Mervyn's

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 54 (N.L.R.B. 1979)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mervyn's and Linda Wynn, Petitioner, and Retail
Store Employees Union Local 373, Retail Clerks
International Association, AFL-CIO
Mervyn's and Retail Store Employees Union Local
373, Retail Clerks International Association, AFL-
CIO. Cases 20-RD 1448, 20-CA 13729, and 20-
CA- 13827
January 24, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On September 19, 1978, Administrative Law Judge
Eardean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent and the
Charging Party filed exceptions and supporting
briefs. The General Counsel filed limited cross-ex-
ceptions and a brief opposing the Charging Party's
exceptions and supporting its limited cross-excep-
tions and an additional brief opposing Respondent's
exceptions.
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, limited
cross-exceptions, and briefs and has decided to af-
firm the rulings, findings, and conclusions of the Ad-
ministrative Law Judge and to adopt her recom-
mended Order as modified herein.
AMENDED REMEDY
We adopt the Administrative Law Judge's finding
that Respondent violated Section 8(a)(5) and (1) of
the Act by instituting the new health plan without
prior notification to the Union and without affording
the Union an opportunity to bargain over the
change. While it is not apparent whether any em-
ployees have suffered any losses as a result of
Respondent's unilateral change in health plans, as a
precautionary measure we shall order Respondent to
make employees whole for any such loss, with inter-
est as set forth in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing
&Heating Co., 138 NLRB 716 (1962). The Adminis-
trative Law Judge's recommended Order and notice
are accordingly modified below.
240 NLRB No. 2
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, as modified
below, and hereby orders that Respondent,
Mervyn's, Napa, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly.
"(b) Make its employees whole for any losses they
may have suffered as a result of the unilateral change
in health plans in the manner set forth in the Board's
Amended Remedy."
2. Substitute the attached notice for that of the
Administrative Law Judge.
11 is FURFIHER ORDERED) that the election conducted
on March 10, 1978, in Case 20-RD-1448 be, and it
hereby is, set aside and that a second election be
conducted at such time and in such manner as the
Regional Director deems appropriate.
[Direction of Second Election omitted from publi-
cation.]
APPENDIX
Noi ic. To EMPIOYI lS
PosI FI) BY ORDER ()F 1: II
NA] IONAI. LABOR R l.IO()NS BOARD
An Agency of the United States Government
WE WILL Nol refuse to bargain with Retail
Store Employees Union Local 373, Retail Clerks
International Association, AFL CIO, by unilat-
erally changing the health benefits previously es-
tablished by the terms of the collective-bargain-
ing agreement between Respondent and the
Union which expired on March 31. 1978. The
appropriate unit is:
All selling, and non-selling employees, includ-
ing stock clerks, employed at our retail estab-
lishment located at 1116 First Street, Napa,
California: excluding guards and supervisors
as defined in the Act.
WE WILL NO] maintain a rule prohibiting our
employees from soliciting on behalf of a labor
organization on our premises during their non-
working time.
WE Wl.l. NO promise our employees im-
proved benefits to induce them to vote against
union representation.
WI: wit. N in any like or related manner
interfere with, restrain, or coerce employees in
MERVYN'S 55
the exercise of rights guaranteed in Section 7 of
the Act.
WE WILL restore the health plan which existed
in our collective-bargaining agreement with the
Union which expired on March 31, 1978.
WE WILL make our employees whole for any
losses they may have suffered as a result of our
unilateral change in health plans, with interest.
WE WILL rescind the "Collections and Solicita-
tions" rule in our employee manual to the extent
that it prohibits employees from soliciting on be-
half of any labor organization on our premises
during their nonworking time.
MERVYN'S
DECISION
SrATEMENT OF THE CASE
EARLDFAN V S ROBBINS, Administrative Law Judge: This
case was heard before me in Napa, California, on July 25,
1978. The charge in Case 20-CA 13729 was filed by Retail
Store Employees Union Local 373, Retail Clerks Interna-
tional Association, AFL-CIO, herein called the Union,
and served on Respondent, Mervyn's, on March 17, 1978.
The complaint in Case 20-CA 13729. which issued on
May 4, 1978, alleges that Respondent violated Section
8(a)(l) of the National Labor Relations Act, as amended.
The charge in Case 20-CA-13827 was filed by the Union
on May 5, 1978, and served on Respondent on Ma 8.
1978.
The petition in Case 20-RD 1448 was filed by Linda
Wynn, an individual, on January 30, 1978. Pursuant to a
Stipulation for Certification Upon Consent Election ap-
proved on February 22, 1978, an election by secret ballot
was conducted on March 10, 1978, which resulted in 51
ballots cast for and 54 cast against the Union, with 4 chal-
lenged ballots, which were sufficient to affect the result of
the election. On March 16, 1978, the Union filed timely
objections to the election, copies of which were duly served
on Respondent.
On May 23, 1978, the Regional Director issued and
served on the parties a report on challenged ballot and
objections and notice of hearing in which she recom-
mended that the challenges to two ballots be sustained and
determined that two of the objections raised matters identi-
cal to those alleged as unfair labor practices in Case 20-
CA-13729, which could best be resolved through a hearing,
and that upon final disposition of the remaining objections
and challenges, Cases 20-CA 13729 and 20-RD 1448
would be consolidated.
No exceptions having been filed to the Regional
Director's report, on June 15, 1978, the Board issued an
order in which it adopted the Regional Director's recom-
mendations and ordered that said cases be consolidated for
purposes of hearing. On June 20, 1978, the Regional Direc-
tor issued an order consolidating said cases as directed by
the Board. On June 30, 1978, a complaint issued in Case
20-CA-13827, alleging that Respondent violated Section
8(a)(1) and (5) of the Act. On July 7, 1978, the Regional
Director issued an order consolidating Case 20-CA 13827
with Cases 20-RD- 1448 and 20-CA 13729.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I JRISI)ICTION
Respondent, a California corporation with a place of
business in Napa, California, is engaged in the retail sale of
general merchandise. Respondent, in the course and con-
duct of its business operations during the 12-month period
preceding the issuance of the complaint herein, received
gross revenues in excess of $500,000 and during the same
time period purchased goods valued in excess of $50.000
directly from suppliers located outside the State of Califor-
nia.
The complaint alleges, the answer admits, and I find that
Respondent is, and has been at all times material herein,
an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
11 LABOR ORGANIZATION
The Union is. and at all times material herein has been.
a labor organization within the meaning of Section 2(5) of
the Act.
III THE ALI.IGE(D UNFAIR LABOR PRA(TICES
A. Preelection Conduct
The Union and Respondent were parties to a collective-
bargaining agreement effective by its terms from April 1.
1975, to March 31, 1978, covering Respondent's selling and
nonselling employees, including stock clerks, employed at
Respondent's retail establishment in Napa, California.
That contract contains a union-security clause requiring
membership in the Union and provides for health insur-
ance coverage under the Union's welfare plan, with a re-
quirement that an employee must work 64 hours per month
to be eligible for coverage.
The undisputed testimony is that eligibility is determined
on a month-to-month basis. Thus an employee may be eli-
gible for coverage during one month, ineligible for the next
month, and eligible again for the succeeding month, de-
pending upon the number of hours worked in the month
which determines eligibility for any particular month. One
employee testified that the hours worked in any' one month
determine eligibility for health coverage during the follow-
ing month.
The decertification petition herein, which was filed on
January 30, 1978,' resulted in a Board-conducted election
held on March 10. Of the approximately 114 eligible vot-
ers, 51 voted for the Union, 54 voted against the Union,
All dales herein ill he 1978 unless olhermlse indicated
MERVYN'S
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the ballots of 4 employees were challenged. Thereafter
the challenges of two of these ballots were sustained, and
the remaining two were insufficient to affect the results of
the election.
The disputed conduct herein occurred within the 2 or 3
weeks preceding the election. During that period John
Plummer, director of employee relations for all
Respondent's stores, held meetings with various groups of
employees in the Napa store.2 During these meetings he
explained orally and through charts the wages and benefits
package offered by Respondent at some of its nonunion
stores in nearby counties and compared some of these ben-
efits with the benefits available under the collective-bar-
gaining agreement to the employees at the Napa store.
Also at these meetings Respondent distributed to each
employee a document of 13 pages setting forth a detailed
comparison of the Union's and the Mervyn's benefit pack-
ages. Certain items as to medical benefits were marked
with an asterisk:
MERVYN'S VS. NAPA RETAIL CLERKS
Mervyn's hospital room and board plan: *365-
days/year (3-bed ward) fully paid; Napa R.C.'s plan:
120-days per illness (3-bed ward) fully paid.
Mervyn's hospital services: *all expenses are paid
no limit; Napa's basic plan pays in full up to $1,000;
balance to major medical.
Mervyn's maternity care (normal delivery): *em-
ployees pay only $200 deductible; Blue Cross pays the
balance; Napa's plan pays only $400; employee pays
balance.
Mervyn's doctor's office visits: *pays 90 percent for
each visit; no maximum, no deductible; Napa pays up
to $5 each visit (Ist visit during each 90-day period is
not covered); $400 yearly maximum.
Mervyn's surgeon's fees: *90 percent paid; Napa
pays on 1964 RVS schedule at $5.50 per RVS unit,
balance to major medical.
Mervyn's prescription drugs: *$l deductible on first
prescription, $.50 deductible thereafter; Blue Cross
pays balance; Napa R.C.: 90 percent paid.
Mervyn's additional accident: *pays $500 per acci-
dent; Napa pays $300 per accident.
Mervyn's major medical maximum: *$300,000;
Napa: $10,000.
Mervyn's major medical deductible: *$100/80 per-
cent paid after deductible; Napa: $200/80 percent
paid after deductible.
Each of the 13 pages contained a disclaimer at the bottom
which states:
The above information is in response to your ques-
tions regarding benefits comparison. It is not to be
construed as a promise or suggestion that any changes
in benefits are contingent upon the results of the elec-
tion, regardless of the outcome.
Several employees were pregnant, and during the meet-
ings questions were directed to Plummer and thereafter to
2 Each employee attended one meeting conducted by plummer.
James Pucci, operations manager at the Napa store, con-
cerning maternity benefits and the eligibility requirements
under the Mervyn's health plan available in nonunion
stores and the union health plan. Also, a number of em-
ployees expressed concern that if the Union lost the elec-
tion, they would lose their benefits on March 31 when the
collective-bargaining agreement expired.
As to eligibility under the Mervyn's plan, Plummer ad-
mits that he explained that in order to be covered under the
Mervyn's plan, an employee is required to average 20
hours a week for 90 days. Once that requirement is met, the
employee becomes covered as of the first of the following
month. Eligibility to maintain coverage is reviewed by cor-
porate personnel either every 4 months or every 6 months.
If. upon review, it is found that an employee has consis-
tently worked less than the requisite number of hours,
someone from corporate personnel telephones either the
store director or the operations manager for the store to
inquire why the employee's hours have been decreased.
Plummer further explained that on a case-by-case basis,
allowances are made for such reasons as illness. Before any
employee is removed from coverage, someone from super-
vision discusses with the employee the reason for the de-
crease in hours, whether voluntary or involuntary, and the
effect it has on health plan coverage. The employee is then
required to sign a document stating that the employee is
not eligible or not available for work on a regular basis for
20 or more hours a week and therefore understands that
Mervyn's benefits will be discontinued. Plummer also testi-
fied that it is Respondent's policy to make every effort to
insure that employees do not lose their benefits.
During this same period of time, another series of meet-
ings were conducted by Store Director Yvonne Irwin. Ba-
sically, her presentation followed the same format as
Plummer's in the comparison of wages and benefits. Also,
she utilized a chart which showed the amount of savings
plus interest an employee would realize after I to 25 years
if the amount of money paid to the Union in dues was
deposited in a savings account. She emphasized that em-
ployees had repudiated unions in other Mervyn's stores
and were proceeding successfully without union represen-
tation and that union representation was also not necessary
in the Napa store.
The concern of pregnant employees also prompted sev-
eral conversations, involving Pucci and Plummer, with re-
gard to health coverage in the 2-3 weeks preceding the
election. Employee Margaret Dutra testified that, in Feb-
ruary, shortly after she attended one of the Plummer meet-
ings, she approached Pucci, asked if she could ask him a
question, and stated that she would understand if he could
not answer.3 She then stated that part-time employees who
worked a minimum of 16 hours were eligible for union
benefits and asked how they were going to get the 20 hours
required for coverage under the Mervyn's plan. Dutra first
testified that Pucci replied, "Part-time people have to work
20 hours a week." Then she testified that he replied, "Part-
time people will get 20 hours a week." Then, on cross-
examination, she again testified that Pucci replied, "Part-
time people have to work 20 hours a week."
She made this statement because during the meeting Plummer had said
Respondent could not make any promises due to the scheduled election.
MERVYN'S 57
Dutra further testified that up to the week preceding the
election, she was scheduled to work 16 hours a week. The
week following the conversation and the week preceding
the election, she worked 20 to 25 hours a week. It is unclear
what week Dutra was referring to. Since the election was
on a Friday, she could have meant the week ending Sun-
day, March 12, or she could have meant the week ending
Sunday, March 5. However, her timecards show that dur-
ing the week ending March 5, she worked 16.4 hours, and
during the week ending March 12. she worked 8 hours.
Prior to that, she worked:
Wk. Ending
1-15-78
1-22-78
1-29-78
2-05-78
2-12-78
2-19 78
2-26-78
No. of Hrs.
11.8
28.3
16.9
22.1
24.0
17.0
24.0
Dutra further testified that salesclerk Karen Choinard
told her that Pucci said part-time people would get 20
hours a week. Choinard does not recall such a conversa-
tion. Further, Choinard denied that Pucci ever told her that
part-time employees would get 20 hours a week. According
to her, in February she requested that she be assigned to a
full-time position. When she talked to Pucci regarding this,
he explained that full time was 40 hours a week, short-time
regular was 20-39 hours a week, and part-time was under
20 hours. He was reading this from the Mervyn's hand-
book.
Pucci did not testify specifically as to these conversa-
tions. I credit Choinard, and I find, based on a consider-
ation of Dutra's testimony as a whole, that Pucci told her
that part-time employees had to work 20 hours a week to
be eligible for Mervyn's benefits.
Employee Kathy Spinelli testified that she and another
employee, Deborah Stephenson, had a conversation with
Plummer. Spinelli asked if her baby would be covered.
Plummer replied: "I can't make any promises. All I can tell
you is, you'll be taken care of." At that point Stephenson
asked a question, and Plummer began talking to her.5
Stephenson testified that this conversation occurred in
the latter part of February, shortly after she attended one
of the Plummer meetings. She testified in essential agree-
ment with Spinelli. According to her, Plummer explained
some differences between Kaiser and Blue Cross as to
when maternity coverage commenced.6 Plummer also told
them not to worry; the babies would be taken care of.
Plummer did not testify as to this conversation.
Stephenson also testified as to several conversations with
Pucci. According to her, on March 3 she went to Pucci's
office and asked him if, in February, she had worked the
4Actual hours worked might var? from scheduled hours.
Spinelli testified that she was working 25 hours a week. Her timecards
for the 8-week period ending March 5 averaged in excess of 20 hours a
week. Timecard records from Januar 8 Jul 9 show that no one worked
the same number of hours everN week.
6 Spinelli had Blue Cross coverage. Stephenson had Kaiser Health Plan
coverage.
minimum of 64 hours required for coverage in April under
the Union's health plan. He looked at the schedule and
said it appeared that she had worked the requisite number
of hours. She said she needed to know definitely. Pucci
said he would call the main office to inquire. He then
closed the door and asked if she could trust him. Ste-
phenson said she did not know. Whereupon Pucci showed
her the wage scale for Mervyn's nonunion stores. After
looking at it, Stephenson said, according to that scale she
should be receiving a wage rate of $3 an hour instead of the
$2.69 rate she was currently receiving.
Stephenson further testified that she asked if her preg-
nancy would be covered if the Union lost the election. Puc-
ci replied. "Your baby will be taken care of." At some
point in the conversation, Pucci said, "Do you think I can
look you in the eyes and ask you to vote for Mervyn's and
know that I had caused you to go bankrupt having your
baby, because you weren't covered and would have to pay
for it yourself?" He made this latter statement two or three
times. He also stated several times that he could make no
promises.
The following Monday, March 6, Pucci called Ste-
phenson at home and told her he had called the main office
and that she had worked sufficient hours to maintain cov-
erage under the union health plan. On March 7 Stephenson
approached Pucci on the floor and told him that she had
called the Union and told them what Pucci had said the
preceding day, and the response she got was that they
could only wait to see if she received a letter stating that
she had lost her benefits for April. According to Ste-
phenson, Pucci replied, "With Mervyn's, you wouldn't
have that problem." Stephenson asked, "What if I become
sick and could not work the required hours?" Pucci alleg-
edly replied, "You would not lose your benefits."
On March 9 Stephenson telephoned Pucci from the sales
floor and inquired as to the procedure to follow to obtain
maternity leave. He told her all she needed was a statement
from her doctor. About 10 or 15 minutes later, Pucci ap-
proached Stephenson on the selling floor and repeated
what he had previously stated regarding maternity leave.
According to Stephenson, they began talking, and she
asked him what the employee classifications in the Napa
store would be if the Union was voted out, whether she
would be part time, full-time regular, or short-hour regu-
lar.8 Pucci allegedly replied that if the Union lost the elec-
tion there would be only two classifications, full-time and
short-hour regular.
Stephenson asked, "What about part time?" To which
Pucci replied that when the contract expired, there would
only be the two classifications, but persons hired thereafter
would be part time. Stephenson asked if that meant that
she would work 20 hours and be eligible for benefits. Pucci
said, "Yes, your baby will be taken care of." At some point
he said, short-hour regulars worked 20 hours a week or
more.
Pucci testified that in the weeks prior to the election,
She had lost some time because of illness.
Stephenson testified that she inquired because the Mervyn's handbook.
which is distributed to all new employees. lists three classifications- full-
time regular. short-hour regular, and part-time emplosees. The Napa store
did not have these classifications.
MERVYN'S
58 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Stephenson came in to see him at least 12 times regarding
her pregnancy and health coverage. He also recalls that the
first such conversation involved her inquiry as to whether
she had worked the requisite hours for coverage under the
union health plan. He checked the schedules in his office
and told her it appeared that she was covered. According
to him, nothing else was said in this conversation.
However, he does admit that in some conversation he
discussed the wages in Mervyn's Vallejo store,9 and the
classifications of employees were touched upon as they
looked through the employees' handbook. According to
him, he quoted from the handbook in response to some
question posed by Stephenson. He denies making any ref-
erence regarding the Union being voted out.
Pucci further testified that 2 or 3 days later, Stephenson
approached him on the selling floor and said she had some
questions to ask him regarding the Union. He told her to
come into the office when she was free. Within an hour.
she came to his office and asked if her baby would be
covered if the Union was voted out. He replied: "Debbie,
first of all you know I can't make you any promises'0 and
I can't tell you-I don't know what's going to happen. And
if I did, I couldn't give you any promises. I know what
you're going through and I feel sorry for you. But there's
nothing I can tell you." He denies that there was any dis-
cussion of wages or benefits.
Pucci also testified that during this period, almost on a
daily basis, Stephenson talked to him regarding her mater-
nity leave or other problems incident to her pregnancy and
accomodations sought by her in the schedule. The only
other conversation of any length which he recalls occurred
in March prior to the election. According to Pucci, Ste-
phenson came into his office extremely upset and crying.
She said she didn't know what would happen if the Union
was voted out with respect to delivery of her baby. Pucci
said he could not make any promises, he did not know
what was going to happen and he wanted her to under-
stand that, and he knew how she felt.
According to Pucci, he then closed the door' and at-
tempted to calm her. He told her: "I know what you're
going through, and this is all I can tell you with respect to
the election. Would you like my opinion?" She said "Yes."
Pucci then said: "As far as I'm concerned, a union is not
needed in this store. That is my opinion, not the
Company's. No one else's but mine." Stephenson asked
what wages would be at the Napa store if the Union was
voted out. Pucci said, "I don't know, no one's told me."
Pucci further testified that he wrote some notes as to the
wage rates of salespersons at the Vallejo store, showed
them to Stephenson. and said, "This is what the sales peo-
ple are getting in Vallejo." According to him, he neither
stated nor intimated that these rates would apply at the
Napa store if the Union was voted out.
He admits that he did tell Stephenson to trust him, but
9 This is the store closest to the Napa store.
m Pucci testified that the first time he met with Respondent's attorne., he
was instructed not to make ans promises or threats or engage in any interro-
gations. Thereafter, during the Preelection campaign when employees asked
him questions, he would s;a he could not make an) promises
m Pucci testified that he closed the door hecause she was so upset. and he
did not want persons in the store to ohserve.
he testified that he meant to trust his personal opinion that
a union was not needed at the Napa store. He does not
recall mentioning looking her in the eye. He does not recall
telling Stephenson that if the Union lost the election there
would be only two classifications of employees or that Ste-
phenson would be scheduled for at least 20 hours.
Stephenson, in her testimony, denied that Pucci said he
could not tell her what would be put into effect at the Napa
store if the Union lost the election. She further denied that
she ever cried during these conversations with Pucci.
Pucci also testified that he immediately reported this
conversation to Store Director Irwin and expressed his
frustration that he was confronted with these employee
anxieties but had no answers.)2 Ms. Irwin did not testify. I
credit Spinelli and Stephenson as to the conversation with
Plummer. Their testimony is mutually corroborative and is
undenied. I also credit Stephenson as to the various con-
versations with Pucci. She impressed me as an honest, reli-
able witness. Her testimony as to Plummer's statement was
corroborated -and much of her testimony as to the con-
versations with Pucci is admitted by him. As to those critic-
al portions which he denied, I note that the statements
were quite similar to the undenied statement by Plummer
and that Pucci testified that he looked to Plummer to fur-
nish him information which he could pass on to employees
regarding benefits available following the expiration of the
union contract. I further note that although Pucci testified
that he complained to Irwin regarding his lack of knowl-
edge as to benefits following the expiration of the contract,
Irwin was not called to testify in corroboration thereof.
Also, Respondent did, in fact, grant the benefit coverage,
just as Plummer and Pucci allegedly promised.
I find that Plummer violated Section 8(a)( ) of the Act
by his statement to Spinelli and Stephenson that their ba-
bies would be taken care of and Pucci's statement to Ste-
phenson that her baby would be taken care of; Pucci's
statement, during a discussion as to whether her pregnancy
would be covered. "Do you think I can look you in the
eyes and ask you to vote for Mervyn's and know that I had
caused you to go bankrupt having your baby, because you
weren't covered and would have to pay": and Pucci's state-
ment that all current unit employees would be in classifica-
tions which would receive health benefits but that persons
hired thereafter would be part time (not eligible for such
benefits). These statements constituted a promise that if
the Union lost the election. Respondent would institute its
own benefit plan, and unit employees would be covered
thereby even though they did not work the required num-
ber of hours. The fact that these statements were accompa-
nied by self-serving assertions that no promises could be
made does not detract from their essential character as
promises. Ralej's, Inc.. 236 NLRB 971 (1978).
I have carefully considered, and reject, Respondent's ar-
gument that even if the statements were made, they were
isolated and not of a nature that would interfere with the
Section 7 rights of employees. During the preelection cam-
paign, it became very clear that the issue of health benefits
was of prime importance to a number of employees, and
l According to Pucci, he did not know, until April I what changes, if any,
would be made
MERVYN'S 59
Respondent obviously seized upon this method of gaining
an advantage.
I further find, in the context of a conversation where
other promises of benefit were made, that Pucci showing
Stephenson the wage rate for Mervyn's nonunion stores
constituted a promise of benefit in violation of Section
8(a)(1) of the Act.
B. Postelection Conduct
Stephenson testified that on April , Pucci told her that
employee Diane Borgia's baby was born that day, and she
was covered under the Mervyn's plan, not the union plan,
which meant that she only had to pay $200 of the delivery
cost instead of the $1.400 she would have paid under the
union plan, since the union plan paid only $200. She asked
if she would be covered under the Mervyn's plan even
though she was not working 20 hours a week. Pucci replied
yes, even though she was working only 16 hours a week,
she would be covered by Mervyn's benefits.
Pucci does not deny this conversation. He does state that
on April I. he called Stephenson and the other women who
were really concerned to tell them the good news regarding
the health coverage. He further testified that 2 or 3 days
after the election, Stephenson came into his office. She said
it looked like the Union was voted out and inquired as to
the status of benefits. Pucci said: "You know I still- am
not allowed to make any promises. Furthermore, I don't
know what's going to happen with the benefits. We haven't
received any certification of the election yet, so I don't
know what the results of that are going to be."
About 10 days later, according to Pucci, Stephenson
again asked him if she would be covered by Mervyn's ben-
efits. He replied: "Debbie, I'm still the same as I was be-
fore. I don't know anything. I can't tell you." Thereafter in
March, almost identical conversations occurred on one or
two occasions with Stephenson and also with other preg-
nant employees.
On April I Respondent put into effect a new health plan
for employees at the Napa Store. It is the same plan that is
in effect at other Mervyn's stores. Under the Kaiser option
it provides for full maternity care after pregnancy is con-
firmed. The Blue Cross option provides full maternity care
after $100 deductible for hospital costs and $100 deduct-
ible for professional costs.
Stephenson testified that on April 1. Plummer distrib-
uted to employees in the employees lounge pamphlets de-
scribing the Mervyn's health plan and enrollment forms.
Plummer said that the Napa store employees were already
covered by the Mervyn's health plan as of the preceding
midnight, but he wanted them to fill our and return the
enrollment forms.
Stephenson testified that prior to April 1., she worked a
16-hour week and continued to do so after April I., until
she went on maternity leave on May 2.1) Nevertheless, she
i As with all other employees. Stephenson did not work the same number
Iof hours each week. although she may have been scheduled for the same
number. lowever. her tinecards show that eof the 17 weeks In 1978 prior to
her maternit lease, she worked 20 or more hours in onls 5 veeks After the
new health plan went into effect. she worked 20 hours during onl I week.
was covered by the Mervyn's health plan. Plummer testi-
fied that as far as he knows, all the employees in the Napa
store prior to the election were covered under the union
health plan, and all the employees in the Napa store after
the election were covered under the Mervyn's health plan.
Pucci testified that as far as he knows everyone who was
covered under the union health plan was covered under the
Mervyn's health plan. Employees hired since April I must
wait 90 days before receiving coverage.
Union Steward Frank Barrows testified without contra-
diction that after April , Plummer held employee meetings
to explain the health plan. At the meeting attended by Bar-
rows, Plummer told them the amount that Diane Borgia
had saved in maternity costs through coverage under the
Mervyn's plan as compared with what she would have paid
under the union plan.
On April 9 Respondent sent a letter addressed to the
Northern California Retail Clerks-Employers Fund signed
by Plummer, the body of which states:
In view of the decertification election held at
Mervyn's Napa store, we wish to inform you the
March payments forwarded to the United California
Bank will be the final payments to the Pension and
Health & Welfare funds.
If you have any questions. please feel free to call
me.
Respondent gave no notification to the Union. 4
The complaint in Case 20-CA 13827 alleges that on or
about April 1. Respondent granted employees increased
employment opportunities and benefits to induce employ-
ees not to support the Union. The increased employment
opportunities refer to the allegation that Respondent grant-
ed employees increased hours of work to insure coverage
under the Mervyn's health plan. The record does not sup-
port this.
Although the timecards show some general increase in
hours worked, Respondent's sales also increased. The work
hours allocated to the selling departments are computed
according to a formula which attaches significant weight to
the volume of sales. Further, the timecards do not reveal
any clear-cut situation of employees who worked less than
20 hours prior to April 1 working 20 or more hours after
April 1. The number of hours fluctuated sometimes as
much as 8 or 10 hours both before and after April 1.
Also, hours are allocated by management to depart-
ments, not to individual employees. The department man-
agers allocate the hours to individual employees. Barrows,
manager of the boys department and union steward, testi-
fied that he schedules the humber of hours worked by each
person in his department, and he was given no instructions
to grant each employee a minimum of 20 hours.
In these circumstances I find the evidence insufficient to
establish that the working hours of any employee were in-
creased for other than legitimate business reasons. Accord-
ingly, I find that Respondent did not violate Section 8(a)( I )
of the Act by granting employees increased employment
opportunities.
14 Ihe complaint does not allege that Respondent violated the Act b,
ceasing pension contributions. nor was evidence adduced to establish that in
fact Respondent ceased making pension contributions
MERVYN'S
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint also alleges that Respondent violated
Section 8(a)(l) and (5) of the Act by instituting the new
health plan without prior notification to the Union and
without affording the Union an opportunity to bargain
concerning such change. Respondent argues that it merely
took steps to insure that the employees had unbroken
health insurance coverage. The argument is based on
Respondent's assertion in its brief that following the elec-
tion, the union plan was no longer available to the employ-
ees.
However the record does not support this contention. At
the most, the record shows only that some employees were
concerned that such would be the situation. There is no
evidence that Respondent ever attempted to ascertain what
the Union's position was. Certainly there is no evidence
that the Union ever notified Respondent that coverage
would cease.
I find Respondent's motives suspect. During the preelec-
tion campaign it had discovered an area of great concern
to some of its employees, and it immediately took steps to
secure an advantage in the event of another election. It
extended its coverage to all unit employees who had been
covered under the union plan, and it did so without regard
to the requirements that employees at other stores and unit
employees hired after the election must meet for the same
coverage. Further, just in case some employees had missed
the full extent of its largess, Respondent informed them of
the financial advantage that had accrued to the Borgia
family as a result of this unilateral change.
In view of the timely filing of objection to the March 10
election, the question concerning representation had not
been resolved as of April I, when Respondent put into
effect a new health plan. The legal obligation of an em-
ployer, in these circumstances, is to await resolution by the
Board of the question concerning representation before in-
stituting any changes in the working conditions of unit em-
ployees. Any doubt as to the Union's majority status is
irrelevant, and the presumption of majority flowing from
the recently expired contract continues until such resolu-
tion. Turbodyne Corporation, Gas Turbine Division, 226
NLRB 522 (1976). Accordingly, I find that Respondent
violated Section 8(a)(l) and (5) of the Act by instituting the
change in health plan.
C. The No-Solicitation Rule
The Mervyn's handbook which is distributed to all em-
ployees at the time of hire states on pages C-2 and D-2,
respectively: 15
COLLECTIONS AND SOLICITATIONS
Collections and solicitations are not allowed on the
Company premises at any time. This policy includes
I The parties stipulated that these excerpts from the handbook be re-
ceived into evidence as one of General ('ounsel's exhibits. Later. Respon-
dent placed into evidence what purported to be the handbook from which
these excerpts were taken. However. although p. (-2 is identical t, the
excerpted p. C-2. there is no page D 2 in the handbook There is no sub-
stantive difference between p. C 2 and p. D 2.
collections and solicitations of any kind by any outsid-
er regardless of the purpose.
You may not solicit for any purpose during your
working time or solicit fellow employees during their
working time.
Soliciting or collecting in violation of these rules in
any Mervyn's location is grounds for dismissal.
COLIECTIONS AND SOLICITATIONS
Collections and solicitations are not allowed on the
Company premises at any time. This policy included
collections and solicitations of any kind by any outsid-
er regardless of the purpose.
No employee may solicit for any purpose during the
working time of either the soliciting or the solicited
employee.
Soliciting or collecting in violation of these rules in
any Mervyn's location is grounds for dismissal.
The complaint in Case 20-CA-13827 alleges that since
November 5, 1977, Respondent has maintained a rule for-
bidding solicitation anywhere on its premises, including
nonwork areas. Respondent argues that the first paragraph
of the rule applies solely to outsiders.
I reject this argument. At best, the rule is ambiguous. As
the rule is written, a reasonable conclusion on the part of
employees would be that they could solicit on
Respondent's premises only at the risk of losing their jobs.
See Chrysler Corporation, 227 NLRB 1256; The Dezurik
Division General Signal Corporation, 234 NLRB 914 (1978).
Accordingly, I find that by mainting a rule forbidding so-
licitations on its premises, Respondent has violated Section
8(a)(1) of the Act. Paceco, 237 NLRB 464 (1978).
D. The Representation Proceeding
The objections involved herein state:
(4) Prior to the election, supervisory representatives
of the Employer made promises to employees that if
the Union was decertified, employees would be guar-
anteed twenty hours of work per week, would suffer
no loss of medical benefits, notwithstanding the termi-
nation of the health insurance program specified in
the collective bargaining agreement and, moreover, as-
sured employees that they would be making more
money under non-Union conditions than they were
and are under and pursuant to the collective bargain-
ing agreement.
(I 1) Employees were promised that if they voted in
the election and the election resulted in the decertifi-
cation of the Union, such employees would be guaran-
teed sufficient work to qualify for benefits available
through employment with the Company and that new
employees hired after would not be given such guaran-
tee.
Although I have found that Respondent did not promise
MERVYN'S 61
employees a guaranteed number of hours as alleged in the
objections, the essence of the objections is that Respondent
promised health coverage notwithstanding that certain unit
employees did not work the required number of hours,
conduct which I have found to be violative of Section
8(a)(l) of the Act. I further find that such conduct also
interfered with the employees' exercise of a free and un-
trammeled choice in the election held on March 10, 1978.16
Accordingly, I shall recommend that the said election be
set aside and that a new election be held at such time as the
Regional Director deems appropriate.
CONCLUSIONS OF LAW
1. Respondent, Mervyn's, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All selling and nonselling employees, including stock
clerks, employed at the Employer's retail establishment lo-
cated at 1116 First Street, Napa, California, excluding
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been, and is
now, the exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By unilaterally changing the health benefits previously
established by the terms of the collective-bargaining agree-
ment between Respondent and the Union which expired
on March 31, 1978, Respondent has engaged in and is en-
gaging in unfair labor practices affecting commerce within
the meaning of Section 8(aXl) and (5) of the Act.
6. By maintaining a rule prohibiting its employees from
soliciting on behalf of a labor organization on its premises
during their nonworking time, Respondent has engaged in,
and is engaging in, unfair labor practices in violation of
Section 8(a)(1) of the Act.
7. By promising employees improved benefits to induce
them to vote against union representation, Respondent has
engaged in unfair labor practices in violation of Section
8(a)(l) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not engaged in the other unfair labor
practices alleged in the complaints herein.
10. By its conduct, as set forth above, in paragraphs 6
and 7, Respondent has interfered with its employees' free-
dom of choice in selecting a bargaining representative, and
16 Specifically, and in accordance with the findings heretofore made, I
recommend that Objections 4 and II be sustained. I have fully considered
and reject Respondent's argument that this conduct was not sufficient to
warrant setting the election aside. As noted above, this was an issue of great
concern to some employees, and the vote was close I place no reliance on
Stephenson's assertion that she was not influenced by Pucci's statements.
This was very obviously a matter of grave concern to her. I further recom-
mend that the maintenance of the no-solicitation rule is objectionable con-
duct sufficient to warrant the setting aside of the election. The De:urik
Division General Signal Corporolion, supra
such conduct warrants setting aside the election conducted
on March 10, 1978, in Case 20-RD-1448.17
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record and pursuant to
Section 10(c) of the Act, I hereby recommend the follow-
ing:
ORDER I8
The Respondent, Mervyn's, Napa, California, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally changing the health benefits previously
established by the terms of the collective-bargaining agree-
ment between Respondent and the Union which expired
on March 31, 1978.
(b) Maintaining a rule prohibiting its employees from
soliciting on behalf of a labor organization on Respon-
dent's premises during their nonworking time.
(c) Promising employees improved benefits to induce
them to vote against union representation.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Pending resolution of the existing question concern-
ing representation of the employees in the appropriate unit,
restore the health plan which existed in its collective-bar-
gaining agreement with the Union, which expired on
March 31, 1978.
(b) Rescind the "Collections and Solicitations" rule in its
employee manual to the extent that it prohibits employees
from soliciting on behalf of any labor organization on
Respondent's premises during their nonworking time.
(c) Post at its Napa, California, store copies of the at-
tached notice marked "Appendix."' 9 Copies of said notice,
on forms provided by the Regional Director for Region 20,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
171 have carefully considered Charging Party's argument that a bargain-
ing order is warranted to remedy the violations of Sec. 8(aX ) found herein.
However. I conclude that the effects of Respondent's misconduct can be
erased through more traditional remedies and that a bargaining order is not
appropriate herein.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and 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
waives for all purposes.
5 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
MERVYN'S
such conduct warrants setting aside the election conducted
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that Objections 4 and I I be
sustained. I further recommend that the maintenance of
the no-solicitation rule is objectionable conduct sufficient
to warrant the setting aside of the election. Accordingly, I
recommend that the election held on March 10, 1978, be
set aside and a second election by secret ballot be conduct-
ed at such time and in such manner as the Regional Direc-
tor deems appropriate.