CVN Companies

National Labor Relations Board - Board Decisions

Feb 19, 1991

301 N.L.R.B. 789 (N.L.R.B. 1991)

789
301 NLRB No. 116
CVN COMPANIES
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 In early January, employee Mavis Dorff was seated at a lunchroom table
discussing the Union with six other employees. Telemarketing Manager James
Gaboury sat down next to her and stated, ‘‘This ought to be interesting be-
cause the Union lady is going to talk.’’ The judge found that by this conduct
the Respondent created the impression of monitoring or surveillance in viola-
tion of Sec. 8(a)(1). We agree that the conduct violated Sec. 8(a)(1) but find
it was actual monitoring or, as alleged in the complaint, surveillance of union
activity. Thus, Gaboury, by his actions and words, indicated his intention to
observe at close range Dorff’s union activity, i.e., to actually monitor her
union activity. See, e.g., Hawthorn Co., 166 NLRB 251 (1967), enfd. in perti-
nent part 404 F.2d 1205 (8th Cir. 1969) (foreman who joined employees at
cafeteria tables, where this was not prior practice, inhibited the use of breaks
for Sec. 7 activity, and thereby engaged in unlawful surveillance); and Whiting
Corp., 188 NLRB 500, 505 (1971) (unlawful surveillance for supervisor to ap-
proach prounion employee to discuss union in full view of other employees).
3 The Respondent urges that there is no evidence in the record to support
the judge’s finding that leadman Quentin Kelly is an admitted supervisor.
However, in its answer to the complaint, the Respondent admitted that Kelly
is a statutory supervisor.
4 We correct the judge’s inadvertent omission in his recommended Order
and notice that the Respondent cease and desist from threatening its employees
with discharge because of their union activities.
The Respondent has filed a motion to reopen the record, claiming that on
October 13, 1989, QVC Network, Inc. purchased all its stock, and because of
this and other operational changes a new entity has been created. The Re-
spondent argues that this new entity is not a successor. Further, the Respond-
ent argues that even if the new entity is a successor it should not be subject
to a cease-and-desist order, nor should it be required to post a cease-and-desist
notice for unfair labor practices it did not commit. Because these contentions
raise compliance issues, we deny the Respondent’s motion and leave this mat-
ter to that stage of the proceeding.
CVN Companies, Inc. and Mavis L. Dorff. Case 18–
CA–10895–2
February 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On October 23, 1990, Administrative Law Judge
Robert T. Wallace issuedthe attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions3 and to adopt the judge’s recommended
Order, as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, CVN
Companies, Inc., Minneapolis, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following as paragraph 1(d).
‘‘(d) Monitoring or engaging in surveillance of
union activities of employees.’’
2. Insert the following as paragraph 1(f) and reletter
the subsequent paragraphs accordingly.
‘‘(f) Threatening employees with discharge because
of their union activity.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate you concerning
your or other employees’ union activities or sym-
pathies.
WE WILL NOT prohibit you from discussing union-
ization during nonwork times.
WE WILL NOT interfere with employee distribution
of union literature in nonwork areas.
WE WILL NOT monitor or engage in surveillance of
your union activities.
WE WILL NOT promise or offer benefits in return for
your ceasing to voice support for unionization.
WE WILL NOT impose discriminatory sign-out re-
quirements for the purpose of preventing you from en-
gaging in union or other protected activities.
WE WILL NOT threaten you with discharge because
of your union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
CVN COMPANIES, INC.
A. Marie Simpson, Esq., for the General Counsel.
Douglas R. Sullenberger and Joseph W. Bryan, Esqs. (Fisher
& Phillips), of Atlanta, Georgia, for the Respondent.
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 A letter notifying CVN of the Union’s intent to organize the Company was
sent on December 19.
2 Although Gaboury denies ever questioning any employee about the Union
or ever telling Dorff or any other employee not to talk about the Union, I find
candid and credit Dorff’s account. I note that Gaboury did not deny initiating
and participating in the one-on-one meeting with Dorff. And my impression
of his overall credibility was not enhanced when in answer to the question
whether he ever saw Dorff wearing a number of union buttons he replied: ‘‘I
recall vaguely her wearing one button . . . but it wasn’t—it was probably the
size of a quarter.’’ Another manager (Shirley Theide), who, unlike Gaboury,
had no supervisory responsibility over Dorff, had no difficulty in stating that
she had seen her wearing a number of union buttons.
3 Gaboury and Johnson both claim that they went over to the table at the
invitation of Soncrant and they deny that Gaboury made the opening remark
attributed to him by Dorff. In denying that anyone asked them to come over
to the table, Dorff remained firm when asked whether testimony to that effect
by an employee witness would be incorrect; and I have credited her account.
In that regard, I note that neither Soncrant nor any other employee at the table
was called as a witness to corroborate the claimed invitation. Also I note that
Gaboury and Johnson did not deny positioning themselves next to known
union advocate Dorff; and I find it hard to believe Johnson’s testimony that
he could not recall what was said at the table and that he was not sure that
Dorff was there.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Minneapolis, Minnesota, on August 17 and
18, 1989. The charge was filed May 19, 1989, and the com-
plaint issued on June 30. At issue is whether Respondent
CVN through threats, interrogations, and discrimination vio-
lated rights guaranteed an employee (Dorff) under Section 7
of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT AND ANALYSIS
I. VIOLATIONS OF SECTION 8(A)(1)
CVN, a corporation, sells merchandise via mail order and
cable television at its facility in Minneapolis, Minnesota,
where it annually ships to points outside the State of Min-
nesota goods valued in excess of $50,000. It admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that the
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
In early December 1988, Dorff attended two meetings con-
ducted by a representative of the Teamsters Union; and dur-
ing the course of those meetings she agreed to help organize
employees of CVN. However, she refrained from doing so
overtly until on or about January 31 when she appeared at
work wearing several union buttons on each side of her la-
pels and began to distribute union literature during
workbreaks in the company cafeteria; and she continued to
wear the buttons and to engage in organizational activities
daily until she went on extended medical leave on February
10.
A short time after January 3 a supervisor (Telemarketing
Manager James Gaboury) approached Dorff at her
workstation and asked her to accompany him to a small of-
fice on the sales floor. There, with no one else present, he
asked her: ‘‘What is all this talk about the union?’’ and what
is your involvement in it?.’’ When she told him she sup-
ported the Union, he asked if that was because of the recent
(November 30) firing of her daughter. After she answered
‘‘no,’’ he said he’d appreciate her not talking about the
Union any more.2 The latter comment though couched in the
form of a request constitutes an unlawful interference with
her right as an employee to assist in forming a labor organi-
zation. In effect, he was telling her that she risked his dis-
pleasure if she continued to voice support for the union any-
where in the facility. Fiber Glass Systems, 278 NLRB 1255
(1986). And in light of that admonition his questions regard-
ing the union campaign and her involvement in it were not
isolated, innocuous, and casual within the rationale of
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). Instead, they constituted coercive inter-
rogation. Offshore Shipbuilding, 274 NLRB 539 (1985).
As noted, Dorff aided the organizing effort by distributing
union literature in the company cafeteria. On at least three
occasions in January, Gaboury followed her as she placed
flyers on tables and immediately retrieved and discarded
them; and in one instance he picked up flyers being read by
employees. Gaboury states that he regarded the material as
‘‘debris’’ and that he removed and discarded it in the course
of his daily routine of picking up any ‘‘miscellaneous gar-
bage’’ laying on the tables. Under the Act employees are en-
titled to engage in organizational activities, including dis-
tribution of literature, while off duty in nonworking areas
such as lunchrooms. By viewing the flyers as no different
than garbage and immediately removing them from the ta-
bles, Gaboury unlawfully interfered with that right through
confiscation. Mississippi Chemical Corp., 280 NLRB 413,
419–420 (1986).
On another occasion in January, Dorff was seated in the
cafeteria discussing the Union with at least six other employ-
ees when Gaboury and another supervisor (Gunnar Johnson)
approached their table. Gaboury sat next to Dorff stating:
‘‘This ought to be interesting because the union lady is going
to talk.’’ At that point another employee at the table (Patty
Soncrant), who had been an early supporter of the Union,
began to talk against it. Surprised, Dorff interrupted stating:
‘‘Patty! What are you saying?’’ To which Soncrant replied:
‘‘A person has a right to change their mind if they want.’’
Dorff then got up and left the area.3 For the next few min-
utes Gaboury answered questions concerning the Union and
then everyone went back to work. I find Gaboury’s uninvited
intrusion into what he correctly perceived as prounion pros-
elytizing by Dorff was a patent attempt to inhibit her as well
as other employees in the exercise of Section 7 rights by cre-
ating the impression of monitoring or surveillance. Peck,
Inc., 269 NLRB 451, 459 (1984).
On January 9, Gaboury approached Dorff at her work sta-
tion and told her to report to Robert Sanders, CVN’s director
of human services. When she entered his office downstairs
in the executive suite, he asked about the union drive. She
told him what her involvement had been. He appeared ‘‘not
too pleased with all that,’’ and told her he did not want her
to continue talking about the Union. Dorff responded that she
felt very strongly about the Union and would continue to
promote it. After a pause, he said he would like to talk about
791CVN COMPANIES
4 In evaluating Dorff’s credibility I am aware that in letters sent to top CVN
officials between March 10 and April 4, 1989, she accused Gaboury and Sand-
ers of pursuing a ‘‘vendetta’’ against her family, and that she initially denied
that fact at the trial. Nevertheless, I have concluded that her testimony as to
pertinent events described here is substantially accurate.
5 Sanders testified that he couldn’t recall having a one-on-one meeting with
Dorff around January 9, thereby impliedly denying the statements attributed
to him by Dorff. He checked his appointment book prior to the hearing and
found no entry regarding Dorff. Assertedly, he habitually listed appointments.
6 Sanders states that the meeting occurred on ‘‘approximately January 31st
or February 1st or 2nd.’’
7 In response to a question, ‘‘And did she say anything to you about bene-
fits?,’’ one of the women managers (Sharon Dawson) replied: ‘‘She said that
her daughter was terminated, I think she said a week before her benefits were
supposed to go into effect.’’ And in response to a followup question: ‘‘Did
she indicate that that was done to deny her daughter the benefits?,’’ Dawson
answered, ‘‘She inferred that.’’ In light of the leading nature of the questions,
Dawson’s qualified reply, ‘‘I think she said . . .’’ and Dorff’s denial of ever
having said her daughter had been ‘‘cheated’’ out of benefits (Tr. 66 and 81),
I decline to find that Dorff said that her daughter was terminated for the pur-
pose of denying benefits already earned or about to vest.
8 In its employee handbook CVN advises all personnel that it has the right
to terminate the employment relationship at any time without notice, for any
reason or for no reason at all.
her daughter Vicky’s termination in November, adding that
he had set up an appointment to see Vicky on the following
day. Dorff declined stating that she had other reasons for
supporting the Union and that the firing was not her principle
concern. Sanders then asked if she would like to be trans-
ferred to a day shift. After replying that she preferred her
present schedule, she inquired: ‘‘Why do you ask?’’ ‘‘Be-
cause then you wouldn’t have to deal with Mr. Gaboury,’’
he answered. Dorff responded that she had no problem deal-
ing with Gaboury.4 Persisting, Sanders asked her if she’d
like a transfer into customer service, and Dorff again said no.
When Sanders continued to talk about the Union, Dorff
asked if she could return to work. He agreed and the meeting
ended at that point.5
Sanders’ unqualified request that Dorff cease talking about
the Union violates her Section 7 rights. Fiber Glass Systems,
supra. And his questioning concerning her union activities
was not casual or innocuous. He was the top management of-
ficial in charge of personnel matters for CVN’s complement
of 3600 employees and he called her to his office specifically
to induce her to desist from those activities. His interroga-
tion, therefore, was plainly coercive, as was his attempt to
achieve her acquiescence by implied promises of favorable
personnel actions, i.e., reassignment and leniency for her
daughter. Gem Urethane Corp., 284 NLRB 1349, 1363
(1987). Sanders, however, does not appear also to have
threatened unspecified reprisals, as alleged in the complaint.
On or about February 2 Dorff again was called from her
workstation and told to go to Sanders’ office.6 The subject
was a conversation she had on the previous day in the cafe-
teria with two women employees. The latter identified them-
selves as managers when Dorff began to talk to them about
the Union, and they invited her to explain why a union was
needed. In doing so Dorff claimed that the Union could pro-
tect employees from unjust firings. Asked to be more spe-
cific she said that her daughter and other employees had
been terminated unfairly and without cause, and she claimed
that her daughter had been fired to deny benefits.7
In the office she met Sanders and another top official of
CVN (Reuel Nygaard), its vice president of corporate oper-
ations. Sanders informed her that the women managers had
reported her conversation in the cafeteria and that he and
Nygaard were disturbed that she was making ‘‘untrue and
slanderous’’ assertions that employees had been terminated
unjustly.8 They interrogated her for 30 to 45 minutes. Ac-
cording to Nygaard, Dorff didn’t explain her statements at
the meeting. Neither Nygaard nor Sanders deny that during
the session Sanders slammed his fist on the desk saying:
‘‘Mavis, I will not hear . . . any more of these untruths. I
will not tolerate it . . . If you don’t stop telling these lies,
we may have to let you go.’’ The meeting ended when Dorff
asked to be allowed to go back to work. I credit Dorff’s ac-
count.
The law is clear that false utterances and writings made
by union supporters during the course of an organizing drive
and in furtherance of that drive constitute union or protected
activity within the meaning of Section 7 of the Act unless
they are made maliciously and with knowledge of their fal-
sity. Owings-Corning Fiberglass Corp. v. NLRB, 407 F.2d
1357 (4th Cir. 1969), American Cast Iron Pipe Co., 234
NLRB 1126, 1131 (1978); Walls Mfg., 137 NLRB 1319
(1962). And the burden of showing that the statements were
knowingly false and therefore malicious is on an employer
who seeks to prevent dissemination. Radisson Muehlebach
Hotel, 273 NLRB 1464 (1985).
CVN made no attempt to prove false Dorff’s assertion that
employees were terminated without cause. Indeed the very
generality of that statement makes it virtually impossible to
disprove. The situation is akin to carrying a sign on a picket
line stating an employer is ‘‘UNFAIR!’’ Historically such
statements are protected because an employers only practical
recourse is denial or counterpropaganda.
As to Dorff’s claim that her daughter was terminated for
the purpose of denying her benefits, I find the statement am-
biguous. It could mean, as testified by Dorff, that by being
fired her daughter was denied opportunity to accrue benefits.
But even if an inference is taken that her termination was in-
tended to deny earned benefits, CVN made no attempt to es-
tablish other reasons for the discharge.
In these circumstances I find the lengthy interrogation of
Dorff by the two senior officials of CVN, accompanied by
desk pounding by one, to have been unjustified, intimidating,
and therefore unlawful. Further, their threat to fire her if she
repeated the statements in question constitutes an unlawful
infringement on her right to recruit employees for the Union.
Fiber Glass Systems, supra.
A few days later Dorff was again called to the small office
on the sales floor. When she arrived Manager Gaboury spoke
to her briefly about her attendance record and asked if she
felt her absences were excessive. Dorff responded that over-
all and compared to her coworkers she did not. Then he
asked if she had everything settled with Nygaard and Sand-
ers. When Dorff said yes, Gaboury asked if he could feel as-
sured that she would not be talking about the Union any-
more. Dorff replied that she would continue to talk about it
at proper times and places. It is obvious that Gaboury was
aware of the earlier session with Nygaard and Sanders and
that he knew or assumed they had urged her to cease talking
about the Union. And by asking if he could ‘‘feel assured’’
in the regard he was again telling her that he wanted her to
stop. The interrogation, therefore, was coercive and unlawful.
But, without more, it did not entail threats of unspecified re-
prisals as alleged in the complaint.
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 A few days earlier Kelly, having noticed her union buttons, asked Dorff
if she ‘‘was one of those union people.’’ She said ‘‘yes.’’
10 Kelly denies ever mentioning the Union to Dorff. He allows, however,
that on one occasion in early January she ‘‘might’’ have mentioned it, but he
claims he then promptly cut her off by telling her he didn’t ‘‘want to talk
about the subject at all.’’ He admits confronting Dorff on the stairs but denies
having asked her to sign out with the guards or ever having seen notations
of guards concerning Dorff’s exit times. As to the latter, he recalls that at one
time Dorff tried to show him something stating ‘‘This is what time I left,’’
and that he declined to take or look at the document and instead told her that
she just needed to leave the building before midnight. As between his account
and that of Dorff, I credit the latter. And in this instance my assessment is
bolstered by examples in evidence of guard notations verifying her exit times.
I find it hard to believe that she would have pursued the verification procedure
day after day without having been told to do so.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
12 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
II. VIOLATION OF SECTION 8(A)(3)
As noted, Dorff was an open, outspoken supporter of the
union organizational effort from January 3 until she left CVN
on medical leave on February 10.
For its part, CVN promptly, after receiving the Union’s
letter of intent to organize, began an antiunion campaign.
That effort included distributing literature to employees
through their direct supervisors and requiring employee at-
tendance at meetings where CVN’s opposition to unioniza-
tion was made known. And, as found, top managerial per-
sonnel repeatedly attempted to coerce Dorff in her exercise
of Section 7 rights.
At the end of her shift in early January, Dorff punched out
on a timeclock near her workstation. As she walked down
a staircase leading to an exit she met a janitorial employee
(Sherry). As they passed Sherry greeted Dorff and asked how
she was doing. Dorff replied: ‘‘Fine.’’ At that moment
Dorff’s leadman (Quentin Kelly, an admitted supervisor) ran
up the stairs and asked Dorff why she was loitering.9 When
she protested that all she had done was to say ‘‘Hello,’’ he
hurriedly said: ‘‘Well, you can’t do that. You have to leave
now. Right this minute.’’ He also told her he’d figure out a
way to make sure she left promptly in the future.
When she arrived at her workstation on the following day,
Kelly reminded her of the encounter on the stairs and said:
‘‘I don’t want you to be talking to anybody. You punch out
and you leave right away.’’ And later in the day he conveyed
additional instructions, telling her that henceforth she was to
obtain a signed receipt from a security guard each time she
exited the building showing the exact time she left. Dorff
complied; and until Kelly was transferred in late January she
took the guards’ notations to him about once a week. Then,
after jotting down the exit time entries for comparison with
her punch out times, he returned most of the notes to
Dorff.10
No other employee was required to undergo an exit time
verification process; and in view of managements awareness
of her active support of the Union, I conclude that the dis-
parate treatment was intended to deter and discourage her
from pursuing such activities. This constitutes unlawful dis-
crimination within the meaning of Section 8(a)(3) and (1) of
the Act.
CONCLUSION OF LAW
I find that Respondent CVN violated the Act in the man-
ner and for the reasons stated above.
Disposition
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, CVN Companies, Inc., Minneapolis,
Minnesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning their or
other employees’ union activities or sympathies.
(b) Prohibiting employees from discussing unionization
during nonwork times.
(c) Interfering with employee distribution of union lit-
erature in nonwork areas.
(d) Creating an impression that employee discussions of
matters relating to unionization were under surveillance.
(e) Promising or offering benefits in return for employees
ceasing to voice support for unionization.
(f) Imposing discriminatory sign-out requirements on em-
ployees for the purpose of preventing employees from engag-
ing in union or other protected activities.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Minneapolis, Minnesota, copies of
the attached notice marked ‘‘Appendix.’’12 Copies of the no-
tice, on forms provided by the Regional Director for Region
18, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.