Macy, R. H., & Co., Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1983

267 N.L.R.B. 177 (N.L.R.B. 1983)

R. H. MACY & CO.
R. H. Macy & Co., Inc. and Anthony A. Patti and
Local 1-S, Department Store Workers' Union,
Retail, Wholesale, Department Store Union,
AFL-CIO. Cases 29-CA-7399, 29-CA-7676,
and 29-CA-7664
16 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 30 November 1981 Administrative Law
Judge Julius Cohn issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed an answering brief to Respondent's excep-
tions, and the Charging Parties filed an answering
brief, cross-exceptions, and a brief in support of
cross-exceptions. Respondent filed a brief in answer
to the Charging Parties' cross-exceptions.
Subsequently, on 8 June 1982, the Board issued
an Order Remanding Proceeding to the Adminis-
trative Law Judge for the purpose of reopening the
record to permit Charging Party Anthony A. Patti
to cross-examine Supervisor Joel Steinberg, and for
any further proceedings that might be required as a
result of that cross-examination. On 8 November
1982 Administrative Law Judge Cohn issued the
attached Supplemental Decision reaffirming the
findings and conclusions made in his original Deci-
sion relating to the allegations concerning the unsa-
tisfactory review of Patti and the failure to give
him a pay increase in 1979. No exceptions to the
Supplemental Decision were filed.
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 and to adopt his recommended Order.
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings.
In the absence of exceptions thereto. we adopt, pro forma. the Adminis-
trative Law Judge's dismissal of the complaint allegation relating to inter-
rogation of employees by Supervisor Mary Gillespie.
Member Hunter agrees with the Administrative Lass Judge's dismissal
of the allegation but, in doing so, finds it unnecessary to pass on the Ad-
ministrative Law Judge's observation that "there can be no interrogation
without a question" In addition, in light of the record as a whole,
Member Hunter is not persuaded that the General Counsel has met his
burden with respect to the allegation of unlawful surveillance over em-
267 NLRB No. 34
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, R. H. Macy &
Co., Inc., Roosevelt Field, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
ployee activities Accordingly. he swould dismiss this complaint allega-
tion. Cf Comar Glass Co.. 244 NLRB 379 (1979).
DECISION
STATEMENT 01: THE CASE
JULIUS COHN, Administrative Law Judge: This case
was tried at Brooklyn and New York, New York, on
October 30 and 31, 1980, and January 29 and 30 and
April 20, 1981. Upon a charge filed on August 9, 1979, in
Case 29-CA-7399, the Regional Director for Region 29
issued a complaint on October 17, 1979, alleging that R.
H. Macy & Co., Inc.. herein called Respondent or
Macy's, engaged in certain conduct in violation of Sec-
tion 8(a)(1) of the Act, and also violated Section 8(a)(3)
of the Act by issuing an unduly critical job appraisal to
Janet LaVia and giving her a smaller pay increase be-
cause of her activity on behalf of Local l-S, Department
Store Workers' Union, Retail, Wholesale, Department
Store Union, AFL-CIO, herein called the Union. There-
after, upon charges filed by the Union in Case 29-CA-
7664 on December 26, 1979, and by Anthony Patti in
Case 29-CA-7676 on January 2, 1980, the Regional Di-
rector issued a consolidated complaint on February 15,
1980, alleging additional violations of Section 8(a)(1) by
Respondent, and of Section 8(a)(3) by issuing an unduly
critical appraisal of Anthony Patti and refusing to give
him a pay increase. By order dated April 3, 1980, the
Regional Director futher consolidated all of these cases
for hearing. Respondent filed answers denying generally
the commission of the unfair labor practices alleged in
the complaint.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
were submitted by the Charging Parties and Respondent
which have been carefully considered. Upon the entire
record in this case and from my observation of the wit-
nesses and their demeanor. I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has main-
tained a principal office and place of business in the Bor-
ough of Manhattan and City and State of New York
where it is engaged in the operation of retail department
stores. It also operates such stores at various other loca-
tions in the States of New York. New Jersey. and Con-
177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necticut, including a department store located at Roose-
velt Field, Long Island, New York, which is the facility
involved in this proceeding. During the year preceeding
issuance of the complaint herein, Respondent derived
from its retail business gross revenues in excess of
$500,000 and, during the same period, it purchased and
caused to be delivered to its stores in the State of New
York goods, merchandise, and other supplies valued in
excess of $50,000 directly from firms located outside the
State of New York. The complaint alleges, Respondent
admits, and I find that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. THE I.ABOR ORGANIZATION INVOI.VED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALIL.EGEI) UNFAIR l.ABOR PRACTICES
A. Background
The Union had been engaged in a recent organization-
al campaign at Respondent's Roosevelt Field location
since October 1978. Pursuant to a representation petition
filed in the spring of 1979, an election was conducted in
June 1979 among the employees employed at Respond-
ent's auto facility at the Field. This election resulted in a
loss for the Union. In the summer of 1979, a committee
was established for the purpose of organizing the store
employees. Among the committee members were Antho-
ny Patti and Janet LaVia, the two alleged discriminatees
involved in this proceeding. In September and October
the Union engaged in a campaign of distribution of leaf-
lets at the store entrances, in the mall, and in the parking
area. In addition, letters were sent to the employees, the
union newspaper was distributed, the leafletting was di-
rected both to employees and to consumers, and occa-
sional meetings were held. As committee members, Patti
and LaVia were involved in all of these activities, and, in
any case, their activity was well known to their supervi-
sors and Respondent's management, a point conceded in
this case. The allegations involved in the complaint refer
to matters or incidents occurring during the period of
February through December 1979.
B. The Alleged Violations of Section 8(a)(1)
1. Threats of discharge
Janet LaVia, an employee for 17 years in the jewelry
department, testified that at some point in early 1979,
probably February, March, or April, her supervisor,
Sales Manager Russell Hagner, approached her and told
her confidentially she should stay away from the Union,
they did not want the Union in the store, and she should
be very careful. Nothing else was said at the time and
Hagner denies saying these things at any time.
However, Hagner testified that he did call LaVia to
his office one morning after he had been informed the
previous evening by two employees that LaVia had ap-
proached them, asked that they sign union cards, and
also described some of the benefits of the Union. Hagner
advised LaVia of this and said he wanted to tell her the
company policy regarding solicitation. Hagner told
LaVia she was not allowed to solicit on company time
although what she did on her own time was her own
business. Hagner stated that LaVia replied she did not
know what he was talking about and he said he just
wanted to let her know what the company policy was
and make sure she understood it. She said that she did
understand.
No contention is made by the Genral Counsel con-
cerning the conversation described by Hagner in which
he explained the Company's policy concerning solicita-
tion. The allegation is simply with regard to the so-called
confidential conversation as described by LaVia and
denied by Hagner. I find nothing in Hagner's demeanor
to warrant doubting his credibility in this matter and, as
LaVia's allegation is not corroborated in any other
manner, I find that the General Counsel has not estab-
lished by a preponderance of the proof that Respondent
violated the Act as alleged. As no evidence was adduced
concerning a further allegation that Respondent, by
Hagner, threatened employees with discharge in July
1979, 1 shall therefore dismiss the allegations in the com-
plaint concerning threats of discharge by Hagner. I
The complaint alleges further that Respodent violated
Section 8(a)(1) by the conduct of Lorraine Smith, a su-
pervisor, in threatening employees with discharge. At
the hearing I granted a motion to dismiss that allegation
for lack of evidence and herein reaffirm my ruling.
Finally, it is alleged that Respondent violated Section
8(a)(l) by threatening and warning employee Anthony
Patti because he posted a union notice on a bulletin
board. This will be better discussed hereafter in connec-
tion with the complaint allegation concerning employees'
use of bulletin boards.
2. The allegations of surveillance
The General Counsel has alleged several instances of
surveillance of employees' activities by security guards
employed by Respondent. Paul Genovese, an employee,
testified that in August 1979 he and another employee,
Shirley Williams, were followed by a security man
named Joe while going to lunch at Lorry's in the mall.
Genovese said that Joe went to the doorway of the res-
taurant, looked in, and walked away. Genovese said that,
at the end of the day after clocking out, he and Williams
were walking to the parking lot and noticed Joe follow-
ing them through the mall and into the parking lot. Gen-
ovese said that, after he got into his car, he noticed Joe
walking back towards the mall. Williams did not testify
specifically about the lunch portion of this incident, but
did state that a security man, named Joe, followed her
and Genovese to the parking lot and she heard Joe re-
porting that she was getting into her car and leaving the
lot. The security person referred to, Joe, did not testify
at the hearing. The only witness for Respondent on these
matters of surveillance was the head of security, La-
Rocca, who did not testify specifically about this inci-
The General Counsel did not challenge the validity of the no-solicita-
tion rule of Respondent, nor did LaVia, or any other witness on behalf of
the General Counsel or the Union, testify cIncerning the conversation
Hagner described with LaVia
178
R. H. MACY & CO.
dent but did state that he had never directed any security
people to engage in this type of surveillance. I find Wil-
liams, in particular, and Genovese, to be credible wit-
nesses and, while their testimony concerning this incident
was not exactly the same in detail, the substanitally cor-
roborated one another I do not find that the fact Geno-
vese did not refer to Joe reporting back on their move-
ments in his testimony makes their testimony so incon-
sistent as to be incredible. As it is conceded that Geno-
vese and Williams were members of the Union's organiz-
ing committee and were active on its behalf, information
well known to Respondent, I find that, by following
these two employees to the parking lot and their cars,
the security agent, Joe, engaged in an act of surveillance
of their activities and thereby Respondent violated Sec-
tion 8(a)(l) of the Act.2
The principal allegation of surveillance by the General
Counsel relates to a lunch at Lorry's, a nearby restaurant
on the mall, which was attended by Genovese, LaVia,
Williams, Patti, and Sussman, the union organizer. This
luncheon which occurred in mid-1979 was observed by a
number of security guards of Respondent, according to
testimony of witnesses for the General Counsel. Howev-
er, despite the fact that I do not place great weight upon
the exactitude of dates, particularly where they are not
significant, nor on the correct number of people attend-
ing a certain incident, I find the various versions of this
alleged occurrence are so wide apart that I must con-
clude the General Counsel has failed to prove by a pre-
ponderance of the evidence that unlawful surveillance
was conducted as alleged.
Thus, Genovese testified that in August he and Shirley
Williams were followed by a security man named Joe on
their way to lunch at Lorry's. Genovese said this secu-
rity man came to the doorway of the restaurant, looked
inside, and left. Williams testified to a luncheon also in
August when she was with Sussman, LaVia, Patti, and
Richard Moore, an organizer for the Union. She stated
that she was followed by LaRocca, head of security,
who was joined by a security woman, Jean, and a man
named Bob, and that they just walked through the lun-
cheonette and acted as though they were looking for
somebody. LaVia testified she and the other employees,
called the core group, were followed on many occasions.
She said this occurred during the spring of 1979 and in-
cluded herself, Genovese, Patti, and Williams. Presum-
ably referring to the incident in question, she said they
were followed on their way to lunch at Lum's, a restau-
rant in the mall. LaVia stated that four members of the
security department, including LaRocca, observed them
going down the mall from Macy's to Lum's, which is
about the distance of a city block, for lunch. Patti testi-
fied to an incident occurring about July 13 in which he
went to lunch at Lorry's with Shirley Williams and
2 find no merit to Respondent's contention that, assuming Joe had
indeed engaged in this conduct, he was not acting as an agent of Re-
spondent because he had not been instructed or authorized to observe
Williams and Genovese. There is no denial by Respondent that Joe was a
security employee. The activity in which he engaged was within the
scope of a security employee's employment, and, even if he were not spe-
cifically ordered to do so. Respondent is responsible for his conduct.
Moreover, Joe did not testify and I do not credit LaRocca's blanket
denial in the absence of specific factual testimony as to this incident.
others from the core group. He said he looked out the
door and saw Jean Reo, a security person, looking into
the restaurant. He stated that, when they were finished
with their lunch and went out, he saw LaRocca and his
supervisor, Joel Steinberg, standing there. He said he
heard LaRocca say, "Oh, there he is."
It is not clear whether the testimony of these four em-
ployees regarding a luncheon alleged to be kept under
surveillance by Respondent refers to one or more inci-
dents. If the General Counsel had in mind a particular
single luncheon engagement as illustrative of the conduct
of Respondent in this regard, then it appears there is a
disparity among the witnesses with respect to time, place
(LaVia testified that it occurred at Lum's and did not
mention Lorry's), and the identity of the employees who
were in attendance, as well as the security guards who
are alleged to have observed them. While, as noted, four
witnesses to an occurrence will frequently describe it
with some variations, it is expected that their testimony
be substantially the same with respect to the principal al-
legations. In this instance the testimony is quite far apart
as to the items described above. On the other hand, if the
combined testimony of these witnesses refer not to one
but to more than one occasion, then none of them cor-
roborated one another although they had an opportunity
in their testimony to do so. Such a presentation has not
been made and, accordingly, I shall dismiss the com-
plaint allegation of surveillance insofar as it refers to ob-
servation of employees during lunch breaks.
Patti testified concerning another incident alleged by
the General Counsel to be illegal surveillance. He said
that on June 22, 1979, he met Sussman, the union orga-
nizer, outside the store at lunchtime. Patti said Sussman
was handing out material to employees and Jean Reo, a
security person, was standing there watching him. Suss-
man suggested they move to a more private place and as
Patti went along he noticed Reo picking up her bag and
speaking into it. They went about 100 feet from Re-
spondent's entrance, still inside the mall, and sat down
on a bench. He observed Reo and two other security
people sitting about 50 feet away at a table belonging to
Lum's Restaurant. Patti stated that the security people
just sat there with their arms folded looking straight at
him and Sussman, and were not themselves ordering any
food. He and Sussman remained until 5 minutes before
the end of his lunch hour, when he got up and returned
to the store. Neither Reo nor any other security employ-
ee testified concerning this incident. Assuming the truth
of Patti's testimony, I find no merit to the General Coun-
sel's allegation of unlawful surveillance. The Board has
held that inspection by Respondent of open union activi-
ty in front of its property does not constitute surveil-
lance.3 In this instance Patti has described talking to a
union organizer in an open public area such as the mall
in which Respondent's store is located. Accordingly, I
shall dismiss this allegation of surveillance.
3 See ITT Automotive Electrical Products Division, 231 NLRB 878
(1977).
179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged impression of surveillance
Shirley Williams testified that in April 1979 she signed
a union card and mailed it, and immediately thereafter
began distributing union leaflets outside the employees'
entrance to the store. She also stated she generally spoke
to the union organizers outside the store before it
opened. One morning in April after she had just come
into work, her supervisor, Val Ferreira, told her that
Blond, store manager, wanted her to make sure she told
Ferreira of her whereabouts at all times. Williams testi-
fied that the policy of the store had been for a salesper-
son working at a counter to tell whoever else was there
or available in the area that she was going to the ladies
room or whatever, just so long as they knew where an
employee was and there was coverage on the counter.
Williams further testified she demanded that Ferreira tell
other employees the same thing or else she would com-
plain to personnel. After that Ferreira also spoke to
Dorothy Manfry, a coworker. Ferreira testified that
Store Manager Blond visited the department one day in
April, and, being a stickler for customer service and
making certain that the counters were manned, asked
him where Williams was. He then remonstrated with
Ferreira telling him he was to know at all times the
whereabouts of his people. Ferreira said he then told
Williams that Blond wanted him to know where his
people were all the time. Ferreira finally stated he told
the same to Manfry right after speaking to Williams, and
during the course of the day spoke to the rest of his
people, delivering the same message to them.
The accounts by both Williams and Ferreira of this
transaction are not dissimilar, but I shall assume the ver-
sion of Williams, and find that, whatever else may be
gleaned from it, it is not an unlawful impression of sur-
veillance, the only contention urged by the General
Counsel. Basically, there is nothing in this conversation
which refers to the employees' union activities or how
Respondent knew of them. Even if we were to infer Fer-
reira's direction to Williams that she advise him of her
whereabouts resulted from Respondent's knowledge of
her union activities, the Board has held that "generalized
statements to employees, which are not directed at any
employee's organizing activities, are insufficient to create
the impression of surveillance," and, further, particularly
if such remarks are "based on public observations which
are not themselves unlawful." 4
4. The allegation of unlawful interrogation
Shirley Williams testified that, one day in August after
she had been leafletting and while she was working,
Mary Gillespie came to her counter, mentioned she had
seen Williams leafletting outside, and told her if there
was anything she was dissatisfied about or anything she
wanted to know about the Union to feel free to come
back and talk to her about it. Williams replied that it was
not necessary. Gillespie, who at the time had been sales
manager in cosmetics, said concerning this conversation
that she had gone to the counter and told Williams she
was available and, if she had any question concerning the
4 Palby Lingerie, 252 NLRB 176 (1980), Iledison .Mfg. Co., 249 NL RB
791 (1980).
Union, she would be more than glad to answer and, if
she did not know the answer, she would find out.
Respondent's contention that there can be no interro-
gation without a question is well taken. Williams' activity
with respect to leafletting was out in the open and public
knowledge, and, in any case, Gillespie merely told Wil-
liams that she was free to talk about anything with her
about it. I find in the circumstances that the General
Counsel has not established any interrogation, unlawful
or otherwise, and therefore shall dismiss that allegation
contained in the complaint.
5. The alleged discriminatory use of the company
bulletin boards
Lorraine Smith, personnel manager, testified there
were six bulletin boards in the store, three in the time-
clock area, one in the women's lounge, one in the men's
lounge, and one in personnel. She stated there had been,
at least until December 1980, an unwritten policy that
employees were not permitted to post material on the
bulletin boards. She said that, while there was no writ-
ing, the policy had been communicated to employees
and, if one asked to put something on a board, they were
told the boards were restricted for company business.
Moreover, if a notice was posted without permission, it
was removed by the personnel department. Smith
averred that the boards were utilized to communicate
with employees, and to that effect legal documents deal-
ing with minimum wage requirements were posted, as
were training information, employee benefit changes, and
notices of company-sponsored activities. In addition,
Smith said the boards were utilized for posting of cards
and notes sent by employees which Macy's wished to
publicize-cards relating to retirement, illness, hospital-
ization, and death in the family. However, Smith stated,
employees who asked to place notices of union meetings,
or those of churches or political clubs, would not be per-
mitted to do so, nor would she permit them to place no-
tices of a social party or sale of an automobile. Indeed,
this was the manner in which the rule was communicat-
ed to the employees; that is, when they asked and were
refused permission. Finally, Smith pointed out that any
of these unauthorized types of notices, including union
and other types of meetings and sales of cars, were taken
down immediately after she or any other member of the
personnel department became aware of the posting of
such notices. And, of course, when an employee specifi-
cally requested her for permission to post such a notice,
it was refused.
Employee witnesses testified to somewhat different
effect. For example, Paul Genovese stated he knew of no
company policy restricting the use or prohibiting the use
of a bulletin board. He said he would see a variety of
things, including notifications of different group meet-
ings, employees' notices trying to sell an automobile, or
even a home, or thank you letters from someone who
was sick. He said he himself never put anything on the
bulletin board nor did he take anything down from one.
However, he did recall seeing, in the summer of 1979, a
Mr. Chiel (a supervisor) taking down a union pamphlet
from the bulletin board in the men's lounge.
180
R. H. MACY & CO.
Janet LaVia said she had not heard of any company
policy relating to the use of bulletin boards, and they
were full of personal things like get well cards, parties,
farewell dinners, and advertisements for buying and sell-
ing. Also she noted that before September 1979 she did
see a union notice on the board.
Anthony Patti testified that, at the bulletin board near
the timeclock where Macy's posted official messages and
government bulletins, a portion of the board was occu-
pied with employees' notices to attend meetings or so-
cials of clubs outside of the store. He said there were
also thank you cards and notices trying to sell things of
people needing rides or renting houses and the like. He
said this had been going on for 24 years. Patti said there
was another bulletin board in the men's lounge that con-
tained announcements for concerts, selling cars, church
affairs, and so on. Patti stated that at one time he placed
a union leaflet on a bulletin board in the men's lounge.
This was in December 1979, and on December 6 he also
put up a notice, which he himself had written on a piece
of paper, announcing a meeting at the Holiday Inn in
Westbury, signing his name to it. Shortly after he had
done so, while going past the door to the lounge he saw
Scher and Chiel walking out with a piece of paper about
the size of his notice. He then looked for it and was told
by some people on a break that the notice was taken off
by them. Patti went after them and told Scher, who was
holding the notice, that it was his and he wanted it back
on the bulletin board, and that he was entitled according
to law to put in on the board. Scher told him he did not
know if he was entitled to it but he would check into it.
The notice expressly mentioned that it was for a union
meeting.
Patti said the next day he put up the leaflet referred to
above and, as he was doing so, Joel Steinberg, his super-
visor, saw him and told him not to put it up as he was
getting a lot of flak about him (Patti) and his union activ-
ities. Steinberg said he was putting him on warning for
this. Patti replied that this was America and he was enti-
tled by law to put union literature on the bulletin boards,
so he proceeded to do it. However, Patti stated he went
back and took it down because he did not want to be ac-
cused of disobeying a direct order. The next day Patti
asked Steinberg whether there was a new warning for
him. Steinberg replied that he learned from Scher the
bulletin board was not the property of the employees but
of Macy's, and that Patti could not put anything on it.
Steinberg denied to Patti that he had placed him on
warning. Patti stated that thereafter he did not put any-
thing on the bulletin board, and that, while other people
did put up union notices, they were removed very quick-
ly and people stopped putting them up. Patti, as did the
other employees, testified he was not aware of any pro-
hibition about the use of the bulletin boards.
Shirley Williams testified that on May 10, 1979, she
posted a notice on the bulletin board advertising her
1974 Chevrolet for sale for $2,400, leaving her name and
extension number on the paper. She stated this notice re-
mained on the bulletin baord for 10 days before she sold
the car to a woman in security and then she personally
took down the notice. She specified that her notice was
posted on the bulletin board alongside the timecards and,
at the time, there were other notices on the board con-
cerning such matters as apartments for rent, kittens for
adoption, a boat for sale, and the like. Williams stated
that, during the time her automobile notice was posted,
no one had told her about a company policy against such
practice or that an employee had to go through person-
nel before posting. Williams also said that, after her expe-
rience with the car notice, she had posted two or three
union notices on the bulletin board but observed they
were gone within 15 minutes after she had posted them.
I found Williams, who is no longer employed by Re-
spondent, to be a direct and forthright witness and I
credit her testimony.
Clearly an employer need not grant employees the
right to post notices or use company bulletin board with
regard to their attempts to organize a union or any other
union activities. 5 Respondent has stated it had a long-es-
tablished policy prohibiting employees from using its bul-
letin boards for any other purpose. Although Respondent
has written rules and regulations, it concedes that the
bulletin board policy was unwritten. Indeed, employee
witnesses testified they were unaware of any such policy.
However, assuming such policy in fact existed, we are
then faced with the issue as to whether the rule has been
discriminatorily applied. The facts related above with re-
spect to the use of the bulletin boards do not reflect any
great dispute. Respondent has not set forth any evidence
to deny that union notices posted in December 1979 by
Patti were not removed by its Supervisors Scher and
Chiel. Employee witnesses have testified to a variety of
nonemployer or nonbusiness-related notices appearing on
the bulletin boards. Smith, the principal witness for Re-
spondent in this matter, concedes that such notices may
have been posted without permission, but merely stated
they were removed by her or her assistants as soon as
they became aware of their existence. The credited testi-
mony of Williams shows that a notice for the sale of her
automobile was posted for a period of 10 days before she
herself removed it, having sold the vehicle. The fact that
her notice gave her store telephone extension number, in
itself a violation of a written rule, is not probative of the
fact that her notice could not have been posted, and re-
mained for a period of 10 days, as urged by Respondent.
On the other hand, Respondent has not submitted evi-
dence from Scher and Chiel to deny Patti's testimony
that his posted notice concerning a union meeting was
removed very shortly, within a matter of minutes, after
he posted it. In such circumstances, I find that, by treat-
ing the posting of the union notice of a meeting different
from other types of material posted on the bulletin
board, and therefore discriminatorily, Respondent violat-
ed Section 8(a)(l) of the Act. 6
There remains for consideration on this issue of bulle-
tin boards whether Respondent violated the Act by
threatening Patti for attempting to use the bulletin boards
to post union leaflets in December. In his testimony, Joel
Steinberg, the visual merchandise manager of the store
and Patti's supervisor, denied he had put Patti on warn-
ing for posting union material without permission, and
5 Norrh Kingstown .'ursing Care Center, 244 NLRB 54, 65 (1979).
6 Continental Kitchen Corp.. 246 NLR B 611 (1979).
181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also denied he told Patti he was getting flak because of
Patti's union activity. In view of the fact that Patti was
already on warning as a result of Steinberg's evaluation
of him the previous October 1, I would be inclined to
credit Steinberg's denial that he discussed a warning
with Patti. However, Steinberg did state he had dis-
cussed Patti's rights and told him he had no authority to
put leaflets on bulletin boards which are Macy's proper-
ty, and, further, the next morning he told Patti in his
office if he did it again he would turn him over to higher
authority. Interestingly, Steinberg testified he was not
aware of any company policy that restricted the use of
the bulletin boards and prior to December 1979 he had
personally observed notices of items for sale or an-
nouncements of one kind or another on bulletin boards in
the store. Since the restrictive bulletin board policy, if it
did exist, was discriminatorily applied, I find that Stein-
berg's telling Patti he would refer him to higher authori-
ty in the event he posted a union notice on the bulletin
board constituted a threat of discipline and thereby Re-
spondent further violated Section 8(a)(1) of the Act.
C. The Alleged Violations of Section 8(a)(3)
1. Janet LaVia
It is alleged that, because of her union activities,
LaVia was given a job review evaluation in 1979 con-
taining one marginal rating causing her annual salary in-
crease to be set at a figure less than the average increase
received by selling employees in that year. LaVia had
been employed for 17 years as a salesperson in the jewel-
ry department of the store, and is still so employed. Her
union activity has been previously noted and, in view of
her membership on the union negotiating committee,
having in that capacity signed letters and leaflets which
were distributed to employees, and other activities, there
is no question that Respondent knew her to be a union
adherent.
LaVia received her review and an $8-per-week in-
crease in June 1979. LaVia said that in February of that
year she had asked Hagner, her supervisor, what kind of
review she was going to get and if the money was good.
He told her not to worry, it was an excellent review and
a good raise. Although her review was due in April it
was held up for several months because she was told that
the supervisors were very busy. She had approached
Hagner often asking where it was, and the last time she
spoke to him he said he had to rewrite the review.
LaVia said she received the review in July (actually it
was June); it was unfavorable and set forth that she was
bossy, influenced coworkers, slammed drawers, and re-
fused to flex. LaVia said Hagner told her he had been
directed by personnel to rewrite it. LaVia accused
Hagner of signaling her out because of her union activi-
ty.
Hagner testified he first reviewed LaVia in May 1978
after he had been on his job only a short time. The pre-
vious manager had prepared a review for LaVia which
was marginal, containing no raise. He spoke to LaVia,
who told him she did not have a good relationship with
the previous manager, and he asked whether she would
have a good attitude if he gave her a good review.
LaVia agreed and he prepared a good review with a
raise of $14 after consulting with the job review man-
ager, Roggeman. Hagner stated he did speak to LaVia in
March 1979 concerning her review but only told her
they would sit down and talk after he prepared it. He
said she told him she hoped the review would be a good
one because she had worked hard. Hagner denied telling
LaVia that the review would be excellent and she would
receive a good raise. Hagner said he spoke with her
again after Mother's Day in 1979 and told her he was re-
writing it because Smith was challenging him on various
aspects of the review and he was changing it. According
to both Hagner and Smith, the review was being rewrit-
ten because he had two marginal ratings in it with re-
spect to nonselling duties and lack of cooperation. Smith
had challenged him on the nonselling duties aspect of it
and he could not substantiate his reasons for rating her
marginal in that category, so they decided that the rating
should be "good" instead of "marginal." Thus, the
review was left with one marginal rating rather than
two, and for that reason he had to rewrite it. This 1979
review, which is in evidence, contains a marginal rating
in the classification of cooperation which includes ac-
cepting direction, accepting constructive criticism, flexi-
bility, ability to work with coworkers, and courtesy and
tact with all employees.
Hagner met with LaVia in his office on June 8 and
went over the review with her. She said it was unfair,
and that she did as much work if not more than other
girls in the department. Hagner stated he explained that
he was not criticizing her about that but rather it was
her attitude. She told him she felt she was getting a bad
evaluation because of the Union and he replied that was
not correct, it was based on her past year's performance.
He also brought in Roggeman to explain it. Roggeman,
among other things, told LaVia that she was moody and
it brought down her job performance. LaVia then ac-
cused Hagner of making a deal with the personnel de-
partment to receive a promotion and give her a marginal
review because of her union activities. She then walked
out.
The records reveal that on five prior occasions when
she was reviewed LaVia was placed on warning three
times receiving no salary increases, on a fourth review
she was rated unsatisfactory for volume of work, and
most recently, in 1976, she received an unsatisfactory for
nonselling duties and a marginal for her cooperation. In
her testimony she did not recall many of these ratings al-
though they are clearly in the record. Actually there are
no great differences between the testimony of LaVia and
Hagner except the latter's denial that he told her in ad-
vance she would receive an excellent review and a good
raise. Hagner was a forthright witness and, in view of
LaVia's failure to recollect the occasions on which she
received less than good reviews, I credit Hagner on this
point.
Although this case does not involve an alleged dis-
criminatory discharge of an employee, but rather a dis-
criminatory evaluation and a reduced annual salary in-
crease, nevertheless it is fitting to apply the Board's re-
cently established standards for determining the employ-
182
R. H. MACY & CO.
er's motivation. Under the Board's approach in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir.
1981), the burden initially rests on the General Counsel
to establish a prima facie case by showing that the pro-
tected employee activity was "a motivating factor" in
the employer's decision to institute the action. I find
herein that this burden has been met by the General
Counsel by reason of LaVia's open union activities de-
tailed above concerning which Respondent admittedly
had knowledge. These activities commenced in the latter
part of 1978 and continued through 1979 during which
her annual review was to be conducted. I believe that
Respondent had such motivation in view of its vigorous
campaign to keep the Union out of the Roosevelt Field
store. However, under the Wright Line approach, the
burden of going forward shifts to an employer to demon-
strate that it also had a legitimate business motive for its
conduct and that it would have instituted such action
even absent the protected activity. I find that Respond-
ent has met this burden.
Thus, LaVia's past record indicates similar evaluations
and, indeed, warnings for basically the same reason she
was given one marginal rating on her 1979 review.
These prior appraisals go back prior to the advent of the
recent union organizational campaign or any activity in
which LaVia was engaged. Most important, I note also
that the factors relied upon by Respondent in detailing
the appraisal as to the area of "cooperation" are not in
any manner denied by LaVia or any other witness for
the General Counsel. Her argument was based on the
fact that she was a good salesperson in the sense that her
volume of sales was good, a point agreed to by Hagner
and her supervisors. Although an evaluation of an em-
ployee's performance based upon personal observation
may frequently be determined by subjective practices,
Hagner was able to point out certain areas in this catego-
ry in which he found LaVia to be deficient. I find there-
fore that Respondent has avoided the General Counsel's
prima facie case by showing that it would have instituted
the action even absent the protected employee activity
and that a violation of the Act has not been established
by a preponderance of the evidence. 251 NLRB at 1088-
89. Accordingly, I shall dismiss the allegations of the
complaint relating to the alleged unlawful withholding of
a sufficient wage increase to LaVia, and the marginal
rating given her on her annual review.
2. Anthony Patti
The allegation here is almost the same as in the case of
LaVia; that is, Patti was given a very poor rating on his
evaluation, he was denied any wage increase at all, and,
indeed, he was placed on warning because of his union
activities. Patti has been employed as a display man for
24 years, and Joel Steinberg has been his supervisor for
the past 4 years. Patti signed an authorization card for
the Union on November 29, 1978, and during the follow-
ing spring distributed cards to employees of the auto
center who were involved in an organizational campaign
at that time. Patti later took part in the distribution of
leaflets to the store employees and in addition obtained
authorization cards from employees during at least the
fall of 1979. Patti was also a member of the organizing
committee and clearly his activities on behalf of the
Union were known to Respondent.
Patti received his annual review on October 16, 1979.
In the four major areas reflecting performance, Patti was
rated by Steinberg as unsatisfactory with respect to
quantity of work and cooperation and marginal as to
quality of work and business contacts. This resulted in
Patti's being placed on warning with an update review to
be conducted in 6 months and, of course, he received no
wage increase. Patti complained to Steinberg, who told
him that he was not only slow in his work but actually
devious in that he would pursue methods that would
only make his performance even slower. Steinberg also
told him that he made a lot of mistakes and that the man-
agers were not satisfied with his work. Patti then com-
plained to Lorraine Smith, the personnel manager, who,
according to Patti, told him that he would have to coop-
erate more with Steinberg and try harder. Patti stated
that in his conversations with Steinberg and Smith there
was no mention of the Union, but changed this response
and said he asked Smith why she had to throw the book
at him and whether it was caused by his union activity.
He also mentioned that security people were watching
him and the core group and she replied that this was ri-
diculous.
Steinberg stated he gave an unsatisfactory review to
Patti in 1979, and would have done so in 1978, but he
did not have the corroboration, not having taken notes
that year. He did so in 1979 and that of course resulted
in the review described above. Steinberg stated that
Patti's work was sloppy; he was argumentative with the
floor people and more difficult to begin with. His pro-
ductivity became less and less. At times Steinberg or his
assistant would attempt to help but his assistant told him
he could not work any longer with Patti. The same oc-
curred with other people whom he sent to work with
and assist Patti.
The record reveals a long list of reviews and apprais-
als going back over 20 years. During that period of time
Patti frequently received unsatisfactory or marginal rat-
ings, and, despite the fact that it was company policy to
award merit increases at the time of the job review, fre-
quently Patti did not receive any increase at all. With
regard to the last few years before 1979, the 1978 review
has already been noted. In addition, in 1977 Patti re-
ceived two marginal ratings but was awarded an $8 in-
crease, and he received marginal ratings in some catego-
ries in 1976 and 1975. In 1974 Patti received an unsatis-
factory rating.
Applying the same rationale and approach to this alle-
gation as in the case of LaVia, as a result of Patti's in-
volvement in union activities over a period of time and
Respondent's knowledge thereof it would have sufficient
motivation to have given Patti the unsatisfactory review
which he received. However, I find that Respondent has
established ample reason by way of Patti's overall work
performance to warrant the unsatisfactory review and
warning which he did receive in October 1979. In this
connection I note that Patti had a long record of subpar
performance, none of which has been effectively denied,
nor has any evidence been submitted that would negate
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's reasons for the poor evaluation in 1979. Al-
though I found that Patti was unlawfully threatened in
violation of the Act by Steinberg, that incident occurred
in December, 2 months after the 1979 performance
review. Having found that Responent has successfully
rebutted any prima facie case put forth by the General
Counsel, I shall dismiss the allegation of the complaint
concerning the unsatisfactory review and lack of pay in-
crease to Patti in 1979.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Engaging in surveillance of its employees' union
activities and other protected concerted activites.
(b) Refusing to permit employees to post union litera-
ture and notices on its bulletin boards while permitting
the posting of other material and literature.
(c) Threatening employees with discipline because
they engage in Union activities.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Except as specifically found herein, Respondent has
not otherwise violated the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER7
The Respondent R. H. Macy & Co., Inc., Respondent
Field, New York, its officers, agents, successors, and as-
signs, shall:
I 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 find-
ings, conclusions, and recommended 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.
1. Cease and desist from:
(a) Engaging in surveillance of its employees' union
activities on behalf of Local I-S, Department Store
Workers' Union, Retail, Wholesale, Department Store
Union, AFL-CIO, or any other union.
(b) Refusing to permit employees to post union litera-
ture and notices on company bulletin boards while per-
mitting the posting of other notices and literature.
(c) Threatening employees with discipline because
they are engaging in union activities.
(d) In any like or related manner interering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its Roosevelt Field, Long Island, New
York, store copies of the attached notice marked "Ap-
pendix." 8 Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent's authorized representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated com-
plaints be dismissed with respect to allegations not spe-
cifically found to be violative of the Act.
8 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 opportunity 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 or-
dered us to post this notice.
WE WILL NOT engage in surveillance of the union
or other protected activities of our employees on
behalf of Local l-S, Deparment Store Workers'
Union, Retail, Wholesale, Department Store Union,
AFL-CIO, or any other labor organization.
WE WILL NOT refuse to permit employees to post
union notices or literature on our bulletin boards
while permitting the posting of other notices and lit-
erature.
WE WILL NOT threaten employees with discipline
because they have engaged in union or other pro-
tected activities.
184
R. H. MACY & CO.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
R. H. MACY & CO., INC.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: On Novem-
ber 30, 1981, I issued my Decision in this proceeding
finding, inter alia, that Respondent had not violated Sec-
tion 8(aX3) and (1) of the Act by failing to grant Antho-
ny Patti a wage increase and rating his performance un-
satisfactory in 1979. Thereafter, by Order dated June 8,
1982, the Board remanded this proceeding for the pur-
pose of reopening the hearing to permit Charging Party
Patti, who had not received notice of the resumption of
the hearing on April 20, 1981, to cross-examine Supervi-
sor Steinberg, who appeared and testified on that date.
Pursuant to notice, a hearing was held on July 26,
1982. Charging Party Patti appeared on his own behalf
and cross-examined Joel Steinberg at length, and the
record reveals that he was assisted in this endeavor by
counsel for the General Counsel and counsel for the
Charging Party Union. All parties were given full oppor-
tunity to examine Steinberg and submit other relevant
testimony and evidence. Following the close of the hear-
ing, Patti and Respondent submitted briefs which have
been duly considered.
Upon the entire record and from my observation of
the witnesses, I make the following:
ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS
After careful consideration of the record containing
Patti's cross-examination of Steinberg, I find no new evi-
dence or argument which would cause me to change my
original recommendation in this matter. Although the
cross-examination conducted pro se by Patti is somewhat
confusing, no doubt in some measure due to the person-
alities of these two protagonists, what I glean from the
record is reinforcement of Steinberg's prior testimony. In
this connection it must be borne in mind that Steinberg's
testimony, both original and at the reopened hearing on
cross-examination by Patti, is essentially undenied. In any
case Steinberg was able to elaborate on the reasons given
for the unsatisfactory rating and appraisal of Patti for the
year 1979. I have already detailed the history of poor
ratings given to Patti by Steinberg and his predecessor
supervisors. Moreover, I find nothing sinister, as appar-
ently contended by Patti, in the fact that his prior ap-
praisal for 1978 had been changed and upgraded by
Steinberg, on orders from his superior, because it had not
been sufficiently substantiated and documented. As Stein-
berg testified, he thereafter kept notes, and at the re-
opened hearing he was able to testify in greater detail re-
garding the two main instances described in the 1979 ap-
praisal as the basis for the unsatisfactory rating among
other things.
At the conclusion of Steinberg's cross-examination by
Patti, he was also questioned by counsel for the General
Counsel and counsel for the Charging Party Union. No
additional witnesses were presented by the parties al-
though they, including Patti himself, were given the op-
portunity to do so.
Accordingly, I find nothing adduced from the cross-
examination of Steinberg by Patti to change my conclu-
sions as previously noted, and therefore adhere to my
original recommendation that the allegation of the com-
plaint with respect to the unsatisfactory review of Patti
and the failure to give him a pay increase in 1979 should
be dismissed.
185