Berton Kirshner, Inc.

National Labor Relations Board - Board Decisions

Apr 4, 1974

209 N.L.R.B. 1081 (N.L.R.B. 1974)

BERTON KIRSHNER, INC.
Berton Kirshner, Inc. and General Warehousemen
Local 598, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America
Berton Kirshner, Inc., d/b/a The Berton Company
and General Warehousemen Local 598, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, Petitioner.
Cases 21-CA-11199 and 21-RC-12862
April 4, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 18, 1973, Administrative Law Judge Louis
S. Penfield issaed the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed cross-exceptions and 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We do not agree with the Administrative Law
Judge that the taking of pictures of the union
representatives' handbilling of Respondent's employ-
ees as they left Respondent's premises after work,
under the particular facts of this case, violated
Section 8(a)(1) of the Act. The record shows that on
August 18, 1972, the union representatives first
appeared at Respondent's place of business. On this
date, one representative drove onto Respondent's
parking lot. He was thereafter asked by Kirshner,
Respondent's president, to leave the premises, which
he did. On August 21, three union representatives
appeared at the site and commenced handbilling the
employees as they drove out of the parking lot.
During this period, Kirshner took several pictures of
the handbillers. At the same time, Respondent called
the police on the ground that the union representa-
tives were trespassing on Respondent's property.
Although the police arrived, nothing further oc-
r In the conversation relating to her "rehire" as department head, Cook
asked for a pay increase of 35 cents per hour. Kirshner offered her an
additional 10 cents if she would come back as a rehire thereby forfeiting any
1081
curred; and thereafter, on several other occasions,
the union representatives appeared on the scene and
handbilled the employees, as they were leaving work,
without incident. An examination of the pictures
themselves shows that although most of the time the
union representatives were beyond the Respondent's
property line, standing in that portion of the
driveway that would have been an extension of the
sidewalk or roadway right-of-way, there were several
occasions when the union representatives were
standing within Respondent's property line. In these
circumstances, including the fact that Respondent
promptly called the police on this one date as well as
the fact that there were several later handbillings by
the Union without incident, we cannot conclude that
Respondent by taking pictures of handbillings which
in part were on its property engaged in surveillance,
or engaged in conduct that would have created the
impression of surveillance. Accordingly, we shall
dismiss the complaint as to this allegation.
We also find merit in Respondent's contention that
Judy Cook is a supervisor within the meaning of the
Act. The Administrative Law Judge found that Judy
Cook and several other department heads were not
supervisors, and that various interrogations and
statements made to them by Kirshner violated
Section 8(a)(1) of the Act. As to Cook, the record
shows that at or about the time of the advent of the
Union, she was off work due to an illness . When she
returned to work, in August 1972, she was "rehired"
as a department head and given a 45-cent-an-hour
raise over her previous salary.' Cook testified that, as
department head, it is up to her to see that the work
gets out on time and that the employees have all the
stock that they need. While she works right along
with the other employees for the major portion of the
day, she does direct the work of the other employees,
trains new employees, and gives oral reprimands;
and if work deficiencies continue, refers the matter to
higher supervision for consideration as to whether a
written reprimand should be put in the employee's
file. In addition, Cook testified that she makes out
progress reports on each of the employees in her
department on a quarterly basis, rating each employ-
ee as to skills, job performance, and attitude
according to a point grading system; that she
recommends wage increases on these reports; and
that these progress reports are used by management
for wage increases for the individual employees
involved, as well as for giving warning notices to
employees with poor performance ratings. In these
circumstances, we find that Cook is a supervisor
within the meaning of the Act, and shall, according-
interest she might have had in the profit-sharing plan from her earlier
employment
209 NLRB No. 170
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly, dismiss those portions of the complaint involving
Cook.
In reaching this conclusion as to Cook, we are not
unmindful 'of the fact that, initially, the parties
tended to "lump" together or treat all department
heads on an identical basis. However, as the hearing
progressed, it became clear that not all "department
heads" were supervisors, and the Respondent so
stipulated as to several of them. With these facts in
mind, we have carefully reviewed the record as to the
supervisory status of Connie Wyble and are of the
opinion that the Administrative Law Judge's conclu-
sion that she is not a supervisor is adequately
supported by the record.2
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 , Berton Kirshner , inc., Pica Rivera, California,
its officers , agents, successors , and assigns, shall take
the action set forth in the said recommended Order,
as modified below:
1. Delete paragraph 1(a) and reletter the follow-
ing paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election conducted
on October 27, 1972, in Case 21-RC-12862 be, and it
hereby is, set aside and that Case 21-RC-12862 be,
and it hereby is, remanded to the Regional Director
for the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
2 In view of Respondent 's stipulation as to the nonsupervisory status of
Johnson, Patterson , and Kelly, we agree with the Administrative Law
Judge's conclusion that Respondent violated Sec 8 (a)(1) when Kirshner
conducted the postelection poll of those employees whose ballots had been
challenged at the election. In addition , in ,iew of the Respondent's and
Union's stipulation as to the validity of the seven challenges to ballots at the
opening of the hearing for the limited purpose of excising the issue of the
challenged ballots from the hearing , we find it unnecessary at this time to
pass on the Administrative Law Judge 's recommendations as to challenged
ballots
APPENDIX
found that we have violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any such
activities.
WE WILL NOT interrogate our employees as to
their union activities or those of their fellow
employees.
WE WILL NOT solicit grievances of our employ-
ees.
WE WILL. NO I' make statements to our employ-
ees creating the impression of surveillance of their
union activities.
WE WILL NOT promise or grant economic
benefits to our employees in order to encourage
them to forgo support of a union.
WE WILL NOT in any like or related manner
restrain or coerce our employees in the exercise of
their rights.
All our employees have the right to join or assist or
not to join or assist General Warehousemen Local
598, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any
other labor organization.
BERTON KIRSHNER, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had an
opportunity to present evidence and state their
positions , the National Labor Relations Board has
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: This
consolidated proceeding was heard before me in Los
Angeles, California, on February 6, 1973, with all parties
represented . The complaint is based on a charge filed on
August 22, 1972, by General Warehousemen Local 598,
BERTON KIRSHNER, INC.
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called the
Union. The complaint originally issued on September 27,
1972, and was thereafter amended on December 1, 1972,
and further amended at the hearing. The complaint alleges
various acts of interference, restraint, and coercion upon
the part of Berton Kirshner, Inc., herein called Respon-
dent, which are claimed to violate Section 8(a)(1) of the
Act. All parties were given full opportunity to participate
in the hearing, and after the close thereof Respondent and
General Counsel filed beefs.
The proceeding in Case 21-RC-12862 involved an
election pursuant to a Stipulation for Certification upon
Consent Election conducted on October 27, 1972. The
results were not determinative, and timely objections were
filed. The only objection not resolved concerns alleged
unlawful interrogation of employees in a manner concur-
rently alleged to be an unfair labor practice. The Regional
Director for Region 21 having determined that the issues
raised by seven challenged ballots and by the objection
should be resolved after hearing directed the consolidation
of the unfair labor practice case and the representation
case.
Upon the entire record in this consolidated proceeding,
and upon my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a California corporation engaged in the
wholesale sale and distribution of toys and a variety of
miscellaneous items from a place of business located in
Pico Rivera, California. In the normal course of such
business operations Respondent annually purchases and
receives goods and products valued in excess of $50,000
directly from firms located outside the State of California.
I find Respondent to be engaged in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act, and assertion of jurisdiction to be appropriate.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. 7 HE ALLEGED UNFAIR LABOR PRACTICES
The conduct alleged as violative of Section 8(a)(1)
includes surveillance, and creating an impression of
surveillance, by photographing the distribution of union
literature to employees, solicitation of employee griev-
ances, unlawful interrogation of employees concerning
their own and the union activities of fellow employees, a
statement to employees creating the impression of surveil-
lance, and the promise and grant of economic benefits to
encourage foregoing support of the Union.
Since in significant measure the lawful or unlawful
nature of Respondent's conduct will be determined by the
supervisory status of certain employees this issue will be
considered first.
1083
A. Respondent's Supervisory Hierarchy
Respondent's business is what is known as rack jobbing.
Respondent buys a variety of items such as toys, books,
notions, party goods, and the like in large quantities. It
solicits and obtains orders for these items from supermar-
kets and other retail outlets. Its warehouse employees
break down Respondent's stocks of products into small
quantities, and price them in accordance with orders from
the customers. Thereafter they are delivered and displayed
by Respondent's drivers who at the same time solicit
additional sales . Respondent's sales drivers are represented
by another labor organization. This proceeding concerns
only the attempted organization of those employees who
work at Respondent's warehouses filling the orders.
Berton Kirshner is the owner and president of Respon-
dent. Respondent's premises include two warehouses one
of which, slightly larger than the other, is known as the
front warehouse, and the other known as the rear
warehouse. In each employees are engaged in pricing and
order filling. Vince Bujanowski is superintendent of
Respondent's entire operation. At times material to this
proceeding Jack Gregory and Richard Caldwell were his
assistants in the front and rear warehouses, respectively.
The approximately 57 unit employees work in various so-
called departments which deal with different products.
Each department will have from two to six or seven people
in it. Alice McCray is classified as supervisor of the women
employees working in the front warehouse department,
and Evelyn Smith is classified as supervisor of the women
employees working in the rear warehouse. Each of the so-
called departments within each warehouse is headed by a
girl classified as a department head. Respondent contends
McCray, Smith, and the department heads to be supervi-
sors. The General Counsel claims neither the warehouse
supervisors nor the department heads have sufficient
authority to warrant finding them to be supervisors within
the meaning of the Act.
Alice McCray did not testify. Evelyn Smith testified that
she has general responsibility for all the departments in the
rear warehouse. She spends a considerable amount of her
time in order filling, but will assign herself to work in those
departments most in need of help. She will also, on
occasion, direct an employee to move from her own regular
department to another when she determines this to be
needed. According to Kirshner Alice McCray functions in
a similar manner in the front warehouse. Kirshner testified
that while neither McCray nor Smith have direct authority
to hire or fire, each has authority to make recommenda-
tions with regard to employees in her respective warehouse,
and each has authority to issue warning notices and
reprimands to the employees working there. It does not
appear, however, that Smith, at least, has had occasion to
exercise either the authority to recommend or reprimand.
Each one will prepare progress reports upon employees,
but neither will participate in decisions as to whether these
result in wage increases. Both attend meetings of Respon-
dent's management group when such meetings are held.
With the exception of some 30 minutes at the end of each
day when they fill out reports, department heads work in
their respective departments filling orders in the same
manner as other department employees. The department
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head will usually be the most experienced employee in the
department, and among other things she will be expected
to instruct new employees in their work and to offer them
assistance in performing their jobs. Two department heads,
Connie Wyble and Judy Cook, testified. A fair appraisal of
the testimony of each would indicate that while each
functioned as a work leader in her respective department
with responsibility to furnish some guidance to other
employees in the department, this required little more than
giving routine directions, and when matters demanding the
exercise of independent judgment arose the department
head would turn to her respective warehouse supervisor for
guidance and instruction. Department heads do not attend
management meetings.
I am convinced from a consideration of the record as a
whole that Alice McCray and Evelyn Smith, the front and
rear warehouse supervisors, are each supervisors within the
meaning of the Act. It seems reasonably clear that
Kirshner himself, the superintendent and their assistants,
are largely concerned in the overall operation of the
enterprise with particular emphasis on overseeing sales and
deliveries. The order fillers are all women. Order fillers
work pursuant to established patterns, but absent the
continuing presence of a warehouse supervisor there would
not be a management representative readily available to
direct and oversee their work performance and to handle
needed deviations from the norm. I am satisfied that
responsibility for this has been given to the warehouse
supervisors, and that each one is directly responsible for
work performance of order fillers in her respective
warehouse . Higher echelon management reviews their
recommendations, and makes ultimate decisions based on
independent investigation, but I am convinced that the
operation demands, and that warehouse supervisors
possess, authority which exceeds routine direction, and
that Respondent expects them to use independent judg-
ment and responsibly to direct and coordinate the order
filling in their respective work areas. Accordingly I find
that at all times material Alice McCray and Evelyn Smith
were supervisors within the meamng of the Act.
The department heads on the other hand, although
apparently vested with a greater degree of responsibility
than fellow department workers, appear to do little more
than engage in routine direction of the employees in their
departments, and they regularly turn to the warehouse
supervisors, and to others in the management hierarchy,
when matters arise which demand the use of independent
judgment. Accordingly I find that Connie Wyble and Judy
Cook, in particular, and other employees classified as
department heads perform as work leaders for Respon-
dent , but have not been vested with sufficient authority to
be classified as supervisors within the meaning of the Act.
B. The Allegations of Surveillance and Creating the
Impression of Surveillance in Connection With the
Picturetaking on August 21
On August 18, 1972, Union organizers first appeared at
Respondent's premises. Their appearance was noted by
Kirshner when one drove an automobile onto his parking
lot, and he was asked by Kirshner to leave the premises.
The next appearance was on August 21 when three union
representatives appeared in the afternoon. These organiz-
ers commenced handbilling Respondent 's employees as
they left the premises in their automobiles . Kirshner
observed this and although he did not ask them to leave he
took some 15 pictures of the organizers , some showing
organizers alone, but many showing them giving handbills
to employees in their cars . One unidentified employee
asked an organizer what Kirshner was doing taking
pictures. The record is not altogether clear if at the outset
the organizers were actually positioned inside Respon-
dent 's parking lot, but the pictures suggest that for the most
part they were standing on the dnveway extension of the
sidewalk fronting the street . Shortly after they appeared
Kirshner called the police, ostensibly to protest the
presence of the organizers on his property. The police
appeared shortly thereafter but they did not disturb the
handbilling in any way . In the ensuing 2 months the Union
carried on an intensive organizational drive which, among
other things , included further handbilling at Respondent's
premises on five or six additional occasions. On none of
these later occasions were pictures taken , nor were the
police called , nor did any other incidents occur.
Kirshner testified that he took the pictures and called the
police because he believed the organizers to be trespassing
and to be blocking the driveway. He states that he
regarded the picturetaking as necessary to prove such a
claim if he was going to pursue efforts to enjoin it.
C. The Alleged Solicitation of Grievances
Concurrently with the commencement of the union
organizational campaign Kirshner held a series of meetings
with the warehouse employees. Theretofore employee
meetings had not been a regular occurrence . At the outset
of such meetings Kirshner told the employees that he was
unable to understand what working conditions could be so
bad that employees felt compelled to seek a union.
According to the testimony of employees Waller and
Wyble, Kirshner asked the employees to voice complaints
relating to Respondent 's operation . One employee told
Kirshner that the restroom in the back warehouse was in a
state of disrepair , and that that area lacked a drinking
fountain . Kirshner replied that this was the first time that
these things had come to his attention but that the request
seemed like a reasonable one and that he would take steps
to remedy it. Shortly thereafter the restroom, which had
been in disrepair for some 9 months , was fixed up, and a
dunking fountain was put in . Kirshner continued to urge
employees to voice complaints of any sort either by coming
to see him or by calling him on the telephone.
Kirshner acknowledges that he held some five or six
meetings with the employees at which he expressed his
opposition to the Union, and at which a variety of matters
were discussed including the repair of the restroom and the
drinking fountain. Kirshner denies however that he used
the word "complaint" claiming it to be a negative sort of
word that he did not normally use. While I am disposed to
credit the mutually corroborative testimony of Wyble and
Waller to the effect that Kirshner actually asked for
"complaints ," I deem the difference to be of limited
significance for it appears clear that in any event Kirshner
expressed himself as concerned with reasons why the
BERTON KIRSHNER, INC.
employees had sought a union, and made it clear that he
would welcome expressions regarding problems in existing
working conditions.
D. The Individual Interrogation of Cook and Wyble
Employee Cook had been on sick leave for approximate-
ly 10 weeks prior to August of 1972 because of an
operation. According to Cook at some point in August she
had a telephone conversation with Kirshner concerning her
return to work. Cook told Kirshner that she was ready to
come back if she could obtain a raise. Cook testified that
Kirshner then asked her "how [she] felt about the union,"
and that she had responded by saying that she "didn't need
it." Cook states that she then asked Kirshner for a 35-cent-
an-hour raise and that he responded that "if he could get a
`no' vote from [her] and [she would] give up profit sharing
and start out as a rehire" he would give her a 45-cent-an-
hour raise. Cook agreed to Kirshner's proposal and shortly
thereafter came back to work as a department head with
the 45-cent raise. Kirshner admits having had a telephone
conversation with Cook, and having discussed the Compa-
ny's profit-sharing plan with her. He states, however, that
he accorded her the 45 cents when she agreed to return to
work as a new employee thereby forfeiting a share of
Respondent's profit-sharing plan to which she might
otherwise be entitled . Kirshner testified that he "frankly
don't remember ever asking her or anyone else if she would
vote 'no' for the union. I might have said how do you feel
about the union or union participation but I honestly don't
remember and I feel sure I didn't say will you vote `no' for
the union."
A few weeks before the election on October 27 Kirshner
called employee Wyble into his office . According to Wyble
Kirshner asked for her support in the election and "what
any of the complaints were of the girls that brought the
union into the picture in the first place." Wyble then told
Kirshner some of her own complaints, and he asked her if
she "would give him some names of the girls that were for
the union and against the company in the election." Wyble
supplied him with the names of four or five employees.
Kirshner ended the discussion by asking Wyble if she
"could possibly talk to some of the girls . . . and maybe
change their minds." Kirshner does not deny this conversa-
tion with Wyble.
E. The Statement Allegedly Creating the Impression
of Surveillance of Employees' Union Activities
Virginia Holmes, an employee, testified that at one of the
employee meetings held a few days before the election
Kirshner had been discussing the forthcoming election and
had asked the employees to vote against the Union.
Kirshner solicited questions of the employees , and Holmes
asked why he would not let the Union into the plant to
have an open debate. According to the undisputed
testimony of Holmes Kirshner responded that this "would
be cutting his own throat," and that employees would
believe the union organizers and not himself . Holmes
further testified, again without dispute, that toward the end
of the meeting Kirshner had stated to Holmes "that he
1085
knew all about [her ], that [she ] was hired for the union
On the following day, at her own request , Holmes went
to Kirshner's office to discuss union matters with him. She
testified that Kirshner asked her why she wanted the
Union, and that when she responded that she was
interested in better wages and benefits Kirshner had told
her that these were things that would have to be negotiated.
She also testified that during the course of the meeting
Kirshner showed her the pictures he had taken on August
21 and told her that he had taken such pictures "to scare
off the union representatives ." Holmes acknowledges the
discussion to have been an amicable one, that it had
covered a variety of matters, and that Kirshner had
indicated she was free to vote any way she wished but that
he hoped that he had her vote . Kirshner admits that he
may have shown the pictures to Holmes but he categorical-
ly denies that he told her that the pictures were taken to
scare off the Union.
F. The Polling of the Employees Following the
Election
As noted above the ballots of seven persons were
challenged at the election . It stands undisputed that
following the election Kirshner called the employees who
had voted the challenged ballots into his office and asked
that they vote again the same way they "did in the election,
secret ballot, because he wanted to know the outcome of
them before they were opened because he didn 't want to
come back with a red face ." Thereafter the employees
voted and put their folded ballots in a waste basket
presumably to be counted later.
G. Discussion of the Issues and Conclusions
The allegations of the complaint are concerned solely
with the lawful or unlawful nature of Respondent's
reaction to the Union's organizational campaign. The
General Counsel contends that Respondent engaged in a
number of acts in derogation of the employees ' rights. In
part these are the same acts claimed to have interfered with
the conduct of the election . Although the facts are not in
substantial dispute, Respondent claims that when consid-
ered in the context of the Union 's campaign its conduct
should not be found to have so interfered with employee
rights that a cease and desist order is called for.
Respondent reacted promptly and vigorously to its first
knowledge of the Union 's organizational efforts. It
challenged the right of the organizers to be on its property,
and, when handbilling started , immediately called the
police and took pictures of the organizers handing the
literature to the employees as they left the plant. This
initial approach was abandoned and on the next five or six
later occasions the Union handbilled without incident.
While no doubt this in some measure served to dissipate
the effects of the August 21 picturetaking , the latter was
calculated to bring Respondent's concern with union
organization to the attention of the employees at the outset
of the organizational drive, and also make known to them
that Respondent might be making a record from which it
could identify the employees who were showing interest in
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization. Respondent claims to have been concerned
solely with the problem of the organizers trespassing on its
property and blocking egress therefrom. It does not appear
from this record that Respondent's actual motive was
necessarily one of unlawful surveillance. Respondent,
however, took no steps to apprise the employees of its real
objective, and it is not unreasonable that under the
circumstances they might conclude that it was actually
seeking information as to their union interests. Thus while
the record does not show that Respondent to have been
engaging in surveillance, it shows Respondent to have
engaged in conduct calculated to create an impression of
surveillance. The Board has often held this, in and of itself,
to be an interference with employee rights, and I so find.'
The foregoing finding is buttressed when it is considered
in conjunction with the series of employee meetings
Respondent initiated about the same time. Employee
meetings of this nature were not a regular occurrence. It
stands undisputed that Kirshner not only made clear to the
employees that he was opposed to unionization, but that he
made continuing efforts to find out from the employees the
problems that caused them to seek union representation.
Such efforts resulted in his learning of the restroom and
drinking fountain problem, and he responded by taking
corrective steps. Thus it appears that Kirshner, whether or
not specifically soliciting complaints as such, made it clear
to the employees that the Union campaign had made him
receptive to their work problems, and that if they spoke up
these might be adjusted without the need for a union.
General Counsel correctly points out that the Board has
held that where an employer during the course of an
organizational campaign solicits complaints from employ-
ees in a manner from which it can be inferred that
corrective action will be taken without the need of a Union
it interferes with the rights guaranteed by Section 7. The
solicitation here appears to have been of such nature, and I
find the conduct to be violative of Section 8(a)(1) of the
Act.2
Conduct of a more serious nature is to be found in the
interrogation of both Cook and Wyble as set forth above.
Respondent contends that it regarded each of these
employees to be supervisors, and that under the circum-
stances its inquiries were reasonable. I have found above
that neither Cook nor Wyble were supervisors within the
meaning of the Act. Thus to the extent that Respondent
relied upon their supervisory status its reliance was
misplaced.
Kirshner does not deny that he talked with Cook, or that
he may have mentioned the Union to her prior to her
return to work. Cook testified in a forthright manner, and I
credit her testimony to the effect that Kirshner questioned
her as to her union sympathies and told her that if he could
get a no vote from her and she would relinquish her right
to the profit-sharing plan she would'be given a 45-cent-an-
hour raise. Both the interrogation and promise and accord
of economic benefit for renouncing the Union stand out as
conduct interfering with Cook's Section 7 rights, and are
violative of Section 8(a)(1), and I so find.
It stands undisputed that Kirshner called Wyble to his
office , interrogated her as to her own sentiments and those
of her fellow employees, and sought her support to
influence others against the Union. Since Wyble like Cook
is not a supervisor this clearly is a flagrant example of
unlawful interrogation and interference with Section 7
rights in violation of Section 8(a)(1), and I so find.
Kirshner 's undisputed statement to Holmes at an
employee meeting shortly before the election to the effect
that he knew of her union activity was clearly calculated to
create an impression among the other employees that
Kirshner had taken steps to apprise himself of their union
support . It came near the end of the campaign in which the
employees had been photographed taking union handbills,
and in which Respondent had been holding a series of
meetings expressing his opposition to the organization of
employees, urging that they vote against the Union, and at
which he had been soliciting their grievances in an obvious
effort to convince them no union was needed . Making
known to employees that the employer is aware that one of
their number is a union supporter is reasonably calculated
to create an impression that he may also know of the union
activities of others, and such impression of surveillance I
find to have interfered with employee rights and to be
violative of Section 8(a)(1) of the Act.
It stands undisputed that following the election Respon-
dent called the voters whose ballots had been challenged to
his office, and conducted a poll among them so that he
might learn the outcome of the balloting before the
challenges were opened . These employees were not told
that no action or reprisal would be taken against them. It is
well established that the polling of employees regarding
their union support violates Section 8(a)(1) unless the
employer meets certain safeguards, and unless it has
legitimate reason for ascertaining a claim of majority.
Neither of these requirements was met in the instant case,
and under the circumstances the polling was violative of
Section 8(a)(1) of the Act, and I so find.3
IV. THE OBJECTIONS AND THE CHALLENGES IN CASE
21-RC-12862
As set forth above this is a consolidated proceeding in
which it was directed that a hearing be held to rule on
evidence concerning both objections to the election and
challenges to certain determinative ballots , as well as on
the unfair labor practices alleged.
Although the Union initially filed objections on several
counts, some were withdrawn , and the only objection upon
which a hearing was directed concerned the allegation of
the Union that Respondent had "interrogated employees
about their Union activities." It was conceded by the
Union that all matters relating to this objection were
litigated in connection with the evidence in the unfair labor
practice proceeding, and no additional evidence was
offered relating specifically to this objection alone. In the
unfair labor practice case the General Counsel alleged the
unlawful interrogation of employees Cook, Wyble, and
Smith and the unlawful polling of the challenged voters.
I Simplex Time Recorder Company, 165 NLRB 812, Holly Farm Poultry Company, 191 NLRB 44
Industries, Inc, 186 NLRB 210. 3 Struksnes Construction Co., Inc, 165 NLRB 1062.
2 Eagle Picher Industries, Inc, 171 NLRB 293, Reliance Electric
BERTON KIRSHNER, INC.
Since I found Smith to be a supervisor within the meaning
of the Act, Respondent's interrogation of her would not be
unlawful, and accordingly the circumstances thereof are
not set forth above. The interrogation of Cook, while
found unlawful, occurred before the filing of the petition.
The polling took place after the election was over.4
As recited above, however, it stands undisputed that
Kirshner, under the mistaken impression that Wyble was a
supervisor, not only queued her in regard to her union
sentiments but asked her about the union sentiments of her
fellow employees, and sought her support in persuading
them to abandon the Union. I found this to constitute a
flagrant violation of Section 8(a)(1). Occurring as it did in
the middle of the Union's organizational campaign, and
within a week or two of the election, I deem it sufficient
standing alone to justify setting aside the election.
Accordingly I shall recommend that the election heretofore
conducted be set aside and that a new election be directed
by the Board.
At the opening of the hearing counsel for Respondent
and counsel for the Union stipulated that the challenges
which the Union had made to seven ballots were valid and
should be sustained. The General Counsel did not join in
this stipulation. The parties further stipulated that their
sole purpose in agreeing that the challenges might be
sustained had been to resolve the issues raised without the
necessity for taking testimony as to the status of each
person challenged, and that the stipulation was without
prejudice to receiving testimony as to the supervisory
status of any one of those challenged should it he deemed
necessary in connection with the unfair labor practice
charges. As we have seen above considerable testimony
was adduced in this connection, and certain findings ,have
been made relative .to the supervisory status of some of the
individuals challenged.
The ballots of Grace Kelly, Richard Caldwell, Judy
Cook, Betty Patterson, Jack Gregory, Beatrice Johnson,
and Alice McCray were challenged by the Union on the
ground that each was a supervisor. In the unfair labor
practice proceeding considerable testimony was adduced
concerning the supervisory status of department heads and
warehouse supervisors. It is conceded that the superintend-
ent and assistant superintendents were supervisors within
the meaning of the Act. As set forth above, I found the
warehouse supervisors to be statutory supervisors, and the
department heads not to possess statutory supervisory
status. Jack Gregory and Richard Caldwell were assistant
superintendents in charge of the front and rear warehouses,
respectively. Accordingly each was a supervisor within the
meaning of the Act, and the challenges to the ballots of
each must be sustained, and I shall so recommend. I also
found above Alice McCray, supervisor in the front
warehouse, to be a supervisor within the meaning of the
Act. Accordingly I shall recommend that the challenge to
her ballot be sustained. Judy Cook testified that she was a
4 In its brief Respondent makes reference to a conversation between
employee Holmes and Kirshner which occurred in the latter s office a day
or so before the election as a possible incident of interrogation The
circumstances are recited above The General Counsel does not claim that
what occurred on this occasion constituted unlawful interrogation As noted
above this meeting occurred at Holmes' request, and her testimony with
regard to her conversation with Kirshner does not signify that anything took
1087
department head. Accordingly I shall recommend that the
challenge to her ballot be overruled. The record does not
definitely establish the status of Grace Kelly, Betty
Patterson, and Beatrice Johnson, no one of whom testified.
It appears likely, however, that each one of them was a
department head like Judy Cook. Assuming this to be the
case I shall also recommend that the challenges to the
ballots of each be overruled.
Upon the basis of the entire record I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer as defined in Section 2(2)
of the Act, and it is engaged in commerce and operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By photographing and thereby creating the impres-
sion of surveillance, by unlawfully interrogating employees
as to their union activities and those of their fellow
employees, by soliciting grievances of employees, by
making statements creating the impression of surveillance,
and by granting economic benefits to encourage employees
to forego support of the Union, Respondent has interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed by Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the entire record, the findings of fact,
and conclusions of law, and pursuant to Section 10(c) of
the Act I hereby issue the following recommended:
ORDERS
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Photographing the distribution of literature by the
Union to its employees.
(b) Interrogating employees as to their union activities
and those of their fellow employees.
(c) Soliciting grievances of employees.
(d) Making statements creating the impression of
surveillance of employees' union activities.
place at this time which exceeded permissible bounds
5 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 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.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Promising or granting economic benefits in order to
encourage employees to forego their support of a union.
(f) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its Pico Rivera plant copies of the attached
notice marked "Appendix."6 Copies of said notice on
forms provided by the Regional Director for Region 21,
after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED to the Board that the
Union's objection to the election be sustained, and that the
results of said election be set aside and a new election
directed with the provisions of Section 102.69(e) of the
Board's Rules and Regulations, Series 8, as amended,
governing the filing of exceptions.
IT IS FURTHER RECOMMENDED to the Board that in the
event it be deemed necessary to count the challenges that
the challenges to the ballots of Jack Gregory, Richard
Caldwell. and Alice McCray be sustained, that the
challenge to the ballot of Judy Cook be overruled, and that
the challenges to the ballots of Grace Kelly, Betty
Patterson, and Beatrice Johnson be overruled unless it
appears that any one of them should possess statutory
supervisory authority in accordance with the findings in
the Decision.
6 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals , the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board "
Order of the National Labor Relations Board" shall be changed to read