McCrory Corp.

National Labor Relations Board - Board Decisions

Jun 14, 1974

211 N.L.R.B. 613 (N.L.R.B. 1974)

BRITT'S DEPT . STORE 613
Britt's Department Store , Division of McCrory Corp.
and Retail Clerks Union, Local No. 455 , chartered
by Retail Clerks International Association,
AFL-CIO. Case 23-CA-4912
June 14, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 9, 1974, Administrative Law Judge Phil
Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions,
and the General Counsel filed a brief in support of
the Administrative Law Judge's Decision.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
had engaged in the alleged unfair labor practices. A
hearing in this proceeding was held before me, and both
the General Counsel and Respondent filed briefs.
Upon the entire record in this case , and from my
observation of the witnesses and their demeanor, I make
the following: 2
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation organized and existing by
virtue of the laws of the State of Texas and is engaged in
the business of operating retail department stores in
various States including Texas. During the past 12 months,
the Respondent has sold and distributed products with a
gross value exceeding $500,000 . During the same period of
time, the Respondent also purchased goods from points
and places located outside the State of Texas valued in
excess of $50,000, and which goods were shipped directly
to its retail department store located at 315 Northline Mall,
Houston , Texas.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Britt's Department
Store, Division of McCrory Corp., Houston, Texas,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Administrative Judge: Based on a
charge filed on November 2, 1973,1 by Retail Clerks
Union, Local No. 455, chartered by Retail Clerks Interna-
tional Association, AFL-CIO, herein the Union, a com-
plaint against Britt's Department Store, Division of
McCrory Corp., herein the Company or Respondent, was
issued on December 18 alleging violations of Section
8(a)(1) of the National Labor Relations Act, as amended.
Respondent filed an answer to the complaint, denying it
I All dates are in 1973 unless stated otherwise.
2 All credibility resolutions made herein are based on a composite
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
3 The following named persons occupied the positions set opposite their
names and are admitted supervisors within the meaning of Sec. 2(11) of the
Act:
Donald Wood Store Manager
Elsie Geer Personnel Manager
Evelyn Conine Supervisor
III. THE UNFAIR LABOR PRACTICES
It is alleged that on various dates in September and
October, Respondent's supervisors interrogated and threat-
ened employees,and told them their support for the Union
was an act of disloyalty, and it is also alleged that one
employee was asked to tell a fellow employee not to join
the Union .3
Around the first of September the Union instituted
efforts in attempts to organize the Respondent's employ-
ees, and authorization cards were also distributed to the
employees. It was during this period that the 8(a)(1)
violations occurred .4
The Respondent argues that the General Counsel has
failed to sustain his burden of proof and that there was no
evidence showing the employees felt threatened or intimi-
dated , and further maintains that , even assuming , arguen-
do, that the incidents were unlawful, they were so isolated
so as not to warrant the issuance of a remedial order.
Employee Susan Howard works at the service desk in the
credit department, and credibly testified that in September,
after the Union had started its campaign, Supervisor Elsie
Geer asked her if Gloria Nash, a coemployee, had signed a
card. Howard further testified that at a later occasion, on
or about October 20, Supervisor Geer again called her into
4 On or about October 26 , the Union filed a petition to be certified as the
collective-bargaining representative, and the Board 's Regional Office
proceeded with the petition for certification when the Union agreed that the
pendency of the unfair labor practice charge herein should not stay the
holding of the election . The election was held on January 10, 1974 , but the
Union failed to obtain a majority of the votes. The results of the election
were then certified and no objections with respect thereto were filed by the
Union . The Respondent 's store here in question has about 80 employees.
211 NLRB No. 95
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the office to work on a schedule, and Geer told Howard
she wanted to ask her something, and then stated, "I heard
you signed a union card, and I'm real disappointed in you.
You are going to be letting Mr. Wood down." Geer then
also asked Howard if Ella Rogers had signed a union
card.5
Susan Howard also credibly testified that, in the latter
part of October, Store Manager Donald Wood was leaving
the service desk when he told her, "Talk to your little
friend and tell her not to join the Union." Howard said
that as he made this statement Wood turned around and
looked at Janice Wilson.6
Employee Dorothy Smith credibly testified that on or
about October 16, Supervisor Evelyn Conine approached
her in the work area where she was assigned and asked if
she was going to join the Union. Smith replied that she was
thinking about it, and Conine said, "You'd better not."
Smith then questioned why and Conine replied, "You'd
lose all the benefits that you have." Upon inquiring to what
benefits she was referring, Conine stated, "Things like paid
vacation and retirement plan." Although Smith is a rather
new employee and is not presently receiving any of these
benefits , she will become eligible later on for existing
company benefits such as paid vacations, life and health
insurance , and retirement coverage. It is further noted that
by this time Smith had already signed her authorization
card.?
It is well-established Board and court law that in
determining whether an employer's conduct amounts to
interference , restraint, or coercion within the meaning of
Section 8(a)(1), the test is not the employer's intent or
motive, but whether the conduct is reasonably calculated
or tends to interfere with the free exercise of the rights
guaranteed by the Act, and, of course, the fact that the
employees were neither fearful nor apprehensive of their
rights is immaterial.
In crediting the witnesses for the General Counsel, it is
noted that both Howard and Smith are still employed by
Respondent and they stand to gain nothing by testifying
adversely to Respondent, and, as also pointed out, this is
especially true since the Union lost the election. From the
demeanor of the witnesses and for other reasons noted
herein, it is obvious that Supervisors Geer and Conine did
not want to admit to anything that would put them in bad
stead with the Company, and certain aspects in their
testimony is readily indicative thereof.
There is an argument by the Respondent that the
Union's accord to proceed with the election, in spite of the
pending charge in the instant case, is indicative of its belief
that the rights of the employees had not been violated.
However, regardless of whatever belief the Union may or
may not have had in permitting the election, the illegal
5 Supervisor Geer denied the above but then admitted one union
conversation with Howard in October, but stated that on this occasion she
said absolutely "nothing" while Howard "volunteered" that she (Howard)
was not interested in union activities and had been advised not to get
involved
fi While Manager Wood specifically denied this statement attributed to
him by Howard, he admitted that Janice Wilson was a new employee and
worked in the same area where Howard was assigned
7 Supervisor Conine denied ever talking to Smith about the Union, but
subsequently testified that she did talk to Smith almost everyday about
business or work.
conduct and statements here in issue have not been
retracted or remedied in any way. Moreover, the state-
ments attributed to the Company were made on more than
one occasion, and, therefore, cannot be deemed an isolated
incident and especially so since major supervisors were
involved, including the store manager. The foregoing
testimony which has been credibly attributed to the
Respondent includes instances of unlawful interrogations
concerning employee memberships or activities in the
Union, threatening loss of benefits, and soliciting the help
of an employee in asking another not to join the Union. All
of which, under these conditions, reasonable probability,
purposes, setting, and sequence of events here, have the
effect of interfering and restraining the employees and
constitute violations of Section 8(a)(1) of the Act.8
IV. THE REMEDY
Since I have found the Respondent has interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, I shall recommend that
they shall cease and desist from such activity and take
certain affirmative action designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent 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 their
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDERS
Respondent, Britt's Department Store, Division of
McCrory Corp., its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees about their union member-
ships and activities.
(b) Threatening employees with loss of benefits.
8 Since there is not even an indirect threat or promise in the statement
made by Supervisor Geer to Susan Howard that she would be " letting Mr
Wood down" in signing a card, I hereby dismiss this allegation in the
complaint
9 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
BRITT'S DEPT. STORE
(c) Soliciting the assistance of employees in asking
coemployees not to join the Union.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Post at its places of business copies of the attached
notice marked "Appendix." 10 Copies of said notice, after
being duly signed by Respondent's representative, shall be
posted by 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.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraph 7(d) of the
complaint be dismissed.
10 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 "
615
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL, LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees about their
union membership or activities.
WE WILL NOT threaten employees with loss of
benefits.
WE WILL NOT solicit the assistance of employees in
asking other employees not to join the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the National
Labor Relations Act.
Dated By
BRLTT's DEPARTMENT
STORE, DIVISION OF
MCCRORY CORP.
(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 concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Dallas-Brazos Buiilding,
1125 Brazos Street , Houston , Texas 77002, Telephone 713-
226-4296.