Filene'S Basement Store

National Labor Relations Board - Board Decisions

Jul 30, 1990

299 N.L.R.B. 183 (N.L.R.B. 1990)

FILENE'S BASEMENT STORE •
183
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 22, 1989, Administrative Law
Judge Robert G Romano issued the attached deci-
sion The General Counsel filed exceptions and a
supporting brief The Respondent filed cross-excep-
tions and a supporting bnef
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, 2 and
conclusions only to the extent consistent with this
Decision and Order
The judge found, inter gm, that the Respondent
did not violate Section 8(a)(3) and (1) of the Act
when it discharged employee Edward Konicki
about September 2, 1987 Applying a Wright Line
analysis, 3 although he found that the General
Counsel had established a prima facie case that
Konicla's union activity was a motivating factor
prompting his discharge, the judge concluded that
the Respondent had met its burden of establishing
that Konicki would have been discharged even in
the absence of his union activity The General
Counsel excepts to the judge's conclusion that the
Respondent rebutted the pnma facie case The Re-
spondent cross-excepts to the judge's finding that
the General Counsel established a prima fame
case 4 For the reasons set forth below, we reverse
the judge and find that the Respondent's discharge
of Koniclu violated Section 8(a)(3) and (1)
'The Respondent also filed a motion to stnke the General Counsel's
exceptions for failure to comply with the specificity requirements of the
Board's Rules and Regulations We find that the General Counsel's ex-
ceptions and bnef sufficiently designate the General Counsel's points of
disagreement with the judge's decision Accordingly, we deny the Re-
spondent's motion
2 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
3 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Or
1981), cert denied 455 U S 989 (1982), approved in NLRB v Transporta-
tion Management Carp, 462 U S 393 (1983)
4 The parties have not excepted to any other portion of the judge's de-
cision
Soon after the Respondent opened its Auburn
Distribution Center in April 1987, 5 the Union
began attempts to organize that facility The
Union's organizing campaign became overt about
July, although the Respondent had been aware of
the Union's efforts prior to that time
Edward Komcki was employed as a utility
worker at the Auburn facility when it first opened
in April After the facility opened, utility workers
were assigned to a "home base" in one of several
departments Although assigned to a home base,
workers could be reassigned or "flexed" to other
departments depending on business demands
Edward Kamel, the Respondent's operations man-
, ager, testified that it was the Respondent's policy
to try not to flex the same employee on consecu-
tive days
On August 5, Komcki was flexed from his home
base m the bulk department to the reserve depart-
ment Rather than accept this flex assignment,
Komcki quit Komcki went home, thought about
his decision, and concluded that he had made a
mistake by quitting An August 6 meeting was ar-
ranged between Komcki, Steven Krauth, Auburn
facility manager, and Karen Linden Young, person-
nel manager, to discuss why Komcki had walked
out As credited by the judge, during this meeting,
Krauth mentioned to Komclu that Komclu had not
been reading the Respondent's "letters" regarding
the union Following a brief exchange, Komcki
said
I just want to be left alone I want to do my
job I want to do my job well I don't want to
read the Company literature I don't want to
read the Union literature I don't want to read
anything I just want to be left alone to do my
job
Komcki was thereafter permitted to return to
work on August 7 after signing a letter which
stated
On August 5, 1987, I quit without notice be-
cause I was asked to work in the Reserve De-
partment
I am requesting to be reinstated to my
former position as Utility Worker and I under-
stand and accept that I may be flexed from
time to time
I will accept and cooperate with manage-
ment regarding these reassignments
After his return, Komclu's home base was in the
bulk department
5 All dates are in 1987 unless otherwise indicated
Filene's Basement Store, Division of Federated De-
partment Stores and Local 1445, United Food
& Commercial Workers International Union,
AFL-CIO. Case 1-CA-24958
July 30, 1990
DECISION AND ORDER
299 NLRB No 23
184

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About August 15, Kamel gave Konicki a flex as-
signment to work on the dock According to
Kamel's credited testimony, when Kamel told
Komcki that he would be working on the dock,
Komcki replied, "Me, down the dock?" Komcki
then walked away from Kamel toward the dock
with his head shaking and his hands "flying" in the
air Komcki worked on the dock as instructed and
Kamel did not discipline Komcki or report this in-
cident to supenors
On August 25, Komcki was given a handout by
union organizers handbillmg outside of the Auburn
facility On arriving to work on August 26, Kon-
icki parked his truck close to the employee en-
trance to the facility and placed the union handout
on the truck's window As a result of his parking
the truck near the entrance, the union handbill was
visible to persons entering or leaving the building
When he reported to work that day, Komcki
was immediately told to report to Krauth Krauth,
who had never previously assigned work to Kon-
iclu, assigned Komcki and a temporary employee
to put up a tent outside the building The tent was
used as a covering for two employee meetings
hosted by the Respondent's senior vice president,
John Tempesta Krauth also instructed Komclu to
attend the first of the scheduled "voluntary" meet-
ings During the meeting Komcki attended, Tem-
pesta told employees that "most" of the union em-
ployees were "gone "6 After the first meeting,
Krauth assigned Komcki to clean up around the fa-
cility, take inventory, and then take down the tent
On his arrival to work on August 27, Komcki
was again told to report to Krauth for his work as-
signment Krauth assigned Komcki to conduct an
inventory on the lower floor of the facility, an area
apart from the other employees Komcki worked in
this area on August 27 and 28 7
On August 31, Komcki's next workday, Supervi-
sor Greg Manning assigned Komcki to work on
the dock As Komcki walked toward the dock to
begin work, Kamel came upon Komcki and also
told him that he would be working on the dock
Komcki replied, "I'm no cloche" When Kamel
"reminded" Komcki about the letter Komclu had
signed, Komclu responded, "Don't give me that
shit" After this exchange, Konicki went to the
dock as instructed Komcki worked on the dock
August 31 and September 1
Kamel reported this August 31 incident to Per-
sonnel Manager Young, who contacted Federated
Department Store officials After internal discus-
9 Neither the employee meetings nor Tempesta's remarks were alleged
to be unlawful
1 Komclu worked with a temporary employee for the first half-day,
but thereafter worked alone
mons, Konicki was terminated on September 2 for
"insubordination"
Initially, we note, as did the judge, that the Gen-
eral Counsel has established a strong pnma facie
case that Komclu's September 2 discharge, follow-
ing closely after Komcki displayed the union hand-
bill on his truck, was motivated by Komckes pro-
tected union activity 8 However, the judge ulti-
mately concluded that Komclu's August 31 re-
sponse to Kamel was "more than was allowable for
impulsive behavior," noting that Kamel's com-
ments to Komcki had not been provocatively
made In our view, the judge failed to give proper
weight to the credited record evidence and inap-
propriately ignored the circumstances surrounding
Komclu's unusual consecutive flex assignments
The Respondent knew Komcki did not like being
flexed to other departments, as Komcki had quit
over such an assignment on August 5 With this
knowledge, and contrary to its admitted policy, the
Respondent flexed Komcki on 4 consecutive days
prior to the August 31 incident Significantly, one
of these assignments involved an instruction that
Komcki attend a "voluntary" employee meeting
where the Respondent's vice president noted that
"most" of the union supporters were "gone"
When Komcki responded to the fourth consecu-
tive flex assignment by expressing his dissatisfac-
tion, Kamel "reminded" Komcki about the rein-
statement letter in which Komcki agreed to coop-
erate, in effect reminding Komcki that he was
powerless to prevent what could have been per-
ceived to be harassing flex assignments It was this
"reminder" that immediately prompted Komclu's
intemperate response The Respondent has offered
no explanation for why Komcki was flexed imme-
diately after he engaged in protected union activity
or why Komcki was flexed on 4 consecutive days
contrary to the Respondent's policy 9
The record also contains substantial evidence es-
tablishing that the Respondent treated Koniclu's
August 31 response differently from similar inci-
dents The first such incident involved Komcki
himself As noted above, in mid-August, after
Kamel gave Konicki a flex assignment to work on
the dock, Konicki responded, "Me, down the
dock?" and walked away from Kamel gesturing in
a manner indicating that he did not approve of the
9 We find the following especially significant the Respondent commit-
ted prior unfair labor practices directly relating to the Union's attempts
to organize the facility, two of these unfair labor practices were commit-
ted by Krauth and Kamel, as credited by the judge, the Respondent was
aware of Komclu's union activity prior to his discharge, and Koniclu's
consecutive flex assignments immediately followed his union activity
9 Although Komcki's consecutive flex assignments were contrary to
the Respondent s policy, the flex assignments themselves were not al-
leged to be unlawful
FILENE'S BASEMENT STORE

185
assignment Yet, Kamel did not follow up on Kon-
Ickes obvious displeasure by "reminding" Komcki
of his agreement to cooperate, nor did Kamel find
this incident, which occurred before Komcki
posted the union handbill in his truck window, suf-
ficiently important to report it to his superiors
The second incident of disparate treatment oc-
curred about June 19 when an employee who was
operating power equipment had an accident that
damaged a warehouse office According to the Re-
spondent's own disciplinary records, after this acci-
dent, the employee involved used "foul and abra-
sive language in an aggressive manner towards man-
agement" (emphasis added) Yet, rather than dis-
charge the employee for "insubordination," the em-
ployee was merely given a final warning
We do not agree with the judge's statement that
this June 19 incident and the August 31 incident in-
volving Komcki are "readily distinguishable in
both nature and degree" The Respondent's wit-
nesses testified that the incidents were treated dif-
ferently because Komclu's remarks were directed
at a supervisor while the other employee's remarks
were not As noted, however, the documentary
evidence does not support the Respondent's asser-
tion and the Respondent's witnesses did not favor-
ably "impress" the judge with their recollection of
the June 19 incident
We do not, of course, condone Konickes intem-
perate response to Kamel The question that must
be answered in cases such as this is not whether
the Respondent could have discharged Komcki for
his actions, but rather whether the Respondent
would have done so in the absence of Komclu's
protected 1 activity Based on the totality of the
record, particularly noting the evidence of dispar-
ate treatment, we find that the Respondent's reli-
ance on Komclu's response to Kamel as a justifica-
tion for Komclu's discharge was a pretext and the
Respondent has therefore failed to rebut the Gener-
al Counsel's prima facie case See Vought Corp, 273
NLRB 1290 (1984), enfd 788 F 2d 1378 (8th Cir
1986), Duroyd Mfg, 276 NLRB 144 (1985)
Accordingly, we find that the Respondent failed
to meet its burden of rebutting the General Coun-
sel's prima facie case, and conclude that the Re-
spondent's discharge of Edward Komcki on Sep-
tember 2, 1987, violated Section 8(a)(3) and (1) 10
'° In light of our decision, we find It unnecessary to address the Gen-
eral Counsel's contention that, even if Koruckes response to Kamel on
August 31 was a sufficient basis to terminate Komcki, the Respondent is
precluded from relying on it because Konickes response was provoked
by the Respondent's actions
We shall modify the judge's recommended Order to conform to our
decision, to more closely reflect the violations found and to correct Inad-
vertent errors
AMENDED REMEDY
Having found that the Respondent unlawfully
discharged Edward Komcki about September 2,
1987, we shall order the Respondent to offer Kon-
icki immediate and full reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position, without prejudice
to his seniority or other rights and privileges previ-
ously enjoyed, and to make him whole for any loss
of pay or other benefits he may have suffered by
reason of the discrimination against him, in the
manner set forth in F W Woolworth Co, 90
NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987) We shall also order the Respondent to
remove from its files any reference to Komclu's un-
lawful discharge and to notify him in writing that
this has been done and that the discharge will not
be used against him in any way
ORDER
The National Labor Relations Board orders that
the Respondent, Filene's Basement Store, Division
of Federated Department Stores, Auburn, Massa-
chusetts, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Creating the impression that the union activi-
ties of employees are under surveillance by telling
employees who had attended union meetings held
at the Yankee Drummer Inn that the Respondent
was aware of meetings bemg held there
(b) Unlawfully issuing oral warnings to employ-
ees or unlawfully accusing employees of harassing
and agitating other employees, or threatening to
terminate employees for engaging in protected con-
certed and union activity
(c) Making a record of counseling of unlawful
discriminatory oral warnings, and seeking to cause
an employee to sign it
(d) Interfering with and restraining employees in
the exercise of their protected and union activity to
hand out and receive union literature in the em-
ployees' parking lot on the Employer's property,
after completion of their scheduled worktime
(e) Advancing an unlawfully broad no-solicita-
tion rule, by telling employees that they really
should not talk about the Union during their breaks
because the Company paid for that time
(f) Discharging or otherwise discriminating
against any employee for supporting Local 1445,
United Food & Commercial Workers International
Union, AFL-CIO, or any other labor organization
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ercise of the nghts guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Remove from its files any reference to an oral
warning and related record of counseling issued to
its former employee Glen D Noonan, and notify
Noonan in writing that this has been done and that
neither the oral warning nor the record of counsel-
ing will be used against him in any way
(b) Offer Edward Komcki immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his semonty or any other
rights or pnvileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discnmination against
him, in the manner set forth in the remedy section
of the decision
(c) Remove from its files any reference to Kon-
ich's unlawful discharge and notify him in writing
that this has been done and that the discharge will
not be used against him in any way
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social secunty payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(e) Post at its distribution center in Auburn, Mas-
sachusetts, copies of the attached notice marked
"Appendix " 11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 1, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive 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,
defaced, or covered by any other matenal
(f) Notify the Regional Director in wnting
within 20 days from the date of this Order what
steps the Respondent has taken to comply
11 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 Nation-
al 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"
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT create the impression that the
union activities of our employees are under surveil-
lance by unlawfully telling employees who had at-
tended union meetings held at the Yankee Drum-
mer Inn that we are aware of meetings being held
there
WE WILL NOT unlawfully issue oral warnings to
our employees, or unlawfully accuse employees of
harassing and agitating other employees, or threat-
en to terminate our employees for engaging in pro-
tected union activity in support of Local 1445,
United Food & Commercial Workers International
Union, AFL-CIO, or any other union
WE WILL NOT make a formal record of counsel-
ing of an unlawful and discriminatory oral warn-
ing, nor cause an employee to sign it
WE WILL NOT interfere with or restrain our em-
ployees in the exercise of their protected and union
activity to hand out and receive union literature in
the employees' parking lot on the Employer's prop-
erty, after completion of their scheduled worktime
WE WILL NOT advance an unlawfully broad no-
solicitation rule on an individual employee, by tell-
mg an employee that the employee really should
not talk about the Union during the employee's
breaks because the Company paid for that time
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Local 1445
or any other labor organization
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL remove from our files any reference to
the unlawful oral warning issued to Glen D
Noonan, including any related written record of
FILENE'S BASEMENT STORE 187
counseling that may exist, and WE WILL notify him
that this has been done and that neither the oral
warning nor the wntten record of counseling will
be used against him in any way
WE WILL offer Edward Komcki immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest
WE WILL notify Edward Konicki that we have
removed from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way
FILENE'S BASEMENT STORE, DIVI-
SION OF FEDERATED DEPARTMENT
STORES
Robert Pulcim, Esq (formerly), and John F Welsh, Esq ,
for the General Counsel
David E Watson, Esq and Mark J Mahoney, Esq
(Nutter, McClennen & Fish), of Boston, Massachusetts,
for the Respondent
Warren Pyle, Esq (Angoff Goldman, Manning, Pyle,
Wanger & Hiatt), and James Ronayne, Organizer, of
Boston, Massachusetts, for the Charging Party
DECISION
STATEMENT OF THE CASE
ROBERT G ROMANO, Administrative Law Judge I
heard this case at Boston, Massachusetts, on April 11-15,
and June 6-7, 1988 Local 1445, United Food & Com-
mercial Workers International Union, AFL-CIO (Local
1445 or Charging Party Union), filed the original charge
in Case 1-CA-24958 on September 17 (amended October
28), 1987 1 against Filene's Basement Store, Division of
Federated Department Stores (Filene's or Respondent
Employer) Complaint issued on November 10
The complaint alleges that Respondent Employer has
committed multiple violations of Section 8(a)(1), by its
supervisors and/or agents, on various dates in July, but
commencing in mid-July (a) in making certain state-
ments that tended to create an impression among em-
ployees that the employees' union activities were under
surveillance, (b) coercively interrogating employees as to
what they thought of the Union, or, why a union was
needed, (c) threatening employees with various forms of
reprisals for engaging in union activities, namely, dis-
charge and/or termination, including telling an employee
that another employee wearing a union hat was not too
bright, and would not last long, that the wages of the
employees would be cut if the 'Union got in, and, that
Employer would have to be more strict about productiv-
ity if a union came in, and (relatedly) that the employees
'A dates are in 1987 unless otherwise stated
could always get the union authorization card back that
the employee had signed The complaint further alleges
that Respondent violated Section 8(a)(1) by telling an
employee that the employee could not solicit employees
to join the Union on Respondent's property, and, by tell-
ing another employee that the employee should not be
soliciting for the Union dunng coffeebreaks, because the
Respondent Employer paid for that time
The complaint additionally alleges that in violation of
Section 8(a)(3) and (1), Respondent Employer (a) on
July 17, discriminatorily issued an oral disciplinary warn-
ing to warehouse employee Glen Noonan and later me-
morialized it in writing, and (b) on September 2, Em-
ployer discnmmatonly discharged two warehouse em-
ployees Edward Komcki and Michelle Savageau By
answer timely filed on November 23, Respondent Em-
ployer has denied the commission of any of the above al-
leged unfair labor practices
There are essentially two evidentiary rulings that
appear to be also in issue The first relates to the scope
of a proper limitation of Employer's evidentiary present-
ment, upon Employer's failure to produce a certain sub-
poenaed relevant document upon direction, and subse-
quent refusal to allow a witness to testify on related
matter The second involves the propriety of Employer's
use of a prior inconsistent statement to attack the credi-
bility of a General Counsel witness, as is clearly provid-
ed for under the Federal Rules of Evidence, and, as ap-
peals and was ruled, over the General Counsel's objec-
tion, as accordingly also permitted under a certain State
of Massachusetts, Division of Employment Security
(DES), so-called shield statute Although, initially, coun-
sel for General Counsel saw, and sought to raise an issue
of broader evidentiary use and/or restriction, as finalized
at hearing, the issue was otherwise limited to further evi-
dentiary ruling imposed on the General Counsel for a
timely related use of similar evidence (in cross-examina-
tion of a Respondent witness) These evidentiary ruling
issues are more conveniently addressed in their own con-
text infra The case, however, is primarily a credibility
case
On the entire record, 2 including my observation of the
witnesses and their demeanor, and on due consideration
of the briefs filed by the General Counsel and Employer
on or about July 26, 1988, I make the following
FINDINGS OF FACT
I JURISDICTION
Jurisdiction is not in issue Filene's Basement Store,
Division of Federated Department Stores, a corporation,
in material times had corporate offices at Wellesley, Mas-
sachusetts, and, inter aim, an office and place of business
(a warehouse facility) in Auburn, Massachusetts Re-
spondent Employer is engaged in the retail sale of con-
2 The General Counsel's uncontested (oral) motion to correct record as
made at hearing on June 6, 1988, and Respondent Employer's uncontest-
ed motion to correct record (filed July 26, 1988) are essentially granted,
respectively Thus, inter aka, wherever the name Campbell, Cambell,
Cambel, or Hamel, appear of record, Kamel is to be substituted, but only
to the extent consistent herein
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sumer products, and, during calendar year ending De-
cember 31, 1986, Respondent Employer derived gross
revenues from its business operations in excess of
$500,000 During calendar year ending 1987, Respondent
Employer purchased and received goods and materials
valued in excess of $50,000 directly from points located
outside the Commonwealth of Massachusetts
The complaint alleges, Respondent admits, and I find
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and I
further find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A Background
1 Filene's operations
a The material warehouse operations
For many years the Filene's Basement Store oper-
ations were part of the William Filene's & Sons enter-
prise (Filene's & Sons) For many years Filene's & Sons
was a party to a multiple location (but not all inclusive)
collective-bargaining agreement with Local 1445, or its
predecessor union In 1984 Filene's Basement Store (Fi-
lene's Basement, or simply Filene's) was created as a sep-
arate company
Filene's Basement encompasses organized and unorga-
nized operations Thus, similar multilocation collective-
bargaining agreements continued to extend to certain
(but by far not all) of Filene's Basement's operations
The most recent collective-bargaining agreement cover-
ing certain employees of Filene's & Sons and Filene's
Basement had effective duration from February 3, 1985,
through January 31, 1988 Its terms covered certain em-
ployees employed at Filene's two distribution centers,
warehouses, located at Somervile (SDC) and (then) at
Dedham (DDC), Massachusetts (There is indication of
record (G C Exh 29) that as of July 17, only Filene's
Boston Basement Store was additionally organized and
covered by the Union's contract with Filene's )
Filene's is currently a wholly owned subsidiary, or di-
vision of Federated Department Stores (Federated) Fi-
lene's continued to maintain corporate offices at Welles-
ley, Massachusetts, from which it supervised operational
management of the chain of 21 Filene's Basement retail
department stores located throughout the New England
States and New York, and the two distribution centers
In March 1987 Filene's told Local 1445 and the em-
ployees of DDC that it would close DDC in late May,
and that it had selected Auburn, Massachusetts, as the lo-
cation for a new distribution center (ADC) Filene's
opened the new ADC on April 6 The new ADC is a
very large warehouse It processes 25-30 percent of all
the merchandise in the stores, as well as storing (ware-
housing) the flat merchandise for future store selections
On April 10, Local 1445 and Filene's met to discuss cer-
tain issues of severance pay and relocation rights for
DDC's employees Upon receipt of Filene's summary of
its position thereon, Local 1445 filed a grievance on
April 17, discussed further infra
ADC (as apparently did DDC, and does SDC) essen-
tially receives merchandise from Filene's vanous suppli-
ers and/or vendors, checks invoices by providing a phys-
ical count of items, marks (ticket prices) items, and dis-
tributes and/or warehouses the merchandise for future
selection and distribution The shipping and receiving
work includes loading and unloading trucks at a dock
Filene's allowed its supervisors to transfer to ADC,
but decided to staff ADC with new hires In material
times, ADC has employed anywhere from 80-100 ware-
house (unit) employees ADC's warehouse unit employ-
ees are currently classified as either utility workers or
heads of stock, discussed further infra
By cover letter of April 17, Local 1445 filed a griev-
ance under the collective-bargaining agreement applica-
ble at Dedham, alleging, inter atm, that Filene's had vio-
lated the agreement by closing DDC for discriminatory
reasons, had failed to honor the recogmtion clause of
that contract, and had violated the contract by its failure
to offer DDC employees transfers to ADC By letters of
May 5 and 11, Filene's stated that its position on the
grievance was that the issues sought to be raised by the
Union's gnevance were not arbitrable, and that it was
willing to proceed to arbitration on the issue of the arbi-
trability of those issues
A duly designated arbitrator held a hearing on the ar-
bitrability of the issues on October 27, and, inter aim,
Union therein contended Filene's had effected a runaway
shop The Employer argued that the Union's request that
the arbitrator compel an employer recognition of the
Union as the bargaining representative of ADC's ware-(
house employees, or, impose the Local 1445 contract, is
beyond the arbitrator's authority The Company further
asserted before the arbitrator that the matter (of recogni-
tion) is solely the function of the National Labor Rela-
tions Board, if, and when, Local 1445 demonstrates ma-
jority support among ADC's employees pursuant to a
representative petition (then) currently pendmg
On March 1, 1988, the arbitrator upheld the arbitrabi-
hty of two of the issues presented by the Union's griev-
ance, namely, whether the Employer had violated the
applicable agreement (1) by closing the Dedham facility
for (asserted) discriminatory reasons, and, (2) by failing
to recognize the Union at Filene's new ADC facility
(whether on basis of urged runaway shop, or on basis
that the contract survived the move) Moreover, while
finding that the issue of transfer of DDC's employees
was not arbitrable as an independent claim, the arbitrator
ruled that that consideration may be relevant to a request
for remedial relief (for other arbitrable claim advanced, if
established) Both of the above determined arbitrable
issues are presently pending before the arbitrator
The parties agreed at hearing, and Employer reasserts
in brief that, "The claim of a discriminatorily motivated
closing of the Dedham warehouse has never been pre-
sented to the Board and is not part of this proceeding"
Thus, no party has contended that any allegation of a
discriminatory DDC closure is an issue raised before the
Board, let alone sought to raise either deferral or nonde-
ferral arguments thereon
FILENE'S BASEMENT STORE 189
b Filene's operations management
Filene's corporate offices are located at Wellesley,
Massachusetts John Tempests is Filene's senior vice
president of operations, and his office is located there
Steve Haskell is Filene's vice president of operations
Haskell maintains an office at ADC, but is there (at
most) 3 days a week Starting the latter part of May,
Steve Krauth was facility manager at ADC (Krauth's
assignment since October is as director of distribution in
charge of both ADC and SDC ) Krauth is responsible
for the operation of ADC, and he is the highest repre-
sentative of Employer regularly at ADC Previously em-
ployed by Filene's as a personnel manager, Laura
(Linden) Young also started work at ADC in May As
ADC's personnel manager, Young worked for Krauth
Ed Kamel is the operations manager of ADC, and he re-
ports directly to Krauth Kamel is responsible for ADC's
day-to-day (operational) activities Kamel has five area
supervisors to assist him
The area supervisors report directly to Kamel The
area supervisors and their assigned area of responsibility
(in most recent and material times), are Michael
Gordon, shipping and receiving, Greg Manning, bulk
(e g, leather goods, luggage, and bags etc ) and giftware
(crystal, vases etc ), Bruce Brackett, reserve (store and
select), David O'Neill, shoes, and Jim Coumhan, control
office (all paperwork, including data entry of invoices to
computer) Setting momentarily aside the consideration
of personnel management, ascending management hierar-
chy in material times is at ADC, the five area supervi-
sors reported directly to Operations Manager Kamel,
Kamel reported to Facilities Manager Krauth, Krauth re-
ported to Haskell, who in turn reported to Tempests, at
Wellesley
c Utility workers, heads of stock, and the principle of
"Flexing"
ADC warehouse employees, upon receipt of merchan-
dise from suppliers, first check the merchandise against
invoice, then mark the merchandise, i e, attach a ticket
to the merchandise, and then they either immediately dis-
tribute (ship) the merchandise to the stores, or they stock
the merchandise in the warehouse for a future selection,
and distribution of the merchandise to the various stores
upon order
The ADC warehouse (unit) employees are currently
classified as either utility workers, or heads of stock
Kamel testified that utility workers are responsible for
working in all areas of the ADC facility as needed, and,
that the heads of stock assist the ADC area supervisors
in passing out the work In that regard, !Camel testified
that when the ADC initially opened, the warehouse em-
ployees were given specific (variable) assignments every
day Kamel and the area supervisors would determine
the particular job assignments for the employees at a
daily "shape-up" meeting
Essentially, assignments were based on a given area's
backlog Kamel and the area supervisors determined
daily how many employees would be assigned to work
in given area Kamel further testified, and Employer has
acknowledged in brief, that sometime during spring-
early summer, employees were assigned to a home base
(area) However, Kamel has also testified, with convinc-
ing support of others, that all the employees (even then)
remained available for daily or weekly assignments to
other areas, when a fluctuating workload required This
process of assignment to varying work areas, upon fluc-
tuation of workload, is referred to as "flexing", and,
Kamel has testified, without contradiction, that a flex of
8-10 employees throughout the facility on a daily basis is
typical, even now
d Filene's and Federated's personnel management,
and/or industrial relations hierarchy
Joseph Staffen, formerly Filene's vice president for
labor relations, in material times was located at corporate
headquarters in Wellesley ADC has its own personnel
manager During material times, e g, from May through
November, Laura (Linden) Young occupied the position
of personnel manager at ADC having been previously
employed by Filene's as a personnel manager elsewhere
since 1984 (On December 1, Katie Schoonover, prior
personnel manager at SDC, replaced Young, who had
been reassigned as personnel manager at SDC ) As ADC
personnel manager, Young worked for Facilities Manag-
er Krauth, but regularly reported to Karen McGrath, Fi-
lene's (then) director of employee relations McGrath
was located at Wellesley corporate headquarters In ma-
terial times, McGrath was responsible for ensuring that
all of Filene's personnel function (at 21 retail stores and 2
distribution centers) were handled properly
In summary then, Filene's personnel and/or industrial
relations' hierarchy in material times was ADC Person-
nel Manager Young worked for Krauth, but reported to
McGrath, at corporate headquarters McGrath in turn
reported there to Staffen
Federated Department Stores (Federated) also has an
employee relations department It is available to all Fed-
erated Divisions as a consultant on employee relations
Joe Vella is Federated's operating vice president for em-
ployee relations Ora Matthews is a Federated employee
relations specialist under Vella Matthews had responsi-
bility, inter aim, for ADC Federated's material contact
was with both ADC's local management, and Filene's
corporate level management
Pursuant to Federated's established policy, Vella and
Matthews would become involved with ADC because of
the Union's initiation of an organizational campaign
there In such circumstances, the function of Federated's
officials mcluded advising Filene's (ADC's) managers
and supervisors of the legal restrictions on their activity
in the Union's organizational campaign In fact, Vella
and Matthews provided certain trammg to ADC's man-
agers and supervisors based on an extensive Federated
handbook thereon entitled, "Communications Guidelines
for Managers and Supervisors Regarding Employee
Rights and Union Activity" (R Exh 2)
The General Counsel conceded at the outset that in
most respects Employer is a well run, efficient enter-
prise, and conducted under comprehensive rules of con-
duct and/or regulations, including (I find) the above
rules and regulations (and other policies) that compre-
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hensively govern Employer in regard to employee and
union relations Respondent at the outset candidly ac-
knowledged that it opposed the Union's effort to orga-
nize its ADC employees, and, that it communicated with
its employees orally and in writing in the effort to try to
convince the employees not to support the Union How-
ever, Employer also contends that it has extensively
trained its supervisors as to what is proper, and what
not, and, that its supervisors never crossed the line
and/or boundary to engage in any illegal conduct
Respondent has stressed in brief that extensive training
of local ADC management took place in July, asserting
that Federated's training involvement at that time was
occasioned by the Union's organizational activity in the
middle of July In contrast, the General Counsel has
urged in brief that Filene's had much earlier recognized
that ADC would be a likely target of Union's organiza-
tion, and he would have it observed that even prior to
ADC's opening (in April), Federated had held one or
more meetings with the Auburn managers on the union
subject The General Counsel has further established that
Krauth was not employed by Filene's until May, and
that he was not present at the earlier training sessions at-
tended by (DDC) management and supervisors (then) as-
signed to ADC management The General Counsel does
acknowledge that Federated officials had conducted
meetings pursuant to Federated's established policy of
"becoming actively involved in personnel matters in sub-
sidiary stores subject to union campaigns" There is cred-
ible evidence to support all the above observations, as
discussed infra
2 The Union's organizational campaign
John Phmney is president of Local 1445 James Ron-
ayne, employed as an organizer, testified at heanng
(April 13, 1988) that Local 1445 had employed Ronayne
for 1 year, that it was President Phinney who had han-
dled Local 1445's filing of a grievance on the DDC clo-
sure and ADC opening without transfer/hire of DDC
employees, and that Ronayne had commenced an orga-
nizing effort at ADC in approximately April
According to Ronayne, he first met with a group of
employees in April, made home calls, and, normally
thereafter held at least one meeting per week with em-
ployees In the beginning Ronayne held weekly organi-
zational meetings with small groups of employees in the
restaurant/lounge of the Yankee Drummer Inn, which is
a hotel in Auburn, and located a few miles from ADC
Ronayne recalled that it was starting in April that he had
first passed out union authorization cards to employees
to sign, and that employees Mike Corso, Glen Noonan,
Richard Norgren, and many other employees had there-
after solicited employees to sign union authorization
cards Though it is asserted that the Union distributed
authorization cards to the employees there, and else-
where, it is also generally established that union card so-
licitation was done away from work at first
Indeed, all parties in the end appear to have essentially
acknowledged that the Union's campaign did not become
overt at the warehouse until mid-July, and that it was at
that time (generally) that ADC supervisors and managers
received (I find) additional extensive training on what
they could do and say during a union campaign When
that occurred in precise relationship to Noonan's union
activity in July is more in issue It is in any event pres-
ently noted, mid-July is when the complaint (generally)
alleges and Respondent denies that certain unfair labor
practices were first committed by Respondent Employer
Federated staff members were clearly on the scene, and
directly involved in the discharges of employees Sava-
geau and Komcki, which occurred much later, in early
September
B The Evidence
1 The employment tenure of union activists Glen
Noonan and Michael Corso
Filene's transferred its former DDC supervisors to
ADC about the last week in March The supervisors
then conducted interviews for the hire of new employees
at ADC, and, in the first week of April they were en-
gaged in training ADC opened on April 6
ADC employed Michael Corso as of the start of ADC
operations on April 6, as a general warehouse (utility)
worker ADC initially and regularly assigned Corso to
work on the docks, under the (then) supervision of Man-
ning Sometime later, and during more material times,
ADC regularly employed Corso on a forklift, under the
supervision of Brackett
ADC also hired and employed Glen Noonan as of the
start of its operations on April 6 ADC employed
Noonan as a warehouse utility worker at $6 an hour At
various times thereafter Noonan was supervised by
Coumhan, Manning, and Gordon In more recent and
material times, Noonan regularly worked on the docks
and he specifically did so in early July It is uncontested
that Noonan's work performance was always exemplary
In August, both Corso and Noonan voluntarily termi-
nated their employment with Employer Corso did so in
the first week in August Noonan voluntarily terminated
his employment with Filene's on August 20 Noonan did
so with intent of getting a better paying job, which he
subsequently did, with some union aid Thus, with cer-
tain union assistance in arranging application interview,
an organized employer in the area (Stop & Shop) later
employed Noonan at the rate of $9 97 an hour, about
October Just prior to Noonan's termination, Noonan had
unquestionably engaged in substantial activity in support
of the Union, of which the Employer was aware, at least
since mid-July Indeed, both Noonan and Corso became
openly active for the Union in mid-July, though after
having exhibited much earlier interest in the Union
a The union activity of Noonan and Corso
More specifically, Noonan testified that he attended a
dozen or more union meetings, and he confirmed that
the first union meetings that he attended were held at the
Yankee Drummer, though he recalled those meetings as
starting the end of April, first week in May Apart from
attendance at certain special meetings called, Noonan re-
lates that regular union meetings were held weekly,
almost every month thereafter
FILENE'S BASEMENT STORE 191
Noonan testified that he received union authorization
cards from the Union several times In that regard how-
ever, although Noonan recalled that he personally had
signed an authorization card for the Union in May,
Noonan testified that he had not taken an active role (in
the Union) at that time Nor did he do so until about
mid-July, following the circumstances next to be dis-
cussed
ADC had also employed Glen Noonan's brother,
Todd Noonan, and Richard Norgren, both of whom also
subsequently became openly active in the Union, about
the same time as Noonan and Corso Noonan and Corso
have testified in this proceeding Neither Todd Noonan
nor Norgren testified
In early July, Todd Noonan had occasion to work,
inter aim, with employees Steve Giguerre and Richard
Norgress (sic) On July 10, Supervisor Manning had oc-
casion to assign Giguerre, Norgren and Todd Noonan to
perform certain work downstairs From time to time
Manning checked up on them A confrontation later de-
veloped between Manning and these employees over
Manmng's instructions to them and his related observ-
ances of their work performance that day, but particular-
ly with regard to Giguerre, noted of record as a young
employee, previously warned about his work perform-
ance
Giguerre had only recently (on July 2) received a
written counseling (warning) for having filled an order
calling for 140 briefs at $7 with 140 tops at $14 The
counseling warned that if this conduct persisted, Gi-
guerre, would be discharged Counseling record of July
10 records that on three occasions (that day) Giguerre
was observed standing around doing nothing It noted
that Giguerre had been written up previously for his
poor work performance, and that he understood then It
was to be his last and final shot (chance) Concluding
there was no improvement in Giguerre's work perform-
ance, the recommendation of discharge of Giguerre was
then effected Supervisor Manning, Operations Manager
Kamel, and Personnel Manager Young signed the record
of counseling (G C Exh 24) on July 10 (Friday)
As reported to Noonan by employees, Noonan ac-
knowledged the confrontation with Manning had devel-
oped over the employees' failure to follow a prior direct
Manning instruction (literally) not to sit down on the
job, and, that Giguerre was terminated for (again) sitting
down on the job The confrontation however, reported-
ly, had also involved an incident of Supervisor Manning
throwing a chair in front of the employees, not at an em-
ployee so much as in an act evidencing Mannmg's dis-
pleasure with the employees, upon Mannmg's observance
of the employee(s) again sitting down on the job, after
having been told (at least once) earlier that day not to do
SO
In any event, according to Noonan, employees were
upset about the subsequent termination of the kid (Gi-
guerre), but particularly so with nothing having been
done about the (perceived) improper behavior of the su-
pervisor in throwing a chair in front of the employees
Noonan relates that there were also a lot of other things
going on, some of which had been directly affecting
Noonan in his own job performance
Noonan asserted (generally) that he had received some
reports of acts of mistreatment of employees (purported-
ly) by another supervisor, Brackett As related to Noon-
an's work, however, Noonan has testified with greater
specificity that some employees from Brackett's work
area were making mistakes that were directly affecting
Noonan's (shipping) work In Noonan's view, there was
a lot of work production going down, and these matters
had a lot to do with the (perceived) bad morale of em-
ployees
In any event, Noonan decided at this time that he
wanted to talk to the person in charge, and Noonan
made an initial effort to talk to the highest official to be
found at ADC, viz, Steve Haskell Noonan understood
Haskell had an open door policy Noonan approached
Haskell's secretary, and said he wanted to meet with
Haskell The secretary said that Haskell was not there
(Haskell was somewhere in the building that day ) Has-
kell's secretary then said that Noonan could not speak to
Haskell, that Noonan had no need to do so Noonan re-
plied that he would come back when Haskell was there
It is unclear whether Noonan made any further attempt
to see Haskell It is clear that Noonan did not see Has-
kell
b Noonan 's meeting with Kamel and Young on
July 13
Operations Manager Kamel approached Noonan and
asked if Noonan could settle (sic) with him, instead of
Haskell Noonan relates that he was at first reluctant to
do so, but when he could not meet with Haskell, he met
with Kamel and Young, on July 13 (Monday) Noonan
otherwise recalled that when he arrived at work, Kamel
(I find) asked Noonan if he wanted to meet then (The
time of Kamel's first inquiry of Noonan as to Noonan's
willingness to meet with Kamel, rather than Haskell, is
somewhat unclear, but it probably was Kamel's initial in-
quiry made of Noonan the first thing Monday morning,
and the agreement as to the time of their meeting fol-
lowed) In any event, when Noonan said he did want to
meet then, Noonan promptly met with Kamel and
Young in Young's office (That this meeting occurred in
the morning of July 13 is convincingly established of
record )
Noonan asserts that at this meeting he said that em-
ployee morale was bad, and, according to Noonan, he
also told Kamel and Young (1) that the employees were
upset that the kid (Giguerre) was fired, and that the in-
volved supervisor (Manning) was allowed to throw a
chair, and nothing happended to him, (2) that a lot of
people had complained to Noonan that there was not fair
treatment in Brackett's (reserve) area, and (3) that a lot
of people from Brackett's area were making mistakes (in
their work) that were affecting Noonan's own job per-
formance In the discussion Noonan asserts he also said
that the employees thought there was a lot of unfair
wages, and, that a lot of people were making different
rates of pay for doing the same job Noonan concluded
they (Kamel and Young) were concerned about the chair
incident, but did not seem to agree otherwise The meet-
ing ended, and Noonan went back to work Noonan has
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified (at least at one point clearly) that there was no
discussion of the Union in this meeting whatsoever.
Kamel does not appear to have testified as to the spe-
cific content of this meeting at all. Young did. Though
unsure of the date, Young testified that Kamel and
Young had one conversation with Noonan. Young sum-
marized that Noonan was very, upset, or dissatisfied with
certain aspects of his job (or) how the warehouse was
being run. She (also) did not recall any references to
union activity. Notably, Young specifically had no recall
of Kamel telling Noonan that Kamel was aware of union
representatives passing out literature in the parking lot.
Any suggestion in Noonan testimony to that effect
would be materially inconsistent, and against clear
weight of more credible testimony of Ronayne as to
when distribution of union literature at ADC first began,
viz, July 17. Accordingly, it is not credited. (Ronayne
testified far more credibly that the first handbill of the
facility was on July 17; and otherwise, that there were
two handbillings at ADC in July, one in August, four in
September, three in October, arid one in December.)
Young initially recalled that the first that she was
aware of union activity at ADC was at the time of the
first handbilling, sometime in July. Although Young did
not know whether she was aware at this time that there
were union organizational meetings going on at the
Yankee Drummer, it would appear from the record con-
sidered as a whole, far more likely that she would have
been as aware of them at that time as was Krauth.
In that regard, Krauth testified frankly and candidly,
that at the time he spoke to Noonan, on (I find, infra)
July 14, Krauth believed that he was already aware that
there had been union meetings going on at the Yankee
Drummer. Indeed, Krauth has offered credible explana-
tion that some employees had informed them (manage-
ment) that they (the employees) were asked to attend.
Moreover, although Young also did not recall it, I am
persuaded that Young, just as likely became aware of
Noonan's more recent union activity in handing out
union authorization cards at ADC, at about the same
time that Krauth has acknowledged he did, viz, some
time prior to the round table meeting with employees,
which was held on July 15, and which is discussed more
fully infra. I note that Young has otherwise corrobora-
tively acknowledged that Krauth had spoken to Young,
prior to the Round Table meeting of July 15, about
Krauth's occasion on that very morning to stop two non-
union employees from conducting, on company time, a
survey of employees who did not want the Union, infra.
It is very clear that neither Krauth nor Young would
have had an awareness of Noonan actively handing out
union cards to employees at ADC on or before July 13,
for wholly convincing reasons next to be discussed.
Noonan testified relatedly that the first time he re-
ceived union authorization cards (I find) to pass out at
ADC, was on July 14. Noonan's recollection was that
Ronayne gave the union cards • to Noonan at breaktime,
in the ADC parking lot. (To the extent any Noonan tes-
timony would appear to suggest that Filene's vice presi-
dent, Stafferi, gave Noonan a related oral warning on
July 14, I observe that is not alleged in the complaint;
find it it wholly inconsistent with clear weight of more
credible evidence of a Stafferi warning on July 17, infra;
and I do not credit it.)
Ronayne's account confirmed that it was on July 13
(Monday) that Noonan had called Ronayne and said that
there were a lot of problems at Filene's; and, that he
(Noonan) wanted a bunch of union authorization cards
so he could start signing up employees. Ronayne also
confirmed that it was on July 14 (Tuesday) that Ronayne
met Noonan and gave Noonan authorization cards,
though Ronayne has recalled it as at noontime that he did
so.
Noonan testified that he thereafter inquired of employ-
ees if they were interested (in the Union), and (generally)
related that he then distributed union authorization cards
to any interested employees outside ADC during breaks,
and also inside ADC in the cafeteria. Noonan does not
appear to have explicitly testified that he handed out the
above authorization cards to employees in the cafeteria at
lunchtime on July 14. In testimony related to his ques-
tioned conversation with employees on July 16, Noonan
made a related reference only to the day, as opposed to
specifying either July 14 or 15 (or break or lunchtime)
that he had earlier passed out cards in the cafeteria. It is
reasonably inferable from the above, that Noonan passed
out cards in the cafeteria at lunchtime, either on July 14
or 15. No more definitive employee corroboration was
offered that Noonan passed out union cards on July 14,
in the cafeteria.
Initially Krauth asserted that he was not aware of the
authorization cards being passed out at the time (of the
Union's handbilling). On other occasions Krauth clarified
that he was aware that employees were passing out cards
at the ADC facility, but he did not recall cards being
passed out in the cafeteria. Krauth then testified that at
least prior to a certain Round Table meeting with a small
group of employees (including Noonan), Krauth believed
that employees had told him that Glen Noonan was
handing out cards. But Krauth then asserted (with, I
find, diminished candor) that he could not recall the
identity of the employees who had informed him that
Noonan was handing out the cards. That round table
meeting is clearly established as one held on July 15; and
it is discussed further infra, in connection with other
complaint allegations.
Noonan relates that it was after lunch on July 14
(Tuesday) that Krauth approached Noonan at Noonan's
work station. Although not without notable confusion,
Noonan has in the end appeared to recount severally:
that Noonan had at first wanted to see Haskell; that
Krauth had approached Noonan (purportedly) upset;
that Krauth wanted to know why Noonan (had) felt he
could not approach Kamel with a problem; why Noonan
wanted to go over his (Krauth's) head (to Haskell), and
why Noonan had not come directly to Krauth (about the
problem); why Noonan met with Kamel and Young, and
what they had talked about; and whether Noonan
wanted to talk to Krauth about the problem (now). To
the latter, Noonan replied he did; and Krauth and
Noonan went to the cafeteria.
According to Noonan, Noonan repeated to Krauth
what Noonan had earlier told Kamel and Young, includ-
FILENE'S BASEMENT STORE 193
mg about the incident of the chair thrown by a supervi-
sor, which, according to Noonan, Krauth admitted was
wrong, and then said they were looking into it Noonan
testified (and I credit) that he also spoke to Krauth about
low and different wages (purportedly) being paid em-
ployees, and Krauth said he would look into it (also)
Noonan recalls this entire conversation lasted about 20
minutes
2 Noonan's related complaint allegations
a Krauth conduct alleged as creating the impression of
Employer's surveillance of employees' union activity
The complaint alleges that on July 14, Facilities Man-
ager Krauth (only) told an employee that Krauth was
aware of union meetings held at the Yankee Drummer
Inn (only), and, that this statement of Krauth tended to
create an impression among the employees that the em-
ployees' union activities were under surveillance, in vio-
lation of Section 13(a)(1) of the Act
Whether simply confusedly or otherwise, Noonan ini-
tially testified, in seeming support of this complaint alle-
gation, that during the course of their discussion Kamel
had said he was aware that there was a union organizer
going into the parking lot, and that there were some
meetings being held at the Yankee Drummer As noted,
Young had no recall that Kamel had made the statement
(that Kamel was aware of a union organizer in the park-
ing lot) in their conversation with Noonan on July 13,
and Noonan had earlier otherwise testified specifically of
that prior conversation with Kamel and Young that
there was no mention of union whatsoever
To the extent it is considered simple misreference to
Kamel, rather than Krauth, Noonan notably did so on
two different incidents (The second is discussed infra )
Indeed Noonan misspoke on this first incident, twice, for
he also then testified that Kamel did not specifically ask
Noonan if Noonan had attended Apart from the contrast
of the complaint's limited allegation of a Krauth state-
ment of awareness of union meetings at the Yankee
Drummer now to an additional ascribed statement of an
awareness of a union organizer in the parking lot
Noonan (at best) clearly in this complaint allegation con-
text has initially nusattributed the questioned remark(s) to
Kamel (This is not an instance involving a record cor-
rection of some phonetic name misspelling to clearly in-
tended Kamel )
Noonan however did later testify (not only) that
Krauth had said he was aware of certain meetings that were
being held at the Yankee Drummer, but that Krauth also
told Noonan that he (Krauth) knew of an (unnamed) or-
ganizer that had been coming into the parking lot How-
ever, Noonan then additionally related that Krauth had
also asked Noonan on this occasion, why did Noonan
think the Company needed a union, and, more specifical-
ly, why Noonan thought Noonan wanted one Accord-
ing to Noonan, Noonan said (sic) he did not want to talk
about the Union on company time, so Noonan said he
did not know, and he went back to work (Apart from
observation that Noonan's account appears on its face as
strained, the complaint does not allege that Krauth (or
Kamel) interrogated employees on July 14
Noonan's account of this incident Insofar as it purports
to support the existing complaint allegation that on July
14 Krauth told an employee that he was aware of union
meetings being held at the Yankee Drummer Inn (and as
such, constituted a statement that created an impression
of surveillance, in violation of the Act), appears to con-
tain a number of inconsistencies and substantial points of
confusion and/or embellishment (if arguably on collateral
matters, nonetheless of seeming nature), such as to raise
serious question as to Noonan's reliability on the matenal
complaint allegation itself
Krauth confirmed that he had a meeting and a conver-
sation with Noonan, in the late afternoon, in the cafete-
ria, admittedly at Krauth's invitation Although not sure
of the precise date, Krauth recalled the meeting as oc-
curnng after Noonan had met with Kamel and Young,
held either on the same day, or the next day, and held
after Krauth had found out about, the earlier meeting
Krauth's recount indicates timing of his meeting with
Noonan as occasioned by Krauth's work encounter of
Noonan that day Krauth otherwise testified that his best
recollection of his meeting with Noonan was that
Noonan was upset about pallets coming down not ade-
quately sorted, and that that was the reason that Noonan
had met earlier with Young and Kamel
In that regard, Krauth has testified that he was
Kamel's superior and not at all upset that Krauth had
earlier met with Kamel However, Krauth was also
aware that Noonan had first requested to see Haskell,
who was Krauth's superior Though aware Noonan did
not see Haskell, Krauth's testimony does not appear to
encompass a specific denial of Noonan asserting Krauth's
displeasure over Noonan's appearance of unwillingness
to talk about problems with either Kamel or Krauth, and
Noonan's apparent intention to go over Krauth's head in
his initial attempt to see Krauth's superior, Haskell I am
persuaded that Krauth evidenced a concern over Noon-
an's apparent unwillingness to initially discuss problems
with either Kamel or Krauth, and because of Krauth's
perception that Noonan had attempted to go over
Krauth's head to Haskell
Krauth otherwise confirms that in the cafeteria con-
versation Noonan discussed some of the problems with
Krauth Krauth recalled that Noonan said some of the
cartons coming down for shipping should have been
sorted, but weren't, and, that Noonan felt that it was Just
careless(ness) on the part of some people Krauth asked
what sort of mistakes were being made, and Noonan re-
sponded that a lot of pallets were coming down with
mixed stores, saying, that there should be one store to
the pallet Krauth confirmed that Noonan felt it was a
direct result of people not being trained properly or low
moral
Krauth further recalled, and without apparent contra-
diction, that he had asked Noonan at the time if Noonan
wanted to show Krauth (the problems), or have some of
the (involved) employees come down According to
Krauth, they then went over to see some of the prob-
lems, and where the problems were generated Krauth
recalled, and Noonan did not subsequently deny, that
Krauth suggested to Noonan at the time that Noonan go
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work with the employees (generating the problems), or
have the employees come down to see the problems
(being generated) in shipping Contrary to Noonan's
recollection of the conversation ending on the interroga-
tion of Noonan's interest in the Union, Krauth recalled
specifically that their conversation had ended when the
(end of the workshift) bell rang, and Noonan left
Krauth did not recall Noonan talking to Krauth about
the supervisor upsetting Noonan or other employees, nor
about the discharge of Giguerre, or about Supervisor
Brackett not treating his employees fairly Krauth re-
called a discussion about Supervisor Manning throwing a
chair in front of employees, but he did not recall it as
part of this conversation
Krauth otherwise testified that he did not recall any
discussion of the Union in this meeting, but Krauth did
not specifically deny telling Noonan that he was aware
of meetings at the Yankee Drummer Moreover, Krauth
testified (I find) very candidly, that he believed that he
was aware at the time he spoke to Noonan in the cafete-
ria late that afternoon, that there had been union meet-
ings going on at the Yankee Drummer Krauth was
aware that the meetings there were held mostly on
Friday Indeed, Krauth has acknowledged (generally)
that employees would tell them (management) that they
(the employees) were asked to attend them (union meet-
ings at the Yankee Drummer)
Krauth did testify that there was no mention of union
activities at the facility in their conversation that he re-
called (None is alleged in the complaint ) Krauth has
categorically denied that he was (then) aware that (earli-
er) that afternoon, Noonan was passing out (union) cards
in the cafeteria Kamel testified (in support) that he was
not aware of, nor had he heard of Noonan allegedly
passing out union cards on July 14 in the cafeteria (But
neither was Kamel aware of any conversation between
Krauth and Noonan on July 14 )
(1) The circulation of an antiunion petition or list on
July 15
Sometime during the morning (I find) of July 15
(Wednesday) Noonan saw two (named) employees walk-
ing together with something in their hand Noonan later
came to understand that it was a list of names, or survey
of people who were against or for the Union At lunch-
time that day, outside the parking lot, in the presence of
Michelle Savageau, Noonan told one of the two employ-
ees with the list that a lot of people were upset that she
had made the survey Weight of credible evidence of
record establishes the referenced survey was to be a list
containing signed names of those employees who did not
want a union, thus essentially a no-union list, or petition
That afternoon Noonan attended a round table meet-
ing of employees and (certain) management conducted
by Krauth discussed further, infra, and Noonan brought
the subject up According to Noonan, Krauth said, that
he was aware it had happened, that he had told the em-
ployees (essentially) to stop doing it on company time
Noonan's recollection acknowledged that Krauth said he
told the employees, that whatever they did on their own
time was okay, but not to do it on company time
Krauth confirms that he became aware that the two
employees were conducting (essentially) a no-union
survey Indeed Krauth initially again candidly related
that on that morning the two named employees had
(first) approached him at the receiving dock and said
that they wanted to go around and take a list of people
who did not want the Union (Krauth later related that
he did not believe it was these two employees who had
(also) told Krauth that Noonan was handing out union
cards, with Krauth then less convincingly asserting that
he did not recall who had told him that ) Krauth other-
wise testified that initially he (only) said he did not think
it was appropriate, but at that time, he did not tell the
employees not to do it Krauth testified that he then re-
turned to his office, and he realized that it was just as
wrong for them to be doing it (soliciting the names of
employees against the Union) on company time as it was
for union (employees) to solicit (on company time)
Krauth relates that he thereupon went back upstairs to
the two employees at their jobs Krauth told the two em-
ployees that he had made a mistake, and that they were
not allowed to do that (in context) on company time
Krauth specifically confirmed Noonan's account that
Krauth told the two employees that they could do a
survey on their breaktime, lunchtime, and after work
Young had corroborating recollection that on the same
day, Krauth had told Young he had found out the two
employees were passing out a petition, vote, or signup
sheet, and that Krauth informed Young that he had told
them to stop Young further testified she was told the
two employees had passed around a sheet of paper that
they wanted associates to sign if they were not interested
in the Union
Krauth testified that he did not know if the two em-
ployees did subsequently conduct a survey, that they did
not report one to him, and he did not see one The area
supervisors received instruction to report their observ-
ances of employees' reactions to the Union to Federated
officials, rather than to Krauth
Federated's Matthews testified that Federated and Fi-
lene's policy was the same, and that in a union organiza-
tional attempt, it is Filene's practice to try lawfully to
get a picture of employees' pros and cons, and attitudes
about the Union, but it is not their policy to solicit it
(from employees) In regard to the two (named) employ-
ees' (purported) conduct of a survey, Federated's Mat-
thews testified credibly, that she did not learn of that in-
cident until some 2 weeks later from a supervisor, that
she was not sure there ever was a list, that she did not
see it, nor did she ever talk to a supervisor who saw it
Matthews also testified that to her knowledge the Com-
pany has no list of (employee) names who signed the
(no-union) petition Krauth has testified consistently that
management did not keep a record of what employees
were prounion, and what employees were not proumon
Prelimmary Analysis
Weight of evidence that I deem the more credible con-
vinces me that Krauth was not aware on July 14 that
Noonan was handing out union cards in the cafeteria,
though by that time Krauth was aware that union meet-
FILENE'S BASEMENT STORE 195
ings with ADC's employees were being conducted at the
Yankee Drummer Inn Although, Noonan's testimony of
a Krauth statement to Noonan about Krauth's awareness
of certain meetings at the Yankee Drummer Inn was not
by itself such as to readily warrant credit, because of
Noonan's noted general nonrehability in recalling other
circumstances of this event, Krauth's candid revealment
of his own awareness of union meetings at the Yankee
Drummer Inn tends to lend support to a Noonan recol-
lection that Krauth had mentioned his awareness of cer-
tain meetings held at the Yankee Drummer in their dis-
cussion of problems at ADC, especially when apparently
not accompanied by a specific denial by Krauth that the
had told Noonan that
Thus, despite reservations as to certain of Noonan's
other testimonial recollections of this event (and particu-
larly as to asserted Krauth union interrogations in this
conversation, which I do not credit) I am nonetheless in
the end persuaded and I find that on July 14, Krauth
told Noonan that he was aware of meetings at the
Yankee Drummer Moreover, since I find infra that
when Krauth had this conversation with Noonan in the
late afternoon of July 14, that Krauth was not then
aware that Noonan had begun only that very day to be
openly active for the Union by distributing union author-
ization cards at ADC for the employees to sign, I further
conclude and find that Krauth's remark about his aware-
ness of the meetings at the Yankee Drummer (which
union meetings Noonan had attended) reasonably had the
effect of creating an impression of employer surveillance
of the employees' meetings with the Union at the Yankee
Drummer as alleged in the complaint
Otherwise, although I am not persuaded from Noon-
an's unclear and uncorroborated testimony, that Noonan
did hand out union cards in the cafeteria on July 14, I
am convinced that he had begun to hand out union au-
thorization cards at ADC that day, if not in the cafeteria
that day, then (at least) on his own time outside the
warehouse at a breaktime after having received them
from Ronayne more probably (I find) at noontime on
July 14 In any event, whether Noonan passed out union
authorization cards to employees in the cafeteria on July
14, or not, I credit Krauth's denial that he was aware of
it at the time if his dicsussion with Noonan
A question is presented whether Krauth had first
become aware later that day (after work) from employee
reports (otherwise conceded received by him) that
Noonan had started handing out the union authorization
cards to employees at ADC (on July 14), or, as seems to
me more likely, that Krauth first learned of it in the fol-
lowing morning of July 15 If Krauth had impressed me
with his candor in initially acknowledging an early
awareness of Noonan's distribution of union authoriza-
tion cards (at ADC) to employees to sign (at least) prior
to a certain Round Table meeting held the afternoon of
July 15, Krauth's then asserted lack of recall of the iden-
tity of the employee(s) so informing him, on direct in-
quiry, did not Young's collective similar responses in
this area were at best unconvincing, and at worst a rare
instance of Young being evasive
Krauth's specific disclaimer of a belief that it was the
same two employees (who had approached him early
that morning about wanting to circulate a list to be
signed by employees who did not want the Union) who
had (also) informed him that Noonan was handing out
union authroization cards at ADC, and his then subse-
quent nonrecall of who it was who had actually told him
that Noonan was handing out the union cards, is too
strained for me to accept, or credit, especially where fair
inference runs to the contrary
Thus, it appears to simply strain credulity too much
that Krauth would not have remembered the employee
source that had supplied him with the information that
another employee (Noonan) had started handing out
union cards at ADC, which development (and not the
asserted later union handbillmg on July 17), I find, is
what occasioned, first, Krauth's immediate report to his
own superior, Haskell, and, second, their prompt meeting
with Tempests that evening, to further discuss employer
counterstrategy
Moreover, it is difficult for me to accept that the two
named employees would have expressed to Krauth their
own desire to begin taking around a list for employees
(who did not want the Union) to sign, and in doing so
have also made no mention to Krauth about Noonan's
initiation of union card activity at ADC, at a time when
Noonan appears of record as the first and then only indi-
vidual employee who had recently begun to openly hand
out the Union's authorization cards at ADC for employ-
ees to sign That Employer viewed the recent develop-
ment of the Union's campaign at ADC to get ADC em-
ployees to sign distributed union authorization cards as
an imperative for Employer in turn to immediately pro-
vide its employees with the Employer's own counter-
views thereon, would appear hardly open to serious
question on this record (Tempesta's first letter of July
17, infra, essentially confirms it )
However, the evidence offered of record has other-
wise failed to persuade me that Krauth was aware of
Noonan's union card activity at ADC at the time Krauth
had his conversation with Noonan on July 14, or, render
it as even more probable that Krauth subsequently
learned of it from others that same day (after work) Ma-
terially, if Krauth were already aware of it at the time of
his discussion with Noonan in the late afternoon of July
14, it would seem that Krauth would have been as likely,
if not more likely, to have spoken of that fact to Noonan,
as I have found Krauth to have mentioned his awareness
of (union) meetings at the Yankee Drummer Inn, in his
discussion with Noonan that day about the problems at
ADC
Contrary to any indication in Noonan's testimony that
a union organizer had been earlier coming into the park-
ing lot, ICrauth testified that his own first awareness of a
union organizer in the parking lot was on the occasion of
a certain (interrupted) Noonan union handbillmg inci-
dent, clearly established of record as occurring on July
17, and discussed infra Be that as it may, there is in any
event, no complaint allegation that Krauth made any
statement to Noonan on July 14 about a union organizer
being present in the parking lot that day (nor of Employ-
er's awareness of Noonan's passing out union cards to
employees at ADC on July 14), that was advanced in
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
specification of Employer's alleged creation of an im-
pression of unlawful employer surveillance of employees'
union activities in violation of the Act
Krauth has as much as conceded he was aware on
July 15 (e g, from belief of employee report received
prior to the RT of July 15) of Noonan's prior union ac-
tivity in handing out union cards to employees Weight
of evidence that I deem the more mutually consistent
and credible, in the end thus wholly persuades me (at
least) that it was no later than by the morning of July 15
that Krauth had learned of Noonan's recent union card
activity at ADC, as well as of certain other employees'
desire to undertake certain counter (nonunion) activity
It is clear of record that Krauth promptly reported the
same to his superior, Haskell I further conclude and find
that it was on that very evening of July 15 that Krauth
had the meeting with his (Filene's operations) superiors,
Haskell and (then) Tempesta about the employee union
card activity that Employer only now was aware had ac-
tually started at ADC They decided, with prompt
(probably next day) conjunction of Federated, inter aim,
upon an immediate company literature response to
Union's organizational campaign at ADC
(2) The response of Employer upon awareness of
employee union activity at ADC in mid-July
The General Counsel established that Employer dis-
tributed Tempesta's letters dated July 17, 21, and 27, and
August 3 Contrary to an apparent aversion of some of
Employer's supervisors to refer to the company litera-
ture as being antiunion, I find it clearly was However,
the General Counsel does not contend in complaint (or
otherwise), nor do I find, that Respondent Employer has
in any manner violated the Act in the distribution of any
of the above Tempesta letters to employees
As clearly revealed of record, however, the Compa-
ny's full strategem included more than just distribution of
the letters Supervisors were instructed to distribute the
letters to employees and to listen to the responses of em-
ployees to the literaure when distributed Although
Krauth testified that the supervisors did not report there-
on to him, Krauth acknowledged that they reported to
the Federated representatives (Ora Matthews and Carol
Burke), who were regularly at ADC one or more times a
week, though not apparently for the entire week Krauth
however also acknowledged that Employer held meet-
ings with supervisors on a regular weekly basis to discuss
the union activity at the facility Indeed, Young testified,
and Krauth essentially confirmed, that Young was desig-
nated the collection point for all union leterature that
was passed out at the facility, and she maintained a file
of it at ADC Federated promptly held training and/or
retraining sessions at ADC for ADC's management and
supervisors
As background, Matthews readily testified that the
Company was aware that the Union had an interest in
ADC from the grievance the Union had filed in the
spring shortly after Employer notified the Union of the
DDC (prospective) closing Indeed, Kamel testified that
he and the (area) supervisors had had a meeting with
Federated officials, at Wellesley, even before ADC
opened Kamel recounts relatedly that in that meeting
they had all received instructions from their superiors as
to what to do if confronted with union activity at ADC
Notably, Kamel testified that Krauth was not present at
that time
However, after Krauth became aware of the union ac-
tivity at ADC on July 15, Krauth immediately notified
his superior, Haskell Moreover, Haskell and Krauth at-
tended a meeting that evening with Haskell's superior,
John Tempests, senior vice president of operations, in
which they discussed generally the matter of the Union's
campaign to organize the employees at ADC, and Em-
ployer response Although the precise date of that meet-
ing was not initially recalled by Krauth (and neither
Tempesta or Haskell has testified), I have found it oc-
curred on the evening of July 15 Krauth confirmed re-
latedly that the meeting with Haskell and Tempesta had
occurred before Federated officials held training meetings
with ADC's management and its supervisors I credit
Matthews' (Federated's) related testimony, infra, that she
first heard of the union activity at ADC on July 15 I
further find that she was conducting the first of such
training reviews with supervisors at ADC (at least) on
July 17 The training session consisted of a page-by-page
review of the Employer's (I find) sophisticated and en-
compassing policy (R Exh 2) for a lawful counterre-
sponse to a union's campaign to organize its employees
In regard to Krauth's additional recollection that those
meetings were held right after Employer's first notice of
union literature, if by that, an intended reference is being
made to Union's distribution of handbills at ADC, the
same is clearly mistaken As found, the first union hand-
bill literature was passed out on July 17, after the first
training session at ADC
In that regard, Matthews was firm in her recollection
of being at ADC on July 17 conducting training reviews
with the supervisors about what they could and could
not do in the Union's campaign at ADC Moreover,
Matthews specifically recalled that she had given her
first training review that day before the first union hand-
bills were passed out by Noonan (and otherwise) after
work that day, infra Finally, Tempesta's first letter
dated July 17, previously prepared for and distributed to
employees on July 17, itself confirms Employer's (prior)
awareness of the Union's attempt to organize employees
at ADC by seeking to obtain signed union authorization
cards from them
Thus, the General Counsel has established by the letter
of Tempesta dated July 17 (G C Exh 29), that Tempesta
confirmed Employer's awareness of union activity prior
thereto in that he told employees in the letter that Em-
ployer's understanding (then) was that a labor union was
asking the employees to sign a union authorization card
in an attempt to organize ADC Tempests told the em-
ployees that the union authorization card was a legal
document that carried certain responsibilities, and was a
"serious matter", and he then urged the employees not to
sign a card, or anything else, for the Union, "unless you
know what it is, how the Union may use it, and what
you may be getting into"
Tempesta's letter told the employees that they had, "a
legal right to refuse to sign a union authorization card-
FILENE'S BASEMENT STORE 197
or to sign one", and, that the Company's position there-
on was, "You have a right to be for or against it, and we
are committed to protecting your rights in making an in-
formed and uncoerced decision" (Other content of the
letter is discussed infra, in connection with complaint al-
legations relating to Savageau )
Accordingly, I am once again more persuaded that it
was Krauth's awareness of Noonan's recent union card
activity at ADC that had occasioned Krauth's
report to Haskell, and in turn their prompt meeting with
Tempests, on the evening of July 15 In the interim there
was a round table meeting of Krauth and Young with a
number of employees, including Noonan, pnor to
Krauth's meeting with Tempesta, but not prior to
Krauth's report to Haskell
(3) Round tables
Personnel Manager Young describes Filene's round
table (RT) meeting as a meeting between associates (em-
ployees) and a facility manager, or (store) general man-
ager According to Young, the holding of RTs is proce-
dural, and it is a normal part of a personnel manager's
responsibility It was at least clearly an established store
meeting policy (G C Exh 8) While it is uncontested
that Filene's had previously held RT discussion meetmgs
at its store locations, there is only suggestion in the evi-
dence that it did so at DDC, but clear that it did not do
so at SDC (According to Young, the ADC supervisors
were all familiar with the round table procedure as they
came from the previous (DDC) facility At SDC, Em-
ployer holds General shop meetings, not RTs )
Matenally, Young relates that the RT discussion is an
open forum which gives the associate (employee) an op-
portunity to voice and air any concerns and suggestions
for immediate response of the facility manager, as well as
providing Employer an opportunity for a periodic
review of Employer's policies and procedures Young re-
lates that the RT is normally held in small groups of 6-7
employees, with attendance voluntary, lasts an hour, and
is attended always by the facility manager and personnel
manager
Young, who arrived in May from DDC, acknowl-
edged that the RT discussions were not initiated at ADC
in that month, and, on weight of evidence (I find) they
probably were not inaugurated until (at best) late June
(Krauth did not arrive at ADC until the end of May
The problems associated with opening the warehouse
were his immediate concern, not RTs Young first in-
formed Krauth about RT procedure, and then recom-
mended it Thereafter Young had to arrange a schedule
for employee attendance, and coordinate it with Krauth's
availability) In any event, in July and August there were
numerous round tables held at ADC, and Young ac-
knowledges that most, if not all the RTs, were conduct-
ed in an office (conference room) area
It is clear and I find that RTs had been held at ADC
prior to the RT of July 15 that Noonan attended, and, I
further find, in general, that attendance of employees at
the ADC RTs was pursuant to a schedule that had been
previously posted on the bulletin board Both Young and
Krauth have essentially testified that the attendance of
employees in small groups was per a schedule with em-
ployee attendance at given RT arranged (essentially) by
random selection, but in keeping with area workloads,
and with design for all employees to participate within a
reasonable period of time The General Counsel does not
contend that the initiation, or holding of Round Tables
at ADC, in itself, violated the Act
Noonan was previously aware what an RT was, and
he confirms that everybody was told that a new program
was being started where 5-7 employees would be picked
to attend a meeting with Facilities Manager Krauth and
Personnel Manager Young to discuss certain problems in
the facility Noonan also confirmed that a schedule for
all employees' attendance at RT as (previously) posted
on the employees' bulletin board, and Noonan recalled
that several RTs had been already held before the one he
attended Although there were 10 employees present
(rather than the usual 6-7) at the RT of July 15, I find
that the attendance of Noonan at the July 15 meeting
was pursuant to the above general procedure (It is clear
nonetheless, that many of the subjects raised by Noonan
in his recent conversations with management on July 13
and 14 were addressed in this meeting, e g, the frustra-
tion for employees in continuously catching problems,
problems caused by human error, or carelessness, pro-
spective area meetings, and the need for training and re-
training The subject of wages was also discussed, infra
Noonan attended his first (of two) 1-hour long RTs on
July 15 Employer held the RT, as was customary, at 2
p m, in the conference room located downstairs It is
otherwise significant to note that 10, not 7 employees
were present at this RT, and, that Muriel Raymond, and
apparently 8 other employees that Noonan did not know
attended it
b Krauth's alleged unlawful (1) interrogation of
employees, and (2) statement that wages would be cut
The complaint alleges that at a meeting of employees
on July 15 Facility Manager Krauth asked employees
what they thought of the Union, or why a union was
needed, and that Krauth told employees that their wages
would be cut if a union got in the warehouse facility
(1) Alleged interrogations
Again there is some degree of initial confusion in
Noonan's testimony related to alleged Krauth interroga-
tions Thus, Noonan initially testified that Kamel went
down the line and asked every single person if they
thought they needed a union, and why (they) themselves
thought they needed a union Noonan however then sub-
sequently testified that Krauth went around the table and
asked everybody why they thought they needed a union
Still later Noonan reaffirmed that Krauth went around
the table asking everybody how they felt about the
Union, and that he asked every single person, except
Noonan, if they were for or against the Union Accord-
ing to Noonan, most said no, that they were against it
Noonan did not recall an employee asking about the
Union first
Krauth acknowledged that there were discussions
about the union issue in some RTs However Krauth tes-
tified that he did not believe it was he who raised the
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union issue Krauth then explained that it was typical
that at the end of an RT meeting that he would ask the
employees in attendance if there were any other con-
cerns, problems, or issues that they (employees) wanted
to speak about Krauth testified that typically that is
where the union issue may or may not come up (In gen-
eral, I have no doubt and I find that is where it regularly
did come up )
Krauth also testified that he had been instructed that
he was not allowed to, and Krauth had relatedly cate-
gorically denied that he has ever, ask individual employ-
ees if they wanted a Union Krauth has also specifically
denied that he asked employees at the July 15 RT why
they wanted a union Young confirmed that union "pros
and cons" were voiced at the RTs Young categorically
denied that she had ever asked an employee in any of
these meetings whether they had engaged in union activ-
ity
Analysis of Alleged Interrogations
Once again Noonan's initial ascription of the alleged
unlawful interrogation to Kamel (albeit twice later as-
cnbing it to Krauth) has the effect of seriously reducing
his reliability in the matter, especially in the light of the
consistent and credible denials of Krauth and Young
There is still another reason why I do not credit Noon-
an's recollection of the alleged unlawful Krauth interro-
gations of employees in this matter
Krauth and Young have mutually testified essentially
that Young made notes of the subjects discussed in the
RTs, that she regularly wrote up a summary, and that
the summary was first reviewed by Krauth Krauth testi-
fied that the summary was normally then posted on the
employees' bulletin board
Whether the minutes of the July 15 meeting were so
posted or not, as compared with Noonan's recollection
of Krauth going around the table asking individual em-
ployees why they thought they needed a union, or, how
they felt about the Union, or if they were for or against
the Union, except Noonan, the summary of that meeting
(R Exh 11) that Young has testified she had previously
prepared from contemporaneous notes Young had made
of that meeting, shows that a question was in fact pre-
sented to 9 (of 10) employees present Moreover the
question is one whose subject nature is compatible with
it not having been posed by Krauth to Noonan, in light
of recent circumstances It addressed the individual em-
ployee's feelings about going to immediate supervision
with problems
It is there recorded, "When the question was posed
'Do you feel you can go to your supervisor with a prob-
lem' eight associates out of nine responded positively" I
am convinced that is the basis for Noonan's present
recollection of Krauth's alleged interrogation of individ-
ual employees (except Noonan), as to whether they were
for the Union, and for his recollection that most said
they were not Only the more notable then in these cir-
cumstances, the General Counsel has offered no evidence
that is corroborative of Noonan's recollection of
Krauth's interrogation of employees at this RT meeting
Moreover, Krauth's denial of any direct questioning of
employees about the Union in the July 15 RT meeting
with the employees, on this record, appears as clearly
the more consistent, corroborated, and credible In short,
I credit Krauth's testimony to the effect that employees
were prone to bring up the subject of the Union volun-
tarily, albeit usually in response to Krauth's question at
the end of the meeting whether there was any other
matter they wished to discuss It will accordingly be rec-
ommended that the complaint allegation that Krauth at a
meeting on July 15 unlawfully asked employees what
they thought of the Union, or, why a union was needed,
be dismissed in its entirety
(2) Krauth's alleged statement that wages would be
cut, if the Union got in at the warehouse facility
Initially, Noonan related that Krauth had a contract
for Filene's Basement in Somerville (SDC), and, refer-
ring to a contract going around, Krauth had said, "The
wages in that contract is the ones that we would have if
the Union came in" Noonan asserts the wages (in the
contract) were lower According to Noonan, Krauth also
mentioned the insurance would rise
At one point Noonan seemingly recalled that Krauth
had specifically mentioned $4- to $4 50-an-hour wage
rates, though then less surely, that he had probably re-
ferred to the contract at Somerville The then current
SDC contract wage schedule, inter aim, did provide
Start 60 day
Grade I Marker 360 3 85
Grade II Utility 4 25 450
Grade III Head of Stock 445 470
On another occasion Noonan recalled Krauth said the
wages would go down to $4 to $4 50, but then recalled
Krauth had made no connection with a contract
Though Noonan relates that the Union had told him that
there were some (employees) in Somerville making $8 an
hour, Noonan did not recall (relatedly) asking Krauth
about employees in Somerville making $8 an hour, nor
did he recall, one way or the other, saying, "If the
Union gets in here we'll get $8 an hour" Certainly con-
fusedly, if not without fatal inconsistency, Noonan seem-
ingly ended up asserting that at the RT meeting Krauth
did not refer to a contract, nor did Noonan see one
there
Noonan has significantly acknowledged that in an inci-
dent report he made out for the Union on July 18 (thus
notably much closer to the event) Noonan had there re-
corded his recollection that at this meeting he (Krauth)
"implied to us that if we got a Union we would have to
pay initiation dues of $5000 and we would also get lower
wages than we were earning now" (Emphasis added )
Noonan then asserted that ICrauth brought up that our
wages be lower and our insurance would go up
Krauth again testified that he was counseled not to,
and he has categorically denied that he ever did, tell any
(ADC) employee that if the Union got in, or were select-
ed, wages would go down, but their benefits might rise
Significantly, Krauth also testified that he never indicated
FILENE'S BASEMENT STORE 199
to (ADC) employees that if the Union came in, the
SDC/DDC contract would be applied to them Indeed,
Krauth testified that he did not have or use a copy of the
Union's contract (or any other union documents) in RT
meetings
Kamel has testified that at (I find) a subsequent train-
ing session he was given a copy of the Union's contract
for use as a tool in discussions with employees, if a ques-
tion came up on it Question of garbled Noonan recollec-
tion of Krauth (not Kamel) discussion of the SDC con-
tract with Raymond and other employees aside, Kamel
in any event has also categorically denied that he had
told employees that these were the wages employees
would be paid, if the Union came in, or, that he ever
told the employees that this contract would be in effect
at ADC, if employees voted the Union in
Noonan's testimony on the point of Krauth's use of
SDC union contract at the RT clearly vacillated, supra
Krauth's testimony that he did not have or use the SDC
contract, in contrast, did not I credit Krauth's denial of
his use of the union contract (or union papers) at RTs,
and particularly so as to the material July 15 RT meet-
ing
Krauth otherwise was not sure how the subject of
wages initially came up in the July 15 RT meeting I am
persuaded however, by weight of credible evidence of
record, that it initially came up as a Krauth general in-
formational statement made to employees based (at least
in part) upon Noonan's prior report of employee con-
cerns about low and different wages, whether raised
again by Noonan in this meeting, or, as appears far more
likely to me, as a subject Krauth concluded warranted
such responses based upon Noonan's earlier registered
employee wage complaints of July 13 and/or 14
In any event, I conclude, and find, that it was Krauth
who initially brought up the subject of wages, I fmd he
did so comparatively early in the July 15 meeting, and
probably right after Krauth had voiced an approval of
Noonan's suggestion that the Employer's Associate of
the Month program (an already established program), be
refined to include an overall Associate of the Year, as
would reasonably appear from the minutes kept of the
meeting (R Exh 11)
On the subject of wages, I find that Krauth first told
the employees that in regard to some people's feeling
that they should be making more money, that wage sur-
veys had been done, and, that Filene's was confident , that
their wage package for the (newly) opened facility was
competitive Krauth also noted the Company's existing
commitment was to a continuing survey on a quarterly
basis to remain competitive Krauth then further in-
formed the employees that one (such survey) was then in
process of completion (There is no related complaint al-
legation alleging any unlawful promise of benefit arose
from the statements Krauth made at this meeting )
Krauth's own recollections on the discussions about
wages in this meeting however, were not entirely con-
sistent Initially, he did not recall a discussion about what
the wages and benefits were at SDC On another occa-
sion, and then with (essentially) the minutes' summary
support (R Exh 11), Krauth recalled that Noonan had
asked at this meeting why the people in Somerville were
making $8 an hour, and, that Krauth had replied, there
may very well be people in Somerville making $8, but
not with 3-4 months' service The minutes reflect the
question was posed in terms of what about the people in
Somerville making $8 an hour, itself as compatible with a
prior Krauth reference to the Union's current SDC con-
tract providing for $4 to $4 50 wages, as (at least at one
point) Noonan had essentially indicated
Relatedly, Noonan did not recall one way or another
asking Krauth about employees in Somerville making $8
an hour However, Noonan acknowledged that the
Union had already told Noonan that there were some
people in Somerville making $8 an hour I conclude and
find that it is likely that Krauth made reference to the
Union's contract applicable at SDC as providing for
starting wage rates of $4 to $4 50, in comparison with
the $6 paid warehouse workers at ADC There is sub-
stantial support for this finding in Young's testimony I
thus further credit Krauth's account and Employer's
minutes thereof that Noonan then made the inquiry what
about the $8 rates paid at SDC, and, that Krauth re-
sponded with the length of service distinction as above
On another occasion, Noonan seemingly recalled that
he had made the SDC contract rate inquiry after Krauth
had mentioned lower rates of the Union's contract that
would be applicable (at ADC) Noonan however re-
called (essentially) that the Union had not told him, and
he did not know at the time that the Union was seeking
to have the Union's existing contract applied to ADC
Thus, Noonan relates that at this time (July 15), the
Union had not told Noonan that the Union had a griev-
ance pending against Filene's Noonan acknowledged
that he now knows that the Union is seeking to bring
ADC employees under the Somerville collective-bargain-
ing agreement Of course Employer knew of the griev-
ance, and the Union's intent in its regard
In the end, I am wholly persuaded that Noonan had
initially concluded from what Krauth said only that
Krauth had implied that if the Union got in at ADC, it
would mean lower wages for ADC employees, but (I
conclude and find) that Krauth did not specifically say
that Indeed, Noonan has confirmed that ICrauth did not
specifically say either that "If the Union gets in here this
is the contract that will apply to you", or, "If the Union
gets in here, you'll be under this contract and the wages
in this contract are $400 to $4 50" To the contrary,
Krauth testified that in regard to the Union he had said
(and Noonan admitted of the possibility that Krauth had
said on that occasion) that everything is negotiable, that
wages could just as easily go up, stay the same, or go
down, and that Krauth had said, it's all negotiable
Moreover, Krauth has testified that the mmutes of the
meeting (R Exh 11) accurately record an additional
statement he made at the time, viz, "Its always been the
mtention of Filene's Basement to offer employees in its
non-union facilities wages, or benefits as good as, or
better than, those offered at the union facilities" Relat-
edly, Krauth testified that was all he said, and he gave
no explanation to employees of the basis behind that
statement of Filene's policy
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A related argument is made in brief of the General
Counsel that this latter statement not only would coin-
cide with a discussion of the Somerville contract, as
Noonan testified, but also would tend to impart a clear
message to RT participants—"the Employer does, in fact
discriminate in compensation decisions based on a facili-
ty's union status." The statement appears on its face am-
biguous in meaning, e.g., beyond (collectively) paid em-
ployees who are represented by a union. The complaint
did not allege this statement of Krauth independently
violated the Act.
In that regard, at hearing the Respondent on several
occasions inquired whether the General Counsel was
seeking to expand the complaint; and on each occasion
the General Counsel clarified he was not. Indeed, as ob-
served by Employer in brief, albeit in other context, the
General Counsel on one such occasion stated definitively
and broadly that he was not alleging any violations other
than those that were alleged in the complaint.
The instant statement is fully compatible with the de-
termined Noonan conclusion that Krauth had implied
there would be lower wages if the Union came in at
ADC, and indeed, I am persuaded that this statement in
principal measure is the basis upon which Noonan had
formed a conclusion that Krauth had implied there
would be lower wages at ADC if the Union came in.
But again, that is not what Krauth actually said. He said
the contrary. To the related extent the General Counsel's
urging is susceptible of contention that the statement also
connoted, Employer stated an unlawful policy to grant a
discriminatory benefit to ADC as a nonunion facility,
that matter simply was not alleged in complaint, is nei-
ther urged at hearing by the General Counsel, nor
proven herein; and accordingly it is not found.
The existing complaint allegation that Krauth told em-
ployees that wages would be cut if the Union came in,
need not be further belabored. I have found, as urged by
the General Counsel, that the RT meeting of July 17 ad-
dressed many of the concerns raised by Noonan. Howev-
er, viewed otherwise, the several versions of Noonan's
testimony given in support of the complaint's allegation
that Krauth told employees that their wages would be
cut if the Union got in the warehouse, or came in ADC,
if not to be viewed as flatly contradictory, are at least
shown to be substantially confused, fatally uncorroborat-
ed, and on this record constitute recollections that are
simply left exposed in those circumstances as unreliable.
In contrast, Krauth's testimony in specific denial of
making any statement that wages would be cut if the
Union came in, pursuant to prior employer instruction, in
• the main, appears as the more internally consistent; in
many respects was substantially corroborated; and it is
congruous with other more discernibly credible evidence
of record.
Accordingly, for all of the above reasons, it will be
recommended that the complaint allegation that Krauth
told employees in a meeting with employees held on
July 15 that their wages would be cut if the Union got in
the warehouse be also dismissed.
All but one of the remaining complaint allegations re-
lated to Noonan allege employer conduct that purported-
ly occurred on July 17, including the issuance of an al-
leged discriminatory warning to Noonan. The July 17 al-
legations are best addressed collectively in order to fa-
cilitate the review and individual consideration of the
scope of certain evidentiary rulings made thereon.
Initially the alleged unlawful disciplinary warning was
purportedly based upon the complaint of three employ-
ees that they had been harrassed by Noonan. The evi-
dentiary rulings arose, however, in connection with Re-
spondent's failure to produce a certain subpoenaed docu-
ment (purportedly) recording a second incident, or
second complaint registered against Noonan, relevant to
the disciplinary warning administered to Noonan on July
17; and, relatedly, Respondent's subsequent direction of
Personnel Manager Young not to testify about that inci-
dent, despite Young in the interim having stated that it
was the second incident that had triggered Respondent's
disciplinary award of the oral warning to Noonan. A
wholly separate matter for consideration, not to be con-
fused with any of the above, is the indicated unavailabil-
ity of a written record of counseling (recording the issu-
ance of the above oral warning) signed by Young and
Noonan, and itself a subject of a separate, but related
complaint allegation.
c. July 17 allegations
Stafferi's and Kamel's alleged unlawful conduct in: (1)
issuing an oral warning to Noonan; (2) accusing Noonan
of harrassing, and agitating other employees about the
Union; and (3) threatening to terminate Noonan because
of his union and/or protected concerted activity.
Respondent's alleged unlawful conduct in: (4) making a
written memorandum of an earlier oral warning it issued
to Noonan; and (although I find infra that an additional
Respondent alleged act on July 17 was a separate and in-
dependent act, I set it forth presently for the review).
Stafferi's alleged unlawful conduct in: confiscating, and
not returning union literature to an employee (Noonan)
who was outside lawfully distributing literature to other
employees; and telling Noonan that what Noonan was
doing was illegal, and, that Noonan could not solicit on
Respondent's property.
i. The failure of Respondent to produce a relevant
and lawfully subpoenaed document
The General Counsel had timely subpoenaed, and at
the outset of hearing called for the production of the
entire content of (former) employee Noonan's personnel
file, the same to include any documentation provided to
Employer by an employee, and upon which the Employ-
er had relied in meting out discipline to Noonan. The
Employer produced Noonan's file, which included an
Employer's memorandum recording the report(s) of
three employees who had promptly registered a com-
plaint with their Employer of recent Noonan harrass-
ment of them at lunch in the cafeteria on July 16.
In further response to the subpoena however, Re-
spondent by counsel, at the outset, also advised that Em-
ployer had received a second complaint on Noonan from
an employee so distressed that the employee would make
the complaint only if she was promised that neither her
name nor the substance of her complaint would ever be•
FILENE'S BASEMENT STORE 201
made public Respondent advised that at the time the
Company had made that promise to the employee
Respondent asserted that it did not produce this docu-
ment because of Employer's desire to protect the confi-
dentiality of the individual, as it had promised it would
do Upon immediate observation that the confidentiality
of the document was being raised by Employer only pur-
suant to Employer's asserted policy of keeping such re-
ports confidential, and not by any recognizable rule, or
pnnciple of law, I ruled that the documentation of the
second incident was well within the scope of the General
Counsel's subpoenaed documents Accordingly, I or-
dered that Respondent produce the second-incident doc-
ument
At the outset, Employer was additionally put on
notice that upon Respondent's continued failure to timely
produce the document, and, in lieu of the General Coun-
sel's pursuit of a subpoena enforcement proceeding in
Federal district court to compel the Employer's produc-
tion of that document, I would in that circumstance en-
tertain and draw any and all adverse inferences that
might be shown by the evidence as appropriate to be
drawn because of Employer's failure to timely produce
the relevant document, indeed, one that (essentially) Re-
spondent as much as acknowledged was relevant to the
material complaint allegation(s) Nonetheless, Respond-
ent did not produce the document
There was no indication in the previewed evidence, or
contention from the parties at the time, that it was the
second incident (and not the above three employees'
complaint of Noonan's harrassment) that had in fact
"triggered" the issuance of the July 17 oral warning
given to Noonan, which is the subject of complaint alle-
gation That revealment came much later, and it is dis-
cussed further infra
The General Counsel called (former) ADC Personnel
Manager Young as his first witness Young initially testi-
fied that Noonan was given an oral warning about an in-
cident occurring in the cafetena between Noonan and
three other employees Though at first Young could not
recall the details, Young later recalled that Krauth had
spoken to Young the same day (July 16) that three em-
ployees had reported to Krauth that Noonan was "agitat-
ing" the associates (employees) Young acknowledged
Employer's awareness at the time that the employees had
been discussing the pros and cons of the Union Young
otherwise defined "agitating" as being somewhat strong-
er than bothering, and then testified that Employer did
not tolerate that type of behavior in associates
Young next recalled that she was present in her office
with Operations Manager Kamel and Vice President of
Labor Relations Staffen on July 17, when Kamel began,
and Staffen took over and completed a counseling of
Noonan as to (essentially) what Employer tolerated and
did not tolerate as far as employee behavior in the facili-
ty Young did not recall any warning statement(s) made
to Noonan that, "the next time that this sort of thing
happens,"—"you will be terminated"
Noonan recalled that Staffen did all the talking Staf-
fen asked Noonan if Noonan had done anything within
the past couple of days to agitate or harass anybody
during work hours Noonan replied no Noonan further
testified that he had no idea what Staffen was talking
about According to Noonan Staffer' then said he had re-
ceived a complaint that Noonan had done this, and, Staf-
fen repeated the question, could Noonan recall any inci-
dent that might have caused this complaint Noonan re-
plied no, and, Noonan asked if Staffen could give
Noonan any of the specifics, who, what, when, etc, but
Staffen would not say
According to Noonan, Staffen did not mention the
Union, but said (essentially) the complaint was about har-
rassmg employees (Noonan later clarified Staffer' said
he had received a complaint that Noonan had been har-
rassmg and agitating people, keeping them from their
work, and mterfenng with their jobs ) Staffen told
Noonan that Staffen was going to give Noonan an oral
warning, and, if something was going to happen like that
again, Noonan would be terminated
The General Counsel also introduced in evidence a
memo prepared by Young in summary of discussions that
Muriel Raymond and two other employees had held
with (I find) both Krauth and Young (immediately after
lunch) at approximately 12 50 p m on July 16 That
report (G C Exh 9) covered Raymond's report of being
bothered by Noonan throughout the entire lunchtime,
and, specifically complaining that Noonan was, "yelling
at them, asking why they did not want a union and tell-
ing them what the union could do for them" One of the
other employees related that they had told Noonan pre-
viously that they were not interested in the Union, that
they had worked for a union before, and they did not
want to work for a union again, and though she had told
Noonan to "Shut up," Noonan had persisted in yelling at
them, mcludmg telling them that when he became a state
trooper, they better "Watch out" The memo records
that all three said Noonan was swearing at them, "saying
`F-n this, F-n that
The memo also records the three employees made a
request of Krauth to stop Noonan, with the employees
asserting they have a right to eat in peace Significantly,
the memo then records, "Steve and I agreed that they
had the right to enjoy their lunch in peace Steve said he
would look into it and that type of activity would stop"
As the General Counsel's witness, Noonan later con-
firmed that on the day before, July 16, Noonan had
spoken about the Union to the employees at lunch in the
cafeteria According to Noonan, there was a group of
about 25 employees present during lunchtime They were
all seated at a long table located to the side of one big
open area room 1 The employees were eating lunch
and/or playing cards This was the third time Noonan
had addressed a group of employees at lunch or break
time, having on one such occasion previously handed out
(as earlier noted) union authorization cards to those in-
terested At this time Noonan was wearing a union hat
openly (Noonan's testimony that he was the most active
union supporter since (supplied date) July 13, is credited
only to the extent congruous with earlier credited evi-
dence herein ) Noonan relates that he was kneeling on a
chair, midtable, and he addressed the group, speaking to
them for about 5 minutes
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Present were Muriel Raymond and (at least) two
coemployees (who worked in Shoes area), both of whom
were vocal, along with Raymond, in responding to
Noonan Noonan testified that initially he spoke to the
group as a whole According to Noonan, he told the em-
ployees, "Some of the things Steve Krauth said wasn't
true" Noonan then said, they were not going to get the
same contract as Somerville, their wages would not go
down, and their insurance (sic) was not going to go up
Noonan testified that one woman, two-three (seats)
down, almost immediately said, "Are we going to have
to listen to this shit every lunch time" Noonan testified
that he did not reply to that, but kept on speaking to the
group Then a few employees across from him said, they
did not think we needed a union, they just needed to
stick together However, Noonan readily conceded that
they (the three employees) were really upset that
Noonan had brought that up during lunch
To the extent Noonan on occasion has asserted he re-
mained calm and was not personally emotional, I am not
at all persuaded of that Noonan much more convincing-
ly related on other occasions that he was there trying to
prove his point to the group, that the conversation ad-
dressed to the group quickly devolved into a conversa-
tion between Noonan and three employees with the
three employees excitedly telling Noonan that they did
not believe him, and they were not going to listen to
this Noonan further testified that he felt it was like a
three-on-one confrontation, and, that they had jumped
him, that two of the three employees could not talk civil-
ized about it, that he had always helped these employees
and done them lots of favors, and that under all these
circumstances, he also got hyped up (excited) Noonan
then acknowledged he had raised his voice, as he asserts
they did
Noonan repeatedly denied that any of the three em-
ployees had said to leave them alone so they could eat
(their) lunch in peace On cross-examination, Noonan
specifically denied that he ever said to any of the three
employees (women) that when he got to be a state troop-
er, he was going to get them Neither did he recall
saying that they should watch out, nor recall his use of
profane language In passing I observe that the summary
report of Young on the complaints of the three employ-
ees while it reflects Noonan's statement that the employ-
ees should watch out when he became a state trooper,
and did use improper language, it does not record any
threat by Noonan to get the employees, and no evidence
of it (a threat to get employees) appears otherwise of
record However, in an incident report made for the
Union on July 18 (R Exh 2), Noonan there acknowl-
edges that the three employees got mad, and Noonan
was sure they went to management and complained that
Noonan was harassing them
u Respondent's direction of a witness not to answer
certain related questions
Young has testified that she was not aware that the
three employees had prepared statements on the cafeteria
incident (and there is no evidence offered that they did)
However, Young then related that others (sic) not in-
Niolved in the cafeteria incident had Young proceeded to
testify, that as she recalled, it (the cafeteria incident) was
not the entire reason that Noonan was counseled Indeed,
Young then further testified that there was another specific
incident that had triggered the counseling On cross-exami-
nation of Noonan (over the objection of General Coun-
sel), Respondent established (relatedly) that later on that
day while working, Noonan had asked Young, "if I got
the warnmg because I was discussing the union at
lunch", and that Young had on that occasion replied no
Upon immediate and pressed the General Counsel's in-
quiry of Young as to what that triggering incident was,
Respondent, by counsel, instructed the witness not to
answer the question Essentially, Respondent then again
offered in explanation that the subject incident on which
Young was presently being asked to testify, was the same
(second) incident that involved the promise made by the
Company to an employee that neither the employee's
identity, nor the nature of her complaint, would become
public, and that the Company felt obliged to keep their
promise to the employee (on whose report it had recent-
ly been asserted that the warning to Noonan had actually
arisen) Despite observance of these connected circum-
stances, and specific direction, the witness thereafter re-
fused to answer the question
The question as posed and the witness' refusal to testi-
fy clearly involved the same reported incident concern-
ing which Respondent had earlier refused to produce a
lawfully subpoenaed and relevant document, though this
time testimony of Respondent's personnel manager had
now also declared that the so-called confidential incident
was the very incident that had initially triggered Re-
spondent's discipline (oral warning) of Noonan In those
circumstances, Respondent's legally unjustified refusal to
the General Counsel of relevant documentary and testi-
monial evidence beanng thereon (despite the direction to
produce and to testify), while Respondent itself proposed
to continue to seek to defend the same complaint
allegation(s) on its own asserted (other) grounds (the
three employees' complaint of Noonan harrassment) with
its own proof offer thereon, in my view then (and now),
simply would have constituted a flagrant abuse of Board
procedures, and it was not permitted
The abuse is one not sufficiently ameliorated by Em-
ployer's mere statement at heanng that it recognized that
maintaining the promise of confidentiality in this manner
might affect Employer's ability to defend this particular
warning Under my view of the urged authorities at
hearing and/or in brief, it necessarily did, on the basis of
adverse inference and other reasons to be more fully dis-
cussed infra, but not however, because of an additional
nonproduction of the related written record of counsel-
ing, which Employer's nonproduction, it would appear,
is adequately explained of record
m The explained unavailability of Noonan's record
of counseling
Thus, I do not rely on any adverse inference that may
be urged to arise from Respondent's failure to produce
the also lawfully subpoenaed (written) record of counsel-
ing (RC) that (I find) Noonan had effectively received
the morning of July 17 Young testified that an RC form
FILENE'S BASEMENT STORE 203
is a record regularly kept in the personnel file to indicate
any type of discussion held between an associate and a
supervisor and/or personnel manager Young testified
that there was a record of counseling prepared on the
Noonan warning, and she recalled that Noonan and she
had signed it The parties have stipulated that the file of
Noonan contained no RC, at all
Young testified that the Noonan RC properly should
have been placed in Noonan's file, though she had no
specific recollection that she had done so Young also
testified credibly that her own recollection of the
Noonan RC was that she had prepared it, and Noonan
and she signed it, that it was a general warning on his
agitating employees, and that it did not specify names It
did not describe the (second) incident Young otherwise
relates she has had no access to (ADC) file(s) since No-
vember
In further response to the matter of a production of
the Noonan RC document pursuant to the subpoena law-
fully served on it, Respondent's counsel thereupon addi-
tionally represented that all the files were searched for
this particular document including (filed of) the involved
supervisors, and that, if the document exists, it had not
been found Respondent otherwise essentially contended
at hearing that despite a diligent effort it had made to
locate this document, it was not to be found I conclude
and find therefrom that the Noonan RC was involuntar-
ily not available in this proceeding However, I also find,
present whereabouts of the document aside, that a writ-
ten RC on the Noonan oral warning was prepared, and
that it was issued to Noonan in that it was signed by
Noonan and Young on July 17
iv The evidence sanctions
What was not produced purusant to the subpoena
duces tecum then was solely a certain document, admit-
tedly in Respondent's possession, asserted as reporting a
second incident of employee complaint against Noonan,
and one which witness Young had now further testified
had triggered the warning given to Noonan on the morn-
ing of July 17 Moreover, Respondent's prior nonproduc-
tion of the lawfully subpoenaed document, previoulsy
ruled relevant and producible, was now shown accompa-
nied by Young's further refusal (upon Respondent's spe-
cific instruction) to answer any of the General Counsel's
prior questions that would have served to identify the
complaining employee and/or a purported second em-
ployee complaint on Noonan conduct that purportedly
had led to Noonan's discipline
No recognizable privilege justified the Respondent's
repeated refusals of documentary and testimonial evi-
dence bearing on this material matter Though I had spe-
cifically ruled the question proper, and specifically di-
rected witness Young to answer the open question and
identify the incident that Young asserted had led to the
questioned discipline, witness Young refused, the Gener-
al Counsel promptly called for imposition of sanctions
Respondent urged as appropriate sanction that Young's
related testimony be stricken
The witness had Just testified that Respondent had
viewed the second incident as the incident of critical sig-
nificance in Respondent's decision to issue an oral warn-
mg to Noonan in the morning of July 17, and yet it was
Respondent that was even then repeatedly thwarting
General Counsel's procedural efforts to establish all the
material circumstances of that purportedly tnggenng in-
cident for the Board's proper evaluation of the underly-
ing complaint allegation, inter aim, that the oral warning
given to Noonan that day was actually discrimmatonly
based
Respondent's suggestion that witness Young's most
recent testimony (viz, that the second incident triggered
the warning) be stricken as the normal sanction for a
witness' refusal to testify on a relevant matter, I ruled in
this instance was inappropriate I also ruled that I would
thereafter draw all appropriate adverse inferences war-
ranted from Employer's continued refusals in this matter,
that the General Counsel would be allowed to establish
the relevant facts of the incidents related to the warning
(e g, as involving either protected conduct, or conduct
of nature not to cause a forfeiture of Noonan's protected
status) by direct and/or secondary evidence such as
might be available to the General Counsel, and that, in
turn, the Respondent would not be allowed to thereafter
controvert that evidence by its own proffer of direct or
secondary evidence in these matters
On mquiry of Respondent as to the scope of the
ruling, viz, as extended to the first reported incident, I
specifically ruled that I could not thereafter sefitrate the
two (incidents) in light of Respondent Employer's with-
holding of evidence as to a now asserted causitive
second incident As urged by the General Counsel, I pre-
cluded Respondent from, in effect, offering, countervail-
ing evidence on the selected incident of its choice In
short, I viewed the (reported) two incidents as now In-
separably interwoven for evidentiary resolution, and ac-
cordingly, appearing inseparable as well as for the pur-
pose of sanction ruling on an apparent improper and se-
lective withholding of material evidence bearing on the
asserted critical second incident report
The ruling thus effectively precluded Respondent's
proffer of countervailing evidence on both first and
second incidents that were being related to the oral
warning as described by Personnel Manager Young In
that regard, Noonan has testified that he engaged in
proper union activity not only in the cafeteria (first inci-
dent), but (essentially) at all times
Thus, Noonan specifically testified that he told Staffen
that he did not know what Staffen was talking about
when Staffen had first asked Noonan about, and then
issued an oral warning to Noonan for harrassment and
agitation of employees Contrary to the General Coun-
sel's urging for such additional sanction, the above ruling
was not extended to preclude Respondent's cross-exami-
nation of General Counsel's witnesses (specifically
Noonan) on the material events that were offered in
prima facie support of the alleged discnminatonly oral
warning issued to Noonan for having engaged in con-
tended protected concerted and/or union activity
Finally, although on one occasion thereafter Respond-
ent said it was prepared to offer no evidence on the
warning allegation, and put the General Counsel to his
proof thereon, on another occasion it would appear that
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
,
Respondent has effectively reserved its position that an
application of the Board's preclusionary evidence rule to
the first reported incident of the three employees' com-
plaint to Employer of Noonan harassment, in the circum-
stances of this case, was improper Accordingly, the
issue is deemed one to be addressed Having further re-
flected on the entire matter, I now reaffirm the prior rul-
ings
Analysis
The failure of a party to produce material evidence
(either testimonial or documentary), that is established to
be in its possession and/or control, supports, the drawing
of an adverse Inference that the evidence if produced
would not be favorable to the party withholding it, and
even a failure of the other party to have subpoenaed the
evidence, would in no way diminish the application of
the rule, Master Security Services, 270 NLRB 543, 552
(1984) Though normally the drawing of an adverse in-
ference is discretionary with a trier of fact, and certain
circumstances (not present here) may serve to explain a
party's 'failure to produce material evidence, absent such
an adequate explanation, in other circumstances, e g, of
a subpoena refusal, the adverse inference appears one
which must be drawn, Auto Workers v NLRB, 459 F 2d
1329 (D C Or 1972), and see the discussion 1333-1336
Thus, when a lawful subpoena process is invoked, and
a relevant document (as here) is even then wrongfully
withheld, or, when a witness has refused to answer a
question theretofore determined relevant and proper, and
though directed to do so (as here), then force of any pre-
existing proper adverse inference is but the more
strengthened Not only that, but the inquiring or offend-
ed party may then be permitted on request and/or ruled
on that procedural development as to be thereafter al-
lowed to use any secondary evidence that is available to
that party to establish any of the material facts appeanng
to be wrongfully withheld The offended party may con-
tinue to urge that all appropriate adverse inferences be
drawn from the continued improper refusal(s) of (docu-
mentary and/or testimonial) evidence, such as may there-
after appear reasonably warranted by the evidence of
record presented as a whole
The offending party is properly precluded from either
its own use of the improperly withheld direct evidence,
or, from its own later offer of its own secondary evi-
dence in an attempt to rebut, or controvert any second-
ary evidence that may have been available to, and been
offered on the matter by the previously offended party
as an alternative to its seeking enforcement action(s) for
the production of the denied evidence, cf International
Medication Systems, 244 NLRB 861, 862 fn 2 (1979),
modified (reversed in pertinent part) 640 F 2d 1110, 1116
(9th Cir 1981), Bannon Mills, Inc , 146 NLRB 611, 613,
623, 633-634 fns 4 & 36 (1964), American Art Industries,
166 NLRB 943, 951-953 (1967), enfd in pertinent part
415 F 2d 1223, 1230 (5th Cir 1969), NLRB v Sprague ci
Son Co, 428 F 2d 938, 942 (1st Cir 1970) (forfeiture of
cross-examination right upheld, but with reference to
things which could have been produced by complying
with the subpoena)
Employer has argued that the Sprague case, supra, in-
volved a Respondent Employer that had wholly failed to
respond to subpoena (the nonproduction being noted as
well beyond contested areas) In contrast, Employer
urged that here Employer has only narrowly refused a
production, and, it did so only to protect a promise of
confidentiality it asserts it had previously made to an em-
ployee
Assuming Employer's promise of anonymity was given
to the reporting employee in good faith, the privilege es-
sentially attempted to be raised by Employer is not one
that it has been able to show has been previously recog-
nized at law, or in Board precedent Employer's refusal
to produce the related material document, when lawfully
subpoenaed by the General Counsel and directed to do
so, on a claimed privilege not recognized by the Federal
Rules of Evidence, or provided for in Board proceed-
ings, stood unjustified in law Employer's later refusal to
allow Personnel Manager Young with knowledge of that
incident to testify as to the incident came in its own
rather significant circumstances In her testimony, Young
acknowledged the first incident had mvolved pro and
con union discussion by employees Young had only then
asserted that the first incident was not the entire reason
for the warning given Noonan, saying that there was a
second (documented) complaint that was the triggering
incident for the issuance of the warning in issue Despite
obvious materially of the incident, Young (on direction)
refused to testify further about it c
The First Circuit's opinion in the Sprague case, supra,
does not indicate that that court would be in basic dis-
agreement with later observation of the D C Circuit in
Auto Workers, supra, 459 F 2d at 1342, that production of
many documents does not excuse a flagrant violation of
lawful Board subpoena process, and, that a selective obe-
dience thereto merely reinforces an adverse Inference
that lies where other material evidence lawfully subpoe-
naed is wrongfully withheld, as was the case (I find)
here But see and compare the different treatment afford-
ed a subpoenaed document refusal, and testimonial evi-
dence use that was not in the control of the offending
party, PSC Resources v NLRB, 576 F 2d 380, 389 (1st
Cir 1978), and Crowley v Teamsters Local 82, 679 F 2d
978, 995 (1st Cir 1982)
The issue presented is basically one of assessing proper
scope of warranted preclusionary sanction to be placed
upon the Employer, where it has wrongfully withheld
evidence of a material incident that its involved person-
nel manager had asserted had triggered the oral warning
in issue The new question presented is, should the Em-
ployer in circumstances of clearly unlawful refusals of
evidence on that material incident (but impacting on
anther incident) be itself permitted to later produce evi-
dence on the other incident that it would then appear to
have elected to urge in its defense of the complaint alle-
gation that its issuance of the oral warning to Noonan
was discriminatory I think not
For the Employer, at the same time it has withheld
material evidence in the above manner and circum-
stances from the General Counsel (despite related direc-
tions to produce and to testify), to also then seek to press
I.
FILENE'S BASEMENT STORE 205
on with its own offer to direct evidence to establish the
earlier reported incident as the then (in effect) sole inci-
dent to be thereafter addressed in the evaluation of the
discipline awarded Noonan, despite the recent testimony
that the other incident was at least a significant interplay
in my view, simply invoked direct, indeed a flagrant,
abuse of Board procedures for factfindmg, and it was not
permitted at hearing
In light of the above authorities, I remain of firm view
that it would simply involve too substantial an abuse of
Board hearing processes for Respondent to be permitted
in this manner to have itself refuse to provide documen-
tary and testimonial evidence of a material incident avail-
able to it alone, despite the General Counsel's use of
lawful Board processes to obtain it, and for Respondent
to be allowed at the same time to (m effect) selectively
advance another incident of its choice in defense of its
questioned discipline of Noonan This is deemed particu-
larly unwarranted where it has by its own unjustified
evidence refusals both hampered the factfinder, and pre-
cluded the Board from an analysis of the withheld
event's overall bearing on the complaint issue
It follows Respondent's evidence preclusion was war-
ranted The underlying issue of the alleged discriminato-
ry issuance of an oral warning to Noonan is properly to
be decided under the above authorities on the basis of
the General Counsel's direct and secondary evidence
Respondent was permitted to cross-examine the testimo-
ny of the General Counsel's witnesses, specifically Noon-
an's testimony offered in prima facie support of the com-
plaint's allegation that Employer had issued a discrimina-
tory oral warning to Noonan because he engaged in pro-
tected concerted and union activity
Over the General Counsel's objection, cross-examina-
tion was permitted (essentially) of Noonan's direct testi-
mony in this matter in support of prima facie case that
the oral warning given him was for protected concerted
and union activity, and, primarily to aid in the resolution
of issues of credibility thereon It would appear its use in
the above circumstances (where Respondent has with-
held certain evidence that affects its use of other evi-
dence), is a matter left within the sound discretion of the
trier of fact See, e g, an indicated cross-examination use
in American Art, supra, 166 NLRB at 952 In any event,
the cross-examination that was allowed in this case can
afford the Employer no additional defense to these alle-
gations
The adverse inference is applied on shift of the burden,
Interstate Circuit Inc v United States, 306 U S 208, 225-
226 (1939), and see related discussion in Auto Workers,
supra, 459 F 2d at 1344-1345 There is no question that
as of the morning of July 17, the day the warning issued
to Noonan, Noonan was then well known by the Em-
ployer to be a very active union adherent, and, in work
performance, known to be an exemplary employee who
had never received a warning before Respondent un-
questionably then knew that prior to July 15, Noonan
was soliciting union card signatures at ADC, and that on
July 16, Noonan was actively and prominently engaged
with employees at lunchtime in the employee cafeteria in
a discussion of the pros and cons of an organization of
the Union at ADC for the purpose of collective bargain-
mg with their Employer, an employee collective action
that on this record I find Respondent Employer strongly
opposed, and which it sought systematically to dissuade
employees from taking
That the employees' discussion in the cafeteria that
day was a vigorous one, or was a repeated one and this
time became an excited or heated one, or that Noonan
sought to raise subjects that day that certain employees
at the table may not have wished to again hear during
their lunch period, whether due to their own predeter-
mined union preference, or for whatever other reason,
did not serve to make Noonan's exercise in this case of a
clearly protected Section 7 right to attempt to organize
the Union among his coemployees at the employee cafe-
teria during their own lunchtime, any the less protected
Neither would reported instances of Noonan's (unre-
called) use of profanity in expression of his position on
the Union, e g, as evidenced in Young's summary report
of complaints registered by the three employees, shortly
after that discussion The General Counsel had intro-
duced the summary report into evidence presumably to
otherwise establish Young's and Krauth's admissions of
reaction to this first reported incident, viz, that they both
agreed' with the complaining employees that the employ-
ees should be able to eat their lunch in peace, and that it
(Respondent) would take steps to stop Noonan from en-
gaging in such conduct in the future
Finally, I also credit Noonan's specific denial that he
ever threatened to get an employee when he became a
state trooper, noting earlier observation there is no direct
or even secondary evidence appearing of record to that
effect Such a threat is clearly not the generalized remark
appearing as previously reported by the three employees
In respect to the latter, even assuming that Noonan made
the (unrecalled) statement that an (the) employee(s)
better watch out when he made state trooper, the cir-
cumstances of the employees' contribution to the overall
heated discussion that ensued that day must then be also
considered, in similar fashion as evidence of employer
provocation would be
The confrontational discussion by employees included
remarks made to Noonan (by one or more of the three
employees) to shut up, that they did not believe him,
and at least one early inquiry by an employee, itself
asked in pejorative manner, whether the employees were
going to have to listen to Noonan on the subject of the
Union each lunch period
Thus, even were I to conclude from Young's summary
of the employees' complaints (placed in evidence by the
General Counsel) that Noonan actually made the (mire-
called) statement at some point in the discussion that an
employee (or the three protagonist employees) better
watch out when he made state trooper, it was said in
overall circumstances and/or was itself of generalized
and ambiguous nature as to be not such as to warrant a
forfeiture of Noonan's protected status (E g, no inquiry
was made of Noonan whether he had at this time made
application for, let alone was in process of soon becom-
ing a state trooper Indeed, the record if anything indi-
cates the latter was not the case )
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thus, in my view, while not condoning the remark
(indeed, of either employee), the protection to be afford-
ed an employee in the pursuit of the Section 7 right to
organize coemployees (as in the face of equally protect-
ed, heated and/or forceful rebuff by some), is (are both)
made of sterner stuff than that which permits only of the
mutually courteous remark
Indeed, Employer did not appear to issue a warning to
Noonan for any specific threat asserted as made to em-
ployees, but rather (I find) is shown of record to have
done so with only generalized accusation of Noonan's
harrassment and/or agitation of 3 (of 25) employees
present, who had vocally opposed the proumon position
that Noonan expressed dunng lunch period In basic
agreement with the General Counsel, I find that, in seek-
ing to make his prounion points with coemployees in the
cafeteria during lunchtime on July 16, Noonan was clear-
ly engaged in protected, concerted union activity, and
that Noonan effectively made no threats and/or engaged
in no conduct on that occasion of developed heated dis-
course that would exceed the bounds of protected con-
duct under the Act, cf , Brunswick Food & Drug, 284
NLRB 663 (1987)
Noonan's attributed statements were not made insubor-
dinately to management, nor, in context, are they shown
to have created a discipline problem for Employer Cor-
rectly viewed, as but heated conversation between em-
ployee antagonists on the union issue, the remarks of
Noonan did not constitute a threatened vendetta against
employees who might hold to a different view about the
Union, so much as appear in this record at best as in-
stance of an impulsive, but harmless Noonan puffing in
the face of an unexpected, and (I find) perceived (at least
by him) unfair attack by certain of Noonan's coem-
ployees on Noonan's otherwise clearly protected exercise
of his right to attempt to organize the Union among his
fellow employees, cf NLRB v Cement Transport, Inc ,
490 F 2d 1025, 1031 (6th Or 1974) See also Tartan
Marine Co, 247 NLRB 646, 655 (1980)
Clearly, mere assertion otherwise of the existence of a
second triggering complaint by an employee who has de-
manded of Employer, and purportedly been granted con-
fidentiality as a precondition to registering the complaint,
can afford Respondent no viable defense for its other-
wise established discriminatory conduct Especially is
this the case for adverse inference where the Employer
has additionally wrongfully withheld the evidence there-
of
Accordingly, it is now concluded and found that, by
the conduct of its (former) vice president, Staffen, and
its operations manager, Kamel, on July 17, Respondent
discnminatonly issued an oral warning to Noonan for
engaging in protected, concerted union activity, further
wrongfully accused Noonan of harrassmg and agitating
employees, and unlawfully threatened to terminate
Noonan for engaging in protected, concerted union ac-
tivity, all in violation of Section 8(a)(1) and (3) of the
Act I further conclude and find that, by the conduct of
(former) ADC Personnel Manager Young, on July 17, in
thereafter making a written RC of the prior discriminato-
ry oral warning, and in presenting it and causing Noonan
to sign it, Respondent thereby engaged in conduct addi-
tionally violative of Section 8(a)(1) and (3)
It is clear however from the above and what follows
that the alleged Staffen interference with Noonan's dis-
tribution of union literature later that same day (includ-
ing Staffen's alleged confiscation of union literature from
Noonan), is a discernibly separate incident from the oral
warning issued earlier that morning, and one as to which
the Emloyer was allowed to fully defend It is next dis-
cussed
Noonan testified credibly that he received and passed
out union literature several times, but that he did so for
the first time on July 17, Friday Noonan recalled the
circumstances were that he had asked Ronayne earlier
that week for some union literature to pass out to em-
ployees, and, Ronayne informed Noonan during that
week at the same meeting in the parking lot on July 14
(Tuesday) when Noonan had received union authoriza-
tion cards from Ronayne, that on the following Friday
after work, Ronayne would give Noonan some union
handbills (literature) in the parking lot to pass out to em-
ployees Noonan testified relatedly that, from an employ-
ee's handbook that Employer had previously issued to
Noonan, he was already aware of Employer's solicitation
(and distribution) rule Noonan's understanding was that
under its terms that he could distribute the Union's litera-
ture to employees after work in the Employer's parking
lot, and that that was the reason he had agreed to do so
v Employer's applicable solicitation rule
Filene's governing policy statement on solicitation and
distribution provides as follows
Any solicitation or distribution of literature by
ANY PERSONS WHO ARE NOT EMPLOYED
BY THE COMPANY is prohibited at all times
throughout all of the Company's stores, service
buildings and distribution centers
It is the policy of the Company that solicitation
or distribution of literature by EMPLOYEES OF
THE COMPANY is prohibited on all selling floors
during all hours when the store is open to the
public Solicitation or distribution of literature by
employees is prohibited in all selling and non-selling
work areas during an employee's working time
"Working time" includes all time during which
either the employee being solicited or the employee
doing the soliciting is scheduled for the perform-
ance of job duties "Working time" does not include
time before or after an employee's scheduled work
hours, during lunch periods, rest periods or any
other time when an employee is not scheduled for
actual job duties
This rule applies to all of the Company's loca-
tions including stores, service buildings, office bin-
dlmgs and distribution centers and applies to solici-
tation and distribution for all purposes including lot-
teries, raffles, charitable or political organizations,
labor organizations, fraternal organizations, and the
like The only exception to this policy is the annual
FILENE'S BASEMENT STORE 207
United Appeal or United Way campaign which is a
total community project
The Employer's solicitation rule is posted on employee
bulletin boards, including in the cafeteria room at ADC
The General Counsel does not contend that the above
statement of Filene's solicitation rule has in any way vio-
lated the Act On July 17, Noonan distributed union lit-
erature to employees, outside the ADC, in the employ-
ees' parking lot, on company property Staffen stopped
Noonan under the following indicated circumstances
At this time Employer did not use a timecard (punch
in/out) clock, though there was a clock in the area
where employees signed out for the day According to
Noonan, pursuant to a prior arrangement with Ronayne,
Noonan signed out promptly at the end of his workshift
at 3 30 p m on July 17 (Fnday), and 20 seconds later he
was down the adjacent two flights of stairs and outside
to hurriedly pick up some union literature from Ronayne
to pass out to employees as they came out into the park-
ing lot Noonan testified that his brother Todd Noonan,
and Richard Norgren, who were to help him, were actu-
ally the first out the door, and they were followed by a
few other employees who had also preceded Noonan
According to Noonan, Todd Noonan and Norgren
remained by the door that the employees use to
exit into the parking lot That employee door is located
essentially at the corner of the building On exiting,
Noonan went directly to Ronayne's car, which was then
located directly in front, some 30-40 feet away (in the
parking lot) with the motor running Noonan hastily ap-
proached the car, and obtained the handouts from Ron-
ayne
When Noonan approached Ronayne's car, Ronayne
handed Noonan a 6-inch pile of union literature to dis-
tribute, which Ronayne estimated contained about 30
handouts Noonan's and Ronayne's testimonies reveal
that each of the Union's literature handouts was a multi-
page (20-25) handout addressing what an employee
could, and could not do in a union campaign Ronayne
did not get out of the car, and Noonan in turn engaged
in no conversation with Ronayne, because there was no
time Noonan explained credibly that he knew the em-
ployees would be coming out, and he wanted to get the
literature as fast as he could, to be able to quickly get
back and distribute it
As Noonan returned to the employees' exit door, Nor-
gren had in the interim gone to his car for something
Noonan handed about one-third (10) of the handbills to
his brother Todd, and they both then started handing out
the handbills to the employees as they left Estimated as
anywhere from almost immediately to within a minute or
two, Noonan observed that Staffer' had come out of the
main entrance located in the middle of the building, and
that he was walking hurriedly toward Noonan Accord-
ing to Noonan, as Staffer' approached, Todd Noonan
became nervous, and handed what handbills he had left
to Noonan Todd Noonan then walked away Norgren
had not returned from his car, and he handed out no
handbills that day That left Noonan alone handing out
the union literature Noonan's understanding from the
employee's handbook was that he could distribute the
Union's handbills to employees in the parking lot, and he
continued to do so
Thus Noonan relates that as Staffer' approached,
Noonan continued to pass out the handbills to the de-
parting employees Noonan's account of what occurred
thereafter at hearing was, Staffen grabbed the remaining
union handbills out of Noonan's hand and said, "Glenn
[sic], what you're doing is illegal, you're soliciting on
company grounds I want you to come with me" On
cross-examination Noonan reiterated that Staffen had
grabbed the handbills Noonan had left out of Noonan's
hand Noonan at this point estimated it was half the
stack, though Noonan also related he did not count
them According to Noonan the handbills were never re-
turned to him
Noonan next relates that after he and Staffen had
walked halfway back towards the entrance to the build-
ing, Ronayne had pulled up in his car, and asked if
Noonan was okay Noonan told Ronayne that Staffen
said what Noonan was doing was illegal, and that Staf-
fen wanted Noonan to go with him, but that he
(Noonan) was okay According to Noonan, Ronayne
then asked if Noonan had signed off the clock Noonan
replied he had
Ronayne essentially has corroborated Noonan on this
union handbill distribution Ronayne testified that he had
informed the employees that they had a right to handbill
after work, after they were punched out, and also where,
viz, at the employee's entrance (in the parking lot) Ron-
ayne testified that he also instructed the employees that
if there were any problems, they were to do whatever
they were told, but to make a memory (sic) of whatever
is happening
Ronayne confirmed that it was shortly before 3 30
pm when he arrived on July 17, and no one had come
out Ronayne, who customarily drove some employees
to the regular Friday umon meeting, knew from experi-
ence that the employees would come out almost right on
the dot, and he left the engine of the car running Ron-
ayne had confirming recollections that a few employees
left before Noonan, that when Noonan came out, he
went directly to Ronayne's car, and that Ronayne then
gave Noonan approximately 30 handbills to distribute to
the employees who were coming out
According to Ronayne about 1-2 minutes after
Noonan had started to hand out the Union's handbills to
employees, Ronayne observed a man (Staffer') come out
of the main entrance, and walk at a fast pace toward
Noonan Ronayne testified that he observed Staffen take
the handbills from Noonan's hand, and, he saw Noonan
then follow Staffen back to the building On cross-exam-
ination, Ronayne testified that they usually make a count
of the handbills handed out, but this time they could not
because the handbills were confiscated Ronayne
testified only that he saw an estimated 1-10 handbills in
Staffen's hand, and none in Noonan's hand
Ronayne confirmed that he pulled up in his car to ask
Noonan if he was okay, and what was the problem Ron-
ayne corroborated Noonan that Noonan replied that he
was told that he was soliciting on comany property, that
it was illegal, and that he was to go with the man (Staf-
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fen) Ronayne testified that he asked Noonan if Noonan
had punched, or signed out, and, that Noonan said he
had Ronayne then said he would see Noonan when he
was all through Both Noonan and Ronayne have related
that Staffer' said nothing during this conversation
As noted Staffen did not testify in this proceeding, and
consequently, Staffen's version of the nature of his initial
confrontation with Noonan, and Staffen's asserted confis-
cation of union literature is not directly of record How-
ever, in regard to Respondent's alleged confiscation of
union literature, Respondent did establish on cross-exami-
nation of Noonan that Noonan (at union request) had
made a prompt report on this incident In that early ac-
count (R Exh 3), Noonan recorded the event (in two
pertinent parts) as follows
(a) And as I was handing some one a pamphlet
and [sic] he (Staffen) prevented me from giving it
to this person by taking it out of my hand and said,
"Glen, you are soliciting on company grounds,"
and I couldn't do it He then told me to come with
him and I did
(b) While we were walking he still had the pam-
phlet He then asked if he could keep it and I said,
"Yes, I had nothing to hide"
Ronayne confirmed that he saw Noonan later that day
at the Yankee Drummer at about 3 30 pm Ronayne also
confirmed that Noonan had filled out the incident report
at Ronayne's request, apparently within 15 minutes of
Noonan's arnval there
Employer has further established that in a letter (R
Exh 4) that Noonan distributed to his fellow employees
2-3 days later (and noted as distributed to employees in
the parking lot without incident), Noonan's account of
the same incident (again) stated that Staffen had grabbed
one (handbill) out of Noonan's hand Moreover, although
Ronayne had estimated at one point that Staffen had
grabbed 1-10 handbills, Ronayne also has readily ac-
knowledged it could have been only one On cross-exam-
ination, Noonan acknowledged that he had later hand-
billed employees in the parking lot without incident
Noonan otherwise recalls that he went with Staffen
into the buidling, and to Young's office Noonan recalls
that Young was present along with another woman
(McGrath) According to Noonan, Staffen told Noonan
to wait there, and Staffen then left Noonan recounts
that he was kind of nervous, and after a while he wanted
to see if he could leave, so he started walking toward the
door Noonan testified that McGrath on that occasion
told Noonan that Staffen wanted him to wait, and he
could not leave When Noonan then said he wanted a
drink of water, Noonan's recollection is that McGrath
had Young get it According to Noonan he waited about
3 minutes (for Staffen's return) Noonan relates that Staf-
fen then came around the corner, but only motioned,
waived to McGrath that Noonan could leave McGrath
then told Noonan he could go, and Noonan left
McGrath testified that at this time Staffen was the
vice president of wage benefits and labor relations, and
he reported to Kathleen Collman, who at that time was
senior vice president of personnel Neither Collman,
Staffen, nor McGrath were employed by Filene's at the
time of hearing Neither Collman nor Staffen testified in
this proceeding
McGrath testified that Staffen had approached her and
asked if McGrath would stay with Noonan Although
McGrath at one point has not said why McGrath should
stay with Noonan, and she did not recall Staffen mention
Noonan's handbilling, on another occasion McGrath has
asserted that Staffen thought Noonan had left before the
end of his scheduled shift McGrath otherwise recalled
looking at her watch, observing that it was close to 3 30
p m, and saying, "it's so close to the end of the day, I
think that you should check the clock upstairs where the
people work, or sign out" According to McGrath Staf-
fen then left, but she had no idea where he went In con-
trast, Noonan testified that he did not hear McGrath say
anything to Staffen when Noonan had entered the room,
and, he heard no conversation between them there
McGrath recalled that she had stayed with Noonan in
a large conference room (not Young's office) McGrath
testified that at one point Noonan had decided he was
going to leave, and McGrath confirmed that on that oc-
casion she told Noonan that Staffen would like Noonan
to remain, and, that Noonan did Although also affirming
that she was standing by the door, McGrath testified that
she was not standing in the doorway in order to prevent
Noonan from leaving, as Noonan asserted McGrath con-
firms that Noonan asked for a glass of water, but
McGrath recalls she got it for him According to
McGrath within a matter of minutes Staffer' had re-
turned and said it was okay (for Noonan) to go
McGrath testified that Noonan was not warned or disci-
plined for this incident
Young recalled Staffer' walking into the office with
Noonan Although Young's recollection was initially
hesitant, Young thereafter confirmed that Noonan was
sitting at a table in the office, and McGrath was in the
vicinity, while Staffen was in another part of the office
Young otherwise recalled that she had discussed Noon-
an's union activities with Staffen on July 17, and signifi-
cantly, that their discussion had related around the distri-
bution of literature, though Young otherwise asserted she
could not recall the specifics The circumstance that nei-
ther Staffen nor Collman have testified and that Young
could not recall the specifics of her discussion with Staf-
fen on the subject of Noonan's distribution of union liter-
ature is not without its own measured significance Fi-
lene's policy procedure provides that all violations of the
solicitation rule are to be immediately documented "by
the Location Personnel Manager" and forwarded to the
senior vice president of personnel (Collman)
Ora Matthews confirmed that she was at ADC on July
17 giving training sessions to management, and she re-
called that Staffer' was in and out of the sessions Mat-
thews had recollection of later being in a large confer-
ence room making a phone call when Staffen came up to
her and said that Noonan was passing out some union
flyers, close to the end of the shift Staffen then showed
Matthews a copy of the flyer, which Matthews kept
Matthews testified that was all she knew of the incident
at the time
FILENE'S BASEMENT STORE 209
Matthews testified specifically that she was not aware
that Noonan was in the facility waiting for Staffen, and,
that she became aware of that only later that day Mat-
thews otherwise testified that as far as she knew, there
was a mistake as to whether Noonan was still on the
clock or not (while handbillmg), with Staffen saying he
was standing by the door (seemingly observing Noonan
handbillmg) and it was not 3 30 yet Matthews testified
that she was not aware of any Staffen counseling or dis-
cipline of Noonan Matthews also testified however that
Staffen did not admit that he had made a mistake
Matthews otherwise testified (though not without
some confusion thereon also appearing of record), that
Filene's solicitation rule policy would allow an employee
to handbill on his own time in front of the store (sic),
and, that under solicitation rule policy, a supervisor
would not have been allowed to detain such an employ-
ee, or otherwise remove handbills from the employee's
possession (Somewhat confusedly however, Matthews
appears of record to further testify that it might be oth-
erwise on company property, and, depending on where
the employee was on the property, we have the nght
and could ask an associate to leave our pnvate property )
In agreement with the Employer I conclude and find
that Noonan's hearing account of Staffen grabbing a
stack of handbills out of Noonan's hand is instance of an
embellished Noonan recollection On this record it is far
more probable that by the time Staffer' had actually
reached Noonan that day, Noonan was in the process of
handing out the last of the (30) handbills to an employee
With Noonan's further acknowledgment that he had
agreed that Staffen could keep the handbill, the allega-
tion that Respondent has confiscated union handbills, in
my view, rests on too strained an evidentiary base on
this record to support such a finding However, in
regard to Employer's defense of the basic interference
and restraint allegation of Staffen telling Noonan that
what he was doing was illegal (accompanied by public
interruption and detention of Noonan), the account of
Respondent's management officials simply did not appear
as frank, nor to hang together as is usually to be expect-
ed in the presence of a persuasive whole cloth of truth
In any event, I am more persuaded by credited evi-
dence as a whole, and I find that Staffer' took the last
union handbill from Noonan's hand, essentially intercept-
ed it before Noonan could deliver it to an employee as
Noonan then intended Thus, I find that the General
Counsel has established a prima facie case that on July
17, Staffen substantially mtefered with Noonan's distribu-
tion of union literature to employees in the employees'
parking lot located on Employer's property by taking a
union handbill that Noonan was about to distribute to an-
other employee out of Noonan's hand, and thus notably
doing so in the presence of other departing employees,
by telling Noonan that what Noonan was doing was ille-
gal, and thus imposing an unlawfully broad no-distribu-
tion rule on the Company's property, and enforcing it by
ordering Noonan to come with him to the warehouse
office, although at the time Noonan had already signed
out at the end of his shift at 3 30 p m, and was on his
own time
The Employer contends severally any restriction im-
posed on Noonan was short-lived, at worst only tempo-
rary, and Noonan at all times was fully aware of his
rights in the matter Staffen at the time was only permis-
sibly investigating a potential violation of company rules
and regulations, and that circumstance, coupled with the
Employer's eventual nondisciplme of Noonan for this in-
cident, along with Noonan's subsequently permitted
handbilling of employees in the parking lot witliout fur-
ther incident, have all effectively served to render the in-
stant incident de mimmis
Staffen's conduct in the above circumstances was at
best with appearance of being an open departure from
Employer's own long-posted solicitation and distribution
rules Wholly apart from this incident following upon the
effect of Staffen's warning of Noonan earlier that day,
previously itself determined unlawful, the confrontation
was between a high corporate management official of
Respondent and an employee who was lawfully distribut-
ing union handbills to employees (at least), some of
whom were exercising their right to receive the Union's
literature Other corporate and local managers were
aware of the incident There was no effort made by any.
of Respondent's management officials, let alone Staffen,
to afford some clarification to Noonan (or employees) of
what had been at first perceived by Staffen as improper
conduct by Noonan, and which had been since deter-
mined not to be such
Accordingly, I conclude and find that by (former)
Vice President Staffen's above conduct on July 17, Re-
spondent has substantially interfered with and restrained
the protected union and concerted activity of Noonan
and other employees, to hand out and receive union liter-
ature in the employees' parking lot on Employer's prop-
erty after completion of their scheduled worktime,
violation of Section 8(a)(1) of the Act, Sahara Tahoe
Corp, 292 NLRB 812, 813 (1989), cf EPE, Inc , 284
NLRB 191, 200 (1987), enfd m pertinent part 845 F 2d
483, 492 (4th Cir 1988), Uniontown Hospital Assn, 277
NLRB 1298, 1307 (1985) See also Intermedics, Inc , 262
NLRB 1407, 1415 (1982), enfd 715 F 2d 1022 (5th Or
1983), and E I du Pont & Go, 263 NLRB 159, 162-163
(1982) I further conclude and find that the Employer
has not effectively, or adequately remedied its prior un-
lawful conduct determined in this regard
d Area Supervisor Mike Gordon's alleged unlawful
conduct
The complaint alleges that on July 21, Area Supervi-
sor Mike Gordon told an employee (Noonan) that
Gordon knew where Noonan stood on the Union, and,
that Noonan should not be soliciting for the Union
during coffeebreaks because the Respondent paid for that
time
Noonan testified that in the early afternoon of July 21
(Tuesday), Gordon approached Noonan at work
Gordon asked Noonan if he had any question in regard
to the Company's literature about the Union, and, if
Noonan had read it Noonan said he had read it Gordon
then asked Noonan, did it have any effect on how
Noonan felt Noonan replied, no Gordon then said that
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he was aware of how Noonan stood on the issue Ac-
cording to Noonan, Just before the end of their conversa-
tion, Gordon also said that Noonan really should not talk
about the Union during break, because the Company did
pay for that time, even though it was Noonan's break
Gordon did not testify in this proceeding and Noonan's
above testimony stands essentially undisputed
In agreement with the General Counsel, I conclude
and find that by Area Supervisor Gordon telling Noonan
on July 21, that Noonan really should not talk about the
Union during break because the Comapny paid for that
time, Respondent effectively advanced an overly broad
no-solicitation rule for application to Noonan, and thus it
has interfered with Noonan's Section 7 rights, in viola-
tion of Section 8(a)(1) of the Act, Peck, Inc , 269 NLRB
451, 458-459 (1984), Tartan Marine Go, 247 NLRB 646,
655 (1980) However, to the extent this complaint allega-
tion has alleged that Gordon's statement to Noonan that
he knew how Noonan stood on the union issue was also
violative of the Act, I do not agree
Noonan's proumon conduct at the ADC by this time
had already made it readily apparent how Noonan stood
on the Union, as did his answers when Gordon inquired
about the effects of the Company's literature on him I
see no interference or coercion in Gordon's statement es-
sentially in acknowledgement of that which Noonan had
previously elected to make quite clear to all at ADC Em-
ployer notes, and I agree that the complaint did not
allege that Gordon's inquiry of Noonan as to Noonan's
reactions to the Employer's literature was itself an un-
lawful interrogation (nor part of a systematic pattern of
unlawful interrogation made in that manner of employ-
ees' union interests and sympathies)
3 Corso's related complaint allegations
The complaint alleges that on July 17 (facilities) Man-
ager Krauth told an employee (Corso) that Krauth knew
everybody that was involved in the union campaign and
at the union meetings, where and when those meetings
were held, and, that Krauth told Corso that another em-
ployee (Todd Noonan) wearing a union hat, was not too
bright, and would not last too long
Corso testified that he went to union meetings, passed
out union cards, and occasionally passed out union litera-
ture, though admittedly not on, or prior to July 17 (nor
apparently after August 3, when Corso voluntarily termi-
nated his employment with Filene's) Corso otherwise re-
counts that he was also named as one of the Union's
leading union adherents The parties stipulated and I find
that by union letter sent to the Employer on July 21
(Tuesday) and received by the Employer on July 24
(Friday), the Union notified the Employer that Corso,
Glen and Todd Noonan, and Richard Norgren (only)
were on the Union's employee organizing committee
It will be recalled that Noonan testified that he
(Noonan) was wearing a union hat earlier at ADC on
July 16 in the cafeteria Corso's testimony (compatibly)
has Todd Noonan also wearing a union hat in ADC on
July 17 Apart from time, Krauth affirmed that Glen and
Todd Noonan (and other employees), wore union hats at
ADC Corso testified credibly that he (Corso) did not
wear a union hat (or button) that day (July 17) Corso
does acknowledge, albeit with date undisclosed, that he
subsequently wore a union hat and union button at work
Krauth essentially confirms that Corso was not wearing
a union hat the day that they had a conversation, in testi-
fying that Corso clearly revealed to Krauth that he was
for the Union in his conversation (thus, e g, rather than
by what he was then wearing)
As noted earlier, Corso's direct supervisor was Re-
serve Area Supervisor Bruce Brackett Corso testified
that on July 17, Supervisor Bruce Pierce (sic, but seem-
ingly Brackett) approached Corso wanting to talk to
Corso about the Union Corso knew that they were all
talking about the Union, but Corso asserts that he did
not want to talk to the supervisor about the Union
Corso then asked if he could talk to Facilities Manager
Krauth (instead), and Corso did, later, on the same day
On that occasion, Corso told Krauth that Corso's main
issue was job security According to Corso, Krauth then
told Corso that Krauth knew about everybody in the
Union, that he knew where our meetings were, and
when they were, that he knew Corso was involved with
it, and, while in the meeting (sic), as employee Todd
Noonan walked by wearing a union hat Krauth said that
he knew that Todd Noonan was in it, and, that "the kid"
was not too bright, and he would not last long
Although it is not without some confusion and/or am-
biguity appearing of record as to the referenced meeting,
both parties in bnef appear to be of view that it was at
the same meeting between Corso and Krauth that
Krauth also told Corso that if the Union got in, we
would have lower wages, and Krauth would be able to
fire people a lot easier The question arises whether
Corso has in the latter regard simply erroneously con-
fused a recollection of an RT meeting that he attended
Corso clearly did not attend the RT meeting that
Noonan attended on July 15 However about this time
the Employer was holding more than one RT a week in
order to complete holding an RT with all employees, m
small groups, in a reasonable period of time
Krauth's recollections would place the conversation
between Krauth and Corso anywhere from about the
same time as a prior conversation with Noonan (seeming-
ly July 14), to a week or so later than Corso does, but
notably in no event after July 24, the date that Employer
had received the Union's letter informing the Employer
that Corso, the Noonans, and Norgren were on the
Union's employee organizing committee Krauth testified
both credibly and candidly to a firm recollection that he
had no conversation with Corso thereafter Thus,
Krauth's conversation with Corso occurred clearly
before Employer had received written notice that Corso
was serving on the Union's employee organizing commit-
tee
Krauth confirms generally that Corso had approached
Krauth wanting to talk to Krauth about some issues of
the Union, and specifically job security I credit that ac-
count of the meeting between them on July 17
Krauth did not recall telling Coiso in this meeting that
he knew where the union meetings were being held
Though Krauth on one occasion relatedly asserted that it
was apparent to everyone in the facility everytime there
FILENE'S BASEMENT STORE

211
was one (a meeting), it is clear of record that Krauth
was then referring to a penod of time after the end of
the workday of July 17, because he relatedly testified
that the Union distributed handbills announcing the
meetings, and employees would bring us (local manage-
ment) the notification Just about this time however some
employees had seemingly been also leaving notes in
ADC inviting other employees to attend the Union's
meeting, some of which notes were starting to surface in
ADC, and come to the attention of the Employer
In any event, I have found (essentially) on other
candid revealment of Krauth, that Krauth was even
somewhat earlier aware from employee reports brought
to him that union meetings were being held at the
Yankee Drummer, and that he did mention that to
Noonan on July 14 I conclude it is at least as possible
that he may have mentioned that to Corso 3 days later,
though I have no doubt he received additional instruc-
tions about his response to the Union's campaign in the
interim as well
ICrauth has testified that he did not recall telling Corso
that he knew Corso was involved in the union organiz-
ing Rather, Krauth testified that during the conversation
it was Corso who had made it clear that he was for the
Union
Krauth testified relatedly, without subsequent rebuttal
by Corso, and I find credibly, that Corso told Krauth
that Corso felt that once employees had worked any
length of time and made better wages, a company, if not
union (organized), would fire employees, and bring in
new employees with less wages Krauth recalled telling
Corso on that occasion that it would be crazy on the
Employer's part (to do that) to be constantly going
through a new work force, retraining (employees) all the
time, and, especially in today's economy
Significantly, Krauth has otherwise categorically
denied that he told Corso, or any employee, that he
knew who was involved in the union organizing Al-
though Krauth confirmed that Glen and Todd Noonan
wore union hats in ADC, Krauth has also categorically
denied that he told Corso that Todd (Noonan), Glen
(Noonan), or any employee wearing a union hat, was not
too bright, or would not be long for the Company
Krauth otherwise testified that the only conversation he
had with Todd Noonan was to remark that he liked the
(union) hat Krauth candidly acknowledged, however,
that the fact that Todd Noonan had worn a union hat in
ADC was probably reported to FDS
The General Counsel contends that Corso has testified
in these matters clearly and concisely, and he urges full
credit be given to Corso's testimony In affirmative sup-
port of a finding of the statements that Corso has attrib-
uted to Krauth, the General Counsel points to Krauth's
conceded earlier awareness of the meetings at the
Yankee Drummer, and to his acknowledgment that Todd
Noonan's wearing of a union hat in ADC was reported
to FDS In contrast, the Employer contends that Krauth
was a candid and precise witness who is wholly worthy
of credit, and that it is simply inconceivable that Krauth
would so flagrantly depart from the instructions he had
earlier received on talking to employees about the
Union, by discussing the Union in the manner that Corso
has described In contrast with Krauth's careful testimo-
ny, Employer contends that Corso testified like "a wind-
up doll," and, he did so "almost without punctuation"
Thus, the Employer urges that when Corso's demeanor
is taken into account, as it should be, Corso is then the
one shown not worthy of credit
Analysis
In agreement with other urging of Respondent, I first
observe that the complaint does not allege that Krauth
on July 17, has discriminatorily threatened an employee
with lower wages, or with easier discharge, if the Union
came in Noting the same in brief, the Employer would
then have It further observed that counsel for the Gener-
al Counsel stated at hearing that he was not alleging any
violations other than those that were (already) alleged in
the complaint Respondent essentially contends that the
General Counsel should be held to his position on com-
plaint as stated at hearing At least on the matters
brought before me, I agree
The matter of a threat of lower wages, presently under
discussion, is not to be confused with the similar com-
plaint allegation earlier considered at length that on July
15, Krauth had said to a group of employees (Noonan
and others in an RT meeting) that employees' wages
would be cut if the Union got in at the warehouse
Corso did not attend the July 15 meeting with Noonan
To the extent there is any indication from the record,
if not in Corso's testimony, of an additional (similar RT)
meeting with Krauth that Corso may have attended on
July 17, the contentions of the General Counsel in the
matter fare no better Moreover, even were I to con-
clude the issue(s) of Krauth's threat of lower wages (or
easier discharge) was (were) fully and fairly litigated as
part and parcel of the allegation alleged (which I do
not), Corso's testimony thereon, under all of the attend-
ant circumstances, would still not be sufficient to per-
suade me that there is warrant to make a finding on the
basis of Corso's testimony alone that Krauth had threat-
ened that there would be lower wages, or, easier firing,
if the Union came in, in either the individual conversa-
tion with Corso, or at an RT that Corso and a group of
other employees may have attended on that day (or oth-
erwise)
Some of the factors considered in so concluding on the
urged matter of Krauth's discriminatory threat(s) of
lower wages or easier firing were (1) the threats are not
alleged in the complaint, (2) the General Counsel at
hearing did state that he was not seeking to amend the
complaint to allege additional allegation, (3) Krauth has
specifically denied that he told Corso wages would go
down if the Union came in, indeed, denied that he had
ever made such a statement to anyone, and, Krauth has
so testified in a generally credible context, viz, in light of
the prior training he had received on what not to do, as
well as the earlier credited nature of his pnor discussions
with others, (4) ICrauth has credibly denied as well that
he told Corso it would be easier to discharge employees
if the Union came in, for similar reaons, (5) any indica-
tion of the Krauth statements being made at some other
meeting (e g, RT meeting) are unclear, (6) even in that
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
event, a lack of any corroboration of Corso thereon
would then appear all the more critical, especially in the
light of the disposition of the operative circumstnces as
determined at length, supra, in the consideration of the
complaint allegation, re, similar Krauth statements made
to a group of employees (at an RT) on July 15, (7) later
the Employer's literature discussed the subject of greater
rigidity a union usually imposed on an employer, dis-
cussed, infra, and (8) certain Corso assertions have inde-
pendently appeared unpersuasive in context, discussed
next
As to the proof offered in support of complaint allega-
tions that Krauth told Corso that Krauth knew every-
body that was involved in the union campaign and at the
union meetings, that Krauth knew where and when those
meetings were held, and, that on observing Todd
Noonan wearing a union hat, Krauth had said the kid
(Todd Noonan) was not too bright, and would not last
too long, I do not find Corso's testimony thereon persua-
sive, i e, beyond (at best) such as may appear duplicative
of what Krauth had mentioned to Noonan in their earlier
conversation(s), viz, of Krauth's awareness of the (I fur-
ther find) recent union meetings held at the Yankee
Drummer (There is confirming indication in certain of
Kamel's testimony that some notes (as opposed to hand-
bills) inviting attendance of (at least) some employees to
these meetings were being left in the warehouse, and had
surfaced at about this time )
Finally, in addition to the above-noted factors, I find
myself in the overall evaluation of the proof offered on
these complaint allegations to be also more in agreee-
ment with certain of the Employer's general observations
made thereon In general, Krauth impressed me more
with candor and deliberateness while testifying on the
stand on these matters In contrast, Corso in general
simply impressed me unfavorably Specifically, Corso ap-
peared a bit too glib on the stand in describing the above
conversation with Krauth
On these matters, I both credit Krauth's central denials
of the complaint allegations that Kruth said he knew ev-
erybody that was involved in the union campaign, and at
the union meetings, and, where and when they were
held, and I conclude and find Corso's recollection there-
in has (at best) involved an overgrandisement of a much
more limited remark about Krauth's awareness of union
meetings being held at the Yankee Drummer I credit
Krauth's categorical denial that he made the remark
about Todd Noonan that Corso attributes to Krauth, in
the absence of any corroboration of Corso, as being also
more worthy of belief In that regard, apart from any
discernible strain in credulity that Krauth would say of
an employee prominently wearing a union hat in ADC,
that he knew the employee was for the Union, in any
event, under all the above circumstances, I conclude and
find that the proof offered by the General Counsel in
support of these specific allegations was generally unper-
suasive Since the Corso testimony that may be viewed
(at best) as in part supported by certain other evidence of
record appears to be but duplicative of the earlier cred-
ited Krauth statement to Noonan, I shall accordingly
recommend that these complaint allegations be dismissed
in their entirety
4 The complaint allegations as related to Michelle
Savageau
Filene's employed Savageau as a utility worker in
ADC from April 6 to September 2 Savageau testified
that she ticketed shoes, but did a little bit of everything
At different times she was supervised by Manning,
Brackett, and Gordon On July 9, Savageau received an
oral warning (essentially) from Manning (though also
signed by Kamel and Young) that her productivity was
just poor, and, she was not putting up enough items per
hour
Savageau testified that she became aware of the
Union's organizational campaign about the end of April,
beginning of May She asserts that she attended union
meetings (starting) in May, which were held about once
a week on Friday at the Yankee Drummer Savageau
normally went to the meetings with Corso As Savageau
recalled, at first there were about five-six employees in
attendance at the Yankee Drummer, and later, a dozen
or more employees attended Savageau also testified that
Ronayne gave her a union card which she signed and re-
turned to Ronayne on May 15 or 16 Ronayne corrobo-
rates a first meeting with Savageau in April, that Sava-
geau had signed a union card on May 15, and that Sava-
geau had thereafter attended meetings at the Yankee
Drummer
Savageau's testimony about her asserted involvement
with a seemingly 2-week solicitation of union authoriza-
tion cards was strained Savageau recounts that she re-
ceived union authorization cards to hand out to others in
May At one point Savageau then asserted that she ap-
proached employees at lunchtime and after work, but
upon inquiry of particulars, then was not exactly sure of
who, or how many Savageau has asserted that she gave
out cards to friends if interested, but did not press
anyone Savageau also acknowledged that she did not re-
ceive a signed union authorization card back from any
employee
On other occasions Savageau had simply related, albeit
somewhat disjointedly, that others were handing out the
cards, and she kept the union cards she was given at
home Ronayne's testimony in this area did not substan-
tially or materially add to Savageau's essentially unper-
suasive testimony on personal involvement in the distri-
bution of union cards, and certainly insofar as to be
viewed done prominently at ADC Ronayne adds only
that he knew Savageau had tried to pass out union cards
However, when pressed to explain his knowledge of the
latter, Ronayne then asserted that Savageau did other or-
ganizing things for the Union, discussed further, infra
Savageau also at no time participated in handing out
the Union's literature However, Savageau has testified
that she displayed union handbills in her car, that she
had a union hat on the back seat of her car, and that she
had worn the hat at a couple of employee softball games
To the extent Savageau has asserted a recollection of her
own involvement with union handbills and/or union hats
in May, however, I conclude and find that Savageau is
in clear error in that account I am also wholly persuad-
ed that as of her conversation with Kamel on July 17,
Savageau did not then possess or display any union
1 r

FILEI
Lr'S BASEMENT STORE 1 213
l - 1
handbills in her car Significantly, there is no evidence
presented that a supervisor ever saw Savageau wear a
union hat, or, that on July 17 she had one on the back
seat of her car, let alone that a supervisor was aware of
it that day
The Union never listed Savageau as an employee orga-
nizer for the Union As noted, Ronayne at one point as-
serted that Savageau did other things for the Union, but
immediately added that he did not want to get into that
As far as Ronayne's later testimony would reflect, the
service was solely in the area of providing some employ-
ee addresses and phone numbers to the Union, along
with bringing other employees to the meetings, which
Ronayne testified he instructed, and she did
The complaint alleges that on July 17, Operations
Manager Kamel told an employee (Savageau) that if a
union came in Respondent would have to be more strict
about productivity, and, that Kamel told Savageau that
she could always get the union authorization card back
that she had signed The complaint also alleges that on
September 2, Respondent discnmmatonly fired Savageau
for her union and other protected concerted activities
a Kamel's discriminatory threat of stricter
productivity, and coercive suggestion that Savageau get
her signed union authorization card back
Savageau recalled that on July 17, Operations Manag-
er ICamel came up to Savageau in the warehouse while
Savageau was stamping sticker prices in giftware They
were alone Savageau relates that Kamel asked Savageau
if she knew what was going on about the Union Sava-
geau recalled that Kamel had some papers both for and
against the Union at the time, and Savageau summarized
that Kamel was telling Savageau the bad things about
the Union
Savageau initially testified that Kamel said if the
Union got in or comes in, they would be more strict on
employer activity, and, only later, that productivity would
be more strict Savageau testified initially that Kamel
also said the hourly wages would go down, or probably
go down, and the health insurance would go up Kamel
handed the papers to Savageau, and she looked them
over Kamel said it (the Union) would not be good in
here
Savageau testified that Kamel asked Savageau if she
signed a union card, and Savageau said, she had Sava-
geau has testified (essentially, albeit m several forms),
that Kamel then said that Savageau could always get the
union card back
Enclosed with the Employer's letter of July 17 was
certain information, inter aim, addressing the effects of
an employee signing a union authorization card It is
warranted to note this letter addressed the specific issue
of employees who might have mistakenly already signed
a card for the Union as follows
IF I SIGNED A UNION CARD BY MISTAKE,
CAN I "CANCEL IT"
Unfortunately, there is no official way to "cancel" a
signed union authorization card You can ask for it
to be returned to you but the Union has no obliga-
tion to do so
In general, Kamel handed out Employer's letters (an-
tiunion campaign literature) to employees when an area
supervisor (for whatever reason) was not available to do
so Kamel confirms a related conversation with Savageau
about the union organizing employees However, Kamel
was unwilling to firmly set the date of his conversation
with Savageau as occurring on July 17
To the extent the General Counsel would seek in brief
to rely on Kamel's unwillingness to confirm he had
handed out a letter to Savageau on July 17, as being in-
dicative of Kamel's evasiveness and/or lack of credibil-
ity, I am not inclined to so conclude
Certain employer letter(s) handed out later could have
prompted a Kamel-Savageau conversation as well, e g,
the Tempests letter of July 21, and certain of the testi-
mony of Area Supervisor Manning, who notably was
also unsure of the date of his discussion with Savageau,
would support a finding that a similar discussion between
Mantung and Savageau occurred on July 17
In the latter regard, Manning testified that he (also)
had handed Savageau a company letter that related to
union cards, that Savageau told him that she had signed
a card, and, on that occasion, Savageau wanted to know
if she could get it back if she wanted to However, as
noted, Manning also could not recall the letter to which
their conversation had related
Apart from date, Kamel's version otherwise is that he
gave Savageau a company letter concerning union issues
and asked her to read it Kamel then asked Savageau if
she had any questions Although Kamel was unsure it
was the July 17 letter that he passed out to Savageau,
Kamel recalled that he did pass out some company let-
ters to employees, and he confirmed that he did pass out
a letter to Savageau, which resulted in conversation Al-
though the issue is not one free from doubt, on weight of
evidence, I find it most likely that Kamel passed out the
Company's July 17 letter on July 17, which led to
Kamel's conversation with Savageau on July 17
Savageau related (seemingly as occurring in the same
conversation) that Kamel had another union contract
saying the wages would go down, an old contract that
he was showing the people However, Savageau thereaf-
ter clarified that she believed that Kamel was showing
her the contract for the other Filene's location, and he
was saying if you got him (sic, but in context in) under
the contract the wages would go down, and your health
insurance costs would go up
Kamel was previously aware of the contents of the
Union's contract covering SDC and DDC from prior
times when he had worked there Kamel also acknowl-
edged that FDS had given him a copy of that contract
to use However, Kamel could not recall if he had used
it in conversations with employees, or at the time of his
conversation with Savageau Kamel had another paper
he was to use for questions on the Union's (DDC/SDC)
contract However, Kamel has categorically denied On
any event) that he had ever told any of the employees
that the old contract wages and benefits would be of-
fered to the Union Of the Union came in) In that very
regard, Savageau significantly testified that Kamel told
Savageau, if the Union got in, everything would be ne-
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gotiable, wages could go up, they could go down, and
that there were no guarantees one way or the other
After observation that only Filene's Boston Basement
Store and SDC are organized, Vice President Tempesta
relatedly informed employees in his July 17 letter (a)
"Our position on unionization is quite clear You have a
right to be for or against it, and we are committed to
protecting your rights in making an informed and un-
coerced decision", and, (b) that although unions have
tried to organize some of Filene's other stores, they
failed, because the store employees realized that they
"Enjoy the same competitive pay and benefits available
to our unionized associates"
Kamel has also denied that he interrogated Savageau
(or any employee) as to whether she had signed a card
for the Union, and testified convincingly that he had
been specifically instructed not to do so Kamel other-
wise asserted that he was not sure what had raised the
subject of an employee getting a union card back from
the Union Kamel's recollection was that Savageau had
asked Kamel the question, if she could get her union card
back Kamel then acknowledged that he had told Sava-
geau she could get the card back, but she would have to
address that (request) to either the union organizer, or a
union business representative
Savageau on cross-examination testified, hesitantly,
that she did not believe she had said to Kamel that she
had signed a union card, and realized it was a mistake
Savageau also relates that she did not say, that "if I'd
known that, I wouldn't have signed the union card" (at
least) in exactly those words However, Savageau then
testified that she did say, she "heard a lot of pros and
cons about it, and didn't realize what was going on" Sa-
vageau has also otherwise testified of that day and con-
versation that she did not want to be bothered that day
at all, her attitude at that time was she was not too sure
either way, she did not want to pick either side, and, Sa-
vageau finally acknowledged she had said to Kamel,
"maybe I made a mistake, I don't know, I just don't want
to be bothered"
Analysis
Firstly, the complaint does not allege that Krauth said
that the hourly wages would go down and the health in-
surance (costs) go up, if the Union came in To the
extent that Savageau testified on occasion that Kamel
had discnmmatonly said the hourly wages would go
down and the costs of health insurance would go up, not
only was such not alleged in the complaint, and the Gen-
eral Counsel at hearing given various assurances that he
was not seeking to amend the complaint, but other testi-
mony of Savageau has effectively and convincingly clan-
fled that any related statement of Kamel made to that
effect, was said in context of a conditional application of
the SDC contract to ADC, and indeed, other Savageau
testimony made clear that Kamel had also told Savageau
that if the Union got in, everything would be negotiable
It may be secondly observed that (again) the complaint
does not allege a Kamel interrogation of employee Sava-
geau Not only does the complaint not allege a Kamel in-
terrogation of Savageau as to whether she had signed a
union authorization card, but Kamel has the more credi-
bly denied doing so
Savageau's testimony in the end must be analyzed in
combination with the Kamel statement made on lower
wages and higher health costs if the employees were to
come under the SDC contract, as well as the July 17
letter statement of the company policy of always paying
nonunion locations the same (read by Savageau at the
time) Given Savageau's testimonial admission of having
also expressed indecision in some form about the Union
at this time (at least) to Kamel, if not also to Manning
(inquiring if she could get her card back if she wanted to
so so), a surely congruous context is then made out for
Kamel's recollection that Savageau said in Kamel's pres-
ence (at least) maybe I made a mistake in a clear context
that was indicative of her earlier support of the Union, if
Savageau did not technically ask Kamel if she could get
her card back, as she had Manning There is a possibility
that the Manning-Savageau conversation occurred
before, and led to the Kamel-Savageau conversation, but
that finding is not critical to the resolution of the com-
plaint matters alleged herein
Thus, I am in any event persuaded that Savageau had
directly expressed to Kamel at this time a possible mis-
take on Savageau's part in previously supporting, or
signing a card for the Union, which (I find) then led to
Kamel's statement that Savageau could always ask the
Union for her card back, a message unquestioned as law-
fully delivered to employees in the July 17 letter (regard-
less of when the Kamel-Savageau conversation oc-
curred)
Moreover, under these determined circumstances, even
if I were to credit the (repeated) recollection of Sava-
geau that Kamel had in their conversation actually asked
the question of Savageau whether she had signed a union
card, and, then followed up with a statement that Sava-
geau could always get (or ask the Union for) the union
card back, I would be even in that event also convinced
on this record that the question and statement came in
overall circumstances already reasonably indicating to
Kamel that Savageau had signed a union card in support
of the Umon, and that she had also already (at least) ex-
pressed to Kamel her personally then held belief of possi-
bly having made a mistake with the Union, whether Sa-
vageau had explicitly stated at that time that she had pre-
viously signed a card for the Union
Even a question posed to Savageau, if she had signed a
card, objectively viewed in those circumstances, does
not appear to have reasonably had the effect of probing
Savageau to identify any prior unrevealed union interests
and sympathies so much as, under the circumstances as
presented to Kamel by Savageau, been asked in prelude
to Kamel ensuring that Savageau was aware that Sava-
geau could in that event (if she felt she had made a mis-
take in signing a card with the Union), always ask the
Union for the card back
Under the entire circumstances shown above, I con-
clude and find that neither Kamel nor Respondent Em-
ployer has interfered with, restrained, or coerced Sava-
geau in Kamel stating in effect orally (or Respondent in
Tempesta's July 17 letter) that Savageau could always
FILENE'S BASEMENT STORE 215
get or ask the Union for her (signed authorization) card
back, in circumstances where I have found Savageau had
earlier indicated to Kamel that she felt she may have
made a mistake in previously supporting the Union
Savageau's other testimony offered in support of the
complaint allegation that Kamel had also said that if the
Union came in, the Respondent would have to be more
strict about productivity was (at best) unconvincing (if
not inconsistent) on the matter, e g, with earlier testimo-
ny that they (a union) were usually more strict on em-
ployer activity Given the problems of Savageau's (and
all witnesses') recollections, in general, I additionally
note in passing that Tempesta's letter of August 3 specifi-
cally addressed the related subject of union contracts
usually creating greater rept:lay upon an employer
In any event, Kamel's specific denial that he had said
that the Employer would be stncter on productivity if
the Union came in, to Savageau (or to any employee),
because he was instructed and trained not to threaten
employees in that manner, is simply on this record with
appearance of being the more reliable, and I do credit it
In passing, I observe that Savageau was, at first, an ad-
mittedly nervous witness, and I have taken that into full
and careful account I have also taken into account that
her recent RC problem with productivity was known to
Kamel at the time of this alleged conversation Nonethe-
less, the evidence offered by Savageau was general of
nature and shown in context of other credible evidence
of record such as to have simply failed in the end to per-
suade me that Kamel made the statements that are al-
leged in the complaint Accordingly, I shall recommend
that this complaint allegation also be dismissed in its en-
tirety
b The alleged discriminatory termination of Savageau
on September 2
First, it is apparent from the above, and I find that as
of July 17, Respondent was aware (at least) that Sava-
geau had earlier signed an authorization card for the
Union However, I have also found that Savageau at the
same time had indicated to Kamel that she presently felt
she may have made a mistake in previously supporting
the Union
In this material time Manning was area supervisor of
bulk processing in giftware Manning supervised any-
where from 15 to 35 employees depending on daily flex
(At time of hearing Manning had already given Filene's
notice of his voluntary resignation, and, in accordance
with Respondent's request that factor has been taken into
account in assessing credibility ) Manning had fairly reg-
ularly supervised Savageau, at least from mid-June
(seemingly) when Manning had transferred to bulk from
shipping and receiving) until the end of July (when Man-
ning took a 2-week vacation—July 30 to August 14)
During that 2-week period, ADC transferred Savageau
to the reserve department under Area Supervisor Brack-
ett
Manning has testified generally that Savageau was
probably the worst employee in work performance that
he had supervised As noted, Savageau had previously
received a warning from Supervisor Manning about her
low productivity on July 9 Notably, on that July 9,
Manning, Kamel, and Young signed the RC on an oral
warning given Savageau for her poor productivity
Manning also testified that he wrote up evaluations for
all the employees he supervised, including Savageau, and
he turned them into personnel before he left on vacation
In Mannmg's (unsigned) evaluation of Savageau he rated
Savageau as a marginal employee in all categories except
versatility as earlier noted That evaluation also reflects,
inter aim, on cooperation, with comment explanation
written by Manning, "Michelle seems to be just passing
time She shows no concern for the job she is doing
Spends too much time talking & sitting"
Related procedure is established that the area supervi-
sors' evaluations of employees were first to be reviewed
by Young (and McGrath), then returned to the area su-
pervisor to conduct the actual evaluation interview with
the employee I credit Manning and Young's testimony
that the normal 60-day reviews were delayed in prepara-
tion and delivery, in part because of the ADC startup,
and employee turnover I further credit Manning that he
had evaluated Savageau in the manner he wrote up and
submitted to Young, though Manning did not subse-
quently actpally conduct an interview thereon with Sa-
vageau (as he did with Komcki, infra), because of certain
time constraints that existed after his return from vaca-
tion, and because of the number of employees then wait-
ing review
Even assuming there was some Savageau mvolvment
with Noonan on July 15, namely, in the confrontation
with no-union petitioner(s) on the dock, the details of
which are not shown of record, the same would not
serve to prove any discriminatory motive, or taint in the
first (oral) warning Savageau had received for her poor
productivity Indeed, neither this warning nor a second
written warning of August 7, infra, is alleged to have
discriminatorily issued
To the extent Savageau may be viewed to have assert-
ed that, in the interim, on July 17, Kamel had threatened
Savageau with the Employer being stricter on productiv-
ity if the Union came in, I have found the evidence of-
fered to suppOrt that allegation was unpersuasive Rather
I have credited that on July 9, Manning had orally
warned Savageau, inter al's, that Savageau would have
to improve in her production or he (Manning) would
take (still) further discipline, and, that on August 7, in
Manmng's absence, Kamel and Young recorded written
warning a month later that Savageau's production was
still unacceptable, and had to improve
Savageau explained her own lack of production with
assertion that she was being moved around so much she
could not get use to the work, which affected her pro-
duction There is support in the record that Savageau
was being moved about In that very (but notably alone)
regard, Manning evaluated Savageau's versatility as
good
Savageau acknowledges that on August 7, Savageau
received another counseling, this time a written warning
from Kamel and Young (in vacation absence of Man-
ning) that Savageau's production was unacceptable, and
that Savageau must improve her production or there
would be still further discipline Savageau refused to sign
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this warning, explaining that at this time she was keeping
track of her own production, and she felt that she was
improving, and that her production was adequate How-
ever, the General Counsel does not contend, or establish,
that Savageau's production was not low on each of these
occasions
Brackett supervised anywhere from 7 to 25 employees
in the reserve department, again depending upon daily
business load flex Brackett's assigned employees essen-
tially select and pack the merchandise to fill store orders
Brackett recalled that Savageau was assigned to Re-
serve in midsummer Brackett has testified that his regu-
lar employees informed Brackett that they did not like to
work with Savageau because Savageau did not pull her
own weight, and, they complained to him that Savageau
would frequently leave to go to the restroom Brackett
testified that he checked with Manning, and he received
the same information on Savageau from Manning
FDS Employee Specialist Matthews has testified can-
didly, that at all times they were trying to keep track of,
or (essentially) be aware of, how the peoples' (employ-
ees') attitudes were towards the Union Brackett related-
ly acknowledged that if he received any information
concerning employees and the Union, he presented it at
the weekly meeting held for that purpose If, when he
presented a letter to an employee, an employee had a
question, he reported that to the FDS official that was
on hand Brackett also expressed his own opinion to
FDS about the employees under him However, Brackett
testified that he had received no information about Sava-
geau's attitude about the Union Neither did he discuss
the Union personally with her
Brackett additionally testified that his own subsequent
observations of Savageau's work habits confirmed that
she had a tendency to go to the bathroom frequently,
and, an unconcerned attitude about the work However,
Bracket acknowledged that he made no effort at a fur-
ther immediate discipline of Savageau Brackett ex-
plained that at the time he had work supply logistical
problems, and in his mind the time to discipline Sava-
geau was not opportune, that is, until the job incident oc-
curred the end of August
On August 28, a Fnday, Savageau drove her car to
work She went to lunch that day at noon with her boy-
friend, who is unidentified of record They used his car
Savageau did not return to work at ADC, nor did she
advise Employer by phone that she would not be back to
work that afternoon Savageau explained that a family
problem developed at her house with her mother, and,
Savageau asserts she could not go back to work At
heanng she otherwise related that there was something
emotional going on at the time between Savageau and
her mother, that Savageau did not want to stay there,
and that Savageau had to leave
Savageau acknowledged that she had previously been
given specific instructions as to what she was to do
when an absence was necessary The basic procedure
was contained in the employee's orientation booklet At
time of orientation Savageau had also been given a
phone number to call, which she wrote down in the
booklet Savageau initially testified relatedly that she had
tried to call Filene's with that number twice between
12 30 p m and 1 p m, and, there was no answer the first
time, and the last time the line was busy Savageau
would later clarify that she thought she had actually
called three times, and that the last time the line was
busy, though Savageau then revealed that the last time
she may have dialed the number (in haste) erroneously
Savageau initially testified that she had never previous-
ly failed to return from lunch On cross-examination
however, with aid of refreshed recollection from prior
affidavit, Savageau then clarified that she had previously
called Filene's to report (both) she was not coming in,
and back (to work), and, that each time, someone had
answered the call she placed at the number she had
Brackett testified that upon returning from lunch on
August 28, a Friday, he noticed at 12 40 p m that three
people had not returned The three were Anna Naleski,
Dawn Thrush, and Michelle Savageau After the brief
time it took to get his department running again, accord-
ing to Brackett's recollection, Brackett went to Young
and reported that the three individuals had not returned
and had not called Whether before or after his recalled
contact of Young, Brackett relates that some employees
complained to Brackett about the employees who did not
return to work that Friday afternoon after lunch, and ac-
cording to Brackett, they wanted to know what Brackett
was going to do about it Brackett otherwise testified
that he reported all three to Young, though he knew that
one, Naleski, was returning to college, and that Naleski
had already given a notice to the Employer that would
be her last day
It is Brackett's recollection that he had recommended
that Friday afternoon that Savageau and Thrush be ter-
minated However, he also recalled that Young told
Brackett that they would have to wait and see if the em-
ployees called in that afternoon Thrush called in that
afternoon Thrush informed the receptionist that Thrush
had had a family medical emergency in which her sister
had to be rushed to the hospital Neither Brackett nor
Young thereafter questioned Thrush's report of a medi-
cal emergency Savageau did not call
Savageau returned to work on Monday, August 31,
which was the next workday for her Nothing happened
that day No supervisor said anything to Savageau about
her absence on the prior Friday afternoon Savageau did
not say anything to any supervisor about it Brackett has
testified that he recommended termination of Savageau
for job abandonment, because Savageau had made no at-
tempt to explain her absence This would appear also, if
not more, compatible with a Brackett recommendation
made on Monday, after Savageau had returned to the
job, had opportunity to speak to Brackett, and still said
nothing to Brackett m explanation of her absence on the
prior Friday
Brackett relates that on Monday, he called Young
again asking what they were going to do Brackett re-
calls that by this time Young had apparently been in con-
tact with FDS, and Young said they were going to have
to wait for a reply (from FDS) on what to do
Young confirms Brackett's report and recommendation
to terminate Savageau, except that she did not recall re-
ceiving the report from Brackett on Friday, but rather
FILENE'S BASEMENT STORE 217
recalls Brackett's contact of Young occurred on Monday
morning Thus Young relates that it was on Monday that
Brackett informed Young that Savageau had left for
lunch on Friday, and that Savageau had not returned, or
called Young relates that Brackett inquired of Young
whether Young had received a message, or had any in-
formation on it Young (who had earlier that morning
also checked the answering service) replied no Young
relates (at least) on one occasion, Brackett said that was
the last straw, and he recommended termination based
upon Savageau's past work record evaluation, and her
Friday job abandonment Young also confirmed that, in
discussion, Brackett informed Young that other associ-
ates had problems working with Savageau, and, that Sa-
vageau made a lot of trips to the restroom
McGrath had been responsible for 21 branch stores in
New York and New England In July, she received addi-
tional responsibility for SDC and ADC Young contact-
ed her superior, McGrath, and reported the facts on Sa-
vageau as then known, namely that Savageau had not re-
turned to work after lunch on Friday, and she had not
called Though Young was not sure whether it was in
her first conversation with McGrath, that she had rec-
ommended it, McGrath recalls, and I find Young initially
recommended that Savageau be terminated for job aban-
donment Notably, Young's recommendation to McGrath
that Savageau be terminated was in accordance with
normal procedure, as no Filene's personnel manager has
authority to discharge an employee on their own, i e ,
without going through Filene's corporate headquarters
McGrath confirms Young contacted her on Monday
(August 31) McGrath specifically recalled that Young
reported that she had found out that day that Savageau
had left for lunch on Friday, had not returned, and had
not contacted us McGrath also corroborates that Young
thought that was grounds for dismissal, job abandonment
without (stating) a valid reason According to McGrath,
Young had called McGrath to ask for counsel, which
was McGrath's role McGrath felt that they should
(first) listen to what the employee had to stay McGrath
confirmed however that others were also consulted
McGrath relates that normally she has the final au-
thority on a termination However during a union cam-
paign, McGrath brought everything to the attention of
her supervisor, Filene's senior vice president of person-
nel, Collman, as a precautionary measure, to make sure
McGrath was handling everything properly McGrath
testified that FDS also required everything to be report-
ed to them McGrath explained that she was told that
FDS wanted to also be sure that we (Filene's) were
doing everything correctly and fairly, because of the ex-
istence of the Union's campaign
McGrath thus testified that she had first reported to
her supervisor, Collman, recommending that they talk to
Savageau, listen to what she had to say, and find out all
the circumstances from her point of view According to
McGrath, Collman contacted FDS, who concurred with
McGrath
On September 1, Tuesday morning, Brackett again
called Young Brackett testified that at that time Young
said that she was still waiting to hear from FDS
Savageau relates that on Tuesday, September 1, Sava-
geau again came to work Savageau is an immigrant In
that regard, Young had apparently earlier informed Sa-
vageau that Savageau would have to have certain immi-
gration papers (on file) with Employer on September 1
In any event, at about 9 30 a m that day, Young spoke
to Savageau about Savageau's need to provide the re-
quired immigration papers Young told Savageau that
she would have to immediately leave ADC, and go get
the required immigration papers Young also informed
Savageau that she had to return with the required papers
before 3 30 p m or Savageau would be terminated Sava-
geau promptly left ADC Savageau first collected her
birth certificate and identification papers Savageau next
went to city hall, where she was able to successfully
obtain her immigration papers Savageau returned to
ADC with all required immigration papers before 3 30
pm
Young has testified that she received a call later that
afternoon, after Savageau had left for the day Accord-
ing to Young, the instruction that Young received on
that occasion was that she was to make the final judg-
ment on Savageau's termination based on whether Sava-
geau had an extreme emergency that had in effect pre-
vented Savageau from returning to work, or calling in
Matthews testified that the decision that FDS made
was that Young was to sit down with Savageau and de-
termine if there were any extenuating circumstances, or
an emergency that had occurred It was left up to Young
to determine According to Matthews, if the reason was
not valid, Young would make the determination to termi-
nate, or not (However, Matthews acknowledged that Fi-
lene's recommendation had been to terminate ) McGrath
compatibly testified that Young's instruction was to see
what Savageau had to say, to be sure to have Savageau
presented with an opportunity to explain all the circum-
stances McGrath corroborated Matthews however, that
if Savageau did not have a valid reason, it was up to Young
how to handle
Brackett corroborated Young's understanding of the
FDS instruction at the time Brackett testified that some-
time after the close of work that day, he had a conversa-
tion with Young in which Young advised Brackett that
she had received word from FDS Brackett then testified
that Young informed Brackett that the instruction she re-
ceived was that Young should interview Savageau
Young was to question Savageau on why Savageau did
not give us an explanation for her absence Young was to
ascertain if the reason Savageau did not call involved an
extreme emergency, or life threatening situation, some-
thing that would explain Sabageau's not thinking of call-
ing the Company If so, Savageau was not to be dis-
charged But if otherwise, Savageau was to be dis-
charged
On Wednesday, September 2, Savageau again reported
for work at 7 a m At about 8 30 a m, Brackett brought
Savageau to Young's office
According to Savageau, Young asked Savageau where
she was on Friday, and why Savageau did not come
back, or call Savageau told Young that she did try to
call On cross-examination, Savageau acknowledged that
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Young asked Savageau why she had not covered herself
by calling Filene's answering service Savageau then re-
plied that she did not know the answering machine
number, and that she did not know there were two num-
bers to be called
Young testified that when Young asked Savageau for
the reason that she did not return, or call in, Savageau's
first response was "I tried" Savageau said she tried to
call between 1-2 p m Young then asked Savageau what
number she had used According to Young, Savageau
did not recall the number Young first said, there is a re-
ceptionist always on the phone Young then asked Sava-
geau why she did not (alternatively) call the answenng
machine, and leave a message to cover yourself Young
recalled that Savageau said she did not think of that
Young has testified that the installation of the answer-
ing machine recently actually had nothing to do with Sa-
vageau's call-in circumstances Young credibly explained
that the answering machine's service importance related
to those attempting to call in before the receptionist
manned the phone in the morning In contrast Sava-
geau's call would have been made while the receptionist
was there manning the main line (switchboard) phone be-
tween 8 a m and 4 30 p m
In further explanation, Young explained that employ-
ees who were not going to report for work on a day
they were scheduled to work, were supposed to call in
between 6 30-7 a m At that time the receptionist was
not working The employees had been (previously) told
to use the pay phone, located nearby an employed secu-
rity guard The absence call-in procedure was that a
message would be taken by the security guard, and at
start of regular hours, transferred to personnel Young
acknowledged that she was not getting all the (morning)
message on absences
On that account Employer had recently installed an
answering machine to which the employees could call in
their absence and reason, prior to the receptionist man-
ning the phone Young wrote a covering memo on it on
August 18 The system was effective August 24 The
memo informed employees that ADC would no longer be
using the pay phone for employee absences The phone
number connecting to the answeremg machine that em-
ployees were to use thereafter was set forth in the memo
The answering machine number was posted on the em-
ployees' bulletin board(s) A note on the new call-in pro-
cedure and the new phone number to use had been pre-
viously stapled to every employee's paycheck
Thus Young credibly explained that though the new
answering machine servie could be used by an employee
as a backup, for calls made during the day, there was
someone at the receptionist phone all the time during the
hours of 8 a m to 4 30 p m Brackett confirmed in gener-
al Young's observance at the time that Employer did not
receive a Savageau call from either receptionist or an-
swering machine source I credit Young that on the oc-
casion of Young's inquiry why Savageau did not use the
answenng machine to cover herself, Savageau had re-
sponded that she did not think of that
Savageau's version otherwise continues that Young
then asked why Savageau did not return, and, Savageau
said it was a personal problem Young asked what the
problem was Savageau further replied, it was family
problems, the family problems had to do with her
mother and it was personal Savageau acknowledged that
she did not give Young any further details
Young confirmed that she asked Savageau for the
reason that Savageau had not returned According to
Young, Savageau said personal problems, mentioned
something about her boyfriend, and she left it at that
Young had specifically testified that she asked Savageau
a couple of times if she could elaborate on what the per-
sonal problems were and Savageau did not Brackett has
(essentially) corroborated that Young asked Savageau to
possibly elaborate on the personal problems that she had,
and Savageau did not want to do that Brackett acknowl-
edged that Savageau may have mentioned her boyfriend,
but Brackett did not recall that she had mentioned she
had problems with her mother Brackett did recall how-
ever, that Savageau had said that she had personal prob-
lems, and that she didn't feel comfortable divulging
them
Savageau testified that her termination papers were al-
ready written out Brackett confirms they were, and he
testified that he did not know of that beforehand Young
acknowledges that she had prepared termination papers
prior to the meeting and that she handed the termination
papers to Savageau to sign When she did so, Young told
Savageau it (her failure to return Friday afternoon, or to
call in) was job abandonment
Savageau testified that at the time she did not know
that the Employer was going to go to the extent of firing
Savageau over it However Savageau also acknowledged
that in the interview at that point when she knew she
was being fired over it, she did not (even) then ask for
an opportunity to further explain the personal problem in
more detail to Young, as Young had earlier requested
that she do
Savageau signed her termination papers She entered
in the comments section, according to her, on her own,
"I tried to call from 115 to 2 15 Problem had to take
care of"
Brackett testifeid that the reason he did not ask Sava-
geau in the prior 2 days about her reason for being
absent, was, because he felt it was her place to tell him,
though in the end he more candidly testified that he
wanted Savageau to be fired Young confirmed that Sa-
vageau was a problem performer, having been counseled
twice before for her substandard work performance
However, Young held firm that Savageau was fired for
her job abandonment
Young testified credibly that job abandonment covers
an employee who has left the worksite without any type
of supervisory approval, who did not return to work
within the scheduled shift, and who did not call in, and,
it also covered one who did not show up for work for
some period of time, and who did not come back with
some emergency reason faor failing to do so
Brackett testified that Young turned to Brackett and
asked Brackett if he thought that was grounds for termi-
nation Brackett replied that he had not received the in-
struction from FDS, and, he thought that Young should
make the decision Young testified that she made the
FILENE'S BASEMENT STORE 219
final decision, and that the reaon that Savageau was ter-
minated was because of her failure to return (to work)
from lunch, to call, and to not provide a reason of ex-
treme emergency Young testified that if Savageau had
called in, and if she had her absence excused, Savageau
would not have been fired for her prior poor productivi-
ty
McGrath testified that Young reported back that she
had held the meeting with Savageau, and that she had
terminated Savageau for job abandonment, and for not
having an acceptable reason McGrath confirms that
Young reported that when she asked if Savageau had
called, Savageau said she had tried, but she couldn't con-
tract anyone, and, that when Young had then asked if
Savageau tried using the answering service, Savageau
said she did not think of that According to McGrath,
Young also reported that Savageau did not have any par-
ticular reason for not calling in McGrath recalled that
Young said, Savageau said she did not return or call in
for personal reasons, and that although Young had asked
several times if Savageau could expand on that, Sava-
geau said no
Brackett, Young, and McGrath have testified that Sa-
vageau's termination was consistent with the Employer's
progressive disciplinary policy Indeed, McGrath has tes-
tified that a termination for established job abandonment
is consistent with both normal policy, and past practice
Matthews testified that she had no knowledge or infor-
mation about Savageau's attitudes towards the Union
McGrath testified that at time of Savageau's discharge,
McGrath had no information one way or another on Sa-
vageau's union attitude Brackett has testified that he had
no conversation with Savageau about her attitude to-
wards the Union, or union organizing, and, that prior to
Savageau's discharge he had not ever received any mfro-
mation about her attitude towards the Union Although
Kame/ and Manning were aware that Savageau had
signed a card for the Union their awareness also included
a simultaneously evidenced indecision on Savageau's
part Young testified that prior to Savageau's termina-
tion, Young personally was never aware that Savageau
was involved in union activity
Contentions and analysis
The General Counsel's basic contention advanced is
that Employer discharged Savageau in part because of
her known union organizing activities, which it strongly
opposed I first address the scope and degree of Sava-
geau's union activities as credibly established of record,
and as shown known to Employer
In addition to Kamel's awareness on July 17 that Sava-
geau had previously signed a union card, the General
Counsel has urged that Krauth's concession that he was
earlier aware of union meetings being held at the Yankee
Drummer Inn should be expanded to include a Krauth
awareness that Savageau was an early union supporter
who had been attending union meetings since May
In this regard, the General Counsel seeks too strained
an inference No question was put to Krauth, or to other
Respondent officials, that has in substance or in effect
elicited specific Employer knowledge of employees who
attended the meeting, let alone that they were aware that
Savageau had done so early and regularly, and/or had
been reported as an active union organizer She was not
one of the four employees named on the Union's em-
ployee organizing committee, nor one of the two others
that Matthews had become aware of otherwise at the
time
Evidence of Savageau's union prommince in organiz-
ing was not convincing To the extent the General Coun-
sel would seek to rely on a Savageau prominent involve-
ment with union card solicitation, particularly at ADC, I
have found the evidence offered of record to support
such a finding to be wholly unpersuasive, for reasons
earlier noted She did not engage in union handbillmg at
ADC
More viable, on the surface, is Savageau's testimony
that she had displayed union handbills in her car when it
was in the employees' parking lot at ADC, though she
offered no evidence of direct observation or comment
made theron by Employer Such a display, if Employer
be shown aware of it, would necessarily have been after
Savageau had imparted some indecision on her prior sup-
port of the Union to Kamel (if not also Manning) on
July 17, and thus of significance in evidencing her re-
newed union support
The circumstance that Savageau wore a union hat at a
couple of employee softball games away from the plant
is not shown by the record to be significant Savageau
concedes that no supervisor ever saw her wear a union
hat No evidence is presented that Savageau's wearing of
the union hat was reported back to Employer Nor does
Savageau's testimony of having the union hat on the
back seat of her car near a window on occasion(s) when
she had parked her car in the emloyees' parking lot, on
this record, much advance her company-known union
activity The question remains whether either circum-
stance of display of union handbill(s) in her car, or pres-
ence of a union hat on the back seat of her car is reason-
ably shown of record to have come to the attention of
Employer I conclude and find that neither has been
shown by the evidence to have come to the attention of
Employer
In sum, I have found that the General Counsel has
made out only a prima facie case of company-known Sa-
vageau engagement in protected union activity in signing
a union card Although the Company strongly opposed
its employees organizing the Union at ADC, I have also
found that the Company was aware of certain facts in-
dicative that Savageau more recently was indecisive
about the Union At best, the General Counsel has made
out a comparatively weak prima facie case for Sava-
geau's prior union activity as being an operative factor in
Savageau's later discharge
The General Counsel, however, also would rely on
circumstances of Savageau's (delayed) termination on
Wednesday for her prior absence on Friday, and a claim
that the Employer is shown to have disparately treated
Savageau in this matter when its discipline of Savageau
for her unexplained absence on a Friday is compared
with the Employer's treatment of certain other employ-
ees for the same or similar matter, and thus it is in that
manner to be established that the concealed prescribed
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
antiunion considerations played a role in the various dis-
charge recommendations of Filene's local and corporate
managers, and in the review of FDS officials that has
lead to the decision to discharge Savageau
The delay in Employer's investigating and administer-
ing discipline on Wednesday, for a prior Friday absence,
espacially with the intervening threat on Tuesday to ter-
minate Savageau for nonproduction of immigration
papers, may be viewed, initially, as suspicious However,
what is indicated on this record in the end is that Sava-
geau's situation passed through three levels, Filene's
ADC (local), Filene's (corporate), and FDS, and Sava-
geau had also failed to on her own act timely to provide
her Employer with required immigration papers at the
requied interim time The fact that that circumstance
may have been a contributing factor in Employer's sub-
sequent delay in pursuit of the investigation of Sava-
geau's unauthonzed absence on Friday, does not itself
convey sole inference the delay was for an unlawful
motive, rather than a delay stemming in part from an in-
tervening practical consideration of Employer meeting
what is now required of Employer for it to employ im-
migrants
The General counsel would also have an asserted fail-
ure on Employer's part to afford Savageau a fair consid-
eration evaluated in the light of Employer's discount of
Savageau's admittedly unsuccessful attempts to call in
her absence, especially in the circumstance where but 2
weeks before, Filene's had altered its call-in system The
General Counsel's argument is thus that Employer
should have reasonably expected there would have been
some degree of employee confusion (e g, on there being
two numbers to call in) In agreement with Employer
however, I find this argument is fatally exposed as being
nonmentonous by Young's definitive explanations of the
call-in procedures, and their reasonable effects in this
matter In short I find the failure of Savageau to report
her absence that afternon is not adequately eiplamed by
any recent change in Employer's call-in procedure
Employer contends generally that its admitted opposi-
tion to the Union is not to be automatically equated with
an employer animus that supports unlawful discriminato-
ry discharge To the extent Employer contends thereby
that its expression of opposition to the Union does not
automatically establish that it discharged Savageau with
a discriminatory motive, I agree
Employer contends specifically the General Counsel
has failed to make out a prima facie case of unlawful dis-
crimination in termination of Savageau Rather, Employ-
er contends that Savageau was only a marginal employee
who was not an active union adherent, and/or essentially
surreptitious in any union activity that she did engage in
However I have found that the General Counsel has es-
tablished that Respondent's agents did engage in certain
unfair labor practices that have substantially mterferred
with, restrained, and coerced employees in the exercise
of their Section 7 right to organize the Union at ADC,
and, that he has also made out a prima facie case on the
basis of Employer's awareness that Savageau had earlier
signed an authorization card for that union
Although essentially conceding that both Kamel and
Manning were aware that Savageau had stated in mid-
July that she had signed a card for the Union, Employer
would have it noted that Savageau had also effectively
told both Kamel and Manning that she realized she
might have made a mistake and wondered whether or
not she could get her card back In that regard, Employ-
er contends, that there is no evidence that Savageau en-
gaged in, but, I find (more convincingly on this record)
none that establishes that Employer was aware that Sa-
vageau engaged in union activity after the above-noted
conversations with Kamel and Manning However, I
have difficulty with attaching much significance to the
Employer's argument that neither Kamel nor Manning,
who knew of Savageau's union activity, participated in
Savageau's discharge, and that the management officials
that did, have each testified that they were unaware of
Savageau's union activity, and especially as it applies to
Local Personnel Manager Young, who made the decision
to terminate Savageau after an investigatory interview
Employer's additional contention that other employees
who were open, active, and leading union adherents
were not subjected to (discriminatory and/or other un-
lawful) discipline, is not persuasive, inasmuch as I have
found that was the case with Noonan I do otherwise
agree with Employer's observation that there is no evi-
dence presented of record to establish any Noonan-Sava-
geau, boyfriend-girlfriend relation Indeed, if anything,
the record only reveals (as earlier noted) that Savageau
at one time had regularly gone to union meetings with
Corso Significantly, apart from question of credibility in
Young's denial of awareness of Savageau's union in-
volvement, the extent of proven company knowledge lo-
cally (Kamel and Manning), in any event extends only to
company awareness of not only Savageau's earlier sign-
mg of a union authorization card, but also her more
recent possible disaffection from personally supporting
the Union
In that regard, Employer contends that even if there
was some basis established to suspect union organizing
played a role in the decision to discharge Savageau, the
Respondent met its burden of establishing that Savageau
would have been terminated in any event Employer
contends that Savageau violated an established and
known company rule requiring employees to notify the
Company if they were not going to return to work
Weight of still other more convincing evidence sup-
ports Employer contention that it would have terminated
Savageau in any event, irrespective of her prior union
activiy Thus Employer contends, and I find, that on
August 28, with knowledge of the rule, one she had pre-
viously fully conformed with, Savageau not only failed
to return to work, but, after an (at best) only brief and
unsuccessful effort, Savageau wholly abandoned any rea-
sonable effort to notify the Company that she would not
be returning to work on Friday, for any stated, let alone
acceptable reason
Employer further contends that it is not only signifi-
cant that Savageau did not contact the Company on
Friday, August 28, it is equally significant that she did
not approach the Company even on her return to explain
her absence I agree Moreover, Manning was especially
persuasive in testifying that Manning had earlier evaluat-
FILENE'S BASEMENT STORE 221
ed Savageau, on the basis of her work performance, as
an at best marginal employee Contrary to the General
Counsel's urging, the fact that Brackett did not earlier in-
quire of Savageau of her reason for absenee, as with
design for Savageau retention, is wholly compatible with
the credited evidence of record as to the nature of Sava-
geau's earlier work performance, and, of the way Brack-
ett viewed Savageau's work performance in, and her
contribution to his reserve department
Finally, Employer contends that when the Company
later investigated the unreported, unexcused, and thus far
unexplained Friday absence matter, despite Young's
warnings on the need for Savageau to explain her ab-
sence, and the opportunity provided to Savageau to do
so, Savageau failed to timely state any extenuating cir-
cumstances in the reasonably exercised judgment of Per-
sonnel Manager Young, to whom the decision was in the
end entrusted Indeed, in the judgment review of all offi-
cials that were involved, Employer contends the dis-
charge discipline administered to Savageau was both
fully appropriate and concluded consistent with Re-
spondent's progressive discipline policy
The General Counsel would counter that contention
by seeking to establish that there has been disparate
treatment of Savageau, by Employer's asserted dissimilar
treatment of other employees, notably Robin Rivera, and
Noonan
ADC employed Robin Rivera from April 18 to
August 4, when she voluntarily terminated Rivera was
never criticized for her work performace She was never
disciplined Rivera not only testified that she had over a
2-week period openly solicited employees to sign author-
ization cards for the Union, Rivera also testified, unlike
Savageau, that she had openly handbilled for the Union
at ADC
Rivera testified generally that she did not always
return after lunch, including on Friday, and, that there
were occasions when she had done so without the super-
visor's permission However, Rivera has also testified
that at first she did obtain it (permission), and otherwise,
that in the period of April-June, there were low periods
of work at ADC when the Employer had regularly en-
couraged employees to take time off Upon an inquiry of
specific days that she had taken off midday, and particu-
larly in the period mid-June-July, Rivera could not
recall, one way or another, whether she had spoken with
her supervisors before or after Moreover, Rivera has
testified that she was aware of the rule requiring her to
do so (call in or otherwise get supervisory approval),
and she had done so in the past, though she continued to
assert, only generally, not always Rivera's testimony
failed to persuade me that the rule of job abandonment
was one inconsistently applied to employee Savageau
It is nothing short of ironic that the General Counsel
seeks to establish disparate treatment of Savageau, by
virtue of Noonan's nonreturn after lunch 1 day earlier
that same month That circumstance need not be bela-
bored Noonan was the Union's leading union adherent
and advocate In work performance, Noonan was also a
superior employee Moreover, when Young, in disbelief
upon learning of his unreported absence, on her own ap-
proached Noonan as to the reason for his absence,
Noonan offered Young the explanation, found also ade-
quate in the case of Thrush, namely, a medical emergen-
cy of a family member, his grandmother
Given the limited union activity of Savageau that Re-
spondent is shown of record reasonably to have been
aware, and, given the established circumstances of an un-
excused job absence on Friday afternoon, and, Sava-
geau's inadequate explanation offered Young for the job
absence, though afforded ample opportunity to explain
the absence on the prior Friday, and, given Savageau's
established prior poor work performance in the opinion
of her last two direct supervisors (of which Young was
aware), the last of which in the end tellingly revealed
that he simply did not want her back, I am persuaded tht
Employer has established that under all the above cir-
cumstances, Respondent, through Young, would have
terminated Savageau for her recent instance of unex-
cused job abandonment, irrespective of her known union
activity That is, unless the presnbed discriminatory pur-
pose is to be revealed in some other manner, as by force
of proof of an alleged unlawful termination of employee
Ed Komcki for the same alleged discriminatory reason,
notably accomplished on the very same day
c The alleged discriminatory termination of Ed
Konicla on September 2
(1) Komcki quits on August 5
Edwin P Komcki testified that Filene's had employed
him from April 6 to August 5, and from August 7 to
September 2 Prior to August 7, Konicki was not in-
volved with the Union in its campaign in any respect
(Ronayne testified that he was not aware of Komclu's
activity on behalf of the Union before August 26 )
Komcki relates that as of August 5, his home-base job
was in bulk area, where he counted and put up stock
(e g, clothing, pocketbooks, etc ) on pallets Komcki
started work at 7 a m, though he would regularly arnve
early Komclu was supervised by Manning from mid-
July
In the material period of July and August, Manning
was the supervisor of bulk (giftware) processing area
Manning confirms that bulk processing was Komclu's
home base, and, that Komcki worked there more often
than not However, Manning was on his vacation from
July 30 to August 14 Prior to gomg on vacation Man-
mng had written up Kornch's 60-day (but in time, more
like 90) evaluation Manning rated Komcki as a good
employee in all categories Manning sent his unsigned
evaluation of Komcki (along with his evaluations of
many other employees) to Young for her (and
McGrath's) review, prior to Supervisor Manmng's
review with the individual employee Young confirms
that Komclu was rated a good solid performer
Komclu relates that on August 5 he received an as-
signment (recalling it Incorrectly as given by Manning
who was on vacation at the time) to mark down prices
in part of bulk area, but, that on the way to markdown,
he had received a second assignment from Kamel to go
to reserve (to ship out from reserve) To the extent Kon-
iclu would assert in regard to a Kamel assignment on
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 31, that Kamel had never assigned him work
before, that assertion is not credited
Komcki walked to reserve department, but then he
kept on walking Komcki said nothing to any supervi-
sors Komcki just signed out (on his own) at 7 15 a m
Komcki left his badge, and he walked out of the ware-
house, disgusted Konicki explained that there was work
in his regular bulk area, and his understanding was that
an employee would not be flexed if there was work in
the employee's assigned home area However, they
would start him somewhere, and then abruptly shove
him somewhere else, and he was not too happy about it
According to Konicki, he had been flexed before, but all
of a sudden, he was being flexed more often, as much as
3-4 times a week, though there was work in his area As
Konicki walked downstairs to leave the building, Kamel
asked Komcki what the problem was Komclu replied he
was sick of it, and going home
Manning was on vacation when Koniclu walked off
the job on August 5 Kamel recalls that he was standing
by the exit door of the warehouse that day when Kon-
icki walked by, and that Konicki gave his identification
to Kamel, saying, "I quit" Kamel relates that he asked
Komcki, "Ed, what's wrong" Kamel followed Komcki
out the warehouse area door and down the stairs that led
to the exit from the building Kamel confirms that Kon-
icki said (only), "that's it, I'm sick of it," and Komcki
walked out the door
Kamel otherwise confirms that he was aware that
Konicki was home-based in bulk, and, that Komcki had
been flexed that day to the reserve area, (adding) as had
10-12 other employees Kamel denies that it was well
known to him at that time that Konicki did not like
moving around the facility to different areas There is no
indication of it in Manmng's prior evaluation of Komcki,
though Young relates that she had heard Konickes
grumbling on it
Kamel testified that it was his recommendation that
Komcki be terminated, because Komcki had walked off
the job and quit Kamel also testified that at that time
Kamel had no information on Koniclu's attitude towards
the Union Kamel relates that he never had a conversa-
tion with Komcki about the Union Kamel further testi-
fied that he was not involved in the decision to put Kon-
icki back to work, but, that Kamel was informed that
Komcki was later put back to work on the condition that
he agree to cooperate with management on flexing in the
future
Krauth recalled that early in the morning of August 5,
Kamel came downstairs and informed Krauth that
Kamel was standing by the door when Komcki walked
by, and simply said he quit and was leaving According
to Krauth, Kamel asked what they should do, and
Krauth said they should talk to FDS
Young relates unsurely, that Krauth, Kamel, or a su-
pervisor told Young that Konicki had walked off the
job Young testified that it was considered job abandon-
ment Young otherwise recalled that she was told that
Komcki walked off the job because he was upset about
being flexed into another area Young was aware that
Komcki was a good employee, without RC As noted,
there was no hint of Komclu grumbling over flexing in
Manmng's ratings of Komcki (in versatility and coopera-
tion) that Young had in her possession at the time
(2) Komcki returns August 7
Komcki went home, thought it over, and he figured
that he should try to return to work because he had
done himself an injustice by walking out In any event,
Komcki called Haskell that day, intending to talk to Has-
kell about problems on the job, and Koniclu's return
Haskell was not available Notably, the secretary did not
ask, and Konicki did not tell Haskell's secretary why he
wanted to speak to Haskell
Young called McGrath, who reported it also to higher
headquarters Initially Young related that she was to
contact Komcki to find out why Komcki had left On
another occasion Young related that Komcki had (subse-
quently) called ADC, and left a message with the office
of Haskell, who was not there at the time, so Young
took it upon herself to call Komcki back to determine
from his perspective what had happened, and why did
he walk out However, Young seemingly later clanfied
she probably was acting on McGrath's instructions in
calling Komcki Young did not reach Komcki until later
that afternoon (I find infra, evening), and thus, in any
event, after Young had conversed with McGrath (and
Matthews)
McGrath confirms, pursuant to normal procedure,
Young had called McGrath to report that Komcki had
quit, reporting that he had left his name badge and
walked off the job and the premises McGrath was
(made) aware that Komcki had (later) called ADC
McGrath relates that Young said that Komcki was upset
because he had been flexed Seemingly out of context
with an initial call of Young, and with what was then
known, McGrath related that Koniciu regretted he had
quit, and he wanted to come back and talk to Haskell In
any event, McGrath informed her supenor, Collman
McGrath recommended (to Collman) that they have
Komcki come in, and listen to him According to
McGrath, Collman then notified FDS
Ora Matthews, FDS employee relations specialist, con-
firms that Collman had called Joseph Vella, then FDS
operating vice president (employee relations) Matthews
had only recently reviewed Employer's Communications
Guideline with Vella, sometime during the week of July
20 In any event, Matthews called Young directly, the
same day that Collman had contacted Vella Young re-
peated the circumstances that Koniclu had walked off
the job, basically quit However, according to Matthews,
and clearly the more consistent, Young was not then
aware of why Komcki had phoned Haskell
It appears reasonably clear that Young was instructed
to ask Konicki to come in (whether by Matthews, or
McGrath, or both), because they wanted to discuss
(learn) Komclu's circumstances in leaving the previous
day According to Matthew's recollection, Young did
not make any recommendation at that point because they
were waiting to hear Komckes reasons It also seems
clear that Matthews had at least two conversations with
Young, and, one clearly was after Young had eventually
reached Komclu in the early evening of August 5 ,
FILENE'S BASEMENT STORE 223
Konicki thus testified that he spoke to Young that
evening at 7 30 p m Young testified that upon reaching
Komcki, Young asked Komcki if he wanted to explain to
her what happened and why he walked off the job Kon-
icki confirmed that Young first asked him what the prob-
lem was, and Komcki said he did not care to discuss it
over the phone Komcki recalled that Young then asked
Komcki would he come in tomorrow and talk it over,
and Konicki then said that he would like to meet her in
person and talk it over
Young confirms Komcki said, "Well, I'd like to talk to
you about it, but I don't want to talk to you over the
phone" Young however has asserted that she believed
that Konicki wanted to talk to Krauth, and she recalls
arranging for Konicki to come in the following morning
and meet with both Krauth and Young to explain why it
was he walked off the job Komcki essentially confirmed
Young's account of arrangements to come in the follow-
ing morning, except that Komcki testified that he told
Young, when asked if he wanted to do so, that he would
like to meet with Young in person, and talk it over I do
not credit Young's recollection that Komcki asked to
speak to Krauth
(3) Konicki expresses disinterest in reading either
company or union literature
Komckes version continues that he arrived at 7 a m,
the following day, August 6 Young called Komcki into
the office, but then Young said that they would wait for
Krauth They went to Krauth's office According to
Komcki when Krauth arrived, Krauth asked Konicki
what he was doing there Konicki said that Young had
invited him over, and that he would like to get his job
back After initial hesitation, and an assertion the he
could not recall the details of their conversation, Komcki
then testified that Krauth said, "You know we got letters
that we pass out that we would like you to read that you
haven't been reading" (Though there is some confusion
of record therein, especially as to timing, apparently
Krauth made a similar remark in an RT discussion when
Konicki had recited certain problems on the job to
Krauth )
In any event, Komc1u relates that he then told Krauth,
he did not have to read those (antiunion) letters Konicki
recalls that Krauth replied, "You think you know every-
thing", and Konicki denied making that claim Konicki
otherwise testified that Krauth did not express any opin-
ion about the Union, or its campaign, in any respect
Komcki initially asserted that no one asked him why he
quit, and he did not recall a discussion of flexing, but
then added he was not denying it Indeed, Komcki
promptly acknowledged that that was what a certain
letter was about the next day, infra
Krauth confirms that on August 6, at 7 a m, he spoke
to Konicki in his office in the presence of Young
Krauth's version is that he wanted to find out what hap-
pened, what was the reason for Konickes walking off the
job and quitting, and he asked Komclu why Komcki left
According to Krauth, Komcki said that he was sick and
tired of being flexed Krauth was sure that he had also
discussed the Company's flexing policy more with Kon-
icki at the time but Krauth could not recall the conversa-
tion details specifically
Young's related testimony is that Komcki was very
upset that he was flexed out of his department into an-
other department, and, he said he did not know why
they were flexing him According to Young, Krauth
then explained to Konicki that they flexed people into
other departments based on business demands, what had
to happen in the warehouse, what work had to be then
processed, and Krauth told Komcki that they would
continue to do that I credit Krauth and Young's ac-
counts that they inquired of Konicki why he had quit,
that Konicki explained he was upset with flexings, and
that Krauth in turn (essentially) explained the Employ-
er's position on the business need for flexing, and that it
would continue
Krauth testified that at this time he had had no con-
versation with Komcki about the Union, and Krauth had
no information about Komclu's attitude towards the
Union However, Krauth confirms that in their convera-
non Komcki had said that he did not want to hear (or,
was sick of hearing) baloney about the Company, or the
Union, and Komcki just wanted to be left alone Krauth
denied that he told Komcki in that meeting, or at any
other time, that Komcki was required to read company
literature Young relatedly testified that Koruclu's state-
ments, e g, about not wanting to read either company or
union literature, had no beanng on their decision
Young clid not recall a Krauth statement that Krauth
expected Koniclu to read the company literature
Though she did not recall who brought up the subject of
(reading) literature, she did recall that it came up I
credit Komclu's recollection that it came up following
the Krauth statement about Komclu's not reading com-
pany literature that was being passed out and Komclu's
reply he did not have to read that literature However, I
am persuaded by the weight of other mutually consistent
evidence in the accounts of the participants that that was
not the entire conversation related to that subject
Rather, I also find that when Komclu told Krauth that
he did not have to read those letters, and Krauth then
commented that Koniclu thought he knew everything,
Konicki followed up his disclaimer of claiming to know
everything with the additional statements attributed to
him by Young, namely, "I just want to be left alone I
want to do my job I want to do my job well I don't
want to read the Company literature I don't want to
read the Union literature I don't want to read anything
I just want to be left alone to do my job"
Young recalled that Koniclu asked for his job back,
and Krauth said he would have to think about It Young
believes that they told Koniclu that they would get back
to him Krauth corroborates that Krauth and Young
asked Komcki to leave and said they would get back to
Komcki that afternoon
Krauth recalls that, in his view, Konicki had Olt, and
Krauth testified that he recommended termination
Young confirms that Krauth recommended termination,
though she recounts otherwise that she did not know
what he felt Krauth relates that Young contacted FDS
However, Young testified that it was discussed with
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McGrath, and a decision was made above her head,
quickly, the same day
McGrath confirms that Young reported back that
Komcki had requested reinstatement McGrath did not
recall if she was told that Konicki was a very good
worker, though she acknowledged that was a factor in
his return In significant contrast with a Krauth recom-
mendation (at that time) that Konicki be terminated,
McGrath testified that she was not aware of anything neg-
ative
McGrath recounts that (local) management explained
to Konicki that part of his job was to be flexed to other
areas, and, if Koniclu wanted to come back that Komcki
also needed to understand that, and, to be sure it was
clear In that regard, McGrath also testified that they
had a statement for Konicki to sign, that he understood
that in the normal course of his job, he would be flexed
in the future
Matthews did not recall what Young's recommenda-
tion was She also did not think that FDS had the infor-
mation whether Konicki was a good employee or not
Based on her own personal experience, Matthews was
sure that would be taken into account, but she did not
recall a conversation on it The point to Matthews (and
McGrath) was that the Employer had sat down and
talked to Komcki, and the Employer had clarified to
Komclu what Komclu's responsibilities were as a ware-
house utility worker at ADC
Thus, when Young told Matthews that Komclu
wanted his job back (essentially) under those circum-
stances, that he basically regretted walking off, and that
he wanted to come back to work, Matthews discussed it
further with Vella They then decided to reinstate Kon-
icki with the clear understanding that Konicki would be
in agreement to flex to other departments in accordance
with his responsibility as a utility worker Moreover,
they decided to put that agreement in the form of a writ-
ten statement for Komcki to sign
On the afternoon of August 6, Young spoke with Mat-
thews in regard to the Komcki reinstatement letter Mat-
thews dictated the content of the letter, in the form of a
memo, over the phone, and Young typed it The pre-
pared letter from Komcki to Krauth related the circum-
stance that Komclu quit, and the conditions upon which
Konicki would be returned to work, as follows
On August 5, 1987, I quit without notice because
I was asked to work in Reserve Department
I am requesitng to be reinstated to my former po-
sition as a Utility Worker and I understand and
accept that I may be flexed and reassigned to work
in other departments from time to time
I will accept and cooperate with management re-
garding these re-assignments
Young confirms it was decided to offer Korucki rein-
statement to the same job as a utility worker, that he was
a good worker, and that it was approved all the way down
the line Young called Konicki and she asked him (only)
to come in the following morning for a meeting at 7 a m
Konicle confirms receiving the call from Young, about
8 30 p m, to come in the following morning
Young did not attend the meeting held on August 7,
when Konicki signed the above letter Konicki signed
the letter as prepared Komcki testified that pursuant to
instruction, he had arrived at the warehouse (before) 7
a m, and he waited for Krauth to arrive When Krauth
arnved, Krauth called Komcki into his office Komcki
relates that Krauth had a paper, and that Krauth asked
Komcki to read it, see what he thought, and asked
would Konicki agree to it Konicki read and signed the
letter Krauth told Konicki to return to work, which
Komcki did on August 7
McGrath testified Young reported to McGrath, and
Matthews corroborated, that Konicki signed the state-
ment (agreement) and returned to work on August 7
Contrary to Komcki's apparent misunderstanding, Young
further testified that Konicki did not return as a new em-
ployee, but rather Komclu continued in his pnor em-
ployment tenure
At that time, McGrath was aware from Young's
report (only) that at a previous meeting Konicki had said
he did not want to be bothered heanng anything pro or
con about the Union McGrath corroborated Young that
was not a factor in Konickes rehire
Matthews testified that at all times they were trying to
be aware of an employee's attitude toward the Union
Matthews also acknowledged that at this time Matthews
had knowledge that not necessanly linked Konicki to the
Union, but that Komcki was not necessarily procom-
pany
Matthews' understanding at this time was that in the
Konicki-Krauth conversation, Komcki had said he just
wanted to be left alone He did not want any literature
from the Company, and he did not want any literature
from the Union, he was neutral on the Issue of unions
Matthews has also testified that she had no knowledge
of any specific Konicki union activity at that time This
would change with Krauth's report of certain Komi('
union activity on August 26, Young and Kamel's report
of another Kamel-Konicki flexing incident occurrence on
August 31, and, this time, Konickes discharge followed
on September 2, with the parties contesting alleged in-
subordination and disparate treatment claims
(4) The unreported second Kamel-Koniclu flex
incident, mid-August
According to Kamel, when Komcki returned on
August 7, he was home-based in the bulk area Kamel
testified that he continued to flex employees, including
Komcki However, normally it is the area supervisor that
announces assignments to the employees under that su-
pervisor Nonetheless (I find), Operations Manager
Kamel might also announce an assignment, if Kamel saw
the employee first after the assignments were decided by
Kamel in the supervisor's shapeup meeting in the morn-
ing
Kamel relates on the next such occasion that he had to
tell Konicki that he was flexed, which Kamel placed at
somewhere around mid-August Kamel said Komcki,
"Ed, you're going to be working down at the dock,
today" According to Kamel, Komcki on that occasion
said that he was not a doclue, and why should he work
FILENE'S BASEMENT STORE 225
on the dock Kamel testified that Komcki then turned
away, and, with hands flying in the air and head shaking,
Konicki walked to the dock
There was no apparent record made of Kamel's
claimed second Komcki-Kamel flexing incident (Howev-
er, Kamel's record made of a later incident on August
31, reflects also this earlier incident, though with Kon-
iclu there recorded as having said on this occasion, "Me,
down on the dock?") Kamel testified that he did not
report this incident to anyone, because he did not think it
was serious enough, and he let it slide As earlier noted,
Komclu's assertion that Kamel had never before August
31 given assignment to Komcki was self-inconsistent
with Komckes account of Kamel's August 5 assignment,
and thus not to be credited Matthews also confirms later
receiving a Kamel report of there actually being three
Konicki incidents on flexing I credit Kamel's account of
the second flex incident with Komcki, though I also find
that on this occasion it is more probable that Komcla
said, "Me Down on the dock", and that Komcki on that
occasion also went off towards the dock mumbling to
himself, and with his hands in the air
(5) Komclu's subsequent open union activity
at ADC
Konicki relates that after August 7, he considered the
Union However, the first visible manifestation thereof
was 2 to 3 weeks later On August 25, Ronayne hand-
billed ADC On that occasion Konicki accepted a hand-
bill Komcki recalled (incorrectly) that the handbill relat-
ed to the subject of an employer's earlier addressment of
what employees could and could not do In any event,
on arriving at work the following morning of August 26,
Komcki placed the handbill on the dnver's side window
of his truck, which was parked, as usual, so as to have
the driver's side closely face the employees' entrance and
exit door of the ADC warehouse building Koniclu ex-
plained that he put the Union's handbill on the window
of the driver's side of the truck facing the employees'
door because the Union's handbill contained certain in-
formation that Konicki felt the employees should have
Konicki initially testified that Supervisors Bracket and
Dave O'Neill saw him put the union literature in the side
window of this truck that day Prior affidavit of Komclu
records only (I find) the later Komcki posting of union
literature on September 2, and it claimed as observed by
Supervisors Brackett and O'Neill The Konicki statement
was thus silent on Komclu's posting of union literature in
his car earlier on August 26, and of his hearing claim
that Supervisors Brackett and O'Neill observed the post-
ing Komcki acknowledged that he (personally) had no
discussion with any supervisor that day (August 26)
about the union literature in his truck
Brackett testified that he knew that Konicki drove a
truck, but that he never saw union literature on it Relat-
edly, Manning had no recollection of Brackett ever tell-
ing Manning that Konicki had put literature on his truck
According to Manning, no one told Manning that, and
Manning did not know if his supervisors were aware of
it Area Supervisor O'Neill did not testify However, the
significance of that circumstance is (essentially) immateri-
al, inasmuch as Facilities Manager Krauth testified that
he was aware that Komcki had union literature on the
side window of his truck, and it is otherwise apparent of
record that Krauth (and Matthews) was aware of it
before September 2, discussed further infra
(6) The Krauth flex assignments
According to Koniclu, that same morning (August 26)
Manning instructed Komcki to report to Krauth Korucki
had never been told to do that before At that time
Krauth informed Komcki that he had a special duty as-
signment for Komcki, to put up a tent The tent was
used that day as weather cover for Vice President Tem-
pesta's meetings with employees scheduled to be held
outside the warehouse Krauth also told Konicki that he
wanted Komcki to go to the first meeting Komcki put
up the tent with the aid of a temporary employee, who
had also been assigned to the task
The first meeting was attended by 20 to 30 employees
and lasted about 30-35 minutes In addition to Tempests,
Krauth and Young were present Komcki testified, that
during the meetmg, Tempesta said, most of the union em-
ployees are now gone Those in attendance agreed that a
lot were gone, with some people happy about it, and
some not Tempesta informed the group that anyone
who wanted to leave could Attendance was voluntary
At the conclusion of the (first) meeting Komcki was
told to take an inventory, and clean up Later, probably
after the second meeting, Krauth told Komclu to take
the tent down After that assignment, Krauth instructed
Komcki to conduct an inventory downstairs Komclu
conducted the inventory in 2 days, with the aid of a tem-
porary employee available only for the first half-day
Komcki conducted the rest by himself, including, in any
event, conducting the inventory alone on August 28
(Friday)
Krauth confirmed that he needed two employees to set
up a tent outside, and to conduct an inventory down-
stairs Krauth would typically not attend a shapeup, but
simply tell someone he needed the employees, and the
required employees would be flexed to him Krauth con-
firms that Konicki was flexed to him, but did not recall
who flexed Koniclu to him
Manning, however, testified that Krauth told Manning
to have Komcki put up the tent Manning confirms fur-
ther, that after Tempests spoke (the second time) Kon-
iclu (and Manning) took the tent down
Manning did not recall if Konicki did inventory the
next day Krauth however confirms using Konicki and
another employee to conduct an inventory of parts and
conveyor equipment for the first of a 1- to 2-day assign-
ment, and that he used Konicki for the remainder
Krauth testified generally that there was no specific
reason why Komclu was assigned there There is some
confusion whether the 2-day inventory assignment oc-
curred on August 27-28 or 28-29 The latter would have
involved some Saturday work Ronayne would recell
Komclu's complaint of (perceived) unusual Krauth as-
signments that occurred on normal workdays, August 26,
27, and 28 (Wednesday-Friday)
Ronayne testified that another union committeeman,
employee Mort Sullivan (deceased), had called Ronayne
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on August 26 and informed Ronayne of Komcki having
the union literature on his truck Sullivan also mentioned
to Ronayne (whether then or the next day) that Konicki
as being given the runaround by the facility manager
Ronayne testified that he told Sullivan to try to set up a
meeting with Komcki as soon as possible, and Sullivan
did, for August 28 (Friday)
Konicki confirmed that he met with Ronayne at the
Wonder Bar at noon on August 28 Konicki relates that
they spoke of the problems that Komcki was having on
job flexing, and Komcki also inquired about the union
wages at Sommerville Komcki initially related that he
had received union literature from Ronayne of August
28, but Komcki subsequently clarified that he signed an
authorization card for the Union after work on Septem-
ber 1, at which time he received a supply of union au-
thorization cards and quite a bit of literature Komcki ac-
knowledged that he kept the union cards in his vehicle,
and that he had no occasion to hand out or solicit cards,
as Komcki was discharged the very next day, September
2 Konicki did post some of the union literature on his
truck side door window on the morning of September 2,
when he arrived for work, and parked in the same place
Although Komcki had testified that at the time he re-
ceived the union handbill from Ronayne as he left work
on August 25 that he said to Ronayne, good luck on
your campaign, prior affidavit confirms that his meeting
with Ronayne on lunchbreak on August 28, "was my
first talk with any union representative " Ronayne
also confirms their discussion at lunch included the
Union's organizing drive, and what the Union can do for
the people at ADC However, their conversation ended
with Ronayne only giving Komcki, Ronayne's (home)
phone number and union number
Ronayne told Konicki to give him a call as soon as
Komcki wanted to get involved, sign a union authoriza-
tion card, and work full time (be on the unpaid, inside
employee organizing committee) for the Union It is ap-
parent that as of August 28, within the Union, Komcki
was still undecided (at least) to the extent of present will-
ingness to sign an authorization card for the Union It is
also clear that all that would be changed by the evening
of August 31
(7) The third and last Kamel-Konocki flexing
incident of August 31
In the processing area there are twenty 100-foot
lengths of roller-conveyor, at the end of which are two
desks The desks are located perpendicular to, and about
10 feet away from the roller end On August 31
(Monday), Manning was in the bulk processing area, as-
signing work to his warehouse employees Manning re-
calls that he was at a desk with some other employees
besides him Komcki came up to receive his assignment
Komcki confirmed that his next workday was on
August 31 (Monday) Komcki testified that on that
morning, Manning (first) assigned him to work on the
dock Konicki started walking to the dock When about
10 feet away, Kamel came from another direction ap-
proaching Komcki on the right side, then about 10-15
feet away from Koniclu According to Komclu's recol-
lection, "I just told Kamel, I wasn't a dock worker" Kon-
icki relates that he kept walking According to Koniclu,
Kamel then said, "Remember you signed that letter"
Konickes initial version of what followed is that Kon-
icki replied, "I know I signed a letter", and, as he kept
walking, he mumbled to himself under his breath, "Here
today Gone tommorrow " Komcki initially denied that
he had addressed any vulgarity directly to Kamel, but
Konicki then quickly added he did not recall what he
said
On cross-examination, and notably with Employer's
use of any prior inconsistent statement(s) purportedly
made at an unemployment hearing held on October 1,
before the Division of Employment Services (DES) of
the State of Massachusetts, and concerning which use
separate ruling was made and issue is raised (and accord-
ingly is to be separately treated), Konicki continued to at
first assert that he did not recall the words he had mum-
bled
However, Komcki acknowledged on pressed cross-ex-
amination severally that "shit" could have been one
(word) and he was not denying it, later, that he knew it
was "bullshit," but it was not directed at Kamel, (then)
acceding that he did not say anything else to Kamel
other than, "Here today Gone tomorrow", and finally,
that it could have been, "oh shit" As of this time, how-
ever, Komckt's testimony was firmly, and significantly,
(a) that he knew he did not say, "this is a bunch of slut",
and (b) it also couldn't have been, don't give me that
shit", both denials being made assertedly because he was
talking to himself
Kamel relates that at the shapeup that morning, they
decided that Konicki would go to shipping Kamel's ver-
sion is that as he approached Konicki in the bulk area, he
said, "Ed, you're going to be working down at the dock
today" Komcki replied, "He's not a doclue, why should
he work on the dock" Kamel told Konicki that he was a
utility worker, and he was to work where needed
Kamel recalls that Komclu then turned away (again)
with hands in the air in exasperation, and head shaking
Kamel confirms that as Komcki began to walk away, he
was mumbling According to Kamel, while remaining
stationary, Kamel called to Koniclu, "Ed, remember the
letter that you signed, agreeing to cooperate with man-
agement" Kamel testified that Konicki, then 6-7 feet
away turned to Kamel and said to Kamel, in a loud but
not yelling voice, "Don't give me that slut" Kamel relates
that Konicki then turned away again, and walked off
toward the dock
Manning confirms Komcki that Manning had initially
told Komcki, "You'll be working on the dock today"
Manning confirms that Komcki said nothing to Manning,
that Konicki did not wave or gesticulate his arms upon
receiving the assignment, but rather simply turned
around, and walked towards the dock As Komclu did,
he passed Kamel, who not unusually was also in this
general area
Manning recalled having first noticed Kamel come
within 50 feet of the area possibly from reserve, or at
least from the back of the building In any event, Kamel
came toward the desk Manning did not know if Kamel
had heard Manning already tell Konicki his assignment
FILENE'S BASEMENT STORE 227
for the day However, Manning testified that while Kon-
iclu was 20-30 feet away, with Komclu's back to Man-
ning, Manning heard Kamel say to Komcki, "Ed, you'll
be working on the dock" Manning corroborated Kamel
that he heard Komcki reply to Kamel, "I'm not a
dockie "
Manning did not know if Konicki had said anything
first to Kamel (before that) Manning further recalls
(contrary to Kamel) that he saw Kamel walk along with
Komcki, and the last thing that Manning heard was
Kamel tell Komclu, "You're a utility worker" Manning
did not hear any foul language (thereafter), and he be-
lieved that Konicki went on to the dock after that
At heanng Kamel has testified that he never had an
employee speak to him in that manner Kamel also testi-
fied that the difference with the profanity that he has
heard in the warehouse before, was that this time the
profanity was directed to him Kamel testified that he
recommended Konicki be terminated for insubordination
After the incident Kamel spoke of it with Manning
Manning did not recall what Kamel had specifically said
on that occasion, though he recalled that Kamel did not
tell Manning then, that Kamel was trying to get Konicki
discharged
FDS and corporate management essentially corrobo-
rate, infra, a report of Konickes statement made to
Kamel of, "Don't give me that shit," infra Kamel has
also testified that he wrote an account of the incident the
next day, which is true and accurate Kamel's records
therein, that after Kamel reminded Komcki of his agree-
ment to cooperate with management, and work where
needed, Komi(' turned to Kamel and said "Don't give
me that skit" Kamel's account of the specific remark at-
tributed to Konicki is at least one well-established as not
of recent fabrication, infra
Nonetheless, it is presently observed that the basic
conflict over (in my view) the very substance of the un-
derlying contended subordination remains m dispute
solely between Konicki and Kamel's accounts, on this
the only other person present and testifying, Manning,
was on the one hand unable to assist in the persuasive
resolution of the central matter favoring General Coun-
sel (clearly not having heard all of the conversation), but
on the other hand, has generated some base for an infer-
ence of nonsupport of Kamel, in Mannmg's nonrecall of
any Kamel timely reference to Manning of Kamel's im-
mediately intended discharge of Konicki for the remark
However, apart from Kamel not relating the Konicki
remark, or what he intended to do about it to Manning
in their early discussion, the fact that Manning did not
later take part in Komclu's discharge is adequately ex-
plained by Young as not sinister in terms of the incident
simply involved a higher management level, namely, the
insubordinate remark was directed to Operations Manag-
er Kamel
Krauth asserts that his only involvement with Kon-
Ickes termination is that he agreed with the recommen-
dation of Kamel According to Krauth's recollection,
Kamel reported to Krauth that Kamel had walked into
the bulk department area that morning, seen Konicki,
and Kamel told Konicki that Komcki had to go down to
the dock to work, or, that he was going to be working
on the dock that day The report to Krauth continued
that Komcki had said, "I am not a doclue " As Komcki
turned and started walking away, Kamel reminded Kon-
icki of the letter that Konicki had signed, to be coopera-
tive with management of flexing Kamel's report to
Krauth continued that Komcki had then turned around
and said, "Don't give me that shit" Komcki then turned
around, and he went down to the dock
According to Krauth, Kamel felt it was a clear viola-
tion of the (signed) statement, and Kamel recommended
"we do something" Krauth agreed, and he then recom-
mended that Kornai be terminated Krauth relates that
they called FDS, and then they waited
Young testified relatedly, that they all came to a
mutual decision (termination), though she could not
recall who did so first However, Young corroborated
that she reported the incident on August 31, and she
confirmed that authorization to terminate did not arnve
until the next day, and then after close of business on
September 1 In the mtenm, in the morning of Septem-
ber 1, Manning conducted Komclu's "60 day" review,
and Manning rated Komcki good in all areas
Thus, on September 1, Manning conducted his review
with Komcki Manning went over his across-the-board
"good" evaluation of Konicki, and Manning acluiow-
leged that he did not have any problem with Konickes
work In that regard I credit Konickes testimony that on
the occasion of this review, Manning said to Konicki, "I
don't know what's going on between you and Ed
(Kamel)," but, "I have no problems with you"
Both signed the review on September 1 Manning
turned in the review to Young the same day Manning
did not think that he told Kamel that he was going to
give Konicki his review that day, though Manning as-
serts that Young knew of it (As noted, Young confirmed
that Komcki was rated as a good solid performer, but
Young testified that there were so many reviews delayed
and out to be administered that she did not know that
Manning had planned to administer Komclu's review
that morning )
Although appearing at one point to recall that it was
later that day that he learned from Kamel that something
was going to happen, Manning has also testified that he
could not recall whether it was that day or the next day
that he learned Kamel was going to fire Komcki for not
agreeing to work in the assigned area In any event,
Manning was aware of Komclu's impending discharge at
shapeup time in the morning of September 2
McGrath confirmed that Young called McGrath, and
she reported there was another Konicki (flex) situation,
this one involving insubordination, and that Kamel rec-
ommended permanent termination McGrath also testi-
fied that the report she received was Korucki had used
profanity, waved his arms, was agitated, and used a loud
voice Young reported to McGrath more specifically
that Komcki was working and Kamel had asked Konicki
to flex to the dock Komcki said "I'm not a dockie, and
his last statement to Kamel was, "don't give me that shit"
McGrath relates that Komcki did not refuse to do the
work, but he did it reluctantly, and had vocalized that he
did not want to do it
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McGrath has testified that she considered that the
above was insubordination, and grounds for termination
Indeed, McGrath testified in her past practice, it was
grounds for an immediate termination McGrath howev-
er recommended termination to Collman, as did Collman
to FDS, and FDS approved
Matthews recalled that they (FDS) received a call
from Young Matthews talked directly to both Young
and Kamel According to Matthews, they (Kamel and
Young) reported to her that Komcki had refused to be
flexed to another department, the dock After some lead-
ing, Matthews recanted Komcki's refusal to do the work,
and then testified more consistently that Komcki did not
acutally refuse the assignment, but Konicki went reluc-
tantly, and used profanity Matthews otherwise con-
firmed that ADC (local) and Wellesley (corporate) man-
agement officials had (all) recommended termmation
Matthews discussed it with Vella They concurred
Ronayne testified that on Monday night, August 31,
Konicki called Ronayne at home Konicki said he
wanted to meet with Ronayne as soon as possible Kon-
icki told Ronayne that he wanted to sign a card for the
Union, he wanted the Union to immediately send a letter
that Konicki was going to be working full time as a
union organizer at ADC The reason that Konicki ad-
vanced at that time to Ronayne was, Komcki thought he
was being treated unfairly in assignment because of the
union literature he put on his truck on August 26
The record established that it was Employer's policy
to try not to flex an employee from the employee's regu-
lar area on consecutive days Prior to discharge on Sep-
tember 2, Konicki had five nonbulk area assignments in a
row, namely, by Krauth on August 26, in the special as-
signment to put up and take down a tent, with fill-in in-
ventory and cleanup, and on August 27-28 to conduct a
parts and roller inventory, by Kamel on August 31 to
work on the dock, and by Manning, to the dock on Sep-
tember 1, though with Manning's acknowledgment that
the (consecutive) Komcki dock assignment on September
1, could have originated with Kamel
Manning testified relatedly that it was possible that
Kamel told Manning that Kamel wanted Komcki to
work on the dock that morning (again) Konicki testified
that he was not flexed that often to the dock, except re-
cently Kamel did not deny that he flexed Komcki to the
dock that day I find it was not only possible, but most
likely on this record, that the decision to flex Konicki on
consecutive days to the dock was not Manmng's deci-
sion, but most probably Kamel's
Ronayne testified that Komcki complained to Ronayne
that he thought it was very strange that the plant manag-
er was giving him jobs to do, and that his immediate su-
pervisor was sending him to the plant manager for job
assignments However, Ronayne testified that Konicki
did not ever complain about being required to flex, for
example, from bulk area to the dock area, or any other
area
On the evening of August 31, when asked to immedi-
ately do so, Ronayne informed Konicki that he could not
send a letter to the Company until Konicki signed a
paper authorizing the Union to do so They then ar-
ranged to meet the next day, September 1, after work at
the Wonder Bar On September 1, at that meeting, Kon-
icki signed a union authorization card, and he signed the
release letter to enable the Union to notify the Employer
that he was on the organizing committee Ronayne con-
firms that Konicki wanted a supply of union authoriza-
tion cards and that Ronayne also gave him union litera-
ture
According to Young, the final determination to termi-
nate Konicki was received on September 1 (Tuesday), in
the late afternoon, after the close of business at 3 30 p m
Matthews testified that the decision reached to terminate
Konicki was consistent with Filene's progressive disci-
pline policy, because there was insubordination, namely,
conduct that would be grounds for termination in certain
circumstances without prior discipline According to
Matthews, the nature of Konicki's insubordination was in
his disrespect for management in the use of foul, abusive,
or abrasive language, in an agressive manner
(8) The Employer's knowlege of Komcki's more
recent union activity
Manning has testified that as of this time he had not
made a judgment on the union interest of Komcki
Kamel testified that he had no information on Konickes
attitude toward the Union, and, he was unaware that
Komcki had union literature on his truck (on August 26)
Kamel was adamant that he did not pass out Tempesta's
August 12 letter to Konicki I credit that testimony, and
I also find that he did not hand out such literature at that
time to Konicki because he was already aware of Kon-
Ickes position on reading company literature, as ex-
pressed to Krauth and Young on August 6
Young testified that as of Koniclu's discharge inter-
view on September 2, infra, she did not know, one way
or another, of Komcki's interest in union activity,
beyond the one meeting in which he had said he was not
interested in reading anything, and he only wanted to be
left alone Young specifically denied that anyone had
told her that Konicki had put union literature on his
truck I
In contrast, Krauth acknowledged that as of August
31, when Krauth recommended that Konicki be dis-
charged (for the Kamel reported flexing incident) Krauth
was then aware that Komcki had a union pamphlet on
his truck the prior week Krauth has otherwise acknowl-
edged that he saw Konickes truck with one of the
Union's brochures handed out taped to the driver's side
window Krauth further testified that he had reported
that fact to FDS the same day that he had observed it
Although Krauth did not recall seeing the union litera-
ture on Komcki's truck on August 26 specifically, or spe-
cifically on the day Vice President Tempesta had spoken
to employees outdoors under a tent put up by Komcki, I
have found, on other credible and convincing evidence
of record, that Krauth observed the union literature on
Konicki's truck on August 26 I further find that was the
same day that Krauth instructed Konicki to attend the
first Tempesta meeting when Tempests spoke to employ-
ees outside about the Union, and, inter alia, specifically
told employees that most of the union employees were
gone At that time, Konickes truck, as (I find) was usual,
FILENE'S BASEMENT STORE 229
was parked right up front, and its posted union literature
visible to all employees upon their exit through the em-
ployees' exit door
Based on Komclu's earlier response that month that he
did not want to hear any baloney from either the Com-
pany or the Union, Krauth has advanced that he felt that
Komclu's placement of union literature on the driver's
side window of his truck facing the entrance/exit door,
was mocking the Union Whatever may be said of that
assertion, Krauth did not feel secure enough in it to
report that opinion to FDS Krauth has otherwise testi-
fied that the fact that Konicki previously had the Union's
literature on his truck (under all the circumstances), did
not influence Krauth's recommendation to terminate
Konicki
Matthews acknowledged that at the time that Mat-
thews and Vella decided discipline (discharge) was ap-
propriate, they had more information that Komcki was
less procompany than he was before Matthews confirms
she had the information from Krauth that on the day of
Tempesta's meeting with employees (August 26) outside
the facility on the lawn adjacent to the building, Koniclu
had some union flyers on his truck parked close to the
employees' entrance That was the only incident report-
ed to her
In contrast with Krauth's (at best) strained personal
view that Konickes truck posting of proumon literature
by the employee entrance mocked the Union, Matthews
(at least) has acknowledged, we knew Komcki -could
have been a union adherent I find that Employer would
only have reasonably concluded that Komcki had had a
change of view and not only no longer was opposed to
reading union literature, but now was a strong and open
proponent of his fellow employees reading the union lit-
erature as well
Matthews testified with greater conviction that that in-
formation was not a factor in any way in Matthew's final
decision to terminate Konicki Matthews has testified,
that in all the above reported circumstances, she would
have terminated Komcki for his conduct on August 31,
irrespective of his attitude towards the Union
When Konicki reported to work on September 2, he
parked his truck in the usual place and this time he put
even more union literature on his truck, which he asserts
Supervisors Brackett and O'Neill saw Koniclu then
went into the warehouse When Komcki reported to
Manning, Manning told Komcki to go to the personnel
office, where Konicki found Kamel and Young waiting
for him Kamel had the August 7 (Komcki signed) state-
ment, and a statement of the recent (August 31) incident
that Kamel had written up (on September 1), and a pre-
pared RC for Komclu's termination Kamel proceeded to
read his statement of the incident When Konicki heard
he was to be terminated, Komcki relates he stood up and
said that he did not want to hear anymore, he was going
to leave
Young testified that halfway through Kamel's reading
of the statement, Komcki questioned some aspect of the
cooperation (that apparently Komclu asserted that ICamel
had not said during the incident, but which subject was
in the letter that Komcki had signed) Young told Kon-
iclu to let Kamel finish reading the statement When
Kamel finished, Koniclu asked why they were harassing
him Katnel said, based on the prior letter, and this inci-
dent, it was a violation of his reinstatement agreement
According to Young's recollection, Konicki then said,
"I'm violating you,—what about you violating my rights
in making me read all those union [sic] letters" Young
recalls that Komcki next asked what they were going to
do about it Young said, "this is in direct violation of
your reinstatement letter, is considered insubordination,
and grounds for termination"
Young confirms that at that point, Konicki became ex-
tremely upset, jumped up from the chair, and yelled,
"Oh you're terminating mel Fine, ok, well I'm going to
make a phone call" Although they asked Komcki there-
after to review and sign the prepared RC, Komcki re-
fused, saying, "if you're terminating me, that's it" Ac-
cording to Young, Kamel asked Komclu once more to
sit down and review the RC Komclu again refused
Although Komcki wanted to make a phone call,
Kamel told Konicki to leave and sign out Kamel then
escorted Konicki out of the building According to
Young as Komclu was driving away he said, "I'll be
back"
The thus unsigned Koniclu RC on termination pro-
vides
On August 31 and two weeks prior Ed expressed
unwillingness to flex to other departments (the dock
specifically) His response to management when
asked to flex to the dock is considered insubordina-
tion and grounds for termination based upon his
letter of reinstatement to Steve Krauth on 8-7-87
Matthews further testified that with the background of
the previous agreement on flexing that Komclu stated he
would adhere to, Matthews would have authorized, rec-
ommended, or conferred (sic, but in context, clearly con-
curred) as the discharge of Komi(' in any circumstance
If the meaning of any circumstance is to be viewed as
ambiguous in its use here, Matthews adequately clarified
it elsewhere to mean, irrespective of Komclu's union in-
terest, or union activity
Contentions and Analysis
In mixed motive cases, the General Counsel bears an
initial burden of proving that protected union activity
was a substantial factor which prompted the discipline
imposed on the employee by the employer Once that is
established the burden shifts to the employer to prove af-
firmatively that the disciple admimstered would have
been the same even as the absence of protected conduct,
Wright Line, 251 NLRB 1083 (1980), enfd F 2d 899 (1st
Or 1981), cert denied 455 U S 989 (1982)
The General Counsel has essentiallly contended that
Konichs recent emergence as an open union activist on
August 26 is what motivated the Employer's decision to
discharge Koniclu on September 2 The Employer has
countered with initial contention that Komckes union ac-
tivity in material times differed only slightly from that of
Savageau, in that Komclu had engaged in some open
union activity, but effectively, it involved only a single
act on August 26, and, Employer has argued otherwise
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that much more active union adherents were not dis-
charged
First, the General Counsel appropriately relies on Em-
ployer's harbour of animus to the Union's attempt to or-
ganize at ADC, as is evidenced by now determined Staf-
fen's and Krauth's unlawful conduct directed towards
leading union adherent Noonan, as well as by the certain
other unlawful conduct of Respondent's supervisors as
has also been determined All the aforesaid unlawful con-
duct had occurred comparatively recently, e g, mid-
July Second, at this time, Komcki was a known, evaluat-
ed, and undisputed solid work performer
Third, the record evidence has established that at the
time Konicki had improvidently walked out and quit his
job over a perceived improper flex assignment on
August 5, Employer possessed no information on Kon-
Ickes union attitudes Whatever else was appropnately
addressed in the mterveiw conducted by Krauth on
August 6 as foundation for a decision on Konickes
return, the additional fact of record is inescapable that
through a critical comment by Krauth (one that put
Kornai on the defesive), namely, on Komcki's pnor re-
fusals to accept and read the Company's antiunion letters
when Kamel attempted to hand them out to Komcki,
Krauth, defacto, if not by design, elicited from Konicki
an expressed declaration for desired neutrality towards
the union issue, prior to the actual decision being made
by Employer on Konickes earlier expressed desire to
return to work
If Krauth's comment did not constitute a not-too-
subtle probe of Komcki's attitudes toward and/or inter-
est in the Union (not alleged in the complaint), it was in
any event a cntical comment made in an area unrelated
on its face to the purported subject of the interview,
namely, as to the reasons for Komcki walking out, and
quitting In short the comment necessarily indicated an
interjection of Koniclu's attitudes toward and interests in
the Union as an operative factor in his desired return at
that time
Assuming that Krauth (and Kamel) had initially rec-
ommended a termination of Konicki because he had
walked off the job and quit, weight of evidence of events
thereafter that I find only then the more credible has
also convinced me, that Krauth took a different position
on it after this interview E g, I do not believe that a
(continued) Krauth recommendation for termination of
Kornai would have escaped McGrath's (credited) recol-
lection that there was nothing negative expressed on
Kornai's return, nor do I believe that Young would
have failed to report Krauth's position on Konickes ter-
mination to McGrath, if it was still held by Krauth
That conclusion is seemingly independently supported
by Young's further revealment in regard to the decision
on Konickes return, otherwise conditioned only on Kon-
Ickes signing the agreement on flex cooperation, that ev-
eryone down the line had approved of Komclu's return
In short, I conclude and find that General Counsel has
established a prima facie case that with Komckes at least
de facto declared neutrality, Konicki was later deter-
mined returnable to employment (rather than be dis-
charged as initially recommended), provided, that Kon-
icki would also agree to cooperate with management in
the future, and accept a flex when assigned
Moreover, I further observe that not only did Kon-
Ickes return promptly follow, but Kamel, only about a
week later was disposed in those existing circumstances
to overlook, as then not too serious, an occasion of a
Konicki remark to Kamel evidencing a reluctant accept-
ance by Komcki of a dock assignment, viz, a compara-
tively moderate Komcki remark, as I have found, "Me
Down the Dock," as opposed to "I'm no dockie" (but
with accompanying physical gestures by Konicki)
Kamel's toleration of Koniclu's reluctance occurred de-
spite the written terms of the previously signed agree-
ment that provided for Konickes cooperation with
Kamel's flex assignment of Konicki being then but a
week old
Fourth to the extent Employer's first argument would
minimize Koniclu's union activity engaged in on August
26, I conclude and find that argument is wholly unper-
suasive By that time leading union adherents Noonan
and Corso were both gone Konickes union activity en-
gaged in that day at ADC (at least) presented Employer
with appearance, if not prospect of a Konicki change
from neutrality on the union issue, to one of indicated
strong proumon activity
Thus, what Konicki did that day was to present
proumon literature, that Konicki felt his coemployees
should be aware of, on public display The displayed
pamphlet addresses such employee problems as transfer,
demotion, layoff, discharge, etc, with statement that an
employee facing such matters with a union contract had
a grievance procedure and an impartial arbitrator to
decide the issue, with the Union's location and phone
number also provided for the employee to seek addition-
al information Konicki displayed that prounion literature
in the side window of his truck, which he had parked
very close to where employees regurarly entered and
exited ADC
In substance and in pratical effect, the placement of his
truck, and the posting of prounion literature in its side
window facing and so close to the employees'
entrance/exit, effectively constituted a union bulletin
board on Employer's property for employees to read
proumon litrature, when both entering and leaving
ADC Thus, in my view, to descnbe Konickes above
proumon action as being only slightly different from the
at best surreptitious union activity of Savageau, or, to
only summarize it as "some open Union activity" would
serve only to unwarrantedly minimize and/or ignore the
actual significance and effect of the act engaged in by
Konicki that day
Fifth, there is considerable merit in General Counsel's
observation that, in urging that his view of Konicki post-
ing literature in Komcki's truck was instance of Konicki
mocking the Union, Krauth has in that regard exhibited
a lack of candor I need not go so far as to adopt Gener-
al Counsel's assertion that the same is contrivance It is
sufficient to observe and conclude as I do, that if Krauth
did not have enough confidence in holding that asserted
view to report it to his own superiors when promptly re-
porting on Konickes union conduct to FDS the same
FILENE'S BASEMENT STORE 231
day, his election to advance it before me as in sole expla-
nation of his view and subsequent conduct in regard to
Komcki, is unconvincing Moreover, Krauth's indicated
lack of candor in this instance, warrants inference that
Komcluss display of prounion literature in that manner
and place, played a greater role (at least) in certain sub-
sequent events than Krauth has been willing to reveal,
cf Ryder/PIE Nationwide, 278 NLRB 713, 719 (1986),
enfd in part and denied in part 810 F 2d 502 (5th Cir
1987)
Sixth, Krauth's observance and response was immedi-
ate Inter aim, Krauth immediately directed Komckes at-
tendance at Tempesta's morning speech in which that
high corporate official made a special point of stating to
a group of sonic 30 assembled employees that included
Komcki, that most of the union employees were gone
(Declaring the meeting a voluntary one thereafter came
too late ) Komcki did not miss the message (I find) deliv-
ered to him that day, and I have no doubt it had an
effect on Komclu's view of the assignments Krauth made
to Komcki later that day, and in the days that followed
(none of which are alleged to be independently violative
of the Act) Neither would the assembled employees be
likely to have not recalled Tempesta's statement in the
wake of Konickes discharge within a week of becoming
openly active for the union
In passing, I would only further observe in regard to
Employer's assessment of the nature of Konickes proun-
ion activity, that even assuming that Konicki had discon-
tinued the public display of the prounion literature on his
truck on subsequent days for reasons unrelated to Tem-
pesta's remark (or Komclu's view of Krauth's and
Kamel's unusual assignments next to be considered), Em-
ployer would have had no way of knowing that Under
the above circumstances, Employer can draw small evi-
dentiary support therefrom for its argument of limited
Komcki union activity Moreover, the full protection of
the Act extends to those probing the merit of a union,
with public temerity, as well as those fully committed in
doing so
Seventh, Employer's treatment of Komcki immediately
after he posted the proumon material on his parked car,
was markedly different than before Although the same,
as noted, is not alleged in the complaint to be independ-
ently violative of the Act, and I shall accordingly make
no such finding, I need not ignore the unusual nature of
the repetitive assignments that encompassed Konickes
conduct that led up to his discharge
That evidence establishes that shortly after Konicki
had presented the appearance of having changed his neu-
trality, and become openly and strongly prounion, there
followed a series of unusual ICrauth and Karmel assign-
ments that effectively kept Koniclu isolated for 3 days,
assigned to the dock (as to which he had previously ex-
pressed displeasure) for 2 days, and even more signifi-
cantly, out of his home-base area for 5 consecutive days,
despite an Employer's otherwise conceded normal policy
to try to keep its employee home-based, and, to not flex
an employee out of the employee's home-base area on
consecutive days The essence of discrimination is to
have treated like employees differently
Although the last of three-four flexes in a week had
led to the first Konicki walkout, General Counsel estab-
lished that upon Komcki's first displayed of union litera-
ture there recommenced even more unusual, if not ad-
verse assignments, and upon Konickes second display of
union literature, and despite interim rating as a solid
good worker, his discharge followed immediately
Contrary to Employer assertion in the matter, and in
agreement with General Counsel, on the basis of all the
above factors, I conclude and find that the General
Counsel has established a prima facie case that Komclu's
recent appearance of emergence as a new open union ac-
tivist on August 26, was a substantially motivating
and/or operative factor in Employer's subsequent deci-
sion to discharge Komcki on September 2, even in the
face of another established instance of Konickes ex-
pressed discontent in accepting another flex assignment
to the dock, viz, in remarking to Kamel on August 31,
"I'm no cloche"
An Employer that has tolerated such conduct in the
past, may not later find it offensive only because an em-
ployee has in the interim execised a Section 7 right,
American Petrofina Co of Texas, 247 NLRB 183, 190
(1980), Holiday Inn of San Bernardino, 212 NLRB 280
(1974), enfd as modified 512 F 2d 1171 (9th Cir 1975)
It is Employer's contention that even assuming a prima
facie case is made out, Employer has met its burden of
establishing that it had a totally legitimate, independent,
bona fide basis for discharging Komclu Essentially Em-
ployer urges that Kamel's account should be credited
over Komckes demal that when Kamel had occasion to
most recently remind Konicki of his prior agreement to
cooperate with management in flex assignments, Konicki
then told Kamel, "Don't give me that shit" Employer
contends that that Komcki remark, particularly when
considered in the light of Komclu's prior agreement, had
provided compelling grounds for Konickes termination
for insubordination
Employer contends that Konickes remarks to Kamel
were a form of hostile insubordinate employee behavior
that should be found to have reasonably had a tendency
to inhibit Operations Manager Kamel (as Kamel has spe-
cifically testified) in making assignments in the furture,
and, it called for Konickes termination in the view not
only of Kamel, but of every single manager involved in
review who has testified, as well as being conduct (gen-
erally) that no Employer can be exected to tolerate If
General Counsel has made out a strong prima facie case
of discriminatory discharge, Respondent Employer has
advanced a strong defense of its action, if it be credited
on its salient feature, that when reminded of the agree-
ment to cooperate that conditioned his return, Komcki
replied to Kamel, "Don't give me that slut"
The General Counsel has argued that Komcki has
denied making that statement, and that Kamel's account
is not fully supported by Manning, i e, in several fatal
particulars (including on Komcki making that remark)
Employer argues that Kamel's testimony at hearing, in
contrast with that of Koniclu at hearing, is not only con-
sistent throughout, but again, unlike Komclu's testimony
at hearing being also shown inconsistent with pnor testi-
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
momal accounts before the DES and in prior (Board) af-
fidavits, Kamel's testimony at hearing is consistent with
the prior memo account of the incident, established as
written the day after the incident, and is also fully cor-
roborated by the accounts of that incident as have been
recalled by all reporting and/or reviewing management
officials who have testified on it in this proceeding
Manning corroborated Kamel over Komcki that Kon-
iclu had told Kamel upon being told of his dock assign-
ment, that he was not a dockie (rather than dockworker,
or dockhand) Moreover, contrary to General Counsel's
urging, the testimony of Manning considered otherwise,
does not preclude that Komcki told Kamel, "Don't give
me that shit," anymore than it does what Konicki has
later acceded he said (after a review of his testimony at
the DES hearing, infra), namely, "[This is a bunch of
shit" Employer has also established that in a prior affida-
vit given to the Board (during Regional investigation of
the matter), in contrast with acknowledging that either
statement was made, Komcki had there testified that
nothing more was said Employer thus urges that in light
of Konickes significant inconsistencies in his testimony at
hearing (which I have otherwise earlier addressed), and
as now established made before the DES and in prior af-
fidavit, it is wholly warranted that Kamel's account
should be credited over Komcki In the end I agree, and
so conclude
While Employer's memo and supporting management
testimony in this proceeding have convinced me that
Kamel's account is not one of recent fabrication, the fact
is that the two witnesses who were the participants in
the conversation, namely Konicki and Kamel, have re-
called and presented accounts that are in direct conflict
with one another on the substantive issues of the specific
remarks underlying the insubordination as it is contended
occurred on August 31, and, Manmng's testimony simply
is not dispositive on that Issue, either way However, a
permitted Employer's use of Konickes testimony at a
hearing before DES occasioned further concession
before me, which points towards the indicated more ap-
propriate resolution
III THE MASSACHUSETTS "SHIELD" LAW ISSUE
At hearing, over General Counsel's objection, I ruled
(I) that Massachusetts General Laws, C 151A, § 46 is
compatible with a normal application of the rule on use
of prior inconsistent statement under the Federal Rules
of Evidence (FRE) in that it (MGL) provides for use
(disclosure) inter aim, "as otherwise required, or author-
ized by law" Accordingly, I ruled that prior to testimo-
ny before DES may be used where permitted by the
FRE, namely, by Employer in the instant NLRB pro-
ceeding to cross-examine General Counsel witness Kon-
mkt regarding any material prior inconsistent statement
that Konicki made at a DES hearing (2) I relatedly
ruled that General Counsel had already called and failed
to inquire on that basis, the same appearing to me as un-
timely raised by General Counsel (3) Finally, I ruled
that if General Counsel desired to use similar evidence
available to him in any cross-examination of Respond-
ent's witnesses (called) thereafter, he would be privileged
to do so, in a timely manner
Counsel for General Counsel filed a special appeal on
the above ruling(s) dated June 3, 1988 Employer filed an
opposition thereto, dated June 14, 1988 On June 14,
1988, the Board denied the General Counsel's request for
special permission to appeal without prejudice to the
General Counsel's right to renew its contentions through
the filing of appropriate exceptions
In brief, counsel for General Counsel relatedly advised
that counsel for General Counsel had asked the Massa-
chusetts attorney general for a written opinion as to the
intended scope and proper application of MGL, C
151A, § 46, and, advised that upon receipt of the opin-
ion, that counsel for General Counsel would move to
reopen the record for its receipt, and, if I would permit,
submit additional brief in support of a request that I re-
consider the earlier ruling(s) made Apparently that opin-
ion has not been forthcoming, or, in any event, none has
been received by me to date It appears that Employer
conceded in its earlier opposition filed with the Board (p
12) that the law of Massachusetts in this area is generally
silent on the construction of MGL, C 151A, § 46
The record before me otherwise reflects counsel for
General Counsel's representations that the underlying
issue (in light of the aforesaid law providing for criminal
sanctions) has been a matter of general concern to cer-
tain attorneys who are admitted to the Massachusetts
Bar, and who serve as counsel for General Counsel It
also appears that certain attorneys have heretofore pro-
ceeded differently, based on their different perception of
the reach of the law In any event the issue is one now
squarely raised before me in this proceeding
At hearing, over the vanously stated opposition of the
other parties, Charging Party also moved for the admis-
sion of the DES decision of board of review, dated June
16, 1988 Ruling thereon was taken under advisement
General Counsel's position as last stated in brief, is,
that only comity for the State "Shield" Statute should
preclude the receipt of the above DES decision, and, if
the "Shield" law is inapplicable certain findings are then
highly relevant
General Counsel's urgings in the matter are contained
within the following findings of DES
The Board further finds that on August 31, 1987,
the employer directed the claimant to work in an
area other than his regularly assigned work area
again The claimant was upset at this because he
had been assigned to work in other areas on a regu-
lar basis over the preceding few days In frustration,
he mumbled to himself in vulgar terms as he walked
away from the employer, who concluded that the
remark was directed at the employer The claimant
reported to the assigned work area and carried out
his duties without incident
The Board further finds that the employer al-
lowed the claimant to continue at work thereafter
until September 2, 1987, when he was discharged
for uttering the vulgar remark on August 31, 1987
However, the employer did not establish insubordi-
nation on the part of the claimant The claimant's
discharge under the circumstances is not subject to
FILENE'S BASEMENT STORE 233
disqualification under the provisions of Section
25(e)(2) of the Law, cited above
Employer has urged that all of my aforesaid rulings be
upheld, with authorities, such as then found are avail-
able, cited in its supporting memo for its opposition filed
with the Board As stated in brief, however, Employer
also contends that the DES decision itself should have
no beanng on the issues to be determined in this case, be-
cause of that law's "different definitions, policies and
purposes", and that even otherwise, there must be an in-
dependent evaluation in this proceeding of the alleged
unfair labor practices Employer also argues that the
board of review never had the information that Konickes
testimony before them was (purportedly) directly contra-
dicted by a sworn affidavit Komcki had given to the
NLRB just 1 week before
Analysis
Apart from the consideration of the Massachusetts
urged "Shield" law, there is no question that the Board
has already held that similar decisions of other States
have probative value, and are admissible for whatever
probative value the decision may provide on the issues
before the Board, and I so find as to this DES decision,
cf Betances Health Unit, 283 NLRB 369, 387 fn 35
(1987) Such decisions, however, are not controlling as
to either a specific finding of fact or conclusion of law,
Western Publishing Go, 263 NLRB 110 (1982) It is also
established that the "different definitions, policies and
purposes" must be taken mto account, and, the mstant
decision must be based upon an independent consider-
ation and evaluation of all the evidence presented on the
unfair labor practice alleged, cf Lattuner Associates, 258
NLRB 1012 fn 1 (1981), Justak Bros & Go, 253 NLRB
1054 fn 1 (1981), enfd 664 F 2d 1074 (7th Cir 1981)
There is also no question as opposed to receipt of a
transcript generally, that the Board would permit admis-
sion of a DES tape recording in evidence where deter-
mined appropriate under the FRE, e g, as containing a
vicarious admission Bluebonnet Express, 271 NLRB 433
fn 1 (1984) I see no cause at all to conclude otherwise
as to the Employer's instant use of a prior inconsistent
statement under FRE
Inter aim, the Employer has properly observed in op-
position heretofore filed before the Board that the Su-
preme Court, in its addressing the question of the Court's
review of rules and statutes providing for privileges and
exclusion of evidence, has stated that the Court must
"avoid a construction that would suppress otherwise
competent evidence unless the statute strictly contrued
requires such a result," St Regis Paper Co v United
States, 368 U S 208, 218 (1961)
The ruling made at mstant hearing was fundamentally
made on the basis of a discernment that MGL would
permit appropriate use of a prior inconsistent statement
under FRE Thus, I ruled that in my view, MGL, C
151A, § 46 allowed the use of the otherwise privileged
material, in the manner sought by Employer, because the
law itself made provision for (disclosure) use, "as other-
wise required, or authorized by law" which appears rea-
sonably to encompass a permitted use of such evidence
in Board proceedings as provided for under FRE
Fed R Evid 801(d)(1)(A) provides for the time-honored
opponent party use of a witness' prior statement made
under oath theretofore which is inconsistent with that
witness' current testimony given before the tribunal, in
the interest of the factfinder arriving as close to the truth
of the matter as the more credible evidence will allow
Accordingly, all the aforesaid rulings made at hearing
are now reaffnmed Havmg so concluded and found, I
need not address the parties various other arguments ad-
vanced on the basis of an urged application of the "Su-
premacy Clause"
It follows that the Employer's inquiry as to the prior
inconsistent statement made by Komclu at DES through
use of a hearing tape of that proceeding to refresh his
recollection was appropriate Employer has thus proper-
ly also established that contrary to Komclu's initial testi-
mony made in this proceeding that he had not said at the
time to Kamel, "[T]his is a bunch of shit," Komcki, upon
having his recollection refreshed as to his testimony
given previously at the DES hearing of October 1
(closer to the event), acknowledged (and then testified
herein also) that he had told Kamel, "this is a bunch of
shit
The prior statement of Komi(' in affidavit earlier
given to the Board, indicates neither remark was made in
that Koniclu has recorded there that he had said nothing
else, as he had initially testified here The above discrep-
ancies along with other earlier noted Komcki inconsist-
encies in recalling what he had actually said to Kamel,
only enforces the conclusion now reached that, under all
the above circumstances, Kamel's supported account that
Konicki had said on that occasion, "Don't give me that
shit," is the more reliable I so conclude and find
It is Employer's further contention that Komclu's
remark to Kamel under all the circumstance, has provid-
ed compelling grounds to Employer for the termmation
of Komcki The issue then becomes whether that Kon-
icki remark to Kamel, objectively viewed, has evidenced
the type of insubordination that would have occasioned
Employer's discharge of Komcki, irrespective of Kon-
Ickes known union activity I conclude and find, on this
record, it would have, especially with the urged consid-
eration of the terms of Komclu's prior agreement to co-
operate with management in regard to any necessary flex
assignments in the future, Carolina Freight Carriers Corp,
295 NLRB 124 fn 1 (1989) This remark, in my view,
simply involved more than is allowable for impulsive be-
havior, and, it does not come to me for evaluation as to
whether it could constitute an employee reaction in tol-
erable indignation to a specific unlawful assignment
First, Kamel's communication of the assignment of
Komcki to the dock on August 31, was not itself one
provocatively made Secondly, the complaint did not
allege that the flex assignments theretofore received, let
alone Kamel's specific flex assignment of Komclu to the
dock on August 31, were independently violative of the
Act Thus, this is not a case where Konickes remark,
"Don't give me that shit," as found made to Kamel, is
properly to be evaluated in a background of not only an
unlawful Kamel assignment of Komcki to the dock, but
234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as a reply, in tolerable indignation, to Kamel's further
implication that such an unlawful dock assignment was
encompassed within intendment of Komcki's prior signed
agreement, cf Brunswick Food & Drug, 284 NLRB 661,
662 fn 6, and see Member Stevens view fn 9 (1987)
To the extent General Counsel may have here, and/or
from time to time otherwise in brief urged certain mat-
ters as litigated within the framework of matters alleged
in the complaint, and, has on that account urged addi-
tional independent findings of unfair labor practices be
made thereon, in my view, General Counsel must wait
for another day, and other record circumstances, as for
example, where pnor counsel for General Counsel has
not earlier stated that the General Counsel was not seek-
ing to amend complaint to add any unfair labor practice
allegation
There remains to consider General Counsel's last argu-
ment that Konicki was treated disparately because an-
other employee on June 19 had received only a final
warning for his conduct in using (general) profanity to-
wards Manning It is General Counsel's argument there-
form that Employer is not to be credited that it would
have discharged Komcki irrespective of his union activi-
ty The argument has only surface allure
On that occasion the employee involved, a young man,
who had been previously ordered to stay off power
equipment because of a prior accident, was (again) while
operating power equipment, involved in an accident, this
time causing some damage to a newly constructed office
On that occasion the employee was heatedly taken off
the power equipment by Manning with the employee (I
find) more likely expressing profanity in turn to Man-
ning
According to Mannmg's and Kamel's asserted recol-
lections, the profanity was not leveled at Manning How-
ever, their nonrecollections of the incident otherwise did
not impress me Moreover, the RC of the event indicated
otherwise Thus the RC on the incident recorded that a
final written warning was given to that employee for in-
subordination for the following stated reason, "Disre-
spect for management—using foul and abrasive language
in an aggressive manner towards management"
General Counsel's argument is that unlike this employ-
ee who a couple of months earlier had only received a
final warning for the profanity expressed to Manning,
Komcki was disharged for like conducts General Coun-
sel thus urges that this is disparate treatment, and that a
concealed but operative discriminatory motive is re-
vealed
Konickes profanity as expressed to Operations Manag-
er Kamel following Kamel's unprovocative statement of
an assignment of Komcki to the dock and then warranted
subsequent reminder to Konicki of his prior agreement to
cooperate, that effectively Kamel was not to give Kon-
icki "that shit," is, in my view, readily distinguishable in
both nature and degree of insubordination, from a young
man's profane remark to a correcting supervisor coming
in the heat of an accident that caused damage, and con-
cerning which both the employee and direct supervisor it
appears had reacted excitedly Konicki and the employee
unquestionably received different discipline However, I
cannot say, under the different circumstances and causa-
tions shown, that they were treated disparately
Rather, it is my view in the end, in agreement with
Employer, that Komcki's conduct under the above cir-
cumstances was too directly insubordinate for retention,
irrespective of his union activity However, in conclud-
ing so, I do not rely on Employer's other urging that the
haste of Konickes desire to become involved with the
Union on the evening of August 31 itself indicates that
Komcki felt the need to do so only because of his insub-
ordination that day Other inference of developed deci-
sion in union interest is equally strong That day was oc-
casion for Konickes fourth nonbulk assignment in a row,
along with his third assignment to undesired dock work
that month
Accordingly, having found that Respondent has estab-
lished under all the circumstances that it would have dis-
charged Konicki for his insubordinate remark to Oper-
ations Manager Kamel on August 31, irrespective of
Komcki's prior union activity on August 26, I shall rec-
ommend that the complaint allegation that Respondent
Employer had discriminatorily discharged Konicki on
September 2, be dismissed in its entirety
CONCLUSIONS OF LAW
1 Filene's Basement Store, Division of Federated De-
partment Stores, is an employer within the meaning of
Section 2(2), (6), and (7) of the Act
2 Local 1445, Umted Food & Commercial Workers
International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 By the conduct of Facility Manager Steven Krauth
on July 14, in telling employee Glen D Noonan who
had attended union meetings held at the Yankee Drum-
mer Inn, that Krauth was aware of meetmgs at the
Yankee Drummer Inn, Respondent has created the im-
pression that the union activities of employees were
under surveillance in violation of Section 8(a)(1) of the
Act as alleged in the complaint
4 By the conduct of Vice President Joseph Staffen
and Operations Manager Ed Kamel on July 17, Respond-
ent Employer has discriminatorily issued an oral warnmg
to Glen D Noonan for engaging in protected union ac-
tivity, wrongfully accused Noonan of harassing and agi-
tating employees, and unlawfully threatened to terminate
Noonan for engaging in protected union activity, all in
violation of Section 8(a)(1) and (3) of the Act
5 By the conduct of Personnel Manager Laura
(Linden) Young on July 17, in thereafter making a writ-
ten record of counseling of the above discriminatory oral
warning, and then presenting it and causing Noonan to
sign it, Respondent thereby engaged in conduct addition-
ally violative of Section 8(a)(1) and (3)
6 By the conduct of Vice President Joseph Staffen on
July 17, Respondent has substantially interfered with and
restrained the protected union and concerted activity of
Glen D Noonan and other employees, to hand out and
receive union literature in the employees' parking lot on
Employer's property after completion of their scheduled
worktime, in violation of Section 8(a)(1) of the Act
FILENE'S BASEMENT STORE 235
7 By the conduct of Area Supervisor Mike Gordon
telling Glen D Noonan on July 21 that Noonan really
should not talk about the Union dunng break because the
Company paid for that time, Respondent has advanced
an overly broad no-solicitation rule for application to
Noonan, in violation of Section 8(a)(1) of the Act
8 Respondent has not otherwise engaged in any unfair
labor practices as alleged in the complaint
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act Although
former employee Glen D Noonan is no longer employed
by Respondent Employer, I shall order that Respondent
Employer be required to expunge from its records any
reference to its oral warning of Glen D Noonan, and re-
lated record of counseling, if found I shall also recom-
mend that Respondent be ordered to notify Glen D
Noonan in writing of such expunction and to inform him
that Respondent's unlawful conduct will not be used as a
basis for any future personnel action concerning him
Sterling Sugars, 261 NLRB 472 (1982), Peck Inc , 269
NLRB 451 fn 2 (1984)
[Recommended Order omitted from publication ]