Modern Merchandising, Inc.

National Labor Relations Board - Board DecisionsJul 27, 1987

284 N.L.R.B. 1377 (N.L.R.B. 1987)

MODERN MERCHANDISING 1377 Jafco, a Division of Modern Merchandising, Inc. and Retail Store Employees Union Local 1001, affiliated with the United Food and Commercial Workers International Union, AFL-CIO. Cases 19-CA-13387 and 19-CA-13400 27 July 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT Upon a charge filed 25 March and 30 March 1981, the General Counsel of the National Labor Relations Board issued a complaint on 11 May 1981. The complaint alleges that the Respondent violated Section 8(a)(5), (2), and (1) by suggesting to employees that they form a committee to deal with the Respondent concerning wages and other terms and conditions of employment and by by- passing the Union and dealing directly with unit employees in suggesting that employees form this committee. On 3 February 1982 the General Counsel, the Union, and the Respondent filed a Motion to Submit Case to the Board and Stipulation of Facts. The parties waived a hearing and the issuance of a decision by an administrative law judge and agreed to submit the case directly to the Board for find- ings of fact, conclusions of law, and a decision. The parties also agreed that their formal stipulation of facts and exhibits attached thereto would consti- tute the entire record before the Board. On 23 April 1982 the Board issued an Order granting the parties' motion, approving the stipula- tion, and transferring the proceeding to the Board. Thereafter, the General Counsel and the Respond- ent filed briefs. Additionally, the International As- sociation of Quality Circles has filed an amicus curiae brief and thereafter filed two motions to amend its brief. The Board has considered the brief and has granted the motions to amend. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the basis of the entire record, 1 the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a State of Washington corpo- ration with offices and places of business in the State of Oregon and Washington, where it is en- The International Association of Quality Circles requested oral argu- ment. The request is denied as the record, exceptions, and briefs ade- quately present the issues and the positions of the parties. gaged in the business of retail sales of general mer- chandise. The Respondent, during the 12 months preceding the stipulation, which is a representative period, had gross sales of service and goods in excess of $500,000. In addition, the Respondent, during the 12 months preceding the stipulation, purchased and caused to be transferred and deliv- ered to its facilities within the State of Washington goods and materials valued in excess of $50,000 di- rectly from sources outside the State of Washing- ton. The Respondent admits, and we find, that it is, and at all times material has been, an employer as defined in Section 2(2) of the Act, engaged in com- merce and operations affecting commerce as de- fined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts The Respondent operates retail outlets at 19 lo- cations in the States of Oregon and Washington. The Respondent and the Union have had a collec- tive-bargaining relationship since 1959, and since 1979 the Union has been the exclusive representa- tive of sales employees at three of the Respondent's stores, located at 520 Westlake Avenue North and 17500 South Center Parkway, Seattle, Washington, and at 888 116th N.E., Bellevue, Washington.2 There is no union representation at the Respond- ent's other 16 stores. On 6 March 1981 Bernard Gordon, the Respond- ent's vice president and general manager, had the following letter distributed to employees and posted at each of Respondent's 19 stores, including the 3 stores where the employees were represented by the Union: March 6, 1981 MY FELLOW EMPLOYEES: As we as a region grow larger with more stores, more employees and more opportunities 2 The bargaining unit is described as follows: Included: All general sales employees (including cashiers), jewelry, in store customer service, sound, camera and sporting goods employ- ees, baggers, belt employees, general office employees, mail order screener, mail clerk, customer service employees, (phone shopper), tag printer, micro film employees, accounting clerks, accounts pay- able, accounts receivable, billing, data control and purchasing em- ployees, bookkeepers, computer, key punch and key pies employees and tape and computer operators. Excluded: All other employees, guards and supervisors as defined in the Act. 284 NLRB No. 139 1378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for each of us, one area really becomes diffi- cult: the area of communications! It used to be that I could go to our few stores and generally know everyone by name. Now I have a prob- lem simply getting around to each store on a timely basis. We've lost something with this growth, something we need to put back into our busi- ness, that is my being able to listen to each of you and your ideas on how we can improve our business. You are the best one to evaluate how our job is done and we must ensure a clear avenue for you to get that information to a level of management so that it might benefit all of our stores. With this in mind, in the near future all fa- cility managers will be instructed to set up a committee of 5 non-management personnel in each store elected by the store employees who will represent all employees within the work place as a screening place for suggestions from all employees. This committee will be charged with the responsibility of soliciting, evaluating and communicating suggestions from all em- ployees and passing those they feel have merit on directly to me. I, in turn, will chair a com- mittee made up of top regional management who will evaluate all suggestions submitted. Those which might impact all Modern Mer- chandising showrooms will be submitted to corporate. This concept will be tested for a 6- month period to ascertain whether or not it helps in the area of communication. Personally, I feel it will, but it depends on each of you; I earnestly solicit your suggestions on, but not limited to, the following areas: 1. Working conditions. 2. Ideas for improvement in all areas ofâ€” a. Management b. Merchandising c. Facilities d. Productivity 3. Areas outside the store the company may help out with. 4. Other ideas. Your election will be the first week in April so begin thinking of who will represent you best in your store. I have also instructed the Operations depart- ment to work on improving our "Employee Newsletter" which I think we should use more to communicate ideas as well as some human interest. I'd like your ideas on what you'd like our newspaper to be. . . . The first item of business for our Suggestion Committee must be one of addressing the con- sternation the orange smocks have caused. What was felt to be a plus for our employ- ees, an item which would keep our clothes clean, an item which our name badges and pins would adhere to without tearing our clothing, and a color which although bright goes with both black and brown tones, and is clearly identifiable by our customers, apparent- ly has created some ill will among you, our employees. Now if you were in management, what would you do? There is a large expense in- volved and all of us have an interest in the profit the company makes. Constructively give your ideas to your Suggestion Committee for their first item of business. I appreciate each of you and the job you're doing. Together we can make Jafco a super place to work. Cordially yours Bernard Gordon Vice President General Manager The Union was never notified or contacted by the Respondent regarding the existence, content, pro- mulgation, distribution, issuance, or posting of the above letter. On 10 March 1981 while a union offi- cial was at the Respondent's Bellevue store on union business, the official discovered the above letter posted on the Respondent's bulletin board. The Union immediately telephoned the Respondent and requested to meet and/or discuss the existence, content, promulgation, distribution, issuance, post- ing, and effects of the above letter on unit employ- ees. However, the Respondent failed and refused to withdraw, modify, or revoke the letter. Further- more, the Respondent implemented the letter and continues to give effect to the letter despite the Union's timely demands that it be revoked or modified. B. Contentions of the Parties In his brief, counsel for the General Counsel contends that by its 6 March letter, the Respondent in creating the suggestion committee at each store has established an employer-dominated labor orga- nization in violation of Section 8(a)(2). The Gener- al Counsel also contends that in suggesting and es- tablishing the suggestion committee, the Respond- ent has acted to bypass the Union in violation of Section 8(a)(5) and, further, has independently vio- lated Section 8(a)(1). The Respondent contends that the suggestion committee is not a labor organi- MODERN MERCHANDISING 1379 zation. Alternatively, it contends that if the sugges- tion committee is a labor organization, it is not em- ployer dominated and it was not established for nor has it engaged in collective bargaining in deroga- tion of the Union's status-3 For the reasons set forth below, we shall dismiss the allegation that the Respondent violated Section 8(a)(2). However, as discussed below, we find merit to the General Counsel's contentions that the Respondent has violated Section 8(a)(5) and inde- pendently violated Section 8(a)(1). C. Analysis and Conclusions 1. The initial question before us in this case is whether the Respondent violated Section 8(a)(2) by suggesting to employees that they form a sugges- tion committee at each of its 19 stores. In examin- ing this matter, we note that the complaint does not expressly allege that the suggestion committees outlined in the 6 March letter are labor organiza- tions within the meaning of Section 2(5) of the Act or state the way in which they are allegedly em- ployer dominated. 4 We further note that the stipu- lation of facts shows that the Respondent by posted letter initiated the concept of the suggestion com- mittee, suggested the means by which employee representatives were to be selected, and designed the topics to be addressed by the committees. The stipulation, however, states only that the letter (therein described as Exh. 5) was implemented. The record is devoid of any evidence of circum- stances attending the implementation of the letter, including evidence of how the suggestion commit- 3 The amicus brief filed by the International Association of Quality Circles addresses the concept of "quality circles" generally and, with re- spect to the instant case, urges the Board not to find quality circles vio- lated the Act and, alternatively, that the suggestion committee described herein is not a "quality circle." 4 Pars. 8-10 of the complaint alleges the conduct of the Respondent to be unlawful as follows: 8. On or about March 6, 1981, Respondent acting through Bernard Gordon, its general manager, at its Seattle, Washington, and other facilities, suggested to employees that they form a shop committee to deal with Respondent concerning wages, hours and other terms and conditions of employment. 9. On or about March 6, 1981, Respondent through Bernard Gordon, its general manager at its Seattle, Washington facility, bypassed the union arid dealt directly with its employees in the unit described above in paragraph 5, by suggesting that unit employees form a shop committee. 10. By the acts described above in paragraphs 8 and 9 and by each of said Acts, Respondent did engage in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(aX1), (2) and (5) and Section 2(6) and (7) of the Act. tees were actually set up, which topics were dis- cussed, and the degree to which the committees in- teracted with management. In thus examining the stipulation of facts and its attachments, which con- stitute the full record before us, we find that the General Counsel has failed to present sufficient grounds on which to find that the Respondent has actually established a labor organization and thus has violated Section 8(a)(2). Accordingly, we shall dismiss this portion of the complaint.5 2. As noted above, the Union is the exclusive bargaining representative of certain of the Re- spondent's employees at three of its stores. It is well established that the Act requires an employer to meet and bargain exclusively with the Union. Further, an employer who chooses to deal directly with its unionized employees or with a representa- tive other than the designated bargaining represent- ative regarding terms and conditions of employ- ment risks violating Section 8(a)(5) of the Act.6 In its 6 March 1981 letter, the Respondent set forth a plan creating employee committees respon- sible for soliciting suggestions from employees on a variety of topics, including working conditions. The Respondent prepared and posted a letter and later implemented the letter without notice to or input from the Union. Further, the Respondent has refused to revoke or modify the letter despite the Union's request that it do so. It is clear from the facts that the Respondent's conduct, both in sug- gesting to employees that they set up employee committees to solicit suggestions regarding work- ing conditions and in bypassing the Union M for- mulating and implementing the letter, has had the effect of eroding the Union's position as exclusive representative. Accordingly, we find the Respond- ent has failed in its duty to bargain with the Union and has violated Section 8(aX5) and (1) of the Act. 3. Finally, we turn to the contention the the Re- spondent has violated Section 8(a)(1) in suggesting to employees that they form committees to solicit suggestions regarding working conditions. As noted above, the Respondent posted a letter dated 6 March 1981 setting forth a plan instructing man- agers at each store to set up a committee com- prised of nonmanagement personnel elected by all employees at each store to represent them. The committees would then be given the responsibility of soliciting suggestions from all employees for presentation to management for its evaluation. Sec- tion 7 of the Act, however, guarantees, inter alia, to employees the right of self-organization. In pro- 5 In light of this dismissal, we find it unnecessary to determine if the suggestion committee outlined in the Respondent's 6 March 1981 letter are quality circles. See, e.g., Medo Photo Supply Corp v. NLRB, 321 U.S. 618 (1944) 1380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posing to both union and nonunion employees that they form these committees, the Respondent has abrogated the right of employees to make their own decisions regarding organizing activities. Ac- cordingly, we find that the Respondent, in making this suggestion, has interfered with employee rights and has violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer 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. The following employees at the Respondent's two Seattle, Washington stores located at 520 Westlake Avenue North and 17500 South Center Parkway and the Bellevue, Washington store locat- ed at 888 116th N.E. constitute one unit and that unit is appropriate for the purpose of collective bargaining: Included: All general sales employees (includ- ing cashiers), jewelry, in store customer serv- ice, sound, camera and sporting goods employ- ees, baggers, belt employees, general office employees, mail order screener, mail clerk, customer service employees, (phone shopper), tag printer, micro film employees, accounting clerks, accounts payable, accounts receivable, billing, data control and purchasing employees, bookkeepers, computer, key punch and key plex employees and tape and computer opera- tors. Excluded: All other employees, guards and su- pervisors as defined in the Act. 4. By suggesting to employees that they form a committee charged with responsibility of soliciting suggestions from employees on working conditions, the Respondent has interfered with employees' Section 7 rights and has violated Section 8(a)(1). 5. By bypassing the Union and dealing directly with its employees in the bargaining unit in sug- gesting to employees that they form the committee described above, the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. 6. The above unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practice within the meaning of Sec- tion 8(a)(1) and (5) of the Act, we shall order it to cease and desist therefrom and to take certain af- firmative action in order to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Jafco, a Division of Modern Mer- chandising, Inc., Seattle and Bellevue, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suggesting to employees that they form com- mittees to solicit suggestions from employees con- cerning working conditions. (b) Unlawfully bypassing the Union as the exclu- sive representative of its unit employees and deal- ing directly with unit employees in suggesting that they form the employee committees described above. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind the 6 March 1981 letter in which the Respondent proposed the formation of employee committees described above. (b) On request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the bargaining unit found appro- priate with respect to wages, hours, and other terms and conditions of employment. The appropri- ate unit is described as follows: Included: All general sales employees (includ- ing cashiers), jewelry, in store customer serv- ice, sound, camera and sporting goods employ- ees, baggers, belt employees, general office employees, mail order screener, mail clerk, customer service employees, (phone shopper), tag printer, micro film employees, accounting clerks, accounts payable, accounts receivable, billing, data control and purchasing employees, bookkeepers, computer, key punch and key plex employees and tape and computer opera- tors at our locations at 520 Westlake Avenue North, and 17500 South Center Parkway, Se- attle, Washington, and 888-116th N.E., Belle- vue, Washington. Excluded: All other employees, guards and su- pervisors as defined in the Act. , (c) Post at all its facilities in the States of Wash- ington and Oregon copies of the attached notice marked "Appendix." 7 Copies of the notice, on 7 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- Continued MODERN MERCHANDISING 1381 forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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." 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 ordered 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL1 NOT suggest that our employees form a committee to solicit employee suggestions concern- ing working conditions. WE WILL NOT bypass the Union as our employ- ees' designated collective-bargaining agent and deal directly with them in suggesting that they form a committee to solicit employee suggestions concern- ing working conditions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the 6 March 1981 letter in which we suggested the formation of the employee committee described above. WE WILL, on request, bargain with the Union as the exclusive bargaining representative of you, our bargaining unit employees, with respect to wages, hours, and other terms and conditions or employ- ment. The appropriate unit is: Included: All general sales employees (includ- ing cashiers), jewelry, in store customer serv- ice, sound, camera and sporting goods employ- ees, baggers, belt employees, general office employees, mail order screener, mail clerk, customer service employees, (phone shopper), tag printer, micro film employees, accounting clerks, accounts payable, accounts receivable, billing, data control and purchasing employees, bookkeepers, computer, key punch and key plex employees and tape and computer opera- tors at our locations at 520 Westlake Avenue North, and 17500 South Center Parkway, Se- attle, Washington, and 888-116th N.E., Belle- vue, Washington. Excluded: All other employees, guards and su- pervisors as defmed in the Act. JAFCO, A DIVISION OF MODERN MER- CHANDISING, INC.