G. C. Murphy Co.

National Labor Relations Board - Board Decisions

Feb 27, 1975

216 N.L.R.B. 785 (N.L.R.B. 1975)

G. C. MURPHY COMPANY 785
G. C. Murphy Company and Retail Clerks Store
Employees Union, Local 1047 , as chartered by
Retail Clerks International Association , AFL-CIO
G. C. Murphy Company and William T. Allen.
Cases 6-CA-7413, 6-CA-7471, and 6-CA-7475
Inc, 91 NLRB 544 (1950). enfd 188 F2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
J Member Kennedy and Member Penello believe that the record does
not support the Administrative Law Judge 's conclusion that Respondent's
regional security officer, Pardoe, was an "agent" for whose conduct
Respondent was responsible when he allegedly threatened employee Janeen
Phillips with retaliation for her union activities at the Pittsburgh store
Accordingly, they do not find a violation of Sec 8(a)(1) of the Act with
respect to that incident
February 27, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findingg,2 and conclusions3 of the Administrative
Law Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, G. C. Murphy
Company, McKeesport and Pittsburgh, Pennsylva-
nia, its officers, agents , successors, and assigns, shall
take the action set forth in the said recommended
Order.
i The Respondent has moved to correct the record to include a portion
of a statement it alleges the Administrative Law Judge made during
Respondent 's cross-examination of Joy Bennett Even were wg to include
this allegedly omitted statement in the record, we would not find prejudicial
conduct on the part of the Administrative Lays Judge . Thus, Respondent's
request to strike the Administrative Law Judge 's findings based on
Bennett's testimony is denied . On the basis of the foregoing and the record
as a whole , we agree with the Administrative Law Judge's finding that
Bennett was not a supervisor on April 4. 1974.
2 In adopting the Administrative Law Judge 's finding dismissing that
portion of the complaint in Case 6-CA-7413 which alleged surveillance by
Respondent Assistant Store Manager Kinney at the rear exit of Respond-
ent's McKeesport store , we deem significant the fact that Kinney is
frequently present at the exit at closing time , and the circumstances do not
establish to our satisfaction that he stationed himself there on March 26,
1974, for the purpose of observing the distribution of union handbills.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
216 NLRB No. 113
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Administrative Law Judge: Pur-
suant to a charge filed on April 12, 19741 (amended May
7), by Retail Clerks Store Employees Union, Local 1047, as
chartered by Retail Clerks International Association,
AFL-CIO (the Union), against G. C. Murphy Company
(Respondent), a complaint was issued on May 31 (Case 6-
CA-7413), alleging that Respondent had engaged in
various acts of interference with the statutory rights of its
employees at a store operated by Respondent in McKees-
port, Pennsylvania. Charges alleging similar misconduct by
Respondent at its store in downtown Pittsburgh, Pennsyl-
vania, were filed on May 7 and 9,2 upon which a
consolidated complaint was issued on June 27 (Cases 6-
CA-7471 and 7475). The two complaints were consolidat-
ed and a subsequent motion to sever was denied on August
2.
Pursuant to due notice, a hearing was held before me in
Pittsburgh, Pennsylvania, on August 14 and 15. The
General Counsel and Respondent were represented by
counsel and all parties were afforded full opportunity to
present oral and written evidence and to examine and
cross-examine witnesses . Oral argument was waived at the
hearing . Posttrial briefs have been filed on behalf of the
General Counsel and Respondent.
Upon the entire record, together with careful observation
of the witnesses and consideration of the briefs, I make the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
The complaints allege, the answers admit, and I find
that:
A. Respondent, a Pennsylvania corporation, with its
principal offices and warehouse in McKeesport, Pennsyl-
vania, is engaged in the operation of a chain of retail
department stores, includir} stores located at 531 Fifth
Avenue, McKeesport, and 220 Fifth Avenue, Pittsburgh,
Pennsylvania, the two stores involved herein. During the
past year, a representative period, at each of the two stores
here involved Respondent had gross revenues in excess of
$500,000 and received goods valued in excess of $50,000
directly from points outside Pennsylvania for use at said
facilities. Respondent is now, and has been at all times
material, an employer engaged in commerce within the
i Unless otherwise stated, all dates herein are in 1974.
2 The May 7 charge was filed by the Union (Case 6-CA-7471), the May
9 charge by William T. Allen, who was then an employee of Respondent
(Case 6-CA-7475)
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2 (2), (6), and (7) of the Act.3
B. The Union is , and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. McKeesport
1. The evidence
The allegations of the complaint concerning the
McKeesport store were supported primarily by the
testimony of Joy Bennett, who was a salesgirl at the time
involved but has since left Respondent's employ.
Bennett testified that sometime in February, the day
after she signed a union authorization card, John Kinney,
assistant manager of the McKeesport store , came up to her
counter and asked her what she thought of the Union.
Since she was then waiting on a customer , she did not
answer the question and Kinney did not tarry. Kinney
denied this testimony.
Bennett further testified that on Tuesday, March 26, at 5
p.m., when the store closed, she, Rosemary Kovalsky, who
also was an employee at the time , and a union representa-
tive were on the sidewalk outside the rear entrance of the
store distributing to departing employees handbills an-
nouncing a forthcoming union meeting . Assistant Manager
Irene Hreha wasjust inside the glass-paneled door clearing
packages that departing employees were taking out with
them. Shortly after the handbilling began, Hreha made a
call on a store telephone. Within a very short time (which
Kovalsky estimated as about 30 seconds), Kinney ap-
peared just inside the door, where he remained, looking out
at the handbilling operation and shaking his head. On
cross-examination , Bennett conceded that Kinney also
checked departing employees' parcels. According to
Bennett , the handbilling lasted about 10 minutes . Bennett's
testimony was substantially corroborated by Kovalsky.4
Bennett and Kovalsky both testified that Assistant Manag-
er Hreha usually okays employee parcels at 5 p.m. closings,
and that Kinney normally performs that function only at 9
o'clock closings or infrequently when, for some reason,
Hreha is not there. The store closes at 5 p.m. on Tuesdays
and Wednesdays, and at 9 p.m. on the remaining 4
working days.
Hreha did not testify. Kinney testified that Hreha
ordinarily starts to clear the employee parcels while he
(Kinney) locks the safe, whereupon he relieves Hreha at
the exit. He testified that he saw handbilling several times
while he was clearing parcels, both at 5 p.m. and at 9 p.m.
He described the handbilling as "[n]othing unusual."
However, on cross-examination he conceded that when he
saw handbilling, he "considered this unusual, not an
everyday occurrence."
Bennett testified to another conversation she had with
Kinney one afternoon in April. According to Bennett,
Kinney approached her and said that, although he knew he
was not supposed to, he wanted to talk to her about the
•1 National Labor Relations Act, as amended (61 Stat . 136,73 Stat. 519,
29 U S C. Sec. 151 . et seq )
4 Kovaisky placed this event on a Monday This was manifestly an error.
Union. He said that he did not want to see her get into any
trouble "and that the union wasn't any good." He said that
she should not handbill "unless [she] knew what was really
going on, and that he never wanted to see [her] do that
again ." He added that if she wanted a good job, she should
just stay with Murphy's and Kinney "would see what he
could do for" her. He further said that she would not "get a
feather in [her] cap" for trying to organize the store and
that if she wanted to help, she should inform Mr. Gordon,
the store manager , the next time she saw any union
representative at the store. According to Bennett, Kinney
said further "that the store would never let a union get in"
and that if the employees went on strike, assistant
managers from other stores would come in and take over
their jobs. He felt that in that event he would probably be
transferred to another store and, with his job jeopardized,
he would see that the strikers never got another job.
Bennett testified that Kinney asked her what she thought
"was so great about the Union" and that in reply she said
"that they had hospitalization .. . employee protection
and better wages ." She added that "this is something that
[she] really believe[s] in." His response was that Bennett
"really didn't know the half of it" and that union
representatives merely looked out for their own interests,
with no concern for the employees.
Kinney testified that his conversation with Bennett in
April was dictated by a deterioration in the quality of her
work, caused by considerable emotional disturbance
resulting from the union campaign. Kinney testified that,
while he was in charge of the basement sales floor and thus
did not supervise Bennett, who worked on the main (first
floor) sales floor, he spoke to her because of their social
relationship, stemming from the fact that her "boyfriend"
was his close friend. Kinney testified that the conversation
lasted only 3 to 5 minutes and he purposely kept it "very
general" because he believed that anything in the nature of
a "reprimand" should be given only "in someone's
presence," as in the store manager's or personnel manag-
er's office. Kinney testified that he merely told Bennett
that, whereas she had formerly "done a very, very good
job," she was now unfortunately permitting "the emotional
part of the store" to interfere with her work as well as with
her relationship with her boyfriend. He dated the onset of
her deteriorating work performance as around February,
when the union campaign began.
Bennett testified that in the April conversation she
complained to Kinney about his failure to protect her from
"harassment" by employee Victor Kiefer, who persistently
besought her for the return of union authorization cards
which he and some other employees had previously signed.
According to Bennett, Kinney explained his failure to
remedy Kiefer's harassment by saying that since he was
not permitted to take action against the Union, he would
not do anything to help it.
Both Kinney and Store Personnel Manager Mary Gross
testified that at one time Bennett had become extremely
distraught about the "harassment" by Kiefer and some
other employees who were trying to retrieve the Union
since the store does not close until 9 p.m on Mondays and Hreha is not
present at that time
G. C. MURPHY COMPANY
cards they had signed. At this point, according to Kinney
and Gross, Kiefer was called into the office and told to
stop the "harassment" of Bennett . No allegation in the
complaint is based on the Kiefer matter. At the hearing
counsel for the General Counsel stated that the Kiefer
matter was irrelevant.
Early in July Bennett walked out and joined the union
pickets, who were picketing the McKeesport store in
furtherance of a strike then in progress against Respond-
ent's store in Baltimore . She remained on the picket line
until it was removed , some 4 or 5 weeks later . She testified
that the Union had asked for her reinstatement, but she
had not returned to work for Respondent as of the time of
the hearing.
2. Discussion and conclusions
The General Counsel contends that Bennett's testimony
establishes unlawful interrogation by Kinney in February.
However, as Respondent argues, the testimony appears
improbable. If Kinney was interested in learning Bennett's
views concerning the Union, it seems unlikely that he
would ask her while she was serving a customer , when she
could readily fail to answer, as she testified she did. She did
not indicate that Kinney ever repeated the question. Thus,
while I believe Bennett was an essentially honest and
conscientious witness, I am inclined to doubt the accuracy
of her memory with respect to the conversation in
February. In any event, as she described the incident, it
can hardly be found that Kinney's single unanswered
question amounted to coercive interrogation, as alleged in
the complaint.5
As previously stated, Kinney testified that he generally
relieved Hreha and completed clearing employee parcels
before locking the door. Bennett and Kovalsky, however,
testified that Kinney normally cleared parcels only at 9
p.m. closings and only occasionally in Hreha's absence at 5
p.m. Hreha's unexplained failure to testify casts consider-
able doubt on Kinney's testimony as to his customary
conduct. Golden State Bottling Co. v. N.L.R.B., 414 U.S.
168, 174, fn. 3 (1973), and cases there cited. More
significantly, Hreha's failure to testify leaves unexplained
her call on the store telephone and Kinney's appearance at
the rear door immediately thereafter. Significantly, Kinney
was not questioned about any such call even though he
testified after Bennett and Kovalsky. To be sure, since the
employees testifying had been outside, they obviously
could not and did not testify as to the content of Hreha's
conversation. But the coincidence of the call and Kinney's
appearance was sufficient circumstantial evidence to
require Respondent to come forward with presumably
readily available evidence negativing the inference that
Hreha had summoned Kinney, presumably to observe the
union handbilling. Thus, on all the evidence I infer and
find that on March 26 Kinney stationed himself at the rear
exit of the store for the purpose of observing the
S It is perhaps a more plausible inference (or possibly speculation) that
Kinney's passing "question" was designed subtly to inform Bennett that
management knew she had contact with the Union. However, the incident
was not alleged as violative of the Act in creating the impression of
787
distribution of union handbills by employees and a union
representative.
It is true , as the General Counsel contends, that the
Board has held that it is unlawful surveillance, in
contravention of Section 8(a)(1) of the Act, for an
employer to station supervisors at a plant gate for the
purpose of observing union handbilling where there is no
plausible business reason for so stationing them. Tex
Manufacturing Company, 180 NLRB 808 (1970); Playtime
Kiddie Wear, Inc., 184 NLRB 373, 377 (1970), and cases
there cited. However, the recent trend in Board law
appears to run in a contrary direction. For example, in the
very recent decision in Larand Leisurelies, Inc., 213 NLRB
No. 37 (1974), the Board adopted the portion of Adminis-
trative Law Judge Weil's decision dismissing an allegation
of unlawful surveillance . Judge Weil there quoted with
approval a prior statement by Judge Funke that: "If a
union wishes to organize in public it cannot demand that
management must hide." Tarrant Manufacturing Company,
196 NLRB 794, 799 (1972). Since it is customary for some
supervisory personnel to be present at the exit as
employees leave the store, and Kinney admittedly does so
frequently, it cannot be said that there was any special
situation or set of circumstances which might render his
presence and observation on March 26 coercive. Accord-
ingly, I shall recommend dismissal of this allegation of the
complaint.
The conversation between Kinney and Bennett on April
4 is alleged as establishing violation of Section 8(a)(1)
through unlawful interrogation, threats, and promises of
benefits and instructions to refrain from handbilling for the
Union. As an overall defense to these allegations, Re-
spondent contends that: "On the evening in question,
Bennett was working as a `floor girl' and was performing
the supervisory functions which make up the job of floor
girl as described by Bennett . . . and therefore, Bennett
was not an employee within the meaning of the Act."
Bennett testified that she generally serves as floorgirl on
the two evenings a week that she works. Additionally, on
infrequent occasions she fills in when the "floor supervi-
sor" is at lunch. Bennett described the duties of a "floor
supervisor" as follows: "They check all the girls and make
sure that they are cleaning the counters, and they have
them stocked, and they take care of making change and
handing in all the money at the end of the day." That was
the sum total of evidence concerning the functions of a
"floor supervisor." There is no evidence that floor
supervisors (much less substituting "floor girls") have any
authority to fire or discipline, assign , transfer, or grant
overtime to employees, or effectively to recommend any
such action. Nor is there any evidence that floor supervi-
sors exercise any discretion or independent judgment in
directing the work of the salespeople. The comparative
rates of pay do not appear and there is no suggestion that
Bennett's wage rate was in any way affected by her serving
as a floor girl. The record contains no indication that
Respondent ever considered Bennett to be a supervisor .6
surveillance.
6 In a prior case involving Respondent 's store in Parkersburg, West
Virginia , the Trial Examiner found that six "floorgirls" were supervisors for
whose threats and coercive interrogation Respondent was responsible. The
(Continued)
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Most significantly, Kinney never instructed Bennett to
refrain from union activities because of any supposed
"supervisory" status . Indeed, at one point in his brief,
Respondent's counsel refers to Bennett as an "employee"
as distinguished from Kinney, a "supervisor." The record
thus contains no evidence that Bennett was a supervisor
rather than an employee within the meaning of the Act.
Respondent further contends that Kinney's talk with
Bennett on April 4 cannot be held violative of the Act
because it "was a friendly conversation" and "Kinney was
trying to be a friend." But "friendliness" does not
necessarily negative coercion. On the contrary, statements
by "friendly" supervisors while at work might well be taken
most seriously by employees, in the belief that a supervisor
would more forthrightly disclose management's views and
intentions to a personal friend than he would in dealing
more impersonally with other employees. This view is
borne out in the present case by Bennett's credited
testimony that Kinney prefaced his remarks by saying that
he knew he was not supposed to talk to her about the
Union but he did not want to see her "get in trouble." An
employee in Bennett's position would reasonably conclude
that Kinney was revealing the policy of higher-echelon
management.
Initially I reject the allegation that Kinney coercively
interrogated Bennett . Having seen Bennett handbilling for
the Union on March 26, he could hardly have been
attempting to discover her union sympathies when, on
April 4, he asked her what she thought "was so great about
the union."
Kinney's additional statements , as credibly quoted by
Bennett and summarized above, contain considerable
ambiguity. Viewed as a whole, however, they clearly imply
a promise of benefits to Bennett if she stopped supporting
the Union and "helped" Respondent by keeping the store
manager advised of visits by union representatives.
The complaint further alleges that Kinney threatened
loss of employment in retaliation if the employees should
choose to be represented by the Union. It is true that, if
closely analyzed, Kinney's alleged threat of loss of
employment was conditioned on there being a strike, in
which event supervisory personnel from other stores would
take over the work. It is, of course, not unlawful for an
employer to advise employees that they may be perma-
nently replaced if they engage in an economic strike. But
Kinney's warning was not so limited. He said that
Respondent would never permit a union in and clearly
implied that unionization would inevitably lead to a strike.
And his further remarks made it clear that striking
employees would be discharged and thereafter blacklisted.
Accordingly, while I find that the General Counsel has
not established unlawful interrogation by Kinney on April
4, I do find that, as alleged, Respondent, through Kinney
in his conversation with Bennett on April 4, made unlawful
threats and promises and improperly instructed Bennett
not to handbill for the Union, all in violation of Section
8(a)(1) of the Act.
Board reversed this finding and dismissed the allegations based thereon.
G C Murphy Company, 171 NLRB 370, 371 ( 1968). As summarized by the
Board , the apparently full evidence there presented is fully consistent with
Bennett's brief description of floor supervisors' functions in the present case
The evidence in the present case , particularly the printed "Rules For All
B. Pittsburgh
1. Threats
The General Counsel contends that Gerald Pardoe, Jr.,
Respondent's regional security officer, threatened employ-
ee Janeen Phillips with retaliation because of her union
activities.
As is more fully set out below, sometime in the forenoon
of May 8, Clair A. McElhinny, manager of the Pittsburgh
store, ascertained that Phillips was wearing a union button.
That day Pardoe visited the store. Phillips testified that
sometime between noon and 1 p.m. she saw Pardoe and
McElhinny conversing over a cup of coffee in the
employees' cafeteria. Thereafter, at around 2 or 3 p.m.,
Pardoe talked to Phillips at the candy counter, where she
was working. Phillips testified as follows concerning the
incident:
He came over to my counter where I was working,
and he says "If you have any intentions of walking out
the door, don't bother coming back." I asked him to
clarify himself, and he says "If you have any intentions
of walking out on strike, don't bother walking back
because I will personally see that you are fired." I asked
him what gave him the impression I was going to go out
on strike, and he says "You will," and left.
Pardoe testified that, having been related to Phillips by
marriage and having known her all her life, he always
stopped to talk with her when he visited the Pittsburgh
store. His version of the conversation of May 8 was as
follows:
... as I approached her, she said "Well, I guess I am
on your list, too." I said "Well, what list is that?" She
said "You know what I am talking about." I said
"Well, Janeen, I guess I do. I have heard rumors that
you were engaged in some of the activities that have
been going on here in the store," I said "but there is just
only one thing." I said "Please don't ever ask me again
to assist you in obtaining a job because I certainly
wouldn't help.
There was no evidence as to whether Pardoe had helped
her obtain her employment with Respondent or any other
job. Nor did Pardoe indicate that he had any reason to
anticipate that Phillips would seek another job and enlist
his aid. But Pardoe's own testimony shows that Phillips'
union sympathies were the acknowledged basis for his
negative attitude. This being so, it is probable that Pardoe's
statement was related to Phillips' possibly being out of
work because of her union activities. Accordingly, based
on careful observation of the demeanor of the witnesses
and consideration of the inherent probabilities, I credit
Phillips' testimony as the more accurate version of the
conversation between her and Pardoe on May 8.
Store Employees" introduced by Respondent , clearly indicates that all
Respondent 's stores are operated according to a uniform nationwide
pattern
G. C. MURPHY COMPANY 789
Respondent contests the allegation that Pardoe was "an
agent acting on [Respondent 's] behalf." The General
Counsel apparently would have me infer that Pardoe spoke
to Phillips at McElhinny's specific request. This is a
plausible inference from the facts that that very morning
McElhinny had made a point of ascertaining that Phillips
was wearing a union button and he knew that Pardoe and
Phillips were related and quite friendly. Pardoe conceded
that in his conversation with Phillips he indicated that he
knew and disapproved of her union sympathies. That
knowledge could have been obtained from McElhinny and
there is no evidence of any alternative source of the
information.
Despite McElhinny 's denial that he had spoken to
Pardoe about Phillips' union activities or had asked Pardoe
to speak to her, I should be inclined to find, on all the
evidence, that Pardoe was acting at the request of
McElhinny on May 8, when he spoke to Phillips about her
union activities . However, no such specific direction is
necessary for a finding that Pardoe was an "agent" for
whose conduct Respondent is responsible . (Sec. 2(13) of
the Act.)
Pardoe, who has his office at Respondent's home office
in McKeesport, is security officer for Respondent's
Northern Division , which covers some 91 stores in the
State of New York and parts of Ohio, West Virginia, and
Pennsylvania . He reports to Richard H. Scales , Respond-
ent's nationwide chief of security. Nobody reports directly
to Pardoe.
Pardoe 's function is to advise the managers of the stores
within his region concerning security measures to prevent
and combat internal and external theft, i.e., theft by
employees and by others. He spends most of his time in the
field visiting the stores either on his own initiative or on
request by individual store manager . In addition to
advising as to proper security measures and helping store
managers to obtain local policemen as part-time guards
when that course is deemed advisable , Pardoe often
investigates individual thefts . In the course of doing so, he
frequently questions employees and obtains written state-
ments . Such employee interviews are usually conducted
with the permission and in the presence of the store
manager . But if Pardoe observes a theft , he may and does
apprehend the employee and question him alone.
The nature of Pardoe's functions is such that, while he is
not a "supervisor," he obviously appears as a representa-
tive of Respondent 's home office management and would
necessarily be so considered by store employees. Having
and exercising the authority to interview employees in
connection with important personnel matters , he has at
least apparent authority to speak as an agent of Respond-
ent. Solo Cup Co., 114 NLRB 121 123, enfd. 237 F.2d 521,
523-524 (C.A. 8, 1956); Aircraft Plating Company, Inc., 213
NLRB No. 88 (1974). Accordingly, on all the evidence I
find that, as alleged , Pardoe is an agent of Respondent
within the purview of the Act. As alleged, on May 8
Respondent , through Pardoe, threatened Phillips with
retaliation for union activities.
Employee Phillips testified that one day in the early part
of June Assistant Manager James Nolder came to her work
station and asked her why her counter was not properly
stocked. When she replied that she did not have adequate
merchandise, Nolder said: "Well, you won't have to worry
about that. Your filing charges with the Labor Board might
harm your position here." Nolder testified that he could
not recall a conversation with Phillips on the specific date
alleged. While acknowledging that he frequently talks to
employees about merchandise problems, he denied that he
had ever had a conversation with Phillips such as that she
described.
Respondent argues that Nolder could not possibly have
spoken to Phillips as she testified because, as a matter of
fact, she had never filed a charge with the Board. However,
the evidence establishes that, on the advice of a union
representative, she visited the Board office and gave
written statement right after her encounter with Pardoe,
described above. It is not unlikely that Nolder, a layman,
would use the word "charge" other than in its technical,
statutory meaning.
On all the evidence, I credit Phillips' testimony and find
that Nolder, an admitted supervisor and agent of Respond-
ent, threatened Phillips with possible reprisals for giving
testimony under the Act.
Next comes an allegation that Assistant Manager Cyril
Lewis threatened loss of benefits as retaliation if the
employees chose to be represented by the Union. Employ-
ee William Allen testified that, during his break, sometime
early in May, he was in the basement engine room of the
store talking about the Union with two engineers. Lewis
came in to get a drink of water. As Lewis was leaving, one
of the engineers asked him what he thought about the
Union. The question led to a friendly conversation lasting
some 10 to 15 minutes, in the course of which Lewis said
that if the Union got in "the young people had nothing to
lose" but long service employees would suffer reductions in
pay and would "lose their benefits that they had," such as
their seniority and the 4 or 5 weeks vacations they had
acquired. Additionally, "veterans clubs," with their sub-
stantial financial and other benefits for long term employ-
ees, would be eliminated. Lewis' memory of the conversa-
tion was very sparse . Under some prodding, he described
the discussion as follows:
I told Cy [one of the engineers ] that right now when
employees get paid, you know, their money is theirs,
and with a union they would have to pay union dues,
and if a union, you know, were to get into the store,
there would be initiation fees... .
Lewis was not sure whether he answered Allen's comments
about union hospital benefits. According to Lewis, the
entire conversation was "joking," with considerable laugh-
ter. I credit Allen, whose recollection was much clearer and
fuller than Lewis'.
Whatever Lewis' intention, he was an admitted supervi-
sor and must be deemed as having spoken for manage-
ment . So far as appears, Lewis made no attempt to phrase
his comments as "predictions" or so to explain them.
Contrary to Respondent's apparent contention, it is no
defense to the allegation that Lewis' remarks were made in
answer to an employee's question; the vice lay in the
threats themselves, regardless of the occasion therefor.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They could reasonably be understood by the employees
only as statements of Respondent 's intentions.
The complaint alleges that Personnel Manager Margaret
Fisher unlawfully threatened and instituted discipline
against an employee because of her union activities.? The
allegation refers to an incident occurring on June 18, when
Donna Czerwinski and Maud Kowaleski, both waitresses,
engaged in a loud argument in the presence of patrons in
the store's restaurant. McElhinny testified that he referred
the matter to Fisher for action after he personally received
a customer complaint about the event . Fisher thereupon
required both employees to sign formal reprimands.
Czerwinski had signed a union card in April and her
union sympathies were apparently well known to McElhin-
ny, who had observed her wearing a union button and had
been informed that she had distributed union cards.
Kowaleski did not testify and there is no evidence
concerning her position on the union matter. To support
his contention that this disciplinary action was related to
union activities, the General Counsel apparently relies
primarily on Czerwinski's undemed testimony that she had
previously engaged in similar loud arguments while on
duty but had not been disciplined therefor. Both McElhin-
ny and Fisher indicated that formal disciplinary action had
been taken on this occasion because of the customer's
complaint.
The mere fact that Czerwinski might previously have
escaped disciplinary action for misconduct is insufficent to
establish that the present discipline was imposed because
of her union activities, particularly where apparently equal
discipline was meted out to the other participant , who, so
far as appears , was not a union sympathizer . Accordingly, I
shall recommend dismissal of the allegation concerning
Fisher for lack of proof.
2. No-solicitation and no-distribution
The complaint alleges that Respondent, through McEl-
hinny, promulgated and enforced an overly broad restric-
tion on employee distribution of union material and
enforced a discriminatory no-solicitation rule. These
allegations are based on oral statements and no claim is
made that the Company's printed and posted rule
governing distribution and solicitation is invalid.8
There is no doubt that McElhinny attempted rigidly to
restrict union solicitation and distribution . The basic
question is whether the restriction was too broad, i.e.,
whether it interfered with the employees' rights during
nonworking time in nonpublic areas of the store.
Employee Allen testified that he was called into the
office, where McElhinny said he heard Allen "had been
passing union cards on his [i.e. McElhinny's] time, and he
wanted it stopped , and he wasn 't going to tell [Allen] about
it again."
Czerwinski testified that McElhinny called her into the
office and said that he had had complaints that she "was
passing out cards on company time , and that he wanted it
stopped . He said what [she does ] outside the store on [her]
own time is [her] own business ." This was her only
warning.
Employee Debbie Craig testified that McElhinny orally
reprimanded her for passing out union cards "during store
hours." She repeated the quoted words several times. On
cross-examination , she testified as follows:
Q. (By Mr . Fawcett) Now, think a little bit about
this . Did he say during store hours , or did he say during
working hours?
A. During store hours.
Q. You are positive of that?
A. Yes.
Former employee David Kuchar testified that on
Saturday, June 17, on a loading platform, a nonselling
area, he asked a personnel trainee if she had read the
pamphlet which the Union had distributed the previous
day. Thereafter Kuchar was called into the office, where
McElhinny reprimanded him for allegedly having "haras-
sed" an employee. According to Kuchar, McElhinny said:
"When you punch in in the morning, or in the afternoon,
depending on when you start, you are on Murphy's time.
You are not to discuss, pass out literature, or anything to
do with the union."
McElhinny indicated that he was not precise or uniform
in the language he used. He testified that after an employee
reported that she had been solicited by Kuchar to join the
Union, McElhinny called Kuchar to the office "and
informed him that he was not allowed to do such things
during working hours." McElhinny also testified that,
while he could not recall the precise words he used, he had
instructed Allen "that he was not allowed to solicit any
names, or pass out any cards , pertaining to union activities
after he was punched-in in the store." McElhinny then
testified that he had called Debbie Craig into the office
"for the same reason , for passing out union cards during
working time." And immediately thereafter McElhinny
testified to having called Czerwinski to the office and
verbally warning her about "passing cards out after she
already punched in on company time." It is thus clear that
McElhinny made no fine linguistic distinctions among
such phrases as "working time ," "company time," and
"working hours ." He maintained that he had never
prohibited employees' distributing union cards or literature
"on the employees' own time," and proceeded to give the
following definition:
"Own time" is when they are not punched in, and
they are not working for the Murphy Company, which
would mean prior to start of work, on their lunch hour,
of after they punch out to leave.
The evidence is clear and undisputed that employees
have a 1 -hour lunch period and one 15 -minute break each
day. They clock out for their lunch hours but not for their
15-minute breaks . Both the employees and management
appear to consider the 15-minute breaks as "company
time" because they are paid.
r This conduct was not alleged to be violative of Sec. 8(a)(3). Respondent was there found to have violated the Act by , inter alia,
8 The validity of the rule was also apparently assumed in G C. Murphy questioning employees about union literature in their possession and asking
Company, 213 NLRB 31 (1974), involving a store in Baltimore , Maryland. them to turn it over to management.
G. C. MURPHY COMPANY
McElhinny's testimony by itself establishes an unlawful-
ly broad prohibition of employee solicitation and distribu-
tion in that it does not unambiguously exclude paid break
periods from the sweep of the prohibition. Alberts, Inc., 213
NLRB No. 94 (1974).
Phillips, Allen, Czerwinski, and Kuchar credibly testified
concerning various solicitations made at the store, such as
collections for birthday presents and assistance to an
employee who had been injured. Assistant Manager Cyril
Lewis annually participates in a charitable "walkathon"
and makes solicitations in connection therewith. Czerwin-
ski testified that at the time of the present hearing she was
one of a group of employees who were in the process of
soliciting for a proposed employee picnic. While the
evidence indicates that solicitations were generally made in
the employee cafeteria, there was credited and undenied
testimony that some solicitation for various funds was
conducted on the sales floor. While McElhinny testified
that he had never granted permission for any employee
solicitations, he conceded that he knew about the collec-
tion for an injured employee and Lewis' solicitation in
connection with the walkathon. In addition, the Company
sponsors the United Fund.
As previously set forth, four employees were called into
the office and orally warned about soliciting on behalf of
the Union and threatened with more drastic disciplinary
action upon the first repetition of the alleged offense.
Although Respondent produced a published and allegedly
posted no-solicitation and no-distribution rule, there is no
evidence that it had ever been invoked or enforced with
respect to any other type of solicitation. Indeed, there was
no suggestion that any of the employees were consciously
aware of its existence .9 Even McElhinny's testimony
indicates that his oral reprimands of four employees were
specifically directed toward union solicitation alone.
The record as a whole leaves no doubt that McElhinny
enforced a no-solicitation rule discriminatorily against
solicitation fbr the Union as compared with other types of
solicitation , in contravention of Section 8(axl) of the Act.
State Chemical Company, 166 NLRB 455 (1967). Even if
the prohibition had not been directed solely against
solicitation on behalf of the Union, the record clearly
establishes that it discriminatorily applied to such activity,
in contravention of Section 8(a)(1). Textron, Inc. (Talon
Division), 199 NLRB 131 (1972); The Dayton Tire & Rubber
Company, 207 NLRB 624 (1973).
3. Surveillance
The General Counsel contends that McElhinny engaged
in unlawful surveillance of union activities when he stood
at the rear exit of the store and observed union handbilling.
Phillips testified that at closing time, 5:30 p.m. on May 8,
she and other employees and some six union representa-
tives distributed handbills to departing employees. When
they started, the night watchman was inside the store
clearing employee parcels. After about 5 minutes McElhin-
ny and several other supervisors arrived and observed the
9 In G. C. Murphy Company, Case 5-CA-6491 , involving Respondent's
store in Pasadena , Maryland, Administrative Law Judge Stone found that
Respondent had violated Sec. 8 (axl) by confiscating union campaign
literature and authorization cards from employees . In that decision it is
791
handbilling. McElhinny remained for about half an hour,
until the last employee had left. According to Phillips, the
night watchman usually checks the employee packages, but
she conceded that on occasion McElhinny also stands at
the rear door as the employees are leaving. Phillips'
testimony was substantially corroborated by Kuchar, who
was standing outside the store waiting for his bus, which he
planned on boarding with one of the other employees who
was handbilling. Kuchar testified that several times
McElhinny walked out of the store and observed the
handbilling on the sidewalk. The complaint alleges similar
"surveillance" on June 14, but the evidence was less
specific as to that event.
McElhinny conceded that he had observed union
handbilling on two or three occasions. He said he made
,.no secret" of it and once he had gone out and asked for,
and received, one of the handbills. He testified that it is his
regular practice to stand at the rear door at closing time,
where he normally waits while Assistant Manager Durner
compiles the day's sales figures and then drives up in his
car to pick McElhinny up for their ride home. According
to McElhinny he normally waits for Durner at the rear
door 5 to 15 minutes, during which time he talks with the
night watchman and says good night to the departing
employees. I credit McElhinny's testimony, which is not in
substantial conflict with that of Phillips and Kuchar.
For the reasons set forth above, in connection with the
McKeesport store, I find that McElhinny's observing the
union handbilling on a public street at the rear of the store
does not constitute unlawful surveillance of union activi-
ties.
Phillips testified that on May 8 she was wearing a union
button on a chain around her neck. McElhinny ap-
proached her and looked very closely at the button.
McElhinny thereupon walked over to speak to assistant
floor manager Shaler. Phillips could not hear all of the
conversation between the two men, but she did heal
McElhinny say "Do it, and do it now." Shaler then went tc
Phillips' counter "and looked at the counter, wrote down
everything that needed done." Phillips testified that she
had never before had such a "write-up." McElhinny
conceded that he had looked at Phillips' pin and ascer-
tained that it was a union button. He believed that he was
at the time with Shaler, who McElhinny said was a
"training assistant manager ." McElhinny could not recall
having said anything to Shaler like "do it now," but all the
assistants are required to make morning inspections of the
counters. They have inspection pads on which they note
deficiencies. One copy of such a deficiency report is given
to the employees, one is sent to the store manager or his
first assistant, and one is retained by the assistant manager
making the report. McElhinny denied that he had said
anything to Shaler about Phillips' wearing a union button
at the time. McElhinny was not specifically questioned
about Phillips' record and thus there was no denial of her
testimony that this was the only such report she ever
received.
stated that . "No evidence was presented to reveal that the Respondent had
written rules or a written policy." Judge Stone's decision was adopted by the
Board in the absence of exceptions.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Czerwinski testified that on the same day McElhinny
"came up close to [her] counter, and he sort of stretched
his neck and looked to see if I had the button on."
According to Czerwinski, McElhinny thereupon moved to
the middle of the sales floor, where he removed from his
pocket a black notebook and wrote something in it.
McElhinny testified that he "could have observed [Czer-
winski] wearing a button" but he did not write anything
about it in his black notebook, which contains his "store
sales."
Neither of these events has been alleged as violative of
Section 8(a)(3). And it does not appear from his brief that
the General Counsel now contends that they establish
unlawful surveillance. In any event, as in the case of
handbilling, if employees voluntarily choose to announce
their union sympathies openly by wearing insignia, they
cannot reasonably expect their supervisors to don blinders.
Finally, the complaint alleges that McElhinny created
the impression that some employees' union activities were
being kept under surveillance. In his brief, the General
Counsel contends that this allegation is supported by
testimony concerning McElhinny's interviews with then
employees Allen and Czerwinski or; May 1, when, as
previously set forth, he warned them against solicitation on
behalf of the Union. According to Allen, McElhinny then
said he "heard [Allen] had been passing out Union cards
on his time." And Czerwinski testified that McElhinny said
"he heard she was the one who started passing out cards."
It is difficult to see how such statements in themselves
could be considered unlawful. If McElhinny was about to
reprimand the employees, it was natural that he would lay
some foundation. In no way did he suggest that he had
solicited information or had engaged in "spying." As is
generally known (and, indeed recognized in many Board
decisions applying the "small-plant doctrine" or some
variation thereon), management is frequently kept well
informed of union activities without having to seek such
information. It would be totally unrealistic to hold that a
supervisor could lawfully reprimand an employee for
violating a valid no-solicitation rule but could not inform
the employee that he had received information that a
violation had been committed. The fact that, as found
above, McElhinny was enforcing an unlawful no-solicita-
tion rule does not mean that he was creating the impression
of surveillance.
CONCLUSIONS OF LAW
1. G. C. Murphy Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Clerks Store Employees Union, Local 1047, as
chartered by Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees with loss of employment
or reduction in wages or benefits if they select a union to
represent them, and by promising better jobs or other
benefits to employees who do not support a union,
Respondent violated Section 8(a)(1) of the Act.
4. By promulgating and discriminatorily enforcing
unlawfully broad no-solicitation and no-distribution rules,
for the purpose of interfering with the employees' right of
self-organization, Respondent violated Section 8(a)(1) of
the Act.
5. The unfair labor practices found herein affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
6. It has not been established by a preponderance of
the evidence that Respondent has engaged in any unfair
labor practices other than those specifically found herein
above.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend issuance of an order containing custom-
ary cease-and-desist and notice-posting requirements as
found necessary to effectuate the policies of the Act.
The General Counsel specifically requests that a broad
cease-and-desist order be entered because, as the General
Counsel contends, "the violations are pervasive and strike
at the heart of the Act." However, in my opinion, the
specific violations found in the present case are not so
pervasive or egregious in themselves as to warrant a broad
order.
The General Counsel, however, also calls attention to
orders issued against Respondent which it is contended
establish the "recidivist nature of the Respondent and its
proclivity to violate the Act thereby requiring the requested
broad order." The General Counsel refers specifically to
Cases 5--CA-6491 and 5-CA-6586.
In Case 5-CA-6491, Administrative Law Judge Stone
found that in December 1973 Respondent violated Section
8(a)(1) of the Act at its store in Pasadena, Maryland, by
confiscating union literature and authorization cards from
its employees, unlawfully interrogating employees and
threatening employees with reprisals for engaging in union
activities. That decision was adopted by the Board in the
absence of exceptions.
In Case 5-CA-6586, it was found that in March 1974
Respondent violated the Act by questioning employees
concerning their possession and retention of union litera-
ture, by threatening loss of vacation benefits and by
discriminatorily discharging an employee. A broad cease-
and-desist order was issued on the finding that the unfair
labor practices found "strike at the very heart of employ-
ees' rights safeguarded by the Act." G. C. Murphy
Company, 213 NLRB 31 (1974).
One other decision should be specifically noted. In G. C.
Murphy Company, 171 NLRB 370, affd. sub nom. Food
Store Eloyees Union, Local 347 v. N.L.R.B., 422 F.2d 685
(C.A.D.C., 1969), it was found that in 1967 Respondent
committed several violations of Section 8(a)(1) in the
course of a union organizing campaign at its store in
Parkersburg, West Virginia. Among the violations there
found was the maintenance of an overly broad no-
solicitation rule substantially the same as that found in the
G. C. MURPHY COMPANY
present case .10 Respondent was there ordered to cease and
desist from, inter alia, "[m]aintaining a no-solicitation rule
which prohibits employees from soliciting for the Union
during their nonworking hours in nonselling areas of the
store." (171 NLRB at 372 (1968).)
In view of the fact that the violations here found are
similar to those found in other cases, and from which
Respondent had been ordered to cease and desist in 1968,
considerably before the time here involved, it is my opinion
that a broad cease-and-desist order is called for.
In the prior orders just discussed, the Board has followed
the usual practice in such situations of requiring that
notices be posted only in the specific stores where the
violations have been found. Presumably, therefore, it
would be appropriate in the present case to prescribe
separate notices for the Pittsburgh and McKeesport stores.
However, since there is considerable similarity in the
nature of the violations in the two stores, which apparently
are within the same region under Respondent's organiza-
tional setup, it is believed that a single notice may properly
be required to be posted in the two stores here involved.
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
iORDER "
Respondent, G. C. Murphy Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reduction in wages, or
vacation, seniority, "Veterans Club," or other benefits for
choosing union representation or giving testimony to the
Board.
(b) Expressly or impliedly promising employees better
jobs or improvements in benefits if they do not support or
assist the Union.
(c) Promulgating or maintaining any rule which prevents
employees from soliciting or distributing written and
printed material on behalf of the Union in nonselling areas
of Respondent's premises during the employees' nonwork-
ing time or which imposes any greater restriction on
employees' solicitation or distribution of material on behalf
of the Union than is imposed on solicitation or distribution
for any other purpose.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its store premises in McKeesport and
Pittsburgh, Pennsylvania, copies of the attached notice
marked "Appendix." 12 Copies of said notice, on forms
provided by the Regional Director for Region 6, after
being duly signed by Respondent, shall be posted by it
immediately upon receipt thereof, and shall be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
793
customarily posted. Reasonable steps shall be taken to
assure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the consolidated complaint be
dismissed insofar as it alleges violations of the Act not
specifically found.
10 The Board there said- "As this rule may be read to prohibit union
solicitation by an employee in nonselling areas of the store even during an
employee's nonworking time , it is 'at best ambiguous and the risk of
ambiguity must be held against the promulgator of the rule rather than
against the employees who are supposed to abide by it.'. "
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recomthended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence , it has been found that we violated
the law and we have been ordered to post this notice. We
intend to abide by the following:
WE WILL NOT threaten you with reduction in wages,
vacations , seniority, Veterans' Club, or any other rights,
privileges, or benefits if you select a union to represent
you or give testimony to the Board.
WE WILL NOT promise you better jobs, benefits, or
conditions of employment for not supporting or aiding
a union.
WE WILL NOT in any manner restrict your right to
solicit or distribute written or printed material on
behalf of a union during your nonworking time in
nonselling parts of our premises ; and WE WILL NOT
place any greater restriction on your right to solicit or
distribute material on behalf of a union than we impose
on all other forms of solicitation and distribution.
WE WILL NOT in any other manner interfere with
your right to engage in organizational activities or in
collective bargaining, or to refrain from such activities.
You are free to become and remain members of Retail
Clerks Store Employees Union , Local 1047, as chartered
by Retail Clerks International Association , AFL-CIO, or
any other labor organization.
G. C. MURPHY CoMPANY