McBride's of Naylor Road

National Labor Relations Board - Board Decisions

May 19, 1977

229 N.L.R.B. 795 (N.L.R.B. 1977)

McBRIDE'S OF NAYLOR ROAD
McBride's of Naylor Road and Retail Store Employ-
ees Union, Local 400, Retail Clerks International
Association, AFL-CIO. Case 5-CA-8054
May 19, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On February 15, 1977, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs. 1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge as modified herein.
The Administrative Law Judge found lawful the
Respondent's rule regarding solicitations and distri-
butions which reads that "[s]olicitation or distribu-
tion of printed materials will not be permitted during
working hours or during non-working hours in
working areas and in public areas." For the reasons
set forth below, we disagree with that finding. We,
therefore, also find, in agreement with the Adminis-
trative Law Judge but based only on the invalidity of
the rule, that the discharge of Doris Hawkins for
soliciting for the Union in violation of the Respon-
dent's rule was discriminatory and in violation of
Section 8(a)(3) and (1) of the Act.3
The Respondent's rule, as stated above, fails on
two accounts. It is overly broad in its limitations
both as to when and as to where employees may
solicit or distribute material.
By prohibiting solicitation and distribution during
"working hours," the Respondent's rule does not
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the bnefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear proponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry) Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 In view of our finding that the Respondent's no-solicitation/no-
distribution rule is invalid, we find it unnecessary to reach the Administra-
tive Law Judge's discussion of the rule's sanction as a basis for the
8
(aX
3
)
finding.
4 Essex Inlernational, Inc., 211 NLRB 749, 750 (1974) (Chairman Miller
and Member Kennedy: Member Penello concurring; Members Fanning
and Jenkins dissenting).
229 NLRB No. 120
distinguish between that time actually spent in job
performance and those hours during which the
employees are on breaks, lunch, or "not actively at
work." 4 The Administrative Law Judge, in finding
the rule to be valid, failed to consider this distinction
which was made by the Board in Essex International,
Inc.5 In Essex, 6 the Board stated that the use of the
term "working hours" renders a rule invalid as it
unduly restricts the employees' Section 7 rights
because it is "prima facie susceptible of the interpre-
tation that solicitation is prohibited during all
business hours." An employer can, however, cure the
rule's ambiguity by showing through extrinsic evi-
dence that the " 'working hours' rule was communi-
cated or applied in such a way as to convey an intent
clearly to permit solicitation during breaktime or
other periods when employees are not actively at
work."7 The record reveals no such clarification in
the case at hand. Thus, the Respondent's rule fails as
being too ambiguous with regard to its time
element. 8
With respect to where the employees may solicit
and distribute, the Respondent's rule is also too
broad. The Administrative Law Judge correctly cited
Board precedent as holding that an employer has the
authority to prohibit solicitation and distribution in
the selling areas of a retail store, even when
employees are on their own time.9 He erred,
however, in the application of this precedent to the
rule in the case at hand. Contrary to the Administra-
tive Law Judge's interpretation of Board law, the
Board has not allowed the restrictions on solicitation
and distribution to be extended beyond that portion
of the store which is used for selling purposes. 1° The
rule herein does exactly that by precluding solicita-
tion and distribution in "working areas" and "public
areas." That is, there are certain sections of the store
such as the stockroom and the restrooms used by the
public which would be off-limits under the Respon-
dent's rule even though they are nonsales areas.
Admittedly, the Administrative Law Judge did find
that the rule as interpreted by the Respondent
permits solicitation and distribution by employees in
5 Id
r Id
? Id.
Member Jenkins agrees with his colleagues that the rule is unlawful but
he reaches this conclusion for the reasons set forth in his dissents in Essex
International Inc.. supra, and House of Mosaics, Inc., Subsidiary) of Thomas
Industries, Inc., 215 NLRB 704(1974).
As stated in his concurring opinion in Essex International Inc., supra,
Member Penello would not consider the employees' subjective understand-
ing of the facially invalid no-solicitation/no-distribution rule herein as
evidence of clarification of the rule. Such clarification, which can only come
from the employer, in a wntten or oral explanation to all employees, was not
given herein.
9 See, e.g., May Department Stores Company a Corporation, d/b/a
Famous-Barr Company, 59 NLRB 976 (1944); Marshall Field d Company, 98
NLRB 88 (1952); J. C Penney Company, Inc., 193 NLRB 684(1971).
In Marshall Field & Company. supra at 92.
795
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employee lounge and on the stairway. The record
does not reveal, however, that this interpretation was
communicated to the employees." Moreover, even
assuming such communication, the rule as interpre-
ted would still be invalid because it is too restrictive.
Thus, the Respondent's rule is also unlawful because
it includes nonsales areas in those areas in which
solicitation and distribution is prohibited.
Based on the above discussion, we have decided to
reverse that portion of the Administrative Law
Judge's Decision which finds that the Respondent's
no-solicitation/no-distribution rule is valid and to
find that the rule was promulgated in violation of
Section 8(a)(l) of the Act. As stated above, we have
also decided to uphold the Administrative Law
Judge's finding that Doris Hawkins' discharge,
because she violated the Respondent's rule, was
discriminatory and violative of Section 8(a)(3) and
(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
McBride's of Naylor Road, Washington, D.C., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees as to whether they
have signed union cards.
(b) Telling employees that McBride's has a list of
employees who have signed union cards.
(c) Telling employees that guards are watching
employees or that McBride's knows who have signed
union cards.
(d) Otherwise creating the impression of surveil-
lance of union activities.
(e) Discharging or refusing to reinstate employees
because of their union membership or other protect-
ed concerted activities.
(f) Promulgating, maintaining, or enforcing any
rule, or posting any notice reading "Solicitation or
distribution of printed materials will not be permit-
ted during working hours or during non-working
hours in working areas and in public areas."
(g) Maintaining lists of employees who have joined
the Union, unless the Respondent has a contract
with the Union lawfully requiring membership of
employees in the Union.
(h) In any other manner discouraging membership
in a labor organization or interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Doris Hawkins immediate and full
reinstatement to her former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or
other rights and privileges.
(b) Make Doris Hawkins whole for any loss of
earnings she may have suffered by reason of the
discrimination practiced against her, with interest at
6 percent per annum, in accordance with the
formulas set forth in F W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(c) Destroy any lists it may have of employees who
have joined the Union.
(d) Preserve and, upon 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 analyze the amount of
backpay due under the terms of this Order.
(e) Post at its place of business copies of the
attached notice marked "Appendix." 12 Copies of
said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
" Only one employee who was not part of management testified that she
was aware that the Respondent's rule allowed solicitations in the employee
lounge and on the stairway.
12 In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question or interrogate employ-
ees as to their union activities or whether they
have signed union cards, and WE WILL NOT tell
employees that guards are watching their union
activities, or that we have a list of employees who
796
McBRIDES OF NAYLOR ROAD
have signed union cards, or otherwise create the
impression of surveillance of union activities.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against employees because
they join Retail Store Employees Union, Local
400, Retail Clerks International Association,
AFL-CIO, or any other union, or engage in other
protected concerted activities.
WE WILL NOT promulgate, maintain, or enforce
our rule which reads that "Solicitation or distribu-
tion of printed materials will not be permitted
during working hours or during non-working
hours in working areas and in public areas."
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer Doris Hawkins immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and benefits, and WE WILL pay her for
any loss of wages which she suffered as a result of
her discharge on July 2, 1976, including paying
interest to her.
WE WILL destroy any lists we have of employ-
ees who have joined the Union.
MCBRIDE'S OF NAYLOR
ROAD
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
July 12, 1976, Retail Store Employees Union, Local 400,
Retail Clerks International Association, AFL-CIO, herein-
after called the Union, filed an unfair labor practice charge
against McBride's of Naylor Road, the Respondent, and
on August 9, 1976, filed an amended charge, alleging that
the Respondent had committed unfair labor practices
within the meaning of the National Labor Relations Act
(29 U.S.C. § 158). On August 24, 1976, the General
Counsel, by the Regional Director for Region 5 of the
Board, issued a complaint and notice of hearing upon such
charges, and on September 27, 1976, issued an amendment
I The factual findings herein are based on record evidence and
testimony, sometimes disputed. Though the findings do not contain or refer
to all the evidence, all has been considered. Testimony contrary to the
findings has not been credited. Credibility resolutions have been made on
the basis of the whole record, including the inherent probabilities of the
testimony and the demeanor of the witnesses. Any contentions not adverted
to have been found not to be established by the evidence or the law.
2 Procedural issues concerning the propriety of the amendments to the
complaint were decided during the course of the hearing. A further
contention by the Respondent to the effect that the General Counsel is
estopped from asserting the invalidity of the Respondent's no solicitation
rule, is found not sustained.
The ground stated by the Respondent for its contention is that the same
rule was found by the Regional Director, in another case against the
to the complaint. The Respondent duly filed an answer and
a supplemental answer denying the allegations of unfair
labor practices contained in the complaint and the
amendment.
Upon due notice a hearing was held before me in
Washington, D.C., on October 19, 21, and 22 and
November 9 and 10, 1976. All parties appeared and were
afforded full opportunity to participate, to introduce and to
meet material evidence, and to engage in oral argument.
During the course of the hearing the General Counsel
further amended the complaint, over objection by the
Respondent, to allege further violations by the Respon-
dent. The General Counsel filed a brief on December 23,
1976. The Respondent filed briefs on December 27, 1976,
and on January 14, 1977.
On the entire record in the case, the briefs, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. URISDICTION
Respondent, a District of Columbia corporation, is
engaged in the operation of a retail department store at
2834 Alabama Avenue, S. E., Washington, D.C. During the
preceding 12 months, a representative period, Respondent
had gross revenues in excess of S500,000. During the same
period, Respondent purchased and received, in interstate
commerce, materials and merchandise valued in excess of
$50,000 from points located outside the District of
Columbia. At all times material herein, Respondent is, and
has been, an Employer as defined in Section 2(2) of the
Act, engaged in commerce and in operations affecting
commerce as defined in Section 2(6) and (7) of the Act,
respectively.
II. THE LABOR ORGANIZATION
At all times material herein, the Union is, and has been, a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues2
The substantive issues are:
(1) Whether the Respondent's no-solicitation no-distri-
bution rule is unlawful or was discriminatorily enforced.
Respondent involving a different store (Case 5-CA-8101), not to warrant
issuance of a complaint. The Regional Director there found the rule to be
valid, and the discharge of an employee for soliciting in a working area
during working hours not a violation of the Act. It is not shown that the
circumstances there were the same as those here, as reflected in the factual
findings herein made.
In any event, although the General Counsel has final authority in respect
to the investigation of charges, issuance of complainta, and prosecution of
them before the Board (Sec. I0(d) of the Act), principles of estoppel are not
applicable to the Board's processes, and administrative constructions of the
General Counsel (other than his authority to refuse to issue complaints) are
not binding on the Board. Berts Cadillac-Olds, Inc., 96 NLRB 268, 272
(1951).
797
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Whether Doris Hawkins was validly discharged by
the Respondent because she violated the no solicitation
rule.
(3) Whether other conduct of the Respondent constituted
interference, restraint, and coercion of employees.
B. Background
The Respondent operates several retail department
stores in the Washington, D.C., area, including the store
here involved, which is known as the Naylor Road store.
Barry Blechman is the president of the Respondent and is
in charge of overall policymaking. Edwin Rosenbaum is
manager of the Naylor Road store and responsible for its
day-to-day operations. On the basis of the pleadings, and
other evidence introduced here, it is found that the
remaining supervisory personnel of the store, as of the time
of the events herein, included the following individuals:
Gary Mays, assistant manager; Elizabeth Keenan, linen
department manager; Olivia London, accessory depart-
ment manager; Charles Clark, receiving department
manager; Calvin Bonner, hardware department manager;
and Miss Williams, a department manager.
The store is composed of two floors. The first floor,
which is at the street level, contains all of the selling areas.
A security desk is located directly inside the main entrance
way, where guards are stationed to inspect packages. The
basement floor contains lockers for employees, as well as
an employee's lounge. The lounge may be used by
employees as an area in which to eat their lunch or to take
their breaks.
C. The No-Solicitation No-Distribution Rule
In March 1975 the Respondent was having difficulty
with solicitation and literature distribution in the Naylor
Road store by outside organizations or individuals on
behalf of various commercial, religious, and charitable
enterprises. There was not, however, at that time, a
problem regarding solicitation or literature distribution by
employees or by union organizers. To resolve the difficulty
the Respondent, with the advice and assistance of legal
counsel, enacted rules forbidding solicitation or distribu-
tion in the store. To insure general application the rule was
drafted in terms broad enough to include employee action.
Appropriate notices were posted at the store entrance and
on the employee bulletin board near the timeclock in the
spring of 1975. The notice posted at the timeclock was as
follows:
Solicitation or distribution of printed materials will not
be permitted during working hours or during non-
working hours in working areas and in public areas.
The second notice, directed to nonemployees, was posted
at the same time near the main entrance. It stated:
No solicitation or distribution of any printed materials
by non-employees will be permitted on the premises by
:' The reason for the supplement, as given in the Respondent's testimony,
was that the rule was difficult to enforce and therefore required a severe
penalty. However, there is no indication in the evidence that as of that time
there was any problem of employee disregard of the rule.
or on behalf of any individual organization, group or
society.
However, employees were permitted to engage in
solicitation in the employees' lounge. In the spring of 1976
the notice to the public at the store entrance was changed
so as to add additional restrictions on the general public.
Insofar as solicitation or distribution of written materials
was concerned, the new signs at the entrance were changed
so as to read the same as the notice posted on the
employees' bulletin board.
In February 1976 the rule was supplemented by a
provision (unlike most other rule violations) that violation
of the no-solicitation rule would be dealt with by
immediate discharge. The supplement stated as follows:
warnings
Except for the 30-day review, and except for serious
instances such as dishonesty, and solicitation an
employee should be warned at least twice before being
discharged3
This policy was thereafter communicated to new applicants
when hired. Although managers were instructed to notify
other employees of the new policy, it is not clear from the
record as to whether this was done.
D. Hawkins and Keenan
So far as the record reveals to the contrary, Hawkins was
a satisfactory employee, except for the incidents for which
she was discharged.
In June 1976 the Union was seeking to organize the
Naylor Road store. On June 16, 1976, Doris Hawkins and
Department Manager Elizabeth Keenan met Union Repre-
sentative Charlene Pope and James Green at a restaurant
in the neighborhood of the store. Hawkins and Keenan
there signed authorizations designating the Union as their
bargaining representative. Each received union literature,
along with business cards of Pope and Green containing
Pope's and Green's addresses and their office and home
telephone numbers. However, Hawkins and Keenan were
not given any blank designation cards for employees to
sign, and they were cautioned against speaking to employ-
ees during working time.
That afternoon, Department Manager Keenan reported
to Gary Mays, assistant manager, that Hawkins had gone
to lunch with a union representative, and told Mays that he
"had to look out for Mrs. Hawkins." Mays responded, "I
will."
Thereafter, about June 24, Department Manager Keenan
gave the two business cards which she had received from
Pope and Green to Assistant Store Manager Mays. Keenan
told Mays that Hawkins had given Keenan the cards,
telling Keenan that Pope and Green would get in touch
with Keenan, and that Hawkins would talk to Keenan
later. 4
The reference to the 30-day review is to a review of an employee's
performance after 30 days of employment to determine whether he or she
should be retained.
4 The findings as to the restaurant meeting are based on the credited
798
McBRIDE'S OF NAYLOR ROAD
During the next 2 weeks a number of other incidents
occurred in the store, culminating in Hawkins' discharge
on July 2, 1976.
E. The Interrogation of Pamela Smith
On Thursday, June 24, Store Manager Rosenbaum took
employee Pamela Smith to another of the Respondent's
stores for the purpose of inspecting certain records. Smith's
denied, but credited, testimony is that on the way back to
the Naylor Road store Rosenbaum asked Smith whether
she had talked to any union people in the store, or had
heard any rumors of it, whether any employees were
talking about the Union, and whether Smith had signed a
union card.
F. Keenan's Attempts To Get Her Union Card
Back
On the same day that Manager Rosenbaum interrogated
employee Smith, Linen Department Manager Elizabeth
Keenan emerged from the office visibly upset and told
Doris Hawkins that she had to get her union card back,
saying that she was afraid that she might be fired. Hawkins
responded that Keenan had the business cards of Green
and Pope with their telephone numbers, and that Keenan
should call them. On the next day, still upset, Keenan told
Hawkins that she had lost the cards given her by Pope and
Green. Hawkins then called Pope, who telephoned Keenan
and sought to reassure her. Keenan told Pope that she
wanted nothing further to do with the Union or Pope, and
directed Pope to give Hawkins Keenan's card to return to
Keenan. Pope replied that she would consult Union
Representative Donald Dickerson. Dickerson thereafter
authorized Pope to use her own judgment. However, in the
meantime Hawkins' discharge intervened, and the card was
not returned to Keenan.5 Other conversations between
Keenan, Hawkins, and Pope following Hawkins' discharge
are related infra.
G. Clark's Reports Regarding Hawkins
Sometime in June 1976, on a date not established by the
record, Charles Clark, receiving manager at the store,
signed a union card. However, informed by an employee
testimony of Hawkins. Pope, and Green, and on an admission by Keenan to
Pamela Smith that she had signed the card in the restaurant. The findings as
to Keenan's report to Mays on June 16 are from Keenan's testimony; those
as to Keenan's giving the cards to Mays are admitted, and form the basis, in
part. of the Respondent's defense.
Keenan, a witness for the Respondent, admitted signing and filling out
the union authorization card, which is dated June 16, 1976. The card bears a
clear statement of its purpose, Keenan's name, address, job, phone number,
social security number, date of her hire, and rate of pay. However, Keenan
denied meeting with Pope and Green in the restaurant, and denied signing a
union authorization card.
Keenan's testimony is that Hawkins arranged a luncheon meeting with a
man on June 16, but that when Keenan recognized Pope as a man she had
seen talking to other women in the store, she declined to go, telling Hawkins
that "I wouldn't want him for a date, because he's been talking to all the
other women in the store." Keenan testified to signing a card or paper on
the store floor at Hawkins' request several days after June 16, on Hawkins'
representation that it was to help children in the neighborhood to get
summer jobs-though Keenan objected to Hawkins that such things were
"not supposed to be done on the floor." Although she both filled out and
signed the card or paper, Keenan testified that she did not know what was
on it, because she had not read it.
that the Respondent had a list of those who signed cards,
and would find out anyway, Clark volunteered to Store
Manager Rosenbaum that he had signed a card. Clark's
testimony does not disclose what response Rosenbaum
made, if any.
Clark's uncontradicted and accepted testimony is that,
sometime between June 20 and 27, 1976, prior to the time
Clark signed the union card, Doris Hawkins asked Clark
whether he had heard about the Union. The incident
occurred in a work area at a time when both were working.
Hawkins explained the benefits of union membership,
including the possibility of more money. Clark responded
that he could use some of that. The conversation concluded
with Hawkins possibly stating that Clark could meet
someone down the street who would explain more to him
about it. Hawkins did not ask Clark to join the Union or to
sign a card.
Clark did not report that conversation to his superiors. 6
Later in the same week, Clark observed Hawkins
speaking to Adrian Anderson, a part-time employee in the
receiving department. Clark, unobserved by Hawkins and
Anderson, stopped to listen to the conversation. Clark
heard Hawkins explain the benefits of union organization
to Anderson, Hawkins told Anderson that he could meet a
woman down the street who could tell him more about it.
The conversation took place in a work area during working
time. Clark reported this conversation to Assistant Store
Manager Mays, apparently about June 24, and on July 2 to
Store Manager Rosenbaum and the Respondent's attorney.
At a later time, probably in the same week, Clark
initiated a conversation with Hawkins about the Union.
This conversation was also on working time on the floor.
On this occasion Clark asked Hawkins if she had heard any
more about the Union. This time Hawkins told Clark that
he probably could not belong to the Union because he was
a manager and "already had the benefits." That ended the
conversation. Clark reported it to Store Manager Rosen-
baum and to Calvin Bonner, manager of the department of
hardware and houseware.
Keenan's testimony as to the circumstances and reasons for her reports to
Mays is as follows: After Hawkins returned to the store from the luncheon
meeting on June 16. she met Keenan in the employees' lounge. Hawkins told
Keenan that Keenan "should have met the man.... He was from the
union. He had quite a bit to say." Keenan made the reports because
solicitation was prohibited in the store, and because department managers
had been told at a meeting to report any instances of outside organizations
in the store. However, Keenan did not report Hawkins' alleged solicitation
for summerjobs.
Keenan was an incredible witness. Except where it constitutes an
admission or is consistent with evidence otherwise established, her
testimony is rejected.
5 The findings in this paragraph are based on the credited testimony of
Hawkins and Pope. Keenan's contrary testimony is not credited.
a Clark's testimony is equivocal on this point. In view of the fact that the
incident is not alleged by the Respondent as a ground for Hawkins'
discharge, and the fact that there is no testimony by any official of the
Respondent indicating knowledge of the incident, I conclude that Clark did
not report it.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. June 24: The Baker Incident; Department
Manager Williams Reports to Rosenbaum on
Hawkins
About June 24, 1976, Doris Hawkins met employee
Uradell Baker on a stairwell in the store. The stairwell was
not a working or public area, and solicitation was not
prohibited there. Hawkins spoke to Baker about the Union
and asked if Baker would sign a union card. Baker replied
that she would think about it.
Baker then spoke to her supervisor, Department Manag-
er Miss Williams, and asked if she could speak to Williams
in confidence. Williams responded that she could, and
Baker then told Williams of Hawkins' action, and asked
what Williams thought of the Union. Williams promptly
reported the incident to Store Manager Rosenbaum.
Rosenbaum then called Baker into his office and asked
her if she knew about anyone soliciting in the store. Baker
at first pretended ignorance, but when it became apparent
that Williams had informed Rosenbaum of the incident,
Baker, though shocked at Williams' violation of confi-
dence, told Rosenbaum of the occurrence.
Later in the day of June 24, Rosenbaum called a meeting
of department managers and asked them if they knew of
any union solicitation in the store. It will be remembered
that on June 16 Department Manager Keenan had
reported to Assistant Store Manager Mays, on Hawkins'
meeting of that day with Union Representatives Pope and
Green. At the meeting on June 24, Keenan indicated that
she might have something to tell Rosenbaum later on. Still
later in the day, as related previously, Department
Manager Keenan gave Assistant Store Manager Mays the
two business cards of the union organizers, telling Mays
that Hawkins had given her the cards, and said that Pope
and Green would get in touch with her, and that Hawkins
would talk to Keenan later.
Store Manager Rosenbaum then telephoned Respon-
dent's president, Blechman, and advised him of the
situation. As a result it was arranged that a meeting of
employees would be held on the following Monday, June
28, and an investigation of the alleged solicitation conduct-
ed by the Respondent's attorney.
Presumably it was around this date that Department
Manager Clark reported, first to Assistant Store Manager
Mays, and then to Store Manager Rosenbaum, the
conversation between Hawkins and employee Anderson
which has been related heretofore. It will also be recalled
that it was on June 24 that Keenan emerged from the office
upset and told Hawkins that she had to get her union card
back.
I. June 28: The Various Meetings and the
Investigation
Three specific events occurred on June 28: (1) Store
Manager Rosenbaum instructed department managers that
they should not engage in interrogation, threats, surveil-
lance, or make promises of benefits to employees regarding
the Union; (2) Rosenbaum held a meeting of employees in
which he told them that he was aware of union activity
7 Store Manager Rosenbaum's testimony is that about a month prior to
the hearing he asked Anderson whether Hawkins had spoken to him about
going on in the store, and reminded them of security and
no-solicitation rules. Rosenbaum made no coercive state-
ments in his speech but made clear that the Respondent
was opposed to the Union; and (3) the investigation of
solicitation by Hawkins was begun.
The investigation
The investigation, which took place principally on
Tuesday, June 28, consisted of interrogation by the
Respondent's attorney, in the presence of President
Blechman and Store Manager Rosenbaum, of department
managers, concerning whether Hawkins had solicited for
the Union. In addition, though the conduct observed by
employee Uradell Baker did not constitute a violation of
the no-solicitation rule, Baker was likewise questioned.
Keenan repeated her untrue story to the effect that
Hawkins had given her the two business cards of the union
organizers. Clark related the conversation he had observed
and overheard between Hawkins and employee Adrian
Anderson. Anderson was not interviewed at any time prior
to Hawkins' discharge on July 2, nor was he called as a
witness.7
Nor was Doris Hawkins interviewed at any stage of the
proceeding.
President Blechman's testimony is that the Respondent's
procedure in dishonesty and solicitation cases is to have
the investigation include speaking to the accused employee.
No explanation is given here for not speaking to the
accused Hawkins in the instant investigation, other than
President Blechman's testimony that he did not feel that
"anything would be gained" by speaking to Hawkins.
J. July 2, 1976, Activities
1. The speech
On Thursday, July 1, President Blechman approved the
discharge of Hawkins for violating the no-solicitation rule.
The decision was based on the information given by
Department Manager Keenan regarding the organizers'
cards, and that given by Department Manager Clark as to
the conversation between Hawkins and Anderson.
On the following morning, July 2, President Blechman
gave a speech to the assembled employees in the Naylor
Road store in opposition to the Union's efforts to organize
the store.
Without analyzing the speech in detail, it may be
summarized as typical of speeches given to employees by
employers resisting the unionization of their employees.
The speech made plain the Respondent's opposition to the
Union, emphasized the Respondent's concern for and
liberality with its employees, accused the Union of lying
and attempting to trick employees in order to get their dues
and to support union leaders and their huge expenses and
salaries, pictured the Respondent and the employees as a
family and the Union as an outsider seeking to disrupt
their intimate relationship, warned that the employees
would lose their freedom and perhaps their jobs through a
union shop, and advised them that with union representa-
the Union in the store. Rosenbaum's testimony does not disclose
Anderson's response.
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McBRIDE'S OF NAYLOR ROAD
tion they could no longer bring their problems to the
sympathetic attention of the Respondent unless the Union
chose to permit it.
In sum, the speech made plain the Respondent's
opposition to the Union: the Respondent was the employ-
ees' friend and the Union their enemy. However, the
speech contained no threat of force or reprisal, or promise
of benefit, and consequently was not an unfair labor
practice.8
2. The meeting of department managers
Following President Blechman's speech, a meeting was
called of the department managers at which they reported
any information they had received concerning union
activities, and were told that the discharge of an employee
was contemplated for violation of the no-solicitation rule.
At this meeting President Blechman again made it clear to
the managers that he did not want a union in the store.
3. The conversation between Austin and London
The denied but credited testimony of employee Deborah
Austin is that, after the meeting of the department
managers on the morning of July 2, Department Manager
London came to Austin, a friend, and asked Austin
whether she had signed with the Union. After some
hesitation, Austin replied that she had. London asked why
Austin had not told her, stating that Austin had to be very
careful because the security guards were watching her, that
"they" knew which people had signed, and had a list of
them. London added that several people had been called
into the office. This news upset Austin and she asked
London to arrange a meeting between Austin and Store
Manager Rosenbaum, which London agreed to do.
Shortly afterward Store Manager Rosenbaum came to
Austin and, without making any reference to the Union,
told Austin of the Company's achievements, spoke of it as
a family and a place which could be relied on and trusted
by employees, and said that Austin need not worry about
raises-sooner or later she would get one.
4. The discharge of Hawkins
During the afternoon of July 2, Hawkins was called into
the office and discharged by Store Manager Rosenbaum.
Asked for the reason, Rosenbaum told Hawkins that it was
for soliciting. Hawkins denied soliciting and asked for
particulars, which Rosenbaum declined to give. Hawkins,
in a reference to President Blechman's speech, observed
that this was not "the way you do a member of the family."
R Testimony of Hawkins to the effect that President Blechman threat-
ened to close the store if the Union came in is not accepted. Though the
opposition and appeals to fear reflected in the speech make it plausible that
that is the message that Hawkins heard being conveyed, it is not what
Blechman said. Such confusion and misunderstanding among employees
resulting from such speeches is commonplace in labor relations.
9 Keenan admitted having three phone conversations with Pope: the first
on the night of the day on which Keenan supposedly signed the paper for
Hawkins respecting summer jobs. According to Keenan, Pope on that
occasion asked her to join the Union, saying that Keenan "would make a
very good organizer," and that Keenan declined the invitation. The second
conversation, according to Keenan, occurred on the night of Friday, July 2,
after Hawkins had been discharged. In that conversation, according to
Keenan, Pope telephoned her at home and told her that Hawkins was not
Rosenbaum wryly replied that Hawkins was no longer a
member of the family. Hawkins was given her pay and
escorted from the store.
This was Hawkins' first violation of store rules. The
record contains no suggestion that her work was unsatis-
factory.
5. The interrogation of Smith, Clark, and Beatles
In the afternoon of July 2, following Hawkins' discharge,
employee Pamela Smith, an employee named Beatles, and
Department Manager Charles Clark, were called into the
office of Store Manager Rosenbaum, where they were
interrogated by Rosenbaum and Assistant Store Manager
Mays. After speaking in opposition to the Union, Rosen-
baum and Mays said that they had proof that Hawkins was
soliciting in the store, that they had a list of those who had
signed union cards, and that Beatles, Smith, and Clark
might as well admit it. Clark responded that he had signed
a card, but that he did not now want to be involved with
the Union. The record reveals no response by Beatles and
Smith, who had also signed cards.
6. The conversations between Hawkins, Keenan,
and Pope
Doris Hawkins' undenied and credited testimony is that
on the night of her discharge she telephoned Department
Manager Keenan, told Keenan that she had been dis-
charged for soliciting, and asked Keenan what had been
said about Hawkins in the meeting of department manag-
ers that day. Keenan replied that she had been asked
whether Hawkins had been soliciting, and that she had said
no, but that "London gave me such a hard time."
Hawkins then called Union Representative Pope and
voiced her suspicions about Keenan. Pope then telephoned
Keenan and asked if Keenan would give the Union a
statement to the effect that the Respondent had questioned
her about the Union. Keenan replied that she would do so
if she got her card back.9
K. July 4, 1976: The Conversation Between Pamela
Smith and Department Manager Bonner
About July 4, 1976, Department Manager Bonner told
Pamela Smith that Store Manager Rosenbaum had asked
Bonner to attempt to learn from his employees whether
they had signed union cards, but that Bonner had been
unable to get any information from his employees. 10
the only key person the Union had in the store, so that Keenan did not have
to "worry" about Hawkins' firing. The third conversation, according to
Keenan, occurred about a week later when Pope again telephoned Keenan
and asked if Keenan would give a statement to the effect that Hawkins was
not soliciting in the store, to which Keenan replied that she could not do
that because "it wasn't true." I am unable to credit Keenan's testimony.
I' About a week after Hawkins' discharge, Department Head Michael
Miles was called to the office and interrogated on successive days by
Assistant Store Manager Mays concerning whether Miles had received
literature from the Union and whether he had joined it. Since I have found,
on the basis of the facts adduced here, that department heads are
supervisors, Mays' interrogation of Miles does not constitute interference,
restraint, or coercion of employees.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
The interrogations and threats
On the basis of the foregoing facts, it is found that the
Respondent interfered with, restrained, and coerced em-
ployees in the excercise of rights guaranteed in Section 7 of
the Act, thereby violating Section 8(a)(X) of the Act, by the
following conduct:
i. Store Manager Rosenbaum's interrogation of em-
ployee Pamela Smith on June 24, 1976, as to whether Smith
had signed a union card.
2. Department Manager London's interrogation of
Deborah Austin on July 2, 1976, as to whether Austin had
signed with the Union.
3. The interrogation of employees Smith and Beatles on
July 2, 1976, by Store Manager Rosenbaum and Assistant
Store Manager Mays, designed to secure admissions that
Beatles and Smith had signed union cards.
4. The statement of Rosenbaum and Mays on July 2,
1976, to Beatles and Smith to the effect that the Respon-
dent had a list of those who signed union cards, and that
Beatles and Smith might as well admit that they had
signed, Rosenbaum and Mays thereby creating the impres-
sion of surveillance of union activities of employees.
5. The statement of Department Manager London to
employee Deborah Austin on July 2, 1976, to the effect
that the security guards were watching Austin, that "they"
(the Respondent) knew who had signed and had a list,
London thereby creating the impression of surveillance of
union activities of employees.
The allegations of other unfair labor practices are to be
considered in this context.
The no-solicitation no-distribution rule
The rule prohibits solicitation or distribution of printed
materials by employees and nonemployees in working and
public areas, but, as interpreted by the Respondent,
permits solicitation and distribution by employees in the
employee lounge and on the stairway. Though there is
some evidence that solicitation of various kinds by
employees occurred after enactment of the rule, I do not
deem it substantial or probative enough to establish that
solicitation was generally permitted by the Respondent
following the posting of the rules in places other than the
employees' lounge and the stairwell.
Such a rule is not unlawful in department stores such as
the Respondent's. Marshall Field & Company, 98 NLRB 88
(1952); J. C. Penney Company, Inc., 193 NLRB 684 (1971).
The requirements of efficient business performance permit
interference to that extent with the statutorily protected
right of employees to engage in lawful union activities.
However, the same cannot be said of that portion of the
rule which provides for immediate and summary discharge
of employees for engaging in prohibited solicitation. In all
other cases of violation of store rules, except for dishones-
ty, employees are required to be given two warnings before
being discharged. In solicitation cases, discharge is not
only not subject to prior warning, but is in fact mandatory.
As President Blechman testified, no exception could be
made in Hawkins' case:
[I ]n order to keep the integrity of the rule we had to go
ahead and terminate her employment.
If we made an exception here in her case . . . we
wouldn't have a rule.
The logic of requiring summary discharge in cases of
dishonesty is self-evident. But no persuasive reason is
advanced for equating solicitation, a statutorily protected
action, with dishonesty-a statutorily prohibited one-in
respect to tolerance of it, and none is apparent. Employee
solicitation was not a problem when the no-solicitation rule
was adopted or supplemented. Hence the adoption of the
summary and mandatory discharge aspects of the rule with
respect to solicitation was not founded in business
necessity and experience. It is neither self-evident, nor
established by this record, that employee solicitation on
behalf of a union in the Respondent's store is so much
greater a disruption of business than, say, willful refusal to
wait on customers or to obey the orders of a supervisor,
that it cannot be tolerated, whereas the latter offenses can.
The result is that solicitation on behalf of a union is
subjected to restraints inapplicable to other action equally
disruptive of business and discipline. In the absence of
justification, such a restraint is violative of the Act.
As the Board said in May Department Stores Company,
d/b/a Famous-Barr Company, 59 NLRB 976, 981 (1944), of
a no-solicitation rule in another context:
The Respondent has adduced no convincing evidence
that such a blanket injunction [forbidding all solicita-
tion on the premises] bears reasonable relation to the
efficient operation of its business.
The summary discharge of employees for violating no-
solicitation rules, where other violations of employer rules
are not so punishable, is destructive of employee rights to
be free of discriminatory treatment for engagement in
union activity, in the absence of evidence of legitimate and
substantial business justifications for the discrimination.
Erie Resistor Corp., 373 U.S. 221, 228, 231 (1963); Great
Dane Trailers Inc., 388 U.S. 26 (1967).
There being no evidence of such justification here, it is
found that the portion of the Respondent's rules which
provide for summary discharge for violation of the no-
solicitation rule, while requiring that other employees be
warned at least twice before being discharged, interferes
with, restrains, and coerces employees in the exercise of
rights guaranteed in Section 7 of the Act.
That the rule subjects all employee solicitors, union as
well as nonunion, to the same disability, does not cure the
illegality. As the Board said in Marshall Field & Company,
98 NLRB 88, 91, (1952), in a similar context:
The lack of any discrimination, therefore, between the
treatment accorded union solicitors and other solicitors
cannot excuse the denial of the statutory right protect-
ing the former.
802
McBRIDE'S OF NAYLOR ROAD
The discharge of Hawkins
Since Hawkins was discharged for soliciting for the
Union, and without prior warning, on the first occasion on
which she assertedly violated the Respondent's rules, it
follows that her discharge was discriminatory and violative
of Section 8(a)(3) and (1) of the Act, regardless of whether
or not Hawkins violated the no-solicitation rule.
However, the discharge was unlawful for a further
reason; namely, that it was based, at least in part, on the
false statement of Keenan, a supervisor, to the effect that
Hawkins had given her the organizers' business cards on
the store floor, and had told Keenan that she could meet
union people down the street, and that Hawkins would talk
to her later.
A discharge of an employee, based in whole or in part on
a false statement by a supervisor to the effect that the
employee has violated a store rule by soliciting for a union
in the store, is a violation of the Act. It is immaterial
whether the falsity is known to the discharging official.
Employee rights cannot be made to depend solely on the
knowledge of such official. The supervisor is an agent of
the employer and in such a situation both his conduct and
his knowledge are imputable to the employer. Montgomery
Ward & Company, Incorporated, 115 NLRB 645, 647 (1956),
enfd. 242 F.2d 497, 501 (C.A. 2, 1957); Arlington Hotel
Company, Inc., 127 NLRB 736 (1960); Owens-Corning
Fiberglass Corporation, 146 NLRB 1492 (1964); Alabama
Textile Products Corporation, 164 NLRB 88 (1967). The
discharge of an employee pursuant to an honest, but
mistaken, belief on the part of the employer that the
employee has engaged in an unprotected concerted activity
is not an unfair labor practice unless the employee did not
in fact engage in the activity. Burnup and Sims, Inc., 379
U.S. 21 (1964); Rubin Bros. Footwear, Inc., 99 NLRB 610
(1952). Essential to the establishment of such a defense is
that the employer have a bona fide belief as to the
commission of the prohibited act. Here the failure of the
Respondent to interview Hawkins and Anderson to
ascertain their versions of the facts, while at the same time
questioning Baker, whose incident admittedly did not
involve a violation of the rule, and the refusal to give
Hawkins particulars as to the alleged solicitation, acquires
critical significance. In the circumstances here, a reason-
ably prudent and fair employer, interested in arriving at the
truth, would, in my opinion, have interviewed Hawkins
and Anderson before finding Hawkins guilty, and would
have told Hawkins the basis for the conclusion. The
conglomeration of facts available to the Respondent upon
investigation as to the truth of Keenan's accusation, would
have at least given it pause, I would suppose, if not indeed
had persuaded the Respondent that Keenan's story was too
implausible for acceptance. Thus the failure to give
Hawkins an opportunity for defense before concluding her
guilt is inconsistent with a conclusion that a correct answer
was sought. That failure acquires particular significance
when it is considered that Hawkins had not theretofore
been involved in any disciplinary incidents, and her
services had apparently been satisfactory. The Respon-
dent's instructions to all managers regarding terminations
requires detailed statements of the reasons therefore, with a
caveat that, before laying off a good employee, managers
check with personnel since "perhaps he can be used
elsewhere in the company." This reluctance to lose good
employees is in significant contrast to the treatment
accorded Hawkins.
On the basis of those considerations, the failure to
interview Hawkins and Anderson, considered against the
background of the Respondent's other unfair labor
practices and its opposition to the Union, negates and
forecloses any conclusion that the Respondent had a bona
fide interest in determining the facts and suggests that the
Respondent sought no more than enough evidence to make
its assorted final conclusion appear plausible. Thus, it
cannot be said that the Respondent discharged Hawkins in
an honest belief that she had committed the acts of which
she was charged. In such a circumstance the discharge
violated Section 8(aX3) and (1) of the Act.
[Recommended Order omitted from publication.]
803