Best Products Co., Inc.

National Labor Relations Board - Board Decisions

Oct 29, 1981

259 N.L.R.B. 95 (N.L.R.B. 1981)

BEST PRODUCTS CO., INC. 95
Best Products Co., Inc. and United Food and Com- DECISION AND REPORT ON POST-
mercial Workers Union, Local No. 197, affili- ELECTION OBJECTIONS
ated with United Food and Commercial Work-
ers International Union, AFL-CIO. Cases 32- STATEMENT OF THE CASE
CA-2910 and 32-RC-1104 RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in Stockton,
California, on January 29, 1981.
DECISION, ORDER, AND DIRECTION The charge in Case 32-CA-2910 was filed on July 28,
OF SECOND ELECTION 1980, by United Food and Commercial Workers Union,
Local No. 197, affiliated with United Food and Commer-
BY MEMBERS FANNING, JENKINS, AND cial Workers International Union, AFL-CIO (herein the
ZIMMERMAN Union). The complaint which issued on September 12
was amended during the hearing and alleges that Best
On May 15, 1981, Administrative Law Judge Products Co., Inc. (herein Respondent), committed cer-
Richard J. Boyce issued the attached Decision in tain violations of Section 8(a)(1) of the National Labor
this proceeding. Thereafter, Respondent filed ex- Relations Act, as amended.
ceptions and a supporting brief. An election in Case 32-RC-1104 was held on Septem-
Pursuant to the provisions of Section 3(b) of the ber 11, 1980, among the full-time and regular part-time
National Labor Relations Act, as amended, the Na- employees in Respondent's Stockton store. It derived
from a petition filed by the Union on June 30, 1980, and
tional Labor Relations Board has delegated its au- a Stipulation for Certification Upon Consent Election ap-
thority in this proceeding to a three-member panel, proved on July 22. The initial tally was 32 for and 33
The Board has considered the record and the at- against representation, with 2 challenged ballots.
tached Decision in light of the exceptions and brief The Union filed objections to conduct allegedly affect-
and has decided to affirm the rulings, findings,' and ing the outcome of the election on September 16. On
conclusions of the Administrative Law Judge and October 29, the Regional Director issued his Report and
to adopt his recommended Order. Recommendations on Challenged Ballots and Objections
recommending that one of the challenged ballots be
ORDER opened and counted and concluding that the status of the
other challenged voter and the objections issues could
Pursuant to Section 10(c) of the National Labor best be resolved after a hearing.
Relations Act, as amended, the National Labor Re-r a heang.On November 19, the Board issued its Order adopting
lations Board adopts as its Order the recommended the Regional Director's recommendation and conclu-
Order of the Administrative Law Judge and sions. The one challenged ballot, accordingly, was
hereby orders that the Respondent, Best Products opened and counted on December 12, resulting in a re-
Co., Inc., Stockton, California, its officers, agents, vised tally of 32 for and 34 against representation, with I
successors, and assigns, shall take the action set challenged ballot-that of Virginia Klopstock, Respond-
forth in the said recommended Order. ent's sales training coordinator.
IT IS FURTHER ORDERED that the election con- By order dated January 6, 1981, the Regional Director
ducted herein on September 11, 1980, in Case 32- consolidated the objections and complaint matters herein
RC-1 104 be, and it hereby is, set aside, and that for hearing and decision, stating that it would "not be
said case be, and it hereby is, remanded to the Re- necessary to litigate" Klopstock's eligibility, her ballot
gional Director for Region 32 for the purpose of no longer being determinative.
conducting a new election at such time as he I. JURISDICTION
deems appropriate.
[Direction of Second Election and Excelsior foot- Respondent is a Virginia corporation engaged in the
operation of a chain of discount department stores, in-
note omitted from publication.] cluding one in Stockton. The Stockton store realizes
annual gross revenues in excess of $500,000, and annuallyRespondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to takes delivery from outside the State of California of
overrule an administrative law judge's resolutions with respect to credi- goods valued in excess of $50,000.
bility unless the clear preponderance of all of the relevant evidence con- Respondent is an employer engaged in and affecting
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enrd. 188 F.2d 362 (3d Cir. 1951). We have commerce within Section 2(2), (6), and (7) of the Act.
carefully examined the record and find no basis for reversing his findings.
Although the Administrative Law Judge relied, in part, on Essex Inter- 11. LABOR ORGANIZATION
national. Inc., 211 NLRB 749 (1974), which has since been overruled by
T.R.W. Bearings Division, a Division of T.R. W.. Inc., 257 NLRB No. 47 The Union is a labor organization within Section 2(5)
(1981), in finding that Respondent violated Sec. 8(aXI) of the Act by pro- of the Act.
hibiting employees from gathering outside the store on their own time. it
is clear that Respondent violated the Act under either standard.
259 NLRB No. 16
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
111. THE ALLEGED UNFAIR LABOR PRACTICES ployees "to go on strike," and they would have no
choice but to comply. Meanor added:
A. David Meanor
You have to go on strike, and while they're on
1. Allegations strike, the Company will not close. They will rehire
The complaint alleges that David Meanor, the man- people to fill your position, send you a letter telling
ager of the housewares department and an admitted su- you that your position's been filled and that they do
pervisor, violated Section 8(a)(1) on or about July 16, not have to hire you back.
1980, by threatening an employee with the loss of her
position and with the loss of various benefits, including Klopstock asked, "Well, then, what's the point of all
seniority rights and privileges, should the Union be this?" Meanor remarked, "Yeah, what's the point?" To
voted in; and by telling the employee that Respondent Klopstock's asking how he knew these things, Meanor
would not sign a bargaining agreement, meaning that the said his brother had been in a union. Meanor concluded
employees "would inevitably have to go on strike," if the exchange by telling Klopstock "just to keep it be-
the Union were voted in. tween us."
Meanor's version. Meanor, although conceding that he
2. Evidence did not remember "this particular conversation ...
really well," testified at length about it. While professing
between Meanor and Virginia Klopstock.' concern that Klopstock looked "upset or tense," Meanor
Klopstock's version. Klopstock testified that she was averred that the conversation was initiated by Klopstock
walking through the housewares department when saying that she had "some things to talk about" and
Meanor, noting her unsmiling countenance, asked what asking if he "would talk with her." He assented, after
was wrong. She denied that anything was wrong, but which, in the tag room, she raised the recent discharge
Meanor persisted, asking, "Is it the union thing?" Klop- of three employees. She voiced concern that manage-
stock conceded that she was troubled by the union situa- ment could "arbitrarily" discharge people, opining that
tion. Meanor suggested that they "go upstairs and talk union representation would give greater job security.
about it." Klopstock assented, and they went upstairs to Meanor responded that a union would not have made
uthw"upstairs "any difference whatsoever" in the cases she had cited.
In the tag room. , Meanr asked if Klopstock had "any Klopstock then remarked that she did not understand
In the tag room, Meanor asked if Klopstock had "any "the union situation," that she felt she was being judged
questions." She replied, "You tell me why shouldn't I "the union situation," that she felt she was being judged
want the Union." Meanor answered that, "personally," a union person unfairly," and that she was "being
he did not think the Union would benefit the employees picked on" as a result. Meanor assured her that she was
as much as they thought it would, elaborating that there not being picked on, and invited her to "come talk to"
would be "a lot of hidden things" that the employees him whenever she had "any problems."
probably did not know about. He particularized that, Meanor described "the negotiation process," explain-
while they might get a pay raise, they would lose bene- ing that, once the Union "was voted in . . . everything
fits elsewhere "to make up for it"; that they would "lose from that point was negotiable, that benefits could be
all [their] seniority" and would "start from scratch" as changed"; that, "depending on the contract, [you] could
concerns seniority; that, "if you want a day off ... you get more, [you] could get less." The main point I was
won't be able to get it off if the schedule is already trying to get across to her." Meanor testified, [was] that
posted," whereas, "the way it is now . . . [you] just go nothing was definite." Asked by Respondent's counsel if
up to your manager and ask him and they can arrange it he said in this context that the employees "would start
with no problem"; and that they would not "be able to from scratch on all their benefits," Meanor implied that
sit here and talk like this anymore, because there's a he did, answering, "And they have." He denied saying,
third party that you'll have to go through, and that'll be however, that any negotiated raise might be at the ex-
the union representative." pense of other benefits.
Klopstock asked how all this would happen. Meanor After describing the bargaining process, Meanor as-
said that it would be "step by step"; that winning the serted that, regardless, he did not "see how the Compa-
election "doesn't guarantee you anything." He continued ny could pay or do more for the Stockton employees
that, if Respondent should "say no" to the Union's bar- . . , without doing it for the entire Company." "Fair-
gaining demands, the Union then would "order" the em- ness," he went on, was "what it was all about . . . and
that wouldn't happen if we paid the Stockton employees
'Respondent challenged Klopstock's ballot on the ground that, as sales more than Sacramento."
training coordinator, she is a confidential employee. Respondent's counsel Meanor denied speculating whether Respondent would
stated on the present record, when Respondent rested, that "we have agree to the Union's demands-"I had no way of know-
never abandoned our position that Mrs. Klopstock is a confidential em- in
ployee." As earlier noted, that issue has been excluded from those to be
litigated herein in the context of the representation case. Nor need it be to go on strike" should agreement not be forthcoming.
resolved in the context of Respondent's alleged unfair labor practices. He admittedly told Klopstock, though, that "if for some
Assuming without deciding that Klopstock is a confidential employee, reason" there were not an agreement, "that's when you
she nevertheless is entitled to the protections of the Act under prevailing hear of strikes," and that the Union would do "whatever
Board law. Intermountain Rural Electric Association, 253 NLRB 1133
(1981), and cases cited. Respondent expressly disavowed any contention they had to if it came to an impasse." He continued that
that Klopstock is a statutory supervisor. in the event of a strike Respondent would have "the
BEST PRODUCTS CO., INC. 97
right to . . . hire replacements," and that those striking B. Terry Sauer (1)
"could be permanently replaced."
Meanor denied speaking of the "hidden problems" that 1. Allegation
go with union representation, only to concede that he The complaint alleges that Terry Sauer, a manager
told Klopstock of his own "not very good" experiences trainee in the toy department,' violated Section 8(a)(1)
with a union. He noted, in this regard, that it was "very on about July 18, 1980, by prohibiting employees from
easy" to arrange a day off as things were, but that with a
union in the picture "you worked the schedule." He times and in nonwork areas, to discourage their support
added that with a union management and the employees of the Union.
would not be able to discuss things "like we [are] doing
now." 2. Evidence
3. Conclusions Kevin Sullivan, a sales counselor in the housewares
department, testified that he and two coworkers, GaryTo the substantial degree that their stories diverge,
Klopstock is credited. Her recital was richly detailed, in- Petitt and Don Winget, had gathered outside the toy de-
ternally consistent, and altogether believable. Meanor, partment exit after work on July 18, "trying to decide
apart from admitting that he did not recall the exchange what [they] were going to do" with their evening. This
"really well," betrayed a discrediting penchant to be eva- was their usual after-work practice. A sidewalk about 10
sive and unresponsive. feet wide led from the exit, and they were seated on a
Meanor, by juxtaposing the ideas that there would be planter along the edge of the walk. Sullivan continued
a strike if Respondent said "no" to the Union's demands; that, after they had been there "about 15 minutes," Sauer
that considerations of "fairness" made it impossible for came out and announced that he would "have to break
him to "see how the Company could pay or do more for [them] up," explaining: "I'm sorry, but I was told that
the Stockton employees . . . without doing it for the
entire Company"; that, should there be a strike, the strik- ' The parties are in disagreement over Sauer's status. The General
ers' positions would be filled and Respondent would not Counsel contends that Sauer was a supervisor; or, even if not, an agent of
"have to hire [them] back"; and, in summary, that there Respondent. Respondent argues that he was neither. The ranking person
was no "point" to it all, that a strike would be likely if in each of the store's departments is a departmental manager. Beneath the
manager in some departments are an assistant manager, who is conceded-
not inevitable were the Union voted in, that those strik- ly a supervisor, and a manager trainee. The toy department, at most if
ing would lose their jobs, and that the organizational un- not all relevant times, did not have an assistant manager, meaning that it
dertaking in general was a futility. It is concluded that wae run by the manager-a Mrs. Allen-and by Sauer, as manager
Meanor, by so doing, violated Section 8(a)(1). 2 trainee. The department had about seven employees beneath those two.Meanor,-~~ by so doing, ~~The store is open from 10 a.m. to 9 p.m. weekdays, from 10 a.m. to 6
It also is concluded that Meanor violated Section p.m. on Saturdays, and from noon to 5 p.m. on Sundays. Allen and Sauer
8(aXl) by saying that, among the "hidden things" about alternated weekends running the toy department; and worked separate
representation, the employees would "start from scratch" but overlapping shifts during the week, one opening the department in
the morning and staying into the afternoon, the other reporting in the
as concerns seniority, work schedules would be rigidly afternoon and closing the department at night. In Allen's absence, which
binding, and the employees no longer would be able to also included a week or more when her daughter was ill, Sauer was in
talk directly with management. The evil of these remarks command of the department, accountable only to Michael Ebbensteiner.
is their implication that unionization alone would have the overall showroom manager, whom Sauer labeled as his "boss."
the stated effects. 3 Aside from the regularly recurring instances in which Sauer was the
ranking person present in the department, it is uncontroverted that he at-
It is concluded, finally, that Meanor's comment was tended weekly meetings of assistant managers and manager trainees (the
not unlawful that the employees would lose benefits else- managers attended weekly meetings at other times so that the depart-
where "to make up for" any wage increases that repre- ments would never be without leadership); shared an office with Allen;
did not punch a timeclock, unlike the general run of employees; author-
sentation might bring. Meanor plainly was referring to ized the acceptance of customer checks and employee use of the depart-
the workings of the bargaining process, and, as the ments' telephone; had the authority to give warnings, to permit employ-
Board has stated: ees to report late or leave early, and to grant days off; prepared depart-
ment work schedules; assigned employees from task to task; sometimes
An employer is free to indicate to his employees evaluated job performance; participated with Allen in the interview ofprospective employees; and made notations on timecards. enabling pay-
what the possible result of bargaining may be, and ment for extra hours.
to call their attention to the possibility or even Virginia Klopstock, one of whose duties is to teach new hires "how
probability that certain existing benefits may be they are to respond to their managers," testified that Sauer in addition
had authority to request that employees work extra hours and overtime;
traded away for others.' and Gary Petitt, a toy department employee, testified that Sauer in fact
made such requests of him "on different occasions." Sauer's denial that
Richard Tischer, Martin Boder and Donald Connelly. Sr., a limited he had such authority was unconvincing. As is elsewhere noted, he was
partnership d/b/a Devon Gables Nursing Home; Richard Tischer. Martin not an impressive witness.
Bader and Donald Connelly, Sr., a limited partnership d/b/a Devon Gables Finally, Klopstock credibly testified that she instructed the new hires
Lodge d Apartments, 237 NLRB 775, 776 (1978); Four Winds Industries, whom she trained, that managers, assistant managers, and manager train-
Inc., 211 NLRB 542 (1974); Tommy's Spanish Foods. Inc., 187 NLRB 235 ees were all managers in their departments, all to be accorded the "same
(1970). respect."
' N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969); Sport- It is concluded from this aggregate of circumstances that Sauer indeed
spal. Inc., 214 NLRB 917 (1974); Stumpf Motor Company. Inc., 208 was a supervisor and agent, and that his conduct therefore is binding on
NLRB 431 (1974). Respondent. Osco Drug, Inc., a wholly owned subsidiary of Jewel Food
'Stumpf Motor Company. supra, 208 NLRB 432. Companies. Inc., 237 NLRB 231, 233-234 (1978).
98 BEST PRODUCTS CO., INC.
any more than three employees in any one place at a Sullivan replied that he not only was "in favor of it" but
time were to be considered a conspiracy." was "working on the campaign."
With that, Sullivan went on, he and his companions Menius then showed Sullivan a list of those in the de-
"just laughed a little bit, got up, and left." He testified partment, with an "X" or "O" designation behind each
that they continued this practice to gather at the same of about 14 names. After explaining that the designations
place after work, hearing nothing further from Sauer. signified who was prounion and who was procompany,
Petitt, a sales counselor in the toy department, cor- and that the list was being prepared for John Case, re-
roborated Sullivan in all significant respects. Sauer gional personnel manager, and Michael Ebbensteiner,
denied ever speaking to employees in this manner outside showroom manager. Menius asked Sullivan if the desig-
the building. offering that he once "had to ask" Sullivan, nations were accurate. He demurred that he preferred
who was soliciting for the Union in the store while off not to answer.
duty, "to let the employees that were on duty do their At this point, according to Sullivan, he told Menius
work, and ... to talk to them during their breaks or off- that "there was the possibility" that he would file an
duty hours." Sauer denied ever using the word "conspir- unfair labor practice charge against her for instituting a
acy"-"I wouldn't use the word 'conspiracy." conversation with him about the Union. She said that she
had done "nothing illegal," then stated:
3. Conclusions
If the Union was voted in and it came to negotia-Sullivan and Petitt are credited, as against Sauer's tions . . . the Company would stalemate such nego-
denial, that this incident occurred and was as they re- ti .
called. Both were persuasively cogent and forthright in tiatons and force the employees out on strike
their presentations; whereas, Sauer not only was unre- Menius added that the strikers "would then be replaced";
sponsive and evasive on frequent occasion but uncon- and that Respondent, because of its wealth, "could out-
vincing in overall demeanor. last [the employees] on any strike."
Given the surrounding context of a union campaign Sullivan countered that Respondent "could not force
and the assorted other unfair labor practices found us legally out on strike"-rather, that that would be the
herein, it is concluded that Sauer's dispersal of the three employees' "own personal choice"; and related his un-
employees on the stated ground that they were "consid- derstanding of the distinction between economic and
ered a conspiracy" was meant to interfere with and re- unfair labor practice strikers as concerns susceptibility to
strain them in their exercise of organizational rights, vio- permanent replacement.
lating Section 8(a)(1). It is further concluded that, re- Menius also said, per Sullivan, that Respondent wouldgardless of motive, Sauer's prohibition against the em- try to schedule as many as possible of the procompany
ployees' gathering outside the store on their own time, employees to work the day of the election, leaving offthere being no showing of a valid business justification,
was in the nature of an unlawfully broad ban on solicita- Menius version. Menius testified that she and SullivanMenius' version. Menius testified that she and Sullivan
ti~on'. 6"just sort of drifted into the talk about the Union," and
C. Annette Menius that she said:
i. Allegations [I]f it got to the negotiation table, there could be
possibility, I guess, that if the Company and the
The complaint alleges that Annette Menius, the assist- labor union could not come to an agreement on var-
ant manager of the housewares department and an ad- ious terms or what-not, they-it would be kind of
mitted supervisor, violated Section 8(a)(l) on or about like a dead-end thing and there could be the possi-
July 24, 1980, by interrogating an employee concerning bility of a strike.
his union sentiments, by imparting to the employee "the
impression that Respondent had engaged in surveillance Menius testified elsewhere that Sullivan "raised the sub-
of' some of the employees' union activities, and by tell- ject" of a possible strike, remarking that any strike
ing the employee that Respondent "would force a 'stale- "would have to be voted on by the employees"; and, at
mate' in bargaining with the Union and that employees another point, that she could not "really say for sure"
would inevitably have to go on strike." whether he or she first broached the subject.
In any case, according to Menius, Sullivan exclaimed,
2. Evidence after she had expressed herself as above set forth, that
These allegations concern a conversation on or about she had "committed a ULP," whereupon he departed
July 24 between Menius and Kevin Sullivan, previously and the exchange ended.
identified as a sales counselor in the housewares depart- Menius denied asking Sullivan about his union senti-
ment. ments, explaining that his feelings were apparent from
Sullivan's version. Sullivan testified that after he and the prounion T-shirt he was wearing; or that she said
Menius had finished discussing another matter, Menius anything about rigging work schedules on election day;
asked, "What do you think about the union campaign?" or that she mentioned Respondent's having the economic
resources to withstand any strike.
'Cf. K. W. Norris Printing Co., 232 NLRB 985 (1977); Essex Internation- Menius denied, finally, that she showed Sullivan a list
al, Inc., 211 NLRB 749 (1974). of employees' names on which their union sympathies
BEST PRODUCTS CO., INC. 99
were denoted. On examination by counsel for the Gener- Sauer about the Union, "starting around July." Avila re-
al Counsel, however, she grudgingly admitted that Case lated that in one such conversation, at the customer serv-
and Ebbensteiner had directed the several department ice desk on July 25, Sauer asked if she wanted to go into
managers to "figure out who might be for the Union, the office with him and talk about the Union. To her
and who might be against it"; that she had kept a list in- negative answer, Sauer reportedly said that he was sup-
dicating whom she thought was of which persuasion; posed to talk to all the employees and get their opinion
and that she went over the information on that list with of the Union.
Meanor, who was her immediate superior, and with Case Avila responded, so she said, that Sauer already knew
and Ebbensteiner. her opinion, prompting Sauer to state that he was not
going to use "the propaganda" he had been told to use.
3. Conclusions Avila persisted that she did not "want to discuss it," and
To the considerable extent that their versions conflict, Sauer allegedly said: "Let me say just one more thing.
Sullivan is credited. His demeanor and the substance of . . [I]f you do not vote, it'll be a vote for the Union."
his testimony suggested both competence and conscien- Sauer, while not addressing these particular pieces of
tiousness under oath, whereas Menius was often evasive testimony, denied generally that he ever questioned
and generally unconvincing. anyone about the Union-"No, sir, we were instructed
It is concluded that Menius interrogated Sullivan in not to."
violation of Section 8(a)(1) by inquiring of his thoughts 3 Conclusions
"about the union campaign" and by asking him if the
designations on her list were accurate;? that she imparted Petitt and Avila are credited that Sauer made the re-
the impression of surveillance, further violating Section marks attributed to him. Sauer, as previously mentioned,
8(a)(1), by showing and explaining the list to him; 8 and was unconvincing both in testimonial content and demea-
that she committed yet another violation of that section nor. Petitt and Avila, in contrast, came across as sincere
by remarking that Respondent "would stalemate" bar- and capable witnesses.
gaining, thereby forcing a strike and causing the strikers It is concluded that Sauer violated Section 8(a)(1) by
to be replaced, which conveyed the notion that represen- asking Petitt how the Union "was going," why it "came
tation would be both pointless and destructive of job se- in," and if it "was dying down.'° It also is concluded
curity.9 that Sauer in effect interrogated Avila about her union
sympathies by the combination of his asking her if she
D. Terry Sauer (2) wished to talk to him about the Union and telling her
that he was supposed to obtain the employees' "opinion
1. Allegation of the Union"; and that he thereby further violated Sec-
The complaint alleges that Sauer, previously identified tion 8(a)(1).
as a manager trainee in the toy department, violated Sec-
tion 8(a)(1) on July 25, August 2, and two other dates in E. Terry Sauer (3)
July or August 1980 by interrogating employees con- The complaint alleges that Sauer violated Section
cerning their and their coworkers' union sentiments. 8(a)(1) on about August 2, 1980, by threatening an em-
ployee "with the inevitability of a strike and loss of em-
ployment" should the Union be voted in.
Gary Petitt, previously identified as a sales counselor
in the toy department, testified of "a couple of" conver- 2. Evidence
sations with Sauer concerning the Union. The first, took Kevin Sullivan, previously identified as a sales coun-
place in the department manager's office towards the end selor in the housewares department, testified that on
of July. In it, Sauer asked Pettit how the Union "was August 2 while on vacation he went to the store to see
going"; Pettit replied that it was "still going strong;" and when Gary Petitt would be getting off. Sullivan was
Sauer then asked Petitt's opinion on why the Union wearing a prounion T-shirt. According to Sullivan, Sauer
"came in." came up to him and remarked, "Don't you like working
The second conversation, as recalled by Petitt, oc- for the Company?" Sullivan assertedly replied that he
curred in the same office around the "beginning of did, whereupon Sauer stated that. "if the Union was
August." Petitt testified that Sauer, remarking that he voted in," Respondent "would force" the employees
had not heard too much about it of late, asked if the "out on strike" and they "wouldn't be coming back."
Union was dying down. Petitt assertedly answered that Sauer further stated, as Sullivan recalled, that he
the cause had lost a number of people, but that its propo- would "really miss" working with him and his cowork-
nents were trying to get them back. ers, because they were a "great group"; and that "even if
Mary Avila, also a sales counselor in the toy depart- the Union lost the election" the employees "could still
ment, testified that she had "several" conversations with possibly lose" their jobs, for Respondent "would not for-
give and forget."
E.g.. PPG Industries, Inc., Lexington Plants Fiber Glass Division, 251 Petitt was present during this exchange, according to
NLRB 146 (1980); Didde-Glaser, Inc.. 233 NLRB 765 (1977).
B Tipton Electric Company, and Professional Furniture Company, 242 Sullivan. Petitt corroborated Sullivan in this regard, and
NLRB 202 (1979).
' See fn. 2, supra. '° See fn. 7, supra.
100 BEST PRODUCTS CO., INC.
with respect to the salient substantive features of Sulli- Case, the regional personnel manager, about the "prob-
van's recital. lems with the door"; and that, while Case said he would
Sauer denied participation in any incident of this char- "check on it," nothing changed.
acter-"No, sir, we were instructed not to mention any- Gary Petitt corroborated Klopstock that the door
thing of that nature." "generally" stayed open before the campaign; and that,
though it was frequently closed by the employees during
the campaign, "it would always get opened again."
For reasons earlier stated, Sullivan and Petitt are cred- Petitt, however, could not identify those opening it-
ited that Sauer bespoke himself as they described. It is "I've never seen anybody come out and open it.
concluded that Sauer, by indicating that a strike neces- Neither Ebbensteiner nor Davis testified.
sarily would follow from Respondent's bargaining pos-
ture, with attendant job loss to the strikers, conveyed the 3. Conclusions
idea that representation would be at once a futility and a
peril; and that he consequently violated Section 8(a)(l)." It is inferable from the recitals just set forth, particu-
larly Klopstock's, and absent testimony to the contrary,
F. Michael Ebbensteiner that Ebbensteiner was behind the recurrent opening of
the door. And, while it might be speculated that his pur-
1. Allegation pose was to ensure that the room's intended use not be
The complaint alleges that Ebbensteiner, previously subverted by a certain employee faction, neither he nor
identified as the showroom manager, an admitted super- anyone else offered testimony giving substance to such
visor, violated Section 8(a)(l) on and after June 24, 1980, speculation.
by engaging in surveillance of the employees' union ac- The further inference necessarily follows that Ebben-
tivities. steiner's purpose was to eavesdrop, and to impart the im-
pression that he was eavesdropping, on the employees'
discussions of the Union. It is concluded, therefore, that
The Stockton store has a single small lunchroom. It Ebbensteiner violated Section 8(a)(l).
has food and drink vending machines, a refrigerator, a
microwave oven, a few tables and chairs, a stereophonic CONCLUSIONS OF LAW
radio, and sometimes a television set; and is for the use
As previously concluded, Respondent violated Sectionof both management and rank-and-file personnel. Some
make purchases there and leave; others spend their (a)( ) by:
breaks and/or lunch periods there. The weight of evi- I. Imparting to its employees the impression that
dence indicates that it receives considerably more use should the Union be voted in a strike was likely if not
from rank-and-file personnel than from management. inevitable; that those striking would lose their jobs; and
Ebbensteiner's office is down the hall from the lunch- that the organizational undertaking in general was a futil-
room. Virginia Klopstock testified that, when the lunch- ity.
room door is open, lunchroom conversations can be 2. Stating or implying to an employee that unioniza-
clearly heard in Ebbensteiner's office. tion would result in the employees' "starting from
Before the union campaign the lunchroom door was scratch" as concerns seniority, in work schedules becom-
propped open most, if not all, of the time. With the cam- ing rigidly binding, and in the employees' no longer
paign's onset, employees gathering in the lunchroom rou- being able to talk directly with management.
tinely closed the door so that their discussions of issues 3. Forbidding three employees from gathering outside
relating to the campaign would not carry outside. Just as the store on their own time, thereby issuing what
routinely, the door would be reopened from the outside. amounted to an overly broad no-solicitation rule.
Klopstock, who had a desk a few feet from the door, tes-
tified that the door was closed and opened in this 4. Interrogating employees about their opinions con-tified that the door was closed and opened in this cerning the Union, and about their and their coworkers'
manner "sometimes 10 times a day"; that it "got to be a
game"; and that those recurrently opening the door were union sympathies.
Ebbensteiner and his secretary, Joyce Davis. 5. Imparting to its employees the impression that their
Klopstock further testified that she once told Ebben- union activities were under surveillance, and in fact en-
steiner that the employees were "upset about" the con- gaging in surveillance of such activities.
tinued reopening of the door, and that he responded that
he liked the door open "to hear the music." Before the THE OJECTIONS
campaign, according to Klopstock, Ebbensteiner some- The several instances of misconduct above found oc-
times turned off the radio in the lunchroom, presumably curred during the "critical period" after the June 30,
because it disturbed him. 1980, filing of the election petition. It is concluded that
Kevin Sullivan testified that when Joyce Davis once this misconduct is sufficient to overturn the election.
opened the door during the campaign she commented
that she had been told that the door "must remain open."
Sullivan also testified that he once complained to John
" See fn. 2, supra.
BEST PRODUCTS CO., INC. 101
ORDER' 2 (e) Imparting to employees the impression that their
union activities are under surveillance, and in fact engag-The Respondent, Best Products Co., Inc., Stockton, ing in surveillance of such activities.
California, its officers, agents, successors, and assigns, (f) In any like or related manner interfering with, re-
shall: straining, or coercing employees in their exercise of
1. Cease and desist from: rights under the Act.
(a) Imparting to its employees the impression that, 2. Take this affirmative action:
should the Union be voted in, a strike is likely if not in- (a) Post at its store in Stockton, California, copies of
evitable; that those striking will lose their jobs; and that the notice which is attached and marked "Appendix."' 3
the organizational undertaking in general is a futility. Copies of the notice, on forms provided by the Regional
(b) Stating or implying to its employees that unioniza- Director for Region 32, after being duly signed by Re-
tion will result in their "starting from scratch" as con- spondent, shall be posted by Respondent immediately
cerns seniority, in their work schedules becoming rigidly upon receipt thereof, and be maintained for 60 consecu-
binding, and in their no longer being able to talk directly tive days thereafter, in conspicuous places, including all
with management. places where notices to employees customarily are
(c) Forbidding employees from gathering outside the posted. Reasonable steps shall be taken by Respondent to
stor ,on their own time, thereby i.an overly broad . nsure that the notices are not altered, defaced, or cov-
store on their own time, thereby issuing an overly broa d
no-~storeicitatssuingrule.ered by any other material.
(b) Notify the Regional Director for Region 32, in
(d) Interrogating employees about their opinions con- writing, within 20 days from the date of this Order, what
cerning the Union, and about their and their coworkers' steps Respondent has taken to comply herewith.
union sympathies. IT IS FURTHER RECOMMENDED that the election of
September 16, 1980, be set aside and a new election di-
" All outstanding motions inconsistent with this recommended Order rected.
hereby are denied. In the event no exceptions are filed as provided by
Sec. 102.46 of the Rules and Regulations of the National Labor Relations '' In the event that this Order is enforced by a Judgment of a United
Board, the findings, conclusions, and recommended Order herein shall, as States Court of Appeals, the words in the notice reading "Posted by
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Order of the National Labor Relations Board" shall read "Posted Pursu-
Board and become its findings, conclusions, and Order, and all objections ant to a Judgment of the United States Court of Appeals Enforcing an
thereto shall be deemed waived for all purposes. Order of the National Labor Relations Board."