Dayton Hudson Corp.

National Labor Relations Board - Board Decisions

Feb 24, 1995

316 N.L.R.B. 477 (N.L.R.B. 1995)

477
316 NLRB No. 89
DAYTON HUDSON CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent has also excepted to the judge’s finding that it en-
gaged in unlawful surveillance. The Respondent argues that it merely
recorded the activity of employees who were in the company of pro-
fessional union organizers when the organizers were inside the Re-
spondent’s store, thereby engaging in incidental surveillance of em-
ployees during lawful surveillance of nonemployees. The Respond-
ent’s argument is devoid of merit. The judge found that the Re-
spondent engaged in unlawful surveillance by videotaping employee
movements and actions, watching and following employees, and in-
terrupting their conversations and monitoring their telephone calls.
The judge cites credited testimony supporting this finding involving
multiple employees on multiple occasions. Moreover, among these
numerous incidents, there are only two which hint at the conjunction
of professional union organizers with employees and activity inside
the Respondent’s store. Thus, Ray Lichy credibly testified that, dur-
ing the last week in July 1991, the Respondent videotaped employ-
ees and professional union organizers leafletting at the employee en-
trance to the store. When a small group entered the store, they were
filmed by Brenda McNamara, the store’s security manager. Lichy
did not specify whether the group which entered the store was the
same as the group leafletting at the employee entrance. Similarly,
Lindel Salow credibly testified that, shortly before the second elec-
tion, the Respondent videotaped him at his work station in the men’s
fragrance department. Then within an hour, the Respondent
videotaped Salow again as he waited on two customers who were
wearing jackets with union insignia embroidered on them. Salow
specifically testified that he did not know who the two customers
were. Accordingly, the record does not reveal whether the Respond-
ent’s surveillance of Lichy when he entered the store or Salow when
he waited on the two customers was merely incidental to lawful sur-
veillance of nonemployees. We find it unnecessary to reach the issue
of whether Respondent was privileged to engage in surveillance dur-
ing the two instances described above. Assuming arguendo that it
could, and that those instances can be divorced from the many in-
stances in which union agents were not present (and the surveillance
was therefore clearly unlawful), those latter instances are more than
enough to warrant the remedial order entered herein.
2 We note that the judge inadvertently failed to conform his con-
clusions of law, Order, and notice with the violations found. We cor-
rect this error.
Members Cohen and Truesdale do not reach or pass on the alleged
unlawful interrogation of employee Harry Gersell and the alleged
unlawful oral reprimand of employee Eric Gawura. These violations
are cumulative and do not substantially affect the remedy.
Member Browning would affirm the judge’s finding, for the rea-
sons he stated, that the reprimand of employee Gawura violated Sec.
8(a)(3) of the Act. In Member Browning’s view, that finding is not
‘‘cumulative,’’ despite the fact that the Respondent also unlawfully
reprimanded other employees. In addition, the absence of the finding
does affect the Order and notice, because the Respondent will no
longer be required to remove any reference to Gawura’s reprimand
from its records and to notify him that it will not be used against
him in any way.
Department Store Division of the Dayton Hudson
Corporation and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, AFL–CIO.
Cases 7–CA–32279, 7–CA–32433, and 7–CA–
33871
February 24, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On August 3, 1994, Administrative Law Judge Irwin
H. Socoloff issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief to the Respond-
ent’s exceptions and cross-exceptions and a supporting
brief. The Charging Party filed an answer to the Re-
spondent’s exceptions and a supporting brief and
cross-exceptions and a supporting brief. The Respond-
ent filed an answering brief to the Charging Party’s
cross-exceptions and to both the Charging Party’s and
the General Counsel’s answers to the Respondent’s ex-
ceptions.
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
CONCLUSIONS OF LAW
1. Department Store Division of the Dayton Hudson
Corporation is an employer engaged in commerce, and
in operations affecting commerce, within the meaning
of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica, UAW, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By issuing reprimands to Leonard Militello Jr. on
July 18 and 26, 1991, and to Vivian Armstrong on
July 31, 1991, because of their union activities, the Re-
spondent has engaged in unfair labor practice conduct
within the meaning of Section 8(a)(3) of the Act.
4. By threatening employees with store closure,
store relocation, loss of jobs, bumping from jobs, and
more onerous working conditions if they select the
Union to represent them, and by informing employees
that it would be futile for them to select union rep-
resentation, the Respondent has engaged in unfair labor
practice conduct within the meaning of Section 8(a)(1)
of the Act.
5. By denouncing and humiliating an employee in
the presence of other employees, by harassing an em-
ployee and threatening his physical safety, and by
screaming vulgarities at a union organizer and threat-
ening violence against her in the presence of employ-
ees, because of employee support for the Union, the
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Respondent has engaged in unfair labor practice con-
duct within the meaning of Section 8(a)(1) of the Act.
6. By coercively interrogating employees regarding
their union activities and sympathies, the Respondent
has engaged in unfair labor practice conduct within the
meaning of Section 8(a)(1) of the Act.
7. By impliedly promising employees improvements
in their wages, hours, and working conditions to dis-
suade them from supporting the Union, the Respondent
has engaged in unfair labor practice conduct within the
meaning of Section 8(a)(1) of the Act.
8. By asking an employee to remove his union but-
ton, the Respondent has engaged in unfair labor prac-
tice conduct within the meaning of Section 8(a)(1) of
the Act.
9. By altering the manner of distributing work
schedules to employees, restricting employee conversa-
tions, and changing other work rules and practices be-
cause of employee activities on behalf of the Union,
the Respondent has engaged in unfair labor practice
conduct within the meaning of Section 8(a)(1) of the
Act.
10. By disparately enforcing its written rules regard-
ing solicitation and distribution against employees en-
gaged in such activities on behalf of the Union, and
by requiring employees to remove union literature
from stockrooms, drawers, and other locations avail-
able to them for keeping nonwork-related items, the
Respondent has engaged in unfair labor practice con-
duct within the meaning of Section 8(a)(1) of the Act.
11. By coercively surveilling employees, in response
to employee activities on behalf of the Union, includ-
ing videotaping employee movements and actions,
watching and following employees, interrupting their
conversations, and monitoring their telephone calls, the
Respondent has engaged in unfair labor practice con-
duct within the meaning of Section 8(a)(1) of the Act.
12. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
13. In light of the Respondent’s failure to comply
with the terms of the June 23, 1992 settlement agree-
ment, in Cases 7–CA–32279 and 7–CA–32433, as
shown by its continued pattern of unfair labor practice
conduct in the summer and fall of 1992, the Regional
Director properly set aside the agreement.
14. The Respondent has not otherwise violated the
Act as alleged in the consolidated complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, Department Store Division of the Dayton
Hudson Corporation, Dearborn, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing reprimands to employees because of their
union activities.
(b) Threatening employees with store closure, store
relocation, loss of jobs, bumping from jobs, and more
onerous working conditions if they select the Union to
represent them, and informing employees that it would
be futile for them to opt for union representation.
(c) Denouncing and humiliating an employee in the
presence of other employees, harassing an employee
and threatening his physical safety, and screaming
vulgarities at a union organizer and threatening vio-
lence against her in the presence of employees, be-
cause of employee support for the Union.
(d) Coercively interrogating employees regarding
their union activities and sympathies.
(e) Impliedly promising employees improvements in
their wages, hours, and working conditions to dissuade
them from supporting the Union.
(f) Asking employees to remove their union buttons.
(g) Altering the manner of distributing work sched-
ules to employees, restricting employee conversations,
and changing other work rules and practices because of
employee activities on behalf of the Union.
(h) Disparately enforcing rules regarding solicitation
and distribution against employees engaged in such ac-
tivities on behalf of the Union, and requiring employ-
ees to remove union literature from stockrooms, draw-
ers, and other locations available to them for keeping
nonwork-related items.
(i) Coercively surveilling employees, in response to
employee activities on behalf of the Union, including
videotaping employee movements and actions, watch-
ing and following employees, interrupting their con-
versations, and monitoring their telephone calls.
(j) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from its files any reference to the un-
lawful reprimands issued to Leonard Militello Jr. on
July 18 and 26, 1991, and to Vivian Armstrong on
July 31, 1991, and notify them in writing that this has
been done and that the reprimands will not be used
against them in any way.
(b) Post at its Fairlane Mall store, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
479DAYTON HUDSON CORP.
1 The matters raised by the charge filed on December 28, 1992,
in Case 7–CA–34069, were settled at trial and, accordingly, Case 7–
CA–34069 was severed from this proceeding.
2 Simultaneously, the Regional Director set aside, for noncompli-
ance, the June 23, 1992 settlement agreement, between the Regional
Director and the Respondent, in Cases 7–CA–32279 and 7–CA–
32433, dealing with alleged unlawful conduct by Respondent during
1991.
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 issue reprimands to employees be-
cause of their union activities.
WE WILL NOT threaten employees with store closure,
store relocation, loss of jobs, bumping from jobs, and
more onerous working conditions if they select the
Union to represent them, or inform employees that it
will be futile for them to opt for union representation.
WE WILL NOT denounce and humiliate any employee
in the presence of other employees, harass any em-
ployees and threaten their physical safety, and scream
vulgarities at union organizers and threaten violence
against them in the presence of employees, because of
your support for the Union.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT impliedly promise employees im-
provements in their wages, hours, and working condi-
tions to dissuade them from supporting the Union.
WE WILL NOT ask employees to remove their union
buttons.
WE WILL NOT alter the manner of distributing work
schedules to employees, restrict employee conversa-
tions, or change other work rules and practices because
of employee activities on behalf of the Union.
WE WILL NOT disparately enforce rules regarding so-
licitation and distribution against employees engaged
in those activities on behalf of the Union, and WE WILL
NOT require employees to remove union literature from
stockrooms, drawers, and other locations available to
them for keeping nonwork-related items.
WE WILL NOT coercively surveil employees, in re-
sponse to employee activities on behalf of the Union,
including videotaping employee movements and ac-
tions, watching and following employees, interrupting
their conversations, and monitoring their telephone
calls.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL notify Leonard Militello Jr. and Vivian
Armstrong that we have removed from our files any
reference to their unlawful reprimands and that the rep-
rimands will not be used against them in any way.
DEPARTMENT STORE DIVISION OF THE
DAYTON HUDSON CORPORATION
John Ciaramitaro, Esq. and Cindy L. Beauchamp, Esq., for
the General Counsel.
Timothy K. Carroll, Esq. and John F. Birmingham, Esq., of
Detroit, Michigan, for the Respondent.
Nancy Schiffer, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On
charges filed on September 3 and October 10, 1991, and
amendments thereto, and further charges filed on October 27
and December 28, 1992,1 by International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW, AFL–CIO (the Union) against Depart-
ment Store Division of the Dayton Hudson Corporation (the
Respondent), the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region 7, issued
a consolidated complaint dated February 26, 1993,2 alleging
violations by Respondent of Section 8(a)(1) and (3) and Sec-
tion 2(6) and (7) of the National Labor Relations Act (the
Act). Respondent, by its answer, denied the commission of
any unfair labor practices.
Pursuant to notice, trial was held before me in Detroit,
Michigan, on April 19–22 and June 7–9, 1993, at which all
parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence. Thereafter, the General
Counsel, the Charging Party, and the Respondent filed briefs
which have been duly considered.
On the entire record in these cases, and from my observa-
tions of the witnesses, I make the following
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 302 NLRB 982 (1991), remanded 987 F.2d 359 (6th Cir.).
4 The factfindings contained here are based on a composite of the
documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial con-
flict, credibility resolutions have been set forth, infra. In general, I
have relied on the testimonial accounts of events offered by em-
ployee Leonard Militello and former employee Raymond Lichy, as
both of them impressed me as honest, forthright, and in possession
of a relatively full recollection of significant events. On the other
hand, based on demeanor considerations, and because I found certain
of their testimonial statements implausible, I have viewed with sus-
picion the testimony of statutory Supervisors Reggie Sneed, Lance
Petross, and Cedric Jackson. To the extent that the testimony of
Sneed, Petross, or Jackson conflicts irreconcilably with the credited
testimony of Militello and/or Lichy, it is discredited.
5 In support of certain complaint allegations, witnesses called by
the General Counsel identified the claimed perpetrators of unfair
labor practice conduct by first name, only. The individuals so de-
scribed were, apparently, regularly employed at other Hudson Detroit
area stores and were assigned, temporarily, to the Fairlane store at
the time of the alleged unlawful conduct. In light of the lack of ade-
quate record identification of these individuals, and, particularly, the
lack of evidence of their supervisory status, I have made no findings
of unfair labor practice conduct by Respondent based on the alleged
actions of the individuals.
6 Prior to this conversation, Colston had been absent or tardy, from
time to time, but had not received any written warnings.
7 Jennie-O Foods, 301 NLRB 305 (1991).
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the operation of retail depart-
ment stores, and runs such stores in the State of Michigan,
including a store located in Dearborn, Michigan, called the
Fairlane Mall store. During the year ending December 31,
1992, a representative period, Respondent, in the course and
conduct of its business operations, derived gross revenues in
excess of $500,000, and purchased and received goods and
materials, valued in excess of $50,000, at its Michigan loca-
tions, which were sent directly by suppliers located outside
the State of Michigan. I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Beginning late in 1989, and early in 1990, the Union made
efforts to organize the employees working at certain of Re-
spondent’s metropolitan Detroit area stores. In this connec-
tion, the UAW, on May 11, 1990, won a Board-conducted
election among employees of Hudson’s Westland Mall store
and, thereafter, was certified. Subsequently, the Board issued
an order requiring Hudson to bargain, and it petitioned the
Sixth Circuit Court of Appeals for enforcement. On March
1, 1993, the court remanded the case to the Board for recon-
sideration and further hearing.3 Also in 1990, on October 12,
the Union lost an election conducted at the Summit Place
Mall store, in Pontiac. That election was, thereafter, set
aside, and a second election was scheduled and, later, can-
celed, when the Union withdrew its petition.
At Fairlane, the store involved in this proceeding, the
Union won an election held on April 12, 1991, among the
full-time and regular part-time selling and nonselling em-
ployees at the store, some 500 in number. That election was,
thereafter, set aside by the Board, and a second election was
conducted on August 9, 1991, which the Union lost. The re-
sults of the second election were set aside by stipulation of
the parties, and the conduct of a third election was scheduled
for October 30, 1992. However, immediately prior to the
date of the scheduled third election, the Union withdrew its
representation petition and the election was canceled.
In the instant case, the General Counsel contends that, dur-
ing the periods preceding the 1991 elections, and, again, in
the months before the scheduled 1992 election, at the
Fairlane Mall store, Respondent embarked on a widespread,
extensive, and continuing campaign of unfair labor practice
conduct, including, issuing reprimands to employees because
of their union activities; threatening employees with store
closure, store relocation, loss of jobs, and more onerous
working conditions if they select the Union to represent
them; warning employees that it would be futile for them to
opt for union representation; coercively interrogating employ-
ees regarding their union activities and sympathies; impliedly
promising employees improvements in their wages, hours,
and working conditions to dissuade them from supporting the
Union; asking an employee to remove his union button;
changing work rules, policies, and practices because of em-
ployee activities on behalf of the Union; disparately enforc-
ing its written rules regarding solicitation and distribution
against employees engaged in such activities on behalf of the
Union; and coercively surveilling employees, in response to
their union activities, including videotaping their movements
and actions, watching and following them, interrupting their
conversations, and monitoring their telephone calls. Respond-
ent urges that, viewed in context, all of its actions should be
seen as lawful.
B. Facts4 and Conclusions5
1. Alleged threats, interrogations, promises of benefit,
and requests to remove union insignia
Former Fairlane Mall store employee Karl Colston, who
worked in the restaurant as a dishwasher and a cook, testified
that, in late July 1991, about a week before the second elec-
tion, he was called into the office of his department manager,
statutory Supervisor Aruna Bazaz. She asked Colston how he
felt about the Union coming in and, in reply, the employee
stated that he would not mind getting more hours, money,
and benefits. Bazaz told Colston that, if the Union got in, all
his ‘‘absences and tardies’’ would have to be written up, and
he would be required to report to work on time.6 The em-
ployee’s testimony in these regards is uncontradicted. Based
on Colston’s credited, uncontradicted testimony, I find that
Respondent, through Bazaz, violated Section 8(a)(1) of the
Act by the foregoing threat, an outright statement that union
representation would result in stricter work rules and more
rigid enforcement of existing rules.7
Some 2 weeks before the second election at Fairlane, the
‘‘Vote No’’ committee, an organization of Fairlane store em-
481DAYTON HUDSON CORP.
8 Store Manager Christopher Wozniak testified that, by letter dated
August 8, 1991, 1 day prior to the second election, Respondent in-
formed the Fairlane employees that decisions concerning store clo-
sures would not be based on union considerations.
ployees who oppose unionization, distributed, in front of the
store, leaflets entitled ‘‘Red Alert.’’ Copies of this document
also appeared on all three selling floors, at employee work
stations, or wrap stands, where the cash registers were lo-
cated and packages could be wrapped. The leaflet stated, in
part:
Hudson’s Employees: Did you know that if Dayton
Hudson’s wanted to, it could close a store, open a new
store elsewhere, and hire all new employees? Hudson’s
could do this legally with or without a union!
Further, according to the leaflet, regarding the Westland
store, where the Union had won an election, Hudson’s chose
not to renew its lease with the Westland Mall, and might
move the store to a new mall.8
According to the testimony of employee Harry Gersell,
and that of former employee Eric Gawura, salesmen in the
men’s active wear department, they were approached, later
that day, by Manager Diana Grandy who asked them if they
had seen the Red Alert flyer and if they had any questions
about it. Gersell asked about the possibility, indicated in the
flyer, that the Westland store might close. Grandy stated that
the store would close, and move into another mall, ‘‘because
of the union activity.’’
Based on the credited, uncontradicted testimony of Gersell
and Gawura, I find that Respondent, through statutory Super-
visor Grandy, violated Section 8(a)(1) of the Act by inform-
ing employees that Respondent would close the Westland
store where the employees had voted for representation by
the Union, because of employee union activities. This state-
ment constituted a thinly veiled threat to close the Fairlane
store, too, if the employees there also voted in the Union.
Janetta Harrison, a Fairlane store sales employee in the
children’s department, testified that, in April 1991, before the
first election, she and fellow employee Clarice Barrow were
informed by their manager, statutory Supervisor Kristen
Hickock, that Hudson would not bargain with the Union,
which would leave the employees, should they choose the
Union, with a strike as their only option. Harrison’s testi-
mony is uncontradicted and is credited. I find that, by so ad-
vising employees that it would be futile for them to opt for
union representation, Respondent, through Hickock, violated
Section 8(a)(1) of the Act.
In late July or early August 1991, preceding the second
election, a document referred to as the ‘‘Westland contract’’
appeared on many employee counters and wrap stands at the
Fairlane store. Store Manager Wozniak testified that he first
saw this document when it was given to him by certain of
the Westland store employees. Wozniak discussed it with
Henry Bechard, Respondent’s labor relations manager for the
Detroit area stores, and they decided to give copies of the
Westland contract to the Fairlane store supervisors and to in-
struct them to talk to the employees about it, particularly,
about the section of the ‘‘contract’’ dealing with bumping.
Wozniak testified that, at the time, he knew that there had
not been negotiations at the Westland store; that there was
not a Westland contract; that there had been no contract pro-
posals to the Company made by the Union; and that what
they referred to as the Westland contract was not a Westland
contract.
Employee Gwyn McKinney, a sales employee in the
men’s furnishings department, testified that, shortly before
the second election, Greg Gibson, a corporate regional man-
ager, came up to her work area and began to speak. Gibson
told McKinney that, if the Union were voted in McKinney
might be bumped and/or laid off, because of her lack of se-
niority. McKinney’s testimony is uncontradicted. I find,
based on the employee’s credited and uncontradicted testi-
mony, that Respondent, through Gibson, violated Section
8(a)(1) of the Act by threatening employees with bumping
and/or job loss if they selected the Union to represent them.
Gibson’s warning, without reference to the collective-bar-
gaining process, conveyed the message that bumping and/or
layoffs would come about as a consequence of organization.
Bobbie Murph, a cook in the Fairlane store restaurant, tes-
tified that she met with her manager, Aruna Bazaz, in the
manager’s office, some 7 days before the second election.
Bazaz had with her a document which she made reference
to, apparently, the Westland contract. According to Murph’s
credited and uncontradicted testimony, Bazaz told her that,
‘‘if the Union gets in, you could lose your job, the store
could close, Westland would close, and people could . . . be
bumped off of their jobs.’’ Based on Murph’s testimony, I
find that Respondent, through Bazaz, violated Section 8(a)(1)
of the Act by threatening employees with store closure, job
loss, and bumping if they voted in the Union.
According to the uncontradicted and credited testimony of
Pamela Jaros, a sales employee in the Fairlane store deli de-
partment, she was approached, about a week before the sec-
ond election, by Assistant Manager Lisa Nathanson, a statu-
tory supervisor. Nathanson asked Jaros, who, apparently,
wore neither UAW insignia nor a ‘‘Vote No’’ pin, how she
felt about the Union coming in at Hudson’s. Later in the
conversation, the supervisor told the employee that, if a
union were there, it would be harder for employees to know
their schedules in advance and, with a third party involved,
it would be more difficult for employees to request time off.
Nathanson further told Jaros that, even if the store employees
voted for the Union, this would not, necessarily, obligate
Hudson to negotiate with the Union. In this connection,
Nathanson pointed out that the Westland store employees
had voted for the Union and, a year later, there still had not
been any negotiations.
Nathanson’s questioning of Jaros concerning her union
sympathies was without legitimate purpose, occurred without
assurances against reprisals and was coercive in nature and
violative of Section 8(a)(1) of the Act. Also unlawful were
the warnings to Jaros about the inevitable, undesirable
changes in working conditions which would occur if the
Union became the employees’ representative. In the same
conversation, Respondent, through Nathanson, violated Sec-
tion 8(a)(1) of the Act by informing Jaros, in effect, that it
would be utterly futile for the employees to opt for represen-
tation because Hudson would not engage in negotiations,
anyway. Based on Jaros’ testimony, I find that Respondent
violated the Act by its coercive interrogation, threats of un-
desirable changes in working conditions, and warnings of fu-
tility.
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Willola Gray, a sales employee in the Fairlane store in-
fant’s department, testified, credibly and without contradic-
tion, that, during the weeks preceding the second election,
Manager Kristen Hickock approached her, on several occa-
sions, and read to Gray sections of the Westland contact.
Hickock told Gray that Respondent would close the
Westland store and that Gray, a part-time worker, ‘‘could be
bumped.’’ Based on Gray’s testimony, I find that Respond-
ent, through Hickock, violated Section 8(a)(1) of the Act by
informing Gray, in effect, that store closure or bumping were
the inevitable results of organization.
According to the credited and uncontradicted testimony of
Michael Renfroe, a Fairlane store dockworker, in August
1991, preceding the second election, he was instructed to re-
port to the office of his manager, Mike Zantini, a statutory
supervisor. Zantini showed to Renfroe a copy of the
Westland contract, and pointed to the bumping provisions,
stating that, if the contract were to take effect at Fairlane,
employees who lacked seniority could be bumped or laid off.
Zantini also told Renfroe that, in the event of organization
Renfroe would no longer get ‘‘the favors’’ he had gotten in
the past, an apparent reference to the shift changes accorded
to Renfroe in order to allow him to meet family obligations.
Based on Renfroe’s testimony, I find that Respondent,
through Zantini, violated Section 8(a)(1) of the Act by in-
forming an employee that undesirable changes in working
conditions would inevitably accompany employee organiza-
tion.
Gloria Kovich, a sales employee in the men’s accessory
department at Fairlane, testified that, before the August 1991
election, she was 1 of 18 to 24 Fairlane employees to attend
a meeting conducted by Respondent’s president, Dennis
Toffolo. At the meeting, Kovich testified, Toffolo stated that,
if the Union were selected, the Company would not agree
with its demands and, so, the employees, probably, would go
on strike and would not be able to survive. Further, Kovich
testified, Toffolo stated that the store might close.
Kovich’s testimony, concerning statements made to her as
part of a large gathering, is uncorroborated. In addition, her
testimonial description of occurrences at the event in ques-
tion is not entirely consistent with the statements contained
in her pretrial affidavit concerning the matter. For these rea-
sons, I am unwilling to base an unfair labor practice finding
on her testimony in these regards and I find, contrary to the
complaint, that the evidence is insufficient to show that Re-
spondent, through Toffolo, violated the Act, before the sec-
ond election, by telling a large group of employees that, in
the event of organization, a strike was inevitable and the
store might close.
UAW Organizer Maureen Fitzsimmons testified that, on
August 7 or 8, 1991, immediately before the second election,
she and Respondent’s consultant and agent, Jim Strong, ex-
changed unpleasant comments while Fitzsimmons was out-
side the store, at the main level entrance, coordinating
leafleting activities. Later that day, outside, at a lower level
public entrance to the store which was nearby to the em-
ployee entrance, Strong passed by, and Fitzsimmons and a
cohort called him a ‘‘union buster.’’ Strong walked over to
Fitzsimmons, stood very close to her, and screamed at her:
‘‘Fuck you, fuck you, fuck you.’’ He then said, loudly,
‘‘What is you name? You’re Moe . . . I can find out where
you live.’’ Strong, before leaving, made an obscene gesture
with his finger. This incident occurred at midday, during an
employee shift change, and was observed by employees com-
ing into work and by employees inside the store, near the
public entrance, who were looking out and watching.
Fitzsimmon’s testimony concerning the foregoing incident
is uncontradicted and is credited. I find, based on her testi-
mony, that Respondent, by Strong, violated Section 8(a)(1)
of the Act by screaming vulgarities at a union organizer, and
threatening physical violence against her, in the presence of
store employees.
Raymond Lichy worked at the Fairlane store, as a sales
employee in the men’s accessories department, from October
1987 until December 23, 1992. Lichy, who wore UAW but-
tons and insignia to work every day, and who frequently dis-
tributed UAW literature to employees outside the employee
entrance into the store, was, indisputably, an employee leader
of the organizing effort and was known to Respondent as
such.
Lichy testified that, in October 1992, preceding the sched-
uled third election, he was at his work station speaking to
his coworker, Devon Washington. The manager in the men’s
suits department, Lance Petross, approached and told Lichy
that there was no soliciting on the floor. Lichy said that he
was not soliciting and he pulled out a copy of the National
Labor Relations Board notice, posted by Respondent pursu-
ant to the June 23, 1992 settlement agreement, and, he testi-
fied, pointed to the line stating that the Company would not
interfere with employees’ talking amongst themselves.
Petross, according to Lichy, stated that that did not mean a
thing. Petross then turned to Washington and asked him if
he knew that Lichy had called a manager, Cedric Jackson,
a ‘‘nigger’’ and a ‘‘monkey,’’ and if he, Washington, knew
that Lichy was afraid to walk around the store, by himself,
and without the presence of his son. Lichy denied that he
had ever said these things.
Petross, Lichy further testified, turned back to him and
told him to put his employee badge on, and to take his foot
off the counter. Lichy complied with these instructions.
Then, Petross told Lichy to go home, but the employee re-
fused. Petross told Lichy that ‘‘I am going to knock the shit
out of you in the parking lot.’’ The manager then called for
the substitute executive store manager, Rose Spencer, and he
told her that Lichy had been soliciting on the floor and had
refused to wait on a customer. Accordingly, Petross told
Spencer, he wanted her to send Lichy home. When Spencer
said that Lichy did not have to go home, Petross claimed that
Lichy had threatened him with violence in the parking lot.
Petross stated that he would call the police and, then, both
he and Spencer left the area. While Petross did not, in fact,
call the police, Lichy did do so and he was advised to leave
the store for the day. The employee so informed Spencer,
and he left, accompanied by a security guard. Lichy filed a
police report on October 9, 1992.
Petross, in his testimony, claimed that, after he told Lichy
to put his badge on, and to remove his foot from the ledge
of the wrap stand, he instructed the employee to service a
nearby customer. As the conversation continued, the cus-
tomer started to walk away and, Petross further testified,
Lichy then called to him, loudly, asking if he needed help.
The customer said, ‘‘[N]o.’’ According to Petross, during the
conversation, when Lichy pointed to the Board’s notice
Lichy stated that, ‘‘according to this, I don’t have to do any-
483DAYTON HUDSON CORP.
9 Control Services, 303 NLRB 481 (1991).
thing. I can do anything I want.’’ Furthermore, Petross testi-
fied, it was Lichy who said that they could talk about, or
take care of, the matter outside. At that point, Petross called
for the executive on duty, Spencer. Petross did not deny tell-
ing Washington that Lichy had called Jackson a ‘‘nigger’’
and a ‘‘monkey’’ and that Lichy was afraid to walk around
the store by himself.
For the reasons stated at footnote 4, I credit Lichy’s testi-
mony and find that the confrontation between Lichy and
Petross, in the presence of Washington, in October 1992, oc-
curred as described by Lichy. To the extent that Petross’ ver-
sion of the event, as set forth in his testimony, differs from
Lichy’s account, it is discredited.
In light of Lichy’s leading role in the union campaign, Re-
spondent’s knowledge of same, the timing of the confronta-
tion (immediately before the scheduled third election), Re-
spondent’s contemporaneous unfair labor practice conduct,
and its failure to advance any credible explanation for the
confrontation, I find that Petross initiated the confrontation
with Lichy in response to the employee’s union activities. By
denouncing and humiliating Lichy in the presence of another
employee, and by harassing him and threatening his physical
safety, and because of his support for the Union, Respondent,
by Petross, violated Section 8(a)(1) of the Act.
Delores McMinn, a sales support employee in the men’s
sportswear department of the Fairlane store, testified,
credibly and without contradiction, that, prior to the first
election, she was approached, at a party, by Vince Giacobbe,
the store manager of Respondent’s Eastland Mall store.
McMinn, who normally wore a union badge to work, was
not wearing it on that occasion. Giacobbe asked McMinn if
she was ‘‘with us,’’ and she replied, ‘‘[N]o.’’
During the week preceding the second election, Giacobbe
visited the Fairlane store and, passing by, he stopped to ask
McMinn, ‘‘[A]re you for us, yet?’’ She replied, stating that
she was not. Giacobbe told her that, nonetheless, he was tell-
ing people that she was. McMinn protested, stating that that
was a lie. Giacobbe stated, ‘‘[W]ell, nobody else knows it
is.’’
While the first instance of interrogation of McMinn by
Giacobbe was, arguably, casual in nature, the second in-
stance, clearly, may not be so described, even according due
weight to the fact that the employee was a known union sup-
porter. McMinn, before the second election, was asked by a
high ranking company official, for the second time, where
she stood on the question of the Union. The official,
Giacobbe, had no valid purpose for asking the question, gave
no assurances against reprisals, and refused to accept the em-
ployee’s answer to his question. The interrogation occurred
in the context of an employer campaign replete with unfair
labor practice conduct. Based on McMinn’s testimony, I find
that Respondent, by Giacobbe, violated Section 8(a)(1) of the
Act by its coercive interrogation of McMinn.
Karen King, a sales employee in the Fairlane store’s wom-
en’s shoes department, testified that she was on an approved
leave of absence, for educational purposes, from February 11
until July 22, 1991. Immediately on her return, and while
wearing her union pin, she was approached by Manager
DeEtta Whigham, a statutory supervisor. Whigham pointed
to the pin and asked King why she had come back to work
if she had an attitude like that. Whigham further stated that
King did not have to come back and that she could not un-
derstand why King was acting that way. Based on King’s
uncontradicted and credited testimony, I find that Respond-
ent, through Whigham, violated Section 8(a)(1) of the Act by
its coercive interrogation of King concerning her union sym-
pathies.
Employee Harry Gersell, although a union supporter, did
not wear union insignia at work. He testified that, about 2
or 3 weeks before the second election, in the employee
lounge, a manager, statutory Supervisor Bill Thome, ap-
proached him. Thome asked the employee why he wanted
the Union, and what significance it had. When Gersell com-
plained about employee benefits, Thome asked him if he par-
ticipated in the retirement plan, and if he liked the medical
and dental plan. Based on Gersell’s credited and
uncontradicted testimony, I find that, by the foregoing coer-
cive interrogation of Gersell by Thome, Respondent violated
Section 8(a)(1) of the Act.
Former employee Eric Gawura testified, credibly and with-
out contradiction, that, a few days before the second election,
he was approached at his work station by Regional Manager
Greg Gibson. Gibson said that he had noticed that Gawura
was wearing a union pin, and he asked Gawura how long he
had been working for the Company. When the employee said
that it had been for a period of 9 or 10 months, Gibson
asked him why an employee who had been there for such
a short time would want a union in the store. Gawura started
to enumerate his reasons, and Gibson became upset and
raised his voice. In light of the foregoing uncontradicted tes-
timony, I find that Respondent, through Gibson, violated
Section 8(a)(1) of the Act by its coercive interrogation of
Gawura.
According to the testimony of Scott McCliment, a sales
employee in the Fairlane store’s men’s department, at his re-
quest, met with his manager, DeEtta Whigham, in her office,
about a month before the second election. McCliment said
that he needed 2 days off from work and Whigham replied,
saying, ‘‘[S]ure, no problem.’’ Then she told McCliment that
he could do something for her, namely, he could take his
union pin off. The employee refused. The supervisor then
told him to write down, for his own benefit, the pros and
cons of having a union. Finally, Whigham asked him to tell
her ‘‘what’s going on with the UAW.’’
Based on McCliment’s credited, uncontradicted testimony,
I find that Respondent, by Whigham, violated Section 8(a)(1)
of the Act by asking McCliment to remove his union pin.
Employees have a protected right to wear union insignia at
work and, absent a showing of special circumstances, it is
unlawful for an employer to infringe on that right.9 In the
same conversation, Respondent, through Whigham, engaged
in coercive interrogation, in violation of the Act, by asking
the employee to tell her what was going on with the Union.
Employee Willola Gray testified that, in September 1992,
on her return to work after a lengthy illness, she was wearing
both union buttons and ‘‘Vote No’’ insignia. Gray was ap-
proached at her work station by Manager Grandy, who, ac-
cording to Gray’s credited, uncontradicted testimony, stated:
[Y]ou have so much going on in your chest . . . I
don’t know what you are going to do. Why don’t you
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decide what way you are going to vote. I don’t know
if you are for the union or against it.
Grandy’s remarks called on Gray to reveal her union sym-
pathies, and her intentions with respect to voting in the then
impending third election, and was, thus, a coercive interroga-
tion. Based on Gray’s testimony, I find that Respondent,
through Grandy, further violated Section 8(a)(1) of the Act.
Gray also testified that, a year earlier, a month or more
before the second election, while working in her department,
she encountered Human Resources Manager Sherry Brenner.
Gray complained about the work assigned to her that day,
and Brenner stated that ‘‘it was all because of the union that
had brought these problems into the store.’’ Gray complained
about low wages, an insufficient number of work hours and
racism in work assignments. Brenner promised to get matters
cleared up. She told Gray that things would be taken care
of and that Gray would get proper compensation and more
hours.
Gray was given additional hours, going from 24 to 30 per
week. Some 2 weeks later, Respondent’s president, Toffolo,
appeared at her work station and asked Gray if she had got-
ten the additional hours. She said, ‘‘[Y]es, and also stated
that she was still unhappy. Toffolo said that they would be-
come a family again, and they would get things together. He
further stated that the employees did not need a union, and
that things were going to get better.
Promises of specific benefits, and promises that things will
get better, made during the course of a campaign and de-
signed to dissuade employees from supporting a union, are
violative of Section 8(a)(1) of the Act. In this case, the
record evidence offers no explanation, except unlawful moti-
vation, for the timing of the promises. Based on Gray’s cred-
ited and uncontradicted testimony, I find that Respondent, by
Brenner and Toffolo, so violated the Act.
2. Enforcement of the no-solicitation and no-
distribution rules
Respondent maintains written no-solicitation and no-dis-
tribution rules which are posted at the timeclocks, in the em-
ployees’ lounge, and in the employees’ locker room. The
rules state:
No solicitation, except for the annual United Way
Drive, is permitted during working time and no solicita-
tion is permitted on a selling floor at any time during
store hours. Should an employee desire to engage in
such activity, it must be confined to non-working time,
such as breaks and meal periods and in non-selling
areas of the store if during store hours.
No distribution of literature, pamphlets, documents
or any other materials, except for the annual United
Way Drive, is permitted during working time and no
distribution of any sort is permitted in any working
area, at any time.
The General Counsel concedes that the rules, as written, are
valid, but urges that they were disparately enforced against
employees engaged in solicitations and distributions on be-
half of the Union, in violation of the Act.
There is uncontradicted, credible record evidence, in the
form of testimony by employees Delores McMinn and Leon-
ard Militello, that, prior to the advent of the Union, the
above-referenced rules were not enforced. Thus, McMinn
and Militello testified, employees have, traditionally, engaged
in solicitations of each other, during working time and on the
selling floor, with regard to the sale of girl scout cookies,
raffle tickets, candies, and cans of Slim-Fast diet products.
Solicitations have also occurred with regard to football pools
and church-sponsored charity drives. In connection with so-
licitations to purchase Avon and Tupperware products, cata-
logue books have been passed about. These activities have
been carried on openly and in the presence of the department
managers, including John Karl, Elizabeth Richardson, and
Lance Petross.
Fairlane Store Manager Wozniak testified that there are no
exceptions to the rules, except for the United Way campaign.
He further testified that he has personally stopped a solicita-
tion for the sale of Girl Scout cookies, and another solicita-
tion to sell raffle tickets. In each case, the store manager told
the individual involved that such activities were not per-
mitted on company time and in selling areas. Wozniak con-
ceded that he is aware of the fact that solicitations in viola-
tion of the written rules occur, but stated that he takes no
action to stop such activities unless he personally observes
the occurrence.
Employee Harry Gersell testified, credibly and without
contradiction, that, preceding both the first and second elec-
tions, he would observe Manager Grandy remove UAW lit-
erature from the wrap stands and deposit it in the garbage.
On the other hand, ‘‘Vote No’’ committee literature was not
so removed and, often, it would remain on the counters all
day long. There were occasions when Grandy would remove
UAW literature while, at the same time, allowing vote no lit-
erature to stay.
According to the credited and uncontradicted testimony of
employee Lindel Salow, a sales employee in the Fairlane
store’s men’s fragrances department, he arrived at work, sev-
eral weeks before the second election, for the start of his
9:45 a.m. shift, at 9:40 a.m. Salow found vote no literature
on the two register counters in his department. In response,
the employee placed UAW literature on one of the counters,
alongside the vote no literature. Later in the morning, his
manager, Nancy Miller, a statutory supervisor, instructed him
to remove the UAW literature, as it was not allowed on the
selling floor. Salow told Miller that vote no literature was
also on the counters, and he pointed it out. Miller merely re-
peated her instruction to remove the UAW literature, saying,
again, that it was not allowed on the floor. Salow complied
with Miller’s directive and removed the UAW literature. The
vote no literature was allowed to remain on the counters.
Employee Willola Gray testified, credibly and without
contradiction, that, in September 1992, when she returned to
work following her illness, Manager Grandy told her that she
knew that Gray was a union supporter. Grandy told Gray that
she could not talk to anyone, or leave her department, or take
personal phone calls or communicate with anyone about the
Union. Grandy told Gray that these restrictions were being
imposed, contrary to normal store practices, because of the
Union and that she, Grandy, did not want telephone calls in
which the Union was discussed.
According to the credited, corroborated, and uncontra-
dicted testimony of former employee Raymond Lichy, in the
period preceding the second election, often, he would report
485DAYTON HUDSON CORP.
10 For the reasons stated at fn. 4, Sneed’s denial is not credited.
to work in the morning to find vote no literature on the sales
counters throughout the store. In his department, such lit-
erature would remain on the counters. On the other hand,
when UAW literature would appear on the same counters, it
was quickly picked up, and thrown away, by Managers
Wozniak, Grandy, Petross, Richardson, David Conn, and
Tony Larkins. Lichy further testified that, before the second
election, Manager Bill Thome, a statutory supervisor, entered
the employee lounge, a nonworking area, and observed that
UAW literature was sitting on some of the tables. Thome
said, ‘‘I see the UAW paper fairy has been here,’’ and he
proceeded to pick up the literature, rip it up, and throw it
away. By contrast, Lichy testified, in September 1992, pre-
ceding the scheduled third election, he observed Manager
Marc Pilibosian, a statutory supervisor, assist an employee in
the distribution of vote no literature on the selling floor. In
this connection, employee Militello credibly testified that, in
July 1991, preceding the second election, he observed such
activity on the part of Manager Sneed on the selling floor
and Manager Thome in the lunchroom.10
Store Manager Woziniak testified that each employee is
provided with a locker in which they are expected to store
their personal items. However, he testified, that rule has not
been rigidly enforced. Lichy, in his testimony, stated that, as
the lockerroom is located at the employee entrance to the
store, and away from the work areas, items stored there are
not easily accessible, for example, newspapers and other
reading material to be used by employees while on break.
Accordingly, many, if not most, employees, store personal
items in areas in the department storerooms. Indeed, some of
the storerooms contain televisions, radios, and hot plates. In
the storeroom connected to his department, Lichy would
place a manilla folder, on top of shirt boxes, into which he
put various items, including, occasionally, UAW literature,
and he placed a rubber band around it.
According to Lichy’s credited and uncontradicted testi-
mony, on May 30, 1991, Manager Tony Larkins, a statutory
supervisor, told him that he could not bring union literature
into the storeroom, and that his personal items were to be
stored in his locker. Lichy responded to Larkins, stating:
I mentioned that, well, people bring all sorts of items
into the storeroom, school books, briefcases, purses,
bags and I mentioned that Brice Rudder (a member of
the Vote No committee) brings a briefcase in every day
and nobody seems to mind that. I said, am I the only
one that is not allowed to bring any items into the store
and put it into the storeroom like everybody else does?
He said, no, you can’t do that, everything has to stay
in your locker.
On the next day, May 31, Lichy again brought his folder
into the storeroom. He was approached by Managers Larkins
and Conn who told him that he was not allowed to bring
union literature into the store, and that he was to put his
things in his locker. Later in the day, Lichy was summoned
to appear in Conn’s office where Conn and Larkins dis-
cussed the same subject. Lichy asked if the new rule was
meant only for him. The employee requested the presence of
the store manager. When Store Manager Wozniak joined the
meeting, Conn stressed to him that it was ‘‘union literature’’
that was in Lichy’s folder. Wozniak told the employee to
leave the folder, and his belongings, in his locker.
Prior to the advent of the Union, employees in Leonard
Militello’s department, men’s tailoring, kept their personal
items in a file cabinet located within the department, but off
the selling floor. The cabinet contains five drawers, one for
use by each of the five full-time departmental employees,
and Respondent placed no limitation on the types of mate-
rials stored there. Indeed, one employee stored ‘‘Slim Fast’’
products there, for sale to other workers, and a blender.
According to Militello’s uncontradicted and credited testi-
mony, in July 1991, Manager Petross told him that he,
Petross, had noticed that the employee had ‘‘union para-
phernalia’’ in his cabinet drawer. Petross told Militello that
he had exactly one-half hour to get rid of it, and that the
drawer was to be used for business-related matters, only.
As shown, above, the record evidence establishes that,
prior to the onset of employee activities on behalf of the
Union, Respondent did not enforce its rules restricting solici-
tation and distribution. When the union campaign began, Re-
spondent instituted a sudden and selective effort at enforce-
ment. It confiscated union literature found on the selling
floor, and/or instructed employees to remove it, while it al-
lowed vote no literature to remain; it banned all union lit-
erature from selling floor areas, other work areas, and, even,
nonwork areas, while it not only permitted, but, also, assisted
in the distribution of, vote no literature on the selling floor;
it told prounion employees that, contrary to normal practices,
and because of the Union, they could not talk to anyone, or
leave their departments, or take personal phone calls or com-
municate with anyone about the Union. Based on this evi-
dence, I find that Respondent began to enforce its rules with
respect to solicitation and distribution in response to employ-
ees’ union activities, and when it did so, it enforced the
rules, often in an overly broad manner, against union solicita-
tions and distributions, only, in violation of Section 8(a)(1)
of the Act.
3. Changes in policies
Employee Vivian Armstrong, who worked as a lead cook
in the Fairlane store’s market foods deli department, testified,
credibly and without contradiction, that, in her department,
the work schedules of the 24 employees were, each week,
posted on a board located at the kitchen entrance. However,
before the second election, the department manager, statutory
Supervisor Suzanne Bicknese, ceased to follow this practice.
Instead, and without explanation, she gave each department
employee, weekly, a piece of paper containing his or her
own work schedule, only. Following the election, Bicknese
returned to the former practice.
In the men’s suit department, employee Leonard Militello
testified, the practice had been to place the schedules, for all
employees in the department, some 2 to 3 weeks in advance,
in a notebook. The notebook was kept in the department and
was available to employees who could check each other’s
schedules. However, according to Militello’s further credited
and uncontradicted testimony, some 4 weeks before the sec-
ond election, this practice ceased and the schedules were re-
moved from the selling floor. At that time, the department
employees were advised by Manager Petross that, thereafter,
they would receive, each week, a copy of an individual
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 There is a conflict in the record evidence concerning whether
management officials, before the second election, also monitored and
interrupted the conversations of known vote no supporters.
schedule, only, for the following week. For the men’s suit
department, this change in policy was short-lived. Several
days after it was instituted, a department employee pointed
out to Petross that, in that particular department, there was
a business need, because of customer inquiry, for the em-
ployees to know each other’s schedules. Petross obtained the
consent of the store manager, Wozniak, to rescind the policy
change as applied to that department.
Patricia McKay, an employee in the Fairlane store china
department, testified, credibly and without contradiction, that,
in mid-October 1992, before the scheduled third election, she
discussed with a fellow employee certain details of Respond-
ent’s vacation policy, as contained in its employee handbook
which is distributed to all employees. The department man-
ager, Derinda Olszewski, a statutory supervisor, interrupted
the conversation, and ended it. She then called McKay aside,
for a private talk, and told her, in a loud tone of voice, that
she was not to quote store policies to anyone. Prior to this
incident, employee discussion of such matters had not been
prohibited.
As shown, above, Respondent engaged in changes in store
policies, affecting terms and conditions of employment, dur-
ing preelection periods. The changes occurred without expla-
nation and in the midst of other, massive, violations of the
Act. The record evidence does not even suggest the possibil-
ity that there were reasons for the changes which were unre-
lated to the employees’ union activities. I therefore find and
conclude that the policy changes were violative of Section
8(a)(1) of the Act.
4. Alleged surveillance, interrupted conversations,
following, and monitoring of employees
According to the credited and uncontradicted testimony of
employee Militello, a few days prior to the second election,
he and fellow employees Renfrow, Rowe, and Peters en-
gaged in leafleting activities, by the employee entrance into
the Fairlane store, an outside entrance, distributing UAW
leaflets to entering workers. The employees’ activities in
these regards were videotaped by agents of Huffmaster, Inc.,
a security service engaged by Respondent in late July 1991.
Supervisor Petross and other managers stood at the door and
observed this.
Militello also testified that, in the weeks preceding the sec-
ond election, managers from others of Respondent’s stores
were brought into the Fairlane store and assigned to the dif-
ferent departments. In this time period, a Huffmaster agent,
Brian Cleary, began to follow Militello through the store,
holding a cam corder pointed at the employee. Thus,
Militello testified, wherever he went, inside or outside the
store, Cleary would follow, whether the employee was work-
ing or on break. Sometimes Cleary walked two steps behind
Militello; at other times he stood shoulder to shoulder with
the employee. At one point, Cleary told him that ‘‘I am per-
sonally assigned to you, I go everywhere you go.’’ Indeed,
he did, even following Militello to the restroom twice each
day.
According to Militello’s further testimony, starting some 3
weeks before the second election, other managers, including
Sneed and Petross, followed him, everywhere he went in the
store, trailing behind him by some 10 or 15 feet. He ob-
served that other employees who, concededly, had been iden-
tified by Respondent as employee leaders in the Union’s
campaign, were also followed by managers, throughout the
store, namely, Raymond Lichy, Glenna Gildersleeve, and
Vera Hawkins.
In the weeks before the second election, Militello testified,
Sneed, Petross, and other managers would step in so as to
overhear the employee’s conversations with customers, and
would get close enough to overhear Militello’s telephone
conversations when he used one of the phones at the wrap
stand. Also, they would interrupt his conversations with fel-
low employees. After the second election, management re-
turned to the policies that existed prior to the advent of the
Union, and the above-described occurrences ceased.11
According to the credited and uncontradicted testimony of
employee Lichy, the employees, prior to the start of the
UAW campaign, were allowed to converse with each other,
on worktime, if they had neither customers to wait on nor
a special task to perform. Also, an employee on break was
permitted to visit another department, spend breaktime there
and converse with an employee working in that department.
Such conversations were not interrupted.
Lichy testified that, on May 24, 1991, on his way out of
the store to have lunch, he stopped to speak to employee
Agnes Walsh, at her work station. Manager Grandy ap-
proached, asked, ‘‘[W]hat’s up’’ and, then, stood there and
listened. There were no customers in the area. In July, Lichy
further testified, he, during his break period, walked into the
men’s suit department, as he had done in the past, and sat
down on a chair. Manager Petross approached and asked
Lichy if he was on break. When Lichy said, yes, Petross told
him that ‘‘I don’t want to see you taking your break in my
department ever again.’’ Lichy left.
During the last week in July 1991, Lichy, along with
Walsh, Militello, Hudson’s employees who worked at other
stores, and one or more people employed as organizers by
the UAW, passed out leaflets at the employee entrance to the
store. Their activities were recorded by two of the
Huffmaster agents, using cam corders. Later, when they
walked into the store, they were filmed by the store security
manager, statutory Supervisor Brenda McNamara.
Lichy also testified that, within a few weeks of the second
election, the number of managers in the Fairlane store dou-
bled, as individuals were brought in from other Hudson
stores. Thereafter, there were two to four managers, each
day, assigned to stand in Lichy’s department and to watch
him all day long. Similarly, before the scheduled third elec-
tion, there was a large increase in the number of managers
at Fairlane. At that time, an individual named Paul LaBlanc
was assigned by Hudson’s to station himself in the corner of
Lichy’s work area and, for 4 to 6 hours each day, to stand
there and watch him. When Lichy moved out of his work
area, LaBlanc would follow right behind him. Manager
Kevin Debri, a statutory supervisor, told Lichy that managers
were, indeed, watching him.
Between the time of the second election in August 1991,
and the time of the scheduled third election in October 1992,
Lichy testified, statutory Supervisor Cedric Jackson, a group
manager, ‘‘would come down and stand on the aisle way
looking at me and he would grunt and snort.’’ Jackson would
487DAYTON HUDSON CORP.
make noises, for long periods of time, as he looked at Lichy,
at work, and, then, he pretended to laugh. At other times,
when Jackson saw Lichy, he would come very close, some-
times brushing Lichy, and make noises. On occasions, Jack-
son would stick his elbow out and poke Lichy, or he would
bump into him. Such incidents, Lichy testified, occurred at
least once each day. Jackson, in his testimony, denied that
any of the foregoing had ever occurred. For the reasons stat-
ed at footnote 4, the denial is not credited.
Fairlane store employee Janetta Harrison, who regularly
wore union insignia at work, testified that, shortly before the
second election, on her break, she entered the mall and
stopped at the pit area, a recessed rest area by Hudson’s first
floor mall entrance. While seated in the pit talking to fellow
employee Tania Collins, and to a UAW organizer, Harrison
looked up and saw that they were being videotaped.
Employee Willola Gray testified that, before the second
election, each time she went to lunch, took a break, or went
to the bathroom, she was followed by one or more of the
managers. Indeed, one manager would follow her into the
bathroom. Gray was followed, closely and in lock-step, to
and from her department. Prior to the advent of the Union,
employees were not followed, and they freely conversed with
each other, and made personal phone calls at the wrap
stands, in front of managers.
Fairlane store employee Scott McCliment, who wore a
union pin to work every day, testified that, prior to the union
campaign, there was no limitation on where employees could
take their breaks, and worktime conversations between em-
ployees were not interrupted. However, prior to the second
election, and again, before the scheduled third election, man-
agers interrupted and/or monitored his conversations with co-
workers.
Employee Lindel Salow, who wore union insignia to work
each day, testified that, shortly before the second election,
while he, Salow, was at his work station in the men’s fra-
grances department, a Huffmaster agent pointed a cam corder
at him, and videotaped Salow for 15 or 20 seconds, and,
then, left. Within the hour, Salow waited on two individuals
who were wearing jackets that had the UAW insignia em-
broidered on them. The Huffmaster agent returned and
videotaped Salaw and the customers, until the customers left.
Employee Patricia McKay, who wore union buttons to
work, testified that, before the second election, managers
would monitor her conversations with fellow employees by
approaching and standing next to them. Further, she testified,
on one occasion, she was videotaped while seated alone in
the pit area, reading a UAW leaflet which had just been
handed to her by a leafleter. The camera then returned its
focus to the leafleters. McKay was also videotaped on the
frequent occasions when she, outside the employee entrance,
engaged in leafleting for the Union, along with other em-
ployees, and, at times, UAW organizers.
According to the testimony of employee Caroline Lakoff,
who worked as a salesperson in the Fairlane store’s lamp de-
partment, prior to the scheduled third election, managers
monitored her conversations with coworkers, by approaching
and listening, and, also, similarly, monitored her telephone
conversations. Prior to the advent of the Union, she testified,
the employees used the wrap stand phones for business and
for personal calls.
Cathran Vickroy, a Fairlane store gift wrap department
employee who wore UAW pins to work each day, testified
that, in September 1992, before the scheduled third election,
she, on her lunch hour, shopped at the store with her brother.
As they went from department to department, Vickroy and
her brother were followed by statutory Supervisor Elizabeth
Richardson, and two other individuals who were with her.
Employee Louise Lasiter, who worked in the Fairlane
store’s men’s sportswear department as a salesperson, wore
union insignia at work. She testified that, on or about August
5, 1991, while seated alone in the pit area, she was
videotaped by a Huffmaster agent. Later that day, while talk-
ing to Irene Kowal, an organizer employed by the UAW, in
the pit area, Lasiter was videotaped, again, for a 10-minute
period.
Glenna Gildersleeve, a Fairlane store cosmetics department
sales employee, was, the parties stipulated, an ‘‘open and no-
torious’’ supporter of the UAW. She testified that, prior to
the scheduled third election, her manager, statutory Super-
visor Nancy Miller, would follow her, within 4 to 5 feet, ev-
erywhere in the store that she went, including into the lava-
tory. Rossalyn Fuhr, a sales employee in the Fairlane store’s
men’s updated sportswear department, testified that, during
the week preceding the second election, she observed statu-
tory Supervisors Wozniak, Conn, and Petross follow em-
ployee Militello, from close behind him, and, also, she saw
Supervisor Whigham follow employee McCliment about the
store. During September 1992, Fuhr testified, preceding the
scheduled third election, she, herself, was followed from the
store to the parking lot, back into the store, and back out to
the parking lot by Supervisors Conn, Brenner, and Petross.
The foregoing testimony of employees Harrison, Gray,
McCliment, Salow, McKay, Lakoff, Vickroy, Lasiter,
Gildersleeve, and Fuhr is uncontradicted and is credited. In
addition, I note the testimony, by Militello and others, that
Respondent’s security personnel, in the period before the sec-
ond election, enforced more rigidly against union supporters
than vote no committee members, the policy of random in-
spection of employee packages going into, or out of, the
store. As such testimony was based on impressions, only, I
have not relied on it.
Henry Bechard, Respondent’s labor relations manager for
the Detroit department stores, testified that the impetus for
Respondent’s retention of Huffmaster, and the utilization of
video cameras at the Fairlane store, was the activities of the
UAW at their rally at Respondent’s Detroit area, Oakland
store, on July 20, 1991. According to Bechard, at 10 a.m. on
that day, pursuant to previous announcement, some 700 peo-
ple arrived, in vans, cars, and on foot, into the Oakland mall,
parking facility, and grouped together. That assemblage in-
cluded UAW and Teamsters union officials, and:
They all gathered together. There were bull horns, there
were speeches made, they all clasped their hands to-
gether and were singing Solidarity Forever, cheering,
shouting. It was pretty impressive.
Following the speeches and the singing, which lasted less
than an hour, Union Official Bob King directed everyone to
enter the store. At that point, Bechard testified:
[T]hey all came charging through the front entrances
and first surrounded the piano player who was on the
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 On July 28, 1991, 1 week after the Oakland store rally, the vote
no committee staged a brief rally outside the Fairlane store. This was
met by a UAW-sponsored counterdemonstration, and the two groups
exchanged heated words.
13 Brunswick Hospital Center, 265 NLRB 803 (1982); Sunbelt
Mfg., 308 NLRB 780 (1992); F. W. Woolworth Co., 310 NLRB
1197 (1993).
lower level by the escalator. . . . We had some em-
ployees and managers passing out balloons at the front
entrance and we were giving balloons to those folks as
they came through the door. Some of the customers
were pushed out of the way . . . and all of a sudden
you started hearing balloons popping and kids scream-
ing and pretty general mayhem . . . [they stayed for]
about three to four hours . . . did a lot of things. Rode
in groups up and down the escalators, roamed from de-
partment-to-department on every floor. Went into the
restaurant and they were making purchases and paying
them with pennies, nickels and dimes. Backing up our
lines, generally wising off to some of the sales consult-
ants and they had a difficult time determining who was
the managers or not, but just pretty much causing a lot
of mayhem. In the restaurant, a group of them went in
there, I would say twenty or thirty, paid with pennies
and dimes, got up and sang Solidarity Forever. A lot
of the customers left that area. Went into our elec-
tronics department and turned up all the amplifiers,
turned the sound up on all the electronic equipment so
when the power did kick on, it was really loud. Just
generally a lot of mayhem . . . just four hours of just
generally mayhem, people wandering around up and
down the escalators, a group of them singing Solidarity
Forever, marching through departments, making pur-
chases. They also came back, they returned some of
those goods and demanded payment, as well. They
weren’t long-lasting purchases. I think what I could see
was designed to jam up our lines and upset customers.
According to Bechard’s further testimony, in anticipation
of the Oakland store rally, he, prior to the event, engaged
Huffmaster so as to ‘‘beef up our security.’’ As a result, on
the day of the rally, there were 16 Huffmaster agents present,
using 12 video cameras, and they videotaped people moving
about the store. The resultant films were reviewed by
Bechard and others of Respondent’s officials. Yet, despite
the increased number of security agents present at Oakland,
the filming of the movements of the ‘‘visitors’’ as they went
about the store and the general conditions of ‘‘mayhem’’
which they allegedly created, there was not a single arrest
made that day and Respondent did not file any police re-
ports, even after its review and study of the films.
Bechard also testified that there was media coverage of the
rally and that, on a newscast, Union Official King announced
that there would be further rallies. In addition, according to
Bechard, a newscaster, quoting a UAW source, said there
would be further activity until Hudson learned their lesson.
In response, Bechard decided to increase security at Fairlane,
and Huffmaster was retained to supply two to four people at
that store, to stop ‘‘mischief.’’
There were no UAW rallies at the Fairlane store after the
July 20, rally, at the Oakland store.12 Nor were any such ral-
lies ever planned or announced. No police reports were filed,
and no arrests were made, as a result of the extensive filming
at Fairlane, and the study and review of such films by Re-
spondent. Bechard, in his testimony, pointed to three inci-
dents of ‘‘mischief’’ at the Fairlane store, namely, a threat
by an individual who was walking in the store with King,
directed at Supervisor David Conn, to ‘‘kick your fucking
ass’’; the appearance of UAW stickers on mannequins and
display counters; the action of a leafleter, standing in the
mall, who, on one occasion, yelled ‘‘vote UAW’’ into the
store.
Paul Strickland, Respondent’s corporate director of em-
ployee relations, testified that, preceding the second election,
additional managers were brought into the store in response
to increased UAW activity, in particular, an escalating num-
ber of UAW officials and members who were entering the
store. Also, in response, ‘‘we tightened up on our rules in
the store, particularly in regard to people wandering out of
their areas,’’ so that employees would stay at their assigned
posts and serve customers. In an effort to prevent campaign-
ing on paid time, Strickland testified, employees were fol-
lowed, even to the restrooms, and were told not to use the
phones for personal calls. Security personnel were reminded
to check all employee parcels coming into the store and, in
general, there was a ‘‘tightening up’’ on those rules.
Store Manager Wozniak, on the other hand, testified that
the instructions to security personnel with respect to check-
ing employee parcels was not changed after the onset of
union activities and that random inspections continued, as be-
fore. Wozniak also testified that, while, prior to the advent
of the Union, it was the ‘‘understood policy’’ that the store
phones were to be used for business purposes, only, he knew
that employees used the phones for personal calls and they
were not disciplined for doing so.
It is well established that, absent legitimate justification,
an employer’s videotaping or photographing of its employ-
ees, while they are engaged in protected concerted activities,
constitutes unlawful surveillance, in violation of Section
8(a)(1) of the Act. In particular, the videotaping, during an
election campaign, of employees lawfully and peacefully en-
gaged in handbilling at a gate or store entrance, where such
videotaping reveals whether profferred campaign literature is
accepted or rejected, reasonably tends to intimidate. When an
employer’s monitoring of such open, public union activities
goes beyond ‘‘mere observation,’’ as in the case of surveil-
lance by photographing or videotaping, and the employer
seeks to justify its actions on the ground that it reasonably
anticipated misconduct, it must provide ‘‘solid justification’’
for its resort to the anticipatory photographing. The belief
that ‘‘something might happen’’ is not sufficient to justify
the conduct in view of its tendency to create fear among em-
ployees of future reprisals.13
Here, Respondent videotaped employees while they were
peacefully and lawfully engaged in leafleting activities, out-
side the employee entrance to the store, during the election
campaigns. It did so when the employees were accompanied
by agents of the Union, and it also videotaped employees
when they leafleted without the presence of union agents.
Such videotaping revealed which employees accepted, and
which rejected, profferred literature. Respondent also
videotaped employees who supported the Union when they
sat alone in the mall, when they conversed in the mall with
489DAYTON HUDSON CORP.
union agents and, even, when they serviced customers inside
the store.
In addition to the videotaping, Respondent, as shown
above, engaged in other serious acts of surveillance and in-
timidation. It followed the leading union activists, into and
out of the store; and into and out of the bathrooms; into and
out of the parking lot. It engaged in sudden and close super-
vision of supporters of the Union, staring at them, and mak-
ing intimidating noises directed at them, for long periods. At
the same time, during preelection periods, Respondent aban-
doned previous policies and began a practice of monitoring
and interrupting employee conversations and telephone calls.
Respondent engaged in the foregoing inhibiting and sti-
fling conduct in an atmosphere, so far as this record shows,
devoid of mischief on the part of the employees, and, or, the
Union, at the Fairlane store. Indeed, Respondent seeks to jus-
tify its actions at Fairlane by reference to the union-spon-
sored rally at the Oakland store, and the claim that that rally
resulted in ‘‘mayhem.’’ In rejecting this defense, I note,
again, that the Union did not sponsor a rally at Fairlane, nor
did it ever announce or plan such an event. Moreover, in
light of the fact that no arrests were made at Oakland, and
that Respondent, after reviewing its extensive films of that
rally, decided not to file a police report, I am of the view
that the term ‘‘mayhem,’’ as contained again and again in
Bechard’s uncorroborated testimony, perhaps, does not accu-
rately describe what happened there. In any event, whatever
occurred at the Oakland rally did not provide justification for
the daily, constant acts of intimidation at Fairlane, on the
theory that ‘‘something might happen’’ there. In this connec-
tion, for example, I am not persuaded that Respondent had
a legitimate need to follow Fairlane employees into the rest-
rooms in order to head off mischief at some future rally that
was not planned, not announced, and which never occurred.
Nor is there any evidence that campaigning ever occurred in
the restrooms, on paid time, justifying action by Respondent.
I conclude that Respondent, by its acts of surveillance, in-
cluding videotaping, interrupting employee conversations,
and monitoring and following employees, as detailed above,
violated Section 8(a)(1) of the Act.
5. Issuance of reprimands
a. Vivian Armstrong
Armstrong testified that she worked on Sunday, July 28,
1991, performing her duties as a lead cook. Specifically, she
spent the day frying 60 pounds of chicken, and preparing 10-
to 15-pound bowls of salad, as assigned. The next 2 days,
Monday and Tuesday, July 29 and 30, were her days off, and
Armstrong visited the store on Tuesday, July 30, to exchange
some merchandise. She wore a jogging suit, and a shirt read-
ing ‘‘Vote Yes UAW.’’ The employee was approached by
her manager, Suzanne Bicknese, who told her that she,
Bicknese, did not like Armstrong’s shirt. Thereafter,
Bicknese, and, later, Store Manager Wozniak, followed the
employee about the store.
On the next day, Wednesday, July 31, Armstrong returned
to work and she asked Bicknese why she had followed her.
Bicknese said that she could follow Armstrong, and she
threatened to write up the employee for questioning it. Arm-
strong told her to do what she had to do. A short while later,
Bicknese called Armstrong into her office and showed her a
writeup for failure to make 60 sandwiches on Sunday, July
28. Armstrong told Bicknese that she had not been assigned
to make sandwiches, and she would not sign the writeup. At
trial, Armstrong again insisted that, on the day in question,
she had not been asked to make sandwiches.
In light of Armstrong’s credited, uncontradicted testimony,
it is clear that it was the employee’s UAW shirt, worn on
July 30, and not her work performance on July 28, that was
of concern to Bicknese. One day after telling Armstrong that
she, Bicknese, did not like her shirt, and then, following the
employee about the store in concert with the store manager,
Bicknese gave Armstrong a writeup for failure to perform
duties that were never assigned. The discipline was in obvi-
ous retaliation for the demonstrated union sympathies of this
employee, and would not have occurred absent the protected
conduct. I find that Respondent, by Bicknese, violated Sec-
tion 8(a)(3) of the Act when, on July 31, 1991, it issued a
written reprimand to Armstrong.
b. Eric Gawura
Gawura wore union pins to work. For a long period of
time, he had been in the habit of working crossword puzzles,
at his wrap stand, in the absence of customers. This was
known to the managers and, on previous occasions, Man-
agers Grandy and Petross had told him to stop. He was not,
however, reprimanded.
A few days before the August 9, 1991 election, at a time
when there were no customers in the area, Gawura, at his
work station, was doing a puzzle. He was approached by the
Eastland store manager, Vince Giacobbe, who asked Gawura
if he were working a crossword puzzle. The employee said,
yes, and he put it away. Giacobbe looked at Gawura’s union
pin and then said, in a very loud tone of voice, ‘‘[Y]ou are
doing a crossword puzzle on my time? Do you think if the
union were here, you would be able to do a crossword puz-
zle?’’ Grocobbe told Gawura not to let him catch the em-
ployee doing it again.
The foregoing is based on the credited and uncontradicted
testimony of Gawura. That testimony shows that, by
Giacobbe’s choice of words, he made clear that the verbal
reprimand was the result of Gawura’s union sympathies and
that, absent such sympathies, the employee’s conduct, as in
the past, would not have resulted in a reprimand. Accord-
ingly, I find that, in orally reprimanding Gawura, before the
second election, Respondent, by Giacobbe, violated Section
8(a)(3) of the Act.
c. Leonard Militello
Militello testified that, on July 18, 1991, on the selling
floor, he and Manager Sneed discussed certain statements
contained in a UAW leaflet. There were no customers in the
area. Manager Petross joined the conversation and, at that
point, Militello testified, the discussion charged from pleas-
ant to loud and heated, and the subject matter broadened to
include, generally, the veracity of the commentary contained
in both union and employer publications. When the two su-
pervisors laughed at an argument made by Militello, the em-
ployee looked at Petross, said, ‘‘[Y]ou are full of shit,’’ and
walked away. It is undisputed, as Militello testified, that
other employees, in the presence of managers, use this and
similar language. Employees have not been told that such
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
speech is not permissible. Indeed, Petross has used such
words in conversations with employees. Nonetheless, on July
19, Petross showed Militello a writeup for his conduct on the
previous day, namely, yelling in front of customers, challeng-
ing Petross’ ability and commitment as a manager, and tell-
ing Petross that ‘‘you’re full of shit.’’
Sneed, in his testimony, claimed that there were customers
present when the conversation occurred, and that it was
Militello’s voice, and only his, that got louder during the
course of the discussion. However, Sneed further testified
that he could not remember what the conversation was about.
Petross testified that the discussion took place in the pres-
ence of customers; that Militello was the only one to raise
his voice; that the employee ignored Petross’ requests that he
keep his voice down; and that Militello told Petross that he
was ‘‘full of shit’’ in a loud tone of voice. Petross claimed
that he gave Militello the warning because he had been loud,
within earshot of customers, and had directed his curse
words at the supervisor, personally.
For the reasons stated at footnote 4, I credit Militello’s tes-
timony concerning the July 18 event, and find that his dis-
cussion with Sneed and Petross occurred outside the presence
of customers, and became loud and heated only after Petross
joined the conversation. I also note that the discussion, held
shortly before the second election, occurred in the midst of
massive violations of the Act by Respondent, and that much
of the unlawful conduct was directed, individually, at
Militello. For example, it was in this time period that Re-
spondent began to videotape Militello’s activities and, by
Sneed and Petross, followed the employee wherever he went
in the store. The conversation between Militello and the su-
pervisors dealt with the inherently emotional subject of leaf-
let veracity, and the epithet used by the employee was a mild
one, and not at all out of line with the language commonly
spoken in the store by employees and supervisors. To say,
as claimed by Petross, that, in context, Militello’s language
challenged the supervisor’s commitment and ability, and was
directed at him personally, is to strain and drain the words
beyond all logic.
On the state of this record, I can find no explanation for
the discipline meted out to an employee for language and ac-
tions well within the range of what was normally tolerated,
except this: Militello was known to Respondent as one of the
leading union activists, and this Respondent was in the midst
of a massive campaign of unlawful conduct designed to de-
feat the Union. In light of the General Counsel’s strong
prima facie case, and Respondent’s failure credibly to show
that it would have disciplined Militello even absent his pro-
tected activities, I find and conclude that Respondent, by
Petross, violated Section 8(a)(3) of the Act by issuing a writ-
ten warning to Militello because of his July 18, 1991 con-
duct.
Militello also testified that, late in July, he was advised by
employees Lucy Ene and Paulina Cvetanovski, women from
eastern European countries who worked in the alterations de-
partment, that they had been required by Manager Sneed to
wear antiunion buttons on their clothing. Militello told them
that they did not have to wear the buttons and, 2 days later,
he left a ‘‘just say yes’’ button for Cvetanovski, at her ma-
chine. Later that day, Militello was called into Sneed’s office
and told by the supervisor that he, Sneed, had learned that
Militello had been harassing and threatening the women.
Militello stood up and said, ‘‘Reggie . . . I am not going to
let you do this to me,’’ and he walked out. Sneed followed
Militello back to his work station and told him to stay out
of the alterations room unless he had business to conduct in
there. Later that day, or the next day, by memorandum dated
July 26, 1991, Militello received from Petross a written
warning for insubordination to Sneed, by walking out on
him; harassment of fellow employee Cvetanovski; and solici-
tation in violation of the no-solicitation rule.
Sneed, in his testimony, stated that Ene and Cvetanovski
had told him that they were afraid of Militello because he
was upset that they were wearing pro-Company pins, and he
had entered their room to lay down a ‘‘vote yes’’ pin. When
he, Sneed, attempted to discuss the matter with Militello, the
employee refused, and walked out. Sneed reported the matter
to Petross, Militello’s manager. Petross testified that, in addi-
tion to the report he received from Sneed, he, Petross, had
gotten a complaint directly from Cvetanovski, that Militello
had solicited her to wear a UAW button. Petross decided to
give Militello a written warning for soliciting Cvetanovski
and Ene to wear UAW buttons while he and they were on
working time, harassing the women, and refusing to meet
with Sneed about the matter.
In resolving this issue, it is sufficient to note that the
warning, on its face, shows that it was imposed, in substan-
tial part, for violation of the no-solicitation rule. I have pre-
viously found that Respondent violated the Act by its dispar-
ate enforcement of the no-solicitation and no-distribution
rules. Accordingly, the rules, as enforced, were invalid, and
the discipline of Militello, for violation of an invalid rule,
was unlawful. I conclude that, on July 26, 1991, Respondent,
by Petross, violated Section 8(a)(3) of the Act by the written
warning issued to Militello.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Department Store Division of the Dayton Hudson Cor-
poration is an employer engaged in commerce, and in oper-
ations affecting commerce, within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By issuing reprimands to Leonard Militello Jr. on July
18 and 26, 1991, to Vivian Armstrong on July 31, 1991, and
491DAYTON HUDSON CORP.
to Eric Gawura in early August 1991 because of their union
activities, Respondent has engaged in unfair labor practice
conduct within the meaning of Section 8(a)(3) of the Act.
4. By threatening employees with store closure, store relo-
cation, loss of jobs, and more onerous working conditions if
they select the Union to represent them, and by informing
employees that it would be futile for them to opt for union
representation, Respondent has engaged in unfair labor prac-
tice conduct within the meaning of Section 8(a)(1) of the
Act.
5. By coercively interrogating employees regarding their
union activities and sympathies, Respondent has engaged in
unfair labor practice conduct within the meaning of Section
8(a)(1) of the Act.
6. By impliedly promising employees improvements in
their wages, hours, and working conditions to dissuade them
from supporting the Union, Respondent has engaged in un-
fair labor practice conduct within the meaning of Section
8(a)(1) of the Act.
7. By asking an employee to remove his union button, Re-
spondent has engaged in unfair labor practice conduct within
the meaning of Section 8(a)(1) of the Act.
8. By altering the manner of distributing work schedules
to employees, restricting employee conversations, and chang-
ing other work rules and practices because of employee ac-
tivities on behalf of the Union, Respondent has engaged in
unfair labor practice conduct within the meaning of Section
8(a)(1) of the Act.
9. By disparately enforcing its written rules regarding so-
licitation and distribution against employees engaged in such
activities on behalf of the Union, and by requiring employees
to remove union literature from stockrooms, drawers, and
other locations available to them for keeping nonwork-related
items, Respondent has engaged in unfair labor practice con-
duct within the meaning of Section 8(a)(1) of the Act.
10. By coercively surveilling employees, in response to
employee activities on behalf of the Union, including
videotaping employee movements and actions, watching and
following employees, interrupting their conversations, and
monitoring their telephone calls, Respondent has engaged in
unfair labor practice conduct within the meaning of Section
8(a)(1) of the Act.
11. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
12. In light of Respondent’s failure to comply with the
terms of the June 23, 1992 settlement agreement, in Cases
7–CA–32279 and 7–CA–32433, as shown by its continued
pattern of unfair labor practice conduct in the summer and
fall of 1992, the Regional Director properly set aside that
agreement.
13. Respondent has not otherwise violated the Act, as al-
leged in the consolidated complaint.
[Recommended Order omitted from publication.]