to affect the results of the election.
B. Alleged Section 8(a)(1) Conduct Predating the Filing of
the Petition
Insofar as the election is concerned, the so-called critical
date, namely the date of the filing of the representation
petition, is August 2, 1972.1 Although conduct occurring
prior to that date may not be considered as having any
bearing upon the election, the complaint in the unfair labor
practice case alleges that Respondent engaged in certain
conduct violative of Section 8(a)(1) of the Act prior to that
time. I shall first turn to these allegations.2
1. Charles Bonds, a business representative of the Union,
was engaged in the organizing of employees in
Unless otherwise indicated , all dates refer to the year 1972.
Z At the hearing the General Counsel withdrew subparagraph (c) of para-
graph 7 of the amended complaint . I hereby grant his motion , which appears
in his brief, to also withdraw subparagraph (p) of the same paragraph
Respondent's stores since the inception of the campaign.
The record is clear that Bonds engaged in extensive activity
in Respondent's stores and parking lots at all times up to the
election. The particular incident here at issue occurred in
Respondent's Pasadena store on or about June 29, 1972.3 It
is undisputed that on this date Bonds was in the store en-
gaged in organizational activity.' It is also undisputed that
on this date Bonds picked up a greeting card and walked out
of the store without paying for it. Upon realizing his mis-
take, Bonds reentered the store and went to the cashier
checkout where he attempted to pay for it. However, at this
point he was apprehended by George Thanos, the store
manager, who had observed Bonds pick up the greeting card
and leave without paying for it.5 The store security agent
was called to the front and a police officer was summoned.
After some discussion Bonds was taken to the police station
where he was released after being detained for an hour or
two. The matter was thereupon dropped without further
prosecution.
Concerning this incident, the complaint alleges that
"Store Manager George Thanos falsely arrested union rep-
resentative Charles Bonds at one of the cash registers in the
store to discourage Respondent's employees from joining or
assisting the Union or engaging in activities protected by
Section 7 of the Act." While the record does show the inci-
dent of Bonds' arrest to have been observed by some of the
employees, I fail to see where Respondent's conduct on this
occasion violated Section 8(a)(1) of the Act. First of all, in
view of the fact that Bonds admittedly was observed taking
merchandise out of the store without paying for it, it appears
clear that the General Counsel has not made out any case
of "false arrest." Secondly, I do not deem it my function,
as the General Counsel appears to suggest, to make any
determination that Respondent should have excused Bonds
because of his subsequent attempt to pay for the merchan-
dise. Whether by negligence or otherwise, it was Bonds' own
conduct that got him into hot water. He was not in the store
as a customer. When it is considered that his primary pur-
pose in being there was to engage in organizational activi-
ties, one might reasonably expect that he would have
exercised particular care not to engage in any acts or con-
duct that could cause him any embarrassment such as that
encountered here. I see no reason for placing the blame of
this incident, as thus provoked by Bonds, upon the Respon-
dent and I recommend that this allegation of the complaint
be dismissed .6
J Although Bonds testified that this incident occurred on July 13, 1972, the
testimony of Store Manager George Thanos, as well as Resp Exh 3(b), more
reliably reflect that it occurred on the date indicated above
Bonds testified that he later told the police that at this time he was "trying
to organize "
5 With respect to the occasion of his making this observance, Thanos
testified as follows
That particular day we had about five organizers in our store, and it was
my policy, whenever organizers came into the store, that members of
management, including myself and the trainees, would follow these
organizers through the store to see to the fact they were not bothering
our employees, not bothering the morale of the store, were giving good
customer service And Mr Bonds was also followed and I happened to
be upstairs in the office, and I was observing Mr Bonds .. [here
follows the description of the card incident].
6 The cases cited by the General Counsel and by the Union in support of
this allegation are factually distinguishable Significantly, the record in this
case reveals that Respondent permitted the nonemployee union organizers
UNITED MERCANTILE INC. 665
2. In early May, employee Marvin Carnes, a sales clerk
in the Pasadena store, was called into the office of Store
Manager Thanos. Thanos testified that he wanted to talk to
Carnes because he had received complaints from three em-
ployees that Carnes had bothered them by soliciting for the
Union on the sales floor. It is undisputed that on this occa-
sion Thanos told Carnes that he would have to cease solicit-
ing for the Union on company time under penalty of
termination. It is also undisputed that Thanos told Carnes
that he could solicit for the Union while in the Sun Room
(the store restaurant) while on his lunch break. However, it
is further undisputed that Thanos also told Carnes that he
could not engage in solicitation during his 15 minute coffee-
break. In differentiating between the lunch break and the
coffeebreak, Thanos told Carnes that, in accordance with
company policy, the employees punch out for the lunch
break, hence they then are on their "own time"; but that
they do not punch out for the coffee break, hence that this
break is on "company time." Inasmuch as the record re-
flects that the employees take their coffeebreaks off-the-
floor, I find that in this instance Thanos went too far. Thus,
it is well established that it is presumptively unlawful to
prohibit union discussion or solicitation during nonworking
time, particularly in nonworking areas.7 It would appear
clear, therefore, that any regularly scheduled nonworking
time remains just that, regardless of whether the employees
are "on the clock" or not. Accordingly, I find that Respon-
dent violated Section 8(a)(1) of the Act, as alleged in the
complaint, by Thanos telling Carnes that he could not soli-
cit during his 15-minute coffeebreaks.8 Carnes further testi-
fied that during a second conversation with Thanos on the
same date Thanos asked him if he knew how long the Union
had been organizing at the store and also why he felt the
store needed a union. In light of the other violations herein
found, I find that these interrogations further violated Sec-
tion 8(a)(1) of the Act.
3. Paragraph 7(e) of the complaint alleges that on about
June 21, "The Respondent published a written rule declar-
ing, in substance , that Respondent would not permit em-
ployees inside its facility prior to their regularly scheduled
hours of employment and would consider that anyone who
violated this rule woudl be guilty of loitering." Presumably
this allegation relates to a notice posted and signed by Tha-
nos at the Pasadena store which lists II store regulations,
to freely utilize its nonworking areas, including its restaurant and parking
facilities, to engage in organizational activities.
7 Republic Aviation Corporation v. N L R B, 324 U S 793, 801, 803-805
(1954), Olin Industries v. N. L.R.B , 191 F.2d 613, 617 (C.A. 5, 1951), Summit
Nursing and Convalescent Home, Inc., 196 NLRB 769; Exide Alkaline Battery
Division of ESB, Inc, 177 NLRB 778.
8 With respect to Respondent 's argument that this incident was of an
isolated nature , it is significant to note that Thanos had two conversations
with Carnes on this date . Thanos conceded that in the first conversation
Carnes specifically inquired if he could solicit during the coffeebreak and
that he replied , "No, you can't . As far as I am concerned its still on company
time because you have punched out ." Although Carnes testified that the
second conversation occurred because he sought to clarify his earlier state-
ments to Carnes after talking with his superiors in Chicago , he conceded that
he did not change these instructions as they applied to his prohibition against
solicitation during the coffeebreaks. In view of the foregoing , and since there
is no evidence to show that Respondent ever rescinded Thanos' instructions
to Carnes as aforesaid , I find no merit to Respondent 's argument that a
remedial order is not warranted.
these including reference to such matters as parking, no
smoking, gum chewing and the like. One of the 11 rules
provides: "Loitering in the Sun Room or on the sales floor
before you are scheduled to come to work or after you
punched out is prohibited. This does not pertain to shop-
ping." Thanos testified that the foregoing rule was made
necessary largely because of the problems created by the
large amount of organizing activity that was taking place on
the store premises . Thus, Thanos testified without contra-
diction as follows:
Well, up until this time we had a very good relation-
ship as far as employees were concerned as far as sche-
duling of breaks, and loitering in the Sun Room, we
never had this problem.
Since we had the union activities and the visitations
of the union people in our store, and as I say, they were
as high as eight at one time, would get about one super-
visor at each table. Each table holds four people. And
they would have as high as six and seven employees
gathered around their lunch hour breaks. They were
blocking the aisles. It was causing a fire hazard. This
was a continual affair. Consequently, I posted this
schedule.
And there were a number of times that I had to ask
my restaurant manager, Mr. Steadman, to ask these
people to please unblock these aisles. It was also caus-
ing hindrance as far as customer service was con-
cerned.
As I said, it was a daily occurrence all the way up to
the election time, continual harassment in our Sun
Room.
Under the special circumstances as above described by
Thanos, I hardly think it can be said that there was not some
justification for the rule. I also think it clear that the rule did
not unduly restrict the employees from engaging in union
activities . Indeed, the record reflects that Respondent had
no objection to the employees engaging in union activities
in the Sun Room while on their lunch hour; and without
detailing all the testimony on the subject, the record reflects
that during the organizational campaign Respondent also
permitted employees to utilize the Sun Room for 15-minute
periods both before and after their regular working hours.
They were free to engage in union activity at this time. I find
that Respondent did not violate Section 8(a)(1) of the Act
by posting the rule in question and I recommend that the
allegation pertaining to it be dismissed.
4. Kathleen Watkins, employed at Respondent' s Pasade-
na store as a cashier for approximately 2 years, testified that
Store Manager Thanos broached her in the last week of
June or early July and related to her certain possible disad-
vantages of joining the Union, such as paying dues, fines,
and the like. He also alluded to certain company benefits
which the employees already had, such as insurance. How-
ever, Watkins testified that at this point Thanos told her
"that if we did go union the Company would never consider
negotiating with a third party, they would sooner close
down than have a third party come in and tell them what
to do." Although Thanos generally denied making any
threats to employees to the effect that Respondent would
close the store if the Union came in, he did not deny the
specific testimony of Watkins. Watkins impressed me as a
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forthright, honest, and intelligent witness and I credit her
testimony. Thanos' statement to her that Respondent would
sooner close down than negotiate with a third party (obvi-
ously the Union, in the context of the conversation) was
clearly violative of Section 8(a)(1) of the Act and I so find.
C. Alleged Section 8(a)(1) Violations and Alleged Objec-
tionable Conduct Subsequent to the Filing of the Petition
1. Employees Kathy Watkins and Marvin Carnes re-
ceived a subpena to testify at the representation hearing.
The day before the hearing Watkins and Carnes went to
Store Manager Thanos and advised him of being supenaed.
According to these employees, Thanos stated that the sub-
pena required their presence only for the following day but
that they had better return on "the next day" (i.e., the second
day) "particularly if it was over before 11 o'clock." 9 Carnes
and Watkins also testified that at this time Thanos stated
that they were to obtain a note from "the Labor Board
Judge" stating that they had appeared at the hearing,10 and
that they were to bring in this note upon reporting to work.
Respondent was represented at the RC hearing by R. H.
Wessels, its house counsel and director of employee rela-
tions , who is headquartered at the Company's office in Chi-
cago. Watkins testified that at the hearing she broached
Wessels and advised him about Thanos' request that they
procure a note from the hearing officer. Watkins testified
that Wessels responded as follows:
Mr. Wessels put his arm around me and said, "Kathy,
that is not necessary." He said, "I am going to be out
to the store." He said, "I am going to have a long talk
with him and we will have everything straightened out
and you won't need one."
With respect to the foregoing, the complaint alleges that
Respondent violated Section 8(a)(1) of the Act by threaten-
ing subpenaed employees to return to work unless they
obtained a note from the "Labor Board Judge" that they
had appeared as witnesses . From the facts related above, I
find no merit to this allegation and shall recommend that
it be dismissed. While I see nothing per se unlawful in Tha-
nos' requesting the employees to obtain the note in question,
the fact is that this request was effectively disavowed and
overruled by Respondent's director of employee relations."
I also recommend dismissal, as unsupported by the evi-
dence, a further allegation in the complaint that Thanos
uttered "a veiled threat to take some unspecified reprisal
against an employee if she honored the subpoena and failed
to report to work if the hearing continued for more than one
day.,,
2. Paragraphs 7(i) and (j) of the complaint allege that on
9 Testimony of Watkins.
10 Watkins testified , "He (Thanos) told us we had to have a note stating
that we were witness or just merely going down as observers ." I do not credit
Thanos denial of having so instructed these employees.
11 It can be assumed that Watkins made known her above -quoted conver-
sation with Wessels to Carnes and also to Eloise Thacker, the latter a subpe-
naed employee who had also been requested by Thanos to obtain a note All
three employees were together when they telephoned Thanos on the af-
ternoon of the second day of the hearing to ask whether they should come
in that afternoon since the hearing had concluded Thanos advised them to
report on the following morning , a Fnday. They did so and nothing further
was said about the matter
about November 2, Respondent violated Section 8(a)(1) of
the Act by attempting to have Business Representative
Bonds arrested while he allegedly was "endeavoring to ser-
vice a collective-bargaining agreement of a unit of prescrip-
tion drug employees." Concerning this allegation, it should
be mentioned that Respondent's stores have separate phar-
maceutical departments, that the pharmacists are repre-
sented by the Charging Union, and that a
collective-bargaining agreement covering this unit of em-
ployees has been in effect at all times material hereto. Con-
cerning this incident, Bonds testified that on November 2 he
went up to the pharmacy counter of the Pasadena store
where he "attempted to talk to the pharmacists," at which
point Thanos came and told him he would call the police
if he did not leave the premises. Bonds concededly refused
to leave, whereupon Thanos summoned a police officer.
Upon being apprised of the situation by both Bonds and
Thanos, the officer told Bonds that he did not want "to take
him in," that he should leave the pharmacy and "go sit it
in the snack bar." 12 Bonds did this and the matter was
dropped. On cross-examination, Bonds conceded that his
primary purpose in coming to the store during the period
between April until the election in September was to organ-
ize the employees "and to get the employees to sign cards."
He also conceded that he spoke to the nonorganized em-
ployees on his way through the store to the pharmacy on
November 2. He did not specify just how he attempted to
service the contract when he was at the pharmacy counter
on the occasion in question.
Concerning the foregoing, Respondent posted a rule in
early May 1972 (the validity of which there can be no ques-
tion), which stated: "Globe Shopping City does not permit
solicitation of its employees by nonemployees, for any pur-
pose, during the time that its employees are on duty." Tha-
nos testified that he advised Bonds of this rule on at least
three occasions, including November 2. Concerning the in-
cident of November 2, however, Thanos gave the following
specific testimony, which was not rebutted:13
"Yes sir. Mr. Bonds and Randy Beemer, who was an-
other union organizer, were in our Sun Room, and Mr.
Bonds had a stack of Retail Union contracts for the
Kroger Company, or Safeway, 455, and he left the Sun
Room and he started going to the left of the store,
which is towards the drug department.
As he was going through the store he started throw-
mg these contracts and passing them out to employees
and walking to the drug department. I informed Mr.
Bonds that he was soliciting employees, and he was not
to do this. He had been warned before.
And I will tell you what he told me. He told me,
"You can go to hell."
And then as we got in front of the pharmacy there
was about eight customers in front of the pharmacy,
and Mr. Bonds hollered out to the pharmacists in the
back, "Where is Mary Frances at? Where is Mary
Frances at?"
I said, "she is not here. What is it you need?"
He said it's none of my damn business.
12 The quoted testimony is that of Bonds.
13 Although I do not credit all of Thanos' testimony, I do credit his testimo-
ny concerning this incident as quoted above.
UNITED MERCANTILE INC. 667
In the interim while we were standing there he was
trying to holler at the pharmacists and we were very
busy. Mr. Bonds took his fist and shook it at my face,
I think about this close approximately (illustrating),
with his finger, and told me that he could come any
damn time he wanted in that store, he could talk to my
employees any time that he wanted to, and I didn't
know what the hell I was talking about the contract,
and he quoted the union contract for the pharmacists,
that I didn't know what I was talking about, and he
said, "You better go back up and read it because I don't
have to talk to you when I come into this store."
From the foregoing , and notwithstanding that the inci-
dent was observed by some employees, I think Respondent
clearly was within its rights in resorting to seek assistance
from the police when Bonds, in the context of the conduct
described above , refused Respondent 's request that he leave
the area. Accordingly, I shall recommend dismissal of the
allegations pertaining to this incident. 14
At this point I should note that the foregoing is the only
conduct occurring during the critical preelection period
which is alleged in the complaint as being violative of Sec-
tion 8(a)(1) of the Act. 15 I turn then to the testimony which
was adduced by the Union (i.e., the Petitioner in the RC
case) through union witnesses in support of the objection
case.
1. Henry Baxter is a maintenance employee at Globe
store No. 4. Baxter testified that about 3 weeks prior to the
election he was broached by Mrs. J. Russell, the office man-
ager, who told him "Henry, don't you know that this button
don't mean as much to you as the Company mean. The
Union can't do anything for you. If you talk to the Compa-
ny they will do for you." To the extent that Baxter testified
that on this occasion Russell also asked how he felt about
the Union, I credit this testimony. However, I do not credit
his further testimony on direct examination to the effect
that Russell also stated that the Company could let him go
for wearing a union button . I make this finding not only
because cross-examination of Baxter demonstrated that he
tended to give conclusionary and impressionable testimo-
ny,16 but also because Russell did not impress me as being
a particularly reliable witness.
Baxter also testified that on or about November 1 he was
invited to have coffee with Oscar Smith, who introduced
himself as a representative of Respondent 's personnel de-
partment in Chicago. '? Baxter testified that on this occasion
14 Further concerning the extent of Bonds' activities on Respondent's
premises , on cross-examination Bonds conceded that during the organizing
campaign he vistied the stores on a daily basis, that he remained on the
premises for 3 or 4 hours each day, and that the primary purpose of these
visits was "to contact the employees at the store and inform them about the
Union."
15 Although paragraphs 7(1),(m), and (n) of the complaint refer to conduct
alleged to have occurred on November 2, the witness called to substantiate
these allegations (Ronnie Williams) testified that the alleged incident oc-
curred on November 11, which was subsequent to the election. The General
Counsel thereupon moved to amend the complaint accordingly.
i6 Thus, at one point Baxter testified , "She told me in a roundabout way
She said that if I would use my head I wouldn't wear it because the Company
could relieve me of it She just didn't tell me to take it off."
17 Baxter testified that Smith also produced an identification card which
identified him as being "a company representative " In view of this unrebut-
ted testimony , I reject Respondent 's contention that Smith was not an agent
Smith asked how he felt toward the Union, and further, that
Smith told him "if you use your head you will forget about
the Union." This testimony, which I accept, was not contro-
verted by Smith, who was not called to testify.is
2. Ronnie Joyce Williams, employed for about 3-1/2
years as a clerk in the soft goods department at the Pasade-
na store, testified that during the weeks preceding the elec-
tion she had "almost daily" conversations with Leo
Thomas, the manager of the department. The record reflects
that Williams apparently initiated at least as many of these
conversations as did Thomas. In any event, Williams testi-
fied that on about November 2 Thomas showed her a copy
of the collective-bargaining agreement covering
Respondent's pharmacy employees. According to Williams,
Thomas "read different parts of it to me, and he told me that
if we got a union, if we got a union contract, we would most
likely lose our insurance and other benefits that we had."
She testified that during the conversation he also asked her
"what I hoped to gain from a union contract" Conceding
that he had a conversation with Williams on about this date,
Thomas testified that it was initiated by Williams who asked
what changes could or could not be made in the operation
of the department if the Union got in. Thomas said that they
thereupon went to the store office where he showed Wil-
liams two collective-bargaining agreements which Respon-
dent had with the Charging Union, one covering the
pharmacy, the other covering a unit in Respondent's El
Paso store. According to Thomas, he responded to Williams
earlier statement by pointing out certain management rights
as reflected in various provisions of these contracts. Con-
cerning all the foregoing, I have no doubt that Thomas and
Williams discussed the advantages or disadvantages of a
union contract. However, I am not persuaded that Thomas
threatened there would be a loss of benefits if the Union
came in, as Williams foregoing testimony appears to reflect.
While I do not discount all of Williams' testimony, t is
witness did not impress me as being very reliable. This
impression was not lessened by my observation of her being
prompted (by the nodding of the head) by another witness
who was present in the hearing room. 19
Williams testified that she recalled a second conversation
with Thomas that occurred on or about November 6. This
began when she volunteered to Thomas that she would not
be satisfied with a 5- or 10-cent raise every raise. Thomas
thereupon produced certain employee records which re-
flected the increases which the employees in fact had re-
ceived over the past several years. According to Williams,
Thomas at one point stated that she would not be getting
any raise while union activity was taking place or while any
union negotiations were pending. Thomas recalled discuss-
ing the matter of wages, but made no mention of anything
being said about Respondent not granting wage increases as
long as union activity or negotiations were taking place.
Upon consideration of all the testimony, I find no basis for
of the Company
1s Neither Baxter or Smith were named in either the complaint or in the
objections as agents of the Respondent However, Respondent did not assert
this omission as a basis for objecting to the admission of this testimony; nor
did it ever request a bill of particulars at any time prior to the hearing.
19 My admonishment to the parties concerned with respect to this incident
is noted on the record
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concluding that during this conversation Thomas unlawful-
ly threatened to withhold any possible employee wage in-
creases because of the employees ' union activities.
Finally, Williams testified concerning a third conversa-
tion with Thomas which took place about November 9. The
substance of this conversation, which is relatively undisput-
ed, was that Thomas showed Williams a company propa-
ganda leaflet which reproduced excerpts from the union
bylaws. Williams asked her what she thought about it, si-
multaneously adding that as an "intelligent woman" she
would be paying 7 or 8 dollars dues to a mafia-like organiza-
tion 20 Williams said she responded to this by saying that she
did not think there was "anything wrong" with the bylaws
and that she "didn't think there was any more graft and
corruption in the Retail Clerks Union than there was the
Walgreen Corporation."21 I find nothing inherently coer-
cive to have taken place in this conversation.
3. David Murphy, employed for 5 months at the Pasade-
na store, testified concerning a conversation he had with
Thomas about November 4 or 5. Conceding that it was he
who initiated the conversation, Murphy testified that he did
so because he had some questions pertaining to company
propaganda leaflets which set forth certain of the union
bylaws. Murphy said that after this was discussed, "the
conversation carried on into wages and then on into these
standards." Concerning the so-called "standards," Murphy
testified that Thomas stated that under present policy he
(Murphy) was given "thirteen or fourteen chances" to cor-
rect mistakes in his department, but that " . . . under a
union contract you only get two chances." However, Mur-
phy further testified, "he [Thomas] never specifically told
me he would change the standards." I find nothing to indi-
cate that Murphy was coerced during this conversation
which he began.
4. Anna Patterson, employed at the Gulfgate store as
cashier and at the information desk for 8 years, testified that
on two or three occasions in November, Lenery Landry, the
soft lines manager, asked why she was wearing a union
button. She said that she always responded by stating "I
have no answer or no questions." Mary Argo, employed 12
years at the same store, testified that on about November
2 Landry came through her department and stated that she
could be a top saleslady of the sportswear department if she
would take off a union button she was wearing.22 I credit the
foregoing testimony of Patterson and Argo. Patterson fur-
ther testified that in the latter part of October she overheard
Landry say "if the Union got in all the older people are
going to be fired." Patterson conceded that the remark was
not addressed to her and that she did not observe to whom
Landry was speaking when she overheard this bit of the
20 In relating the atmosphere of this conversation Thomas testified, "We
had a standingjoke going about whose day it was to hand out literature and
on that particular day, whatever date it was, I suppose it was our day . "
21 Walgreen Corporation is the parent company of the Respondent herein22 Argo also testified concerning an incident occurring on November 21,
wherein Landry advised that he intended to reduce her hours . I would first
note that not only did this occur beyond the critical preelection period, but
there also is no allegation in the complaint pertaining to this incident. In any
event, the record reflects that Landry's hours in fact were not reduced. In
addition , upon consideration of all the testimony pertaining thereto, I am
satisfied that the incident in question was not related to Argo's union activi-
ties or sympathies
conversation . Assuming that Patterson heard correctly,23 I
would find, as the Board did in an identical situation in Rex
Disposables Division of DHJ Industries, 201 NLRB No. 108,
that any such isolated overheard fragment of a conversa-
tion, standing alone, is too insubstantial to warrant the find-
ing of an 8(a)(1) conversation.
The foregoing completes the evidence offered in support
of the Objections. However, there remains an incident
which, although alleged in the complaint to have occurred
on November 2, 1972, was identified by the employee in-
volved to have occurred on November 18, 1972. This em-
ployee was Ronnie Williams, certain of whose testimony
has been heretofore discussed. Concerning this incident,
Williams testified that on this date she volunteered to
Thomas that she had given a statement to the Union on
November 10 wherein she stated that he (Thomas) had
talked to her on company time. She testified that during the
next week Thomas seemed to avoid her, and, further, that
she observed him instructing the night girl doing certain
paperwork which was part of her (Williams') job. Williams,
who was in charge of the men's department (but who con-
cededly was not a supervisor under the Act), testified that
she finally went to Thomas and asked if she was still in
charge of the department. According to Williams, Thomas
replied that he had let her wear union buttons and had let
her say anything she wanted about the Union, but that he
"would not stand for any disloyal people among my em-
ployees." In direct response to her question, however, Wil-
liams conceded that Thomas assured her that she was still
the head of the men's department. Although Thomas said
he did not recall ever accusing Williams of being disloyal,
and although as previously indicated, I do not credit all of
Williams' testimony, in this instance I credit Williams to the
extent that Thomas did use the word disloyal. However,
under all the circumstances, and in the context of the entire
conversation, I find no ground for concluding that Respon-
dent violated the Act by "accusing an employee who wore
a union button of being disloyal," as is alleged in the com-
plaint. In view of the fact that the entire incident appears
to have been initiated by Williams, and also because Thom-
as assured Williams, in response to her question, that she in
fact did remain in charge of the men's department, I fail to
see where Williams was restrained or coerced within the
meaning of Section 8(a)(1) of the Act. Accordingly, it is
recommended that subparagraphs (1)(m) and (n) of para-
graph 7 in the complaint, all of which the General Counsel
has indicated relate to this incident, be dismissed.
D. Conclusions as to the Objections
With respect to the 10 objections filed by the Union, it is
first noted that Objections 7, 8, and 11 were withdrawn at
the hearing; and with respect to Objections 4 and 5, the
Union concedes in its brief (as indeed the record reflects)
that these were not sustained.
Objections 6, 9, and 10 have already been considered in
reviewing the alleged violation of Section 8(a)(1) of the Act.
For the reasons previously stated, I recommend that these
Objections be overruled.
23 Landry denies making any such statement
UNITED MERCANTILE INC. 669
Objections 2 and 3 generally allege that Respondent
threatened employees because of their union activities. I
have previously related the conversations wherein any such
threats are alleged to have occurred. Having found that no
threats in fact were made, I recommend that these Objec-
tions be overruled.
There remains for consideration Objection I which alleg-
es that various supervisors and representatives of the Re-
spondent coercively interrogated employees as to their
activities on behalf of Petitioner and/or their intentions
with regard to the pending election. Concerning this objec-
tion it is true, as previously related and found, that three
employees (Baxter, Williams, and Patterson) were interro-
gated during the preelection period. However, when it is
considered that the election here involved 837 eligible vot-
ers, employed at seven retail stores, I am of the opinion that
this conduct, even if deemed to be objectionable, was isolat-
ed, de minimus , and remote . Accordingly, I find that this
conduct did not interfere with the employees exercise of a
free choice in the election? It is therefore recommended
that the objections to the election be overruled, and the
results of the election be certified.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operation of Re-
spondent described in section I, above, have a close, inti-
mate, 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.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with , restraining, and coercing its em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
24 See Hy Plains Dressed Beef, Inc., 146 NLRB 1253, 1257, Paramount
Packaging Corporation, 201 NLRB No 83, Rex Disposables, Division of DHJ
Industries, Inc, 201 NLRB No. 108; Jefferson Stores, Inc, 201 NLRB No.
101. Dyersburg Cotton Products, Inc, 168 NLRB 1116, 1117.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby make the
following:25
ORDER
Respondent United Mercantile Incorporated; United
Mercantile, Inc., No. 2; and United Mercantile, Inc., No. 3;
d/b/a Globe Shopping City, its officers, agents , successors
and assigns , shall:
1. Cease and desist from:
(a) Threatening to close its stores if the employees select
the Union as their collective-bargaining representative; and
telling its employees that it will never consider negotiating
with a union.
(b) Interrogating employees concerning their union ac-
tivities and sympathies in a manner constituting interfer-
ence, restrain , and coercion.
(c) Prohibiting employees from soliciting on behalf of the
Union during their nonworking time, including coffee-
breaks.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Post at its stores located in Harris County, Texas,
copies of the attached notice marked "Appendix." 26 Copies
of said notices, on forms provided by the Regional Director
for Region 23, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to see that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 23, in writ-
ing, what steps the Respondent has taken to comply here-
with.
IT IS FURTHER RECOMMENDED that (1) the complaint be
dismissed insofar as it alleges violations of the Act not spe-
cifically found herein; and (2) the objections in Case 23-
RC-3828 be overruled and the case remanded to the Re-
gional Director for certification of the results of the election.
25 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes
26 In the event that the Board's 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."
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to close our stores if the em-
ployees select Retail Clerks Union, Local No. 455,
Chartered by Retail Clerks International Association,
AFL-CIO, or any other labor organization, as their
collective-bargaining representative; and WE WILL NOT
tell our employees that we will never consider negotiat-
ing with a union.
WE WILL NOT interrogate our employees concerning
their union activities or sympathies.
WE WILL NOT prohibit our employees from soliciting
on behalf of the Union, or any other labor organiza-
tion, while on their nonworking time , including coffee-
breaks.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their rights as guaranteed by Section 7 of the National
Labor Relations Act, as amended.
Dated By
UNITED MERCANTILE, INCORPO-
RATED, UNITED MERCANTILE,
INC, NO. 2, AND UNITED MER-
CANTILE, INC, NO 3, D/B/A/
GLOBE SHOPPING CITY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning -
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Dallas-Brazos Building, 1125 Bra-
zos Street, Houston, Texas 77002, Telephone 713-226-4296.