Allied Stores of N.Y., Inc., d/b/a Gertz

National Labor Relations Board - Board Decisions

Jul 19, 1982

262 N.L.R.B. 985 (N.L.R.B. 1982)

GERTZ
Allied Stores of N.Y., Inc., d/b/a Gertz and Retail
Clerks Local 1500, United Food and Commer-
cial Workers International Union, AFL-CIO.
Cases 29-CA-8316 and 29-CA-8429
July 19, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On January 25, 1982, Administrative Law Judge
Winifred D. Morio issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed an exception and a supporting brief, and
Respondent filed a brief in opposition to the Gen-
eral Counsel's exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.3
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
The Administrative Law Judge inadvertently listed the dates of the
hearing as June 16 and 17, 1981. The hearing actually took place on June
15, 16, and 17, 1981.
2 The General Counsel has excepted to the Administrative Law
Judge's conclusion that Respondent did not have an unlawful no-solicita-
tion rule in effect, He points out that Respondent's assistant store man-
ager, Muriel Rauch, testified that the Gertz employee handbook con-
tained a no-solicitation rule. However, Rauch further testified that the
Massapequa store ran out of its supply in early 1980, and all four of the
former Gertz employees who appeared as witnesses for the General
Counsel equivocably stated that they had never received the employee
handbook (this included one employee, Joanne Ferro, who began work at
Oertz in October 1977). The General Counsel counters by pointing to
Rauch's testimony that, regardless of whether the employee handbook
was passed out to employees, there were training sessions in which new
employees were verbally informed of the store's rules and regulations.
However, Rauch went on to state that she did not know whether the no-
solicitation rule was one of those rules verbally conveyed to the employ-
ees, and the four ex-employees all testified that no one had ever verbally
explained a no-solicitation rule to them. In these circumstances, we agree
with the Administrative Law Judge that the record does not contain evi-
dence sufficient to demonstrate that Respondent maintained in effect an
unlawful no-solicitation rule here.
I Respondent contends that the Administrative Law Judge's Order is
too broad because the Order requires that Respondent allow employees
to post union campaign literature and precludes it from promulgating a
nondiscriminatory rule prohibiting any employee access to the bulletin
boards and blackboard for any type of notice. Respondent's contention
has merit.
There is no statutory right for an employee or a union to use an em-
ployer's bulletin boards or blackboards. The Act's prohibitions come into
262 NLRB No. 119
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Allied Stores of N.Y., Inc., d/b/a Gertz, Massape-
qua, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph l(b):
"(b) Discriminatorily prohibiting its employees
from posting union campaign literature and notices
on the blackboard at the employees' entrance and
on the bulletin board in the employees' cafeteria,
both boards being located at its Massapequa store."
2. Substitute the following for paragraph 2(a):
"(a) Rescind any rule or policy which unlawfully
restricts the employees' use of Respondent's bulle-
tin board and blackboard that are available for gen-
eral use by employees at Respondent's Massapequa
store."
3. Substitute the attached notice for that of the
Administrative Law Judge.
play only where the employer otherwise assents to employee access to
the bulletin board/blackboard but discriminatorily refuses to allow the
posting of union notices or messages. Container Corporation of America,
244 NLRB 318, fn. 2 (1979). Therefore, Respondent could conceivably
promulgate a nondiscriminatory rule denying employees any access to
the bulletin boards or blackboard for any purpose. We will modiCy the
Administrative Law Judge's Order to clarify that we are only proscribing
a discriminatory refusal to allow posting of union campaign literature or
notices. See Axelson, Inc., 257 NLRB 576 (1981).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discriminatorily prohibit our
employees from posting union campaign litera-
ture or union notices on the blackboard at the
employees' entrance and on the bulletin board
in the employees' cafeteria at the Massapequa
store.
WE WILL NOT maintain or enforce any rule
which discriminatorily prohibits our employees
from posting union campaign literature or
union notices or which discriminatorily re-
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quires our employees to seek permission before
posting such literature on the blackboard at
the employees' entrance or on the bulletin
board in the employees' cafeteria at our Massa-
pequa store.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed to
them by the Act, to engage in union or con-
certed activities, or to refrain therefrom, at our
Massapequa store.
WE WILL rescind the disciplinary warnings
given to Mark Schelz on September 8, 1980,
and will expunge from all personnel and other
records all reference to said warnings and will
notify Mark Schelz in writing of such action.
ALI.IED STORES OF N.Y., INC., D/B/A
GERTZ
DECISION
STA TEMENT OF THE CASE
WINIFRED D. MORIo, Administrative Law Judge: This
case was heard before me on June 16 and 17, 1981, in
Brooklyn, New York, pursuant to complaints issued by
the Regional Director for Region 29 on November 21,
1980, and January 8, 1981, in Cases 29-CA-8316 and 29-
CA-8429, respectively. The complaints, based on
charges filed by Retail Clerks Local 1500, United Food
and Commercial Workers Union, AFL-CIO (Local
1500), were consolidated for hearing by order dated May
28, 1981.1 In substance the complaints allege violations
of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended (herein called the Act), in that Re-
spondent maintained in effect a rule which required em-
ployees to report solicitations to Respondent; refused,
contrary to its past practice of allowing employees to use
bulletin boards and blackboards for various types of mes-
sages, to permit employees to use these boards when
they sought to post union-related messages, and repri-
manded, in writing, its employee, Mark Schelz, for plac-
ing a union message on a blackboard. Respondent denies
that it engaged in such conduct.
All the parties were given a full opportunity to partici-
pate in the proceeding, to introduce all relevant evi-
dence, to cross-examine witnesses, to argue orally, and to
file briefs. A brief was filed by Respondent.
Upon the entire record in the case, and my observa-
tion of the demeanor of the witnesses, and after careful
consideration, I make the following:
I Various other allegations contained in the charges including allega-
tions of surveillance, interrogation, the discharge of Wayne Centabar, and
the denial of full employment to Joanne Ferro, for discriminatory rea-
sons, were dismissed after investigation.
FINDINGS OF I'ACT
1. JURISDICTION
Allied Stores of N.Y., Inc., d/b/a Gertz, a New York
corporation, has maintained a place of business in Sunrise
Mall in the city of Massapequa, State of New York,
where it is and has been at all times material herein en-
gaged in the operation of a department store for the
retail sale of merchandise. During the past year, which
period is representative of its annual operations general-
ly, Respondent, in the course of its business operations,
purchased and caused to be transported and delivered to
its Massapequa store goods and materials valued in
excess of $50,000 directly from States of the United
States other than the State in which it is located. During
the same period Respondent received gross revenues,
during the course of its business operations, in excess of
$500,000. The parties admit and I find that Respondent is
and has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit and I find that Local 1500 is a labor
organization within the meaning of Section 2(5) of the
Act. 2
III. THE BACKGROUND EVENTS
Commencing in or about June 1980 Local 1500 started
an organizing campaign at Respondent's store in Massa-
pequa, Long Island. 3 In or about the same time the
Union also started similar campaigns at Respondent's
stores in Flushing and Bay Shore, Long Island. A repre-
sentation petition was filed by the Union for the Flushing
store on July 17, for the Massapequa store on August 22,
and for the Bayshore store on Septemper 23. 4 A hearing
was commenced on the petition filed for the Flushing
store during the month of August, but thereafter the sub-
sequently filed petition for the Massapequa store was
consolidated for hearing with the petition for the Flush-
ing store and hearings were held with respect to both
stores beginning about September 3 and continuing
thereafter in the month of September. An election was
held in the separate stores on December 5. Local 1500
lost the elections at the Flushing and Massapequa stores
but won the election at the Bayshore store.
The instant case concerns events alleged to have oc-
curred at the Massapequa store involving Mark Schelz,
Carol Schaffer, Joanne Ferro, and Wayne Centabar, all
of whom were employed at one point at that store. All
four testified that they were members of the Union's or-
ganizing committee at the Massapequa store and this fact
was known to Respondent's representatives. 5 The inci-
s Hereinafter referred to as Local 1500 or the Union.
I Unless otherwise stated all dates refer to 1980.
4Cases 29-RC-5046, 29-RC-5112, and 29-RC-5152.
a Muriel Rauch, the assistant store manager, testified that she was
aware that Schelz, Schaffer, and Centabar were members of the Union's
organizing committee. Nelson Nutter, the store supervisor, testified that
he was aware that Schelz was a member of the organizing committee.
986
GERTZ
dents which resulted in the issuance of the complaints
concern situations involving these employees.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Blackboard and Bulletin Board Issues
Counsel for the General Counsel contends that Re-
spondent did not have a rule concerning the necessity for
employees to seek permission to utilize company black-
boards and bulletin boards for personal messages and
that the sudden existence of such a rule was the result of
the employees' activities on behalf of Local 1500. Re-
spondent contends that such permission was a prerequi-
site, at all times, to the use of the company boards by
employees for personal messages, that such permission
was granted for personal messages, but that Mark Schelz
failed to seek this permission prior to using a company
blackboard and he was disciplined for this conduct and
not for the contents of the message he sought to publi-
cize. Respondent further contends that subsequent to
mid-September the use of the company boards was re-
stricted even to those who sought permission in an effort
to eliminate obscene material from appearing on the
company boards.
The evidence establishes that Respondent had several
boards which were utilized either to transmit messages to
employees by management or to transmit messages from
employees to employees. While the record discloses that
there were about six such boards, the events in this case
center primarily around the use of two of these boards, a
blackboard at the employees' entrance and a bulletin
board in the employees' cafeteria. A considerable amount
of testimony by both parties was devoted to the descrip-
tion of the various boards, their size, color, etc., appar-
ently in support of or against the credibility of the indi-
vidual witnesses. For reasons set forth below, I do not
consider the physical description of the boards to be of
significance to the issues involved herein.
i. The Schelz incident
On September 5, Mark Schelz, who was, as noted, a
member of the Union's organizing committee and an em-
ployee at the Massapequa store from September 1979,
wrote a message concerning a union meeting on the
blackboard at the employees' entrance during his lunch
period, around noontime. Schelz claimed that he was not
observed by any supervisor at the time he first wrote this
message but later that day, during his break, when he no-
ticed that the message had been erased and he was writ-
ing it again he was observed by Nelson Nutter, the store
supervisor. Nelson did not speak to him. It is undisputed
that Schelz neither sought nor received permission to
write this message. Schelz claimed that at this time he
was unaware that it was necessary to have permission to
write personal messages. On September 8, Schelz was
told by his immediate supervisor to report to the office
of Muriel Rauch, the assistant store manager. According
to Schelz, when he arrived Rauch read to him a pre-
pared statement. The statement reads as follows: "On
September 4 you were observed posting a written notice
in chalk announcing a Union organization meeting after a
similar notice had been since removed. This was done on
a company Bulletin Board which is reserved for compa-
ny notices and announcements. You are now being cau-
tioned that any repetition of that or a similar act will
bring about disciplinary action"6 This apparently
became part of Schelz' personnel file. Rauch also told
Schelz during this meeting that in the future he needed
permission to use the company boards.
The testimony of Nelson Nutter and Muriel Rauch
with respect to the incident differs significantly from the
testimony given by Schelz. Nutter testified that in early
August or September, around lunchtime, he observed
Schelz writing on the blackboard, noticed that the mes-
sage pertained to a union meeting, and questioned Schelz
as to whether he had received permission to use the
blackboard and was told he had not. Nutter's only com-
ment to Schelz was that he could not use the boards
without permission. Nutter then called Rauch, told her
he had seen Schelz writing a message about a union
meeting, asked her whether Schelz had received permis-
sion to use the blackboard, was told by Rauch he had
not received permission, and was instructed by Rauch to
erase the message. Nutter explained that he questioned
Schelz about writing on the board because in his experi-
ence messages, other than company-related messages,
were posted on the various boards only by members of
the personnel department. Nutter claimed that later that
day he noticed that the message about a union meeting
which he had erased was once again on the board and he
called Rauch to ascertain whether permission had been
secured, was told that it had not been given, and again
erased the message pursuant to Rauch's instructions.
Nutter did not know who wrote the message the second
time, It was Rauch's testimony that she received two
calls from Nutter in early September concerning union
messages on the blackboard at the employees' entrance.
During the first call Nutter told her that he saw Schelz
writing a message about the Union on the blackboard
and he asked her if Schelz had permission to do this. She
responded that he had not and she told Nutter to erase
the message. The second time Nutter called he told her
that the message had been rewritten, again he asked her
if she had given permission, and again he was told she
had not given permission and he was told to erase the
message. Nutter did not tell her this time that he had
seen the person who wrote the message. Rauch further
testified that later that day she had occasion to be in the
vicinity of the blackboard and when she observed Schelz
writing on the blackboard she asked whether he had per-
mission and when he said he had not she told him to
erase the message. 7 On September 8, Rauch met with
Schelz in her office. According to Rauch, she did not
ask for or receive from Schelz his version of the events,
rather she read to him a prepared statement.8 Rauch ex-
a Nutter could not explain why he asked Rauch whether Schelz had
received permission when he allegedly knew from Schelz that he had not
received such permission.
7 Rauch was not sure whether she or Schelz actually erased the mes-
sage.
a Rauch admitted that it was customary to get the employee's version
of an incident before issuing a reprimand.
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plained that in situations involving violations of company
rules the usual procedure was to have. a representative
from the personnel department speak to the employee
and then issue a verbal warning, if necessary. 9 If addi-
tional violations occurred thereafter the employee re-
ceived a written warning and if the violations continued
the employee could be discharged. These procedures
were not followed in the case of Schelz. Although
Rauch claims that Nutter had issued a verbal warning to
Schelz, Schelz' personnel file does not contain such a
warning and Nutter did not testify that he actually
warned Schelz. His testimony was that he told Schelz he
could not write notices without receiving permission.
Nelson admitted that it was his usual practice when a
violation of a company rule occurred to warn the em-
ployee that future violations would result in the matter
being referred to the personnel department. This proce-
dure admittedly was not followed with Schelz; Nutter
immediately reported the alleged infraction to Rauch.
When questioned as to why he had not followed his
usual procedure, Nutter stated that he viewed this infrac-
tion as more serious than others.
2. The Schaffer incident
According to Rauch, commencing about the middle of
September, greater restrictions were placed on the use of
the company boards by employees for personal messages.
These restrictions, Rauch claimed, were brought about
by the increase in graffiti found both within and without
the building and by the amount of obscene and deroga-
tory material being posted on company boards by un-
known persons. The witnesses for Respondent, however,
did not explain why management was of the belief that
restrictions placed on the use of the boards for legitimate
purposes would or could control the spread of obscene
material by unknown persons. In any event, from some
point in September until December permission to use
company boards for personal messages could be given
only by William McNamara, the store manager.' ° Not-
withstanding these alleged restrictions, Rauch testified
that personal messages relating to births, deaths, and the
like continued to be posted by management representa-
tives.
Schelz, Schaffer, and Ferro all testified that it was
sometime in September when they became aware that
they had to have permission before posting personal mes-
sages. According to Schelz, in late September, McNa-
mara announced the rule at a company meeting. Ferro
claimed that she saw a notice to that effect posted on the
blackboard and Schaffer testified that she heard about
the rule because of an incident involving Wayne Centa-
bar." At any rate in early October, apparently to test
e At this time it appears that William Tompkins was either a personnel
manager or acting in that capacity.
10 Prior thereto Rauch and the head of personnel also could permit the
posting of personal messages by employees. McNamara was not called to
testify about these events although he was still employed by Respondent
at the time of the hearing.
"t As noted, the portion of the charge which alleged that Wayne Cen-
tabar had been discharged because he wrote a union message on the
blackboard without permission was dismissed and was not.a part of this
proceeding. The Regional Director found that Centabar actually had re-
signed before he attempted to use a company board to write a union mes-
the rule, Joanne Ferro sought permission to post a notice
concerning her desire to sell/or give away kittens.12
Ferro claimed that it was her intention when she sought
permission to post her notice to speak with Kathy Sulli-
van, the personnel manager, but due to the fact that Sul-
livan was not present she made her request to Clara
Rivers, a member of the personnel department.'3 Ac-
cording to Ferro, at the time she made her request,
Rauch was present and heard the request but said noth-
ing. Rivers authorized the posting of the notice and
Ferro in fact posted the notice. 14 Rauch denied that
such an incident occurred although she admitted, as
noted, that even during this period of time when there
was a restriction on the use of the boards, personal no-
tices relating to deaths, births, etc., continued to be
posted. Rivers, although employed by Respondent at the
time of the hearing, was not called to testify. Carol
Schaffer confirmed Ferro's testimony that a notice con-
cerning kittens had been posted. She placed this posting
as occurring about a week before she made a request to
post a union notice.
Schaffer, employed at various times between Novem-
ber 1979 and December 1980, was, as noted, also a
member of the Union's organizing committee.'6 Accord-
ing to Schaffer, about October 17, now aware of the
rule, she sought permission from Rauch to post a notice
about a union meeting on the bulletin board in the em-
ployees' cafeteria. Schaffer claimed that Rauch immedi-
ately refused her request, telling her that company
boards were for company messages. Schaffer further tes-
tified that, although she attempted to show the notice to
Rauch, Rauch refused to look at it. Rauch admitted that
Schaffer did seek permission to post a notice but she
denied that Schaffer mentioned the subject matter of the
notice to her. Rauch testified that Schaffer said, "Well I
have something I'd like to post on the bulletin board. I
said that I can't give permission or I won't give permis-
sion." Thus, according to Rauch she refused to allow
Schaffer to post the notice notwithstanding that she was
unaware of the contents of the notice and notwithstand-
ing that personal messages were still being posted, if ap-
proved.
3. The alleged rule concerning the blackboards and
the bulletin boards
Schelz, Centabar, Schaffer, and Ferro testified that
they were unaware of any rule which required employ-
ees to seek managerial approval before posting personal
messages on company boards until sometime in Septem-
ber. It is Respondent's position that there always was
such a rule and sometime in September greater restric-
sage. According to Schaffer, it was because of this incident, however,
that she first became aware that permission had to be secured before per-
sonal messages could be posted.
"2 Ferro testified that prior to this attempt there had been discussions
at a union meeting in early October about how the employees could post
a notice about a union meeting. This notice about the kittens apparently
was a first step in their efforts to get union notices posted.
"a Nutter testified that it was Rivers who frequently posted notices.
14 Ferro claimed that Rivers asked Rauch if she were interested in
having a kitten but Rauch replied she was not interested.
's This fact was known to Rauch.
988
GERTZ
tions were placed on the use of the boards. There is no
dispute that the alleged rule was not in written form, al-
though there was a company handbook."' Nutter and
Rauch also testified that there had not been a general an-
nouncement of the rule to employees. In fact, according
to Rauch's testimony, employees were made aware of
the rule by her only on an ad hoc basis. Nutter testified
that although he had been employed for 33 years he was
unaware of the rule until he became the store supervisor
in March 1980. He further testified that he did not dis-
seminate the rule to those employees under his supervi-
sion even after he was made aware of it. McNamara, the
store manager, was not called to testify. Rauch claimed
that prior to about mid-September only three people had
the authority to grant permission to place personal no-
tices on company boards: McNamara, the personnel
manager, and herself. There is no evidence in this record
that this information was relayed to the employees. The
record does reveal, however, that personal messages
were posted frequently on both the bulletin board in the
employees' cafeteria and the blackboard at the employ-
ees' entrance. The witnesses for the General Counsel and
Respondent both testified that funeral notices, thank you
notices, notices concerning the sale of items, notices con-
cerning outside activities arranged by employees for
other employees, and those of similar content were
posted on both boards, although most of the notices
were placed on the bulletin board in the cafeteria. Rauch
testified that company procedure required employees to
make a request to the personnel department for permis-
sion to post the notice and if the notice were considered
in "good taste" permission would be granted. However,
Rauch also testified that, while she observed notices re-
lating to the Islander victory, a congratulatory notice
concerning the birth of a baby, and other items of similar
nature on the blackboard at the employees' entrance she
did not investigate to see if permission had been granted
for these postings, although she knew she had not au-
thorized the postings. At another point in her testimony
Rauch admitted that, if she saw a thank you notice, a
notice concerning items for sale, or the like she would
not check to see if the employee had secured permission
to post the notice or write on the blackboard. Rauch ap-
parently never removed a notice or directed the removal
of a notice, prior to the Schelz incident, although she
claimed that she would do so if she knew the posting
had not been authorized. Nutter also testified that he ob-
served notices of a personal nature on the boards and
generally did not bother to ascertain whether permission
had been granted for such postings.' 7 Schelz testified
that he had posted the notice concerning the Islander
victory without securing permission to do so. Wayne
Centabar testified that he posted a notice about a softball
game, also without prior approval, on the blackboard at
the employees' entrance and observed another employee
posting a notice concerning a party and he was aware
that this employee had not asked for or received permis-
sion to post the notice concerning the party. These var-
y8 G.C. Exh. 4
] Nutter did testify that when he observed the notice about the Is-
lander victory he checked to see if approval had been given for that
notice.
ious notices remained posted for several days prior to
being removed.
B. The Solicitation Issue
The complaint alleges that the Employer maintained in
effect the following rule:
Solicitations for donations and distribution of litera-
ture. Associates are prohibited from soliciting for
any purpose and distributing literature of any kind
on the premises of the Company during their work-
ing time. If any person, fellow Associate or other-
wise, attempts to solicit you for any reason, please
report this immediately to your supervisor.
The rule is contained in the "Welcome to Gertz" em-
ployee handbook. 1 s The basis for the alleged unfair
labor practice is not the rule itself but the requirement
that employees report solicitations to Respondent. Wit-
nesses for the General Counsel credibly testified that
they had not received such a handbook. Nor was there
evidence offered by the witnesses for the General Coun-
sel to establish that employees at the Massapequa store
were made aware of this rule in some other fashion. The
undisputed testimony by Muriel Rauch establishes that
the employee handbook had not been available in the
Massapequa store for about 2 years prior to the time of
the hearing. Rauch was not aware if this specific rule
was told to employees during employee training sessions,
although she did testify that she thought efforts were
made to discuss the rules contained in the handbook
during training sessions. According to Rauch, employees
were told generally that they could not solicit for any
purpose on worktime and she expected that the person-
nel department would be informed if such solicitation oc-
curred. It was also her testimony that if employees were
on the work floor but on their breaktime and they were
solicited they could bring the matter to her attention if
the soliciting upset them. This record fails to disclose
that any employee made a report about a solicitation to
supervisory personnel or that any employee was disci-
plined for soliciting or for failing to report solicitations.
Analysis and Conclusions
The Blackboard/Bulletin Board Rule
It is Respondent's position that, by the use of the word
"permitting" in the complaints, the General Counsel has
conceded that Respondent had, as it contends, always re-
quired employees to seek permission before using the
various boards for personal messages. I am not persuaded
by this argument. It is clear, based on this record, that
such a rule did not exist prior to early September, or if it
did exist, its existence was not made known to the em-
ployees prior to that time. Witnesses for the General
Counsel credibly testified that they were unaware of any
such rule prior to at least early September. The testimo-
ny of these witnesses is supported by the testimony of
Respondent's witnesses, Nutter and Rauch. Both testified
L8 G.C. Exh. 4. The issue of the legality of the rule will be discussed
below.
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there was no written rule concerning the need to
seek permission notwithstanding that there was at one
point a company handbook which did contain various
other company rules. Nutter, employed for 33 years, fur-
ther testified that he was unaware of any such rule
during those years and he allegedly was made aware of
it only when he became a store supervisor in March. It is
impossible to believe that an employee with so many
years of service could have been unaware of such a rule
if it existed. However, assuming that Nutter in fact
learned about the rule in March it is clear that he did not
consider it of much importance. Thus, he testified that he
did not announce the rule to the employees under his su-
pervision, including those employees involved herein,
from March through September. According to his testi-
mony the first time he stated the rule to an employee
was when he told it to Schelz after he observed him
writing a message about the Union. Rauch also testified
that, to her knowledge, the rule was not announced gen-
erally to employees but was told to them only on an ad
hoc basis. It is difficult to understand how an employer
can discipline employees for an infraction of a rule
which it has kept secret from them. An employer may of
course, absent contractual provisions to the contrary,
limit access to company boards for personal messages,
but if it has a rule which limits such access it is the re-
sponsibility of the employer to make such a rule known
to the employees before disciplining them for violating
it.29 I am not convinced, however, based on testimony
of all the witnesses, that there was such a rule prior to
September but find rather that Respondent allowed em-
ployees to use company boards for personal messages
without seeking permission until the personal message re-
lated to union business. It is undisputed that the black-
board and bulletin board at issue were used for personal
messages. The witnesses for the General Counsel credi-
bly testified that they posted personal messages without
obtaining prior permission to do so. Respondent con-
tends that it could not discipline the employees who
posted such notices without authorization because it was
unaware of the employees involved in the conduct. It
may be that Respondent was unaware of the "guilty"
party but it is clear that Respondent, prior to the posting
of the union message, made no effort to ascertain wheth-
er all the personal notices posted were authorized and
further it failed to alert employees that unauthorized
posting would result in disciplinary action. Both actions
naturally would have occurred if in fact there were a
rule which was being violated, albeit by unknown per-
sons. The fact is that no action was taken by Respondent
about personal messages being posted until the message
related to the Union. Rauch and Nutter both testified
that prior to the Schelz incident they have on numerous
occasions observed personal messages on the company
boards and both admitted that they did not investigate to
determine whether the postings were authorized. This is
particularly strange with respect to Rauch because she
testified that at times she knew that she had not author-
ized a particular posting but she nonetheless did not
bother to ascertain if permission to post the particular
'i Montgomery Ward & Co., Inc., 224 NLRB 104, 109 (1976).
notice had been granted. This tolerant attitude toward
the posting of various personal messages was in marked
contrast to the conduct of both in connection with the
union message posted by Schelz. Nutter testified that
upon observing Schelz he immediately called Rauch to
tell her that Schelz was writing a union message and to
ask if he had secured permission to do so. However,
Nutter already knew, according to his own testimony,
that Schelz did not have permission and was therefore
allegedly violating a company rule. Aside from the issue
of why Nutter would need to ask whether permission
had been granted when he knew, according to his testi-
mony, that it had not, the more important aspect to con-
sider is what was there about this incident which caused
Nutter to act contrary to his usual practice. Nutter testi-
fied that prior to this incident it had been his practice,
when an employee violated a company rule, to first dis-
cuss the matter with the employee and only if violations
continued to occur to refer the matter to the personnel
department. He did not do this in the case of Schelz.
Rauch's response to Nutter was to remove the message
immediately. Rauch did this without ascertaining wheth-
er either McNamara or the personnel department had au-
thorized the message, apparently because she was certain
authorization for this type of message would not have
been given. It is necessary also to consider why Nutter
and Rauch failed to testify truthfully about this incident.
I make this finding that they did not do so based not
only on the demeanor of the witnesses but also on an
analysis of the written reprimand and prepared by
Rauch. This document was prepared by Rauch only
after consultation with McNamara. It was therefore not
a hastily prepared document and one would expect
therefore that it would refer to all the crucial events
which gave rise to the written reprimand. This repri-
mand contains the statement that Schelz was observed
writing the message after a similar notice had been re-
moved. It is clear from these words that whoever ob-
served Schelz writing the message did so the second
time Schelz wrote the message. It does not state, as
Nutter testified, that he observed Schelz the first time he
wrote the message. It confirms rather Schelz' testimony
that he was observed the second time he wrote the mes-
sage. Moreover this written reprimand fails to mention
that Schelz had received an earlier verbal warning from
Nutter for the same act, a fact testified to by Rauch. In
view of the fact that it was company policy, according
to Rauch, to issue verbal warnings before issuing written
warnings, it is unlikely that this point would have been
omitted from the written reprimand if it had occurred.
Finally, this document fails to mention Rauch's alleged
observation of Schelz rewriting the message. It is diffi-
cult to believe that Rauch would have forgotten this bla-
tant disregard of her orders when she prepared the writ-
ten reprimand. These omissions from this document sup-
port the testimony given by Schelz; i.e., that he was not
reprimanded by Nutter, that it was Nutter and not
Rauch who observed him, and that Nutter did not speak
to him about what he was doing. In sum, based on this
record, I find that Respondent did not have a rule re-
quiring permission to post personal messages, but rather
990
GERTZ
that it had a policy of allowing employees to post per-
sonal messages without requiring them to seek prior au-
thorization. There is no statutory right of employees to
use company boards.20 However, where an employer's
change of policy coincides with the employees' union ac-
tivities an inference is warranted that the change was dis-
criminatorily motivated.2 ' An employer who has permit-
ted company boards to be used for personal messages
without restriction and who thereafter refuses use of the
boards or places restrictions on the use of the boards be-
cause the messages sought to be placed thereon are
union-related messages violates Section 8(a) (1) of the
Act. 22 It is clear that Respondent in removing the union-
related message was discriminatorily motivated and its
conduct therefore is violative of Section 8(aX1) of the
Act. 23 Further, I find that the written reprimand given
to Schelz was discriminatorily motivated and violates
Section 8(a)(3) of the Act. With respect to the alleged
tightening of the rule in mid-September, I am not per-
suaded that it was the result of the obscene material al-
legedly placed on the board. 24 However, assuming ar-
guendo, that such was the case it is clear that the
"tighter" restrictions were applied only to union mes-
sages. Thus, Respondent's witnesses testified that birth,
death, and similar types of notices continued to be
posted, even after mid-September, with management's
permission. However, when Schaffer attempted to post a
message about the Union, permission was denied. I do
not credit Rauch's statement that Schaffer did not tell
her that the message she sought to post was union relat-
ed. However, assuming that I did credit this testimony, I
nevertheless find that Rauch was aware that the message
Schaffer sought to post was union related and that she
refused permission because of this fact. Rauch knew that
Schaffer was a member of the Union's organizing com-
mittee. When Schaffer made her request Rauch immedi-
ately rejected the request without inquiring into the mes-
sage's contents, notwithstanding that at that time other
employees admittedly received permission to post per-
sonal messages. This disparate treatment was motivated
by Respondent's hostility to the Union and violates Sec-
tion 8(a)(1) of the Act. 25
Analysis and Conclusion
The Solicitation Rule
The General Counsel contends that the rule which re-
quires employees to report solicitations to supervisors
presently is in effect. He bases this contention on
Rauch's testimony that she would expect an employee
who was solicited while off duty but on the selling floor
to report the incident to her and on the further fact that
at some point employees did receive the employee hand-
20 Container Corporation of America, 244 NI.RB 318, fn. 2 (1979).
aI Norton Concrete Company of Longview, Inc., 249 NLRB 1270, 1276
(1981).
as Arkansas-Besrt Freight System. Inc., 257 NLRB 420 (1981).
"S K-Mart Corporation, 255 NLRB 922 (1981).
"4 In this connection it is interesting to note that the alleged tightening
of restrictions coincided with the beginning of the representation hearing
in September and continued through until after the Union lost the elec-
tion in December
25 Arkzansas-Best Freight Systems, Inc., supra.
book which contained the rule and Respondent has failed
to show that employees have been told that the rule is
no longer in effect. Moreover, he argues that the require-
ment to report solicitations is ambiguous because it is
subject to an interpretation which could coerce employ-
ees not to exercise their statutory rights and it is there-
fore unlawful unless it can be shown that it was commu-
nicated to the employees in such a way as to convey an
intent to permit lawful solicitation. There was no such
showing made in this case, according to the General
Counsel. Respondent contends that the entire rule had
not been in effect for at least 6 months prior to the issu-
ance of the instant complaint. Furthermore, Respondent
claims that if it is found that the rule was in effect it
cannot be considered unlawful because the rule referred
to solicitations for donations only, the rule did not re-
quire employees to report the solicitation but only re-
quested such reports and finally since the rule is a pre-
sumptively valid rule a request to report infractions of
the rule is not unlawful. Respondent's argument that the
rule had not been in effect has merit.
The witnesses for the General Counsel testified that
they had never received the employee handbook.26
Moreover, although these witnesses testified on both
direct examination and extensive cross-examination about
their knowledge of company rules they did not mention
a rule about solicitation although they did testify about
rules concerning dress code, proper identification, and
use of employee entrances. There is no evidence in this
record that any employee at the Massapequa location
ever received a copy of the employee handbook or that
they were told about the rule. Although Rauch did men-
tion that the handbook was given to employees at some
location, at some time her testimony, as to this point,
was vague and indefinite. Her uncontradicted testimony
did establish however that the handbook had not been
available for some years prior to the hearing.2 7 Further-
more, although Rauch did testify that she assumed that
employees were told about the rules in the handbook at
their training sessions, she admitted that she had no per-
sonal knowledge of whether they were told about this
rule and the testimony of employee witnesses indicates
that the rule was not told to them. In addition and con-
trary to the General Counsel's contention, Rauch did not
testify that she expected employees to report solicitations
made to them while they were on their break periods but
on the work floor. The word "expectation" was used by
her in connection with solicitations made to employees
while on worktime on the work floor. While Rauch may
have expected such reporting by employees who were
solicited she did not testify that they were required to do
so. With respect to incidents of solicitation which oc-
curred while an employee was on a break period but on
the work floor, Rauch testified that she was available to
discuss the matter with any employee if the employee
wanted to do so and was upset by the solicitation. The
General Counsel failed to produce any evidence that any
'6 Joanne Ferro, one of the employees who gave testimony, was hired
in 1977.
a, It is not clear whether Rauch. in making this statement, was refer-
ring to handbooks available at this location or at other locations.
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee was reprimanded for solicitation of any kind or
that any employee received any type of disciplinary
warning for failing to report any type of solicitation. In
sum, this record is devoid of any evidence that Respond-
ent maintained, promulgated, or enforced the rule or the
reporting requirement of the rule within the 10(b) period.
As noted above, the existence of the rule or the report-
ing requirement at any other location is speculative based
on the evidence in this record.28 Accordingly, on the
evidence in this record, I find that the General Counsel
has failed to establish that Respondent maintained, en-
forced, or promulgated the no-solicitation rule and the
reporting requirement of that rule within the 10(b)
period. 29 In these circumstances a violation of the Act
cannot be found.30 Accordingly, I find this allegation
has not been sustained.3 '
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a rule
which discriminatoriiy requires employees to seek per-
mission to post union campaign literature on the black-
board at the employees' entrance and the bulletin board
in the employees' cafeteria, both boards being located at
Rcspondent's Massapequa store, contrary to its past prac-
tice of' allowing employees to use such boards for var-
ious messages without requiring them to seek permission
to do so, Respondent has interfered with, restrained, and
.:oerced its employees in the exercise of their Section 7
rights and has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By promulgating, maintaining, and enforcing a rule
which discriminatorily prohibits employees from posting
union campaign literature on the blackboard at the em-
ployees' entrance and the bulletin board in the employ-
ees' cafeteria, both boards being located at its Massape-
qua store, Respondent has interfered with, restrained,
28 In making this determination, I have considered that Rauch, in her
affidavit to the Board, apparently mentioned that such a rule was in exist-
ence. However, it is clear from this record that Rauch, when she gave
the affidavit, svas not speaking from personal knowledge of the events at
this location Moreover, the maintenance and enforcemrent of this rule at
any other location was not alleged or litigated in this proceeding and it
would be therefore inappropriate to consider what may have occurred at
another location. General Motors Corporation. Delco Moraine Division, 237
NLRB 1509, fn. 3 (1978)
2a It should be noted that, having found knowledge of a rule by em-
ployees to be a necessary element before an employer may impose disci-
plinary measures, it would be a contradiction now to find a violation
wshen witnesses for the General Counsel deny knowledge of this rule.
30 General Motors Corp.., supra at 1515.
s" As noted it was the requirement to report solicitation to supervisors
which was alleged to be unlawful. The parties accepted that the rule
itself was a presumptively valid rule. However, it should be noted that in
TR.W. Bearings Division. a Division qf T.R.W. Inc., 257 NLRB 442
19111), the Board discarded the dis:inction between working hours and
working time and placed on the respondent the burden of advising em-
ployees as to the limitations on their right to solicit. The issue of legality
of the rule itself was not litigated in this proceeding and accordingly I
have not made a determination on the legality of the rule. However, the
holding in that case tends to warrant the conclusion that the requirement
to report all solicitations, if it existed, would violate the Act because the
requilement is ambiguous on its face.
and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act and has engaged in
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
5. By issuing a written reprimand to its employee,
Mark Schelz, for placing a union campaign message on
the blackboard at the employees' entrance at its Massape-
qua store, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. Respondent did not violate the Act with respect to
that portion of the complaint which alleges that Re-
spondent required employees to report solicitations to it.
THE REMEDY
Having found that Respondent has committed viola-
tions of Section 8(a)(l) and (3) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act including the posting of an appro-
priate notice to employees. I shall specifically recom-
mend that Respondent be ordered to rescind its discrimi-
natory policy of requiring employees to seek permission
to post union campaign literature on the blackboard at
the employees' entrance and on the bulletin board in the
employees' cafeteria, both boards being located at its
Massapequa store, and to rescind any rule which discri-
minatorily prohibits its employees from posting union
campaign literature on the aforesaid boards.
Having found that Respondent has discriminated
against Mark Schelz, as described above, in violation of
Section 8(a)(3) of the Act, I shall order Respondent to
rescind the disciplinary notice issued to him on Septem-
ber 8, 1980, and expunge it from his personnel and other
records and to notify him of such action.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the National Labor Relations Act, as amended. I
hereby issue the following recommended:
ORDER 3 2
The Respondent, Allied Stores of N.Y., Inc., d/b/a
Gertz, Massapequa, New York, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining and enforcing any rule or policy
which discriminatorily requires employees to seek per-
mission to post union campaign literature on the black-
board at the employees' entrance and on the bulletin
board in the employees' cafeteria, both boards being lo-
cated at its Massapequa store.3
32 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National L abor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 4R of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
sa The Order has been limited to the Massapequa location in view of
the fact that this record fails to disclose evidence of such a rule or policy
at any other location.
992
GERTZ
(b) Prohibiting its employees from posting union cam-
paign literature on the blackboard at the employees' en-
trance and on the bulletin board in the employees' cafe-
teria, both boards being located at its Massapequa store.
(c) Maintaining and enforcing any rule or policy
which discnminatorily prohibits its employees from post-
ing union campaign literature on the blackboard at the
employees' entrance and on the bulletin board in the em-
ployees' cafeteria, both boards being located at its Massa-
pequa store.
(d) Issuing written reprimands to its employes because
they have been engaged, on behalf of the Union or any
other labor organization, in posting union campaign lit-
erature on the blackboard at the employees' entrance and
the bulletin board in the employees' cafeteria, both
boards being located at its Massapequa store, while per-
mitting employees to use the aforesaid boards for non-
company-related matters.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by the Act.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Withdraw and rescind its rule and/or policy re-
garding the requirement for employees to seek permis-
sion before posting union campaign literature and which
prohibits employees from posting such material on the
blackboard at the employees' entrance and the bulletin
board in the employees' cafeteria, both boards being lo-
cated at its Massapequa store.
(b) Rescind the disciplinary warning given to Mark
Schelz on September 8, 1980, and expunge all reference
to said warning and notify Mark Schelz, in writing, that
said action has been taken.
(c) Post at its Massapequa store copies of the attached
notice marked "Appendix. " s4 Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
"a In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
993