A & E Stores, Inc.

National Labor Relations Board - Board Decisions

Oct 11, 1984

272 N.L.R.B. 737 (N.L.R.B. 1984)

A & E STORES 737
A & E Stores, Inc. and Curtis Parker and Virginia
Johnson and Rafael Palacio and David Seaton.
Cases 2-CA-19071-1, 2-CA-19071-2, 2-CA-
19071-3, 2-CA-19122
11 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 25 August 1983 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions, supporting briefs, and answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, except as modified herein, 2 and to
adopt the recommended Order as modified.
The complaint alleged in part that the Respond-
ent, by Robert Maddux and acting through David
Seaton, threatened its employees with discharge be-
cause they voted for the Union and thereby violat-
ed Section 8(a)(1) of the Act. At all relevant times
Maddux was the Respondent's general director of
warehouse and distribution and Seaton was a ware-
house supervisor. Seaton testified that on several
occasions Maddux made statements to Seaton that
' The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
We correct the following inadvertent errors of the judge which are in-
sufficient to affect our decision In sec I he refers to the American Li-
thographers Association rather than to Local 240, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
in sec II,E he refers to Seaton's salary as $3 75 an hour rather than as
$375 per week, in sec II,E,2, in chronicling the events surrounding
Curtis Parker's discharge, the judge states that Parker did not explain
where he got the information that a shipment was not ready to be loaded
on a delivery truck To the contrary, Parker testified that prior to going
to the loading dock area he spoke with a clerk at a second floor shipping
desk and was told that the shipment was not ready and would not be
loaded on the truck This fact bolsters the judge's decision concerning
Parker's discharge, which we adopt
2 We agree with the judge that the Respondent violated Sec 8(a)(1) by
discharging Supervisor David Seaton because of his testimony before the
Board in an earlier proceeding We find It unnecessary to pass on wheth-
er the discharge also violates Sec 8(a)(4)
In sec II,C of his decision, the judge dismissed an allegation that the
Respondent unlawfully Imposed a rule prohibiting union talk and activity
In adopting this dismissal, we rely solely on the credited testimony that
the Respondent's restriction was limited to a verbal admonition to an em-
ployee to refrain from talking while he should have been working We
do not rely on the cases cited by the judge, which Include T R W Bear-
ings, 257 NLRB 442 (1981) See Our Way, Inc , 268 NLRB 394 (1983),
where TRW was overruled (Member Zimmerman dissenting in relevant
part )
he would fire everyone working on the Respond-
ent's second floor in order to solve "this problem,"
a clear reference to the ongoing union organiza-
tional campaign. Seaton testified that on 30 April
1982 at a meeting in a bar attended by Seaton and
several second floor employees Seaton repeated
Maddux's remark and also warned the employees
to be careful.
The judge found that Seaton conveyed Maddux's
remark to the employees on his own volition with-
out any authorization from Maddux. On this basis
the judge concluded that the allegation of a threat
by Maddux was not proved. The General Counsel
has excepted to this conclusion.
We find that the Respondent violated Section
8(a)(1) by Seaton's remark. There is no doubt that
Seaton made the statement attributed to Maddux.
As noted above Seaton was a supervisor and, while
he may not have intended to threaten the employ-
ees, his report that Maddux had made a clearly
hostile threat reasonably tends to interfere with
employee rights. Accordingly, we find these re-
marks violative of Section 8(a)(1) of the Act.
Contrary to our dissenting colleague, we find
that, with the exception of the violations found by
the judge, the Respondent did not unlawfully inter-
rogate or engage in unlawful surveillance of its em-
ployees.3
As set forth by the judge the Respondent devel-
oped a system by which its supervisors, through
questions and answers, communicated to employees
the Respondent's position on the ongoing organiz-
ing campaign. Absent a threat of reprisal or force
or promise of a benefit, such communications are
lawful pursuant to Section 8(c) of the Act. We
agree with the judge that neither the specific com-
munications nor the cumulative circumstances con-
tain such threats or promises. We further find that
the inquiries to employees regarding their reaction
to the Respondent's campaign literature in these
circumstances do not reasonably tend to restrain or
interfere with employees' Section 7 rights. See
Rossmore House, 269 NLRB 1176 (1984). Accord-
ingly we find that the questioning is noncoercive
and lawful.
We also agree with the judge that the Respond-
ent did not engage in unlawful surveillance of its
employees. An attempt to learn of employees'
union sentiments, as well as the formulation of an
opinion concerning individuals' union sentiments, is
not unlawful per se. 4 We agree with the judge that
the technique employed by the Respondent was
3 In adopting the judge's dismissals we do not rely on the cases cited
by the judge
4 See Tipton Electric Go, 242 NLRB 202 (1979)
272 NLRB No. 113
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not coercive Consequently despite the nature of
the information learned the Respondent has not
violated the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent A & E Stores Inc New York New
York its officers agents successors and assigns
shall take the action set forth in the Order as modi
fled
1 Add the following as paragraph 1(a) and relet
ter the subsequent paragraphs accordingly
(a) Threatening to discharge employees who
support Local 240 International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers
of America or any other labor organization
2 Substitute the attached notice for that of the
administrative law judge
MEMBER ZIMMERMAN dissenting in part
Unlike my colleagues I would find that the Re
spondent also violated Section 8(a)(1) of the Act
through unlawful surveillance and unlawful inter
rogations' The Respondent as found by the ad
ministrative law judge engaged in a program of
distnbuting literature explaining why employees
should not join the Union and calling employees in
for discussions about the literature on a regular
basis Thus Supervisor Seaton testified that he
spoke to everyone under his supervision on the
second and fifth floors and reported back to higher
management the information he acquired and any
change he thought he detected in the way individ
ual employees were going to vote Employees
were questioned on a daily basis frequently in the
supervisor s office The Respondent s supervisors
were encouraged to try to remember as much as
possible of their conversations with the employees
and it was even suggested that they write the con
versations down word for word if possible so
that upper management might ascertain how em
ployees were going to vote
My colleagues in agreement with the judge
conclude that the Respondent s approach to gather
ing information about its employees voting senti
ments did not constitute unlawful surveillance be
I In all other respects I join my colleagues in disposing of the issues in
this case
cause it was not coercive They likewise conclude
that the Respondent did not thereby engage in un
lawful interrogation even though the judge specifi
cally found that supervisors of the Respondent so
licited the opinions of employees regarding the lit
erature and with respect to at least one employee
then pressed her to answer why she thought em
ployees would vote for the union Given the over
all circumstances of this election campaign includ
ing the Respondent s unlawful discharge of a
prounion employee its threats of business closure
and its placement of individuals in the bargaining
unit to spy and report back to management about
union activities I cannot agree that the Respond
ent s tactic of having its supervisors attempt to
learn each individual s union sentiments was non
coercive 2
The Board is continually confronted with cases
involving unlawful discrimination against employ
ees where the prelude to the discrimination was the
employer s systematic attempt to investigate the
sympathies of its employees The Board has previ
ously found that there is a danger inherent in
such conduct a tendency toward interference with
the exercise by employees of their organizational
rights In Cannon Electric Co 151 NLRB 1465
(1965) in considering an employer s similar at
tempts to have supervisors learn of employee sym
pathies the Board noted that this tendency to
interfere with protected rights is not balanced to
any extent by legitimate employer interests for in
structions to supervisors to ascertain the names of
union adherents constitute an attempt to obtain the
kind of information which can be used by the em
ployer for no purpose other than to interfere with
the employees right to self organization 3 I adhere
to this view and find that the Respondent s tactic
of having its supervisors systematically and repeat
edly attempt to elicit employee union views imper
missibly interferes with and coerces employees in
the exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act
See generally my dissenting opinion in Rossmore House 269 NLRB
1176 (1984) My colleagues finding that the Respondent s commumca
tions with the employees were lawful because they contained neither
threats of reprisal nor promises of benefits Ignores the Respondent s other
unlawful conduct and the Impact such conduct has on employees That
no specific threat may have accompanied the supervisor s questioning of
employees therefore does not end the inquiry Into the coercive nature of
these interrogations
3 Cannon Electric Co supra at 1468 and cases cited therein Indeed
the evidence would indicate that this is precisely how the information
was used by the Respondent
A & E STORES 739
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representa
tives of their own choice
To act together for other mutual aid or pro
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT threaten to discharge employees
who support Local 240 International Brotherhood
of Teamsters Chauffeurs Warehousemen and
Helpers of America or any other labor organiza
tion
WE WILL NOT discharge employees for activities
in support of Local 240 International Brotherhood
of Teamsters Chauffeurs Warehousemen and
Helpers of America or any other labor organiza
tion
WE WILL NOT discharge witnesses because they
give testimony at hearings before the National
Labor Relations Board or because of the manner
in which they so testify
WE WILL NOT threaten employees that A & E
Stores Inc may go out of business if Local 240
International Brotherhood of Teamsters Chauf
feurs Warehousemen and Helpers of America or
any other labor organization became the bargain
ing representative of our employees
WE WILL NOT engage in surveillance of any ac
tivities in which employees are engaged which are
protected by Section 7 of the Act or say or do
anything which would convey the impression to
our employees that any such activities are subject
to surveillance
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer David Seaton and Curtis Parker
immediate and full reinstatement to their former
jobs or if those jobs no longer exist to substantial
ly equivalent positions without prejudice to their
seniority or any other rights or privileges previous
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge less any net interim earnings plus
interest
WE WILL expunge from our files any references
to the discharges of David Seaton and Curtis
Parker on 18 June 1982 and 18 August 1982 re
spectively and notify them in writing that this has
been done and that evidence of their unlawful dis
charge will not be used as a basis for future person
nel actions against them
A & E STORES INC
DECISION
STATEMENT OF THE CASE
HAROLD B LAWRENCE Administrative Law Judge
These proceedings were heard at New York New York
on February 28 and March 1 and 2 1983
As finally consolidated and amended the various corn
plaints allege four discriminatory discharges and unfair
labor practices in the nature of threats surveillance im
position of onerous working conditions and interroga
tons committed by A & E Stores Inc the Respondent
in violation of the National Labor Relations Act (the
Act)'
The Respondent s answer denies all allegations of
wrongdoing and statutory violation but concedes juns
diction of the National Labor Relations Board in this
case
The parties were afforded full opportunity to be heard
to call examine and cross examine witnesses and to in
troduce relevant evidence Postheanng briefs have been
filed on behalf of the General Counsel and on behalf of
the Respondent
On the entire record and based on my observation of
the demeanor of the witnesses and the manner in which
they gave their testimony and after consideration of the
briefs submitted I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent s answers having admitted allegations
pertaining thereto there is no issue as to the Board s ju
nsdiction and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that Local 1 of the American Li
' The charges in Cases 2 CA-19071-1 and 2 CA 19071-2 were filed
on August 20 1982 and the charge in Case 2-CA-19071-3 was filed on
August 25 1982 they were consolidated pursuant to an order consolidat
mg cases consolidated complaint and notice of hearing dated October 21
1982 Thereafter on October 29 1982 the complaint and notice of hear
mg was issued in Case 2-CA-19122 which was consolidated with the
other cases by order further consolidating cases in Cases 2-CA-19071-1
2-CA-19071-2 2-CA-19071-3 and 2-CA-19122 dated November 12
1982 An amended complaint and notice of hearing in Case 2-CA-19122
was issued on February 18 1983 A notice of intention to amend the
complaint in Cases 2-CA-19071-1 2-CA-19071-2 2-CA-19071-3 was
issued on February 23 1983 During the course of the hearing pursuant
to the notice of intention to amend as well as independently thereof the
General Counsel made several motions to amend the complaint which
were granted
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thographers Association (the Union) is a labor organiza
tion within the meaning of Section 2(5) of the Act
II THE UNFAIR LABOR PRACTICES ALLEGED
VIOLATIONS OTHER THAN DISCRIMINATORY
DISCHARGE
A Surveillance of Employees Activities by Respondent
The Union began its organizational campaign in De
cember 1981 or January 1982 A Stipulation for Certifi
cation Upon Consent Election was entered into on Feb
ruary 5 2 the election in a unit of warehouse employees
was scheduled for and held on March 18 and a hearing
on challenges and objections to the election was held on
April 29 and 30
It is alleged that during the campaign the Respondent
violated Section 8(a)(1) of the Act by engaging in sur
veillance during the period from February 20 through
March 1982 The instruments of this surveillance are al
leged to have been Robert Maddux Jose °sari° David
Seaton John Klein and David Zeitouni
Robert Maddux was and is Respondent s general three
tor of warehouse and distribution David Seaton was a
warehouse supervisor Osano was a supervisor in charge
of the loading area on the street level Klein and Zei
touni were employees who came into the Respondent s
employ under conditions that the General Counsel claims
were suspicious
A & E Stores Inc is a service company for a chain of
separately incorporated stores in the women s retail ap
parel business (apparel shoes bags and jewelry) It has
executive offices and a warehouse at 110 Fifth Avenue
New York City There is another warehouse in Brooklyn
at a subsidiary known as Palomar which is an importer
of women s apparel The services which A & E provides
for Palomar include payroll and personnel services The
Respondent introduced some evidence at the hearing to
the effect that there is a certain amount of transfer of
employees back and forth between A & E and Palomer
in connection with Rafael Palacio s case involving one
of the alleged discriminatory discharges
1 Klein and Zeitouni
It is claimed that employees named John Klein and
David Zeitouni attended union meetings and reported
back to management Rafael Palacio places them at sev
eral meetings held off the premises which were attended
by personnel from the second and fifth floors including
Curtis Parker and Virginia Johnson whose discharges
are alleged to have resulted from their support of the
Union Virginia Johnson also confirmed Klein s presence
at a meeting of all second floor personnel which was
held in the lunchroom at which union benefits were dis
cussed She also placed Seaton at several meetings Klein
and Zeitouni were men whom Maddux assigned to work
in the warehouse under David Seaton though Seaton
testified that he had no need for them
There were daily meetings of top management for the
purpose of receiving and assessing information about the
2 All dates are in 1982 except as otherwise indicated
union campaign and the attitude of the employees For
the most part the meetings involved Alan Ades the
president Albert Erani the vice president Maddux
Osano and Seaton and often the Respondent s labor
counsel was present There was a fairly steady parade of
certain personnel into Ades and Erani s offices with in
formation
Seaton testified that Maddux told him that Klein and
Zeitouni had been sent to attend a union meeting for the
specific purpose of reporting back on the meeting and
that he Maddux had sent two other employees (Peralta
and Metzger) to the same meeting for the same purpose
At one of the sessions in Ades office discrepancies be
tween the reports relating to which employees attended
the meeting were analyzed and discussed
Ades denied having asked Klein Zeitouni or any
other employee to attend union meetings or to report
back to him on union meetings or activities He insisted
that employees came in to see him and reported to him
on such matters without having been asked to do so He
played down the significance of the information which
he obtained in this manner but conceded that in sepa
rate meetings with Klein and Zeitoum he learned who
attended the meetings when they took place who spoke
up what the Union was telling the employees and how
the employees were responding to the Union The fact
that Palacio intended to vote for the Union was learned
in this manner He conceded receiving reports on at least
two meetings in sessions attended by company counsel
Ades professed to be unable to recall whether Klein and
Zeitouni also reported to him about conversations heard
around the shop or whether they reported which em
ployees seemed to be more in favor of the Union than
others He also professed not to know how Zeitouni
who is no longer with the Company came to be hired
According to Ades they listened to what the inform
ants told them but carefully refrained from asking any
questions having been so instructed by counsel I find
this incredible especially when Ades also was able to
testify We did have serious questions about the accura
cy of some of the information and whether some
people who might have been reporting were actually
doing it for reasons that were perhaps even union moti
vated Questioned about how these meetings came
about Ades testified that Klein and Zeitouni would
either ask to see me or Bob Maddux would come to
me and say such and such person would like to discuss
something with you about the Union He could not
recall in each instance how the meeting came about but
conceded that employees did not normally discuss union
affairs with the president of the Company When he was
pressed about the strangeness of such meetings he specu
lated that Maddux had suggested to employees with in
formation that they talk to Ades about it He claimed not
to know for sure
Erani s testimony was substantially to the same effect
No one was asked to report on union meetings or activi
ties the initiative was strictly on the part of the inform
ants According to Erani Klein and Zeitouni made only
one report on these matters and that occurred because
they asked Maddux to arrange the meeting so they could
A & E STORES 741
report on a meeting which they had attended the previ
ous evening Erani insisted that he did not ask them any
questions about the meeting it poured out of them unso
hefted
Though Erani at first denied having said anything at
all to Klein and Zeitoum he modified this to an assertion
that while he could not recall the conversation with
them he knew that legally he had the right to listen and
ask questions that were not inquisitive and he tried to
conduct himself in that manner He was unable to
comply with my request for an example of a noninquisi
tive question but suggested that such a question might
relate to inquiries to the informant as to whether they
were paraphrasing statements of other persons or repeat
ing them verbatim
Besides conceding that he asked noninquisitive ques
lions Erani conceded that the reason Klein and Zeitouni
came to see him was that during the campaign with the
advice of counsel Ades and Erani had let it be known
that anybody who wanted to talk to management would
find an open door This was not because management
was pursuing its right to keep informed regarding the
union campaign so that it could wage its own campaign
Erani insisted that they let their availability be known
because they were conducting a campaign and people
might have legitimate questions which they could
answer Ades and Erani would be at their service Eram
made no attempt to explain why since he had not asked
Maddux to have people with information about union ac
twines report to him they insisted on doing so or why
they came with information instead of questions Klein
and Zeitoum were not the only people who came to him
the two employees recruited by Maddux also reported to
Erani During the course of the campaign between five
and seven warehouse employees spoke to him and on
advice of counsel his door was always open and he
always listened He did not have to repeat what he heard
to Ades because somehow Ades always seemed to be
present too
It was Erani s guess that these inroads on the time
of the two top officers of the Company came about be
cause if Maddux informed him that somebody wanted to
seen him he would let Maddux know that that was all
right It was unclear why Erani had to speculate about
how the meetings came about when he was testifying at
the same time that they were not a departure from past
practice according to which his door was always open
to people with problems who could not get satisfaction
from Maddux
In the course of the hearing four informants were
identified by name Klein Zeitouni Peralta and
Metzger Zeitouni was stated to be no longer employed
Peralta and Metzger were not produced at the hearing
Of the four only Klein testified and it must be observed
that if anyone could have been reasonably expected to
volunteer information on his own initiative this was the
individual
Klein was the son of an architect who had designed
several of the A & E Stores Ades first testified that he
did not know how Klein came to be hired he later testi
fled that Klein s father requested that he be given a job
Whereas Ades and Erani estimated the business rela
tionship with Klein s father as having been of 6 or 7
years duration Klein thought it had been 10 to 12 years
His father is an independent contractor but his son esti
mated that percentagewise he spent maybe 10 percent of
his time on A & E business Klein has worked both at
the warehouse and in a store and has been employed on
and off by the Respondent for several years He is pres
ently the manager of one of the Respondent s stores in
New Jersey having previously worked as a shoe sales
man shoe department manager and assistant manager
positions in which according to the Respondent s per
sonnel director he would have had disciplinary authority
over personnel There had been a hiatus in his employ
ment at A & E but he returned in December 1981 He
worked at the warehouse loading merchandise on the
trucks from January to June 1982 doing work similar to
that being performed by Curtis Parker
Under these circumstances I find that Klein did not
have supervisory authority during the critical period
from February 20 through March but did have the
status of an agent of the Respondent He brought back
information for Eram and Ades pursuant to what was
admittedly an intensive program of maintaining contact
with employees for the purpose of ascertaining the
manner in which they intended to vote in the impending
election From this evidence which is discussed at
length below I infer that he did so with the express or
tacit understanding that they were seeking the mforma
tion which he sought to deliver He made the reports to
them because he knew they wanted the information His
relationship with them was something more than that of
an ordinary employee I conclude that Klein acted as an
agent of the Respondent in obtaining information regard
ing employees voting preferences and attitudes toward
the Union and transmitting such information to Ades
Erani and Maddux He testified that he attended a pree
lection union meeting at the Prince George Hotel be
cause somebody from the Union handed him a photo
copy of a notice of the meeting on the sidewalk where
they were loading the trucks He went there alone He
denied having made any list of those who attended the
meeting or notes about what went on in the meeting and
denied having been told by any officials of the Company
to go to the meeting or to attend union meetings in gen
eral or to report back to them about what went on at
any union meetings Nevertheless he made frequent re
ports to Ades and Erani and occasionally to Maddux
He testified I would approach either Bob [Maddux] or
David [Seaton] and tell them that I d like to speak to
you know " one of the bosses He informed them what
the union representative spoke about what the sales
pitch for the Union was who was there and who spoke
up He testified that he advised them of these matters
without having been requested to do so because they
were running a campaign and he felt that this was pert'
nent information He supported the company in the cam
paign He also advised Ades and Erani about what
people said to him what was going on what employees
indicated to me about the company He could not re
member specifically whom he mentioned except that he
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recalled advising Seaton that Rafael Palacio was prob
ably prounion and advising either Seaton or Maddux that
Curtis Parker and Virginia Johnson were prounion
According to Klein Ades and Eram never responded
to him They just sat back and did not speak or question
him The conversations according to Klein were very
short so there was no response by Eram or Ades what
soever Klein thus presents a picture of walking in
giving a report and neither requiring nor receiving any
response—strictly a one way street Klein testified that in
similar conversations which he had with Seaton and
Maddux they did not say anything either These were
quick conferences in which the parties usually remained
standing Klein was not even sure whether anybody ever
bothered to thank him for his trouble
There is no evidence at all to indicate supervisory
status at any time on the part of Zeitouni but like Klein
he diligently relayed to Ades and Erani information re
gardmg employees voting preferences and attitudes
toward the Union His period of employment coincides
with the union campaign For the same reasons that ex
isted in Klein s case (other than the special relationship)
I find that he sought information and reported back as
the Respondent s agent
It also should not be overlooked that even if Klein and
Zeitouni originally volunteered the information on their
own initiative possibly merely for the purpose of curry
mg favor with the Respondent the eagerness with which
Ades and Erani accepted it and encouraged Klein Zei
Winn and other employees to obtain and transmit it sug
gests their ratification of the practice whereby as a prac
tical matter these employees became their agents for
that purpose
The contradictions in the testimony of Ades and Erani
and their evasiveness combined with their studied adher
ence to the letter of the law as expounded to them by
their attorney considerably undermine the credibility of
their denials of surveillance Their assiduously advertised
open door policy and encouragement of reports com
bined with the tenure at the warehouse of a reliable in
formant like Klein who either was told at the outset
what was needed or did not have to be told and which
began with the union organizational campaign and ended
shortly thereafter convince me that an active process of
surveillance was conducted by requests to employees like
Klein Zeitouni Peralta and Metzger (at least) that they
report union activity
2 Maddux
Palacio testified that on several occasions Maddux
standing in the doorway of one of the Respondent s
stores saw him talking to union people before the start
of the workday and at lunchtime It was Palacio s im
pression that prior to January 1982 he did not see
Maddux standing there so frequently He believed
Maddux was there more often after the start of the union
campaign
Virginia Johnson also testified that Maddux observed
her conversations with the union representatives in front
of the building on two or three occasions when she got
off from work He happened to come out at the time
that she was talking to them and looked over and saw
them Unlike Palacio however she readily conceded
that she had seen Maddux standing in the lobby at the
hour she finished work on numerous occasions prior to
the beginning of the union campaign Her testimony
leaves the clear implication that his presence did not
appear to her to be deliberate
The General Counsel and the Respondent in their
posthearing briefs debate the right of union representa
tives and employees to limit the employer s observation
of their activities when they conduct them on the em
ployer s premises Unquestionably in such circumstances
they can anticipate observation and have no cause to
complain 3 This is especially so when the supposed sur
veillance turns out to be no more than brief inspection
by [the employer] of open union activity in front of its
property 4 However that is not the real issue The issue
is whether such observation by the employer is designed
to coerce employees in the exercise of their rights 5
If that is the case and sudden frequency of observa
tion would certainly support an inference that it was in
tentional then the mere fact that it occurred in a public
place would not excuse it 6 Johnson s testimony pre
eludes a finding that Maddux s observations increased
after the start of the union campaign There is also lack
ing any evidence of effort by the Respondent to ensure
that employees were aware that they were under obser
vation without which awareness the observation could
have no coercive effect 7
Deliberateness and coercion are not proved by a pre
ponderance of the evidence I accordingly find that Mad
dux s appearances at the entrance to the Respondent s
premises did not constitute surveillance
3 Supervisors reports
David Seaton Jose Osario and Robert Maddux clear
ly had supervisory status Robert Maddux is the general
director of warehouse and distribution responsible for all
A & E merchandise at 110 Fifth Avenue His testimony
in connection with Palacio makes it clear that his respon
sibility extended to merchandise at other locations as
well His duties included hiring people to fill positions as
needed keeping his supervisors informed about events
such as seasonal changes or buildup of work and in gen
eral instructing and following up on all aspects of the
movement of goods through A & E at 110 Fifth Avenue
Jose Osario reports to him His disciplinary authority is
amply established by the evidence adduced during the
course of the hearing
David Seaton was hired on April 27 1981 as a ware
house supervisor His duties consisted of supervising the
second floor warehouse area which received merchan
2 Porta Systems Corp 238 NLRB 192 (1978) affd 625 F 2d 399 (2d
Cif 1980)
Pa/by Lingerie 252 NLRB 176 (1980)
5 Badische Corp 254 NLRB 1195 (1981)
6 Scotts Wood Products 242 NLRB 1193 1196 (1979)
7 Compare Zero Corp 262 NLRB 495 (1982) enfd mem 705 F 2d 439
(1st Cir 1983) (casually observing an employee s car outside union meet
mg may not be surveillance but there was nothing coincidental about
him telling [the employee] that he saw her car By so doing he mistaken
ly conveyed the impression that Corbin s union activities were under sur
veillance and this violated Section 8(a)(1)
A & E STORES 743
dise and processes it for distribution to the various stores
and the fifth floor transfer area
Seaton s status is also shown by the differential be
tween his salary and that of the employees who worked
under his supervision At the time he left he had the title
of assistant warehouse manager and was earning a
weekly salary of $375 and supervising employees who
were earning $2 35 to $5 per hour He also according to
their testimony critiqued or commented on the work of
Rafael Palacio and Curtis Parker
Jose Osano had charge of the loading area a street
level loading area connected by elevator to the second
floor of the warehouse and disciplinary authority over
the men who loaded the trucks Maddux testified that he
fired Parker for conduct which if it went unpunished
would have undermined that authority At the outset of
his testimony Jose Osano identified himself as supervisor
of the warehouse and testified that he normally worked
on the first floor and expressly identified himself as a su
pervisor overseeing employees loading and unloading
trucks and giving them orders and instructions During
the testimony of Robert Maddux counsel for the Re
spondent expressly referred to Osano as a supervisor 8
Virginia Johnson testified that during the period from
January through March 18 she was called into Maddux s
office on a daily basis for discussions about the Union
This was part of a program by the Respondent in which
Osano regularly distributed literature explaining why
employees should not join the Union and called the em
ployees in for discussions about the literature Seaton tes
tified that the objective was to see if they could deter
mine exactly how the employees were going to vote In
compliance with instructions from management and their
counsel Seaton spoke to everyone under his supervision
on the second and fifth floors and reported back to Ades
whatever information he acquired and any change which
he thought he detected in the way certain employees
were going to vote He was questioned by Ades and
Erani on all these matters in daily meetings between the
supervisors and top management in Ades office some
times only with Ades Eram and Seaton and sometimes
also with Maddux and °sari° Sometimes they were
joined by the Respondent s attorney Before the cam
paign Seaton had never been inside Ades office
After the start of the union campaign Ades called
Seaton in to find out what the employees feelings were
about the Union and whether he had any knowledge
about union activity The purpose of the meetings was to
discuss union activity as it pertained to the various em
ployees and to plot the Company s campaign strategy
The supervisors were encouraged to try to remember as
much as possible of their conversations with the employ
ees and It was even suggested that they write the con
versations down word for word if possible so that
Ades and Erarn could ascertain how the employees were
going to vote According to Seaton he was frequently
pressed by them for information as to how he thought
Rafael Palacio and Virginia Johnson were going to vote
and for his opinion as to who was responsible for the
Union coming in Prior to March 18 Seaton informed
Maddux and then Erani Ades and their attorney that
Palacio had told him that he was going to vote in favor
of the Union He was asked if he thought Virginia John
son would be a problem and he expressed his belief that
she was in favor of the Union His opinion was backed
up by Maddux and Osario who reported that they had
heard the same thing The consensus was that she was a
strong union supporter
A consensus also developed that Curtis Parker was the
ringleader and responsible for the Union being there
When Seaton expressed the opinion that Parker was not
the person responsible he was pressed for his opinion as
to who was Seaton quoted Erani as saying during one
of the meetings that he would like to fire Parker and
quoted Ades as pointing out that Parker was an excellent
worker
Seaton accused Maddux of spying on him as well as
selling that Maddux had asked an employee why Seaton
was walking to the subway with certain other employ
ees
Seaton s testimony respecting this alleged surveillance
did not go unchallenged Seaton s motives for his testi
mony were impugned by Alan Ades who testified that
Seaton threatened that Ades would be sorry for firing
him
An employer s solicitation of information from em
ployees may constitute surveillance 9 but I do not believe
that the Respondent s conferences with its supervisors is
such a case
The first thing to be noted about Seaton s testimony is
that it does not clearly establish whether Ades and Erani
were seeking information about how employees were ex
pected to vote for purposes of estimating the ultimate
tally of ballots and assessing their current strength during
the campaign or whether they were closely monitoring
the activities of particular employees The latter conclu
sion cannot be drawn simply from occasional inquiries
about particular employees without something more in
the nature of proof of a followup or plans to utilize the
information to coerce the particular employee In the
case of Palacio for example the leap from inquiry to his
ultimate transfer to Brooklyn is too great to permit the
distance to be bridged automatically by an inference of
unlawful motive Moreover Seaton s testimony must be
considered in the light of the great hostility which exist
ed between him and the top management at the time of
the hearing
That hostility also makes more important Seaton s tes
timony that he was instructed by company counsel that
it was unlawful to make threats to employees to influ
ence their vote in the election to engage in surveillance
of employees and to ask them directly how they were
going to vote or what their feelings were about the
Union—and that he adhered to the instructions of the at
torney and refrained from committing any of the acts
listed by the attorney Maddux testified to the same
effect with reference to his own activities
In spite of Seaton s testimony that Maddux had confid
ed to him that he had sent employees (Peralta and
8 Tr 522 9 Scott s Wood Products 242 NLRB 1193 1197 (1979)
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metzger) to observe union meetings and report back
Maddux denied that he had ever asked any employees to
go to union meetings or report to him on union meetings
or other activities He denied ever asking employees how
they were going to vote or how they felt about the
Union He pointed out that he had been instructed not to
commit such acts Maddux readily conceded that he had
attended frequent meetings with other management
people during the period from January to March 1982 at
which the Respondent s campaign against the Union was
discussed He also conceded that they were interested in
finding out whether the employees were for or against
the Union but he insisted that they wanted to do it with
out asking the employees directly Employees would be
invited to come in and sit down and talk and any ques
nons which they had would be answered in the hope
that people who were leaning toward the Union could
be dissuaded
The precise effect of their activities in terms of culpa
bility under the Act tends to be unclear because in their
reports to Ades and Erani Seaton and Maddux admitted
ly made statements relaying information of the type nor
mally obtained by unlawful surveillance Their reports
included information respecting the manner in which
particular employees were expected to vote and the
extent to which particular employees were involved in
activities in support of the Union " That is not howev
er proof that that information actually was obtained by
means of unlawful surveillance or that unlawful surveil
lance had been committed The issue is whether the Re
spondent followed a policy of deliberately placing em
ployees activities under observation in a manner that
could be deemed coercive Noncoercive information
gathering by supervisors is not unlawful 11 Information
gathering in order to supervise effectively is legal even
if it involves tentative tabulations of expected votes by
employees names 12 Soliciting information in a non
coercive manner especially if only a single incident is in
volved about what transpired at a union meeting or
about the size of the employee turnout for the meeting is
° It is to be noted that Seaton s investigation and reports do not relate
to the general voting blocks but the specific employee s votes which
constitutes concerted protected activity Having supervisors or employ
ees report on other employees union activities constitutes surveillance
The activity is strikingly similar to that described in B L K Steel Inc
245 NLRB 1347 1352 (1979)
(b) Hermann s surveillance of Campbell s union activity and the
union activity of other employees through Pam Martin I find with
out ment Respondent s contention that Martin s conduct was volun
tary and therefore not attributable to Respondent The record is
clear that Hermann encouraged Martin to call s him and inform him
of the employees union activity He would ask her What s happen
mg? or What s going on ? He interrogated her as to how she
thought the election would go with particular reference to Camp
bell a swing voter He was pleased with her surveillance of union
activity and told her with respect to persuading Campbell to vote
against the Union to keep working on him or at a minimum that
she had her work cut out for her
See also Academy of Art College 241 NLRB 454 462 (1979) affd 620
F 2d 720 (9th Or 1980) and Belcher Towing Co 238 NLRB 446 (1978)
modified 614 F 2d 88 (5th Or 1980) (supervisory employees told to make
reports to management)
1 Didde Glaser Inc 233 NLRB 765 (1977) Tipton Electric Co 242
NLRB 202 (1979) affd 621 F 2d 890 (8th Cir 1980)
i2 Didde Glaser Inc 233 NLRB 765 769 fn 8 (1977)
not interrogation in violation of the Act" and taking
steps to get it in a noncoercive manner would not consti
tute surveillance
Seaton s testimony establishes that the instructions
given to the supervisors by Ades Erani and company
counsel precluded use of means to get information which
would have constituted unlawful surveillance Seaton ex
pressly testified that he carefully adhered to those in
structions In view of his lack of sympathy for the Re
spondent s cause I am convinced that he refrained from
surveillance if he says he did Maddux similarly testified
that he obeyed instructions of company counsel and an
inference that he violated those instructions may not be
drawn simply and solely from his lack of sympathy for
the union cause There is no preponderance of evidence
establishing that he committed unlawful interrogation or
surveillance in his meetings with employees On the con
trary Virginia Johnson s testimony would appear to ex
onerate him completely
Accordingly I find that unlawful surveillance by
means of interviews with employees has not been estab
lished
B Interrogation of Employees by Maddux and Seaton
During the Period February 20-March 1982
The series of conferences which Maddux and Seaton
held with the employees under their supervision during
the course of the campaign gave rise not only to the al
legations of surveillance but to an allegation that during
the period from February 20 through March they unlaw
fully interrogated employees about their union activities
and sympathies The procedure which they followed
during the conferences was described by Virginia John
son who worked in the warehouse area on the second
floor She testified that during this period she had daily
conversations with either Seaton or Maddux at their in
vitation in which they showed her literature relating to
the union campaign and the rebuttal by the Respondent
and asked her if she had any questions about the contents
of this material At the hearing she produced several
pieces of such literature and testified that there had been
many others which she had not retained She would be
asked to read it carefully and express her opinion of it
She testified at first that these sessions were on a daily
basis but later testified that she was called into Seaton s
office two or three times a week Seaton and Maddux
followed the same procedure with a number of other em
ployees
Seaton testified that he Maddux and Osano were
each assigned to cover specific groups of employees
Their function was to distribute literature explaining why
the employees should not join the Union and discuss it
with the employees Seaton testified that on some days
he just distributed the literature on other days he also
spoke to the employees Curtis Parker Virginia Johnson
and Rafael Palacio among others were spoken to on al
ternate occasions by(Seaton Maddux and Osano
3 Arvin Industries 226 NLRB 925 (1976) Times Publishing Co 231
NLRB 207 212 (1977) modified 576 F 2d 1107 (5th Cir 1978) Both
cases stress the nature of the conversation as a single incident standing
alone in the total context of circumstances
A & E STORES 745
Virginia Johnson testified that immediately prior to the
election Maddux asked her how she thought people on
the second floor were going to vote and pressed her for
an estimate when she declined to express an opinion
When she then indicated her opinion that the people on
the second floor, would vote for the Union he asked her
if she really thought so and why they were going to vote
for the Union She explained that the Union was felt to
be offering more benefits and he responded with a dis
sertation on the benefits offered by the Respondent and
the various ways in which the Respondent had attempt
ed to assist employees such as by making loans
Nothing in Johnson s testimony reveals any improper
interrogation on Maddux s part The requisite element of
coercion is altogether lacking Johnson testified that she
felt comfortable during the meetings Though she assert
ed that she felt harassed her testimony makes it clear
that she used that term in the sense of being annoyed
and that the annoyance resulted from the receipt of let
ters on an almost daily basis presenting the Respond
ent s point of view In response to a question from me
she testified that her reference to harassment was not
to the fact that Maddux approached her but to the con
stant receipt of the letters She was annoyed at mem
ing the letters and that annoyance was the general reac
tion among the employees She expressly stated in re
sponse to a question that she did not feel intimidated
However I take this into consideration as only one
factor among many inasmuch as the measure of coer
civeness is whether conduct tends to interfere with the
free exercise of employee rights rather than whether em
ployees were actually intimidated 14
Maddux flatly denied that he had ever asked employ
ees how they were going to vote in the election or quer
ied them about how they thought other employees
would vote or how they felt about the Union He also
denied having had daily conversations with Virginia
Johnson in his office His denials gain considerable sup
port from Seaton s testimony that he Seaton adhered to
the instruction given to him at the beginning of the cam
paign not to ask any questions of employees concerning
their feelings about the Union or how they would vote
He testified that he confined himself to asking them
whether they had questions about the literature he gave
them and if a conversation developed on that basis he
would pursue it but never asked their opinions about the
Union
I find it necessary to discredit Johnson s testimony and
credit that of Seaton and Maddux Johnson s testimony
was characterized by repetition of set pieces of testimo
ny often unresponsive to the actual questions put to her
Her testimony appeared to be rehearsed rather than free
and extemporaneous When asked what she told Seaton
after reading the literature she responded that she had
read the literature when asked if Maddux had ever
called her into his office prior to the campaign to discuss
nonunion matters she responded that he asked her for
her opinion on how the people on the second floor were
going to vote she repeated that same answer when asked
14 Gossen Co 254 NLRB 339 347 (1981) and cases therein cited
McIndustries Inc 224 NLRB 1298 (1976)
what she had replied to Maddux s comment that the
Company had lent money to the employees In certain
respects her testimony was self contradictory It also
contradicted statements made by her in an affidavit fur
nished to a Board investigator in which she stated that
prior to March 18 no supervisor or management person
except Seaton had ever said anything to her about the
Union I do not credit her explanation for this gross dis
crepancy which was to the effect that when she made
the affidavit she felt uncomfortable and rushed by the in
vestigator that she had recalled the other matters to
which she testified after she got home but did not appre
elate their importance to the case until it was explained
by the General Counsel She could not explain satisfacto
rily why she felt rushed I note further that in her testi
mony she remembered her conversations on a daily basis
with Seaton but could not recall the conversations
which she supposedly had had with Maddux
No such problems exist with respect to the testimony
of Seaton and Maddux on this issue and Seaton s reli
ability to the testimony of Seaton and Maddux especial
ly in view of Seaton s unfriendliness to the Respondent I
find that Maddux and Seaton did not put questions to
Johnson which sought directly to elicit information as to
how employees would vote but they did solicit the opm
ions of the employees regarding the literature for and
against the Union and Maddux unquestionably pressed
Johnson for her opinion as to why she thought they
would vote for the Union In Ohmtte Mfg Co 217
NLRB 435 (1975) it was held that inquiries of an em
ployee as to how many people attended union meetings
was not coercive under the particular circumstances in
asmuch as they did not constitute the type of situation
in which inquiries would reasonably tend to cause fear of
reprisal resulting from any revelation of the identities of
prounion employees The questions asked were quite
general in nature rather than the kind which appear to
be seeking information on which to base taking action
against individual employees (217 NLRB at 439)
Were they attempting to accomplish by indirection
what they knew to be outlawed if done directly ? 15 The
impact on Johnson was not coercive and while that is
not controlling as noted above it is indicative that the
kind of interrogation conducted by Maddux Seaton and
Osario did not tend to have a coercive impact because it
was not designed to make apparent the manner in which
individual employees were expected to vote and did not
manifest the displeasure of the Employer at support for
the Union 16 Factors such as employer hostility and the
calling of employees into supervisors offices for confer
ences may under some circumstances give rise to an in
ference of coercion 17 but in the present case such fac
In TRW United Greenfield Division 245 NLRB 1135 1139 (1979)
enfd 637 F 2d 410 (5th Cir 1981) cited by the General Counsel in the
postheanng brief It was held that a supervisor who called an employee
Into her office a few days before an election and asked him how he felt
about the union committed unlawful interrogation However in that case
the supervisor s denial was expressly discredited
" PPG Industries 251 NLRB 1146 (1980)
17 McIndustries Inc 224 NLRB 1298 (1976)
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors in and of themselves afford no basis for such an in
ference 18
Accordingly I find that the allegations of unlawful in
terrogation have not been proved
C Imposition of Rule Prohibiting Union Talk and
Activity
It is the contention of the General Counsel that during
the period from February 20 through March Robert
Maddux imposed a rule prohibiting employees from talk
ing about the Union or engaging in protected concerted
activity on the premises of the Respondent at any time
If all that Maddux had done was to prohibit discussion of
union matters and the union campaign on working time
in such a manner as to make it clear that they were free
to do so during mealtimes and break periods he would
have been within his rights and there would have been
no violation of the Act 18 It is contended however that
a more far reaching restriction was imposed Parker testi
fled that on March 18 1982 shortly before the election
while he and Virginia Johnson were discussing union
problems Maddux gave him strict and emphatic instruc
tions to the effect that he was not to talk about or dis
cuss the Union on the job Differing versions of the inci
dent have been testified to by Parker and Johnson on
one hand and Maddux on the other I accept Maddux s
version of the incident unqualifiedly
Parker testified initially that he and Virginia Johnson
were in the lunchroom during their lunch hour discuss
ing union problems and then all of a sudden Mr
Maddux came down and he called me on the outside
According to Parker Maddux declared that he did not
like the Union and was against the Union and that he
knew that Parker and Johnson were talking about the
Union and that he did not want Parker talking or dis
cussing the Union any more because we don t want this
on the job
Virginia Johnson was not a party to the alleged tirade
so she could not corroborate Parker s version Her testi
mony is nevertheless sufficient to call into question the
8 In Graham Architectural Products 259 NLRB 1174 (1982) modified
697 F 2d 534 (3d Cir 1983) inquiries of employees as to how they felt
about the union were held to violate Sec 8(a)(1) the Board noting that
the coercive import of such question is not diminished by the employee s
open union support the absence of attendant threats or the fact that in
terrogation was conducted in a friendly fashion However in this case
there had first been an interrogation of another employee at her supervi
sor s desk in which she was asked point blank whether she was for the
union The subsequent inquiries of other employees therefore could only
be construed to have the same meaning Conversations which are merely
discussions of the advantages and disadvantages of unionism do not con
stitute interrogation Howard Aero Inc 119 NLRB 1531 1533 (1958) See
also Blue Flash Express 109 NLRB 591 593 (1954)
The General Counsel relied on a statement in Seneca Foods Corp 244
NLRB 558 563 (1979) noting the contention of the General Counsel in
that case that the employer s inquiries had a tendency to interfere with
the free exercise of employee rights and were therefore unlawful How
ever the finding of illegality by the administrative law Judge actually
rested not on that contention but on the observation that a statement to
employees which is relatively inconsequential standing alone may be
construed as coercive in view of an employer s other interrogations
during a union s organizational drive That decision relied on New
Alaska Development Corp 441 F 2d 491 (7th Or 1971) holding of such
conduct on the other employees However both cases Involve direct in
(pines as to how the employees stood as to the union
" T R W Bearings 257 NLRB 442 (1981)
veracity of Parker s version She testified that she and
Parker were sitting on a table having lunch Her testimo
ny is not clear whether this was inside or outside the
lunchroom Maddux came up to them and said I know
what you re talking about you know II warned you
about talking about the Union while you re working on
the job you know while you re on the job Johnson
further testified that Maddux warned Parker that if he
caught him talking about the Union again he would be
fired Maddux then took Parker aside over to a corner
where they argued and she saw Maddux waving his
hands like he was telling Mr Parker off I didn t hear
what they were saying Johnson testified that they were
arguing but she could not make out what they were
saying
The testimony of Parker and Johnson is uncertain in
its location of the event itself and Johnson simultaneous
ly admitted not being party to most of the conversation
and contended that enough was said in her presence to
establish a violation of the Act Some of it is hearsay in
asmuch as she testified that on the way home she asked
Parker what had happened and he said that Maddux was
getting after him because he was talking about the Union
on the job and she said that Maddux threatened him and
told him that if he continued to talk about the Union on
he job he would not have a job The limitation to work
ing time is therefore conceded in the testimony adduced
by the General Counsel
Maddux flatly demed ever telling Parker to stop talk
ing about the Union either in the lunchroom or just out
side it He insisted that on occasions during the period
from January through March he called Parker to task for
talking about the Union when he should have been
working He cited a specific instance when Parker was
not at his work station at a time when he was supposed
to be there Parker would be observed having meetings
with groups of people about union business when he was
supposed to be at his work station He was warned to
discontinue that practice
On March 5 1982 Parker was given a warning notice
by Seaton for having absented himself from the building
for about 2 hours without contacting his supervisor He
was counseled This was not the first time he was coun
seled regarding such absences
Maddux testified that he expressly told Parker that he
could carry on such activity during lunchtime or at cer
tam other times which he specified but not when he was
supposed to be at his work station I see no reason to
doubt Maddux s testimony He testified in a credible
manner
Other testimony by Maddux and others establishes
that the Respondent s legal counsel was advising supervi
sory personnel on a fairly close basis with respect to
what conduct was and was not permissible during the
campaign The testimony of both Johnson and Parker to
the extent that it is credible contains concessions that
Maddux s concern was the conduct of union activity at
times when Parker was supposed to be working
On the whole record therefore I consider the evi
dence insufficient to support an allegation that Maddux
improperly forbade umon discussion or activity
A & E STORES 747
D Threat of Business Closure
It is alleged that on March 15 Maddux threatened
that the business would close if the Union won the elec
non Rafael Palacio Curtis Parker and Virginia Johnson
all testified that Maddux made such statements to them
individually out of the hearing of any other persons Pa
lacio s testimony was that Maddux told him of his expen
ence in dealing with several unions that none was
needed at A & E Stores Inc because the Company had
done many things for the employees which Palacio was
not familiar with since he was a relatively new employ
ee and that other companies which had been unionized
had gone out of business because of excessive union de
mands According to Parker on March 18 Maddux
called him into his office and told him they did not need
a union did not want a union and that if we get the
Union here there will be a lot of people laid off and most
likely close the Company down Johnson said he told
her (in his office) that a lot of his friends had businesses
and that they went out of business because of the Union
Maddux denied absolutely the making of such state
ments
In assessing the credibility of the various accounts it
must be observed that all four of the witnesses involved
gave testimony of dubious credibility at some point in
the proceedings In this particular instance I credit the
testimony of Parker Palacio and Johnson who gave
consistent testimony respecting statements by Maddux
which could plausibly have been made by him under the
circumstances of the campaign
Accordingly I find that the allegation that Maddux
threatened closure of the business in the event the Union
became the bargaining representative of the employees
had been proved by a preponderance of the evidence
E Threat of Discharge by Maddux
It is alleged that on April 30 1982 Maddux acting
through Seaton at a tavern near the Respondent s facto
ry threatened discharge of employees who supported
the Union I have already credited testimony of Palacio
Parker and Johnson that prior to March 18 1982
Maddux had threatened that a lot of people would be
discharged and the Company would most likely close
down if the Union came in However the only support
for the instant allegation comes from David Seaton who
quotes Maddux as having made a general threat to fire
everybody on the second floor in order to solve this
problem one way or the other Seaton repeated Mad
dux s remark to other employees and specifically to
Parker Johnson and Palacio at i a meeting held in a pub
on the evening of April 30 the day on which he testified
respecting the Respondent s behavior in an earlier elec
tion campaign
According to Seaton it is a statement that Maddux had
made to him on more than one occasion Nevertheless it
remains a remark made by one supervisor to another
According to Seaton because of Maddux s remark he
warned the employees that they should be extremely
careful
Seaton testified that he gave this warning to the em
ployees entirely on his own volition Notwithstanding
Seaton s testimony that he had voluntarily of his own
volition quoted Maddux s statement to a group of em
ployees later in his testimony he amended his quotation
of Maddux s statement to read as follows I am going to
fire everyone on the second floor and you can tell them
that too When asked to repeat it he changed it again
this time quoting Maddux as follows I am going to fire
everyone on the second floor and you can tell them that
if you want to The amendments of the quotation were
developed on redirect examination by the counsel for the
General Counsel and I find them untrustworthy
However in this instance Maddux s denial is not so
emphatic Maddux was in the hearing room during Sea
ton s testimony He was asked if he recalled making the
statements attributed to him In this instance I find his
testimony evasive He testified that he did not recollect
making the statement I would answer no to that I do
not recollect When asked if it were possible that he
might have done so he admitted that there was a possi
Nifty that he might have said it to David Seaton and he
attributed the remark to his frustration in looking for
Parker whom he could not find He insisted however
that he had not told Seaton that Seaton could tell the
employees on the second floor that Maddux wanted to
fire them
It is clear to me that whether or not Maddux actually
told Seaton that he would fire everybody on the second
floor he never authorized Seaton to convey any such
remark to the employees as a threat or otherwise This
was entirely Seaton s doing as he himself testified I
therefore find that the allegation that employees were
threatened by Maddux with discharge on April 30 is not
proved
F Threats of Unspecified Reprisals
It is alleged that the Respondent through Robert
Maddux threatened employees with unspecified reprisals
because of their union activities I find no support for
this allegation in the record and accordingly it is dis
missed
III THE UNFAIR LABOR PRACTICES ALLEGED
DISCRIMINATORY DISCHARGES
A David Seaton
Alternative allegations are pleaded with respect to
David Seaton It is alleged that on April 30 1982 Seaton
gave testimony before the Board at a hearing on chal
lenges and objections to an election conducted on March
18 1982 which testimony was adverse to the Respond
ent It is alternatively pleaded that he was an employee
of the Respondent who was discharged because of his
adverse testimony and in order to discourage employees
from engaging in protected concerted activities and that
his discharge was therefore a violation of Section 8(a)(3)
and (1) of the Act and that he was a supervisor whose
discharge thereby violated Section 8(a)(4) and (1) of the
Act
Seaton claims to have been discharged on June 18
1982 because of adverse testimony which he gave on
Ap il 30 in an NLRB hearing on ojections to an election
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted on March 3 1982 The Respondent contends
that there was not only no ill feeling toward him but
that it was the Respondent s intention to promote
Seaton and that Seaton himself brought about his dis
charge Seaton s termination was a direct result of his
refusal to honor management s request that he assume a
position as a management trainee so that he could be
placed as a store manager In so doing Seaton revealed
strong negative sentiments about the Company and its
managerial personnel He also disclosed that he would be
resigning at an unspecified time in the near future 20
The Respondent notes that as a statutory supervisor
Seaton owed the Respondent an elevated duty of loyalty
The analysts of the facts which follows will make it
clear that the Respondent s contentions are untenable
and incredible and I reject them completely
Seaton had been hired as a warehouse supervisor on
April 27 1981 His competency as an employee and the
satisfactory manner in which he performed his duties is
beyond question During the course of his employment
he received several raises though the Company had no
system of formal review of supervisors and employees
performance satisfaction with his performance had been
expressed orally on a number of occasions by Erani and
Maddux and Ades and Erani both testified that they
wanted to promote him to a position as a store manager
in conformity with his own expressed wishes Not only
had the Respondent never contended at any point in
these proceedings that Seaton s work performance was
deficient but on the contrary It was asserted that Seaton
had been dissuaded from quitting in January and in late
March or early April
However management s satisfaction with Seaton s im
peccable work performance was subject to some reserva
lions First Seaton did not hesitate to express his objec
lions to some of management s practices during the
course of the union campaign which began in January
He characterized some of those practices as spying on
employees and told Maddux he did not like being asked
to do it He expressed his objection to the assignment of
three employees to his area at a time when the workload
did not warrant the additional personnel especially as it
seemed that they were hired from the outside to pack
the unit instead of being drawn from downstairs person
nel as needed Seaton expressed his disagreement with
management s approach to Maddux Erani and Ades
Second Seaton refused to play ball with management
when he received a subpoena from Local 240 to testify
at the hearing on objections to an election which had
been held in January 1982 Maddux asked him what his
intentions were Seaton told him he would tell the truth
Maddux and Osario suggested that he not make waves
and not put pressure on himself Seaton suggests in his
testimony that on April 30 Erani may even have attempt
ed to keep him from testifying by tricking him into re
turning to the office to await the call to testify Howev
er he did testify and made waves big enough to rock the
Respondent s boat The transcript of Seaton s testimony
and the decision rendered by the Regional Director
make it clear that Seaton s testimony was the major
20 Respondent s posthearing brief at 33
factor in producing a decision adverse to the Respond
ent Seaton testified that his unit was packed with three
unnecessary employees that when he protested to top
management he was told to hide them until after the
election that he was directed to punch them in and out
on the timeclock the week before they actually started
with the Company so as to qualify them to vote Dis
crediting evidence contrary to that of Seaton the Re
gional Director found that the employees had been
placed on the payroll during the period for determining
voter eligibility so that they could vote in the March
election despite the fact that there was insufficient work
for them to do 21 Challenges to the ballots which they
cast were sustained
It is apparent that not only did Seaton give the Re
spondent s top management cause for resentment by the
nature of his testimony but his complaints about the
three employees to Ades Erain and Maddux became the
focal point of the friction which was building between
them and him They were packing the unit and playing
for time He was not making it easy for them to do so
and ultimately exposed their machinations A more direct
route to deep unpopularity with the management can
hardly be imagined Seaton testified that from and after
April 30 he was shunned by them Conversations with
Maddux frequent in the past became a rarity
Ades and Exam insisted that their attitude toward
Seaton was not affected when a store manager s position
loomed on the horizon they enthusiastically offered it to
him in recognition of his high quality performance Any
change in attitude was strictly on Seaton s part Appar
ently having testified to their enthusiam for Seaton
Ades and Erani recognized that they could not inconsist
ently assert that they fired Seaton for some simple dere
liction of duty like refusing a promotion to store manag
er They have therefore advanced the novel proposition
that Seaton s unhappiness was also a factor which forced
them to fire him As they both testified to this with great
seriousness I shall analyze their story with the same ear
nestness
I will begin with Seaton s version which is basically
substantiated by the testimony of Ades and Eram On
June 16 which was a Wednesday Seaton was called into
a meeting with Erani and Albert Ades who was a buyer
for certain merchandise that was processed on the
second floor Erani told Seaton that he wanted to put
him in a management training program so that he could
become one of the new managers The store he had in
mind was one at a new location at 258 Broadway New
York City There was a great urgency about this train
ing would begin the following Monday and would last
for 2 months Training would be in Store No 5 located
at 42d Street and Madison Avenue
Seaton found this unsettling He had not even accept
ed the position yet and was already being told that it was
imperative that he quickly move to one of the stores to
begin the 2 month training program Seaton questioned
whether the new store would open that soon and Erani
2i attach no significance to Seaton s testimony on cross examination
that he had in fact been able to find work for these superfluous employ
ees to perform
A & E STORES 749
stated that everything appeared to be on schedule Erani
left Albert Ades asked Seaton if he had any questions
Seaton questioned him about the hours and the type of
dress that would be required and Ades answered the
questions However when Seaton asked him about salary
Albert Ades replied that that had not been discussed
among management Seaton left at that point He
thought the matter over that evening and the following
day advised Maddux that he could not accept the posi
tion because though he appreciated the confidence the
Company was placing in him under the circumstances
he did not feel it would be a wise move at that time
Seaton specifically mentioned that he had gone through
a very awkward period since he had testified that things
had changed considerably and remarkably but that he
could understand the circumstances and I told him that
under the circumstances I just felt that there was an
element of doubt that existed both on my part and I
think on the Company s part
In a further conference on June 18 22 Ades asked
Seaton why he had decided not to accept the position
Seaton stated he appreciated the offer but that under the
circumstances he could not accept the circumstances to
which he referred being the awkwardness when he
would say good morning to Ades and Ades would just
walk away Seaton testified that he told Ades he could
understand his feelings and could understand the feelings
of Maddux and everyone else Seaton testified that Ades
then asked him if he had any negative feelings about the
Company and Seaton told him that he did specifically
along the lines he just discussed Ades then stated he
though Seaton should resign and Seaton refused where
upon Ades said Consider yourself terminated When
Seaton asked if it had anything to do with his job per
formance Ades replied That s not the point here
Ades repeated that Seaton was terminated Seaton re
minded Ades that Maddux had repeatedly described his
job performance as excellent but Ades repeated that that
was not the issue and put his hand out and wished
Seaton good luck
On cross examination Seaton testified that one of the
reasons he had rescinded his first resignation was that
Erani had mentioned the possibility of his promotion to
store manager He had been looking for promotional op
portunities with the Company including the possibility
of a promotion to store manager which would have
been in line with some of his previous experiences with
another employer I do not consider that any of this tes
timony on cross examination in the least bit undermines
Seaton s testimony Erani s discussion of the possibility of
his becoming a store manager clearly took place before
he testified at the NLRB hearing The crux of Seaton s
testimony is that relationships changed materially after
he gave that testimony
On cross examination Seaton resisted any suggestion
that Ades had said anything other than to ask him if he
had any negative comments and as soon as he received
22 Seaton testified on cross examination that on Thursday June 17 he
asked Maddux to set up another appointment with Ades and Erani
which he anticipated would be held that day but it did not come about
until late in the afternoon on Friday June 18
an affirmative reply from Seaton told him that under the
circumstances he should resign
Seaton makes the point that he was surprised that they
wanted to put him into Store No 5 as a manager in
training in preparation for the new store at 258 Broad
way which in his opinion was 6 to 8 months away from
completion (At the time of the hearing a year later it
had not yet opened ) Thus there appeared to be no true
urgency for him to report to Store No 5 and yet they
wanted him there the following Monday His anxiety
was further aroused by Albert Ades admission that there
had been no pnor discussion about what Seaton s salary
was to be and the matter was never discussed on June
16 17 or 18
Seaton insisted that he made no decision as to whether
he would accept the position until the evening of the day
on which it was offered to him and did not communi
cate his decision not to accept it until he spoke to
Maddux the following day He thus never accepted it
and then changed his mind as Ades and Erani contend
ed He doubted the sincerity of Ades and Erani in
making the offer did not agree with their assertion as to
when the store would be ready to open and did not think
they believed it themselves It crossed his mind that the
job offer might be a way of easing him out of his ware
house job This fear coupled with the lack of any guar
antee that he would actually be given a managerial posi
tion upon conclusion of his training period and the likeli
hood that the new store would not be ready at that point
in time led him to decline the offer without regard to
the bona fides of the offer I credit Seaton s testimony
that he refrained from asking what would happen if the
Company decided not to offer him the store manager s
position after he underwent the training because he be
lieved that he was being railroaded out of his warehouse
job into a store with a possibility of demotion Instead he
asked other questions which he reasonably could have
expected to have been considered by Ades and Erani
prior to offering him the position It was apparent that
they had not given the matter serious consideration for a
matter as critical as salary had not even been discussed
let alone decided Their approach substantially confirmed
the validity of Seaton s suspicions
Alan Ades president of A & E Stores Inc for ap
proximately the last 12 years testified that in 1982
Seaton resigned twice once in January and then again in
March (Seaton denied a January resignation ) The first
resignation was rescinded according to Ades as a result
of Ades discussion with him The second was rescinded
after Albert Erani the vice president promised Seaton a
position as store manager as soon as one opened up
which is the reason he ,had originally been employed in
the first place That appears on his job application They
had a new store that was due to open in June 1982 and
Albert Erani offered the manager s position to him
Ades testimony that Seaton accepted the position is
admittedly based on information Ades received from
Erani and he learned of Seaton s supposed change of
mind from Maddux According to his version of the
events he met with Seaton and Maddux in his office and
asked Seaton what the problem was Seaton responded
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that in view of the fact that he was going to be resigning
shortly he thought it would be foolish to spend months
training for the position Ades asked Seaton why he was
resigning and Seaton responded that he felt awkward re
mauling with the Company in view of his testimony on
April 30 and the events surrounding the first NLRB
hearing Ades then asked Seaton whether anybody had
made him feel uncomfortable or awkward or if anything
had been said to him and Seaton replied in the negative
Ades testified that he then asked Seaton what his feel
ings were about the Company and quoted Seaton as
saying that his feelings were negative Ades asserted that
Seaton reiterated the comments he had made on the oc
casion of his previous resignation in January to the effect
that he felt that the comptrollers of the warehouse were
not good he felt that Maddux was not an effective su
pervisor he did not like working with Maddux and he
felt that the Company was not being run properly And
he added at this meeting the additional fact that he felt
awkward and uncomfortable working for the Company
and he said it was a very natural thing He felt it was
very natural for me to feel that way although I never
expressed any such feeling to him that it was an uncom
fortable and awkward position to be in working with the
Company after the testimony he had given in the first
NLRB hearing
Ades then told Seaton that in view of his feelings he
should tender his resignation right there and then which
Seaton refused to do saying he would tender his resigna
tion when he planned to tender his resignation which he
said again would be shortly but not before Ades then
stated that he should consider himself terminated as of
that moment Ades testified that he told Seaton that I
didn t think that it was worthwhile for him to continue
with the Company because of his impending resigna
tion his negative feelings about the Company and the
fact that his replacement in the warehouse had already
been notified
In his own testimony Seaton denied having mentioned
any intention of resigning and asserted that the first men
tion of it was Ades suggestion to him which he had re
fused I find Ades recital of these events strongly sug
gestive of malice aforethought in that Ades engineered
the interview to follow the scenario described in the tes
timony I cannot credit his testimony that Seaton did not
dispute so much whether he should resign but whether
he should resign at that conference or several days there
after I especially find incredible Ades testimony that the
meeting ended with Seaton making veiled threats that
Ades would be sorry for what he was doing generalized
threats about his displeasure at not being able to resign
of his own volition rather than being terminated by me
The incredibility of the Respondent s version of these
events is underscored by the Respondent s omission to
furnish verification which should have been within its
means to supply if it were available Seaton s supposed
replacement in the warehouse was not brought in to tes
tify Though Maddux testified he did not confirm Ades
version of his forbearance and the strain placed on it by
Seaton s remarks Maddux testified merely that he was
present at the meeting and was in the hearing room
when Alan Ades testified about the June 18 meeting
When asked if Ades testimony that Seaton told him he
was going to resign in the near future was his recollec
non of what happened in the meeting he said definite
ly He did not confirm any other aspect of Ades testi
mony regarding that meeting or render his own account
of the pertinent occurrences Instead his testimony dwelt
on other aspects such as the undoubted fact that Seaton
expressed his desire to be in a strong managerial position
on occasions prior to his dismissal Maddux said he and
Seaton had discussed that many times and they both had
high hopes for Seaton s career as a store manager I be
lieve this may well be true but it does not enhance the
credibility of Ades account of the meeting at which
Seaton was fired because it is the conduct of Ades and
Erani which needs explaining not Seaton s The only
one who could really have confirmed their account was
Maddux who failed significantly to recite his own recol
lection of the events Nobody explained why Seaton was
invited into the store managership venture on such short
notice at a time when construction was subject to signif
icant delays and before critical decisions such as his
salary had been made
I found Albert Erani s attempt to back up Ades story
equally incredible He testified that when Ades told him
Seaton was quitting he abxed Seaton the reason and was
presented with a number of cntical comments about the
way the business was run
They discussed Seaton s interest in store management
Because of previous work that Seaton had done in ana
lyzing conditions in one of the stores they had a lot of
confidence in him In Erani s words we had developed
a deep respect for him and his ability and that we felt he
would be an asset to the company and we would want
him to reconsider his resignation Erani testified that the
conversation lasted 2 hours and Seaton changed his
mind In June construction of the new store started
Erani met with Seaton and Albert Ades identified as
district manager or manager of store operations Eram
testified that when he told Seaton that in view of the fact
that a new store was opening soon they wanted to send
him to Store No 1 their downtown store to be a man
ager in training Seaton was very happy and delighted
and he thanked me very much and said I accept the po
sition They discussed a potential replacement of Seaton
in the warehouse Erani then left the meeting and in
structed Albert Ades to continue discussing the various
aspects of the job with David Erani was emphatic that
Seaton had accepted the position
Erani s testimony was not as clear when asked wheth
er he would characterize the position offered to Seaton
as a promotion from the position that Seaton then occu
pied His evasive response was to the effect that since A
& E Stores is a service organization for all the stores
and since the profits are produced by the stores a man
ager of a key store is a very important part of the orga
nization Pay scales are such according to Erani that
managers get compensated far more than assistant
warehouse managers with some making upwards of
$40 000 However it was clear from his testimony that
only a few store managers 3 or 4 out of 16 actually
made $40 000 per year and some made only $275 per
A & E STORES 71
week When asked if the salary of a store manager de
pended to any extent on the gross business of the store
he responded that it was not directly tied to the gross
business of the store but was tied to our general overall
evaluation of it This is a meaningless formula which
was not illuminated by his ensuing explanation of it He
conceded that it was generally true that the managers of
the larger stores are better compensated than the manag
ers of the smaller stores He asserted that they were
grooming Seaton to be manager of a store that would
have been one of the larger stores but instead of citing
its anticipated gross income or sales he referred to the
store s physical dimensions As of March 1 1983 when
Erain testified the new store had not yet opened His
conversation with Seaton took place in June 1982 Ac
cording to Erani construction delayed the opening and
the anticipated date of opening was late March 1983 He
conceded that some delay was due to their own decision
respecting the design of the storefront Erani conceded
that this was not the first time that there had been a
delay in the opening of one of their stores
To these uncertainties there had to be added as a con
sideration the startling fact conceded by Erani in his tes
timony that Seaton was to go into management training
at $3 75 an hour which was the same salary he earned as
assistant warehouse manager The excuse proffered for
not raising it was that he had been given a raise of $75
per week at the beginning of 1982 so it was felt to be
inappropriate to give him another increase
Erani finally conceded that Seaton s elevation to a
managerial position in a store was not actually certain
nor was it definite whether Seaton would go to a big
store or a small store Erani testified that they would de
termine later whether Seaton was ready to tackle the
store manager s job and if so whether in a big store or a
small store He thus contradicted himself as to the defi
ruteness of the plans for Seaton and conceded the cor
rectness of the General Counsel s contention that at best
the concept was to put Seaton in the training position for
as long as 4 or 5 months and then see how he did This
also undermines the credibility of Erani s purported opti
mism as to the new store s completion date He even tes
tified that it conceivably could have taken Seaton more
than 5 months to tackle a store like 258 Broadway Erani
conceded that it was very difficult to assess a person s
management ability because store managers manage 40
to 50 people and Seaton on the second floor of the
warehouse managed only 10 people He stated So it
really is something that we d have to feel out you know
by experience He conceded that in June he told Seaton
they would have to wait and see how Seaton did in
training
Erani s credibility was not restored on redirect exami
nation by testimony that one of the reasons for construc
tion delays was a change in the design of the store from
the original design Erani testified that after much soul
searching because it was a very expensive change they
decided to do it because they had a very long term lease
First they attempted to clean up and polish the old store
front then it was decided to revamp it completely It
was when it came out not looking right that they finally
decided to bite the bullet and spend that kind of money
and to put in the new front and that s the primary
reason for this major delay They changed the entire
storefront at a cost of approximately $150 000 If this is
the case then Erani could not conceivably have believed
that the store would be ready in 2 months Erani thus
concedes that he knew when he spoke to Seaton and of
fered him a job supposedly available in a couple of
months that the store would not be ready at any time
close to that target date
On the basis of this testimony the contention that Sea
ton s changes of mind and bad attitude caused his dismis
sal are seen to be pretextual reasons for discharge I do
not credit the testimony of Ades and Eram that Seaton
did flip flops on the new appointment and told them that
he was uncomfortable because of the poor management
of the business and because of the deterioration of his re
lationship with management While Seaton unquestion
ably indicated his unhappiness with the overall situation
the readiness of Ades to seize on it is noteworthy and his
attempt partially to justify Seaton s discharge on the
basis of it cannot be countenanced 23 I do not credit the
purported assignment of another employee to fill the im
pending vacancy in the warehouse resulting from Sea
ton s promotion as a factor in management s decision
to discharge Seaton inasmuch as it was never contended
that the advancement of the employee was an irreversi
ble commitment
I find instead that Ades and Erani proceeded with
the objective of eliminating a troublesome supervisor
who had given adverse testimony in a Board proceeding
The discharge of Seaton was therefore a violation of
Section 8(a)(1) and (4) of the Act 24
B Curtis Parker
It is alleged that Curtis Parker was discharged on
August 18 1982 as a result of his union activities which
were known or suspected by the Respondent Seaton ad
vised top management that Curtis Parker was active in
the Union and the consensus was that he was the ring
leader and had been responsible for bringing the Union
in On March 18 Parker acted as one of the observers of
the Union advising employees when it was time for
them to vote and telling them where to go to vote
Seaton testified that in many conversations he had with
Maddux about Parker Maddux expressed the opinion
that Parker was a problem he was creating all of this
havoc and wreaking havoc on the peacefulness of the
operation Maddux tended to become enraged and upset
at Parker s tendency to promote the Union on company
time when he should have been working and hunted for
him whenever he disappeared from sight Maddux was
under the impression that Parker whose normal work
23 An employer cannot rely on an employee s indiscretion provoked
by the employer as a basis for terminating the employment Louisiana
Council No 17 AFSCME 250 NLRB 880 886 (1980) E I DuPont 263
NLRB 159 (1982)
Seaton s own testimony that company counsel advised the supervt
sors what was legal and they kept within the bounds he set and basically
confined themselves to information gathering precludes any finding that
he was discharged because he refused to commit unfair labor practices
See Daniel Construction Co 244 NLRB 704 719 (1979) and Bekher
Towing Co 238 NLRB 446 (1978)
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place was on the second floor was going from floor to
floor on company time to talk to employees about the
Union According to Seaton during the course of the
campaign Maddux repeatedly told him that he would
like to fire Parker Discussion of Parker was a daily oc
currence
The Respondent contends that he was discharged for
insubordination in refusing to bring merchandise sched
uled for delivery to their Vanlex store down to the load
ing area when directed to do so by a supervisor
Vanlex is one of the stores to which merchandise is
shipped from the A & E warehouse at 110 Fifth Avenue
where the merchandise is listed in the inventory and
ticketed This work is done on the second floor after
which the merchandise is then sent downstairs to the
loading area which is at street level Vanlex and Re
spondent s Store No 19 because of their particular cir
cumstances require delivery to be made by a certain
hour of the afternoon
On the afternoon of August 16 1982 the shipment for
Store No 19 left about 4 45 p m The merchandise for
Vanlex remained on the second floor and was not dis
patched that day
There is complete disagreement with respect to the
facts surrounding the readiness of the shipment to go and
the reasons it did not go Palacio testified that the paper
work was in his hands at 3 30 p m and he received word
that the trucker was ready to take the shipment at 4 30
p m but he discovered upon examination of the papers
that not all the merchandise was on the pallet On
making inquiry he received contradictory information
from clerical workers at Vanlex and the warehouse as to
whether the shipment was going out that evening He
testified that overcome by the confusion by that time I
didn t bother to inquire any more At 4 40 p m he
closed the gate and the elevator to the first floor
Maddux testified that the fate of the Vanlex shipment
had been decided by him when he got off the elevator
coming from another floor in the building walked
through the second floor and noticed that the Vanlex
merchandise was still on the floor He looked at his
watch It was between 4 45 and 5 p m He canceled the
shipment He started down the stairway to the first floor
to advise Osano and met Parker on the stairway huffing
and puffing Parker asked him in a voice which Maddux
described as being tinged with anger whether Vanlex
was going that night Maddux told him that it was not
going he had just canceled it When he saw Osano mo
ments later he was told by Osano that Parker had re
fused to bring the shipment down
Jose Osano the supervisor of the loading area testi
fled that Parker and another employee loaded the mer
chandise for Store No 19 and then proceeded to unload
another truck which was scheduled to return to Vanlex
When they were about half finished Palacio stuck his
head out of the second floor window and asked the
driver if he was going to Vanlex the driver replied in
the affirmative and Palacio said he would send down the
merchandise Parker was present during this conversa
lion and continued unloading the truck The merchandise
for Vanlex had not come down by the time Parker fin
ished unloading so Osano told him to go and get the
Vanlex shipment Parker told him in the presence of the
other employees that if he wanted Vanlex he should get
it himself It was about 4 30 p m and °sari° had to corn
plete the paperwork so that the shipment for Store No
19 could depart He therefore told Parker simply that he
would speak to him the next day Parker walked away
Osano reported the incident to Maddux who told him
to write it up
According to Osano loading time for a shipment
vanes from 5 to 15 minutes depending on the amount of
merchandise There is no evidence in the record respect
ing the amount of merchandise due to go to Vanlex that
day
Parker s testimony is that between 4 30 and 5 p m
°sari° asked him about Vanlex Parker told him that
Vanlex wasn t going Osano s response was Vanlex
is going it is supposed to be put on the truck Parker
repeated Vanlex is not going Osano then said Well
I tell you what Mister if you don t stay and load Vanlex
and put it on the truck well I 11 see you in the morning
Ill talk to you in the morning Parker said 0 K and
he and two other employees who norma'iy help load and
unload the trucks went into the warehouse to see
Maddux Maddux was on a telephone call at his desk As
soon as he finished Parker told him that Osano was de
manding that they stay and load Vanlex and that he
came into the warehouse to confirm with Maddux
whether Vanlex was going out Maddux said it was not
going out Parker asked him whether he was sure it was
not going out and Maddux responded that Vanlex was
not going According to Parker he then told Maddux
that Osano was upset and calling him names and Mad
dux s only response was Well since Vanlex is not
going say there s nothing else for us to do The three
men who normally quit at 445 p m then punched out
I find Parker s version of the events of August 16
somewhat strange Parker testified he went over the
head of the assistant warehouse supervisor Osano to
check with Maddux as to whether a shipment was going
and when told that it was not going asked Maddux if he
were sure Parker never explained where he got the
original information to the effect that the shipment was
not going which fact furnished the basis for his purport
ed disagreement with Osano He does not explain why
he went to Maddux on the fifth floor to find out what
could have been found out on the second floor It also
seems strange that he would not go back to the loading
area to let Osano know that his information had been
confirmed with Maddux
His testimony that Maddux in the days following
seemed reluctant to listen to his side of the story is of
course contradicted by Maddux but Parker does make
one interesting point which Maddux never contradicted
It is Palacio s and Parker s testimony that on August 18
after Parker was fired Maddux asked Palacio whether
Vanlex had been ready to go and Palacio had told him
that it was not going because the shipment was not
ready This is in accord with Palacio s testimony con
cerning the actual events on August 16 Maddux does
not appear to have demonstrated any willingness to
modify his decision in the light of the fact that Parker
A & E STORES 753
apparently had been asked to perform an impossibility
He proceeded as he told Palacio on the basis of Park
er s insubordination without regard to the merits of the
disagreement between Parker and Osano
Maddux testified that he recommended Parker s termi
nation based on the fact that he had in the presence of
other employees refused to obey direct instructions from
Osano making it impossible for Osano to function as a
supervisor
Maddux testified that on August 17 and 18 he met
with Pagano Parker and Osano On both occasions
Parker admitted that he had been asked by Osano to get
the Vanlex merchandise and had failed to do so but
denied telling Osano to get it himself On both occa
mons Maddux asked Parker why he failed to obey Osar
io s order and Parker remained silent Maddux testified
that he had acted with great care to determine the facts
and give Parker an opportunity to save his job but that
he was compelled to recommend his termination because
of the fact that this was not Parker s first misconduct and
because of the fact that his insubordination took place in
front of other people and thus impaired the authority of
the supervisor He terminated Parker on the second day
because until then it was open in his mind His decision
was based primarily on the fact that Parker was instruct
ed to get the merchandise and did not do so and when
asked why he did not do so made no reply This testi
mony by Maddux troubles me a great deal because
when I asked Maddux whether he was prepared with an
alternative course of action in the event Parker did give
him a reason why he had not obeyed Maddux s response
was evasive to the effect that if Parker had given him a
reason which was sensible and logical Parker would still
be working at A & E but Parker did not give him a
reason despite two opportunities to do so He failed to
explain how if Parker gave him a reason he expected to
balance the merits of Parker s position against the assert
ed necessity of preserving °sari° s authority as a super
visor Furthermore Maddux simply gave Parker the op
portunity to explain his refusal to obey Osano s order
but never told him that if he came up with an explana
lion he would not be fired
1 I believe that the explanation for the problems in Mad
dux s testimony he in the fact that it is based on Parker s
testimony It was literally an attempt to hoist Parker on
his own petard Parker could not excuse his conduct on
the ground that Vanlex was not ready to go out even
though Palacio had told that to Maddux because in his
testimony Parker testified that he had gone to Maddux s
office to find out if it was going or not In Maddux s ver
sion of the meeting in which he encountered Parker
huffing and puffing on the stairs implying a state of
great (and culpable) agitation Parker asked him if the
shipment was going obviously unaware that Maddux
had canceled it No matter whose version is accepted
Parker could not base his refusal to comply with Osano s
order on knowledge obtained from Maddux that the
shipment had been canceled
The attempt fails for two reasons First Parker insist
ed that he knew the shipment was not going and told
that to Osano when Osano asked him to get it He only
went to Maddux to confirm that it was not going
Second Parker in his testimony sharply disagrees with
Maddux s version of their meetings on August 17 and 18
He denies that he sat mute when critical questions were
put to him Maddux told him that he had received a
complaint that Parker had given Osano back talk about
Vanlex Osano and Pagano the personnel director were
present Parker denied it accused Osano of calling him
names and insisted that he was telling the truth Maddux
asked Osano directly whether he had been given back
talk and Osano responded affirmatively quoting Parker
as having told him that if he wanted Vanlex to be put on
the truck he should do it himself Pagano asked Parker if
he had anything else to say It was at that point that he
lapsed into silence They told him they would see him in
the morning On Wednesday afternoon August 18 he
was again called to the personnel office and according
to Parker Maddux told him We have come to a deci
sion that we don t need you no more Parker testified
that he asked whether they were taking Osano s word
for it and they said they were
Osano s testimony clashes with that of Maddux in an
important respect According to Osano when Maddux
asked Parker if he was told to get the Vanlex shipment
and if he had told Osano that if Osano wanted to get it
he should get it himself Parker responded by denying
both that he had been ordered (rather than asked) and
that he had told Osano to get it himself He insisted he
told Osano the shipment was not going If this is so then
Maddux s version of the rest of what ensued which is
repeated in Osano s testimony simply does not make
sense They both testified that Maddux proceeded to ask
Parker why if there was a Vanlex shipment he did not
get it and Parker had no answer to that This patently
ignores Osano s preceding testimony Osano s testimony
in total tends to corroborate the Parker version of the
meeting rather than the Maddux version
Osano s testimony makes it clear that Parker came
down to load the trucks when he was summoned and he
did the work that was assigned to him unloading two
trucks and loading the merchandise scheduled for dein/
ery to Store No 19 There is not the slightest hint of any
friction prior to the point at which Osano claims he di
rected Parker to bring down the Vanlex shipment Osar
io s testimony that Palacio announced that the Vanlex
shipment was ready is directly contrary to Palacio s own
testimony Osano testified that other employees were
around when Parker told him to get the Vanlex shipment
himself but only one whose testimony is reviewed
below was produced Though Osano testified that there
had been other occasions when he directed employees to
go up to the second floor and bring down merchandise
and three other men besides Parker were on the loading
platform at the time he did not ask them He offered no
reasonable explanation of his failure to do so and provid
ed several that were highly incredible (such as that only
Parker would know where to find the material on the
second floor admitting that that was no mystery and he
could have told any of the other men) He offered no
reasonable explanation for his failure to telephone the
second floor and speak to Palacio or somebody else and
have them send the merchandise down The elevator was
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the street level for fully half an hour after the time he
said Palacio stuck his head out of the window but
Osano insisted he was too busy with some paperwork
for Store No 19 to make arrangements to bring the ma
tenal down He explained his failure to telephone to the
second floor by saying he would have got more action
by sending Parker utterly ignoring his own testimony
that Parker had Just disobeyed him and refused to go I
find incredible his assertion that he could not find any
means of communicating with the second floor Even
without using the telephone or sending up the elevator
he could still have sent up one of the three men who
were by that time standing around doing nothing
Though he claimed to have reported that incident to
Maddux who told him to write it up there is no evi
dence that he did so Instead Parker was summoned to a
meeting the following day in Maddux s office where
Osano gave an oral recital Osano testified that on the
day following the incident he ascertained that Vanlex
had in fact been ready to go it was not downstairs be
cause of Palacio s failure to send it down to the street
floor He offered no explanation for the failure on Pala
cio s part or why he was investigating and did not testify
to the time when the merchandise was actually shipped
out In view of Palacio s testimony It would appear that
Osano was attempting to buttress his testimony that Pa
lacio leaned out of a window and called down that the
shipment was ready Osano admitted he was surprised at
Parker s response to his order for Parker s conduct was
normally gentlemanly and courteous
Osario readily admitted that at meetings with other
management personnel he heard Parker referred to as
one of the ringleaders of the union movement and he
agreed with the assessment Therein I believe lies the
explanation for his testimony
The nub of the issue being whether Parker disobeyed
Osano s order it was in the interest of the Respondent to
bring in the workers who were present in the loading
area to testify to what they saw and heard As these per
sons were in the control of the Respondent the failure to
do so undermines the Respondent s position rather than
that of Parker The Respondent brought in only one of
them Douglas Peele who appeared to me to have been
rehearsed and who seemed generally to be altogether un
reliable To the extent that any credence can be given to
his testimony it indicates that events were highly unlike
ly to have occurred in the way described by Osano
Peek a warehouse worker employed to load and
unload trucks testified that he was 5 feet away from
Osano and Parker and heard Osano ask Parker Why
don t you go get Vanlex ? He immediately modified this
to an order Go get Vanlex l He asserted that Parker
replied If you want it go get it yourself Betraying
obvious memorization of his story he continued his testi
mony by asserting that as Parker walked away Osano
said If you want Vanlex— He then faltered apparent
ly in the realization that he was reciting incorrectly and
resumed by quoting Osano as having said Okay
Mister you and I are going to talk about this tomorrow
this incident tomorrow Parker turned around and said
Okay we will He then continued walking away
Peele fixed the time of this gross disobedience at 4 30
p m but could not satisfactorily explain how he knew
that that was the time when all this was happening He
described Parker s tone of voice as very rude in a
rowdy way sort of hard way Nevertheless he con
ceded that Parker is a mild mannered polite person who
got along well with most of his coworkers who did
what Seaton and Osano asked him to do was a calm
person who got his job done and significantly stayed
late to finish his work when that was necessary All of
these attributes are at sharp variance with the conduct
described by Osano Peele and Maddux
Peele testified with more assurance on other points He
testified that Osano having been turned down by
Parker did not ask either him or another employee who
was present named Scotty to go and get the merchan
dise Peele stated that had they been asked they would
have brought it down and loaded it on a truck Peele
normally works on the second floor with Parker and Pa
lacio and goes down to load and unload trucks each day
Part of his job upstairs is to move boxes around includ
ing the Vanlex merchandise His testimony clearly indi
cates that he would have no difficulty finding the Vanlex
merchandise and getting it downstairs if it had been
ready to go and if Osano really wanted it
Peele also testified significantly that Osano s request
to Parker was a departure from normal procedure Peele
had never been sent upstairs to get merchandise and in
fact nobody ever sends anyone upstairs because Palacio
or someone else upstairs always sends it down on the el
evator
Peele testified to yet another interesting point When
the merchandise is delayed coming down they usually
wait for it Parker Peele and Scotty had all remained
late on occasion to finish loading a truck
Peele s testimony enhances the doubts which I have
about Osario s testimony Osario had to have been aware
of the special deadline for deliveries to Vanlex and to
Store No 19 his own testimony shows what a sweat he
was in about getting the merchandise off to Store No
19 He had to have known when he asked Parker to get
the Vanlex merchandise that it probably was not down
stairs because it was not ready to go and he had to have
known that it was already too late to send it His testi
mony that Palacio said it was ready to go is contradicted
by Palacio himself It also flies in the face of some inter
esting testimony by Maddux which tends to show that
they both knew Vanlex was not ready to go
When in the course of his testimony Maddux had
stated that he had looked at his watch and saw that it
was too late for the Vanlex shipment to go out he also
made what seemed to me at the time an altogether gratu
itous and irrelevant comment to the effect that at the
same time he observed that the shipment for Store No
19 had gone The significance of his remark becomes
clear in the light of Palacio s testimony that when Parker
and he went up to the fifth floor to see Maddux after
Parker was fired and Palacio explained to Maddux that
Vanlex had not gone out because the clerk had told Pa
lacio it was not going Maddux s immediate response was
to ask him about something else entirely Maddus asked
A & E STORES 755
him why there had been a delay in getting out the mer
chandise for Store No 19 It was only after some discus
sion about that matter that Maddux took any interest in
discussing Parker This non sequitur indicates that man
agement had been aware of a significant delay in the
movement of merchandise off the second floor on the
afternoon in question If that is the case as I believe it to
be then I suspect that if Osario did order Parker to go
and get the Vanlex merchandise he could not really
have expected to see it come down to the street level in
time to go to Vanlex It seems more plausible to me that
everybody knew the shipment could not go and the con
versation at the loading area took place as Parker testi
fled it did
I am convinced that the reasons advanced by the Re
spondent for the discharge of Parker are pretextual My
finding in this regard requires that I draw an inference
that the discharge was inspired by a purpose in violation
of the Act Such an inference is also supported by the
abundant evidence of Maddux s hostility to Parker be
cause of his union activity the consensus among manage
ment that Parker was the ringleader of the union activi
ty the imputation of highly uncharacteristic conduct to
Parker on the afternoon in question and Parker s denials
Accordingly I find that Curtis Parker was discharged
on August 18 1982 in violation of Section 8(a)(3) and
(1) of the Act
C Rafael Palaczo
It is alleged that on August 24 1982 Rafael Palacio
was transferred from his job at the warehouse at 110
Fifth Avenue where he worked under David Seaton to
an undesirable warehouse location in Brooklyn because
he had engaged in protected concerted activity His res
ignation on February 17 1983 is alleged to constitute a
constructive discharge since he quit because of allegedly
undesirable working conditions
Palacio began working for A & E in April 1981 He
worked in the warehouse on the second floor under Sea
ton s supervision listing shoes handbags and other mer
chandise as it came in The processing work which he
performed involved inventorying the shoes counting
them to make sure they were all in the boxes listing
style and color posting the data so the shoe buyer could
make distribution making out tickets labeling the shoes
and the boxes and getting them ready for shipment
While he was there he was the only one doing this
work He apparently did it satisfactorily earning compli
ments from Seaton and two raises Maddux characterized
him to the personnel director as an excellent employee
The job to which he was transferred was considerably
different He now dealt with merchandise which stayed
in the box and which he never saw His time was spent
carrying boxes around labeling boxes putting them on a
jack and moving them to the point at which the shipping
personnel took them over He estimated that he actually
worked about 2 hours each day He testified that if he
had a book with him he would read it during the re
mainder of the day
The hardship claimed to have been worked on Palacio
by this transfer allegedly resulted from the increased
travel time from home (he lived in the Bronx New
York) increased travel time to school which he was at
tending at a location not far from the New York ware
house (travel time to and from Brooklyn was 45 min
utes) carfare to get to school and lack of heat in the
Brooklyn warehouse The increased travel from Brook
lyn to school deprived him of time he had formerly had
at the conclusion of the workday which was 4 45 p m
in New York to eat dinner and complete homework as
signments The Brooklyn warehouse was cold and mad
equately heated throughout the winter
There appears to be no doubt that the Respondent had
knowledge of union activity by Palacio early in 1982
Palacio signed a union card and attended every meeting
the Union held including meetings at which John Klein
and David Zeitouni were present He was observed by
Maddux meeting with union representatives in front of
the Fifth Avenue premises Before the election on March
18 he told Maddux he was going to vote for the Union
He acted as an observer for the Union at the election
The question is whether the transfer has been proved
to have been prompted by Palacio s union activity After
Seaton left the Company he told Palacio that there was
a connection between his transfer and his union activi
ties Despite the fact that Seaton testified at length
during the hearing he said nothing which would support
this contention To find a violation in this situation I
must infer a connection between Palacio s union support
and his activities and the transfer either from the timing
of the two circumstances taking into account the Re
spondent s other violations or by rejecting the Respond
ent s stated reason for the transfer I can do neither
Palacio testified that he told Maddux he was quitting
because of the inconvenience to his school studies and
because of the unhealthy conditions in the Brooklyn
warehouse and stated these as his reasons' in his written
notice to the Company However disadvantage to Pala
cio by reason of his transfer to Brooklyn is not some
thing to be assumed but must be proved Palacio s own
testimony raises doubts about it Palacio s contention that
study time was reduced because he had to travel a great
er distance rings hollow in the face of his contention that
the job to which he was transferred was menial and he
had nothing to do most of the day That should have
greatly increased his study time He left promptly at 5
p m and there was never overtime so he got to school
on time Maddux denies having considered or even
having been aware of the logistics at the time he asked
Palacio to go to Brooklyn The contention of hardship at
the Brooklyn location is one which I view with great
skepticism there being no record of any such complaints
having been made by Palacio or by anybody else during
the period in question The existence of such horrific
conditions would seem to be a matter of easy objective
proof but we are left to rely on Palacio s lengthy subjec
tive and interested account He wholly fails to explain
his endurance of such conditions through mid February
(I do not credit his assertion that he remained in order to
support the Union ) Moreover though Palacio spoke to
Maddux three times in September 1982 about getting
back to New York he never brought the matter up again
during the remainder of his employment from the end of
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 1982 through mid February 1983 I am con
vinced that his reason for resignation was his problems
with his school work rather than any problem with
working conditions in Brooklyn Maddux testified that at
the time of his resignation Palacio told him that in the
preceding year he had failed in one of his subjects and
that he wanted to devote more time to school in the cur
rent year and that was the reason he was resigning He
never requested the transfer back to Manhattan and did
not say anything about working conditions in the Brook
lyn warehouse According to Maddux he did not say
anything at all about company conditions instead they
had a pleasant conversation regarding his school subjects
and the fact that Maddux s daughter was also interested
in art While this testimony sounds strange in the light of
what Palacio wrote in his resignation I cannot ignore
Palacio s failure to rebut Maddux s testimony in this
regard
The Respondent argued that the application form for
employment with A & E stores contains a specific state
ment on the form which Palacio conceded that as a
condition of his employment he agreed to be subject to
transfer to other stores from time to time as the Compa
ny might deem necessary I am not impressed with this
transparently technical and irrevelant defense Assuming
that in the normal course of events the Company moves
employees around the question is whether the Respond
ent transferred Palacio to an inconvenient location as a
punitive measure for his union activity or to deter activi
ties by him or others which are protected by Section 7
of the Act The question is not whether the Respondent
exercised a legal right with respect to its employees but
whether it took steps designed to curb his union activi
ties
Nevertheless in view of Palacio s making a point
about being moved to the Palomar payroll cognizance
should be taken of the fact that a more telling point in
the Respondent s favor is the fact that Palacio was not
the only employee transferred to Brooklyn from Manhat
tan
The Respondent contends that Palacio was only one
of a number of employees who were transferred from
Manhattan to the Brooklyn location and notes that not
all of them were union supporters especially one who
did substantially the same work in Brooklyn that Palacio
did in the same area of the warehouse A satisfactory ex
planation was made in each instance in which a trans
ferred employee subsequently left the Brooklyn ware
house Testimony was adduced to the effect that these
transfers were made in order to staff the location with
reliable personnel following the discharge of Brooklyn
personnel who had been accused of committing theft Of
the original Brooklyn personnel only one remained
while Palacio was there As Palacio was not transferred
until 5 months after the election in March and then only
after the incidents in Brooklyn the Respondent s story
sounds plausible 25
5 The Respondent also offered Into evidence a list of the 29 persons
including Palacio who were transferred interstore or between the office
and store locations between 1977 and December 20 1982 The list was
received Into evidence as R Exh 6 subject to furnishing of verification
data to the General Counsel s c er the close of the hearing On May 16
There is no proof that Maddux kept Palacio in Brook
lyn in order to isolate him or punish him for his union
activity or in order to discourage such activity among
the employees generally The Respondent made a con
vincing case for the original transfer and there was msuf
ficient evidence either way to justify any determination
respecting the motivation for keeping the status quo
thereafter Palacio testified that when originally asked
by Maddux to go to Brooklyn he had protested that it
would interfere with his school but assented when
Maddux stated that the change in assignment would be
temporary and would be for a period of only 2 or 3
weeks He also testified that when he requested reassign
ment back to Manhattan Maddux told him that they
were still having problems with shipments and paper and
that he needed him there In his own testimony Maddux
asserted that he said it would be on a temporary basis
but did not commit himself on the amount of time Ac
cording to Maddux Palacio agreed readily and made no
protest
I accept Maddux s version of these conversations for
if Maddux did make the statements Palacio attributed to
him Palacio would have had to recognize immediately
the discrepancies between Maddux s statements and the
type of menial work he testified he was doing at the
Brooklyn warehouse
Even if some credence were given to Palacio s conten
lions respecting the working conditions none of the evi
dence seems to connect his discharge with his union ac
tivities The fact that they were known to the Respond
ent by observation and from Palacio s own statements
gives rise at most to a suspicion and suspicious circum
stances are not enough by themselfves to permit an infer
ence that an employer has unlawfully forced an employ
ee to resign 26
I therefore find that it has not been established by a
preponderance of the evidence that Palacio was trans
ferred to and kept in the Brooklyn warehouse in viola
ton of the Act or that his resignation constituted a dis
charge compelled by intolerable working conditions im
posed in violation of the Act or otherwise 27
1983 the General Counsel moved to strike the exhibit from the record by
reason of inaccuracies and failure of the Respondent to furnish the sup
porting data On May 20 1983 I suggested that the Respondent s counsel
contact the General Counsel and attempt to stipulate with respect to the
facts concerned failing which I would rule on the submissions of both
sides On May 23 1983 the Respondent s counsel submitted a response to
the motion which argued that the motion to strike was untimely and did
not otherwise address the issues The existence of inaccuracies in the ex
tuba appears to be conceded The motion to strike the exhibit is granted
The information contained therein has played no part in my determina
tion of the issues It is to be noted that unlike the other evidence respect
ing the transfers of personnel to Palomar the former Exh 6 contained no
details respecting the various transfers
26 Caddell Burns Mfg Co 222 NLRB 488 (1976) enfd mem 551 F 2d
299 (D C Cir 1976)
21 The General Counsel cites Stage Deli & Theatre Lounge 238 NLRB
276 (1978) for the proposition that imposition of more onerous working
conditions for union activists may be a violation But in Stage Deli pres
sure was applied directly and almost consistently throughout the working
day in the same place as compared with Palacio s transfer after which
he was left alone to work read study or do whatever he wanted
Palacio s situation was not comparable to that found in a number of
other transfer cases In St Joseph Hospital East 236 NLRB 1450 (1978)
Continued
A & E STORES 757
D Virginia Johnson
It is alleged that Virginia Johnson was wrongfully dis
charged on August 12 1982 She was a ticketer in the
warehouse working under Seaton who testified that she
was a good worker and a fast worker There is little
question that the Respondent had knowleged that she en
gaged in union activity She attended a union meeting
which was also attended by John Klein and David Zei
touni who were performing surveillance for manage
ment Curtis Parker discussed union affairs with her right
in front of the building in which the offices were located
and had a discussion with a group of employees includ
mg her in the middle of an afternoon during the cam
paign while they were supposed to be working From
January through March 1982 she attended union meet
ings at the Prince George Hotel which were attended by
a number of other employees She places David Seaton
at some of these meetings She also participated in a
lunchroom meeting attended by everybody from the first
and second floors including the receptionist at which
Rafael Palacio Curtis Parker and she herself expressed
proumon sentiments On August 10 1982 Virginia John
son became involved in an altercation with Joyce Lloyd
who was responsible for checking the purses of people
leaving work Lloyd is stationed at the end of the hall
way where the warehouse employees clock out at the
end of the shift She inspects handbags and other con
tamers being taken out of the premises as a security func
tion If Johnson s testimony is to be believed the alterca
tion started because she offered to submit a food bag
from MacDonald s for inspection Food bags were not
supposed to be submitted for inspection but Johnson as
serts that she did not hear Lloyd say that Lloyd angrily
rejected the food bag whereupon a physical brawl start
ed which was broken up by other personnel Johnson ac
cused Lloyd of loudly cursing at her but could not re
member her exact words Johnson carefully avoided stat
ing who began the physical altercation She testified that
Lloyd started to look for something in her purse where
upon Johnson decided that whatever Lloyd had in her
purse Johnson had in her handbag as well at which
remark Lloyd jumped up and we both started arguing
and cursing According to Johnson she jumped up as
though she wanted to jump on me and fight me you
the discrimmatee was isolated from the employees thus curbing union ac
tivity by change of shift and job Discrimination was obvious because of
offer of choice of assignments to two other employees but not to the dis
cnminatee Rexart Color & Chemical Co 246 NLRB 240 243 (1979) em
phasizes failure to return discrumnatee after other employees could have
replaced him in position to which he was transferred (Here the argu
ment is that Respondent needed someone It could trust ) But a new
driver who replaced discnminatee had an accident record Furthermore
evidence was on record that a representative of management remarked
that he hoped the chscnnunatee would quit and if he did not some
excuse would be found to fire him It was clear that the discnnunatee s
permanent transfer was part of a plan designed to harass him and force
him to quit Palacio s case is not comparable
In Daniel Construction Co 244 NLRB 704 718 (1979) no explanation
was offered for the transfer In C Markus Hardware 243 NLRB 903 916
(1979) bitterness disgust and disquietude caused by the onerous work
ing conditions imposed were found I did not credit Palacio s testi
mony in this regard
In John Dory Boat Works 229 NLRB 844 850 (1977) affirmative dis
charge by the employer was found to have occurred
know Though Johnson testified that there was a desk
between the two of them the two male employees who
separated them testified that there was nothing between
them
According to the Respondent s witnesses the officers
and personnel of the Respondent concerned with main
taming order and discipline conducted an investigation
and determined that Johnson had initiated the incident
and was entirely at fault Johnson quoted Mary Ann
Pagano the personnel director as having told her that
Maddux wanted her fired because he could not tolerate
the type of behavior that went on in the hallway Our
concern in this proceeding is not with the fairness or
correctness of their determination We are concerned
however with the degree to which they made a sincere
attempt to place the fault insofar as the failure on their
part to make a sincere attempt to do so would suggest
that the stated reason for discharging Johnson was not
the actual reason
In the present case while there may be some basis for
criticism of the method of investigation it is clear that
such investigation that was conducted disclosed adequate
grounds for concluding that Johnson had started a brawl
in an area exposed to customers and other visitors to the
premises Johnson admitted to Pagano that she had mis
understood the inspection requirements and thought that
all bags including filthy food bags were to be presented
for inspection However Pagano herself had witnessed a
portion of the incident and heard Johnson threaten
Lloyd She heard a loud angry conversation with most
of the noise coming from Johnson She saw Lloyd with
her back against the wall and Johnson waving her arms
All the observers and persons involved recalled that
Lloyd was trying to back off while Johnson remained in
a threatening stance Michael Kuhr the assistant control
ler and Albert Ades broke it up with Kuhr getting be
tween the two women It was Johnson who had to be
restrained not Lloyd
Kuhr testified that he left a conference in his office to
investigate a very loud commotion When he opened the
door to the reception area he observed Johnson moving
her hands and threatening an assault on Lloyd in a loud
voice Lloyd was backing away and Johnson was
moving forward with her hands in movement Kuhr ran
to where they were and got in between them He
grabbed hold of Johnson and was surprised to find that
though she was smaller than he was she was so angry
that she was able to push him back Johnson l was angry
to the point that it just gave her so much power that
she was forcing me back and I m taller than her He
feared for his own safety The incident ended when
Albert Ades one of the principals came over and or
dered Johnson to leave the premises Nobody had to re
strain Lloyd
Pagano in investigating the incident spoke to Kuhr
and to Ann Malloy the receptionist She then advised
Maddux of the results of her investigation She did not
speak to Johnson about it until she called Johnson in on
August 12 to fire her Pagano testified that the reason for
this seemingly one sided investigation was that she heard
nothing which would have indicated any fault on
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lloyd s part and when she fired Johnson Johnson of
fered no excuses but only wanted to know if Lloyd
were being discharged also It may also be noted that
Pagano had personally observed a portion of the inci
dent
The reason for my comment that the investigation is
subject to some criticism is that the information obtained
from Malloy was interpreted by Pagano as indicating
that she had heard nothing on the part of Lloyd which
would have indicated that Lloyd had either started the
altercation or done anything to provoke it Actually
however Malloy told Pagano she was not paying atten
lion and did not know what had happened at the begin
ning of the incident because people leaving work are
normally noisy and she paid no attention Furthermore I
cannot see what harm could have been done by giving
Johnson a chance to tell her side before the discharge
interview
Nevertheless Pagano felt and I think properly that
Johnson had had ample opportunity to present her side
of the story if there was one She never stated to
Pagano (and never testified at the hearing) that she was
provoked or threatened by Lloyd or had any reason for
her violent reaction to Lloyd In short she offered no
defense which would have justified the suspicion that the
circumstances were other than as reported by the other
personnel whom Pagano had interviewed The failure to
consult an employee accused of wrongdoing or other
witnesses or even to investigate does not give rise to
any inference adverse to the employer when the facts are
already clearly established 28
This is the state of the evidence with respect to John
son There is not a scintilla of evidence to connect her
discharge with her attendance at union meetings or any
other concerted protected activities As a matter of fact
her activity in that regard appears to have been minimal
consisting merely of attending meetings which had also
been attended by other employees She was not one of
the leaders of the organizational campaign I find no evi
dence suggesting that because she spoke up for the
Union at one meeting she was thereafter singled out as a
target of management
Accordingly I do not find that Johnson was dis
charged in violation of the Act 29
28 Marsh Furniture Co 230 NLRB 580 (1977)
29 I regard the General Counsel s reliance on Syncro Corp 234 NLRB
550 (1978) reversed 591 F 2d 922 (5th Or 1979) and Pilgrim Foods 234
NLRB 136 (1977) modified 591 F 2d 110 (1st Cir 1978) as mistaken In
Syncro the Board expressed grave doubts about the seriousness of the
threat supposedly made by the discharged employee against another em
ployee In Pilgrim Foods the Board found disparately harsh discipline for
a minor transgression In the present case an employee Johnson who
was not a leading union activist had a history of at least one prior threat
of violence and committed a major transgression as attested to not only
by the facts themselves but also by the persuasive fact of denial of unem
ployment Insurance benefits to her because her conduct was deemed the
cause of her loss of employment (R Exh 5) Even had she engaged in
union activity that would not have required the Respondent to overlook
serious misconduct on his part Guardian Ambulance Service 228 NLRB
509 510 (1981) enfd 666 F 2d 238 (5th Cir 1982) Johnson s discharge is
valid even if the Respondent welcomed the opportunity to discharge her
for whatever union sympathy she had disclosed Klate Holt Co 161
NLRB 1606 (1966) Imperial Bedding Co 224 NLRB 1560 1564 (1976)
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The violations of the Act herein found to have been
committed by the Respondent have a close intimate and
substantial relationship to trade traffic and commerce
and among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce
CONCLUSIONS OF LAW
1 The Respondent A & E Stores Inc is an employer
engaged in commerce within the meaning of Section
2(2) (6) and (7) of the Act
2 Local 240 International Brotherhood of Teamsters
Chauffeurs Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act
3 The Respondent violated Section 8(a)(1) of the Act
by engaging in surveillance of employees protected con
certed activities during the period from February 20
1982 through the month of March 1982 through John
Klein and David Zeitouni
4 The Respondent violated Section 8(a)(1) of the Act
by threatening through Robert Maddux that the Re
spondent might go out of business in the event that the
Union became the bargaining representative of the em
ployees
5 The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Curtis Parker on August 18
1982 and thereafter refusing to reinstate him because of
his activities in support of Local 240 International
Brotherhood of Teamsters Chauffeurs Warehousemen
and Helpers of America
6 The Respondent violated Section 8(a)(4) and (1) of
the Act by discharging David Seaton on June 18 1982
and thereafter refusing to reinstate him because of tests
mony adverse to the Respondent which he gave at a
hearing before the National Labor Relations Board on
April 30 1982
7 The above described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act
8 The Respondent did not engage in any unfair labor
practices other than those enumerated above
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices I recommend that the Respondent be di
rected to cease and desist therefrom and take certain af
firmative action to effectuate the policies of the Act I
recommend that the Respondent be directed to offer
David Seaton and Curtis Parker immediate and full rein
statement to their former positions or if those positions
are no longer available to substantially equivalent posi
tions without prejudice to their seniority or other bene
fits and privileges I further recommend that the Re
spondent be directed to make them whole for any loss of
earnings which they may have suffered by reason of
their discharge with backpay to be computed in the
manner prescribed in F W Woolworth Co 90 NLRB
A & E STORES 759
289 (1950) with interest thereon to be computed in the
manner prescribed in Florida Steel Corp 231 NLRB 651
(1977) and Isis Plumbing Co 138 NLRB 716 (1962) In
addition I will recommend that the Respondent be re
quired to expunge from its records any references to the
unlawful discharges of David Seaton and Curtis Parker
and provide them with written notice of such expunction
and inform them that the Respondent s unlawful conduct
will not be used as a basis for further personnel actions
concerning them
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed3°
ORDER
The Respondent A & E Stores Inc New York New
York its officers agents successors and assigns shall
1 Cease and desist from
(a) Discharging employees for engaging in protected
concerted activities
(b) Discharging employees because they give testimo
ny at hearings before the National Labor Relations
Board or because of the manner in which they so testify
(c) Threatening that A & E Stores Inc may go out of
business if Local 240 International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers of
America or any other labor organization became the
bargaining representative of the employees
(d) Engaging in surveillance of any activities in which
employees are engaged which are protected by Section 7
of the Act or saying or doing anything which would
convey the impression to its employees that any such ac
tivities are subject to surveillance
(e) In any like or related manner interfering with re
straining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act
3 ° If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
2 Take the following affirmative action designed to ef
fecuate the policies of the Act
(a) Offer David Seaton and Curtis Parker immediate
and full reinstatement to their former jobs or if those
jobs are no longer available to substantially equivalent
positions without prejudice to their seniority or other
rights and privileges and make them whole for any loss
of earnmgs and other benefits in the manner set forth in
the section of this decision entitled The Remedy
(b) Expunge from its files any references to the dis
charges of David Seaton and Curtis Parker on June 18
1982 and August 18 1982 respectively and notify them
in writing that this has been done and that evidence of
their unlawful discharge will not be used as a basis for
future personnel actions against them
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due
(d) Post at its office and warehouse at 110 Fifth
Avenue New York New York copies of the attached
notice marked Appendix 31 Copies of the notice on
forms provided by the Regional Director for Region 2
after being signed by the Respondent s authorized repre
sentative shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered defaced or covered by any other materi
al
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
31 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
bona' Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board