Crowley, Milner And Co.

National Labor Relations Board - Board Decisions

Feb 4, 1975

216 N.L.R.B. 443 (N.L.R.B. 1975)

CROWLEY, MILNER AND COMPANY
Crowley, Milner and Company and Retail Store
Employees Union Local No. 876, Retail Clerks
International Association, AFL-CIO, Petitioner.
Case 7-RC-11907
February 4, 1975
DECISION AND CERTIFICATION OF
RESULTS OF RERUN ELECTION
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
Upon a petition filed on July 12, 1973, and
pursuant to a Stipulation for Certification Upon
Consent Election executed by the parties and
approved by the Regional Director for Region 7 of
the National Labor Relations Board on August 1,
1973, an election by secret ballot was conducted on
September 20, 1973, among the employees of the
Employer in an appropriate unit noted below.
At the conclusion of the election, the tally of
ballots showed that the results of the election were
inconclusive due to the number of determinative
challenges. Petitioner also filed timely objections to
that election.
The objections and challenged ballot issues result-
ed in a hearing before a Hearing Officer who issued
his report on December 26, 1973, recommending that
the election be set aside. No exceptions to the report
were filed within the allotted time period and, on
February 5, 1974, the Board adopted the Hearing
Officer's report and recommendation, issued its
Decision, Order, and Direction of Second Election,
and pursuant to same a rerun election was conducted
on March 7, 1974.
Upon the conclusion of the rerun election, a tally
of ballots was furnished the parties in accordance
with the Board's Rules and Regulations . The tally of
ballots showed that, of approximately 235 eligible
voters, 223 ballots were cast, of which 100 were for
and 118 were against the Petitioner . There were five
challenged ballots which were insufficient in number
to affect the results of the rerun election. On March
14, 1974, the Petitioner filed timely objections to
conduct affecting the result of the election.
Thereafter, the Regional Director investigated the
objections and, in April 1974, issued a report and
order in which he concluded that the objections
raised substantial and material issues of fact and
credibility which could best be resolved by a hearing.
Accordingly , a hearing was conducted on April 15,
16, 17, 18, and 19, 1974, before Hearing Officer
i During the hearing, Petitioner requested permission to withdraw
Objection 6. There was no opposition to that request , and the Hearing
Officer recommended that Petitioner's request to withdraw its Objection 6
be granted.
216 NLRB No. 71
443
Theodore C. Niforos for the purpose of taking
evidence on issues raised by all of the Petitioner's
objections.
Thereafter, on July 11, 1974, Hearing Officer
Niforos issued his report and recommendations on
objections in which he recommended that Petition-
er's Objections 1, 2, 3, 5, and 7 be sustained; that
Objections 4 and 8 be overruled;' and that the
election be set aside on the basis of those objections
he sustained. Thereafter, the Employer filed excep-
tions to the Hearing Officer's report and a supporting
brief, and Petitioner filed a reply 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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act.
4. The parties agree, and we find, that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees,
including heads-of-stock and including all leased
department employees, at the employer's facility
located at Westborn Mall, Dearborn, Michigan;
but excluding store manager, assistant store
manager, employment manager, office manager,
area supervisors, confidetitial employees, and
professional employees, guards and supervisors as
defined in the Act.
5. The Board • has considered the Hearing Offi-
cer's report and recommendations, the Employer's
exceptions and brief, the Petitioner's reply brief, and
the entire record in the case and hereby adopts the
Hearing Officer's findings,2 conclusions, and recom-
2 The Employer excepts to various findings of the Hearing Officer on the
ground that he erred in crediting certain testimony . It is the established
policy of the Board not to overrule a Hearing Officer's credibility
resolutions unless the clear preponderance of all the relevant evidence
(Continued)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations only3 to the extent consistent herewith.
Objections 1 and 2:4 In Objection 1, Petitioner
alleged that the Employer engaged in unlawful
surveillance of prounion employees during the
election campaign and, in Objection 2, it alleged that
the Employer discriminatorily enforced its no-solici-
tation no-distribution rule by granting to antiunion
employees certain rights it denied prounion employ-
ees. Since certain of the evidence the Hearing Officer
considered regarding Objection 1 was also consid-
ered by him in his analysis of Objection 2, we shall
consider these objections together.
In recommending that Objection I be sustained,
the Hearing Officer relied on (1) certain testimony of
employees Abbott, Jagusch, and Mesner that, during
the 30-day period prior to the rerun election, they
were followed about the selling floors 5 by supervisors
and security personnel; (2) activities of certain of the
Employer's supervisors which allegedly constituted
unlawful surveillance of prounion employees; and (3)
an incident involving employee Abbott and Supervi-
sor O'Donnell, which allegedly demonstrated in
concrete fashion this unlawful surveillance.
As the Hearing Officer correctly concluded, the
testimony of Abbott, Jagusch, and Mesner, to the
effect that they were allegedly followed about the
store by employer representatives during the election
campaign, is largely subjective, and the subjective
opinions of these pro-Petitioner employees are not
substantial evidence supporting the contention of
surveillance.
The Hearing Officer also made reference to the
alleged surveillance activities of Employer Supervisor
Smelewski and Security Supervisor Russu. Both men,
during the campaign, visited in various parts of the
department store, observing the activities of the
employees as they walked about. We note, however,
that it is not unlawful under the statute for an
employer to observe the activities of an employee
carried on in the [workplace] and in working time,"6
and thus this complained-of activity by Supervisors
Smelewski and Russu cannot be considered objec-
tionable.
Unobjectionable also is the admitted fact that, in
the 2-week period prior to the election, the Employ-
er's supervisors were generally at the store more
often and for longer hours. This is so especially in
light of the further admitted fact that both pro- and
anti-union employees were permitted to spend a
convinces us that the resolutions are incorrect . See Connor Trading
Company, Inc., 188 NLRB 263, 264 (1971), fn. 4, and cases cited therein. We
have carefully examined the record and find no basis for reversing his
findings
3 In the absence of exceptions, we adopt pro forma the Hearing Officer's
recommendations that Petitioner be allowed to withdraw Objection 6 and
that Objections 4 and 8 be overruled as lacking in merit.
4 We shall consider the five objections which the Hearing Officer
great deal of time out of their departments during the
preelection period, soliciting others to vote for or
against the Union as their interests indicated.
Because of this large amount of employee activity, it
would seem only natural that the Employer, to insure
the continued orderly running of its business, might
have more than the ordinary supervisory comple-
ment present in its store to see that the employees'
union-related activities did not hinder the pursuit of
their ordinary work duties.
Nor, in all the circumstances, does the incident
involving employee Abbott and Supervisor
O'Donnell constitute objectionable surveillance. As
the Hearing Officer related, on an unspecified date,
within 2 weeks of the rerun election, employee
Abbott arrived at the store ahead of her scheduled
worktime. As she was taking an escalator up to the
cafeteria, she noticed two of Petitioner's agents
coming down the down side of the escalator. She
motioned that she wished to speak to them and they
waited for her to come back down the escalator. She
then stepped through some nearby glass doors and
outside of the store proper with the agents into an
outer public area while a third agent of Petitioner
remained just inside the glass doors on the selling
floor. As was the Employer's practice, its supervisors
had followed each of Petitioner's three agents from
the time they entered the store. Supervisor O'Donnell
had been following the business agent who remained
inside the store and O'Donnell had gone to the glass
doors with that agent and remained there. It appears
that the agent whom O'Donnell was observing left
his position by the door for a time and then returned
but that O'Donnell remained at the glass doors
during the agent's absence . The Hearing Officer
found that during this time O'Donnell from time to
time "intently" watched Abbott's conversation with
the two agents outside of the doors and found this to
be evidence of impermissible surveillance of Abbott's
activities with the two agents.
We think the O'Donnell incident is insufficient to
raise an inference of improper surveillance sufficient
to warrant the sustaining of this objection. Not all
surveillance is prohibited by the Act. Rather it is the
type of surveillance which interferes with, restrains,
or coerces union activities which is prohibited.7 We
conclude this was not such a type of surveillance.
The incident was nonthreatening and was not
repeated; it involved only one supervisor and one
recommended be sustained in the following order I and 2 , 5, 3 and 7.
S The facility involved here is a department store having various
departments on each of its three levels. As noted above, there were over 200
persons who were eligible voters in the rerun election.
6 N L.R. B. v. The R . C. Mahon Company, 269 F.2d 44,47 (C A 6, 1959)
r N.L.R B v . Atkins Saw Division of Nicholson File Company, 399 F.2d
907, 910 (C.A. 5, 1968)
CROWLEY, MILNER AND COMPANY
employee in a store with a large number of
supervisors and over 200 employees. Moreover,
observance of the single employee was merely
incidental to the Employer's lawful surveillance of
Petitioner's agents from the time they entered the
store. It clearly does not warrant setting aside the
election in such circumstances.
While Objection 2 alleged a discriminatory en-
forcement of the Employer's no-solicitation no-distri-
bution rule against pro-Petitioner employees, the
Hearing Officer considered this objection in terms of
unequal treatment in general accorded pro-Petitioner
vis-a -vis anti-Petitioner employees by the Employer.
In recommending that this objection be sustained,
the Hearing Officer relied on the "balloon" incident,
and on a grouping of occurrences he found indicated
that the activities of the antiunion employees were
regarded in one way by the Employer while the
activities of Petitioner's adherents were regarded in
another.
At the outset, we note that it is not contended that
the Employer's no-solicitation no-distribution rule at
its Westborn store was invalid in any regard.
Petitioner claims , however, it was discriminatorily
applied. We reiterate as further background, howev-
er, that both pro- and anti-Petitioner employee
adherents spent a great deal of time during the rerun
election campaign out of their own working depart-
ments during their working time soliciting other
employees either against or in favor of the Petitioner.
There were no repercussions visited by the Employer
on any employee for such activity, whether anti- or
pro-Petitioner.
Despite this significant fact, the Hearing Officer
concluded that the Employer treated the two groups
of employees in an objectionably different manner.
To so conclude he relied first on the "balloon"
incident.
About 3 weeks before the election, a civic group
had used balloons in a safety presentation at the
store. After the presentation, several employees from
the men's wear department took some of the balloons
and hung them from cash registers and racks in their
department. The words "Vote No" were attached to
the balloons. Supervisor Smelewski added one more
balloon himself after seeing that others had hung
them. He also commented to an employee that her
department was more colorful because of the
balloons. Another official of Respondent noticed the
balloons but did not attempt to have them taken
down since he did not think the balloons were a
possible form of improper solicitation. However, the
next day, the employees' own supervisor chastised
s While we are aware of the activities of the other two employer
representatives in one 's partially participating, and the other's initially
failing to halt this incident, we think the evidence viewed in its totality
445
the employees for having put the balloons up; told
them management was upset at what had happened;
and warned that such an incident should not occur
again.
While the Hearing Officer initially concluded that
the balloon incident standing alone would not
constitute objectionable conduct, he noted that, since
he had found the Employer engaged in other conduct
which he considered of a similar type and which he
considered to be objectionable, he thus viewed the
balloon incident, in context, to be objectionable. We
conclude, however, that, even were we to agree with
the Hearing Officer that other allegedly similar
conduct of the Employer was objectionable (a
conclusion in which we do not in fact concur for
reasons noted below), we would still find the balloon
incident unobjectionable. It is clear that the Employ-
er took immediate steps to disavow any implied
condonation of the employees' actions once the
Employer's higher management was made aware of
what had occurred. This action took the form of an
immediate warning to the employees' own supervisor
about what had occurred and the relation to the
employees by their supervisor of this warning with
the admonition that such an incident should not
occur again. There was thus no objectionable
disparate treatment of the two groups of employees
evidenced by the Employer in this incident.8
The balance of the evidence the Hearing Officer
relied on to conclude that activities of pro-Petitioner
employees were viewed by the Employer in an
objectionably different light than the actions of anti-
Petitioner employees included his finding that (1)
Supervisor Roberts had urged four employees to
wear their "Vote No" buttons in anticipation of the
arrival of the Employer's president at the store; (2)
the Employer's president had termed certain anti-
Petitioner literature distributed by some of the
employees as evidencing a "loyalty" to the Employ-
er; and (3) pro-Petitioner employees were subject to
surveillance by employer representatives when they
engaged in their activities or when they left their
departments.
Since we have already concluded that the Employ-
er did not engage in any objectionable surveillance of
its employees' activity, we do not rely, as the Hearing
Officer did, on any of the evidence relating to that
alleged surveillance as indicating that the Employer
viewed- the pro-Petitioner employees' activity in an
objectionably disparate manner.
We also do not rely on the Employer's president
having termed anti-Petitioner literature as showing a
loyalty to the Employer as an indicator of objection-
demonstrates clearly that the Employer in no way approved of this incident
and took stern measures to so indicate to its employees.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ably disparate treatment toward pro-Petitioner em-
ployees. As the Hearing Officer correctly concluded
in refusing to find this incident an independently
objectionable incident (as alleged in Objection 4),
there is no inference present in the letter that, by
deeming pro-Petitioner employees "loyal," all Peti-
tioner's supporters were deemed disloyal. The presi-
dent's remarks, as noted by the Hearing Officer, were
specifically directed to the anti-Petitioner employees'
literature and not generally to their efforts or attitude
and, as the Hearing Officer correctly concluded, to
infer from the Employer's statements a blanket
condemnation of all employees sympathetic to
Petitioner would be to read into those statements
more than was present. In such circumstances,
however, we cannot agree with the Hearing Officer
that this letter can be relied on as a factor
demonstrating the Employer engaged in objection-
ably disparate treatment of certain of its employees.
An employer has the legal right openly to oppose a
union and he may express himself freely on labor
matters "as long as his statements do not contain
threats of reprisal or force or promise of benefit."9
Here, the Employer's statements contained none of
these elements and the letter was not only unobjec-
tionable of itself but it cannot be used to support a
finding of disparate treatment here.
The last incident the Hearing Officer noted to
support his finding of disparate treatment was also
the basis for his recommended sustaining of Objec-
tion 3. Employee Abbott testified that a week or so
before the election, while she and three other unit
employees were in the credit office with Credit
Manager Roberts (an admitted supervisor), Roberts
asked Abbott and the other three employees to put
on their "Vote No" (against Petitioner) buttons since
the Employer's president was coming into the store.
Employee Abbott was a union adherent while,
according to Abbott's own testimony, the other three
employees were against the Union and had, in fact,
previously worn "Vote No" buttons. Abbott testified
that she wore her own "Yes" (for Petitioner) button
at times during the campaign and she was never told
to remove it.
This incident is the only one of its type alleged. The
unit consists of over 200 employees. In light of these
facts and the fact that Abbott was never asked to
remove her own "Yes" button and the fact that the
other three employees had already exhibited "Vote
No" buttons, we conclude that, even were we to find
this incident evinced disparate treatment, it would
not, standing alone, be sufficient to sustain Objection
2. Since we have found no other evidence supporting
that objection, we shall overrule Objection 2.
9 Indiana Rayon Corp. v. N.LR.B., 355 F.2d 535, 539 (C.A. 7, 1966).
10 O'Brien had asked Smith when she might expect a raise.
Objection 5: The conduct the Hearing Officer
concluded was objectionable here concerns an
incident which occurred about 2 weeks before the
election. At that time, Supervisor Giant approached
employee Mesner and asked her why she was so
strong for the Union. The supervisor said she was
curious because she knew the employee was leaving
her job with the Employer soon and she asked what
good would the Union do Mesner. Mesner, who was
an obvious union adherent and who frequently wore
a "Yes" button, told the supervisor that her support
for the Union was mainly for the other employees
who were not leaving. The Hearing Officer, basing
his conclusion in part on the extent of supervisory
participation which he found objectionable in Objec-
tions 1 and 2, concluded that this interrogation, in
context, was not insubstantial and warranted sustain-
ing the objection. We disagree.
We note initially that we have found in Objections
1 and 2, contrary to the Hearing Officer, that the
supervisory activity that did occur in the election
campaign was not objectionable. Hence, there is no
context of illegal supervisory activity in which we
place this incident.
Further, we find this incident itself to be unobjec-
tionable. Employee Mesner was openly a union
sympathizer and Supervisor Giant merely inquired of
her why she supported the Union since she was
leaving the Company shortly. This is understandable
in the circumstances and we find there was no threat
or coercion in the question. We therefore dismiss this
objection.
Objections 3 and 7: The remaining objections which
the Hearing Officer sustained are Objections 3 and 7.
The incident with Supervisor Roberts and the "Vote
No" buttons constitutes the substance of Objection
3, while Objection 7 concerns Supervisor Smith's
statement in February 1974 to employee O'Brien that
O'Brien would probably receive a 30-cent raise if the
Union did not get in but, if the Union won, O'Brien
would have to go along with what the Union gave
her.10 The Hearing Officer found that this promise of
a raise to O'Brien by Smith if Petitioner lost the
election was sufficient to sustain Objection 7.11
In considering the effect which the conduct
involved in these last two objections realistically had
on the election, we note that these incidents involved
a few employees in a unit of over 200 employees.
These were one-of-a-kind incidents and did not
reflect any pattern of similar conduct on the
Employer's part. In all the circumstances, we find the
conduct specified in these objections to be too
isolated in nature to have realistically affected the
11 O'Brien told one other employee of this promise.
CROWLEY, MILNER AND COMPANY 447
election's results and thus insufficient to warrant
setting it aside.
Since we have overruled all of Petitioner's objec-
tions , we shall certify the results of the rerun election
herein.
CERTIFICATION OF RESULTS OF
RERUN ELECTION
It is hereby certified that a majority of the valid
ballots in the rerun election held herein have not
been cast for Retail Store Employees Union Local
No. 876, Retail Clerks International Association,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees in
the unit herein involved within the meaning of
Section 9(a) of the Act.
ACTING CHARIMAN FANNING dissenting:
Since I think the Hearing Officer's recommenda-
tions that Petitioner's Objections 1, 2, 3, 5, and 7 be
sustained are fully supported by the record, and
should thus be adopted by the Board and a second
rerun election directed, I dissent from the majority's
failure to adopt the recommendations of the Hearing
Officer.
With respect to Objection 1,12 the Hearing Officer
has detailed the extent of the Employer's surveillance
activities which were clearly sufficient to warrant
sustaining this objection. While noting that the
testimony of employees Abbott, Jagusch, and Mes-
ner regarding the Employer's supervisors' activities
was "somewhat subjective" and, therefore, could not
constitute an independent basis for sustaining the
objection, the Hearing Officer properly relied on
other objective evidence which gave credence to the
employees' testimony.
In this regard, I note especially the Hearing
Officer's citation of Supervisor Smelewski's testimo-
ny that, whenever he saw any employees who were
wearing "Yes" buttons and who were out of their
own departments, he was generally inclined to pay
more attention to what they were doing than to the
activities of any other employees. Smelewski also
ventured into the alterations department far more
often than usual during the election period as did
Security Supervisor Russu, who was allegedly work-
ing on a quilt during that period, but who never
finished it subsequent to the election. There was no
explanation given by the Employer either for the
interruption in Russu's work after the election or the
necessity of his having to work on that quilt in the
alterations department during the election campaign.
I note further, regarding this surveillance, Supervisor
O'Donnell's blatant and persistent surveillance of
employee Abbott as detailed by the Hearing Officer.
The majority, in dismissing this incident, fails to note
that Abbott was outside the selling area of the store
when she was so intently watched by O'Donnell and
that the incident was witnessed by a number of other
eligible voters.
The above activities of the Employer's supervisors
become even more objectionable when one consid-
ers, as the majority does not, the testimony of
Security Supervisor Russu to the effect that he just
never noticed that any of the anti-Petitioner employ-
ees were out of their departments during the election
campaign, while he and other supervisors testified at
length about the extent to which pro-Petitioner
employees were out of their departments. In light of
the admitted fact that both pro- and anti-Petitioner
employees spent a great deal of time outside their
own departments in campaign activities, Russu's
testimony is either contrary to the facts or demon-
strates that, regardless of the employee activity on
both sides, it was only the pro-Petitioner employees
who were the subjects of the Employer' s surveillance.
The recitation of the above facts clearly demon-
strates that the Employer engaged in surveillance of
Petitioner's adherents; gives credence to the employ-
ees' impressions of that surveillance; and warrants
affirmance of the Hearing Officer's recommenda-
tions on Objection 1.
Objection 2, in which it was alleged that the
Employer discriminatorily enforced its no-solicita-
tion no-distribution rule by granting rights to
antiunion employees it denied to prounion employ-
ees, should also be sustained. The Hearing Officer
was clearly correct in considering in this objection of
alleged disparate treatment surveillance which he
had found unlawful in Objection 1, including
particularly Russu's comment that he never noticed
anti-Petitioner employees were out of their depart-
ment campaigning against the Union but he did
notice that pro-Petitioner employees were out of their
departments during the campaign when, in fact, both
groups were regularly out of their respective depart-
ments during that time.
Additionally, the Hearing Officer was also correct
in relying on the following further actions of the
Employer's supervisors: (1) the balloon incident,
which was participated in by one of the Employer's
own supervisors, and which the Employer's assistant
store manager not only failed to stop but found
amusing ; and (2) the incident with the "Vote No"
buttons where a supervisor of the Employer urged
employees to wear their "Vote No" buttons in
anticipation of the Employer president's arrival.
12 1 shall consider the objections in the same order as the majority.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considered together, the above incidents make it
clear that, although the Employer did not directly
enforce its no-solicitation no-distribution rules on the
employees, it still applied its ad hoc no-enforcement
policy in an uneven manner. Thus, antiunion
employees were encouraged to take full advantage of
the Employer's lifting of its usual rules by the fact
that the Employer's supervisors condoned and to
some extent participated in their activities, e.g., the
balloon incident, and never noticed antiunion em-
ployees were out of their departments. Conversely,
prounion employees were discouraged from taking
full advantage of the lifting of the rules since their
activities were subject to other interference; e.g.,
surveillance. In such circumstances, the Hearing
Officer properly recommended that Objection 2,
dealing with this disparate treatment, be sustained.
He also properly recommended that Objection 5 be
sustained. This objection involved Supervisor Glant's
asking employee Mesner why she was so strong for
the Union and what good the Union would do
Mesner. The Hearing Officer properly did not
consider this incident in isolation but, noting the
substantial objectionable supervisory conduct in the
election campaign here, correctly concluded that in
such circumstances this interrogation which occurred
in the store during working hours was not insubstan-
tial and thus warranted sustaining this objection.
It appears that the majority does not quarrel with
the conclusion that the remainder of the objections
which the Hearing Officer recommended be sus-
tained, i.e., Objections 3 and 7, do involve objection-
able conduct. I, too, conclude that the incidents
involved in these objections clearly constituted
objectionable conduct, but, unlike the majority, and
for the reasons the Hearing Officer has set out, I
would sustain both Objections 3 and 7.
The Employer's actions which the Hearing Officer
found objectionable included unlawful surveillance;
objectionable disparate treatment of pro-Petitioner
vis-a-vis anti-Petitioner employees; unlawful interro-
gation; supervisory solicitation of eligible voters to
engage in antiunion activity; and the promise of a
wage increase should Petitioner lose the election. The
majority attempts to dismiss as isolated and minimal
those segments of this activity which it cannot
construe as unobjectionable. However, the incidents
found objectionable by the Hearing Officer were, in
total, neither isolated nor insignificant; were engaged
in by a number of the Employer's supervisors; and
were directed at a number of the employees eligible
to vote in the election. In such circumstances, the
Hearing Officer was clearly correct in recommending
that the election be set aside based on such conduct
of the Employer and I therefore dissent from the
majority's failure to adopt these eminently correct
recommendations of the Hearing Officer's Report
attached hereto.
APPENDIX
III. REPORT ON OBJECTIONS IN CASE 7-RC-
11907
Preliminary Matters:
During the Hearing, Counsel for Petitioner request-
ed that Petitioner be permitted to withdraw its
Objection 6. Inasmuch as no other party objected
and due to the lack of evidence in support of said
objection, I recommend that the Petitioner's request
be granted and that Objection 6 be considered
withdrawn.
As with Case 7-RC-11905, I shall not consider the
objections in the order they were originally filed.
Rather, again for reasons which will be obvious, I
shall consider the objections in the following order:
3, 4, 5, 7, 8, 1 and 2.
Objection 3:
The Petitioner alleges that the Employer coercively
demanded that employees engage in antiunion
activities, including requesting that employees wear
"Vote No" buttons.
The prime incident in support of this objection was
described by credit office employee Patricia Abbott.
Within two weeks prior to the rerun election, she and
three other unit employees were in the credit office
along with credit manager Peggy Roberts (the parties
stipulated to Roberts' supervisory status under the
Act). According to Abbott, prior to the rerun
election, some of the other credit office employees
wore buttons bearing the words "Vote No." On this
occasion, those present had not donned their "Vote
No" buttons. Credit Manager Roberts advised
Abbott and the three other employees that Employ-
er's president, R. E. Winkel, was coming to the store.
According to Abbott, Roberts then asked the
employees where their "Vote No" buttons were, and
told them to put them on. Roberts spoke to no one in
particular but generally asked everyone present to
put on their "Vote No" buttons. Credit Manager
Roberts testified that on a morning early in Febru-
ary, having heard that Mr. Winkel was coming to the
store, she requested the credit office employees
present to put on their Employer furnished name
badges , since many of the employees were in the
habit of not wearing them. She denied asking anyone
to wear "Vote No" badges even though she was
aware that some of the employees under her
supervision wore them most of the time. None of the
other three employees involved were called as
witnesses by either party. Roberts further testified
that it was general Employer policy that employees
CROWLEY, MILNER AND COMPANY 449
should wear their name badges at all times while
rendering customer services.
With regard to this incident , I credit employee
Abbott's account . If, as Roberts claims , employees
were in the habit of not wearing their name badges,
then certainly it would not have been an unusual
occurrence for her to have requested them to put
them on. On the other hand , what would have been
more unusual , as obviously occurred, was for
Roberts to tell employees to put on their "Vote No"
badges, which were acknowledged by all parties at
the hearing to denote opposition to the Petitioner.
Moreover , as will be more fully described infra, I
have found Abbott to be a generally reliable and
credible witness . The Board has consistently held
that encouragement by supervisors of employees to
wear "Vote No" or other antiunion buttons or
badges constitutes interference with elections. Spar-
tus Corporation, 195 NLRB 134, 139, 145, enfd.
granted (C.A. 5, 1973) 471 F.2d 299, 82 LRRM 2383;
Kellwood Company, 206 NLRB No. 118, fn. 2; Gary
Aircraft Corporation, 193 NLRB 108, 122 , enforce-
ment granted 468 F.2d 562 (C.A. 5, 1972). I,
therefore , find merit to Objection 3 and recommend
that it be sustained.
Objection 4:
Petitioner asserts that the Employer told employees
who were in sympathy with Petitioner that it was
disappointed in them and also characterized them as
disloyal.
The testimony in support of this objection again
comes from credit department employee Patricia
Abbott. She testified that on February 26, 1974,
when some employees distributed literature opposing
the Petitioner, Store Manager-in -training John Mur-
phy approached her with a copy of the antiunion
literature and allegedly told her that he was disap-
pointed that her name was not on the list and also
allegedly asked why she hadn 't signed. According to
Abbott , her response was that it was unfair for the
antiunion committee to be allowed to circulate the
document throughout the store on company time
and obtain signatures on it, since prounion employ-
ees would not have the same privilege and were likely
to have the document torn before they obtained a
second signature . According to Abbott, Murphy's
response was that everyone has a right to his opinion.
The foregoing testimony was given by Abbott during
her direct testimony . However, Petitioner's counsel
returned to the same topic on redirect, foll owing
Employer counsel 's cross-examination of Abbott.
When asked again whether Murphy had told her he
was disappointed in the fact her name was not on the
list, Abbott testified that he did not make that
statement . Murphy's account of this incident is that
when he came into work that day, someone handed
him a copy of the antiunion literature outside of the
store. He had it in his hand when he entered the
store. Before he had a chance to arrive at his office,
he encountered Abbott who asked him about the
literature. He told her that he felt good about it.
Abbott responded that that made her mad, since the
literature had been passed all over the store, signed
during the working hours and that union people were
not allowed to do that. Murphy claims that he merely
observed that she was obviously in favor of the union
and went to the office. He denies asking Abbott why
her name was not on the document or saying that he
was disappointed in her.
Petitioner asserts that another incident involving
Abbott would also sustain the "disappointment"
aspect of this objection. Abbott testified that on one
occasion, during the thirty-day period prior to the
rerun election, as she was speaking to an employee
about funeral arrangements, store manager Howard
Hourigan approached them, stated he was real
disappointed in her and also said that "this kind of
talk is not supposed to go on during business hours."
At the time Hourigan spoke to her, Abbott had a
"Vote Yes" button pinned on her purse. Abbott and
the other employee were admittedly not discussing
the election or union matters when Hourigan made
his comments . Moreover, during cross-examination,
Abbott acknowledged that in contrast to her prior
good employment record, she had just prior to this
incident, received criticisms from her supervisor
about taking personal telephone calls and frequently
leaving her work area.
With respect to the Abbott/Murphy "disa-
ppointment" incident, I find that the evidence will
not sustain the objection. Abbott's contradictory
testimony, suggesting perhaps confusion with the
Hourigan incident, has led me to conclude that
Murphy's account of this incident is the true one.
With regard to the Abbott/Hourigan "disa-
ppointment" incident, in view of the fact that Abbott
admittedly was not discussing union matters, or the
election , it is the Hearing Officer's conclusion that it
would be overreaching to assume that Hourigan
further assumed that Abbott and the other employee
were discussing the union or the election. The
presence of the "Yes" button on Abbott's purse does
not change my conclusion. The record herein is
replete with description of the number of employees
wearing "Yes" buttons prior to the rerun election.
Thus there was nothing unusual in the presence of
such a button on Abbott' s purse during this
encounter . In spite of the remarks of Hourigan that
he didn't want "this kind of talk" going on during
business hours, I view his remarks to be too
equivocal to constitute objectionable conduct. Ac-
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, I recommend that the "disappointment"
aspect of Objection 4 be overruled.
The evidence in support of the "disloyalty" aspect
of Objection 4 is contained in an Employer campaign
letter dated February 26, 1974, from Employer
President R. E. Winkel, addressed to "Westborn
Associates." The issuance of this letter, Petitioner's
Exhibit 8, coincided with the distribution of the
antiunion literature described above, a copy of which
has been described as being in Manager-in-Training
Murphy's possession. The first paragraph of exhibit 8
states, "Today a group of your fellow associates
known as the Crowley's Anti-Union Organizing
Committee distributed a letter at Westborn, express-
ing their support for Crowley's. I was personally
gratified by this open expression of loyalty. I know
their effort takes courage especially when you
consider the pressure often exerted by the other
side." The letter then continues to clarify certain
claims made in the committee literature to the effect
that the changes in wages and benefits made in
Employer stores not involved in the instant repre-
sentation proceedings were neither the fault of the
Employer nor the Petitioner. The tone of the letter is
explanatory and noncoercive . Petitioner asserts that
by deeming the Anti-Union Committee and its
efforts "loyal," by revetse logic, all Petitioner
supporters were deemed disloyal. No interference is
present in Winkel's remarks contained in his Febru-
ary 26, 1974, letter. His remarks were specifically
directed to the Anti-Union Committee's literature
and not generally to their efforts or their attitude. To
infer from this Employer letter that it was a blanket
condemnation of all employees who sympathized
with, or supported the Petitioner, is to read into the
Employer's literature more than is present.
Accordingly, based on the foregoing, I find -no
merit in Objection 4 and recommend that it be
overruled.
Objection 5:
Alleged coercive interrogation is the subject matter
of this objection. For the reasons discussed above
under Objection 4, I find no improper coercive
interrogation with respect to the Abbott/Murphy
conversation of February 26, 1974.
Petitioner witness Mary Mesner described an
incident of interrogation occurring approximately 2
weeks prior to the election . Mesner works in the
womens' accessory department. On the evening in
question , between 7 : 00 and 7 : 30 p.m ., her supervisor,
Winnie Giant, approached her. According to Mes-
ner, Giant asked her why she was so strong for the
Union. Giant further said she was curious because
she knew Mesner was leaving her employment with
the Employer soon and asked what good would the
union do Mesner . Mesner told her it was mainly for
the other employees who were not leaving . Mesner
was an obvious union adherent , frequently wearing a
"Yes" button on her clothing . Giant did not testify.
The Employer asserts that , granting the truth of
Mesner's testimony , the single , nonthreatening,
incident was so isolated so as not to affect the
election in any manner . Were this the only incident
occurring in this unit of in excess of 200 employees,
the Hearing Officer might tend to agree with the
Employer's contention of isolation . However , in view
of the substantial supervisory participation in the
election campaign in this matter , I cannot agree that
this incident of interrogation occurring in the store
during working hours is insubstantial . Cf. Helfrich
Vending, Inc., 209 NLRB 596, and cases cited
therein . The extent of supervisory participation in the
campaign is to be discussed further infra, under the
discussion of Objections 1 and 2 . In the case of the
Glant/Mesner conversation , its pleasant and non-
threatening nature does not remove the coercion
inherent in such interrogation. Monroe Manufactur-
ing Company, Inc., 200 NLRB 62. Nor is it a defense
for the Employer that Glant obviously knew prior to
the questioning that Mesner was a Petitioner adher-
ent. Globe- Union, Inc., 194 NLRB 1076, 1078.
Accordingly, based on the foregoing, I find
Objection 5 to be meritorious and shall recommend
that it be sustained.
Objection 7:
The Petitioner alleges that the Employer promised
its employees changes and improvements in their
wages, hours, and other conditions of employment in
the event the Petitioner was unsuccessful in the
election.
The Petitioner presented several witnesses who
testified, generally, that at various times , supervisors
discussed certain "changes" with them . Among these
employees are Patricia Abbott and Melena Jagusch.
However , their discussions with supervisors clearly
concerned remodeling changes being made in the
store and had no relation to changes in wages , hours,
benefits or other conditions of employment. In
addition thereto, several witnesses testified that at
speeches made at meetings sometime priot to the
election but outside the 24-hour period, departing
Store Manager Howard Hourigan and incoming
Manager John Murphy made promises of "changes"
if they were given a chance. The testimony concern-
ing these meetings devolved into a common factor,
that being that both Hourigan and Murphy read
their speeches from prepared documents and did not
depart from the texts thereof. The texts of the
speeches being referred to were submitted into
evidence. Based upon an evaluation of said speeches,
I find no improper promise of benefits . Hourigan
merely recounted his past experience with the store,
CROWLEY, MILNER AND COMPANY 451
noted the bitterness this "union business had caused"
and asked the employees to give the store and his
successor a chance. Upon being introduced as new
manager, Murphy generally replied to the Petition-
er's theme of "Nothing's Changed" (see discussion of
Objection 4 above, under Case 7-RC-11905). Mur-
phy also distinguished between the Petitioner's
ability to make promises and Employer promises, by
noting that the latter could not do so because it had
the power to implement promises. However, the
speech contains no explicit or implicit promise of
changes in wages, hours, benefits or other conditions
of employment. Thus, there is no evidence to support
the "changes" aspect of Objection 7.
The remaining evidence in support of Objection 7
comes from bath department accessories employee
Rachel O'Brien and her accounts of conversations
with Personnel Manager Betty Smith. The essential
aspects of O'Brien's testimony are as follows: In
October 1973, after returning from a leave of absence
for surgery, O'Brien discussed a wage increase with
Personnel Manager Smith. O'Brien told Smith at that
time that she thought she deserved a raise. Smith
replied that O'Brien last had a raise in April 1973,
raising her wages to $2 an hour. At this time, Smith
told O'Brien that she could not do anything for her
because Smith 's hands were tied . In February 1974,
having heard that other employees received raises on
their anniversary dates, O'Brien again spoke to Smith
concerning when she might receive her raise and to
clarify in her mind what her anniversary date was. At
the time she did so, O'Brien told her supervisor,
Helen Rappy, of her intention to speak to Smith. In
Smith's office, where the two women were alone,
O'Brien was told by Smith that for purposes of
granting raises, the term anniversary date meant the
date of the last raise, which was April 1973. Smith
then told O'Brien that she could not give a raise
earlier because of the union. O'Brien then asked
whether she didn't deserve a raise . Smith agreed that
she did, that she was a hard worker and was on top
of her list. -According to O'Brien, Smith then told her
that if the Union did not get in, she would probably
receive a 30-cent raise. However, if the union did get
in, she would have to go along with what the union
gave her. When she returned to her department,
O'Brien told her supervisor, Helen Rappy, about the
30-cent raise she had been promised. She recalls
Rappy telling her that if Smith had promised her a
raise , she would get it. Soon after this conversation,
O'Brien told fellow employee Arlene Height about
the raise she had been promised and the circum-
stances under which she had been promised it.
Height so testified. After the election, on Tuesday,
April 9, 1974, O'Brien, was called into Smith's office.
There she was told it was reviewing time and that she
was receiving a 10-cent raise. O'Brien immediately
protested because she was not receiving the 30-cent
raise she had been promised. According to O'Brien,
Smith now denied ever quoting her a 30 cent figure.
Smith then read aloud something about the National
Labor Relations Board and told O'Brien that it
would be her word against hers, Smiths', because
they were going to court the following Monday.
O'Brien then asked about another raise and Smith
told her she didn't know while this union thing was
still going on. When she returned to her department,
O'Brien told Rappy about getting a 10-cent raise and
not 30 cents. Rappy replied that she thought O'Brien
had earlier told her a 25-cent raise had been
promised by Smith and not 30 cents. O'Brien did not
significantly vary her testimony on cross-examina-
tion.
On direct examination, Personnel Manager Betty
Smith recalled that her first meeting with O'Brien on
the subject was, as O'Brien testified, in October 1973
when O'Brien returned from surgery. Smith said that
it was at that time that O'Brien asked for a raise and
Smith. responded that her hands were tied, that
O'Brien would have to wait for her anniversary date.
She told O'Brien that this was policy. She said that it
was at that time that she agreed that O'Brien was a
hard worker and that they discussed the amount of
the raise. Smith recalled that it was during the
October meeting that she said she thought O'Brien
deserved a 25- or 30-cent raise and that she would be
happy to give her that amount but at the time she
could do nothing for her. In her direct examination,
Smith recalled that O'Brien came in again in
February 1974 and asked about a raise and when her
anniversary date occurred. At that time, Smith's
secretary obtained O'Brien's personnel record and
Smith showed O'Brien that her anniversary date was
in April. Smith stated that nothing else occurred.
Smith agreed that O'Brien came in on April 9, 1974,
after Smith had implemented a 10-cent-per-hour
increase for her. Smith so informed O'Brien, who
became upset, saying she thought she would be
getting a 25 to 30 cent increase. Smith testified that
she showed O'Brien the notice of election, the rules
stated thereon and stated that there was nothing she
could do. She denied any reference to the Petitioner
at this or prior meetings and stated that the raises
were not tied to the outcome of the election. Smith's
testimony then varied substantially on cross-exami-
nation. Thus, she later admitted that she and O'Brien
discussed O'Brien's receiving a 25- or 30-cent raise
again in February when O'Brien came in to see her.
Also, during cross-examination, she admitted telling
O'Brien that it was due to the Petitioner that her
hands were tied, admitting that the Petitioner was
mentioned . Finally, she also admitted telling
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Brien, on April 9, 1974, that it would have been
O'Brien's word against hers in regard to whether
O'Brien had been promised a 25- or 30-cent raise.
In view of the inconsistent and shifting nature of
Betty Smith's testimony, I credit O'Brien's account of
the February and April conversations . Thus, even
relying on external factors, O'Brien's story is more
consistent . Smith admitted on cross-examination that
anything more than a 10 cent raise was unusual. This
gives credence to Petitioner counsel's argument that
had it been only an ordinary raise that O'Brien had
been promised, she would have raised no furor.
Moreover, Employer's counsel conceded that if
Supervisor Helen Rappy had been called as a
witness, which she was not, she would have corrobo-
rated O'Brien's repetitions to her of the promises by
Smith of the 25 or 30 cent raises. The slight
discrepancy in O'Brien's testimony as to whether she
had been promised a 25 or 30 raise, in my view, is
inconsequential and does not affect her credibility.
What is clear is that she was promised a 25 or 30 cent
raise by Smith in the event the Petitioner lost the
election . I credit O'Brien's testimony that such a
promise was made by Smith. As Petitioner has
established, the promise to O'Brien was made known
by O'Brien to another employee, I, therefore, find
merit to Objection 7 and recommend that it be
sustained.
Objection 8:
This objection has three aspects. The first alleges
that the Employer embarrassed and humiliated
union sympathizers in front of other employees by
calling such employees dumb, stupid liars. The
second alleges that Employer agents told other
employees not to talk with or socialize with union
sympathizers and finally, that the Employer engaged
in surveillance of the Petitioner adherents. With
respect to the surveillance allegation , this is covered
by Objection 1 and will be fully considered there.
Patricia Abbott and men's clothing department
supervisor Patricia O'Malley, prior to the advent of
the Petitioner 's organizing efforts, had been close
personal friends. Abbott, the younger of the two,
sought , and was given , advice and counsel by
O'Malley with regard to both employment and
personal affairs . O'Malley testified that earlier in the
day of the incident which gave rise to the objection,
she learned that Abbott had been "dating" one of the
Petitioner's business agents who was involved in
organizing activities at the store . Abbott had men-
tioned, in front of O'Malley, other supervisors and
employees , that she was going on a "date" with the
particular organizer involved. O'Malley stated, and
was not contradicted by Abbott, that she told Abbott
that afternoon that she was being made a fool of,
regardless of whether the union got in or not, she
would never see the particular business agent again.
O'Malley, who I found to be a highly credible
witness, readily admitted to her dislike of many of
the Petitioner business agents assigned to the
Westborn store. In fact, she concocted what are
apparently derogatory nicknames for them which she
was not permitted, by counsel, to describe. Both
O'Malley and Abbott bowl in an Employer-spon-
sored mixed bowling league on Wednesday evenings
during the bowling season. That same evening, as
Abbott arrived at the bowling alley and went into the
women's locker room, she encountered O'Malley and
fellow employee Doris Wilk. As Abbott entered the
locker room, O'Malley was highly upset, and told
Abbott that she would like to kick her in the ass.
Both Abbott and O'Malley agree that at this point
Wilk left the locker room. O'Malley then said to
Abbott that she was sick and tired of the union and
the things that were going on and that she would like
to show Abbott and the other employees what the
union was trying to do to them, trying to use them.
She told Abbott she felt like asking to be relieved of
her duties as a supervisor just to show the employees
what the business agents were trying to do to the
staff, that the employees were all "dummies and
stupid" because they couldn't see what the business
agents were doing to them . In her anger, O'Malley
threw two bowling balls to the floor as she spoke, and
left the locker room. Later that same evening during
bowling activities, Abbott sought to make amends,
attempting to put her arm around O'Malley's
shoulders. O'Malley, in front of other employees,
shrugged Abbott's arm off. Neither woman said
anything having to do with the prior conversation.
Four or five days later, and prior to the election,
O'Malley approached Abbott and apologized to her,
telling Abbott it was none of O'Malley's business
what Abbott did with her life. The day after the
bowling alley incident, Abbott described the incident
to her supervisor, Peggy Roberts, who merely told
her that she received what she deserved.
O'Malley's remarks to Abbott in the bowling alley
locker room can be said to be involved with Abbott's
activities on behalf of the Petitioner . However, the
remarks were prompted not by said activities but by
O'Malley's obvious and sincere concern that Abbott
was being taken advantage of by the particular union
business agent she had been seeing. The undersigned
believes that this conclusion is more than substantiat-
ed by the foregoing account of the incident. I would,
therefore, conclude that the remarks, which were
only heard by Abbott , since Doris Wilk had left
before O'Malley angrily explained why she wanted to
kick Abbott's posterior, did not interfere with the
election in this matter . The remarks were prompted
by O'Malley's personal concern for Abbott and I
CROWLEY, MILNER AND COMPANY 453
believe it is more than reasonable to assume that
Abbott would have understood them to have been so
motivated. In any event, any possible coercive effect
was negated by O'Malley's apology a few days later.
Supervisor Roberts' apparent adoption of O'Malley's
comments on the day following the bowling alley
incident lends no merit to the objection for substan-
tially the reasons outlined hereinabove. Accordingly,
finding no merit to Objection 8, the undersigned
herewith recommends that it be overruled.
Objection 1:
In this objection, which is closely intertwined with
the allegation of Objection 2, infra, the Petitioner
alleges that the Employer, through its supervisors,
security personnel and other agents, engaged in
unlawful surveillance of employees in sympathy with
the Petitioner.
Much of the evidence in support of this objection
appears to be subjective on the part of several
Petitioner witnesses. Thus, Patricia Abbott, Melena
Jagusch, and Mary Mesner testified that a significant
change occurred during the 30 day period prior to
the rerun election in the activities of supervisors.
Thus, each of the three individuals mentioned, prior
to the election, was wearing a "Vote Yes" button on
a regular basis . All three testified that with the
advent of the wearing of these prounion buttons, as
well as by other employees , various supervisors
would, when the employees moved from their own
departments to other store areas , follow them.
Abbott testified that on one occasion, while she was
talking to an employee in another department, about
purely business reasons , Manager-in-training Mur-
phy passed by the two employees three times within a
5-minute period, with an obvious intent to hear what
the two employees were discussing. Murphy denied
this incident. Jagusch claims that Security Supervisor
Nicholas Russu followed her frequently during the
30-day period prior to the election. If he was not
doing the following, then female security employees
under his supervision generally arrived at where
Jagusch was going when she left her own depart-
ment . Jagusch also testified that she saw employee
Mildred Holmes, who also frequently wore a "Yes"
button, being followed by security employees.
The foregoing general "following" allegations have
been denied by the Employer 's supervisory witnesses.
As originally noted in the discussion of this objec-
tion , the foregoing evidence is also somewhat
subjective . However , certain other evidence lends
substantial credence to the testimony regarding
alleged surveillance. Thus, the Employer and Peti-
tioner stipulated, at the hearing , that in the 2 week
period prior to the election, the Employer's supervi-
sors were generally at the store more often and for
longer hours . Patricia O'Malley was requested to
come in the store for a short time on her days off
immediately prior to the election. She was to keep
watch over certain departments when other supervi-
sors could not be present. In addition, children's shoe
department Supervisor Kenneth Smelewski tacitly
admitted that whenever he saw any employees
wearing "Yes" buttons out of their own departments,
he was generally inclined to pay more attention to
what they were doing than to the activities of any
other employees. In this regard, alterations depart-
ment employee Lillian Roberts testified that during
the period immediately prior to the election, Supervi-
sor Smelewski came into the alterations department
far more often than was usual . Smelewski would
enter the alterations department, look to see what the
employees were doing, and leave. According to
Roberts, this had not been Smelewski's practice prior
to the period preceding the rerun election. Smelewski
did not deny his activities in this regard. In addition,
Security Supervisor Nicholas Russu was present in
the alterations department during the period prior to
the election sewing a quilt. Apparently, Russu had
begun work on this quilt prior to February 5, 1974,
the date of the Board's Order directing a rerun
election. He has never completed it, subsequent to
the election. The Employer offered no further
explanation for this interruption in Russu's work on
his quilt, or for the necessity for his being in the
alterations department during the period preceding
the election. Lillian Roberts was the Petitioner's
observer for one of the voting sessions at the rerun
election.
There is an additional incident which perhaps more
clearly illustrates the Employer's actions with regard
to surveillance than any other occurrences. Patricia
Abbott is again a prime participant. Also involved in
this incident is the Employer's admitted practice of
assigning various supervisors to follow Petitioner
agents whenever any of the latter came into the store.
This was described more fully above in the discus-
sion of Objection 6(a) in Case 7-RC-11905. The
various accounts of this incident, while not complete-
ly in accord, are generally not in conflict with each
other. Although Abbott places the incident as
occurring 2 days prior to the election, it appears,
from other evidence, that it took place on some date
within the last 2 weeks preceding the rerun election
of March 7, 1974. On the day in question, Abbott
was scheduled to work during the afternoon and
evening. She arrived several minutes before her
scheduled starting time of 1:00 p.m. and proceeded
up a store escalator, intending to go to the cafeteria
on the second level. On the escalator, she saw two
Petitioner business agents coming down the down
side. She indicated to them that she wished to speak
to them and asked them to wait for her on the lower
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
level. Abbott went up, came down the escalator and
met the business agents on the first or main level. She
proceeded with them to leave the store premises
proper through what is known as the "strip doors."
These are a series of glass doors leading out to the
covered mall area of the Westborn shopping center.
As they were leaving the store, they encountered a
third business agent who did not accompany Abbott
and the two business agents outside of the strip
doors. The third business agent remained seated on
some chairs which are near the door and close to one
of the sales departments. As was the Employer's
practice, the three business agents involved, from the
time they entered the store, had been followed by
supervisors. Sales area Supervisors John O'Donnell
and Kenneth Smelewski were following two of the
business agents, while Security Supervisor Nicholas
Russu was following the third. O'Donnell apparently
had been following the third business agent who
remained seated on the chairs inside the store.
Smelewski and Russu stopped within 30 to 50 feet of
the doors when the two business agents they had
been following stepped outside with Abbott. Howev-
er, O'Donnell went to the glass doors with the third
business agent and remained there. There was
unrebutted testimony that this third business agent
left the chairs for a time and returned but that
O'Donnell nevertheless remained at the glass doors,
during the agent's absence. There was also testimony
that supervisors Winnie Giant and Patricia O'Malley
were nearby. Giant's area of supervision is immedi-
ately adjacent to the strip doors where the incident
was occurring. O'Malley's is further to the rear of the
store. The conflict of testimony herein was over
whether O'Donnell or the other supervisors who were
present watched Abbott speak to the two business
agents outside of the store doors or merely stayed
with the agent who remained on the chairs in the
store. In this regard, I have credited Abbott and
other Petitioner witnesses. Their testimony was clear
that O'Donnell, from time to time intently watched
Abbott converse with the two business agents outside
of the doors. While Abbott and the two business
agents were technically on Employer property or
space, they were nevertheless outside of the sales area
of the store. O'Donnell's persistence in remaining by
the doors while Abbott conversed with the two
business agents, even when the third business agent
to whom he was ostensibly assigned left for a time,
was unexplained. I can only interpret this persistence
as evidence of surveillance of Abbott's activities with
the first two business agents. Two employees, Mary
Mesner and Melena Jagusch, witnessed this incident.
There was Employer testimony that Mesner and
Jagusch found it highly amusing. However, I
discount suggestive reaction to what might constitute
coercive conduct. The evidence also indicated that
Smelewski and Russu left within a few minutes after
they arrived near the strip doors area. O'Donnell,
however, remained the entire time that Abbott was
conversing with the business agents outside the strip
doors, watching them. O'Donnell did not testify,
being unavailable. While the parties jointly requested
that I draw no adverse inference from his failure to
testify, I nevertheless must credit Abbott's clear and
corroborated account of this incident.
Under the discussion of Objection 2, below, I shall
further discuss an Employer concession in evidence
that both antiunion and prounion employees spent a
great deal of time out of their own departments
during the preelection period, soliciting other em-
ployees to vote against or for the Petitioner, as their
interests indicated. What is perfectly clear to the
undersigned Hearing Officer upon consideration of
all the evidence in support of both Objections 1 and 2
is that the Employer evinced a far greater interest in
the activities of the Petitioner adherents than those of
the antiunion employees . Based on the foregoing
evidence in support of Objection 1, I can only
conclude that the Employer engaged in regular
surveillance of several Petitioner adherents. With the
strip door incident, it also engaged in very obvious
surveillance of one outspoken Petitioner adherent. I
find the foregoing surveillance to be unjustified and
coercive in the circumstances of this case. National
Tape Corporation, 187 NLRB 321; compare, Sarkes
Tarzian, Inc., 169 NLRB 587; Ver-Penn, Inc., d/b/a
Indianapolis Downtowner, 205 NLRB 437. As I have
found merit to Objection 1, I also find that the
foregoing surveillance interfered with the election
and shall recommend that Objection 1 be sustained.
Objection 2:
In this last objection to be considered, the
Petitioner alleges that the Employer discriminatorily
enforced an otherwise valid no-solicitation, no-distri-
bution rule by granting antiunion employees certain
privileges and condoning their activities, while
denying said privileges to Petitioner adherents.
By February 23, 1974, and certainly by February
26, 1974, a number of unit employees at the
Employer's Westborn store, who were opposed to the
Petitioner's organizing efforts, organized themselves
into the "Anti-Union Organizing Committee"
(herein referred to as AUOC). The functions of the
AUOC appeared to consist solely of publishing two
items of literature urging employees to vote against
the Petitioner and to support the Employer. As
indicated above under Objection 1, AUOC members
and adherents as well as Petitioner adherents spent a
great deal of time out of their own working
departments during working time soliciting other
employees either against or in favor of the Petitioner.
CROWLEY, MILNER AND COMPANY
The Employer conceded that AUOC members and
adherents did spend a great deal of time outside their
own departments , were observed doing so and that
nothing was done about said activity . However, the
Employer asserts that neither did it do anything to
prevent the Petitioner adherents from leaving their
own departments and speaking to other employees
during working time . The question underlying this
objection is whether the last cited Employer assertion
is true.
The Employer does maintain a no-solicitation/no-
distribution rule at its Westborn store. No one
asserted that this rule was invalid in any regard.
Rather , Petitioner asserts that it was discriminatorily
applied.
The earliest evidence of such alleged discriminato-
ry enforcement comes from millinery saleslady Irene
Fradette. She testified that on or about January 20,
1974, she sold some jewelry in the adjoining jewelry
department . She states she was in the jewelry
department and out of her own at the request of one
of the jewelry salesladies , who was at that time
performing some inventory work. After she had
completed the sale, she was approached by Store
Manager Hourigan who asked her why she was in
the jewelry department. When she told him she had
been asked to assist, Hourigan told her that she
disturbed them and told her to stay in her own
department. Hourigan does not deny the incident,
but adds that there were two employees in the
jewelry department and there was no need for
Fradette to be out of her own. He did not testify
whether he conducted any investigation into Fra-
dette's claim that she had been requested to assist by
one of the jewelry salesladies. It is noted that
Fradette was an acknowledged Petitioner adherent.
However , this incident , standing alone, prior to the
Board's February 5, 1974, direction of a rerun
election does not fit in with the other evidence
substantiating the allegations of Objection 2. Fra-
dette admittedly was not engaged in union solicita-
tion activities at the time she was in the jewelry
department. Her own claim that it was customary
practice for her and other employees to assist
employees of other departments when requested was
counterbalanced, in my view, by Hourigan's equally
valid claim that by going to the jewelry department,
Fradette had left her own department completely
unattended. In any event, I conclude that this
incident of January 20, 1974, did not constitute
discriminatory enforcement of a no-solicitation rule.
Next to be considered is what was termed the
"balloon" incident. Immediately prior to February
15 or 16, 1974, a Dearborn, Michigan, civic group,
with the apparent consent of the Employer, had been
presenting a safety program in a meeting room on
455
the second level of the Employer's Westborn store.
As part of the safety program, the civic group
representatives had been giving helium-filled colorful
balloons bearing safety slogans to customer children
who attended the safety programs. On the evening of
February 15 or 16, 1974, after the civic group
representatives left, a number of mens' clothing
department employees from the first floor went to
the meeting room where the safety program meetings
had been held. There they obtained some of the
aforedescribed balloons and brought them down to
their own department. On these balloons they either
taped signs stating "Vote No" or wrote those words
on the balloons with felt pens so that the words were
easily readable from some distance. The balloons, by
their strings, were then tied to cash registers or
clothing racks and were visible from several depart-
ments on the main level of the store. Employees
participating in this activity were Rick Barkoff, Mary
Leventis, Pat Herrick, and Martha Obersteiner. This
activity began approximately 6:30 p.m. While the
foregoing activities were occurring, Irene Fradette
testified that she saw second level Supervisor
Kenneth Smelewski bring down several balloons
himself, with the "Vote No" slogans on them and
also tie them to the registers or racks. Smelewski
himself admits bringing down one balloon and
putting the slogan on it and suspending it from a
rack or register. He is corroborated in this regard by
clothing department employee Rick Barkoff, who
participated in the balloon incident. I credit Smelew-
ski in this regard, mainly based on his prior candor,
described above in Objection 1, with respect to the
surveillance allegation . Smelewski also testified that
he told clothing employee Pat Herrick, another
participant, that as a result of the presence of the
balloons, her department was more colorful. Fradette
also noticed Assistant Store Manager Gordon Dostie
come up the escalator from the lower level, see the
balloons, smile , and return to the lower level. Dostie,
during cross-examination, reluctantly admitted that
he had in fact noticed the balloons, the "Vote No"
slogans on them, had laughed and had returned to
the lower level to his office as a result of being paged
over the public address system. He did not claim that
he made any effort to have the balloons and their
slogans removed that evening. There is some dispute
as to the number of the balloons which were
suspended. Upon consideration of all accounts of
this incident, it is apparent that there were at least
half-a-dozen balloons in the mens' clothing depart-
ment and perhaps one or two, included in that figure,
in the adjacent womens' sportswear department. The
balloons remained suspended for the duration of that
evening until store closing hours at 9:00 p.m. The
following morning, when employees first arrived,
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perhaps one or two still remained suspended. In any
event , that morning, when mens' department Super-
visor Patricia O'Malley arrived, she admonished the
employees under her supervision for having suspend-
ed the balloons during the previous evening. She told
them that she had been summoned by management
and because she had been "chewed out," they were
being "chewed out." She also told them not to let
such an incident occur again.
If this objection was based solely upon the balloon
incident and the other testimony summarized above,
I would conclude that it had no merit. However,
various other objections have come into play in
Objection 2. Thus, while both prounion and anti-
union employees seemed to have what might be
termed "free run" of the store during the 30 days
prior to the election , the activities of the antiunion
employees were regarded in one way by the Employ-
er and its supervisors while the activities of the
Petitioner adherents were regarded in another. Thus,
from Objection 3, credit department Supervisor
Peggy Roberts urged employees to wear their "Vote
No" buttons in anticipation of the arrival of the
Employer's president. From Objection 4, although
the comment was not deemed to constitute interfer-
ence of the election in and of itself, the Employer's
president termed the AUOC literature as evidencing
loyalty to the Employer. Most significantly, from
Objection 1, and as conclusive evidence in the
undersigned's view of the disparate enforcement or
lack of enforcement of the Employer's no-solicita-
tion/no-distribution rules, the pro-Petitioner employ-
ees were subject to surveillance by supervisors when
they engaged in their activities or even when they left
their departments. I find significant the testimony of
Security Supervisor Nicholas Russu who stated that
he just never noticed that any of the employees who
were opposing the Petitioner were out of their
departments. However, he and other supervisors
testified at length the extent to which the pro-
Petitioner employees were out of their departments.
In this regard, it should also be recalled that
Supervisor Smelewski admitted that he found the
activities of the employees who wore "Vote Yes"
buttons interesting enough to observe for substantial
period of time. The balloon incident is a highlight to
this conclusion. Smelewski participated only to a
small extent . Assistant Store Manager Dostie found
the incident amusing . Yet, despite the fact that the
Employer's second level of management was aware
of what was occurring, it was not until the following
morning that the employees who had engaged in
such an open display of campaigning were admon-
ished by the Employer.
The Board has found that supervisory assistance in,
and condonation of, antiunion or "Vote No"
activities constitute a violation of Section 8(a)(1) and
hence; interference with an election. Murray Ohio
Manufacturing Company, 156 NLRB 840, 851-852;
The Conolon Corporation 175 NLRB 27, 28, enforce-
ment denied on other grounds 431 F.2d 324 (C.A. 9;
1970). I find that in regard to Objection 2, the
allegations have been sustained by the evidence. The
Employer and the supervisors condoned and, to
some small extent , participated in the activities of the
employees opposing the Petitioner. Moreover, the
activities of those employees were complimented,
while the employees assisting and favoring the
Petitioner were subject to surveillance and other
interference. Accordingly, I find merit to Objection
2.