S. S. Kresge Co.

National Labor Relations Board - Board Decisions

Jan 30, 1970

180 N.L.R.B. 1018 (N.L.R.B. 1970)

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K-Mart , a Division of S. S. Kresge Co. and Retail
Clerks Union Local 455 , affiliated with Retail
Clerks International Association , AFL-CIO. Case
23-CA-3212
January 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 17, 1969, Trial Examiner George L.
Powell issued his Decision in the above-entitled case,
finding that the Respondent had engaged in an
unfair labor practice and recommending that it
cease and desist therefrom, as set forth in the
attached Trial Examiner's Decision, but further
finding that the violation did not warrant the
posting of a notice to the employees. The Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor
practices and recommended that these allegations be
dismissed. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner' s Decision , the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent that they are
consistent with this Decision and Order.
We find, in agreement with the Trial Examiner,
that the Respondent violated Section 8(a)(l) when
store manager Davies asked employee Weeks to
ascertain the union sympathies of employee Fultz
and to see if Fultz was willing to drop the Union. In
addition, however, we find, contrary to the Trial
Examiner, that the Respondent committed further
violations of Section 8(a)(1) by unlawfully creating
an impression of surveillance, interrogating
employee Weeks as to his union activities and those
of another employee, and promising benefits to
Weeks in order to persuade him to abandon the
Union campaign.
The essential facts in this case have been set forth
in the Trial Examiner's Decision. These facts will be
restated only to the extent required by the resolution
of this case.
On Sunday, November 24, 1968, several
employees including Rayburn Weeks, Maxine Fultz,
Joe Palique, and Art Berry attended a union
meeting. On the following day, the Respondent's
store manager, Thomas Davies, telephoned Gerald
Issler, the Respondent's district manager, informing
him that there had been a union meeting the day
before. Issler journeyed from Houston to the
Respondent's Beaumont store later that same day.
As district manager it was customary for Issler to
interview employees in order to gain an
understanding of each store's operation. By
Wednesday, November 27, when he interviewed
Rayburn Weeks, Issler already knew from Davies,
who had been informed by Art Berry, which
employees had attended the union meeting.
With regard to the interrogation of employee
Weeks about his "extra-curricular activities" by
Gerald Issler, the Trial Examiner concluded that
such conduct did not constitute a violation of
Section 8(a)(1) because it was not directed at
Weeks' union activities, but rather referred to his
nonjob pursuits. We find merit in the General
Counsel's exceptions.
Contrary to the Trial Examiner, we find that
Issler's interrogation had an undesirable, direct
bearing on Weeks' protected concerted activities.
According to Weeks' testimony, credited by the
Trial Examiner, the subject of after-hours' interests
came up in the following manner:
Well, Mr. Issler asked me if I knew why I was
there. And, I told him, not really. I told him I
was curious [i.e. why he was being interviewed].
And, he said something about my after hours
activities, or my extra curricular activities, or
something to that effect.
And, I asked him if he meant the union
meeting.
And, he said, yes. And, he asked me --
I told him that I had gone.
And, he asked me, what I thought of it, and
what we talked about
And, I told him what the union man had talked
to us about, what they told us.
In view of the above, we are persuaded that
Weeks' union activities, specifically, his presence at
a union meeting, his overall interest in the Union
and what he expected to gain through it, were the
topics under discussion. Furthermore, we do not
view Issler's knowledge that Weeks attended the
union meeting as having the disarming effect which
the Trial Examiner supposes. Rather, we believe
such knowledge had the opposite result especially
since Weeks testified that he had the distinct
impression that at this first meeting the Respondent
was "trying to dissuade me," to disavow interest in
the Union.
Under all the above circumstances,' we find that
by interrogating an employee as to his protected
concerted activities the Respondent violated Section
8(a)(1).
'Even granting the special circumstance repeatedly relied on by the Trial
Examiner that relations between the Respondent and the employees in
question , in particular , Rayburn Weeks , were friendly, we fail to perceive
why this element should be accorded the weight the Trial Examiner has
180 NLRB No. 161
K-MART, A DIVISION OF S. S. KRESGE CO. 1019
With regard to the alleged offer of a benefit made
to Weeks by the Respondent during the same
above-mentioned conversation, the Trial Examiner
found insufficient evidence to support a conclusion
that the Respondent thereby violated the Act. We
also find merit in the General Counsel's exceptions
to this conclusion.
As the Trial Examiner found, Issler , Davies, and
Weeks discussed the Union's wage promise and the
effect such demands, if realized, would have on the
Respondent's competitive market position. At that
point Issler questioned Weeks about his expectations
with the Respondent and ascertained that Weeks left
other jobs because he was not earning enough.
Davies stated that he would like Weeks to be "on
their ball team." Weeks then expressed doubt
whether the Union could obtain for him benefits he
did not already have and said that, in any case, "I
was going to look out for myself." Weeks testified
that Issler, upon hearing this, said to Davies, "Let's
put $720 a month into his pocket." Issler testified
that he merely mentioned that Weeks, who was then
earning $115 per week, could with some effort on
his part, earn "$700 to $800 per month." The Trial
Examiner found Issler's version more reasonable.
We agree, but would not conclude, as did the Trial
Examiner, that the above conversation did not
constitute a suggestion of reward should Weeks
abandon the Union.
In reaching this conclusion we look to the
surrounding circumstances. Weeks was questioned
as to his union sentiments and had the impression
that the Respondent was trying to persuade him to
abandon the organizational effort. After learning
that Weeks was not convinced that the Union would
better his position Davies expressed interest in
having Weeks join their side. Issler apparently
concurred and suggested that Weeks could
materially enhance his position with the Respondent.
Based on the record before us, we must conclude
that Weeks' waning interest in the Union'
precipitated these remarks by the Respondent and
leads us to the conclusion that, in the context within
which they were given, these utterances constituted a
suggestion of reward should the employee in
question disavow interest in the Union. While we
appreciate the fact that the Respondent may have
desired to promote Weeks to "Toy Manager" (as it
has since done ) and, therefore , was merely trying to
ascertain whether Weeks was suitable for a
supervisory position, nevertheless, where, as here,
that lawful purpose was inexorably tied in with
unlawful promises of reward calculated to impress
upon the employee the wisdom of abandoning the
Union, it cannot excuse the Respondent's incursion
into its employees' Section 7 protected rights.3
Under the circumstances, we conclude that the
Respondent also violated Section 8(a)(1) of the Act
by suggesting or offering a benefit or reward should
Weeks give up his union activities.
Several days later, on Saturday, November 30,
Davies and Weeks were engaged in a conversation
concerning Palique and Weeks' growing disinterest
in the Union when Davies asked Weeks to ascertain
whether Fultz was a "union plant" and whether she
was willing to abandon the Union. Later that same
day Weeks and Fultz talked to Davies. During the
course of the conversation, which is fully related in
the Trial Examiner's Decision, Davies stated that he
knew who had attended the union meeting. Weeks
asked Davies how he came by this information.
Davies, in the words of Fultz, said, "he had ways of
finding out things like that."
The Trial Examiner failed to find that Davies'
asking Weeks whether Fultz was a "Union plant"
was an unlawful interrogation of an employee
concerning the protected activity of a fellow
employee, and that an "impression of surveillance"
was created by Davies. We find merit in the General
Counsel's exceptions to this failure.
The Trial Examiner found, and we agree, that the
Respondent's request that Weeks ascertain whether
fellow employee Fultz was prepared to give up the
Union consituted a violation of Section 8(a)(1) of
the Act. However, as part of the same conversation,
Davies asked Weeks whether Fultz was a "union
plant." This query of Davies clearly constitutes
unlawful interrogation, an unwarranted invasion into
the protected activity of an employee, and, in
addition, fully supports our additional finding that
Respondent created an impression of surveillance
during the course of the conversation with Weeks,
the natural consequence of which was to interfere
with, intimidate, or coerce employees in the free
exercise of their Section 7 rights and, therefore,
violative of Section 8(a)(1).
In view of the above-mentioned findings we
conclude that the Respondent, in addition to the
unlawful conduct found by the Trial Examiner, also
committed additional violations of Section 8(a)(1)
by its creating of an impression of surveillance,
suggesting a reward to an employee to induce him
to give up his union interests , and unlawful
interrogation of an employee with regard to his
union activities and those of another employee.
Accordingly, and contrary to the Trial Examiner,
given it It is well established that the employees' fear of discrimination,
while certainly of some probative value, is not in substance the test applied
in analyzing the alleged violation of Section 8(a)(I). See The Dalton
Company, Inc., 109 NLRB 1228, 1229; Crown Central Petroleum
Corporation , 177 NLRB No. 29. Moreover , the assurances given by the
Respondent that the employees were free to join the Union and that their
jobs were not in jeopardy for attending the Union meeting were all but
nullified by subsequent 8(a)(1) conduct.
'The record shows and the Trial Examiner 's Decision points out that in
a subsequent conversation with Davies, Weeks still expressed at least a
lingering interest in the Union.
'Northeastern Engineering , Inc, 112 NLRB 743, 744
It is well established that the test of interference, restraint , and coercion
does not turn on the Respondent ' s motive, but rather on whether the
Respondent engaged in conduct which tended to interfere with the free
exercise of employee rights under Section 7 of the Act
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we believe that under the circumstances' the posting
of the usual notice, as both a remedial and
preventative measure, is warranted in this case
because of the numerous violations found herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
herein modified, and orders that the Respondent,
K-Mart, A Division of S. S. Kresge Co., Beaumont,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Delete the letter A. from the second paragraph
2. Reletter paragraphs l(a) and (b) as l(e) and (f),
and add the following preceding paragraphs-
"(a) Creating the impression of surveillance of
union activities among its employees
"(b) Interrogating employees with regard to their
union activities.
"(c) Suggesting benefits to induce employees to
reject the Union.
"(d) Interrogating employees as to the union
sympathies or activities of other employees."
3 Delete paragraph B and in its place insert the
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT engage in conduct which creates in
employees the impression that we are engaged in the
surveillance of their union activities
WE WILL NOT coercively interrogate employees in
connection with their union activities
WE WILL NOT suggest benefits to induce employees
to reject the Union
WE WILL NOT interrogate employees as to the union
activities or sentiments of fellow employees.
WE WILL NOT ask employees to ascertain union
sympathies of other employees
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form, join, or
assist Retail Clerks Union Local 455, affiliated with
Retail Clerks International Association, Af L-CIO or
any other labor organization, or to engage in any other
concerted activities for the purposes of collective
bargaining or mutual aid or protection, or to refrain
from any and all such activities
K-MART, A DIVISION OF
S S. KRESGE Co
(Employer)
y
following: ( Representative ) (Title)
"2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
"(a) Post at its place of business in Beaumont,
Texas, copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms
provided by the Regional Director for Region 23,
after being duly signed by the Respondent's
representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicious 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 10 days from the date of this
Decision, what steps have been taken to comply
herewith."
IT IS ALSO ORDERED that the comp-dint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
The Respondent, in its brief, has taken pains to cite cases where the
Board has declined to order the posting of notices Those cases we view as
inapposite because of the isolated nature of the violations and the absence
of attendant aggrevating violations
'in the event this Order is enforced by a judgment of the 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 "
Dated B
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 concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas 77002, Telephone 711-226-4296
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner This case under
Section 10(b) of the National Labor Relations Act as
amended, herein called the Act, was tried before me on
April 17, 1969, pursuant to due notice, in the courtroom
of Judge Paul J. McNeill of Jefferson County, Texas. The
complaint which was issued on February 14, 1969, was
based upon a charge filed on December 9, 1968, by the
Charging Party, Retail Clerks Union Local 455, affiliated
with Retail Clerks International Association, AFL-CIO
The questions presented in the case are whether
management of Respondent, K-Mart, a Division of S. S
Kresge Co , interrogated employees, promised them
benefits if their union activities ceased, created the
impression of surveillance of their union activities, and
threatened employees with harassment if they did not
cease their union activities. Respondent answered denying
the alleged unfair labor practice allegations All parties
appeared at the trial, were represented and participated in
it and were granted full opportunity to adduce evidence,
examine and cross-examine witnesses, submit briefs and
present oral argument The General Counsel presented
K-MART, A DIVISION OF S. S KRESGE CO.
oral argument at the conclusion of the trial and briefs
were filed on May 8, 1969, by both the General Counsel
and the Respondent
On the entire record of evidence, my observation of the
witnesses as they testified, and upon due consideration of
the briefs, I find, for the reasons hereinafter set forth, that
the General Counsel has established by a preponderance
of the evidence that Respondent violated Section 8(a)(1)
of the Act in the particulars enumerated below
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE EMPLOYER AND THE LABOR ORGANIZATION
I find that the allegations of paragraphs 2 and 3 of the
complaint respecting the nature and volume of business
carried on by the Respondent, a Michigan corporation
engaged in the business of retail sales of general
merchandise in Beaumont , Texas, are true and conclude
therefrom that Respondent is an employer engaged in
commerce within the meaning of Section 2 (6) of the Act.
There is no controversy over these facts Respondent's
only facility involved in this proceeding is that located in
Beaumont , Texas, and this facility began its operations on
August 22, 1968.
The parties admitted , and I find and conclude , that the
Retail Clerks Union Local 455, affiliated with Retail
Clerks International Association , AFL-CIO, herein called
Charging Party or Union , is a labor organization within
the meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES
The parties admitted that at all material times herein,
the following named persons occupied the position set
forth opposite their respective names and I find these
persons to be supervisors within the meaning of Section
2(11) of the Act
Gerald D Issler - District Manager
Thomas V Davies - Store Manager
Mrs Johnny Green Personnel Supervisor
On Sunday, November 24, 1968,' employees Rayburn
Weeks, Maxine Fultz, Catherine Moore, Art Berry, "a
part-time boy named Joe," and a supervisor named Joe
Palique attended a union meeting with two union men at
the Ridgewood Motel in Beaumont The meeting lasted
between 1 1/2 and 2 hours during which time the
employees were instructed about talking up the union to
employees and took union cards for distribution Weeks
took and distributed cards to some 10 or 12 employees
and Fultz likewise talked to employees about the Union
or passed out cards to them
In a telephone conversation originated by IssL,, Store
Manager Davies told his superior, District Manager Issler,
on November 25, 1968, that there was some talk of union
activities in the Beaumont store and that there had been a
union meeting That same day Issler came to the store
planning to discuss a letter with Supervisor Palique
regarding his nonpayment of a loan, and to interview
employees in accordance with his custom in new facilities
On Wednesday, November 27, Issler talked to Palique
about the letter but Palique, taking the position that he
was really being interviewed because of his union
activities, ran out of the room into the hallway where he
was seized with epilepsy. As Palique was being helped out
'All dates are in 1968 unless otherwise noted
1021
of the building he told employee Rayburn Weeks
something to the effect, "Look what they have done to
me 112
Weeks testified that as Palique was being carried out
after his seizure he "latched on to" Weeks and told him
that Davies and Issler had caused him to have the seizure.
A couple of hours later Davies asked Weeks to come to
the office where Issler and Davies explained to him that
they did not know Palique was an epileptic. Palique had
denied this problem in his job application. Weeks was told
that Palique had been questioned about his failure to pay
the loan and about the letter Issler had received
concerning the loan.
After the Palique matter had been disposed of, Issler
began his interview with Weeks and at some time in it
asked Weeks about his "after hours activities" or his
"extra curricular activities, or something to that effect,"
according to Weeks. Near the end of the interview Weeks
brought up his union activities By this time, Davies, who
had been told by employee Berry the names of all who
had attended the union meeting, had in turn told Issler the
names of those who had attended the union meeting.
Therefore, as Issler knew that Weeks had attended the
union meeting there was no need for him to ask Weeks if
he was engaging in union activities as an after hours
activity Hence I believe that Issler was asking Weeks to
tell him of his nonjob activities in order to better
understand his character And Weeks was satisfied that
Issler was friendly and so it cannot be found that Issler
was interrogating Weeks as to his union activities in an
effort to uncover his union activities, interfere with him or
to show personal antagonism towards him because of his
union activities
After Weeks brought up the union meeting Weeks
testifed that Issler was interested in the economic
promises which the union men had made to the employees
and these were discussed. Under these circumstances, this
is not the stuff of which unfair labor practices are made
but rather is the stuff that leads to good morale among
employees and to satisfied workers the aim of all good
management
Specifically, Weeks told Issler and Davies what the
union people had told the :mployees, namely that the
Union could get them a good contract, possible a
60-cent-per-hour increase over a 2-year period, better
hospitalization insurance , retirement, night differential
pay, and 15 minutes added to a workday when they
worked through a break Issler told Weeks the Union
could not get them more than the minimum wage,' and,
using a box of Kleenex, Issler pointed out that
Respondent would have to raise its price from 19 cents to
probably 29 cents but that by so doing would not be able
to compete with Gibsons, another local discount store.
Issler asked Weeks how he liked to work for
Respondent and when he found that Weeks liked the work
he asked Weeks if he wanted to stay in his present job
(stockroom) all his life Weeks told him "No " Issler
found out where Weeks had previously worked that he
had quit because there was no enough money, and upon
learning that Weeks was 28 years old suggested it was
time for him to settle down and work up. Davies told
Weeks he would like him "on their ball team." Weeks
told Davies he did not believe the Union would do him
'Based on credited testimony of Respondent ' s witnesses including Lois
Gober I find that Issler confined himself to the matter of the loan and did
not question Palique about any union activity
'The employees were making more than the minimum wage
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any good as he was making more money than the union
men said they could get and that he could get everything
else such as insurance without the Union
Issler found out from Weeks that the latter was making
$115 a week and told Davies, "Let's put $720 a month
into his pocket." However, at the trial Weeks was only
making $120 a week
A few days later, Weeks related to Davies a telephone
conversation Weeks had had with Palique in which
Palique told Weeks the union men had told Palique that
Respondent was going to fire everybody that had been at
the union meeting Weeks then told Davies that if he were
going to be fired or phased out that he would not give up
the Union Davies told him there was nothing to worry
about and that they would not lose their fobs.
The following weekend Palique again called Weeks.
Weeks again related this conversation to Davies that
Palique would give up the Union if Weeks would do the
same and Weeks was "all for giving it up " Weeks told
Davies he wanted out of union activities and asked him
what he should do. Davies asked Weeks to talk to Maxine
Fultz to see if she was willing to drop the Union, and
asked Weeks if he thought she was a union plant Weeks
did not think so Davies wanted both Fultz and Weeks to
come to his office if Fultz was willing to drop the Union.
Thereafter on the same day, Weeks and Fultz came to
Davies' office where Weeks told Davies that he and Fultz
had discussed the problem and had both agreed to drop
the Union. Fultz told Davies she was not a union plant
and that although she believed in the Union she also
believed there was no hope for it and she was willing to
drop it
Davies asked how the Union appealed to them and they
told him about the night differential and about getting the
break time added to their day if they worked through
their break Davies suggested they use the suggestion box
and asked if there was anything else Fultz told him her
supervisor, Hipp had been "cold toward her" and she
could not understand it as he had always been
exceptionally nice to her. Davies asked if she would like
him to call Hipp into the office and talk to him about it
and did so when Fultz said, "Yes " Weeks left when Hipp
arrived.
On cross-examination, Weeks testified that his friendly
relationship with Davies never changed and that there was
a friendly atmosphere in the store and that he believed
Issler and Davies were trying to dissuade him from the
Union at the first meeting "but that was the only time "
Weeks also testified that at the first meeting with Issler
and Davies that they told him he had nothing to worry
about and not to worry about losing his fob. And Davies
assured him "two or three times later that [the union
employees] weren't going to lose [their jobs]."
Weeks concluded his testimony by stating 'hat there
were "around 100 employees in the store" and "a great
number of them" were talking for the Union
Maxine Fultz
Mrs. Fultz worked for Respondent from October 1968
until January 1969. She was in the men's department with
four other ladies and the stock boy Robert Hipp was in
charge of this department.
Fultz was one of the six employees who attended the
union meeting in November. She testified, in reply to a
question of what was the meeting about, "Oh, they were
trying to get a union started. We were trying to get a
union started " As noted earlier, she talked for the Union
and passed out cards to employees.
Her testimony as to what took place when she and
Weeks on their own accord went to Davies' office is as
follows. Davies asked "What can I do for you?" and she
told him," the situation around the store had just got
to where it was just awful, I mean, everyone hateful and
all of this cold shoulderness, and everything And, it just
wasn't at all like it was before we went to the union
meeting "
"And, I asked him, I said well, I told him, I said, I
would like to compromise, and I will do dust anything if
they can only get things back like they were before the
Union started. Everybody is being so hateful and
everything I told him that I would be quiet about the
Union and quit passing out the cards if he would just get
everybody off of my back " The testimony continues
Q. Did Mr Weeks or Mr Davies have anything to
say`'
A Well, Mr Davies said, well he said, we don't like
to keep people on that works for the Union and
believes in it, and tries to start things like you have
done
I told him, I said, well, it is your privilege to fire me
if you want to fire me. I said, I do believe in the
Union. That is my privilege, to believe in the Union if I
want to.
But, I said, I will keep my word and quit passing out
cards and keep quiet, keep my mouth shut, and
everything about it.
And, he asked me, he said, was I sent there by the
Union?
And, I said, Oh, gracious no, sir I wasn't sent here
by the Union
And, he said, well, he said, did you attend a union
meeting?
And, I said, yes, sir. And, I am not ashamed of it
And, he said, well, I just wanted to see if you would
admit it He said, I knew that you were there, and I
knew all of the ones that were there. And, he said, I
even knew the night before you even went
And, Ray [Weeks] spoke up and said, well how did
you know that?
He said, he said that he had ways of finding out
things like that.
She then asked Davies if he would call in Hipp and talk
to him "since he had been very rude to [her] and hateful,
and everything, and he just wasn't friendly at all like it
was before [she] went to the meeting."
When Hipp arrived, Weeks left the meeting, and, in
front of Davies, Fultz confronted Hipp saying she just
could not "stay in the working situation, the hatefulness
and the cold shoulderness. I said, I can't work under these
conditions. I told him, just like I told Mr Davies, that I
would be willing to compromise and keep my mouth shut
and quit passing out cards, and not to talk about the
Union anymore if things would dust get back like they
were."
"And, Mr Davies said, well, I don't see why we can't
do something about it.
"So, about along that time, then I told him, I guess I
had better get back out there and go to work
"I started to leave, and he asked me, he said, do we
have your word'
"I said, yes, sir, you do have my word."
Fultz went on to explain that the "cold shoulderness"
began after she had attended the union meeting and
'Art Berry volunteered this information to Davies, as noted earlier
K-MART, A DIVISION OF S. S. KRESGE CO. 1023
continued until the above conversation with Davies and
Hipp. Thereafter Hipp and she again were friendly,
talking and laughing together as they did before the union
meeting.
Between the first and the middle of December she
received two separate 5 cent pay increases. She said Mrs.
Johnny Green, personnel supervisor, told her she was
supposed to have gotten a dime raise rather than 5 cents
and the second 5 cents was to make up the difference She
also testified that at least one other employee also
received a pay raise at the same time.
Respondent's Case
and he seemed genuinely bewildered that she thought so. I
credit Hipp over Fultz and find his manner had not
changed as she had testified. I also find incredible Fultz'
testimony that on leaving the meeting with Davies he
asked her "Do we have your word'?" It is completely out
of character with all we know of Davies from Weeks'
testimony and from my observation of the witnesses.
Davies testified that Fultz received her pay increase
because she qualified for it under company policy. I find
insufficient evidence based upon this pay raise to support
any allegation in the complaint tending to show employees
were rewarded for stopping their union activity, or that
this was the result of an implied promise of reward
Respondent called a meeting of all the employees on
Friday, November 29 and Issler addressed them. The
speech dealt with the benefits supplied by Respondent to
the employees. At one point in the speech he said, "I wish
to make it clear to you that you have the right to sign a
card and to request the Union to represent you
collectively. It is against the law for me to threaten or
coerce you in any way whatsoever to prevent you from
signing one of those cards."
Palique interrupted the speech stating he was for the
Union and would do all in his power to see that the Union
was brought into the store. He said he had been treated
quite unfairly by Issler and Davies the previous day of his
seizure. Some of the employees started shouting at
Palique and Issler attempted to quiet the meeting. He
recognized Mr. Henry on the floor, who wished to speak,
but as he spoke out against the Union the employees
started shouting at him. Then Issler closed the meeting
and the store was opened for business at its regular time 9
a. m.
Davies, in testifying about the meeting with Weeks and
Fultz on November 30, did not testify that he asked
Weeks to talk to Fultz to see if she was willing to drop
the Union (as did Weeks). Rather, his testimony was that
Weeks told him that he (Weeks) did not want anything to
do with the Union "and he felt that [Fultz] felt the same
way because she had told him so." Thereupon, said
Davies, he told Weeks that management ' s doors were
always open to any employee. Thereafter on the same day
Fultz asked him if she and Weeks could meet with him,
and they met together. I believe Weeks ' testimony as to
the details are slightly more accurate than Davies' as it
would seem more reasonable to me that Fultz and Weeks
would come together to see Davies if Davies had asked
Weeks to check out Fultz and her desires. The chance that
Weeks and Fultz would return so quickly after the
Davies-Weeks conversation is too much of a credible
coincidence unless Fultz and Weeks were really
attempting to bait Davies -- a very grave possibility under
all the circumstances . Accordingly , I find that Davies in
fact had asked Weeks to talk to Fultz to see if she would
drop the Union , and this is unlawful.
However , Davies specifically denied telling Fultz that
Respondent did not keep people on who believed in unions
and I credit Davies over Fultz . Weeks was there at the
time and he did not corroborate Fultz which I am sure he
would have done had her testimony been correct. Weeks
corroborated Davies that he told them they did not have
to be afraid of losing their jobs. Of all the witnesses, Fultz
impressed me as the one most likely to exaggerate and
one who did exaggerate . She is credited only when
corroborated by Weeks.
Hipp denied that his manner or attitude toward Fultz
had changed at any time or that he attempted to change it
Analysis and Conclusions
As I listened to the witnesses testify for the case of the
General Counsel I received the distinct impression that
Respondent's supervisors were being presented with golden
opportunities to cause one of them in due course to violate
the Act, albeit unintentionally. This impression is
solidified by an analytical examination of the evidence,
some of which has already been made. All of the
information concerning the union activity of the
employees had been volunteered by employees Berry,
Weeks and Fultz. After the union meeting Berry told
Davies who was there but not of what took place. Then
there are the various opportunities given Respondent to
overreach or "over-react" (a term in great current usage)
beginning with Weeks' fairly obvious efforts to present
himself as a sacrifice willing to give up a right under the
Act for a benefit hopefully to be promised by Respondent.
But this failed until November 30 after Weeks again told
Davies he would drop the Union and Davies asked him to
find out Fultz' feelings after Weeks had volunteered she
might give up her interest in the Union. This violated
Section 8(a)(1) of the Act inasmuch as this conduct does
interfere with an employee's rights under Section 7 of the
Act to engage in union activities free of employer
interference regardless of whether the interference was
deliberately done to discourage union activity. Employers
are not permitted to engage employees to determine union
sentiment or antiunion sentiment.
I do not mean to say, however, that Weeks knew of the
part he was acting in this scene as he impressed me as a
straightforward, honest , employee.
Then there is what seems to me to be the rather artful
Mrs. Fultz with her discredited story of "cold
shoulderness" and her discredited little facts. However she
did get Davies to say he knew of who attended the
meeting. Ordinarily this could be a violation of Section
8(a)(1) of the Act in what is technically known as an
"impression of surveillance ." Spying on union activities of
its employees, or surveillance, is as corrosive as
wiretapping, causing fear of the unknown and the dreadful
to clutch at mortal hearts . Now an impression of
surveillance is but one step removed from actual
surveillance but it must be remembered that it is one step
removed permitting something to come between it and
actual surveillance. In the instant case with all of the
known statements by Respondent 's agents that employees
had no reason to fear for their fobs because of their union
activities and because, as Weeks' testified, there was the
friendly feeling in the store between Respondent and
employees , I find nothing in the statement , in context,
such as to interfere with, intimidate, or coerce any
employee in the free exercise of his Section 7 rights, and
accordingly I find no real impression of surveillance and
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will recommend this allegation of the complaint be
dismissed.
Weeks testified that after Issler and Davies learned
from Weeks that the Union could do him no good, Issler
said to Davies, "Lets put $720 a month in his [Weeks']
pocket." This is a cryptic remark lying in the record if
Weeks is to be believed and I have credited him. I do not
understand it from Weeks' testimony, as it does not make
sence as an offer of a benefit. However, Issler testified
that he told Weeks he could work himself up to "$700 to
$800 a month" when they were talking about Weeks'
future if he stayed put on the job. I find this is far more
likely to have happened and Weeks could have been
reporting a possible goal available to him with effort.
There is insufficient evidence however to establish that
Issler offered Weeks this $750 if Weeks would give up his
union activities. Weeks himself had already told Issler and
Davies the Union could not help him. I conclude that the
Union no longer figured in the conversation and that the
higher wage mentioned was based on a future with
Respondent. I will recommend this allegation in the
complaint be dismissed.
III. THE REMEDY
I have found that Respondent violated Section 8(a)(1)
of the Act when Davies asked Weeks to find out if Fultz
would give up the Union, and will recommend Respondent
cease and desist therefrom, but I do not believe it would
effectuate the policies of the Act to cause Respondent to
post notices. Respondent here has already told Weeks and
Fultz several times they had nothing to fear because of
their union activities and had told its employees in an
assembly before commencing work on November 29 that
its employees "have the right to sign a card and to request
the Union to represent you collectively. It is against the
law for me to threaten or coerce you in any way
whatsoever and to prevent you from signing one of these
cards " This is adequate notice to them of their rights. It
is substantially the same as a notice required by the
Board. It is clear that Respondent did this to correct the
contrary position taken by one of its supervisors, Palique.
It preferred no-union but there is no evidence that this
employer was hostile to unionism in the sense that it
rejected the theory of collective bargaining. To cause
Respondent to tell its employees again in a posted notice
that it would not threaten or coerce them in any way only
humiliates it and in no way effectuates the policies of the
Act of getting the notice to its employees. The important
consideration in this case is to order Respondent to cease
and desist as set out above.
On the basis of the foregoing and the entire record, I
hereby state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Sections 2(6) and (7) of the Act.
2. The Retail Clerks Union Local 455, affiliated with
Retail Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The General Counsel has established by a
preponderance of the evidence that Respondent has
violated Section 8(a)(1) of the Act, as set out in the
allegation in paragraph 7(h) of the complaint, when
Davies asked Weeks to check on the union sympathies of
Fultz and report back to him. The remedy therefor has
been provided above.
4. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent violated
Section 8(a)(1) of the Act in the particulars alleged in the
complaint in paragraph 7(a), (b), (c), (d), (e), (f), and (g).
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the record in the case, it is
recommended that:
A. That Respondent , K-Mart, a division of S. S.
Kresge Co., its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Asking employees to ascertain union sympathies of
other employees.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their right to self-organization , to form , join , or assist
Retail Clerks Union Local 455, affiliated with Retail
Clerks International Association , AFL-CIO, or any other
labor organization , or to engage in any other concerted
activities for the purpose of collective bargaining or
mutual aid or protection , or to refrain from any and all
such activities.
B. That the complaint be dismissed in all other
particulars as set out in the Conclusions of Law.