Retail Clerks Union, Local 770

National Labor Relations Board - Board Decisions

Jan 14, 1974

208 N.L.R.B. 356 (N.L.R.B. 1974)

356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Union, Local 770 Retail Clerks Interna-
tional Association , AFL-CIO and Carl A. Palmer.
Case 31-CA-2728
January 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 14, 1973, Administrative Law Judge
James R. Webster issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs. Respondent and the General Counsel also
filed answering briefs.
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, findings,
and conclusions of the Administrative Law Judge,
only to the extent consistent herewith.
The Administrative Law Judge found , inter alia,
that Respondent Union violated Section 8(a)(3) and
(1) of the Act by discharging six employees on
November 12, 1971, because of their support for the
candidate who opposed the incumbent president of
Respondent Union in an intraunion election.' The
Administrative Law Judge also found that Respon-
dent engaged in certain conduct which interfered
with the exercise of employees' rights and thereby
constituted a violation of Section 8(a)(1) of our Act.
We disagree with both of these conclusions.
The record evidence shows that Respondent is a
local union with approximately 25,000 members. It
has an office staff composed of approximately 100
employees. These employees are under the direction
and control of the union president who serves as the
chief executive officer in charge of the administrative
offices. None of Respondent's employees are repre-
sented by an outside labor organization and all are
required as a condition of employment to become
members of Respondent Union after 30 days.
With respect to the six employees in question, the
evidence shows that they were all discharged on
November 12, 1971, the day after the intraunion
election. All had been active during the election
campaign and had openly supported the candidacy
of President DeSilva's opponent. They attended
I The Administrative Law Judge dismissed the complaint with respect to
the allegation that employee Carl A Palmer was discharged in violation of
the Act on September 10, 1971, finding instead that Palmer was discharged
because of dereliction of duties at a time when his probationary period was
meetings, stuffed envelopes, and passed out literature
for the opposition candidate. One of the employees
performed functions for the opposition candidate
commonly associated with those of a campaign
manager. Several of the employees allegedly made
remarks favorable to the opposition candidate to
union members at the union offices.
The decision to discharge the six employees was
made solely by the president (and chief executive
officer) of Respondent. At the time of the discharge,
President DeSilva stated that he took the action in
the best interest of the membership who expect
unqualified, loyal, and dedicated service. Principally
on the basis of this evidence as to motivation, the
Administrative Law Judge found that Respondent
violated Section 8(a)(3) of the Act by discharging
these employees because of their internal union
electioneering activities.
Such a finding fails to give proper effect to other
elements which are necessary as a predicate for an
8(a)(3) violation. Thus, in order to find a violation of
Section 8(a)(3) of the Act, there has to be evidence to
show that the discharges were motivated by union
animus and that the conduct would have the
foreseeable effect of either encouraging or discourag-
ing union membership. Here, we must start with the
fact that each of the six employees was already a
member of Respondent Union and that they, like
their fellow employees, were required to secure and
retain membership in the Union as a condition of
employment. There is no evidence that any of these
employees attempted to resign his membership. On
the contrary, their interest clearly was in effecting
managerial change within the organization itself, an
objective which required that they maintain their
status as members of the Union. Likewise, there is no
evidence that any of these employees was engaged in
concerted or union activities in seeking a separate
and independent representative for the purpose of
collective bargaining with Respondent. Accordingly,
in view of the lack of any evidence of encouragement
or discouragement of union membership by those
who were discharged, we shall dismiss the complaint
insofar as it alleges a violation of Section 8(a)(3) of
the Act.
Furthermore, we are not persuaded that Respon-
dent violated the Act in any other manner by the
discharge of the six employees. The Board has found
violations of Section 8(b)(1)(A) in circumstances
where a union has taken various discriminatory
coming to an end We agree with the Administrative Law Judge's
disposition of this allegation . but even if we disagreed with him on this issue,
a dismissal of the allegation would nevertheless be required under our
theory of the case, which is set forth in the body of our Decision
208 NLRB No. 54
RETAIL CLERKS UNION, LOCAL 770
actions against a member who opposed the reelection
of an incumbent union official.2 However, in each of
those cases, the discriminatory action was directed at
the union member in his capacity as a union
member. There is no allegation in the instant case,
nor does the record establish, that Respondent took
any action against the six employees in their capacity
as union members, i.e., Respondent did not fine,
discipline, or revoke their membership, nor did it
deny them rights or privileges available to other
union members during the intraunion election
campaign. Instead, Respondent's actions were direct-
ed against the six only in their capacity as its
employees.
In two recent Decisions,3 the Board cited the
Labor-Management Reporting and Disclosure Act
as the source for the protection of a union member's
right to participate fully and freely in the internal
affairs of his own union. One of the purposes for
which the Labor-Management Reporting and Dis-
closure Act was enacted was the regulation and
protection of the rights of individuals in a union-
member relationship. Unlike the cases previously
cited, it is the employer-employee relationship which
is the essence of the instant case. Consequently, it
would be inappropriate to look to the Labor-Man-
agement Reporting and Disclosure Act to find the
same underlying public policy to support a violation
of our Act where an employer-employee relationship
is involved. Therefore, we are persuaded that the
proper exercise of our responsibilities requires that
we consider and resolve the legality of these
discharges within the framework of our own Act.
Turning to the question of whether the discharge of
the six employees by Respondent violated Section
8(a)(1) of our Act, we would reiterate the fact that
these employees were not engaged in organizing
activities for the purpose of seeking a separate and
independent representative. Nor were they seeking to
redress grievances within the framework of the
existing employer-employee relationship. Rather, it
would seem that the thrust and purpose of their
activities was to effect a change in the top manage-
ment of their Employer Union, the election activities
merely serving as the means by which this goal could
be accomplished. However, an employee of a union,
like any other employee, has no protected right to
engage in activities designed solely for the purpose of
influencing or producing changes in the management
hierachy. Nor, in pursuing such an object, are the
employees in any more favorable posture when these
efforts are directed towards a group outside the
internal organization itself, such as the union
membership or the stockholders of a corporation. An
attempt by the dischargees to influence the selection
of their chief executive officer is not brought within
357
the protection of the Act because the employer
happens to be a union.
Finally, the Administrative Law Judge found
certain violations of Section 8(a)(1) of the Act
relating to Respondent 's interrogating and polling
employees , soliciting employees to take certain
actions, and creating the impression of surveillance
of employees . It appears that in each instance
Respondent 's conduct arose within the context of the
intraunion election campaign . Consequently , for the
reasons set out above , we find that Respondent's
conduct does not violate Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent has not engaged in unfair
labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, as alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
2 Carpenters Local Union No 22, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (William Graziano, d/b/a Graziano Construc-
tion Company), 195 NLRB I (fined a member), and Hoisting and Portable
Engineers, Local No 4 and its Branches of the International Union of
Operating Engineers (The Carlson Corporation), 189 NLRB 366 (denied a
member of the use of the union-operated nonexclusive hiring hall)
3 Carpenters Local Union No 22, (William Graziano d/b/a Graziano
Construction Company), supra, and Jacobs Transfer, Inc, 201 NLRB 210
The Jacobs case, in which the Board found a violation of Sec 8 (a)(1) of the
Act, is distinguished from the instant case by the fact that the dischargee's
intraunion activities were inextricably tied to his effort to secure changes in
employment conditions through changes in the collective -bargaining
agreement
DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER , Administrative Law Judge : This case
was heard in Los Angeles, California on September 26, 27,
and 28, 1972, upon a complaint of the General Counsel
and answer of Retail Clerks Union, Local 770, Retail
Clerks International Association , AFL-CIO, herein called
Respondent or Union . The complaint was issued on July
28, 1972, on charges filed November 19, 1971, and July 27,
1972. The complaint alleges that Respondent discharged
Carl Palmer and six other employees of the Union because
they supported and campaigned for the unsuccessful
candidate for the presidency of the Union and that
Respondent interfered with , restrained , and coerced
employees in their right to support such candidate, and
that Respondent has thereby violated Section 8(a)(1) and
(3) of the National Labor Relations Act, herein called the
Act.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including my observation of the
demeanor of witnesses, and after due consideration of the
briefs filed by the General Counsel and Respondent, I
make the following. 1
FINDINGS OF FACT
1. JURISDICTION
Respondent is a local union affiliated with the Retail
Clerks International Association, AFL-CIO, and main-
tains its principal place of business in Los Angeles,
California, where it is engaged in organizing unrepresented
employees and in representing its members and other
employees in collective bargaining with various employers
concerning wages, hours, and other terms and conditions
of employment. Respondent receives an annual gross
income in excess of $500,000, of which in excess of $50,000
is remitted annually to the International Union in
Washington, D.C. Respondent maintains collective-bar-
gaining agreements with Food Employers Council, Inc.,
and its employer-members, including Safeway Stores, Inc.,
Food Giant Markets, Inc., Ralphs Grocery Co., and Voris
Grocery Co., which employers are engaged in retail sales
within the State of California.
Each has an annual gross income in excess of $500,000
and purchases products valued in excess of $50,000
annually from suppliers located outside the State of
California or from suppliers from within the State of
California who obtain such products from outside the State
of California.
Respondent is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act. Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
Ii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefactory Statement and Issues
Respondent is an organization of approximately 25,000
members. On November 11, 1971, there was an election of
officers conducted among the members of Respondent.
Opposing incumbent Joseph T. DeSilva for the office of
president was Samuel Matelson, who at that time was
secretary-treasurer of Respondent. Matelson announced
his candidacy on September 3, 1971. The election was won
by DeSilva.
Respondent has an office staff of approximately 100
employees. They are all required to become members of
Respondent after 30 days of employment; thus they
participated in the election along with other members of
Respondent. Six of these employees were terminated on.
November 12, 1971, the day after the election, and one
employee was terminated during the campaign, on Septem-
ber 10, 1971. The issues are:
(1) Whether six employees were terminated on Novem-
ber 12, 1971, because they supported and campaigned on
' General Counsel's Motion to Correct Transcript dated November 7,
1972, is granted.
2 This finding is based on evaluation of testimony on this issue , which I
find to be more determinative of the issue than the general statement of
Respondent's counsel in letter to Board agent dated December 27, 1971, in
behalf of Matelson for president or because of misconduct
including campaigning during working hours.
(2) Whether Respondent terminated Organizer Carl A.
Palmer on September 10, 1971, because of his support of
Matelson or for poor work performance.
(3) Whether during the period of the campaign from
September 3, 1971, to November 11, 1971, Respondent
violated Section 8(a)(1) of the Act by interrogating
employees concerning the election; by directing employees
to support DeSilva for president; by requesting employees
to engage in surveillance of supporters of Matelson;
and/or by statements giving the impression of surveillance.
DeSilva besides being president of Respondent was chief
executive officer in charge of Respondent's administrative
offices. Vice President Lois McKinstry was next in charge
as the executive administrator. The office force was
divided into six principal departments: Research Depart-
ment under Hugo Morris; the Membership Services and
Employment Department under Marilyn Grace; the
Records Department under Evelyn Pugh; Health and
Education and Medical Benefits Department under Shar-
on Morgan; Maintenance Department under Laurence
Dunn; and the IBM operations under Dan DeSilva, son of
President Joseph DeSilva. Samuel Matelson was in charge
of the organizers employed by Respondent. Each of the
above-named supervisors were supervisors within the
meaning of the Act in that they effectively made
recommendations to the executive staff in respect to hinng
or discharging of employees and had authority to discipline
employees with warning slips. Under Department Heads
Grace, Morgan, and Pugh were assistant supervisors, also
called department heads but their functions were to
instruct other employees in their day-to-day operations
and to oversee their work; they did not have the authority
effectively to recommend hinng or firing or to issue
warning slips. These were Barbara McKenney under
Grace, Nina Jovanovic under Morgan, and Bernadette
Frank and Melba Barns under Pugh. Employee Sherry
Nelson testified that Jovanovic's contact with her was "as a
fellow employee." McKenney testified that if an employee
required discipline, she reported it to Department Head
Grace who would take care of it. I find that McKenney,
Jovanovic, Frank, and Barns are not supervisors within the
meaning of the Act.2
B. Discharge of Carl Palmer on September 10,
1971
In the summer of 1971, Respondent started an organiza-
tional drive and employed several new organizers. Carl A.
Palmer was employed by Respondent on June 28, 1971, as
an organizer. He was interviewed by Matelson, who was in
charge of organizers, and on recommendation of Matelson
he was then interviewed by Vice President McKinstry and
President DeSilva. Palmer and several other organizers
were assigned by Matelson to organize the employees of
Ole's Hardware Company, which has two retail stores, one
which he stated that , "Each of the various departments has one or more
Department Heads who make recommendations to the Executive Staff, i.e,
Lois McKinstry or Joseph T DeSilva, in respect to hiring or discharging of
employees "
RETAIL CLERKS UNION, LOCAL 770
in Pasadena and one in Rosemead, California. Palmer,
along with organizers Vic Lee and Rod Diamond, sought
to organize the employees at the Pasadena store.
The organizers would approach employees about union
benefits and membership as they came out of the store for
lunch and after work. Rather frequently, Palmer would
leave the store area, stating to Lee or Diamond that he was
going to the bank or had something to do in connection
with his car or was going to the office or was helping Sam
Matelson. During the course of the attempt to organize the
Pasadena store, Palmer obtained no authorization cards.
Both Lee and Diamond obtained cards. It is the policy of
Respondent that an organizer initial cards he obtains.
Several meetings with employees of Ole's Hardware Stores
were scheduled. For one of the meetings Matelson asked
Palmer to pass out notices of the meeting to Pasadena store
employees. The meeting was held but no employees from
the Pasadena store appeared. As later discovered by
Organizer Lee, the employees at this store had not received
any notice of the meeting; Palmer had failed to pass them
out.3
Palmer did not engage in any campaign activities on
behalf of Matelson prior to his discharge. Palmer testified
that he had a conversation with fellow organizers Lee and
Diamond regarding the campaign for officers of the
Union. He told them in substance that he was happy to
hear that there would be an election and that some of the
so-called democratic principles could be checked up on
and there would be a chance for alternatives. Palmer did
not recall when the conversation occurred, nor where, nor
if he had more than one conversation with the two
organizers on the matter. He also testified that he "made
clear my support of Sam [Matelson ]," but did not testify
how he made it clear.
Once a week Respondent holds meetings of organizers at
which organizers give reports as to contacts and progress
made. These meetings are conducted by Lois McKinstry
and Sam Matelson. At one of these meetings, McKinstry
asked Palmer why he had not turned in any authorization
cards. His reply was that "we work as a team."
Organizer Lee reported to McKinstry that Palmer had
missed meetings with the organizers as prearranged and
that Palmer had failed to pass out notices of a union
meeting to the employees at the Pasadena store, and that
he generally spent a good bit of time away from the store.
On Friday, September 10, 1971, Respondent held a
meeting of its executive board. As DeStlva was not present,
McKinstry presided over the meeting. When she came into
the meeting room she handed Palmer an envelope
containing a check and stated "this is your termination.
You may leave now." Palmer did not move and as
McKinstry started walking back to the head of the table
3 Matelson testified that although he assigned Carl Palmer to pass out
the notices of this meeting , nevertheless he and Business Agent Bob Brooks
passed out the literature Matelson testified that he was told by an employee
who works at Ole's Rosemead store that the reason no one attended the
meeting-the second meeting for Ole's employees-was because the
employer had found out about the first meeting and who attended and the
employees were frightened The testimony of Matelson is very vague and
inconclusive as to whether or not Palmer passed out any notices of the
meeting to employees at the Pasadena store The one employee that
359
she turned to Palmer, raised her voice, and stated, "I said,
you may leave now." Palmer then left.
The question is whether or not Palmer was terminated
because of support or suspected support of Matelson or
because of his poor work performance. At the time of his
discharge, Palmer had not engaged in any campaign
activities in support of Matelson but had made a vague
comment about the campaign to two fellow organizers.
There is no question but that his work record was very
poor. He did not turn in a single authorization card, and he
frequently was absent from his place of duty during
working hours. McKinstry may have suspected Palmer of
engaging in campaign activities during the working hours
that he was away from the Pasadena store. About 3 or 4
days after Palmer was discharged, McKinstry called office
employee Grace Panzera into her office and told her that
she knew she had been dating Palmer. McKinstry told
Panzera that Palmer was discharged because he was
inefficient and did not hand out any authorization cards
and that he had been campaigning for Matelson during
working hours. DeSilva made a similar statement at a
meeting of Respondent's executive board 2 weeks after
Palmer was discharged. On inquiry by a member of the
board as to why Palmer was discharged, he stated that
Palmer was fired because he was incompetent and had
campaigned on union time, and not because he was a
supporter of Matelson. He further offers his opinion as to
why McKinstry terminated Palmer at a board meeting and
not privately, that "she was probably using self-control
because she was so mad at Carl's disloyalty that she
probably would have bodily thrown him out of the
building instead of terminate him." If Palmer had in fact
left his place of duty to engage in campaigning, this would
have violated a directive of Respondent and would have
been misconduct subject to disciplinary action.
Palmer was a probationary employee as were all
organizers during their first 90 days of employment. He
was discharged summarily without a warning notice-ex-
cept for McKinstry's interrogation of him for no authoriza-
tion cards-and without any consultation between McKin-
stry and Matelson. McKinstry testified that warning
notices are not customarily given to probationary employ-
ees.
The question is-to what extent if any did McKinstry's
suspicion that Palmer was campaigning for Matelson -not
just campaigning on worktime-play in the decision to
discharge him. That is, would Palmer have been discharged
for the faults of inefficiency and inattentiveness to duty
manifested in his probationary period, and for suspected
violation of the rule against campaigning on duty hours,
irrespective of his support for Matelson. In view of the
degree of Palmer's dereliction of duties and the fact that
the probationary period was coming to an end, I find that
Matelson talked to about the second meeting was employed at the
Rosemead store and not at the Pasadena store Organizer Lee talked to
eight employees of the Pasadena store as to the reason they did not attend
the meeting and was told by each that they had not received notice of the
meeting Also, in view of the evidence to the contrary and the lack of any
details from Palmer and Matelson regarding distribution of literature
announcing the second meeting, I do not credit Palmer's testimony that
"yes," he passed out notices at the Ole's store
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was discharged for these reasons, irrespective of the fact
that he was or might have been pro-Matelson.
C. Respondent's Letters to Employees
On September 9, 1971, DeSilva sent letters to each of
Respondent's employers "asking for a brief written
statement expressing your approval of the policies of Local
770 under my stewardship which I will be proud to print in
support of my policies." Enclosed with each letter was a
sheet that the employee could use in complying with this
request, as follows:
Mr. Joseph T. DeSilva
Retail Clerks Union, Local 770
1515 North Vermont
Los Angeles, California 90027
Dear Mr. DeSilva:
I endorse your candidacy for the Presidency of Local
770 in the November 1971 Local 770 elections. You
have my permission to publish my endorsement as well
as the comments which I have made below.
Date
Signature
[Space was provided below the signature for com-
ments.]
Following receipt of the letters, several employees had
conversations with supervisors about them. Janet Coles
asked her supervisor, Evelyn Pugh, about the letter and
was told that they had to turn the letter in. Coles then
signed the letter, but made no comments, folded it and
turned it in. Employee Omega Nero was told by her
supervisor, Marilyn Grace, to put her comments on the
letter and to turn it in to her as soon as possible. Nero put
the following comment on her copy of the letter: "I wish to
exercise my democratic right at this time by advising you
that I will not oppose, nor endorse either candidate by
reasons which are personal, and known only to myself."
The next day Joel Polk, Respondent's second vice
president, came to Nero and told her that DeSilva was very
upset because of the comments she made on her copy of
the letter. He asked Nero to reconsider and to join DeSilva
in the campaign. DeSilva Joined the two and told Nero that
he did know that she was mad at him and he asked her to
campaign for him. She advised him that she did not have
time.
Employees Marjorie Caldwell, Sherry Nelson, and Sally
McGlassen testified to conversations with Department
Heads McKenney and Jovanovic to the effect that they
were told to sign the letters and turn them in; but 1 have
found that McKenney and Jovanovic are not supervisors
within the meaning of the Act.
On September 13, 1971, Respondent distributed the
following letter to all employees:
TO: ALL LOCAL 770 STAFF AND TRUST FUND PERSONNEL
AT 1515 NORTH VERMONT
FROM: LOIS
RE: ELECTION
Many of you have asked to meet with Mr. DeSilva or
me with regard to assisting Mr. DeSilva in his election
campaign.
We have not found the time to comply with your
request to meet on an individual basis since the work of
the Union must continue without interruption.
We are, however, planning to schedule group meetings
with any of you who desire to assist us at which time we
will answer any questions which you may wish to ask
regarding this unfortunate situation.
We are indicating below, the various times when Mr
DeSilva, Hugo, or I can meet with you at other than
business hours. Please indicate if you desire to attend a
meeting in the Board Room , at 8:00 A . M., or during
your lunch hour, or at 5:30 P.M., when the office
closes.
For your convenience, we will serve coffee and rolls in
the morning or sandwiches at lunch, coffee after 5:30
P.M.
Please return this bulletin by noon Tuesday, September
14, 1971, indicating your preference.
Your offers of assistance are appreciated.
8 am
/s/ Lois
Lois McKinstry
Noon 1 pm 5:30 m
Wed. 9/15 --- ---- ---- -------
Thurs. 9/16
----- ------ -------
Fri. 9/17
----
Signature
The meetings that were held pursuant to this letter were
conducted by McKinstry, DeSilva, and/or Morris. One of
the luncheon meetings lasted for 20 minutes beyond the
lunch period. Employees who attended this meeting were
not docked or penalized in any way for their lateness in
returning to work.
Respondent's letter of September 9, asking employees to
take overt action in support of DeSilva, constituted illegal
polling and interrogation of employees as to their position
and views in the impending election. The letter was
implemented by statements of Department Heads Evelyn
Pugh and Marilyn Grace, Second Vice President Polk, and
President DeSilva.
The same is true of Respondent's letter of September 13,
1971, which interrogated and polled employees to identify
those who would assist DeSllva in his election campaign.
The letters went further than polling and interrogation,
which are calculated to elicit verbal responses, and also
solicited specific actions to be taken by employees
demonstrating their support for DeSilva.
D. Alleged Solicitation of Surveillance
In early September 1971, DeSilva issued a directive that
RETAIL CLERKS UNION, LOCAL 770
there was to be no campaigning during working hours.
This directive was made known to all employees.
At some date in September 1971, DeSilva came to
employee Shirley Hocker in the employment department
and asked her if she was friendly with Marjorie Caldwell,
who also worked in that department. Hocker answered that
she was. The two worked side by side at the employment
counter serving the members as they came in seeking
employment. Caldwell was a very active supporter of
Matelson. DeSilva then told Hocker that he was concerned
that there might be campaigning during office hours and
he asked her to notify him if there was any kind of
campaigning for Matelson or discussion about the cam-
paign when members came into the department . He also
told Hocker that he would appreciate it if she would relate
to him any conversation that she might pick up about the
plans of the campaign. A few days later, DeSilva called
Hocker at her home about a business matter and during
the conversation, Hocker told him that she did not think
she was going to hear anything on the campaign. He told
her then to just forget it.
I find nothing illegal in DeSilva's asking an employee to
report rule violations or other misconduct during working
hours; furthermore , I find nothing illegal in seeking
information about the plans of the opposition candidate in
the campaign ; this is not asking about the campaign
activities or sentiments of employees . It is not illegal
surveillance . But, in soliciting an employee to commit an
overt act of support for him, DeSilva is interfering with
Hocker's campaign activities, which is equated with her
"union activities," and in so doing his conduct violates
Section 8(a)(1) of the Act.
E. Impression of Surveillance
At a meeting of the members of the Union in early
October 1971, held in the Knights of Columbus Hall in
Inglewood, California , the various candidates spoke
relative to the pending election. Business Agent Ted
Kastenbaum spoke as candidate for a position on
Respondent 's executive board and stated that he wished to
run as an independent . When President DeSilva spoke, he
said that Kastenbaum was not as independent as he
sounds; that he had recently met secretly with the
opposition ; that DeSilva knew where they had met, what
was said and how many were there; that 14 persons were
there and that he could give their names and other
information about the meeting. Kastenbaum had in fact
attended a meeting of the Matelson group at the home of
Palmer a short time before and 14 persons had been
present in the house.
The meeting at the Knights of Columbus Hall in
Inglewood was not a meeting of employees of Respondent
but of members who were employed in another cominuni-
ty. Although the meeting was open to all members , there is
no showing that , other than candidate Kastenbaum, any of
Respondent 's employees were present . On the other hand,
it is certainly reasonable to expect that DeSilva's state-
ment, made in an open meeting, that he knew who the 14
persons were, was heard by or would be repeated to
employees of Respondent , some of whom were among the
14 persons . I find that this statement of DeSilva created an
361
impression of surveillance of the campaign activities of
employees , which , as previously mentioned , are equated
with union activities , and by this statement Respondent
has interfered with , restrained , and coerced employees
within the meaning of Section 8(a)(1) of the Act.
F. Discharge of Six Office Employees November
12, 1971
On November 12, 1971, shortly before the end of the
workday, office employees Marjorie Caldwell , Janet Coles,
Lois Felder, Sally McGlassen, Sherry Nelson, and Grace
Panzera were each handed an envelope containing a check
and a letter notifying each of her termination . The letters
were the same , as follows:
Enclosed are all monies due to you as of November 12,
1971, which constitutes your current pay, accumulated
sick leave , and your pro-rata vacation pay.
This is notice of severance of your employment from
our organization effective November 12, 1971, for lack
of cooperation with your supervisor , unsatisfactory
work performance, an indifferent attitude , and conduct
unbecoming of an employee engaged to serve the
members.
I know you will understand that this action is in the
best interest of the membership of this union who
expect unqualified loyal and dedicated services.
The letters were signed by President DeSilva . These were
given to the employees by Department Heads Morgan and
Pugh . Caldwell and McGlassen tried to see DeSilva but he
was in conference with Business Agents Ted Kastenbaum
and Melvin Daily. DeSilva told his secretary to tell
Caldwell that he would not talk with her , that the matter
was closed , and to tell all of the women that the matter is
finished.
Caldwell , McGlassen , aid Nelson then went to McKin-
stry. Caldwell said that the terminations were unfair and
asked if something could not be done . McKinstry replied
that the terminations were effected by the chief executive
officer and that there was nothing she could do about it;
that she was not responsible for their terminations.
1. Lois Felder
Felder was employed by Respondent in May or June
1968. She worked in the Records Department under
Department Head Evelyn Pugh. Her job was to affiliate
new members. She processed approximately 15 to 20 new
members each day.
In the latter part of September 1971, Department Head
Bernadette Frank introduced a person to Felder as the son-
in-law of Business Agent Andy Anderson, and asked
Felder to affiliate him with the Union. During the course
of filling out forms, Felder told him that there was going to
be an election of officers for the Union and that he should
attend some of the meetings . He said "Oh, you mean that
thing about Sam Matelson ." Felder said that Matelson was
a nice guy.
On the following day Felder was called to the office of
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dan DeSilva, son of President DeSilva. Shortly thereafter
President DeSilva and the son-in-law of Andy Anderson
came in. President DeSilva asked Felder if she knew the
young man, pointing to Anderson's son-in-law. Felder
replied that she did; that she had affiliated him the day
before. DeSilva then asked her if she told him that Sam
Matelson was a nice guy. Felder replied that she did not.
Felder asked Anderson's son-in-law to say what she had
said and he replied that he did not remember. DeSilva then
told Felder that if she was going to say anything at all why
didn't she say something good about him. Anderson's son-
in-law then left the room and Felder stated, "Mr. D., you
are wrong." He then told her not to call him Mr. D. and
stated that if she wanted to say anything good, she should
have said something good about him. He then turned to
Dan DeSilva, his son, and told him to take Felder off of
the window immediately; that he did not want her to come
in contact with the members at all. He also said that Janet
Coles and Grace Panzera were to be taken away from the
windows that day. President DeSilva left the room and
Felder stated to Dan DeSilva that his dad was wrong; that
she had campaigned for him but was not going to do so
any longer.
This occurred shortly before lunch, and when Felder
returned from her lunch break she found that her
typewriter had been moved to the back corner of the
department. Thereafter and until her termination she did
mailing, telephoning, and typing. At the same time, the
positions of Coles and Panzera were changed from the
windows to the back part of the department.
During 1971, Felder had received two written warning
notices, one dated June 21 and the other dated November
3. In the notice of June 21, Felder was reprimanded for (1)
spreading rumors, particularly when they involved the
reputation of union personnel; (2) disobeying instructions
that she was to observe and not participate in a particular
picket line; (3) using an outside agency regarding a
problem involving her son rather than using procedures
available within the Union; and (4) for tardiness in
reporting to work. She was advised that she would be given
one more opportunity to perform work in accordance with
established union policies.
In the November 3 warning notice, McKinstry set forth
that the Union had been contacted by three different credit
organizations regarding delinquent accounts of Felder.
Felder was warned that if her wages were attached or if the
Union continued to receive calls regarding this matter
there would be no alternative other than to terminate her.
Department Head Pugh testified that when Felder was
moved to the back part of the department, Pugh noticed
that she was getting a number of telephone calls which
Pugh later learned were from creditors. Pugh also testified
that in the fall of 1971, Felder was late a number of times,
but could not testify as to how many. Pugh spoke to a
group of girls including Felder regarding tardiness,
warning them to please improve; that five tardinesses in I
month warrants a warning notice. She did not talk to
Felder personally about this matter, but has asked Felder's
immediate supervisor to talk to her about it. Pugh also
testified that Felder had an inability to follow supervision,
but when asked if she could recall any instances, she
testified, "No, not any specific instances."
2. Janet Coles
Coles started her employment with the Food Benefit
Fund in November 1963. The Food Benefit Fund was a
trust fund administered by an equal number of employer
and union trustees for the benefit of members of
Respondent. It was a separate entity from Respondent,
however, and maintained a separate payroll. In the fall of
1970, it merged with benefit funds of other locals and
moved its offices to Inglewood, California. When it did so,
Coles obtained employment with Respondent in its
Health-Education and Medical Benefits Department. In
June 1971, she was transferred to the Records Department
under Pugh. She worked at one of the windows affiliating
new members, as did Lois Felder; and as previously
mentioned, she was also transferred to the back part of the
department in the latter part of September 1971 along with
employees Felder and Panzera by order of President
DeSilva.
At the times involved herein Respondent had seven
windows where employees processed or affiliated new
members. They also issued withdrawal cards and transfers
and received dues and gave receipts. After Felder, Coles,
and Panzera were transferred to the back of the depart-
ment, their work consisted of processing death claims,
attorney referrals, and dues letters.
Shortly before her employment, in the Records Depart-
ment, in June 1971, Coles was issued a written warning
reprimanding her for (1) making criticisms and comments
which affect an individual's reputation, (2) making errors
on documents such as incorrect social security numbers
and omission of birthdates, and not correcting them
promptly, (3) not posting or recording complete informa-
tion regarding a union member. and (4) for criticizing the
work of other employees. The warning notice states that it
was being recommended that Coles be transferred to the
Records Department and given another opportunity.
Shortly thereafter she was transferred to the Records
Department. But, according to Records Department Head
Pugh, Coles made many typing and/or spelling errors on
cards and forms in the processing of new members in her
department after the transfer. This was reported to Pugh
by Department Head Bernadette Frank.
The forms and papers that were completed in the
processing of a new member were reviewed by another
person on a clearing desk. If a large number of errors
appeared, this was reported to Department Head Pugh. In
this procedure, Pugh received a report on Coles on the
average of about once a week. On one occasion in
September 1971 Coles affiliated 18 employees in one day
and made a mistake on each one; on one ledger there were
five corrections. Pugh spoke to Coles one time in
September 1971 regarding her errors, but no written
warning was given to her. Pugh testified that Coles was
loud and boisterous in dealing with people; that "it is her
characteristic"; and that some members objected.
RETAIL CLERKS UNION, LOCAL 770 363
3. Grace Panzera
Panzera was employed by Respondent on July 25, 1970,
and worked in the Records Department. She was assigned
to one of the windows and processed new members. In
March 1971 she received some training for the PBX Board
and on the reception desk, and thereafter she filled in on
these jobs when the regular girls were out for lunch or
otherwise off from work. On about September 23, 1971,
she, along with Felder and Coles, was transferred from the
job of processing new members to a job in the back of the
department handling mail ; here she had no personal
contact with union members or prospective members.
Department Head Pugh testified that when she first
came to the Records Department in the latter part of
August or the first part of September 1971, Panzera was a
very excellent employee, but that Panzera liked to work on
the switchboard and did not like going back and forth,
which Panzera verified. Pugh testified that about a week
before Panzera was moved from the window to the back
part of the department, Pugh came into the department at
lunch to find all of the phones ringing. She answered as
many as she could and noticed that Panzera was on one of
the phones quite sometime; she picked up another phone
on the same line and found that it was a personal call. She
told Panzera to please limit her telephone calls and to take
care of the calls of the members. Panzera denied that this
occurred. Pugh testified that this was the "real reason"
Panzera was moved from the window job. Pugh also
testified that on about November 10, 1971, Panzera was
very dilatory in the handling of a death claim. Panzera was
being trained to handle this type of claim; only supervisors
were handling them at that time . On November 10 she was
given a claim to process at/or about 11 : 30 in the morning
and it was not completed by the end of the day. According
to Panzera, Supervisor Frank was to check back with her
and assist her on it, but did not do so. She went to Frank
once during the day but Frank said she was busy and
would see her later. Pugh also testified generally that
Panzera's performance was not up to par and she
concluded that this was because she was being shifted
between work in the Records Department and the
switchboard.
4. Sally McGlassen
McGlassen was employed by Respondent on April 28,
1971, as a secretary to President DeSilva. Near the end of
June 1971, she was transferred to the Health and
Education Department under Sharon Morgan . Her work
consisted of interviewing or talking with members regard-
ing their benefits and claims and checking eligibility for
benefits.
On November 12, 1971, McGlassen was given her
termination notice by Morgan. After reading it, McGlas-
sen asked Department Head Nina Jovanovic if she knew
anything about it, and Jovanovic replied she did not.
McGlassen had received no warning notices about her
work , and the discharge came as a surprise.
Although Jovanovic had nothing to do with the
discharging of McGlassen , she testified that there were
"discrepancies" in the way McGlassen performed her
duties; that she had to tell McGlassen several times to stop
making conversation with employee Sherry Nelson and
wasting time; that on one occasion work was left on her
desk unfinished ; that in July 1971 a claim involving $1,200
was mishandled and Jovanovic testified that McGlassen
had worked on the claim , although it is not clear what her
part in it was. Jovanovic testified that she spoke to
McGlassen about the matter , but she could not relate the
conversation . McGlassen credibly testified that the first
she heard of the error was after her discharge when she was
seeing about collecting her unemployment benefits.
5. Sherry Nelson
Nelson was employed in May 1969 by the Benefit Fund
Office, and like Caldwell and Coles, she transferred to
Respondent 's office when the Fund moved its offices to
Inglewood , California . On the day following her receipt of
her termination notice she called Department Head
Jovanovic at her apartment about the matter . Jovanovic
stated that she was very surprised at it and was very sorry
about it ; that she would now have to do Nelson 's work as
well as her own. Nelson had received no warning notices
about her work . As previously found , Jovanovic is not a
supervisor within the meaning of the Act.
Although Jovanovic had no part in the discharge of
Nelson, she testified that Nelson 's main job was 'to file
employer reports, and that files were kept by Nelson on her
desk for many weeks; that this created a problem for the
other girls who would have to look on Nelson's desk
sometimes for files. One time in July 1971, Department
Head Morgan offered to help Nelson straighten out her
desk but Nelson replied that she would take care of it
herself . Jovanovic also complained that Nelson was late
coming to work on a number of occasions, eight times
during the month of October , and Jovanovic talked to her
about it.
Department Head Sharon Morgan did not testify, nor
did President DeSilva.
6. Marjorie Caldwell
In 1961 Caldwell started working for the Food Benefit
Fund and when it moved its offices in the fall of 1970, she
obtained employment with Respondent in its Employment
Department under Marilyn Grace. Her job was to try to
help unemployed members get together with employers
seeking employees. She interviewed members and contact-
ed employers . On an average she would have contact with
about 50 members during a week . On the weekend of
September 25, 1971, Caldwell was called at home by
Department Head Marilyn Grace and told that effective
the following Monday she would be moved to the Health-
Education Department . Grace gave as the reason that they
were shorthanded and Caldwell had had prior experience
in the Benefit Fund . Thereafter Caldwell worked under
Department Head Sharon Morgan ; her job was to
alphabetize IBM cards and to check eligibility of members
for medical claims and she "stuffed envelopes" with
material being mailed to members. In this job she had no
official contact with members of the Union.
During Caldwell 's 10 years of employment with the
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food Benefit Fund and Respondent she had received no
warning notices, nor had her work been criticized. In
August 1971 Respondent received a letter expressing
appreciation for "outstanding cooperation we have re-
ceived from the members of your staff in meeting our
recruiting needs, particularly, for the assistance from Marge
Caldwell and Bobbie McKenney."
After Caldwell was transferred to Morgan's department
on September 27, 1971, some of the unemployed members
with whom she had had dealings would call for her by
name. Department Head Jovanovic told Caldwell that she
was not to have dealings with members on the telephone.
On October 15, 1971, McKinstry issued a notice to all
employees regarding unnecessary telephone calls; particu-
larly calls discussing the campaign.
On November 5, 1971, Department Head Morgan issued
the following memorandum to all employees in her
department:
To All Employees of the Health Education and
Medical Benefits Department:
On October 15, 1971, Lois McKinstry issued a warning
notice to all departments requesting that no unneces-
sary phone calls be made by any employee, particularly
calls discussing the campaign on the telephone during
working hours.
Irrespective of Lois McKinstry's warning, the prohibit-
ed activities have continued and this notice is to advise
you that this Department has been in violation.
I am herewith authorizing Nina Jovanovic to intercept
all phone calls being made to or out of this Department
and in her absence, for her to designate one of the
persons on duty to do the same.
Thereafter Jovanovic monitored all telephone calls. If a
member called for Caldwell. Jovanovic told the members
of the department that would handle his business; if it was
one of Caldwell's children calling, Jovanovic would give
Caldwell the call.
Department Head Jovanovic testified that she does not
know of anything that might have triggered the discharge
of Caldwell. Her only complaint about Caldwell was that
she had personal telephone calls and sometimes stayed on
the telephone a long time.
On or about September 24, 1971, a union member, James
Calafat, came to the office of McKinstry and reported that
one of the girls in the Employment Department had talked
to him against President DeSilva and for a change in the
office of president of the Union; that the girl who did this
was an attractive, charming lady with dark brown hair,
about 30 years of age and wore large, round glasses.
McKinstry concluded that he was referring to Caldwell, as
this description fits Caldwell? She told Calafat to put the
information in writing. McKinstry then told DeSilva about
the conversation. DeSilva directed that Caldwell be
4 To some degree but a lesser degree , this description fits Department
Head Barbara McKenney, who did the same type of work, both girls were
witnesses
5 Calafat did not testify and I cannot find from the hearsay evidence that
the event he related did occur . Caldwell denied the conversation but stated
transferred to the Health , Education and Medical Benefits
Department as she was familiar with that work and in that
department would not have access to the members on
working time . The transfer was effected on September 27,
1971.
Under date of October 3, 1971, DeSilva received a letter
from Calafat setting forth the comments made to him by
the above -described person in the Employment Depart-
ment . He stated that "she criticized your actions and
activities , saying that you had too many outside interests,
not paying enough time to union affairs while spending
union money . That after 36 years it 's time for a change."5
G. Conclusions as to Discharges of Six Office
Employees
It is well established that active opposition by a union
member to the reelection of an incumbent union official is
protected activity within the meaning of Section 7 of the
Act .6 Caldwell was very active on behalf of Matelson;
many of the meetings of his campaign workers were at her
home; and she was "sort of" his campaign manager.
Respondent was aware of these facts, and to be sure she
did not engage in campaign activities during working
hours, her work assignment was changed so that she would
have no contact with members. Also, Panzera, Felder,
Coles, McGlassen, and Nelson were all active supporters of
Matelson in his campaign for president of the Union; they
stuffed envelopes and passed out literature. Following a
report by a new member that Felder had said a good word
to him about Matelson, Felder, Panzera, and Coles were
moved to job assignments that gave them no contact with
members during working time . Coles and Nelson had
worked with Caldwell in the Food Benefit Fund before
coming with Respondent. Shortly after Matelson an-
nounced his candidacy on September 3, 1971, Second Vice
President Polk told Coles that he did not want to see her
get hurt; that he would rather she not run around with
Caldwell; that she should not get involved in any political
fight.
In late October or early November 1971 Matelson sought
and obtained use of an index card file of names and
addresses of union members. The Union's bylaws and
constitution require that this file not be out of the
possession of the Union; and in order to comply with this
request, Larry Dunn, department head of the Maintenance
Department, was assigned to accompany this file to a
meeting with Matelson and his campaign helpers. The
meeting was at the home of Marjorie Caldwell, and besides
Caldwell and Matelson, all of the girls involved in this case
were present except Felder. Several other persons were also
present.
McKinstry testified that DeSilva rarely discharges
employees but usually would transfer employees to other
jobs instead. That is what he did when he received reports
that certain employees might be engaging in campaigning
that although she would never have instigated any conversation such as this,
she night have agreed with a member When asked if she remembered
anyone saying these remarks to her, she testified "not exactly."
6 Falstaff Brewing Corporation , 128 NLRB 294 . modified by 301 F 2d 216
(C A 8, 1962), Hoisting and Portable Engineers, Local No 4 and its Branches
of the International Union of Operating Engineers. 189 N LRB 366
RETAIL CLERKS UNION, LOCAL 770 365
during working hours. To engage in such activities during
working hours was a violation of a work rule and its
violation merited disciplinary action. But I find that the
discharges of the six office employees on November 12, the
day after DeSilva won the election for president of the
Union, was done in retaliation against them for their union
or campaign activities on behalf of Matelson and for their
opposition to DeSilva. Caldwell, who had worked for the
Union or the Union's Benefit Fund for 10 years, was
discharged for th-z: assigned reason of too much use of the
telephone; Nelson, a 2-1/2 year employee because she kept
a cluttered desk; McGlassen, a 6-month employee, for
"discrepancies" in her work and for wasting time convers-
ing with a fellow employee; Panzera, a 1-1/2-year
employee for talking a long time on the telephone and her
morale. The reasons assigned for the terminations of Coles,
an 8-year employee, and Felder, a 3-1/2-year employee, are
more substantial, each having received written warnings
during 1971 about their work performance or conduct. But
in the cases of all six employees, Respondent was merely
setting forth the discrepancies or shortcomings of the
employees involved. None of the immediate supervisors,
department heads, or even Executive Administrator
McKinstry took any part in the decision to terminate these
employees. The decision was solely that of the chief
executive officer, President DeSilva, who did not testify
but stated in his letter to each of the discharged employees,
dated the day after he won the election , that the action he
took was in the best interest of the membership of this
Union who expect "unqualified loyal and dedicated
services." I find that he discharged them because of their
union or campaign activities in opposition to his reelection
to president of the Union.
CONCLUSIONS OF LAw
1. By interrogating, polling, and soliciting employees to
take actions which denied to them their rights under
Section 7 of the Act , Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) of the Act.
2. By statements creating the impression of surveillance
of employees engaged in rights protected by Section 7 of
the Act, Respondent has violated Section 8 (a)(1) of the
Act.
3. By discharging Marjorie Caldwell , Janet Coles, Lois
Felder, Sally McGlassen , Sherry Nelson , and Grace
Panzera on November 12, 1971, because of their support
for Matelson for president of the Union , Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(3) and ( 1) and 2(6) and
(7) of the Act.
4. Respondent did not violate the Act by its discharge
of Carl A. Palmer, nor did it engage in illegal conduct as
alleged in paragraphs 8(b), (c) and (h) of the complaint.
REMEDY
In order to effectuate the policies of the Act, I find it
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from like or
related conduct violative of the Act, and to take certain
affirmative actions.
Respondent having discriminatorily discharged six em-
ployees, I find it appropriate that it be ordered to offer
them full reinstatement , with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from date of discharge to date reinstatement is
offered.
[Recommended Order omitted from publication.]