K Mart Corp.

National Labor Relations Board - Board Decisions

Oct 19, 1989

297 N.L.R.B. 80 (N.L.R.B. 1989)

80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
K Mart Corporation and Ronald Rasmussen. Case
7—CA-28463
October 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On July 14, 1989, Administrative Law Judge
Nancy M Sherman issued the attached decision
The Respondent filed exceptions and a supporting
brief 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts' the
recommended Order of the administrative law
judge and orders that the Respondent, K Mart
Corporation, St Clair Shores, Michigan, its offi-
' The Respondent has requested oral argument The request is denied
as the record, exueptions, and brief adequately present the Issues and the
positions of the parties
2 Because we agree with the judge that the Respondent violated Sec
8(a)(1) of the Act by broadly prohibiting employee Rasmussen from dis-
cussing work schedules with fellow employees, we find it unnecessary to
pass on whether Rasmussen was engaged in protected concerted activity
when he complained to another employee about his schedule on Septem-
ber 15, 1988 See Jeannette Corp, 217 NLRB 653, 656 (1975), enfd 532
F 2d 916 (3d Cu- 1976) Unlike the circumstances in Adelpht Institute, 287
NLRB 1073 (1988), the complaint in the Instant case alleges, and the
record supports the judge's finding, that the Respondent violated Sec
8(a)(1) by prohibiting Rasmussen from discussing work schedules In
Adelplu, the complaint did not allege that there was a rule prohibiting dis-
cussion of employees terms and conditions of employment and this
theory of a violation was not fully litigated
3 Member Cracraft and Member Higgins adhere to the standards set
forth in Johnnie s Poultry Co, 146 NLRB 770, 775 (1964), enf denied 344
F 2d 617 (8th Or 1965), in finding unlawful the Respondent's question-
ing of employee Brian Szarewicz However, they agree with the judge
that under the 'totality of circumstances approach, a finding of a viola-
tion is also warranted because the interrogation had a coercive tendency
Compare Dayton Typographic Service v NLRB, 778 F 2d 1188 (6th Cir
1985)
Chairman Stephens would assess the lawfulness of the questioning
solely under a totality-of the-circumstances analysis, and he agrees that
under that test the interrogation had a reasonable tendency to coerce an
employee regarding protected concerted activity Among the circum-
stances noted by the judge on which Chairman Stephens relies is the fact
that Szarewicz was abruptly summoned by the personnel manager (Rita
Keys) to go to the office of the store manager, where Szarewicz had
never been before and, in the presence of Keys, was asked by the Re-
spondent s attorney about the exchange between Keys and fellow em-
ployee Rasmussen over posted work schedules, about Szarewicz' own
discussions with Rasmussen, if any, concerning work schedules, and
about Szarewicz own attitudes towards the Respondent's scheduling of
work Although the attorney told Szarewicz that he was investigating the
unfair labor practice charge filed by Rasmussen, Szarewicz could reason
ably have believed that discussing work schedules with fellow employees
would be viewed with disfavor by his employer
cers, agents, successors, and assigns, shall take the
action set forth in the Order
B Penme Mdlender, Esq , for the General Counsel
Christopher B Kroll, Esq and Peter Palmer, Esq , of
Troy, Michigan, for the Respondent
DECISION
STATEMENT OF THE CASE
NANCY M SHERMAN, Administrative Law Judge This
case was heard before me in Detroit, Michigan, on Janu-
ary 30, 1989, pursuant to a charge filed by employee
Ronald Rasmussen on September 20, 1988, against Re-
spondent K Mart Corporation, and a complaint issued on
October 26, 1988, and amended on January 30, 1989 The
complaint in its final form alleges that Respondent violat-
ed Section 8(a)(1) of the National Labor Relations Act
(the Act) by instructing Rasmussen not to discuss work
schedules or other terms and conditions of employment
with other employees, and (through Respondent's attor-
ney) by coercively interrogating an employee in connec-
tion with preparing Respondent's defense in an unfair
labor practice proceeding against Respondent
On the record as a whole, including the demeanor of
the witnesses, and after due consideration of the briefs
filed by counsel for the General Counsel (the General
Counsel) and by Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Michigan corporation, which main-
tains its principal office and place of business in Troy,
Michigan Respondent maintains retail stores in various
States of the United States, including a retail store in St
Clair Shores, Michigan During 1987, a representative
period, Respondent had gross revenues exceeding
$500,000, purchased goods valued in excess of $50,000
from points outside Michigan, and had those goods
shipped directly to its stores located within Michigan I
find that, as Respondent admits, Respondent is engaged
in commerce within the meaning of the Act, and that ex-
ercise of jurisdiction over its operations will effectuate
the policies of the Act
Ii THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The events in this case took place at Respondent's
retail store in St Clair Shores, Michigan At that store,
Respondent's full-time employees work 4 days and 32
hours a week, part-time employees work fewer days
and/or fewer hours a week From week to week, Re-
spondent alters the days of the week on which each indi-
vidual employee is scheduled to work and, perhaps,
makes other changes in each individual's schedule Nor-
mally, the schedule is prepared by Home Center Manag-
er Jerry Bowers (admittedly a supervisor), and is posted
by Personnel and Training Manager Rita Keys (admit-
297 NLRB No 10
K MART CORP 81
tedly a supervisor) on the Monday before the Thursday
which begins the 7-day period covered by. the schedule
Employee Rasmussen began to work at Respondent's
St Clair facility in early 1983 About, a week after he
started working there, and at least until September 12,
1988, he engaged in, and overheard other employees
engage in, conversations with other employees, outside
of management's presence, during which they com-
plained to each other about the fact that they had no set
schedules and frequently had days off which were not
consecutive Dunng some of these discussions, he pro-
posed that they all go into the office and talk to'the boss
about getting a set schedule However, nobody else
would do this About mid 1988, Rasmussen approached
Store Manager Tom Grezch, admittedly a supervisor,
and said that Rasmussen and other employees would like
to receive set schedules Grezch replied that this could
not be done When asked whether any of the employees
told Rasmussen that he could represent them when he
talked to management, he testified, "Oh no, I don't be-
lieve any of them said that They don't want their names
used in the office"
B Respondent's Alleged Prohibition Against
, Discussing Schedules and Other Working Conditions
with Other Employees
On Monday, September 12, 1988, the schedule was
posted for the 7-day period beginning Thursday, Septem-
ber 15 The schedule stated that during this 7-day period,
Rasmussen was supposed to work a total of 6 days Ras-
mussen preferred to, and usually did, work fewer than 6
days a week He drew his schedule to the attention of his
immediate supervisor (identified in the record as Mary
Ann) and then to Bowers, telling Bowers, at least, that
Rasmussen was willing to work all 6 days if Respondent
wanted him to Both Mary Ann and Bowers told Ras-
mussen that the schedule was going to be changed and
that he was going to work fewer than 6 days during the
week in question
When Rasmussen left work on Tuesday, September 13,
his posted schedule for the week beginning September 15
had not been changed He was not scheduled to work on
Wednesday, September 14, which was payday When
picking up Rasmussen's paycheck that day, his house-
mate was told to have him telephone to find out what his
second day off was going to be dunng the workweek be-
ginning Thursday, September 15 1 Although he admit-
tedly received this message, he did not call His next tour
of duty was on Thursday, September 15 When he
reached the company parking lot that morning, he en-
countered employee Brian Szarewicz, and remarked, "I
bet my schedule hasn't changed " 2 Then, Rasmussen
walked into the building, while Szarewicz lingered in the
parking lot to chat with a friend
The employees' breakroom and Personnel Manager
Keys' office share a wall and have separate doorways
'Al that time, Rasmussen was spending much of his off-duty time at a
place where he could not be reached by telephone When asked at the
hearing whom he was supposed to call, he replied Keys, "1 guess"
2 This finding is based on Szarewicz' testimony Rasmussen testified
that he did not remember talking with anyone in the parking lot before
work on that day -
into the same hallway The timeclock is between these
doorways, and the employees' schedule is posted on a
wall directly across from the timeclock When Rasmus-
sen entered the facility on September 15, he initially pro-
ceeded to the breakroom Then, he remembered that he
had to check his schedule for the payroll week beginning
that day When he went over and looked at the posted
schedule, he found that it had not been changed Ras-
mussen, who has a loud voice, remarked out loud, "The
schedule's supposed to be posted no later than 600
Monday and it's Thursday and it's still not posted
right "3 Rasmussen was making these remarks to himself,
but in the heanng of Szarewicz, who was standing at the
timeclock, inferentially within earshot of Rasmussen
Then, Rasmussen went back into the breakroom, where
he saw a fellow employee identified in the record as
"James" Rasmussen, who was admittedly upset, re-
marked to James, in a loud tone which was normal for
Rasmussen, "Do you believe it's been four days and they
haven't changed my schedule yet to let me know my
other day off" James, who did not testify, made what
Rasmussen testimonially described as a "kind of like
what do you expect kind of face" At that time,
Szarewicz was in the men's bathroom, which opens off
the breakroom, but James was the only other employee
whom Rasmussen saw in the lounge, and neither James
nor Szarewicz could be seen from the office of Personnel
Manager Keys
After Rasmussen made this remark to James, Keys
"yelled" at Rasmussen to come into her office When he
did so, she asked him why he kept complaining He said
that he only "came in here" when he had a "legitimate
complaint," and he thought he "had a legitimate com-
plaint working one day on, one day off and then six days
out of seven and not knowing [his] day off until four
days after the schedule was posted" He said that the
schedule was supposed to be changed and had not been
changed, "[y]ou people tell me to call in and nobody
knows anything why isn't it posted, why isn't [it]
corrected9" She told him that the schedule problem was
between him and Home Center Manager Bowers, that
only Bowers could change Rasmussen's schedule, that It
was nobody else's business but Rasmussen's own, and
that she did not want him to complain to other employ-
ees about his scheduling and his problems Rasmussen
stated, as he had told management on previous occasions,
that he wanted to get back to the night crew Keys said
that he never liked anything around there and was
always unhappy, and that there was nothing she could
do for him Pointing to the front of the store, she said,
"why don't [you] Just get another job, why don't [you]
just quit9" Using scatological epithets, Rasmussen said
that he did not have to listen to this, and walked out of
the office At the time this conversation took place,
about 645 a m, the store was not open to the public
Rasmussen visited Keys in the hospital on an undisclosed
date in 1988 He testified that she was "all right" and
"pretty kind," and that he liked her
3 This finding is based on Szarewicz testimony, which for demeanor
reasons I credit over Rasmussen s denial
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Later that same day, September 15, Rasmussen found
out which additional day off he was going to have for
the payroll week beginning that day Rasmussen testified
without objection or contradiction that after his conver-
sation with Keys, a member of management or a fellow
employee (Rasmussen could not remember which) told
him that at the time of his conversation with Keys, she
already knew which days off he was supposed to have
Thereafter, Wilfred Babbitt, who is either comanager
or assistant manager of the store and is admittedly a su-
pervisor, "yelled at" Rasmussen for yelling and "cuss-
ing" at Keys Rasmussen has a naturally loud voice, and
Szarewicz credibly testified that both participants in the
Keys-Rasmussen conversation used loud voices
My findings as to the Keys-Rasmussen conversation
are based on a composite of credible parts of Rasmus-
sen's and Szarewicz' testimony Keys did not testify
C The Allegedly Unlawful Questioning of
Employee Szarewicz
Respondent's answer to the original complaint denied
the allegation that about September 15, 1988, Respond-
ent, through Keys, had instructed Rasmussen not to dis-
cuss work schedules or other terms or conditions of em-
ployment with other employees The answer was signed
by Christopher B Kroll, Respondent's house counsel,
and is dated October 31, 1988 As previously noted,
Keys did not testify, and the only witnesses who testified
about this conversation were Rasmussen and Szarewicz,
both of whom testified for the General Counsel I infer
that by January 27, 1989, 3 days before the hearing on
Monday, January 30, Szarewicz had received from the
General Counsel the subpoena pursuant to which he tes-
tified
On January 27, 1989, Keys called Szarewicz from his
department to come to "personnel" When he got there,
she approached him and said, "Brian, I have someone for
you to meet" He asked who, but she would not tell him
She led him into Store Manager Grezch's office, where
Szarewicz had never been before, without telling him
why she wanted him to go there House counsel Kroll,
whose own office is located at Respondent's Internation-
al headquarters in Troy, Michigan (about 17 miles from
St Clair Shores), had arranged for the use of this office,
to interview Szarewicz in preparation for trial, because it
was the only quiet place in the store,4 but there is no
evidence that anyone ever explained to Szarewicz why
the store manager's office had been selected for the inter-
view
When Szarewicz and Keys entered this office, nobody
else was there As Keys started to leave, Kroll came in,
whereupon she said, "This is Chris," without giving his
last name or stating that he was an attorney Kroll shook
Szarewicz' hand, gave him Kroll's full name, and said he
would like to ask Szarewicz some questions Keys again
started to leave Szarewicz asked Kroll if she could stay,
Szarewicz credibly testified that he made this request be-
cause he did not know who Kroll was or what he
4 The store employs 355 employees In addition to containing a televi-
sion set which is operating frequently if indeed not constantly, the lounge
is otherwise noisy
wanted, and Szarewicz wanted someone he knew there
Keys asked Kroll whether she could stay, he voiced no
objection Keys stayed in the room during almost all the
subsequent conversation, except for interruptions for
telephone calls and an occasion when she went out to
page someone'
Szarewicz, who was 18 or 19 years old and had
worked for Respondent for almost 3 years, credibly testi-
fied that at least at the beginning of his interview with
Kroll, Szarewicz was "extremely nervous" Kroll credi-
bly testified that Szarewicz was "extremely nervous" and
"apparently upset" When Szarewicz said he was nerv-
ous, Kroll told him, " don't be nervous," but did not
tell him why he should not be nervous, or that he would
not be punished in any way as a result of the conversa-
tion or talking with him Szarewicz was not informed
that he did not have to talk to Kroll, and that their con-
versation should be voluntary on Szarewicz' part
Kroll told Szarewicz that Kroll was an attorney for
Respondent, that Rasmussen had filed a charge with the
Board, and that Kroll was investigating it Kroll said that
he wanted to find out the facts and circumstances sur-
rounding Rasmussen's charge Kroll asked Szarewicz
whether he had given a statement to the Board, inferen-
tially, he truthfully replied that he had Like Rasmussen,
Szarewicz works in the "home center" under Home
Center Manager Bowers Kroll asked Szarewicz whether
he knew Rasmussen, and for how long Also, Kroll
asked Szarewicz the date of the Rasmussen-Keys conver-
sation, what had happened, and where Rasmussen and
Szarewicz had been during the conversation Szarewicz
answered these questions, and also described what was
said during the conversation Kroll asked Szarewicz
about his own feelings regarding the work schedule,
Szarewicz replied that a varied schedule, when the em-
ployees did not know from one day to the next what
their hours were going to be, made it difficult for the
employees to plan their personal lives Kroll also asked
about Szarewicz' discussion with Rasmussen and the pos-
sibility of talking to management about work schedules
The record contains no direct evidence as to Szarewicz'
reply, if any Inferentially, he told Kroll what Szarewicz
and Rasmussen later credibly testified at the hearing—
namely, that they had discussed the fact that they had to
wait to see their schedule before they could plan any-
thing Kroll asked Szarewicz if he had ever thought of
going to management about the schedule, and if he had
"okayed it" for Rasmussen to talk to management on his
behalf The record fails to show Szarewicz' reply, if any
He testified that Kroll did not harass or threaten him in
any manner, and that Kroll spoke to Szarewicz in a
pleasant voice
My findings as to the Kroll-Szarewicz conversation
are based on a composite of credible parts of their testi-
mony My finding that Kroll identified himself as an at-
torney and gave his surname to Szarewicz is based on
Kroll's testimony, which because of the probabilities of
the case I accept over Szarewicz' denial, I note that on
cross-examination, he admitted it "could have been possi-
ble" that Kroll identified himself as an attorney My fail-
ure to credit Kroll's testimony, over Szarewicz's denial,
K MART CORP 83
that Kroll said Szarewicz' talking to him had no effect
upon Szarewicz' employment at Respondent, is based on
demeanor considerations and on Respondent's unex-
plained failure to call as a witness Personnel Manager
Keys, an admitted supervisor, who was present during
almost the entire Kroll-Szarewicz conversation 5
D Analysis and Conclusions
1 The allegedly unlawful instructions to Rasmussen
I agree with the General Counsel that Respondent vio-
lated Section 8(a)(1) of the Act when Supervisor Keys
told employee Rasmussen that she did not want him to
complain to other employees about his scheduling and
about his problems Jeannette Corp v NLRB, 532 F 2d
916, 918-920 (3d Cir 1976), Super One Foods, No 601,
294 NLRB 463 (1989), International Business Machines
Corp, 265 NLRB 638 (1982), ALSAC, 277 NLRB
1532, 1534-1535 (1986), and L G Williams 011 Co, 285
NLRB 418 (1987) Such instructions were unlawful even
though Keys did not in terms state that Rasmussen
would be disciplined if he disobeyed them Independent
Stations Co, 284 NLRB 394 (1987), Electronic Data Sys-
tems, 278 NLRB 125, 130 (1986), Waco, Inc, 273 NLRB
746, 747-748 (1984), and W R Grace Co, 240 NLRB
813, 815-816 (1979)
I find without merit Respondent's contention that
Keys' instructions were not unlawful because the inci-
dent, which immediately provoked them allegedly did
not involve an exercise by Rasmussen of the rights pro-
tected by Section 7 of the Act In the first place, Ras-
mussen's complaints-his complaint to employee James
being the one within Keys' earshot just before her con-
versation with Rasmussen-were only the most recent of
a series of scheduling complaints which employees had
discussed with each other and which Rasmussen had di-
rected to Store Manager Grezch (admittedly a supervi-
sor), about 2-1/2 months earlier, expressly regarding
other employees as well as himself 6 Furthermore, the
fact that Keys forbade Rasmussen to complain to other
employees about scheduling and other problems indicat-
ed her suspicion, as was in fact the case, that his com-
plaint about scheduling had been directed to at least one
other employee Because of the relationship between that
complaint by Rasmussen and his prior complaint about
his and other employees' schedules to Grezch, who had
taken no action to resolve it, and because interemployee
5 See Golden State Bottling Co v NLRB, 414 US 168, 174 (1973),
Turnbull Cone Baking Co v NLRB, 778 F 2d 292, 294-295 (6th Cm
1985), cert denied 476 U S 1159 (1986), and Zapex Corp, 235 NLRB
1236, 1239 (1978), enfd 621 F 2d 328 (9th Cir 1980)
6 Because a number of employees did in fact want to receive set sched-
ules, Rasmussen s complaint to Grezch that they too wanted such sched-
ules rendered his complaint a protected activity even though none of
them told Rasmussen that he could represent them when he talked to
management Dayton Typographic Service v NLRB, 778 F 2d 1188, 1192
(6th Cif 1985), Owens Illinois, 290 NLRB 1193, 1206 (1988), and Meyers
Industries, 281 NLRB 882, 886 (1986), affd 835 F 2d 1481 (DC Or
1987), cert denied 108 S Ct 2847 (1988) Although the evidence fails to
show whether Personnel Manager Keys knew about this incident,
Grezch s knowledge is attributable to Respondent for purposes of this
case NLRB v EDS Service Corp, 466 F d 157 (9th Or 1972), KR!
Constructors, 290 NLRB 802, 809 (1988), Photo Drive Up, 267 NLRB 329,
361 (1983), and Jackson Sportswear Corp, 211 NLRB 891, 902 (1974)
discussions about work schedules had continued after
Rasmussen's fruitless complaint to Grezch, Rasmussen's
September 16 comments to employee James did not lose
statutory protection because they were directed to Ras-
mussen's scheduling problem only See Dayton Typo-
'graphic Service, supra, 778 F 2d at 1191-1192, Jirhmack
Enterprises, 283 NLRB 609 (1987), Scientific-Atlanta, Inc,
278 NLRB 622 (1986), Meyers Industries, supra, 281
NLRB at 885-887 (1986) ("some relation to group action
in the interest of the employees"), and see also NLRB v
J Weingarten, 420 U S 251, 260-261 (1975)
In any event, Respondent's defense disregards the
reason why, in the absence of legitimate and substantial
business justifications not claimed to be present here, an
employer cannot lawfully issue an unqualified prohibition
against mteremployee discussion of problems connected
with working conditions, including work schedules Im-
proved working conditions are a frequent objective of
organizational or other protected concerted activity, and
discussions about them are necessary to further that goal
The right to engage in such activity depends in some
measure on employees' ability to learn the advantage of
such activity from others Whether Rasmussen's Septem-
ber 15 comments about his work schedule were in them-
selves protected activity, it is sufficient for finding Keys'
remarks unlawful to note that discussion about such a
subject can be protected activity and that an employer's
unqualified rule barring such discussions has the tenden-
cy to inhibit such activity See Jeannette Corp, supra,
532 F 2d at 918, see also Thema Industries, 245 NLRB
1258 (1979), Noland Co, 269 NLRB 1082, 1088 (1984),
andALSAC, supra, 277 NLRB at 1533-1535 7
2 The allegedly unlawful interrogation
A determination of whether Section 8(a)(1) of the Act
was violated through attorney Kroll's questioning of em-
ployee Szarewicz calls for a balance between Respond-
ent's legitimate interest 'in preparing its case for trial and
Szarewicz' legitimate interest in being free from unwar-
ranted interrogation about protected activity In striking
this balance as to questions for this purpose but including
matter involving the questioned employee's Section 7
rights, the cases have ranged between the view that such
conduct violates the Act unless the questioner has ob-
served the safeguards set forth in Johnnie's Poultry Co 5
7 In finding unlawful A LSA C s 1979 rule forbidding interemployee
salary discussions, the Board did not rely on the employer s unlawful
August 1983 discharge of two employees for reasons related to such dis-
cussions between February 1982 and April 1983
6 146 NLRB 770, 775 (1964), enf denied 344 F 2d 617 (8th Cif 1965)
The Board there articulated these safeguards as follows (footnotes omit-
ted)
the employer must communicate to the employee the purpose of the
questioning, assure him that no reprisal will take place, and obtain
his participation on a voluntary basis, the questioning must occur in
a context free from employer hostility to union organization and
must not be Itself coercive in nature, and the questions must not
exceed the necessities of the legitimate purpose by prying Into other
union matters, eliciting information concerning an employee's subjec-
tive state of mind, or otherwise interfering with the statutory rights
of employees When an employer transgresses the boundaries of
these safeguards, he loses the benefits of the privilege [of ascertaining
from employees the facts necessary in preparing the employer s de-
fense for trial of the case ]
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the view that the legality of such questioning is to be
determined in light of the totality of the circumstances
See Dayton Typographic Service, supra, 778 F 2d at 1193-
1195, Standard-Coosa-Thatcher Carpet Yarn Division v
NLRB, 691 F 2d 1133, 1140-1141 (4th Cir 1982), cert
denied 460 U S 1083 (1983), Bill Scott Oldsmobile, 282
NLRB 1073, 1075-1078 (1987), Adair Standard Corp. 290
NLRB 317 (1988), and R & L Cartage & Sons, Inc , 292
NLRB 530 (1989) I find that under any of these ap-
proaches Kroll's interview had a coercive tendency, at
least partly because Respondent failed to observe safe-
guards set forth in Johnnie's Poultry Accordingly, I need
not consider which approach is appropriate
Thus, the incident began when Keys, who is Respond-
ent's personnel manager and is not Szarewicz' immediate,
day-to-day supervisor, called him from his home service
department to "personnel," said she had "someone" for
him to "meet" but refused to say who the "someone"
was, and then escorted Szarewicz to the office of Store
Manager Grezch, inferentially the highest ranking
member of management who was present at the store on
a daily basis Szarewicz had never been in that office
before, and there is no evidence that anyone ever ex-
plained to him Kroll's reason (a perfectly legitimate one)
for selecting that location for the interview Further, at
least from Szarewicz' point of view, he went to and par-
ticipated in the interview under management's orders So
far as the record shows, neither Keys, Kroll, nor anyone
else suggested to Szarewicz that Keys' conduct in calling
him to "personnel," escorting him to the store manager's
office, and "having" Szarewicz "meet someone" named
"Chris" stood on any different footing from work related
orders from Keys which Szarewicz would ordinanly be
expected to obey as a matter of course Nor did she or
attorney Christopher Kroll ever suggest to Szarewicz
that he was under no obligation to participate in the
interview, or to answer any questions he did not choose
to answer, even though Kroll (an attorney for more than
3 years, who appeared to be about 30) was admittedly
aware that the teenaged Szarewicz (who had either grad-
uated or was about to graduate from high school) was
nervous and upset when Kroll came into the room, and
even though it must have become apparent to Kroll from
the interview that Szarewicz was being asked to describe
or reveal matters that he might have reasons—and
wholly legitimate reasons—for wanting to keep quiet
about More specifically, in Personnel Manager Keys'
very presence Szarewicz was asked to and gave an ac-
count of unlawful remarks by Keys, although Szarewicz
might well apprehend Keys' resentment if she believed
his version to be mistaken or (if she was not a fair-
minded woman) accurate but tending in the presence of
her own employer's house counsel to denigrate her own
job performance Further, although these same consider-
ations would likely inhibit Szarewicz from expressing a
desire that she leave, there is no evidence that Kroll took
it upon himself to make such a request or even asked
Szarewicz about the matter 9 (Indeed, Szarewicz' credi-
9 Although Keys was present because of Szarewicz request, when
making that request he had no idea that he would be asked about her
ble testimony shows that Kroll gave him no assurance
against reprisals, although I would find unlawful interro-
gation even if I believed Kroll's- testimony otherwise )
Moreover, Kroll asked Szarewicz in Keys' presence
whether he himself had ever engaged with Rasmussen in
the protected activity—discussions about scheduling
problems—which in Szarewicz' hearing Keys had unlaw-
fully forbidden Rasmussen to engage in and had partly
relied on in asking him to quit, and Kroll further asked
Szarewicz whether he had ever engaged in the additional
and related protected activities of discussing the schedule
problem with Rasmussen and of approving his talking to
management on Szarewicz' behalf In addition, Kroll
asked Szarewicz whether he had engaged in the statuto-
rily protected activity of giving a statement to the
Board, although, again, an affirmative answer by
Szarewicz (which he in fact gave) could generate resent-
ment by Personnel Manager Keys, whose remarks to
Rasmussen (overheard by Szarewicz) were at that time
the sole basis for the pending complaint against Keys'
employer Finally, Kroll asked Szarewicz whether he
had ever thought about going to management about the
scheduling matter—conduct which would be protected if
concerted—notwithstanding Store Manager Grezch's
previous statement to Rasmussen, when he complained
that he and other employees wanted set schedules, that
this could not be done J ° On the basis of a totality of the
circumstances, and giving full weight to Respondent's
right to have Kroll interview Szarewicz in order to pre-
pare for trial, I find that this incident constituted a viola-
tion of Section 8(a)(1) by Respondent
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 Respondent has violated Section 8(a)(1) of the Act
by telling employee Rasmussen not to discuss work
schedules, or other problems, with other employees, and
by coercively interrogating employee Szarewicz about
activity protected by Section 7 of the Act
3 The unfair labor practices set forth in Conclusion of
Law 2 affect commerce within the meaning of Section
2(6) and (7) of the Act
statements, and Kroll, who had at least strong reason to anticipate these
questions, did not object to her presence
1 ° As noted supra, fn 8, the Johnnie's Poultry safeguards include 'the
questions must not exceed the necessities of the legitimate purpose by
eliciting information concerning an employee's subjective state of
mind 146 NLRB at 775 At least arguably, such safeguards were
breached by Kroll s questions about Szarewicz' own feelings regarding
the work schedule, and whether he had ever thought of going to man-
agement about the matter However, these questions do bear some tan-
gential relevance to Kroll's contention, in his postheanng brief, that
Keys' remarks to Rasmussen were not unlawful because his immediately
preceding complaints about schedules bore an insufficient relationship to
concerted activity Notwithstanding my finding (supra part II,D,1) that
Keys remarks would have been unlawful even in the total absence of
concerted activity, I do not question the professional propnety of Kroll's
contention otherwise Accordingly, my 8(a)(1) conclusion as to the inter-
view does not rely on any finding that these questions in preparation for
trial would have been unlawful, or would have rendered the interview
unlawful, even if the Johnntes Poultry safeguards had otherwise been ob-
served
K MART CORP 85
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist from such conduct, or like
or related conduct, and to'post appropriate notices
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, K Mart Corporation, St Claire
Shores, Michigan, its officers, agents, successors, and as-
signs, shall
I Cease and desist from -
(a) Telling employees not to discuss work schedules,
or other problems, with other employees
(b) Coercively interrogating employees about activities
protected by Section 7 of the Act
(c) In any like or related manner mterfenng with, re-
straining, or coercing employees in the exercise of their
rights under the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its store in St Claire Shores, Michigan,
copies of the attached notice marked "Appendix "12
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
I, If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
_ An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT tell you not to discuss work schedules,
or other problems, with other employees
WE WILL NOT coercively interrogate you about ac-
tivities protected by the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act
K MART CORPORATION