Penney, J. C., Company, Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1982

260 N.L.R.B. 981 (N.L.R.B. 1982)

J C PENNEY COMPANY, INC
J.C. Penney Company, Inc. and United Paper and
Allied Workers Local 1049, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Petitioner.
Case 25-RC-7521
March 16, 1982
DECISION AND CERTIFICATION OF
REPRESENTATIVE I
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered objections to an elec-
tion held on October 24, 1980,2 and the Hearing
Officer's report recommending disposition of same.
The Board has reviewed the record in light of Peti-
tioner's exceptions and the Employer's answering
brief and hereby adopts the Hearing Officer's find-
ings only to the extent consistent with its decision
herein.
The only issue before us is whether the election
should be set aside on the ground that Supervisor
John Ferro's active support of the Union during
the course of the Union's organizing campaign
tended to coerce employees into supporting the
Union out of fear of supervisory retaliation.
The Hearing Officer found that there was a rea-
sonable possibility that Ferro's actions could have
coerced employees to vote for the Union out of
fear of retaliation by Ferro. He therefore recom-
mended setting aside the election. Petitioner con-
tends, inter alia, that Ferro did not consistently
support the Union throughout the campaign and
that the Employer posted letters to employees
which removed any reasonable possibility of their
fearing retribution.3 We find merit in these conten-
tions.
The Hearing Officer found, and we agree, that
Ferro's role in Petitioner's organizational campaign
was limited to discussions with employees. Prior to
the filing of the petition, Ferro told employees
Hart and Shedrow that they needed union repre-
sentation because management was planning to
make some job changes which would adversely
The instant decision supplements the Order issued h' the Board in
this proceeding on April S. 1981 (ntol reported in volumes of ttoard l)eci-
sions)
2 The electllon was conducted pursuant io a Stipulation fir Certifica-
tion Upon Consent Fletlion hl I e a of hal lots "as, fixe otes fIr. anld
three againstl. Petitioner there s"ere nol challenged hallot, AXl dates
herein are 1980 except as otherr :se stated
a Petilioner also contend , Ihat Ferro S;a ,s a minol r silperrstslor e find
it unnecessary to pass on this c tnlellInon iii si eus of i r finding i,,utlr t lu,
thai Ferro' actlilt ini ants case did not uarrantl , lillng aside the elco
tion
affect them. After the Employer received the
Union's letter requesting recognition, Ferro contin-
ued to show an interest in the Union's organiza-
tional campaign by explaining to employee Hart
the nm:ure of the job changes that were decided
upon by Store Manager McCal and Personnei
Manager Fulton.4 Two months before the election,
Ferro told employee Bracker that it was good that
the Union had requested recognition. During the
week before the election, Ferro told Bracker that
the Union was not going to do "Jack's shift" [sic]
but winked as he made the statement which sug-
gested to Bracker that Ferro did not mean what he
said. Sometime between July and the date of the
election Ferro advised employee Shedrow that
" we can't get [the Union] in here" and that he and
Hart had a plan which might obviate the need for
a union.
The Employer was not aware of Ferro's activi-
ties until after the election. However, the Employ-
er posted two letters to employees on or about
September 16 and October 10, which discussed the
job security of unit employees. The first letter,
signed by McCal, set forth existing company policy
and store practice regarding job security. McCal
stated, inter alia, that although business was not
good, the staffing at the Employer's auto center
was completely within company guidelines and
that it was agreed that there would be no cutbacks
in staff.
The second letter, signed by the Employer's
counsel, dealt with the specific issue of disciplining
or discharging employees in retaliation for union
activity. The letter stated that such action violated
Federal law and employees so affected could
pursue their rights through the National Labor Re-
lations Board, at the Government's expense. The
local Board office address and phone number were
given. Further, the letter stated that retaliation
against employees would violate company policy
and could subject the management person responsi-
ble to discipline or discharge. The name, address,
and telephone number of a company official was
given as the person to receive any complaint.
' lie Hearing Officer found that Ferro told Hart on about six occa-
siols befolre the elclllon that the changes included la)ing oiff onte empl(oy -
cc aind offeriilg him . Is er pas)lig joh. dilcha.rgilg a econd, and Irtans-
ferrilg a third emplosee frlom parts manager to slock ho I he Hearilng
Officer foundl that these conlm ntls did Ilol conrstitlute Ihrea.ts of rcprlsal
resultlhg froim the emplos, es ' IIoil acftl itles. hCLlaltiC the alleged
plaineid chlll iges forilled tIh hasis for etrro's stuggetitng t"o ettpltel!Ce,
tha lie> ek llmt/I relpresetlllatiotIn tI also tountd that Ferrio' prounlionl
aite ttllell l did it t SrTirtl tII setlIng the electlion aside hcItIs iest' gC ere
nowil Tin ii t ico ser it h hit [ illposti r' s cprcsed i ,s shtg, taout ulltonisnl iHid
such stlttcellIts Xtlt.mttaedl n to hllrlts ,I rcprsals ,,or promlist L I hetlclit
No xccpttO.is i sha,, b.ettl iakc/i ti these fitlillgs 'hlth re adopt ed Pro
fortin
260 NLRB No. 132
98l
D)tC ISI()NS () NA TIONAL AB()R R EL.AI ONS BO()ARD
It is well settled that a supervisor's participation
in a union organizing campaign can be grounds for
setting aside an election when there is a reasonable
basis for concluding that such conduct could
coerce employees into supporting the union out of
fear of supervisory retaliation. In Flint Motor Inn
Company d/b/a Sheraton Motor Inn, 194 NLRB
733 (1971), the Board set aside an election where a
major supervisor who had the power to affect the
employment status of unit employees displayed
active and outspoken support for the Union
throughout the organizational campaign including
the day of the election. The supervisor's prounion
activities included soliciting authorization cards,
meeting with union officials during the campaign
and on the day of the election, and functioning as
the union's contact with unit employees.
At the outset, we observe that the supervisory
activity here does not rise to the level of that in
Sheraton Motor Inn. Supervisor Ferro did not solic-
it union authorization cards, act as a union contact,
or meet with union officials at any time. Further,
Ferro, as the Hearing Officer found, made both
prounion and antiunion remarks during the cam-
paign. For example, sometime between July and
the date of the election Ferro told a unit employee
that a union might not be necessary because he had
a plan. In the week prior to the election he told an-
other employee that the Union would not do any-
thing.
Contrary to the Hearing Officer, we find that
Ferro's mild and inconsistent support for the Union
does not give rise to the reasonable possibility that
his support coerced employees to vote for the
Union out of fear of retaliation. This finding is fur-
ther supported by the Employer's posting of letters
assuring employees repeatedly that they would not
be subject to reprisals regardless of how they voted
in the election, and that they were free to complain
about any unfair treatment to management, and to
file charges with the National Labor Relations
Board. We thus conclude, contrary to the Hearing
Officer, ' that in light of these postings Ferro's mild
and inconsistent support of the Union did not tend
to coerce employees to vote for the Union out of
fear of retaliation by him.
In view of the foregoing, we shall overrule Ob-
jection 2 and issue the following:
CERTIFICATION OF
REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for United Paper and Allied
Workers Local 1049, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and that, pursuant to Section
9(a) of the Act, the foregoing labor organization is
the exclusive representative of all the employees in
the following appropriate unit for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment:
All auto-center employees employed by the
Employer at its 3701 South Main Street, Elk-
hart, Indiana establishment, including all auto-
motive selling specialists; BUT EXCLUDING
all office clerical employees, all professional
employees, all guards and supervisors as de-
fined in the Act, and all other employees.
As McCal signed the September 16 letter, his nanme "as typed for
signature on the October 10 letter, and that letter was also typed for sig-
nature alid signed by Vernon, a company official. .e find misplaced the
learing Officer's minimizing of the seconld letter hby referring to it as
signed only by the Employer's counsel and not hb McCal Indeed.
Vernon. as regional counsel, obhsiously exercised greater authorito than
McCal. i lobcal store manager, with respect to lthe ilatler discussed il that
letter
982