Associated Dry Goods Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1976

221 N.L.R.B. 1344 (N.L.R.B. 1976)

1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
L. S. Ayres & Company , a Division of Associated
Dry Goods Corporation and Furniture, Depart-
ment Store Union Local No. 193, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Case 25-CA-
6691
January 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On July 14, 1975, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions to certain portions of the Decision
together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein .3
Contrary to our dissenting colleague, we agree with
the Administrative Law Judge that the Venneman
speech, as written, violates Section 8(a)(1) of the Act.
Respondent told its employees that if they signed
cards for the Union they could be subpenaed and
cross-examined by the Company with respect to, the
signing of such cards and, inferentially, that the
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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
2 Based on the credited testimony, Chairman Murphy agrees that
Superintendent Venneman's deviation from the prepared text of the July 12
speech to include the statement that "employees who signed union
authorization cards would be branded as troublemakers" rendered the
speech an unlawful threat in violation of Sec. 8(a)(1) of the Act However,
Chairman Murphy is of the view that the speech, had it been given as
written, would not have been unlawful. She sees nothing in the Administra-
tive Law Judge's Decision which indicates that he held otherwise. In any
event, she would not adopt any comments of the Adnumstrative Law Judge
which could be construed as finding that the speech as written was unlawful.
Respondent's written speech merely emphasized the seriousness of the card-
signing act by detailing the ways in which the cards could be used The
statement referred accurately to the possibility that the Union could seek
recognition by means other than a secret ballot election There was nothing
to indicate that Respondent would interfere with the holding of such an
election. Nor is there any basis for the employees reasonably to infer that
retaliatory action would be taken against those who signed authorization
cards.
3 Chairman Murphy would dismiss the allegations that Respondent
violated Sec. 8(a)(1) by unlawfully offering wage increases to employees
Pannell and Cotton if they would abandon their proumon attitude. Pannell
and Cotton were each given 15-cent pay raises by Manager Allen on or
221 NLRB No. 223
Company would then know that they were in favor
of the Union. There would be no secret ballot
election protecting ,their anonymity. As the employ-
ees could see, the Respondent pointed out, "the
signing of a card can be very serious." In view of
Respondent's known antiunion policy and in the
context of its unfair labor practices, the employees
could reasonably infer from the above formal
statement that their signing of union cards would
inevitably come to the attention of Respondent and
could lead to discrimination and reprisals against
them.
We also agree with the Administrative Law Judge
that Manager Allen unlawfully offered wage increas-
es to employees Cotton and Pannell if they would
abandon their prounion "attitude." Unlike our
dissenting colleague, we can only perceive of Allen's
admonition to Cotton and Pannell as constituting a
veiled reference and directive to abandon the Union.
Surely, the allusion was not to their work perform-
ances. For, Allen conceded that Pannell's work was
"O.K." Also, Assistant Manager Quinn stated that
Cotton was a good worker and should be a
supervisor.
In light of Respondent's avowed antiunion posi-
tion, its knowledge of the union activities of Cotton
and Pannell by virtue of Manager Allen's admission
that she knew they wore union badges,, Respondent's
almost identical pattern of conduct with respect to
the wage increases in that each, employee was told
that she was supposed to receive a 30-cent-per-hour
raise , but was given 15 cents at the time and was told
she could obtain the other 15 cents depending upon ,a
change in her "attitude," and the existence of no
about October 1, 1974, at which time each was told she would receive an
additional increase of 15 cents if her "attitude" improved . About 30 days
later, each was informed by Allen that she would not receive the additional
15 cents increase in pay because her "attitude" had not changed.
There is nothing to indicate that Allen's admonition to employees
Pannell and Cotton that they improve their "attitude" constituted a veiled
reference and directive to abandon the Union. Indeed, Pannell's only union
activity consisted of her signing a union authorization card in July 1974. She
was not a member of the union organizing committee . She did not
participate in any distribution of union literature, nor did she engage in any
union activities prior to the events in question . There is thus no reason to
believe that Respondent had any reason to single out Pannell because of her
union sentiments True, Cotton as a member of the union organizing
committee was active on behalf of the Union . Also, Cotton testified that
when she accused Manager Allen of denying her the additional increase in
pay "because I was for the Union," Allen retorted , "I thought that was what
you'd say." The Chairman perceives Manager Allen's response as
constituting nothing more than an acknowledgment that she was aware of
Cotton's union activity, and also aware that Cotton might conclude that the
action was taken because of those activities, and so assert However, that
acknowledgment does not establish that Cotton's activities motivated Allen
to make the pay raise offer. As there is nothing else to indicate that the offer
was made because of Cotton's union activities, and inasmuch as Allen
similarly denied a wage increase to Pannell , who concededly was not
actively involved in the union organizing campaign , the Chairman finds an
insufficient basis for inferring that Manager Allen's offer of an additional
pay increase to these employees was conditioned on their withdrawal of
support for the Union.
L. S. AYRES & COMPANY 1345
other credible reason for relating the wage increases
to their "attitude," we are led inexorably to the
conclusion that Respondent was equating "attitude,"
with union sentiment and violated Section 8(a)(1) of
the Act by its unlawful offer to Cotton and Pannel of
additional wage increases dependent upon their
withdrawal of support for the Union.
The Administrative Law Judge concluded that
employee Edith Tanner - was constructively dis-
charged by Respondent in violation of Section
8(a)(3) and (1) of the Act on July 24, 1974, when
Tanner quit after Respondent indicated that she
would be discharged if she attended any union
meetings . In reaching this conclusion, the Adminis-
trative Law Judge determined that Tanner was not a
supervisor. We find merit in Respondent's conten-
tion that Tanner was a supervisor within the meaning
of Section 2(11) of the Act .4 Since we do not find any
special factors in this case which might support a
conclusion that the discharge of Tanner was none-
theless violative of Section 8(a)(1), we shall dismiss
the complaint allegation pertaining to Tanner.
Tanner was one of four checker-markers regularly
employed in the cosmetic department of Respon-
dent's warehouse. She was moved to cosmetics in
1968 or 1969 at which time she was then asked to be
leadperson in cosmetics by her then supervisor David
Baker . Tanner performed the same checking and
marking functions as other checker-markers in the
department. In addition, Tanner's responsibilities
included: maintaining forms indicating daily pro-
cessing of shipments through the cosmetics depart-
ment ; checking invoices against merchandise and
processing of invoices with the order room; training
new employees; signing timecards of extra employees
authorizing them to receive discounts on Respon-
dent's merchandise; and rescheduling work assign-
ments to meet priority shipments. Further, on at least
one occasion, an employee in the cosmetics depart-
ment was changed from part-time to full-time status
based on Tanner's recommendation.
If a need arose for overtime, Tanner would inform
her supervisor who would in turn authorize the
employees to stay. Tanner initialed employee time-
cards for overtime, but her supervisor had to sign the
cards at the end of each week-Tanner recommended
transfer of employees to other departments when she
had more help than she needed, although the actual
reassignments had to be approved and effectuated by
her supervisor. Tanner also attended supervisory
meetings ; was rated on a supervisor evaluation form;
was paid at a higher rate than other checker-
4 In so finding, we place no reliance on Resp . Exh 18 (the Tanner
promotion notification slip of May 14 , 1974) since, as discussed by the
Administrative Law Judge , there - is a substantial question as to the
authenticity of this document.
markers; 5 and had her own desk and intercompany
telephone.
In addition, Tanner testified that, upon requesting
and receiving authorization to call in additional help
to meet seasonal variations in the workload, it was
she who decided which of the extras should receive
the work and would, in fact, call the extras in herself.
Similarly, Manager David Hankins, Tanner's imme-
diate supervisor from about March 1973 to March
1974, testified that, upon advice from Tanner that a
slack in ' work necessitated 'a layoff, and after
authorizing her to take the necessary action, it was
Tanner who determined which employees would be
put "on call" in accordance with her evaluation of
their work performance.
Tanner also filled out performance evaluation
forms, rating employees on a nine-point scale with
respect to their job performance and on which ' she
included her personal comments as to needed
improvement. According to Tanner, evaluations
were utilized for the purpose of determining whether
or not an employee received a wage increase.
Following completion of the evaluation form, the
employee rated would be called in for a review
discussion at which Tanner was sometimes present.
Upon completion of the review discussion, the
employee was told how much of a raise she would
receive.
In light of the foregoing facts, we find that Tanner
is a supervisor within the meaning of the Act. In so
finding, we place particular reliance on the fact that
Tanner evaluated employees and her admission that
she independently determined which employees
would be called to come in to work in case of an
increased workload or would be laid off during a
slow period. Accordingly, we shall dismiss this aspect
of the complaint.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative' Law Judge as
modified herein and hereby orders that the Respon-
dent, L. S. Ayres & Company, a Division of
Associated Dry Goods Corporation, Indianapolis,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified below:
1. Delete paragraphs 1(e) and (f) and 2(a), (b),
and (c), and reletter the following paragraphs
accordingly-
5 Tanner received $3.10 per hour while the others received $2.45-$2.50.
6 Member Fanning does not agree . He would affirm the conclusions of
the Administrative Law Judge and, accordingly, dissents from this
dismissal.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice for that of the
Administrative Law Judge.
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 having found,
after a trial, that we violated the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT coercively question you about or
pry into your union activities or sentiments.
WE WILL NOT create the impression that We are
spying on or watching your union meetings, card
signing, or other union activities.
WE' WILL NOT threaten you with discharge, loss
of benefits, harassment, or other reprisal in
connection with your union activities.
WE WILL NOT offer you wage increases to
abandon your support of the Union.
WE WILL NOT in any like or related manner
restrain , interfere with, or coerce our employees
in the exercise of the rights guaranteed by Section
7 of the Act.
L. S. AYRES &
COMPANY, A DIVISION OF
ASSOCIATED DRY GOODS
CORPORATION
supervisor who voluntarily quit when told she could not
attend union meetings . General Counsel contends that
Tanner was a nonsupervisory employee whom Respondent
forced,to resign when she refused to desist from engaging
in union activities.
The case was heard in Indianapolis, Indiana, February
25, 26, 27 and April 7 and 8, 1975. General Counsel and
Respondent have filed briefs.
Upon the entire record in the case, including my
observation of - the witnesses and consideration of the
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a ,Virginia corporation with its principal
office and place of business in Indianapolis, Indiana, there
and elsewhere engaged, in the retail department store
business. Involved in this case is Respondent's Indianapo-
lis warehouse that supplies merchandise for the Indianapo-
lis and other stores in the region.
In the 12 months preceding issuance of the complaint, a
representative period, Respondent sold goods valued in
excess of $500,000; and in that period shipped goods
valued in excess of $50,000 from Indiana to places in other
States, and received in Indiana, goods valued in excess of
$50,000 from places outside Indiana.
Respondent is, as the parties admit , an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is, as the parties also admit, a labor
organization within the meaning of Section 2(5) of the Act.
DECISION
STATEMENT OF THE CASE
HERZEL H.E. PLAINE, Administrative Law Judge: The
question presented is whether Respondent engaged in
conduct that violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act), while the
Charging Party-(Union) sought to organize Respondent's
warehouse employees, in the several month period that
preceded the Board conducted election of November 7,
1974.
The complaint, issued December 31, 1974 and amended
February 25, 1975 (on, a charge by the Union filed
November 14, 1974), alleged that Respondent threatened
employees with reprisal for support of the Union, coercive-
ly interrogated them regarding union activities, created the
impression of surveillance, of employee union activities,
and offered, promised, or granted wage increases' or other
benefits if employees refrained from support of the Union,
in violation of Section 8(a)(1). It was also alleged that
Respondent violated Section 8(a)(3) and (1) by discharging
employee Edith Tanner because she engaged in union
activities.
Respondent denied any wrongdoing, and, ^in-the case of
employee Tanner, contended that she was a statutory
H. THE UNFAIR LABOR PRACTICES
A. Respondent 's Pertinent Business Operations
Respondent maintains at Hillside Avenue in Indianapo-
lis, a warehouse or service center, where it receives goods
,shipped from manufacturers and dealers , and unpacks,
marks, and repacks or assembles the merchandise for
shipment to and sale by its retail department stores in
Indiana and Kentucky.
The service center comprises three large connected
buildings-the North Building, the South Building, and the
28000 Building which connects the other two. There is also
an adjacent building, the Mobile Building, whichhouses
the display production group.
There are about 200 employees at the service center. In
charge of the center is Superintendent Joseph Venneman.
Under him are several managers , including Stock Handling
Manager James Stumpf (of North Building and 28000
Building), Material Handling Manager Lon Dalton (of the
South Building), Bulk Storage Manager David Hankins (of
the North Building) formerly manager of receiving,
transfer , semibulk , and cosmetic areas (of the South
Building), Building Maintenance Manager or Supervisor
L. S. AYRES & COMPANY 1347
Patrick (Pat) Burns, and Manager of Order Checking Jane
Allen.' All of the above persons were admitted supervisors
within the meaning of the Act (see complaint par. 4 and
answer par. 1).2
In addition to the above recognized supervisory person-
nel, spread among the various areas of the service center,
Respondent has about 25 production or maintenance
employees, more experienced or more skilled than their
fellow employees, who it has designated "area supervi-
sors." Initially, their status was in dispute in the representa-
tion case, 25-RC-5763, Respondent, at first, contending
that they were statutory supervisors excluded from the
employee unit. ,The Regional Director ruled that they were
not statutory supervisors and were included in the
employee unit. Respondent then stipulated on December 5,
1974, after the election, that they were employees in the
unit and that Respondent's challenges to their ballots
should be overruled and the ballots opened and counted
(see G.C. Exh. 1w,, Exh. 2, and attachment A).3 That
general issue, concerning' the, status of the group of area
supervisors, is not.in this case for decision, but did come in
tangentially because Respondent contended, and claimed
it was significant, that the alleged 8(a)(3) discriminatee,
Edith Tanner, was an area supervisor at the time her
employment was terminated, a fact which Tanner denied,
quite apart from the significance Respondent or anyone
attached to the title or classification.
Also involved in aspects of manage nt of the affairs of
the service- center are Respondent's//executive vice presi-
dent, William (Bill) Stout, and Personnel Director Crocker
Price.
B. Union Activity
The service center employees were not unionized when
the Union began an organizing campaign in July 1974.
According to Secretary-Treasurer Shirley Green of Local
193, another Teamsters local (No. 716) began the organiz-
ing but it was quickly decided that Local 193, had
department store warehouse jurisdiction and Local 193
took over the campaigning and organizing and was the
union that appeared on the election ballot, and is the
Charging Party in this case. The change accounted for a
certain amount of duplicate signing of authorization cards
by employees, said Green. I
The Union established an organizing committee among
the employees, including employees Louis Banholzer,
Alfred Walker, Elma Lynch, Mamie Cotton, Eileen Marsh,
and Carlis Smith (all of whom figured in certain events to
which they testified), who participated at the service center
in distributing union, literature, notifying employees of
meetings , and distributing and obtaining signatures to
union authorization cards. In the campaign, the Union
held general meetings at its hall for all employees, and
Union- Agent Green met more frequently with the
"Manager Allen indicated that while the others are part of the
Operations and Merchandise Division, she reports to the'Control Division
whose headquarters are in Respondent's main store in downtown Indianap-
olis.
2 Manager Hankins was not named in the complaint but testified and
left no doubt of his supervisory status, which was not in question,
3 The list of area supervisors , attachment A, supra, apparently erroneous-
ly includes a P Burns, if that Burns is the Patrick (Pat) Burns, the building
employee organizing committee near the warehouse, he
said.
The Union requested recognition of the employer on
July 23, 1974, simultaneously filing a petition with the
Board for an election (Case 25-RC-5763), The Respondent
on July 26, 1974, refused recognition and,suggested that
the Union abide by the results of an election. Hearings in
the representation case were held for 4 days in August,
where two employees, Banholzer and Walker, attended
under union subpena. The Regional Director's Decision
and Direction of Election issued on October 10, 1974,
setting the election for November 7, 1974.
In the course of the campaign the Union distributed
Teamsters badges, and employees testified to wearing them
or displaying them, up until the date of the election, and
some supervisors acknowledged seeing them worn or
displayed.
The -Union lost the election by a vote of 78 in favor to
102 against, with 108 challenged ballots. Both parties filed
objections to conduct of the election, and the Regional
Director filed a report on February 21, 1975. At the time of
hearing the matter was pending before the Board.
C. Employer Counteraction
Respondent openly opposed the Union in speeches that
key company officers gave to meetings of employees
assembled by Respondent. Texts prepared for use in giving
seven of the speeches were preserved and produced by
Respondent, namely, three on July 12, 1974, by Superin-
tendent Venneman (G.C. Exh. 10a) and four by Vice
President Stout on October 10, 23, 30 and November 5,
1974 (G.C. Exh. 10b, c, d, e). In addition, Personnel
Manager Price testified to making a speech or speeches.
1. The, Stout speeches
General Counsel does not charge any violations of law in
regard to the four speeches by Vice President Stout, but
claims, correctly, that they exhibit strong union anius
that has a bearing on other conduct charged to be
unlawful. A brief summary will suffice.
Stout told the employees that the, Union would promise
them anything to get their money. and couldn't deliver on
the promises but would nevertheless collect costly, dues,
assessments , fines, and fees, without limit under the union
constitution, and compel the employees to go on strike'to
force wage and, benefit demands from the company,
meantime leaving the employees without wages or unem-
ployment benefits and in jeopardy of being permanently
replaced by the company. ,
Stout asked the employees to consider that, unless they
voted no against, the Union, they would be, entrusting
without control their affairs and money to a Union with a
history of fraud and embezzlement of operating and
maintenance manager or supervisor who appeared and testified in this case
Respondent admitted rmits answer of January 7, 1975,' a month after the
stipulation in the R case, that Burns was a statutory supervisor, and
testimony by Respondent's personnel director, Crocker Price, as well as by
Bums would appear to confirm that admission Part of the mixup may have
been the misspelling of his name in some places as "Byrnes ," which was
caught and noted during the hearing
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension funds and with links to the, Mafia, as allegedly
reported in the press; that they would be bringing in an
influence not interested in a team effort between company
and employees or in pleasing customers, but interested
only in employees' money from dues and other fees; and
that the employees didn't have to pay Union dues to get
group insurance and pension programs already in exist-
ence.
In one speech, Vice President Stout dwelt at length on
the various ways in which, and reasons for which, the
Union could assess fines against members, and invited a
guessing contest (for a prize) on the largest individual fine
levied by the Union. An analysis of the financial position
of the Union was made, purporting to show bad financial
conditions and performance and nothing for individual
members.
In another speech, Vice President Stout stressed the
danger of violence in the Union's affairs and violence in
keeping members in line, developing the earlier theme of
the treup with the Mafia. He' also stressed the danger of
strikes, and 'the Union's alleged strike record, as a threat to
the job security of the warehouse employees that could
lead the company to abandon the central warehouse and
revert to the system of receiving and marking merchandise
at the individual stores.
All of the speeches; were larded with suggestions that` the
employees vote No to the Union.
2. The Venneman speeches
The three speeches by Superintendent Venneman on
July 12, 1974, were another matter. General Counsel
contends that as delivered and heard by the employees the
speeches violated Section 8(a)(1) of the Act.
Superintendent Venneman gave his speeches in three
hastily called meetings of employees on July 12 in the late
afternoon-one in the 28000 Building, one in the South
Building, and one in the North Building.
Elma Lynch testified to the speech given in the 28000
Building. She said there were about 40 to 50 employees
present and Venneman spoke holding a sheet of paper in
his hand Which he glanced at but did not look 'at
constantly. According to Lynch, Venneman talked about
union card 'signers, and said the company had ways of
finding out who' signed union cards, and if employees
signed they would be called to testify by the company
attorney and would be branded as troublemakers.
Employee`Alfred Walker" testified to the speech given at
the meeting in the South Building of about 50 employees
where Walker said Superintendent Venneman had a paper
in his hands but didn't read it. According to Walker,
Venneman said he had heard that union cards were being
passed around and signed and expressed the hope that the
employees had not signed, but if they had they would be
dragged into court and be examined and cross-examined
by company attorneys. Venneman said, according to
Walker, that he was giving them something to think about
over the weekend (it was Friday) and we'll label you as
troublemakers after-we find that you signed.4
Employee Eileen Marsh testified to the third speech by
Superintendent Vennemari in the North Building at the
timeclock. Marsh said it was just before 5 p.m. and
employees were lining up to clock out, when Venneman
walked to the head of the line of about 12 to 15 employees
and told them to wait, he wanted to talk to them, and
spoke for about 5 minutes. Marsh 'said Venneman had
some papers in his hand from which he appeared to read.
According to Marsh, Vennemari told the employees it had
come to his notice that union cards were being passed
around, and the company would know who signed the
cards. He did not refer to them as troublemakers, she said,
but referred to some bad things about the Union, what the
employees would have to pay, and that the Union people
were rough people.
Each of the employees testified that at the meeting he or
she attended Venneman said there would be no questions,
and there were none. Venneman agreed this was so.
Superintendent Venneman testified that he gave the
same speech at each of the three meetings from a text (G.C.
Exh. 10a) prepared by legal staff, Personnel Manager
Price, and himself; and while he claimed that he read it to
the employees, he conceded that he included remarks that
were not written out in the prepared speech. However, he
denied saying that the card signers would be branded or
labeled troublemakers.
Looking at the written speech itself, while a careful,
knowledgeable reader studying" the text might say that the
text stays inside the line of the legally permissible, to expect
that an audience of employees, not trained in Labor Board
law and procedure, will retain in memory the fleeting
phrase or two that purports to qualify what they hear and
absorb as the bad things that can happen to them in
pursuit-of union organizing, is a form of "brinkmanship"
by the employer in which he risks being judged by the
likely import of his words to the employees. Wassau Steel
Corporation v. N.LR.B., 377 F.2d 369, 372 (C.A. 7, 1967).
Examining the text in pertinent part, it said that the
Union is trying to breed trouble here, and the employees
should know the consequences to them of signing union
'cards. Not only does signing subject the employees to pay
union dues and assessments and to obey strike orders and
do picket duty, but the Union can do away with the
election. The Union may request employer recognition and
may send the employer photo copies of the signed cards it
has. If the employer refuses the Union can call a strike for
recognition, or request a Board election, or ask the Board
to make the company bargain without an election by
giving the signed cards to the Board and accusing the
company of unfair' labor practices. "The Board will hold an
open hearing. Employees who sign cards may be subpoe-
naed by the Board or the company to testify oni the witness
stand. These employees will' be shown their cards and
asked to identify their, signatures. Each card signer can
then be cross-examined by the company attorney concern-
ing the circumstances under which the card was,'signed.
Later the Board issues a decision. As you can see, the
signing of a card can be very serious. Aside from the fact
4 I do not view employee Walker's statement, given to the Union on testify at an NLRB hearing and would be cross-examined by the company
August 14, 1974, to be inconsistent with his testimony, as Respondent attorney. The statement also said, the company has ways of finding out who
argues. The statement said, those who signed cards would be called to signed and those who signed would be branded troublemakers.
L. S. AYRES & COMPANY 1349
that it can invoke legal proceedings , including testimony
by company witnesses and employees , the result can be the
loss of a secret ballot election. "
Even if this portion of the speech was given as written,
the emphasis on company knowledge of the card signers
and the pressure that would be placed on each card signer
by subpena and company examination and cross-exanuna-
tion gives support to the testimony of the employee
witnesses that Respondent was creating the impression of
surveillance of, and threatening reprisal against, the union
card signers . Hendrix Manufacturing Company Inc. v.
N.L.RB., 321 F.2d 100, 104, footnote 7 (C.A. 5, 1963). I
credit the testimony of these witnesses over the denials of
Superintendent Venneman and his supporting witness
Personnel Manager Price.5
with Assistant Manager Quinn present. Twyman,said she
had been wearing a Union badge and "Yes" and "No"
buttons and Manager Allen commented, according to
Twyman, that Jo Ann evidently didn't know which way
she wanted to go. Twyman asked what did Allen mean, to
which Allen replied, said Twyman, that she had a yes and
no and Allen wanted to know which way Twyman was
going. Twyman answered, she thought that was her
business. Allen said, according to Twyman, if she voted for
the Union in this election it would be easy to replace her
with someone else.
Employees Pannell and McGill testified that they were
sitting outside Manager Allen's office, which is only partly
partitioned and not a complete enclosure, and heard
Manager Allen tell employee Twyman that she could be
replaced. Each,testified that this was said loudly enough to
3. Further conduct of Superintendent Venneman
Employee Carlis Smith, who works on the south
receiving dock, testified that Superintendent Venneman
talked to him individually on July 17, 1974, just outside ' the
office door, on the subject of the Union. Smith testified
that Venneman told him that if the Union got in the
employees would start at ground zero, explaining that
ground zero meant nothing-no benefits, no insurance-
everything would just flat start from ground zero. Employ-
ee Smith said there was a union'meeting that night and he
related this conversation the same day to his coworkers,
employees Rainwater and Moore, and to their leadman
Dave Lytle, and to Union Organizer Green at the meeting
that night.
Superintendent Venneman testified that he talked
individually to employee Smith on July 17, because, said
Venneman, he had not previously talked to Smith about
the union campaign as he had to many of the employees
regarding questions they might have. Venneman said he
asked employee Smith if there was anything about the
campaign he did not understand, and they talked about
wages. Venneman claimed he said everything was negotia-
ble and that both parties, especially the company, would
have to agree on salaries and benefits. He denied any
reference to starting at ground zero.
Employee Smith denied that Superintendent Venneman
or he discussed negotiations with the Union, and testified
that he did not understand that this was what Venneman
was discussing. I credit Smith's version of the discussion.
See footnote 5, supra. Venneman's conduct was a threat of
reprisal, that the employees would lose their benefits if they
brought in the Union.
4. Conduct by Manager Allen
Jane Allen was the manager of the order checking
department, comprising 20 to 25 employees, and testified
that Diane Quinn was the assistant manager, and that
employees Mamie (Tina) Cotton, Janet Pannell, Evelyn
McGill, and Jo Ann Twyman were among the employees
in her department.
Employee Jo Ann Twyman testified that about a week
before the election Manager Allen called her into the office
be heard , and Pannell testified that Twyman emerged from
Allen's office looking hurt.
Employee Pannell testified to a meeting, about October
1, 1974, with Manager Allen and Assistant Manager
Quinn, in which she was told by Allen that she was
supposed, to get a 30 -cent-per-hour raise but that Allen
would give her only a raise of 15 cents per hour now and
put her on trial for the other 15 cents because she didn't
like Pannell 's attitude, conceding, however , that Pannell's
work was o .k. About 30 days later Manager Allen
informed employee Pannell that she was not going to get
the other 15 cents per hour.
Employee Mamie (Tina) Cotton testified to a similar
meeting, about October 1, in Manager Allen's office with
Assistant Manager Quinn present, where she was told by
Allen that she could get a 30-cent-per-hour raise but would
only get 15 cents now, and 15 cents 30 days later if her
attitude changed . Cotton asked , why not the whole 30
cents now? According to Cotton , Quinn interposed that
Cotton was a good worker and should be a supervisor, but,
Allen said , Cotton could only get 15 cents now and when
her attitude changed she could get the other 15 cents.
About November 1, employee Cotton was again in
Manager Allen 's office with Quinn present , and Allen told
Cotton 'that she could not have the further 15-cent raise
because her attitude hadn 't changed. Cotton commented,
you mean because I was for the Union ; and, according to
Cotton, Allen replied , I thought that was what you'd say.
Employee Evelyn McGill testified that on the day before
the election she was called into Manager Allen's office with
Assistant Manager Quinn present , and Quinn commented
that McGill had asked earlier about company benefits, and
that the company cafeteria , was one and company half-
payment of insurance was another . Employee McGill
testified that she was wearing "Yes" and "No" buttons and
was ' asked by Quinn what they were . McGill answered,
what it , looks like. According to McGill both Allen and
Quinn said to her, if the Company was called out on strike
how would she, as the sole support of her family, make it
without a job.
Manager Allen denied any discussion of badges with
employee Twyman or telling her she could easily be
replaced if she voted for the Union. Allen described the
5 The employees were in the vulnerable position of current employees added support, Formed Tubes, Alabama, 211 NLRB 509 (1974), and cases
testifying adversely to their employer and their credibility was entitled to cited
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings with employees Pannell and Cotton as evaluation
meetings, where she said ` she discussed alleged faults,
indicating that each would get a 15-cent (job market) raise
then and a further review 30 days thereafter with a possible
15-cent (merit) raise , but denied that she discussed either
employee's sentiments about the Union. Indeed she denied
on direct examination being aware of their union senti-
ment.
However, on cross-examination, Manager Allen admit-
ted knowing that employees Cotton, Pannell, and McGill
wore union ("vote Teamster") badges, that employee
McGill wore a' plain ^"No" badge in addition to her
Teamsters badge, and that employee Twyman had a
Teamsters sticker on her desk and another on her purse.
Also on cross-examination, Manager Allen agreed that
in employee McGill's case there was the discussion McGill
described (claiming another employee Stambro was also
present), and that they discussed fringe benefits, but
claimed that it was her Assistant Manager Quinn who told
employee McGill that she had better be concerned because
she was the sole:support of her family.
Manager Allen was an evasive witness in material- areas
and I credit the testimony of the four employees .6 In my
view.Manager Allen, threatened reprisals against employees
Twyman and McGill because of their prounioni sentiments
and, offered,, wage increases to employees Cotton and
Pannell if they would abandon their prounion attitude.
5. Conduct of Maintenance Supervisor Burns
Employee Louis Banholzer, a transfer clerk who works at
and from the transfer dock of the North Building, told of
the handbilling for, and attending, the first union meeting,
on the night of July 17, 1974. He testified that, next day,
July 18, while on the east receiving dock, he was engaged
in conversation by Maintenance Supervisor Pat Burns,
who said he had heard of the first union meeting the night
before, and -asked, how did it go? Banholzer replied, why
are you asking? And Bums;-answered, according 1 to
Banholzer, I want to know,- I'm involved. Banholzer
retorted, you want to know so that you can tell the bosses
what went on and who was there. Burns said be was not
going to, tell the. bosses, but wondered how it went and how
many people were there. Banholzer would not give an
answer. Burns persisted, asking did you have 10, 20, 30, or
just how many. Nevertheless, Banholzer would not'reply
further and the conversation ended.
Supervisor Burns denied having the conversation with
Banholzer, on the ground that he was on vacation for the
week in which, July 18'fell. However, he backed away from
this assertion, conceding that his vacation was in a prior
week, admitted, that he was at work July- 18 and had
learned about the union meeting through the "grapevine,"
but denied talking,to Banholzer about it.
I do not accept Burns', _denial, and credit' employee
Banholzer's testimony.? Supervisor Burns' conduct was an
6 See also in 5, supra
r See also fn 5, supra
8 Respondent sought to discredit employee Walker's testimony because
his earlier Board affidavit (Resp Exh 13) said, in part, in describing this
conversation : "He [Burns I said that he could guarantee me at least 15 cents
per hour raise but he did not say that I would get it if I voted no, but that he
act of unlawful interrogation of an, employee concerning
union activities.
Employee Alfred Walker is head porter in housekeeping
under Maintenance Supervisor Burns. Walker testified that
on the day before the election, November 6, 1974, Burns
talked with him over coffee in the lunchroom 'somewhere
between 4:30 and 5 p.m. According to Walker, Burns
asked, Walker if he had made up his mind which way he
was going to vote. Walker said his mind was made up.
Burns said he wanted Walker to give it further thought, if
he went into the booth and voted no, the company could
do more for him than'the Union could, and the company
would go along with what Burns said. Walker asked, what
could 'Burns guarantee? Burns replied, said Walker, that he
could guarantee at least 15 cents per hour.8
Supervisor Burns denied the conversation with employee
Walker on the ground that it could not have happened,
that he was busy all of the late afternoon of November 6
from 4:30 p.m. to 7 p.m. with Vice President Stout taking
down posters and putting voting areas in order for the
election.
Vice President Stout was in the courtroom throughout
the hearing, but was not called to corroborate Burns. More
significantly, Personnel 'Manager Price's, testimony shed
light yon Btizns' whereabouts and activities on the afternoon
of November 6 that showed no inconsistency between
them and the' occurrence of a, meeting and conversation
between Burns and Walker somewhere between 4:30 and 5
p.m.' Price' testified that, at his direction, Burns with one,
possibly more,' of his men cleaned up all of the campaign
material by 3 p.m. There was a, brief preelection, conference
at 4 p.m.,involving the board,agent, the union agent, Price
and, Stout. It lasted but a few minutes, said Price, during
which the union agent asked for the removal of an'item
that had not been removed in the cleanup. Stout called
Burns and they went to make sure that the union's request
was complied with. Price did not know who of Burns' men
assisted, either before or after the 4 p.m'. conference, in the
actual removal of the material.
I do not credit Supervisor Burns' denials,9 and find that
he offered employee Walker a, pay raise to induce him to
vote against,the Union.
6., Conduct of .Manager Stumpf,
James Stumpf is Respondent's stockhandling'manager at
the service center. He has his office in the North Building.
Employee Eileen Marsh is employed' in the china area
located in the North building.
Employee Marsh testified, that a week prior to the
election Manager Stumpf stopped by and talked to her
individually. She had been weanng a union badge, and
Stumpf asked her why she,.was interested in the Union.
Marsh replied that she was interested in better benefits and
a better paycheck. Stumpf replied, according to Marsh,
that the union people were not very nice people and
did want me to vote no " I do not regard this sentence, even lifted out of
context, as inconsistent with employee Walker's testimony concerning the
November 6 conversation, and, looked at in context, the affidavit and the
testimony at the hearing come out at the same place, a promise of a• pay
raise if the employee would vote against the Union
9 See also fn. 5, supra
L. S. AYRES & COMPANY 1351
suggested she would not like finding her car burned up
some night in the parking lot. This, said Marsh, was a
reference (without their specifically discussing the paper
reference) to company material theretofore distributed to
employees comprising reprints of Readers Digest and
newspaper articles on alleged Mafia relationships and car
burning incidents in union organizing campaigns else-
where. After talking along this line for a few minutes,
according to Marsh, Manager Stumpf then said to Marsh
wouldn't she want to give the company another chance and
to think carefully before deciding to vote for the Union.
Manager Stumpf's testimony was essentially in accord,
including his acknowledgement that he talked to her
because he noticed her wearing the union badge and
couldn't understand why she was interested in the Umon.
Respondent contends that Manager Stumpfs conversa-
tion with employee Marsh was not coercive interrogation
or threat of reprisal by Respondent but simply friendly
conversation or debate of the merits of unionism in the
shop.
While the question may be close, it seems to me on
balance that when, as here, a supervisor of an employer,
who has made known its strong opposition to the Union,
singles out an employee for individual inquiry of her
reasons for adhering to the Union and admonishes her to
think carefully before voting for the Union, without
providing the employee with any reason for the individual
inquiry or assurance against reprisal, that supervisor has,
as representative of the employer, engaged in coercive
interrogation of, and threat of reprisal against, the
employee.
Employee Banholzer testified to two- conversations with
Manager Stumpf in July 1974, when Banholzer was
working in appliances.
One, identified as occurring on July 22, related to a
bantering on-the-job comment by employee Banholzer that
when the Union came in the bosses would no longer have
to work. Manager Stumpf replied, if the Union comes in.
Banholzer retorted, no, when it comes in. Stumpf then said,
according to Banholzer, you must remember if the Union
comes in, you start from zero, the Union can't back up any
of its promises. Employee Banholzer conceded that there
was no explanation of the "start from zero", and that while
Manager Stumpf did not refer to negotations starting from
zero, he also did not say that current wages would be
-reduced or benefits taken away.
Manager Stumpf claimed he said, if the Union got in
everything would be negotiable and you may end up with
zero.
However, even assuming the accuracy of employee
Banholzer's version of the conversation, Manager Stumpf's
statements did not threaten a deprivation of existing
benefits or a' reduction of wages and did not constitute a
threat of reprisal by Respondent if the Union came in.'0
Accordingly, I would dismiss the allegation of paragraph
5(c)(1) of the the complaint charging Respondent with a
violation of Section 8(a)(1), because of this conversation by
Manager Stumpf with employee, Banholzer.
The other Banholzer-Stumpf conversation, was identified
as occurring on July 23, when employee Banholzer had
helped Manager Stumpf locate a missing appliance.
According to Banholzer, Stumpf thanked him, said he was
doing a great job, and was going to see about getting him a
raise. Next day, said Banholzer, he asked Stumpf when he
could expect a raise, and Stumpf answered, that wage
reviews were coming and Banholzer could get one then.
Banholzer testified that prior to 1974, he had had one wage
review per year and in 1974 had already had one review in
June.
Manager Stumpf denied promising to see that employee
Banholzer would get more money, but again, even
assuming the accuracy of Banholzer's testimony, there
appears to have been no promise relating to union activity
or refraining from union activity but rather a promise of
more money for doing a good job. Such a promise is not a
violation of the Act, and any allegation of the complaint
grounded on this event should be dismissed.'
7. Conduct of Personnel Manager Price
About 3 or 4 weeks before the election, at a night Umon
meeting of 50 or more employees, employee Alfred Walker
got up and spoke to the employees in a 3- or 4- minute
impromptu speech aimed, he indicated, to rally them in
succeeding to elect the Union as their bargaining repre-
sentative. Among other things he spoke of company
promises that had not materialized and that electing the
Union was the employees' only chance of bettering
themselves.
The next day, at a meeting of about 20 employees in the
North building recreation room of the service center, called
by Personnel Manager Crocker Price to give some of the
employer's views on the Union, employee Walker was
among those present. Just before he opened the meeting to
give his ' talk, Manager Price commented to employee
Walker, in the presence of the other employees, that he had
heard that Walker was quite a speaker. Walker said, if
Price had asked him he could have told Price that, and
Price retorted now it was his turn.
Manager Price testified that he was referring, in his
comment, to employee Walker's speech at the union
meeting the night before. Price said he knew about
Walker's speech, because on the following day everything
that occurred at the unionmeeting_"was spread all over the
service' center." Other than Price's self-serving statement,
there was no evidence that this was so.
In my view, Personnel Manager Price, by his statement
to employee Walker in the presence and hearing of other
employees, created the impression that Respondent had
had the union meeting of the employees under surveillance.
D. Termination of Employment of Edith Tanner
1. Her functions
Edith Tanner started her employment with Respondent
in 1960, as a merchandise clerk. In 1968 or 1969, she was
10 In contrast to Superintendent Venneman's ground zero discussion
with employee Carlis Smith, discussed supra
11 It is not 'clear where this allegation appears in the complaint,
nevertheless, Respondent and General Counsel treated it as a claimed
violation in their briefs,
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved into checking and marking of cosmetics and
remained in that work until the termination of her
employment on July 24, 1974.
When employee Tanner started in the cosmetics work,
David Baker was manager of the South building and told
her, said Tanner, that he wanted her to be the lead person
in cosmetics. He had her train briefly at Respondent's
main store and she started the work with one other
employee. When her employment was terminated on July
24, 1974, there were three other regular employees in
addition to herself doing the work, which included
checking and marking, certain "high value" items added (in
May 1973) to the work of the cosmetics area.
Employee Tanner testified that since 1968 or 1969, when
Manager Baker had told her she was a lead person, no one
in management had told her anything differently, or that
she was a supervisor, until the day before her employment
was terminated . Indeed , Respondent 's attempt to show the
contrary, and that she had been promoted from checker-
marker (classification No. 44-1c) to area supervisor
(classification No. 59-1) on May 14, 1973, backfired.
Employee Tanner's immediate supervisor from about
March 1973 to March 1974, Manager David Hankins,
testified that he had given Tanner a notice of her
promotion and pay raise at or about May 14, 1973, and
identified Respondent's Exhibit 18 as a copy of the
document . Actually he gave employee Tanner General
Counsel's Exhibit 11, the original of which she produced,
which was nothing more than a straight pay raise within
the same classification' viz, 44-1c (checker-marker). Han-
kins changed his testimony and acknowledged that
General Counsel's Exhibit 11 was the document he gave to
Tanner. The two instruments are "look-alikes," but
Respondent's Exhibit 18 has typed words added, particu-
larly, "Reclassify," "Promotion," and a changed number
"59-1" (meaning area supervisor) where the new pay rate is
shown, in place of number "44-1C" (meaning checker-
marker) shown with the new pay rate on the original
document, General Counsel's Exhibit 11. No one for
Respondent could account for these additions or changes
made in the original document , and of course Respon-
dent's entries in its records concerning Tanner (Resp. Exhs.
lb and' 2b), corresponding to the altered document,
Respondent's Exhibit 18, have no greater authenticity than
that discredited document . Personnel Manager Crocker
Price was unable to identify the maker or source of the
entries.
Manager Hankins , who testified that employee Edith
Tanner was a truthful person , also acknowledged that he
never told her she was a supervisor (although he thought
she was, perhaps erroneously, he said).
According to the testimony, Tanner did a combination
of physical and clerical work. In this regard, the principal
difference between her and her coworkers , with whom she
worked side by side, was that she did more of the clerical
work than they did. Tanner testified that she physically
handled and counted the cartons of merchandise that came
in on conveyors , pulled the packing slips, invoices, and
other identifying paper from them and checked the
merchandise against the paper , then took the invoices and
other paper to the order room where an assigned person
did certain paperwork and pulled the orders relating to the
merchandise, then took the papers back to her area putting
the invoices back on the merchandise and the merchandise
on conveyors, where she and her coworkers would check
the goods (against the orders), mark the retail prices on the
goods, repack in canvas carriers , seal the carriers , and affix
route tags, for delivery to different branches of the store. A
towmotor would take the sealed carriers away.
Each checker-marker , including employee Tanner, kept
her own daily production record on a simple form sheet,
showing how many cartons each had done in the day and
how many pieces each had checked and marked. Tanner
said she collected these but did not review them . Employee
Tanner , in addition , kept a record of what came in and
what went out of the cosmetics area on a so-called area
production replan form , showing , daily, the cartons on
hand, how many were processed, and how many there were
left to be done. The form also listed the employees present
and the number of hours they worked, but no productivity
record other than the total units processed by the group
that day. Tanner also kept a record of hours worked by
employees of her group who might be assigned out to some
other area, but no productivity record of this.
Employee Tanner was an hourly paid employee and
punched a timeclock . (This was also true of the employees
called "area supervisors.") Her hourly pay was $3.10 per
hour, 60 cents higher than the pay of the other three
regular checker-markers.
In addition to the extra clerical work employee Tanner
performed she handled certain other duties not usually
done by her co-workers.
If a new employee came in , or extra people came in to
assist in peak periods , employee Tanner usually gave
whatever training or instructions they needed ., If there was
a need for extra people, Tanner would inform her
supervisor, who, would have to approve and who would
obtain the extras or direct her to call in someone usually
listed with Respondent for such work . If there was a need
for overtime, Tanner would tell her supervisor who would
tell the employees to stay. Tanner - could initial a timecard
if there was overtime or some special ,problem about clock
in, but Tanner's, supervisor had to sign the timecards at the
end of each week.
Employee Tanner assisted her supervisor with employee
evaluations of her coworkers but did not do the total
evaluations or rating . She in turn was evaluated by her
supervisors . The evaluations were used by management,
for, among other things, the giving of pay raises . However,
Tanner had no authority to give a pay raise , or to hire, fire,
or discipline an employee . Though her former supervisor,
Manager Hankins , claimed that Tanner - had authority to
settle grievances , Tanner disclaimed having had , such
authority. In the one case they both , referred to, it appeared
that Tanner went to Manager Hankins to settle the
grievance of the complaining employee.
Employee Tanner was authorized to sign discount
purchase cards for the extra employees - in her area. The
card was essentially an identification card that enabled the
extra to purchase from Respondent's stores at a discount.
Tanner distributed the paychecks in her area . She had a
desk and intercompany phone but her coworkers also used
L. S. AYRES & COMPANY 1353
both since she would leave her area from time to time to go
to the order room. Prior to 1974, Tanner was more often on
the telephone and rarely out of the area, because she had
kept a file of orders at her desk and store buyers would call
inquiring about orders needed. This practice ended when
the keeping of all orders was centralized in the order room,
and Tanner's use of the interphone became infrequent.
Tanner testified that she was occasionally asked by her
supervisor to attend meetings with other supervisory
employees that included area supervisors. These meetings
were concerned with safety and fire prevention.
If damaged merchandise came into her area, her
coworkers would let her know, and she would turn the
matter over to the office for making a claim.
2. Her status
Contrary to the General Counsel, Respondent contends
that Edith Tanner was a supervisor within the meaning of
Section 2(11) of the Act and excluded from the protection
of the Act.
It seems to me that employee Tanner's position was that
of leadman, or lead person, the superior worker who
exercised the control of a skilled worker over less capable
employees, but who did not enjoy supervisory status in that
capacity because she did not also share the power of
management , N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d
275, 279 (C.A. 5, 1962). Congress intended to leave the
leadman category of minor supervisory employees under
the protection of the Act, N.L.R.B. v. Security Guard
Service, Inc., 384 F.2d 143, 146-148 (C.A. 5, 1967).
Employee Tanner daily performed the routine physical
and clerical work of receiving, on conveyor belts, boxes of
cosmetics and certain high value articles, unpacking them,
checking them against the manufacturer's or dealer's
attached invoice (for accuracy of count and to eliminate
for return or claim, by another department, any damaged
goods), marking the retail price on each item (from the
papers provided), and repacking the marked merchandise
for delivery to Respondent's retail departments (from
written orders provided). She was assisted by three other
women , each doing the same work, on separate conveyor
belts, of receiving, unpacking, checking, marking, and
repacking cosmetics and high value items. Once they had
learned the fairly simple routine there was no need for
instruction or directions to them by Tanner other than an
occasional direction, such as giving priority to a certain
order in accordance with a request transmitted through
and from the order room. If there were a replacement
employee, or in an extraordinary rush period when extra
help was provided, Tanner would train or instruct the new
employee or extras, if they were not persons who had
already worked in the cosmetics area.
While each of the coworkers in the cosmetics group,
including employee ' Tanner, kept a record of her own daily
production, Tanner in addition kept track of total
production; i.e., boxes received and disposed of. She
assisted her supervisors (Manager Hankins and his
successors) in the annual evaluation of the work perfor-
mance of her coworkers, for pay raises and related
purposes, but she did not make the final ratings, or award
pay increases, or have authority to hire or fire or discipline
or settle grievances. Employee Tanner could ask for more
help or suggest that she had more than was needed, but the
transfers in and out had to be approved and provided by
her supervisors. She could initial timecards to keep track of
certain deviations, like overtime, but approving overtime
and the signing of the timecards was the function of
Tanner's supervisors. Like her coworkers, she punched a
timeclock and was paid on an hourly basis, though at a
higher rate, which would indicate recognition of her greater
experience and skill and some of the added duties she
performed.
Employee Tanner spent some of her time away from the
cosmetics area going to and from the order area at various
times in the day. This was practically messenger work,
since she simply delivered for processing by the order
room, the invoices and related papers that come in with
merchandise received, and took them back along with the
orders for the merchandise from the store's retail depart-
ments held on file by the order department. (She didn't
even have to pull the orders from the file, as she had
previously done earlier in her career in cosmetics when she
kept the orders in a file of her own at her desk.) Also in the
category of messenger work was her distribution to her
coworkers of paychecks, and-turning over to the office the
making of claims for damaged goods.
It is true that some of the added responsibilities that
devolved upon employee Tanner ^ were of a nature
possessed by statutory supervisors-such as appraising
performance of coworkers or training the new among them
in their functions. They were also responsibilities typical of
leadmen, but they involved technical; judgments based on
experience and skill and not the managerial judgment
which is the kind of independent judgment contemplated
by Section 2(11). Graphics Typography, Inc., 217 NLRB No.
176, ALJD , sec. II , D,2 (1975).
While it is settled that the list of supervisory powers in
Section 2(11) is to be read in the disjunctive, the section
also "states the requirement of independence of judgment
in the conjunctive (i.e., in connection) with what goes
before." Poultry Enterprises, Inc. v. N.L.R.B., 216 F.2d 798,
802 (C.A. 5, 1954). Moreover, the statutory words,
"responsibly to direct," 12 "are not weak or jejune but
import active vigor and potential vitality," N.L.R.B. v.
Security Guard Services, Inc., supra, 384 F.2d at 147. The
fact that employee Tanner occasionally gave instructions
to helpers on how to help would not denote the exercise of
supervisory discretion or independent judgment, but only
the exercise of routine authority, N.LR.B. v. Whitin
Machine Works, 204 F.2d 883, 886 (C A. 1, 1953); Precision
Fabricators Inc. v. N.L.R.B., 204 F.2d 567, 568-569 (C.A. 2,
1953).
Respondent's claim of having conferred the title or status
of "area supervisor" on employee Tanner, which was not
substantiated, even if it had been true, was of no moment,
because actual duties and authority, rather than a formal
title and theoretical power, control in determining whether
12 Under Sec 2(11), a supervisor is one having authonty ,'m the interest employees, if the exercise of such authority is "not merely of a routine or
of the employer (among other things), "responsibly to direct" other clerical nature , but requires the use of independentjudgment."
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employee was a statutory supervisor or not, N.L.R.B. v.
Southern Bleachery and Print Works, 257 F.2d 235, 235-239
(C.A.4, 1958).i3
As I assess the facts, neither employee Tanner's position
with Respondent nor her responsibilities in that position
identified her with management, International Union of
United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO v. N.LR.B., 298 F.2d 297,
303 (C.A.D.C., 1961), cert. denied sub nom. International
Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO v. N.L.R.B., 369
U.S. 843 (1961). She was in fact, as well as by designation,
the lead person of the cosmetic and high value area of the
service center, and as such was an employee within the
meaning of Section 2(3) of the Act and not a supervisor
within the meaning of Section 2(11).
3. The forced resignation
Employee Tanner had signed two union authorization
cards on July 18 and 19, 1974, respectively.
The Union filed its petition for an election on July 23,
1974. On that same day Superintendent Venneman called a
meeting of the area supervisors, which employee Tanner
was asked to attend. There were about 20 to 25 persons in
attendance, said Tanner, and Venneman told them that
they were supervisors whom the employees in their areas or
departments would probably be asking questions about the
Union. He told them to explain the costs of the Union to
the employees-dues, penalties, assessments, and things
like that, said Tanner.
That afternoon she was called individually to a meeting
in the office of Material Handling Manager Lon Dalton,
where she was introduced to Personnel Manager Crocker
Price. Price testified that the meeting was for the purpose
of making clear her responsibilities in connection with the
union campaign.
Price and Dalton inquired of employee Tanner if she had
any questions on the matter of the Union, and she told
them that she had heard for the first time from Superinten-
dent Venneman that morning that she was considered a
supervisor and had'always thought she was a lead person,
since the time she came into the cosmetics area. Price said
she had been upgraded since then, about the time Dalton
came to the South building as manager. Tanner said that
wasn't so. Price proceeded to read the definition of
supervisor from the National Labor Relations Act, telling
her that if she did any one of the things listed in the
definition she was considered to be a supervisor. Tanner
said she didn't agree with that, that she was not a
supervisor and had the right to go, and intended to go, to
union meetings . At this point, according to Tanner, both
men told her that her attendance at union meetings would
put the company in jeopardy for spying and her employ-
ment would have to be terminated.
13 Moreover by stipulation, in the related representation case, see sec. II,
A, supra, Respondent conceded in connection with the November 1974
election that its area supervisors were unit employees. Compare, N.L R.B. v.
O'Conner Chevrolet-Buick-GMC Co., 512 F.2d 684 (C.A. 8, 1975).
14 1 have taken notice of the cited portions of this exhibit, Resp. Exh. 19,
simply as evidence of the consistency of employee Tanner's position,
Employee Tanner offered to relinquish her lead person
position in cosmetics and take thejob,of ordinary checker-
marker. Price and Dalton said they'd have to think about
that, and would let her know.
The following day, July 24, 1974, employee Tanner was
called to meet with Managers Price and Dalton, again.
They told her she could continue as a supervisor but not
attend union meetings . She replied she didn't feel she could
do that, that she thought she had the right to attend union
meetings. Whereupon Personnel Manager Price told her,
she said, we'll have to terminate you. She replied, "O.k.
you'll just have to terminate me because that's the way I
feel about it,"
Employee Tanner told them she had money in the
company's thrift plan that she had to get, and Price sent
her to the senior personnel representative for the service
center, Craycraft.
Personnel Manager Price's testimony on the exit inter-
view (Manager Dalton did not testify), particularly the
testimony given in response to Respondent counsel's
questioning, is not essentially different from employee
Tanner's testimony except in one respect (which, neverthe-
less, in my opinion, does not alter the sense of what
occurred). Price testified that, in the July 24 meeting, he
and Dalton reviewed with Tanner their discussion of the
previous day, and Tanner expressed the view that she
would go to the union meeting. Price testified that he then
said, if you are going to the union meeting you are going
on your own, when you get there you will no longer be an
employee of the company; to which, according to Price,
Tanner replied, I can make it simpler than that I will quit.
He then sent her to Craycraft for the incidental paperwork.
According to employee Tanner, Personnel, Representa-
tive Craycraft insisted that she had to sign a notice of
voluntary separation, and she signed in protest by noting
on the form "unable to attend union meetings `as a
Supervisor.' " (G.C. Exh. 8.)
Following July 24th, Tanner continued to insist that she
had been terminated, or forced to quit rather than be
discharged as an unsatisfactory employee, in her more or
less contemporaneous application for (Indiana) unemploy-
ment compensation initiated ' August 6, 1974 (see Resp.
Exh. 19, pp. 3 and 7, and particularly her handwritten
explanation p. 13, which described the choice given her by
the employer, and Craycraft' s insistence on use of the
voluntary quit form if she was to get her pay).14
In my view it is clear that Respondent forced employee
Tanner to quit her job because ofher'union activity. Even
accepting Personnel Manager Price's version of the choice
offered to her, it was, give up your union meetings or if you
persist you will no longer be an employee of the
Respondent. Quitting under such an ultimatum ' of the
employer, rather than await or risk discharge and 'the
unpleasant implications of discharge, was a forced resigna-
tion or constructive discharge. Kaiser Engineers, 213
NLRB 752 (1974).
particularly in the period immediately following the termination of her
employment. Respondent contested and obtained a reversal of the initial
allowance of unemployment compensation to her, Resp. Exhs 19, p. 36, and
11, but I do not regard the decisions of intrinsic significance to the case at
bar because the state agency decision went off on erroneous assumptions
about Tanner's status under the National Labor Relations Act
L. S. AYRES & COMPANY 1355
E. Section 8(a)(1) and (3) Findings
As detailed under section 11,C,while the union organiz-
ing and preelection campaigning was in progress, Respon-
dent's management engaged in various acts of interroga-
tion'or prying into the union activities and sentiments of its
employees; created the impression of employer-surveil-
lance of their meetings, card signing, and other union
activities; threatened discharge, loss of benefits, harass-
ment, and other reprisal in connection with their union
activities; and offered wage increases to employees if they
would abandon their support of the Union. These were
violations of Section 8(a)(l) of the Act, N.LRB, v. Henry
Colder Co., 416 F.2d 750, 753 (C.A. 7, 1969); N.L.R.B. v.
Merchants Police, 313 F.2d 310, 312 (C.A. 7, 1963).
Respondent also forced the resignation of employee
Edith Tanner because she persisted in her right to take part
in the meetings or other activities of the Union. Respon-
dent's action was not only a violation of Section 8(a)(1) of
the Act, as an infringement of the employee's right to
engage in concerted activities under Section 7, but was also
a violation of Section 8(a)(3), because that section's
prohibition of discriminatory employment practices, calcu-
lated to discourage membership in a labor organization,
encompasses employer action which discourages participa-
tion in concerted activities, N.L.R.B. v. Erie Resistor Corp.,
et a1373 U.S. 221, 233 (1963).
Because the discrimination against employee Tanner was
directly related to protected activity, and hence inherently
destructive of employee rights, the intent requisite for an
8(a)(3) violation may be inferred, N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26, 33 (1967); Signal Oil and Gas Co.
v. N.L.R.B., 390 F.2d 338, 343-344 (C.A. 9, 1968).
Nonetheless, there was affirmative evidence of Respon-
dent's antiunion motivation, in its vehement opposition to
the Union, N.L.R.B. v. Lipman Brothers Inc., et al, 355 F.2d
15, 21 (C.A. 1, 1966), its commission of contemporaneous
independent 8(a)(1) violations, supra, and its declination of
employee Tanner's offer to resolve any alleged difficulty
for the company by taking a job without any of the
leadman responsibilities.
CONCLUSIONS OF LAW
1. By engaging in acts of coercive interrogation or
prying into the union activities and sentiments of its
employees, by creating the impression of surveillance of
their union meetings, card signing, and other union
activities, by threatening discharge, loss of benefits,
harassment , and other reprisal in connection with their
union activities, and by offering wage increases if they
would abandon support of the Union, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. By forcing the resignation of employee Edith Tanner
because she persisted in her right to take part in the
meetings and other activities of the Union, and in order to
discourage such activities and support of the Union among
its employees, Respondent has engaged in unfair labor
15 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Order herein shall, as provided in Sec,
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. Allegations m .the complaint that, Manager Stumpf,
in violation of Section 8(a)(1), threatened reprisal against
employees in , conversation with employee Banholzer on
July 22, 1974, and promised a pay increase in conversation
with employee Banholzer on July 23," 1974,` should be
dismissed.
THE REMEDY'
It will be recommended that the Respondent:
1. Cease and desist from its unfair labor practices.
2. Offer to reinstate employee 'Edith Tanner with
backpay from the time of her forced resignation, backpay
to be computed on a quarterly basis as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), approved in
N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953),
with interest at 6 percent per annum as provided in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), approved
in The Philip Carey Manufacturing Co., Miami Cabinet
Division v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert.
denied 379 U.S. 888 (1964).
3. Post the notices provided for herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER 15
Respondent, L.S. Ayres & Company, a Division of
Associated Dry Goods Corporation, Indianapolis, Indiana,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercive interrogation or prying into the union
activities and sentiments of its employees.
(b) Creating the impression of surveillance of employees'
union meetings, card signing, or other union activities.
(c) Threatening discharge, loss of benefits, harassment,
or other reprisal in connection with their union activities.
(d) Offering wage increases if employees abandon
support of the Union.
(e) Discouraging employee attendance at union meet-
ings.
(f) Discouraging employees from support of or member-
ship in the Union or other labor organization by forced
resignation, discharge, or other discrimination affecting
their tenure and conditions of employment.
(g) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make employee Edith Tanner whole, in the manner
set forth in the section of the decision entitled "The
Remedy," for any loss of earnings incurred by her as a
result of her forced resignation on July 24, 1974.
102.48 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.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to employee Tanner immediate and full
reinstatement to her former job or, if the job no longer
exists , to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
(c) Preserve and, upon request, make available 'to the
Board and its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to 'ascertain the backpay due under the terms of
this recommended Order.
(d) Post in its service center at, Indianapolis, Indiana,
copies of the attached notice arked "Appendix." 16
Immediately upon receipt of said notice, on forms to be
provided by the Regional Director for Region 25
(Indianapolis, Indiana), the Respondent shall cause the
copies to be signed by one of its authorized representatives
and posted, the posted copies to be maintained for 60
consecutive days thereafter,-in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify, the Regional Director for Region 25, - in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
16 In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
* U.S. GOVERNMENT PRINTING OFFICE : 1976 0-206-341