Homemaker Shops, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1982

261 N.L.R.B. 441 (N.L.R.B. 1982)

HOMEMAKER SHOPS
Homemaker Shops, Inc. and Retail Store Employees
Union, Local 876, United Food and Commercial
Workers International Union, AFL-CIO-CLC,
and Homemaker Shops Representative Commit-
tee, Party in Interest. Case 7-CA-17116
April 29, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 7, 1980, Administrative Law
Judge William A. Gershuny issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief.
Respondent filed a brief in opposition to the Gen-
eral Counsel's brief and in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. The General Counsel has filed exceptions to
the Administrative Law Judge's failure to find that
Respondent violated Section 8(aX2) of the Act by
dominating, assisting, contributing to the support
of, and interfering with the administration of a
labor organization, the Homemaker Shops Repre-
sentative Committee (hereafter called the Commit-
tee). We find merit in these exceptions.
The basic facts are not in dispute. Respondent
operates a retail store chain selling linens and other
related household goods in six States. Its 32 stores
are divided into 3 bargaining units. Group I, the
unit involved here, encompasses 16 stores.' The
Committee was certified by the Board on October
22, 1976, as the bargaining representative of a unit
of all full-time and regular part-time selling and
nonselling employees at all Respondent's Group I
stores. There is no evidence of involvement by Re-
spondent in the formation of the Committee.
The Committee is an unincorporated body, with-
out a charter, bylaws, or governing rules. It con-
I On November 2, 1979, the Charging Party, Retail Store Employees
Union, Local 876, United Food and Commercial Workers International
Union, AFL-CIO-CLC (hereafter called the Union), filed a representa-
tion petition covering nine of the stores in Group I. The underlying
charge in this case was filed on November 26, 1979. We find merit to the
General Counsel's contention that the Administrative Law Judge errone-
ously stated that the General Counsel seeks relief from the alleged unfair
labor practices only at the 9 stores of the 16 stores listed in the represen-
tation petition. The record shows that the General Counsel seeks to re-
strain the alleged unfair labor practices at all 16 stores in Group 1.
261 NLRB No. 50
ducts no general membership meetings, has no reg-
ular officers, and makes no provision for the pay-
ment of dues. The Committee's operational proce-
dures are contained in its contract with Respond-
ent. The current contract, which expires in January
1983, provides for one representative and one alter-
native from each store to be elected annually in
May by secret ballot. The length of the representa-
tives' terms was initially set at I year at the prefer-
ence of Respondent's president, Freeland. The con-
tract provides that the Employee Negotiating
Committee shall be elected by the store representa-
tives and recognizes the Employee Negotiating
Committee for the purpose of bargaining about
wages, hours, and conditions of employment. It
also establishes a four-step grievance procedure
with provisions for participation by the store repre-
sentatives and for employees and Respondent to
share the cost of any arbitration.s Finally, the con-
tract provides for compensation to the representa-
tives for time lost from work during meetings with
Respondent and when participating in the griev-
ance procedure.
Respondent schedules both regular and special
elections for the Committee's representatives. For
example, in August or September 1979, Plant Su-
pervisor Himes independently called a special
meeting for the purpose of electing a store repre-
sentative because the current representative was on
extended medical leave. Respondent also provides
the ballots and ballot box for the elections. The
store manager passes out the ballots and for a time
keeps the ballot box at his desk. Then, with an em-
ployee's assistance, he counts the ballots and an-
nounces the results. At the May 1979 election
meeting, an employee attempt to amend the
method of selecting alternate representatives was
vetoed by Plant Manager Laughead. 3
Only Respondent schedules and, if necessary,
reschedules the annual and special meetings it has
with the Committee. Regular meetings, usually
held in the fall of each year, serve the two pur-
poses of discussing new merchandise and company
sales policy, and negotiating the terms and condi-
tions of employment. The Committee's representa-
' Evidence was presented that the Committee's representatives have
processed two informal grievances within the 10(b) period.
' The charge here was filed on November 26, 1979. It is unclear
whether this May 1979 meeting occurred within the 10(b) period. We.
accordingly, rely on this and other instances predating the 10(b) period
for background purposes only. It is well settled that the Board can and
will consider events transpiring more than 6 months before the filing of a
charge to shed light on the true character of matters occurring within the
limitations period, even though under Sec. 10(b) such conduct cannot
itself constitute an unfair labor practice. Local Lodge Na 1424, Interna-
tional Assoeiation of Machinists. AFL-CIO, et al [Bryan Manufacturing
Company] v. N.L.RB., 362 U.S. 411 (1960). See also N.LR.R v. South-
ern Bell Telephone & Telegraph Co., 319 U.S. 50, 57 (1943).
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tives have met among themselves only prior to
these regular annual or special meetings. No mem-
bers of management are present at these prelimi-
nary meetings where, pursuant to the contract, the
representatives select an Employee Negotiating
Committee to meet with Respondent and present
the Committee's demands. Respondent reimburses
the representatives for travel expenses to the meet-
ings. It pays the representatives their regular
hourly wages both while in attendance at the pre-
liminary meetings and, pursuant to the contract, at
the negotiation meetings. Respondent also provides
the Committee with temporary facilities and coffee
for these preliminary meetings.
At the November 1979 negotiations for the cur-
rent contract with Respondent, the Committee's
representatives presented their demands one by
one. Uncontradicted testimony shows that Re-
spondent summarily granted or denied each
demand. Respondent offered no counterproposals.
Although Respondent granted some demands in
compromised form, the parties did not engage in
the usual back-and-forth negotiation of terms that
customarily accompanies the process of collective
bargaining. The Committee did not try to obtain
any proposals by giving up other proposals, nor
did it insist that any proposal was mandatory. De-
mands denied were usually immediately dropped
by the Committee's representatives. Committee de-
mands granted included increased insurance bene-
fits, dental insurance, a cost-of-living provision, a
wage increase, and funeral leave.
On November 30, 1979, Respondent called the
Committee to a special meeting, attended by Re-
spondent's attorney, to discuss with Group I repre-
sentatives the filing of the charge in this case, the
petition by Local 876, and the propriety of bargain-
ing over a new contract covering the nine stores of
Group I covered by the petition. At this meeting,
the store representatives were told that they could
call Respondent's attorney if they had any ques-
tions, that he would represent them if they desired,
and that they had the right to retain their own at-
torney if they preferred. Respondent made no re-
quest, promise, or suggestion that it would pay for
whatever attorney the Committee retained.
On the basis of the above record, the Adminis-
trative Law Judge found that Respondent did no
more than lawfully cooperate with the Committee.
The General Counsel, while acknowledging that
the Board has no per se rule with regard to unlaw-
ful assistance or domination, contends in exceptions
that Respondent's involvement in the Committee's
internal affairs exceeds the permissible level of co-
operation between an employer and a labor organi-
zation and amounts to unlawful domination and as-
sistance.4 We agree, and, contrary to the Adminis-
trative Law Judge, we find that Respondent has
violated Section 8(a)(2) and (1) of the Act by
dominating,5 assisting, contributing to the support
of, and interfering with the administration of the
Committee.
In making these findings, we note that the differ-
ence between unlawful assistance and unlawful
domination is one of degree,6 as is the difference
between permissible cooperation and unlawful as-
sistance.7 Where, as here, the totality of evidence
shows that the labor organization exists essentially
at the will of the employer, we are compelled to
find that the employer has engaged in both unlaw-
ful assistance and domination.8 We also note that
the employer's activity in the formation of a labor
organization is not a prerequiste to a finding of
domination in the administration of a labor organi-
zation. 9
In finding unlawful assistance and domination,
we rely on the collective import of the following
factors: (1) The Committee has no charter, bylaws,
or governing rules, no regular officers, and no pro-
vision for the payment of dues. 0 (2) The only body
of rules governing the operation of the Committee
is contained in the bargaining agreement between
Respondent and the Committee." (3) Respondent
' See, e.g., Federal Mogul Corporation, Coldwater Distribution Center Di-
vision, 163 NLRB 927, 928, fn. 4 (1967), enforcement denied 394 F.2d 915
(6th Cir. 1968).
' Respondent contends that, because unlawful domination is not alleged
in the complaint or amended complaint, we should decline to find this
violation. The amended complaint (par. 12) alleges:
Since on or about May 26, 1979, and continuing to date, Respond-
ent has rendered and is rendering unlawful aid, assistance and sup-
port to the Homemaker Shops Representative Committee by sched-
uling and controlling the election of Committee representatives; by
calling, attending and directing meetings of Committee representa-
tives, and compensating representatives to attend these meeting; and
by providing financial assistance to the Committee by offering legal
assistance and by allowing the Committee to use its offices, equip-
ment, facilities, and supplies to conduct Committee business.
We find that these allegations are sufficient to bring the issue of domina-
tion within the scope of the complaint. See Fremont Manufacturing Com-
pany, Inc., 224 NLRB 597 (1976), enfd. 558 F.2d 889 (8th Cir. 1977).
In addition, where a material issue of unlawful conduct related to the
subject matter of the complaint has been fully litigated and the facts nec-
essary to decide the question have been adduced without objection by
Respondent, the Board is not precluded from deciding the issues, regard-
less of whether it has been specifically pleaded. See Kux Manufacturing
Corporation, etc., 233 NLRB 317 (1977), enforcement denied in relevant
part 614 F.2d 556 (5th Cir. 1980).
' Harold W Koehler, Harold C Koehler and Jerry Koehler, a partnership
d/b/a Koehler's Wholesale Restaurant Supply, 139 NLRB 945, 953 (1962),
enfd. in relevant part 328 F.2d 770 (7th Cir. 1964).
7 See, e.g., Sunnen Products, Inc, 189 NLRB 826, 828 (1971).
'See Kux Manufacturing Corporation, supra
9 See Goulds Pumps Inc., Vertical Pump Division, 196 NLRB 820, 824
(1972).
'I See Clapper's Manufacturing, Inc., 186 NLRB 324, 334 (1970), enfd.
458 F.2d 414 (3d Cir. 1972).
ii See Federal Mogul Corporation, Coldwater Distribution Center Divi-
sion, supra at 928; Modern Plastics Corporation, 155 NLRB 1126, 1128
(1965), vacated 379 F.2d 201 (6th Cir. 1967).
442
HOMEMAKER SHOPS
exercises sole authority to schedule annual and spe-
cial meetings with the Committee and the Commit-
tee's representatives only meet prior to these sched-
uled meetings with Respondent. (4) Respondent
plays a substantial role in determining and oversee-
ing the Committee's internal election procedures.
(5) The most recent contract negotiations were not
characterized by arm's-length bargaining. Respond-
ent summarily accepted, rejected, or compromised
the Committee's requests, without further counter-
proposals. 12 (6) There is minimal evidence of griev-
ance handling by the Committee. (7) The Commit-
tee's representatives are paid their regular hourly
wages plus travel expenses for their participation in
all Committee functions. (8) Respondent provides
free temporary facilities and coffee for the Com-
mittee's pre-negotiation meetings. (9) Respondent
offered the Committee the services of its attorney
on November 30, 1979.13
On the basis of the foregoing, we find that Re-
spondent, since May 26, 1979, has provided assist-
ance and support to the Homemaker Shops Repre-
sentative Committee, and has dominated the admin-
istration of the Committee, in violation of Section
8(a)(2) and (1) of the Act."
2. The General Counsel has also excepted to the
Administrative Law Judge's failure to find three
separate violations of Section 8(a)(1) of the Act.
We find merit in these exceptions.
Employee and Committee Representative Brown
testified that in early January 1980 she made a per-
sonal call, unrelated to union business, on a compa-
ny telephone. Respondent's store manager, Chene,
stood approximately I to 1-1/2 feet away from her
during this call. According to Brown, when she
finished the call she turned and asked Chene
whether he was "baby-sitting her." Chene an-
swered that he had been instructed by Respond-
ent's president, Freeland, to find out to whom
Brown spoke on the telephone and to inform him
of all calls relating to Local 876. Brown testified
that she considered the matter a "kind of joke," but
that Chene was "very serious in what he was
saying." Chene, given an opportunity at the hear-
" See Kux Manufacturing Corporation, supra at 320, 323. See also Reed
Rolled Thread Die Ca, subsidiary of UTD Corporation, 179 NLRB 56, 63
(1969), enfd. in relevant part 432 F.2d 70 (Ist Cir. 1970). Cf. Newman-
Greemn Inc., 161 NLRB 1062, 1067 (1966), enfd. as modified 401 F.2d I
(7th Cir. 1968), in which the Board declined to find unlawful domination
where there was evidence of insistent bargaining by the labor organiza-
tion and successful processing of grievances.
We find no merit to Respondent's argument that the presence of favor-
able terms in the contract precludes a finding of unlawful domination or
assistance. See N.LR.B. v. Newport News Shipbuilding & Dry Dock Ca,
308 U.S. 241 (1939). See also Alta Bates Hospital, 226 NLRB 485, 491
(1976).
1" We do not find determinative that it was not clear from the offer
who would be paying for the attorney's services. See Duquesne University
of the Holy Ghost, 198 NLRB 891, 900 (1972).
" See Goulds PumpA Inc., supra
ing to deny the alleged conversation, instead testi-
fied that it was "very possible" the conversation
took place but did "not recall the exact wording."
We credit Brown's uncontroverted testimony and
find that Chene created the unlawful impression of
surveillance, in violation of Section 8(aXl) of the
Act. 's
We also find that Respondent's store manager,
Laughead, engaged in unlawful interrogation of
Gingrich, a Committee representative. Gingrich
testified that early in 1980 Laughead asked her if
she knew anything about the union activity and
from what store it might be coming. She replied to
Laughead that she had no idea and would not tell
him even if she knew. According to Gingrich,
Laughead's questions were casual and occurred on
the sales floor. Laughead denied the conversation.
The Administrative Law Judge did not explicitly
credit either witness but found that the conversa-
tion was "innocuous at best." From this, we con-
clude that he has implicitly credited Gingrich's tes-
timony that the conversation occurred.1" We dis-
agree with the Administrative Law Judge's charac-
terization of this conversation and find that Laugh-
ead unlawfully interrogated Gingrich in violation
of Section 8(a)(1) of the Act. t7
Finally, we find that Respondent's store man-
ager, Himes, engaged in unlawful interrogation of
employee and Committee Representative Kelly.
Kelly testified that Himes asked her on November
1, 1979, if she had met with any Local 876 repre-
sentatives that day and that she told him "yes."
She later overheard Himes relay her response to
Freeland on the telephone and asked Freeland if
there was anything he should ask Kelly. Kelly fur-
ther testified that Himes approached her later that
day and asked her what demands the employees
were going to make. She gave a vague reply, men-
tioning a possible wage increase and medical or
dental insurance. Himes corroborated Kelly's testi-
mony.
The General Counsel sought to further amend
the complaint at the hearing to include an allega-
tion of 8(a)(1) interrogation by Himes. The Admin-
istrative Law Judge initially struck the testimony
of the General Counsel's witness at the hearing but
permitted Respondent to present its witness and
litigate the issue, in case the Board chose to reverse
his denial of the motion, or denial of the motion of
his Decision. However, because this allegation was
" See, e.g., Sports Coach Corporation of America, 203 NLRB 145, 152
(1973).
"l We note that Respondent's brief in opposition to the General Coun-
sel's exceptions does not deny that the conversation took place but con-
tends that, as the Administrative Law Judge found, it was innocuous.
11 See, e.g., Isaacson-Carrico Manufacturing Company, 200 NLRB 788
(1972).
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully litigated and is closely related to other allega-
tions in the complaint we grant the motion to
amend and admit the disputed testimony into the
record. I Further, we find that Himes' conduct
constituted an unlawful interrogation in violation
of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Homemaker Shops, Inc., is
an employer within the meaning of Section 2(2) of
the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 876,
United Food and Commercial Workers Internation-
al Union, AFL-CIO-CLC, and Homemaker Shops
Representative Committee are both labor organiza-
tions within the meaning of Section 2(5) of the
Act.
3. By coercively interrogating employees about
union activities in order to discourage union mem-
bership and activities; and by the creation of the
impression of surveillance of union activities, Re-
spondent has interfered with, restrained, and co-
erced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and has
thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By dominating, assisting, supporting, and inter-
fering with the operation and administration of the
Homemaker Shops Representative Committee, Re-
spondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order Re-
spondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act.
Because Respondent has dominated, and inter-
fered with, the administration of the Party in Inter-
est, Homemaker Shops Representative Committee,
and has contributed support thereto, it will be rec-
ommended that Respondent be ordered to cease
and desist from such conduct and that it withdraw
recognition from and completely disestablish the
Committee as the representative of any of Re-
spondent's employees in Respondent's 16 stores in
Group I for the purposes of dealing with Respond-
" See, e.g., Aluender Daws. Inc d/b/a Alexander's Restaurant and
Launge, 228 NLRB 165, 165-166 (1977), enfd. 586 F.2d 1300 (9th Cir.
1978).
ent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other condi-
tions of work.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Homemaker Shops, Inc., Lathrup Village, Michi-
gan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees about
union activities.
(b) Creating the impression of surveillance of
union activities.
(c) Dominating, supporting, assisting, or interfer-
ing with the operation and administration of the
Homemaker Shops Representative Committee or
any other labor organization.
(d) Recognizing, or in any manner dealing with,
the Homemaker Shops Representative Committee,
or any reorganization or successor thereof, as the
representative of all full-time and regular part-time
selling and nonselling employees in Respondent's
16 Group I stores, which constitute the Group I
bargaining unit.
(e) Giving effect to or enforcing the collective-
bargaining agreement covering employees in the
Group I bargaining unit and executed on January
2, 1980, with the Homemaker Shops Representative
Committee, or to any renewal, extension, modifica-
tion, or supplement of said agreement; provided,
however, that nothing herein shall be construed to
require Respondent to vary or abandon any exist-
ing term or condition of employment.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Withdraw all recognition from the Home-
maker Shops Representative Committee as the rep-
resentative of its employees in the Group I bargain-
ing unit for the purpose of dealing with Home-
maker Shops, Inc., concerning grievances, labor
disputes, wages, rates of pay, hours of employment,
or other conditions of work and completely dises-
tablish the Homemaker Shops Representative Com-
mittee as such representative; provided, however,
that nothing in this Order shall require Respondent
to vary or abandon any wages, hours, or other sub-
stantive benefits as a result of discussions with the
Homemaker Shops Representative Committee, or
to prejudice the assertion by its employees of any
444
HOMEMAKER SHOPS
rights they derived as a result of such discussions;
and further provided that nothing herein shall be
construed as prohibiting its employees from form-
ing, joining, or assisting any labor organization.
(b) Post at its Group I stores in the State of
Michigan copies of the attached notice marked
"Appendix."' 9 Copies of said notice, on forms pro-
vided by the Regional Director for Region 7, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Repondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
to In the event that this Order is enforced by a Judgment of a United
states Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant 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 at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT interrogate our employees
coercively about their activities on behalf of
Local 876, United Food and Commercial
Workers International Union, AFL-CIO-
CLC, or any other labor organization.
WE WILL NOT give our employees the im-
pression that we are engaging in surveillance
of their union activities.
WE WILL NOT dominate, support, assist, or
otherwise interfere with the operation and ad-
ministration of the Homemaker Shops Repre-
sentative Committee or any other plant com-
mittee or labor organization of our employees.
WE WILL NOT recognize, or in any manner
deal with, the Homemaker Shops Representa-
tive Committee, or any reorganization or suc-
cessor thereof, as a representative of our em-
ployees employed in our Group I stores, for
the purpose of dealing with Homemaker
Shops, Inc., concerning grievances, labor dis-
putes, wages, rates of pay, hours of employ-
ment, or other conditions of work.
WE WILL NOT give effect to our January 2,
1980, collective-bargaining agreement with the
Homemaker Shops Representative Committee
with respect to employees employed in our
Group I stores or to any renewal, extension,
modification, or supplement thereof; provided,
however, that nothing herein shall be con-
strued to require that we vary or abandon any
existing term or condition of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed by Section 7
of the Act.
WE WILL withdraw all recognition from the
Homemaker Shops Representative Committee
as a representative of our employees employed
in our Group I stores for the purpose of deal-
ing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employ-
ment, or other conditions of work, and com-
pletely disestablish the Homemaker Shops
Representative Committee as such representa-
tive.
HOMEMAKER SHOPS, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge:
A hearing was held on September 2, 1980, in Detroit,
Michigan, on an amended complaint issued August 12,
1980, alleging violations of 8(aX1) and (2) of the National
Labor Relations Act, as amended, herein called the Act.
Respondent's answer denies any violation of the Act.
At issue is whether Respondent unlawfully has ren-
dered aid, assistance, and support to the Homemaker
Shops Representative Committee (hereafter called the
Committee) and whether Respondent engaged in unlaw-
ful interrogation and surveillance.
Upon the entire record,' including my observation of
witness demeanor, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The complaint alleges, the answer admits, and I find
that Respondent, engaged in the retail sale of curtains,
towels, sheets, and other goods, with annual sales in
excess of $500,000 and annual interstate purchases valued
in excess of $50,000, is an employer engaged in com-
merce within the meaning of the Act.
'Respondent's motion for correction of the transcript is granted. No
post-hearing brief was filed by counsel for the General Counsel.
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II1. LABOR ORGANIZATIONS INVOLVED
Both the Committee and the Retail Store Employees
Union, Local 876, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unlawful Assistance and Support of the
Committee
The Committee, certified by the Board on October 28,
1976, following an election, is the bargaining representa-
tive for sales and nonsales personnel at Respondent's 32
retail stores in 6 States. Three bargaining units have been
established: Group I, the subject of this proceeding,
covers 16 stores; Groups II and III cover 8 stores each.
On November 2, 1979, Local 876 filed a representation
petition covering only 9 of the 16 stores in Group I. Its
charge was filed on November 26, 1979. While this pro-
ceeding, of course, concerns only the alleged unfair labor
practices, it is noteworthy that counsel for the General
Counsel seeks to restrain Respondent's recognition of the
Committee only insofar as these nine stores are con-
cerned. If relief is granted, the dominated Committee
would continue to function as a labor organization at all
other stores.
The Committee is an unincorporated entity, with no
charter, constitution, bylaws, or other governing rules. It
has no regular officers or dues structure and conducts no
general membership meetings.
There is no evidence of Respondent's involvement in
its formation. The Committee was not recognized and
there was no rival union claim at the time. The Commit-
tee functions through a committee comprised of one rep-
resentative from each store, elected annually in accord-
ance with a bargained-for provision of the contract. The
representatives gather for the first time immediately prior
to the regular annual or special meetings called by man-
agement and select spokespersons to meet with Respond-
ent. Representatives are provided with coffee and tempo-
rary basement facilities for their preliminary meeting
and, in accordance with the labor agreement, are reim-
bursed by Respondent for travel expenses and are paid
their regular hourly wages while in attendance. There is
no management attendance at these meetings. Elections
for store representatives are scheduled, and blank ballots
are provided, by Respondent, but there is no evidence of
employer interference in the selection of representatives.
Ballot boxes often are kept on or near the store manag-
er's desk and ballots are counted by employees in con-
junction with the manager who announces the results.
Regular or special meetings are scheduled and re-
scheduled by Respondent. Regular meetings, usually held
in the fall of each year, serve two purposes: to discuss
new merchandise and company sales policy and to nego-
tiate terms and conditions of employment. Two special
meetings have been called since the Committee was cer-
tified: one, in October 1976, to discuss the Committee's
initial contract demands; the other, on November 30,
1979, to discuss the effect of Local 876's petition. Min-
utes of the meetings are prepared, but no evidence was
offered as to authorship.
The uncontroverted evidence clearly reflects a pattern
of arm's-length bargaining with not ineffective results.
Two 3-year contracts have been executed since 1977.
The current contract, dated January 2, 1980, expires Jan-
uary 2, 1983. The contract, in usual form, contains a
number of provisions noteworthy here: for the annual
election of store representatives by secret ballot; for es-
tablishing the composition of the negotiating committee;
for attendance without loss of pay at negotiating meet-
ings and grievance meetings and for reimbursement of
related costs; and for a four-step grievance-arbitration
procedure under which the elected store representative
has a participating role.
Negotiations for the current contract, described by
Committee Spokesperson Harris, consisted of a discus-
sion of demands presented by the three-member negotiat-
ing committee. A number of its demands (increased in-
surance benefits, dental insurance, cost-of-living provi-
sion, wage increase, and funeral leave) were met; others
were compromised; and some rejected by Respondent.
There is no evidence that Respondent dictated the
contract terms or declined to discuss Committee propos-
als.
At the November 30, 1979, special meeting called by
Respondent and attended by its attorney to discuss with
Group I store representatives the filing of the charge and
petition and whether Respondent could bargain with the
nine stores of Group I over a new contract, the store
representatives were advised that they could call Re-
spondent's attorney if they had questions; that they had a
right to retain their own attorney; and that Respondent's
attorney would represent them if they so desired. There
was no request, promise, or suggestion that Respondent
would pay for the services of any attorney retained by
the employees' Committee.
There is no evidence of domination, actual or poten-
tial, of any Committee function and, indeed, the com-
plaint does not allege and counsel for the General Coun-
sel does not contend that the Committee is the victim of
employer domination.
Thus, the question presented is whether employer as-
sistance and support in the form of coffee for Committee
representatives once or twice a year, temporary base-
ment office facilities several hours a year, pay and travel
expenses for attendance of infrequent meetings, and prep-
aration of ballots are violative of Section 8(aX1) and (2)
of the Act and require withdrawal by Respondent of its
recognition of the Committee as the exclusive bargaining
representative of those employees at 9 of the 16 stores in
bargaining Group I.
The Act does not prohibit all forms of employer assist-
ance. Indeed, many today recognize the need for innova-
tive and broader forms of labor-management cooperation
and assistance. With increasing frequency-and with no
fear of an impairment of Section 7 responsibilities-union
negotiating demands include pay for grievance handling,
permanent meeting rooms for conduct of union business,
continued seniority for employees elected to salaried
union positions, equity ownership of the business, and
participation in traditional boardroom decisions.
446
HOMEMAKER SHOPS
Whether employer assistance is violative of the Act
depends, of course, not on the nature of the assistance,
but rather on its effect on the employees' retention of
their freedom of choice and the representative's ability to
maintain its independence in dealing with the employer.
One particular form of assistance to a weak, unaffiliated
representative may unlawfully alter the balance, while
the same form of assistance to a strong organization may
not. It is for this reason that the decision necessarily is an
ad hoc one, resting on a consideration of the record as a
whole.
I conclude that the assistance rendered by Respondent,
under all the circumstances present here, is not unlawful
for the reason that the employees' paramount rights
under the Act of freedom of choice and independence in
dealing with Respondent are neither undermined nor
threatened.
Without question, the Committee lacks the organiza-
tion and trappings of the typical labor union. Indeed, it
has no organization at all and functions only on an as-
needed basis. But because it lacks the organizational bu-
reaucracy, there apparently is no need for the imposition
of dues and other membership assessments. Its bargaining
methods, however rudimentary they may be, have not
been ineffective. Through bargaining, its members enjoy
such benefits as dental insurance, rarely found in the
typical labor agreement.
Whatever may be the modus operandi of the Commit-
tee, this can be said: It was conceived and selected solely
by the employees, its representatives are freely chosen
solely by the employees, its contract demands are framed
and advanced solely by its representatives, and in its sub-
stantive activities it acts entirely independent of Re-
spondent.
The Board decision finding employer domination in
Kux Manufacturing Corporation, etc., 233 NLRB 317
(1977), enforcement denied in relevant part 614 F.2d 556
(5th Cir. 1980), principally relied on by the Charging
Party, is inapposite if for no reason other than the fact
that the committee there was established and controlled
by the employer. In this case, there is no evidence of
such employer involvement.
Paragraph 12 of the amended complaint is dismissed.
B. The Chene Surveillance
Store Representative Brown testified that, in early Jan-
uary 1980, she was using a company telephone for a per-
sonal call, without having first obtained the required per-
mission. Her back was to Store Manager Chene who was
standing on the other side of the sales counter, about 1 to
1-1/2 feet away. Brown is certain that Chene overheard
the conversation which was not related to union activity.
When she completed her conversation with her husband,
she turned and asked Chene whether he was "baby-sit-
ting her." According to Brown, Chene said he had been
told by Company President Freedland that, whenever
Brown was on the telephone, to find out with whom she
was speaking and about what and to inform him of all
calls relating to Local 876. Brown considered the matter
"kind of a joke," but Chene, she testified, was "very seri-
ous in what he was saying."
Chene testified it was "very possible" the conversation
took place, but he did "not recall the exact wording."
No violation is established, even crediting the testimo-
ny of Brown. Local 876's petition was filed on Novem-
ber 2, 1979, 2 months prior to this incident. No other
similar incidents were testified to at this or any other
store. Brown was not identified as an adherent of Local
876. This isolated incident in a multistore bargaining unit
during a 10-month period between date of filing and date
of hearing does not rise to the level of unlawful activity.
Kux Manufacturing Corp., supra, 233 NLRB at 322.
Paragraph 1 (b) of the amended complaint similarly is
dismissed.
C. The Laughead Interrogation
Early in 1980, according to the testimony of Store
Representative Gingrich, Store Manager Laughead asked
her if she knew anything about union activity and from
what store it might be coming. She testified that the con-
versation occurred on the sales floor, that it was just a
casual remark, and that she replied she had no idea and
would not tell him even if she knew.
Laughead testified that no such conversation occurred.
No unlawful interrogation is established. The interro-
gation was casual and, considered both objectively and
subjectively, was not coercive or intimidating. Indeed, it
was innocuous at best. Again, under the circumstances of
the case, this isolated question does not rise to the level
of unlawful employer activity under the Act.
Paragraph I1(a) of the amended complaint is dis-
missed.
[Recommended Order for dismissal omitted from pub-
lication.]
447