Read's, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1402 (N.L.R.B. 1977)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Read 's, Inc. and Retail Store Employees Union, Local
692 AFL-CIO, affiliated with Retail Clerks Inter-
national Association , AFL-CIO. Case 5-CA-7580
April 12, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On November 29, 1976, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
While agreeing with the Administrative Law
Judge's findings and conclusions with respect to
those unfair labor practices which he does and does
not find, we find, in accordance with Respondent's
exceptions, that the record herein is insufficient to
justify ordering Respondent to post the notice in
each of its stores throughout Maryland and other
locations inasmuch as the record is devoid of any
evidence that the unfair labor practices found herein
had an impact on employee organizational activities
outside the Salisbury, Maryland, area. Accordingly,
we shall amend the recommended Order to limit the
posting requirement to Respondent's three stores in
Salisbury, Maryland.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Read's, Inc., Salisbury, Maryland, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
Delete the first sentence of par. 2(a) and substitute
the following:
(a) Post at all its retail drugstores in Salisbury,
Maryland, including Store No. 11 at 807 South
Salisbury Boulevard , Salisbury, Maryland, copies
of the attached notice marked "Appendix."
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
charge in this case was filed on October 8, 1975, and the
complaint, alleging violations of Section 8(a)(1) of the Act,
issued on December 19, 1975.1 A hearing was held on
February 18, 1976, before Administrative Law Judge
Ralph Winkler at Cambridge, Maryland, during the course
of which he approved an informal settlement agreement
over the objection of counsel for the General Counsel.
Counsel for the General Counsel appealed Administrative
Law Judge Winkler's ruling and by telegram of March 16,
1976, the Board granted the appeal, reversed Administra-
tive Law Judge Winkler's ruling, and set aside the informal
settlement agreement . Thereafter, Administrative Law
Judge Winkler having withdrawn from further participa-
tion, the hearing in this case was reconvened on July 9,
1976, at Cambridge, Maryland. Respondent has filed a
brief which has been duly considered.
Respondent, a Maryland corporation, operates a chain
of drugstores in Baltimore and various locations in the
State of Maryland, including Store No. 11 located at 807
South Salisbury Boulevard, Salisbury, Maryland. During
the 12-month period ending December 18, 1975, a
representative period, Respondent had gross sales in excess
of $500,000 and received, in interstate commerce, goods
and materials valued in excess of $50,000 from points
located outside the State of Maryland. Respondent is
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
Retail Store Employees Union, Local 692, AFL-CIO,
affiliated with Retail Clerks International Association,
AFL-CIO, hereinafter called the Union, is a labor
organization within the meaning of the Act.
Respondent and the Union were parties to an unfair
labor practice proceeding pursuant to a complaint issued
by the General Counsel in November 1972. That complaint
resulted in a Board decision (205 NLRB 302 (1973)),
finding a violation of Section 8(a)(3) and several violations
of Section 8(a)(1) and dismissing other allegations of the
complaint. In the interval between the 1972 complaint and
the instant complaint two additional complaints, alleging
violations of Section 8(a)(1), were issued by the General
Counsel. These latter complaints were settled through the
procedure of informal settlement agreements . The instant
alleged unfair labor practices occurred during the Union's
1975 campaign, beginning in May of that year.
I All dates are in 1975 unless otherwise indicated
228 NLRB No. 178
READ'S, INC. 1403
Interference , Restraint, and Coercion at Store No.
11 (According to Doris Slate)
Dons Slate , an employee of Respondent 's Store No. 11
in Salisbury , Maryland, for the past 6-1/2 years , testified
that in May, while on her lunch break , she met Richard
Mead , the Union 's paid organizer , outside the store. He
asked if any of the girls were thinking of the Union and she
replied in the affirmative . She filled out an authorization
card and took several more to have filled out by fellow
employees . When she returned to the store she was met by
Alfred Spies , the store manager . He asked if she had seen
any union representatives in the store and she replied,
"No." He asked if she had seen any outside the store and
she said , "Yes." She had seen Dick Mead . Spies asked if
Mead was handing out his literature and Slate said Mead
was passing out literature , but she did not know the
contents . Spies wanted to know if he could see the
literature and Slate told him she would like to have it back.
Thereafter , Slate had approximately 70 cards signed by
employees , put a bumper sticker on one of her cars, and
wore union buttons. She talked to other employees in the
store concerning the Union.
On or about June 11 , the day before the store's
semiannual inventory , which , according to Slate , occurred
on June 12 , Slate had a conversation with Arthur J. Nattan,
Respondent's zone operations specialist, and Spies. As
Slate left the stockroom, Nattan asked her where her name
tag was and she told him it was in the stockroom , that she
had been working there and it was hot. Nattan said there
was some merchandise that needed price changes . Think-
ing that he was picking on her department , Slate said,
"Maybe we needed a union ," and Spies commented that
she thought the Union was the answer to all her problems.
That afternoon she met Mead in front of the store and
handed him five to seven authorization cards that had been
filled out by fellow employees. Mead called Slate's
attention to the store window where Spies was watching.2
On September 3, Spies observed Slate and Mead leaving
the store for lunch . When Slate returned , Spies asked her if
she had had a good time . On or about August 13 Slate had
a conversation with Nattan relating to the earlier incident
of June 11 . Nattan told Slate that he was sorry about that
incident, that he was just spot checking, that he hadn't
meant to criticize . It had been brought to his attention by
Dr. Greenberg (Dr. Joseph Greenberg , vice president of
Respondent and director of operations ) that Slate was
upset about the incident . Nattan asked how matters were
going in the store . Slate told him that things were not going
well between Spies and herself , that Spies criticized
everything she did and she couldn't do anything right
especially since the union campaign had started. Before
that they had been close friends. Nattan told her he knew
how Spies felt because Nattan had been a store manager
during the last election and Nattan said it felt like they
were threatening the family relationship in the store.
Nattan asked Slate if she had ever considered a manage-
ment position . She replied that she had not considered it.
He told her that several girls had been promoted to
manager positions recently and he said that there would be
one at Thrifty-Wise if she were interested at a later date.
Slate told him she would not be interested.
On or about October 30 Slate called Nattan and asked to
talk to him because Spies had given her a "pink slip," a
disciplinary notice . With respect to this conversation, Slate
testified specifically as follows:
When I tried to tell him about the pink slip, he told
me he was not really concerned about the pink slip, that
it didn't have an awful lot of merit , it was the first one I
had ever received since I had been working for Read,
but his real concern was my involvement with the
Union and with the Labor Relations Board about some
charges that had been filed . He said that if Becky
(unidentified in the record) had heard from Mr. Spies
that I was still talking to truck drivers and employees
about the Union , that I was still having lunch with
union representatives and he said there had been
reports from Mr. Spies that I had told one of the
truckdrivers there was going to be a petition for an
election filed 3 days prior to the petition being filed. He
also told me that when unions got into the store that
meant lay-offs of union sympathizers. He said that
whenever anything was mentioned about the Union in
the area, my name was the first to come up in
everybody' s mind . He told me if I would give up my
union campaign and be quiet about the whole thing,
that I would still have a job after the election and that I
would again regain the respect of the supervisors. He
also told me if I should file these charges with the
Labor Board , he would deny it. He was telling me this
as a personal friend.
The Denial (Spies and Nattan)
Spies denied that he had any knowledge of union activity
in or outside the store in May or on June 11. He testified
that he was first aware of union activity on June 25 , the day
before the store 's semiannual inventory , which , according
to Spies, occurred on June 26 rather then June 12 . On June
25 Mead came into the store at 5 o 'clock and left with
Slate . Spies observed them leave . He conceded receiving
union literature from Slate, but put the time as late August.
He denied speaking to Slate when she returned from lunch
on September 3. He admitted overhearing a conversation
between Slate and a truckdriver about a petition being
filed. He came to the conclusion 3 days later that the
conversation between Slate and the truckdriver referred to
a petition for an election by the clerks rather than the
truckdrivers . Spies was less friendly toward Slate because
of her union activities , but treated her the same as the rest
of the employees.
Nattan testified that his first conversation with Slate
occurred on June 25 or 26 , agreeing with Spies that it was
the day before the store 's semiannual inventory . Nattan
asserted that it could not have occurred on June 11, as
Slate had testified , because during the first 2 weeks of June
Nattan was on duty with the Maryland National Guard.
On this occasion Nattan pointed out to Slate that she was
2 To the extent of his participation in union activities with Slate, Mead
corroborated her testimony.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not wearing her smock or badge and he also noted that
there were price changes in her department that needed
correction. Subsequently, Dr. Greenberg told Nattan there
was a report that Nattan had yelled at Doris Slate during
his last visit to Store No. 11. Nattan denied that he had
yelled at Slate, but promised to talk to her and correct the
misunderstanding. Nattan was unable to fix the date of the
second conversation, but stated that he did not know of
Slate's involvement in the Union at that time (August 13,
according to Slate), denied that union activity entered into
the conversation, and denied that he had offered Slate any
management position. Nattan testified that during his third
conversation with Slate on October 30 Slate told him that
she felt she was being persecuted because she was involved
with the Union. By this time Nattan was aware that there
was union activity at the store, but told Slate he could not
talk to her about it. The only thing he would say to Slate
was that she should engage in union activity on her own
time, not on company time. Nattan denied that he had in
any way threatened State so far as her job was concerned
or her future with the Company with respect to her union
activity or the filing of charges with the Labor Board. He
denied making any statement that if the Union would get
in there would be a layoff of employees.
Conclusions
Whether Respondent violated Section 8(a)(l) of the Act
poses a question of credibility from which no trier of facts
can escape. I must believe or not believe the word of a
single employee as against the denial of two management
officials. Approaching the issue negatively, to disbelieve
the employee I would have to conclude that the witness,
Mrs. Slate, fabricated a totally false story, including an
unlawful promise and unlawful threats by a high-echelon
agent of Respondent. Observing her on the stand, she
appeared to be a strong, straightforward woman, not easily
frightened or dissuaded from her appointed course of
conduct. There was no hesitation in her manner, no mark
of uncertainty, no qualms about what she had to say. She
looked directly at her questioner and spoke out affirmative-
ly. Moreover, my favorable impression of Slate's character
is strenghtened by objective facts in the record. Thus, the
record shows that she had been a competent and trusted
employee for a number of years. She was socially
acceptable to Spies except during periods of her union
activity. She had the confidence of Dr. Greenberg, who
consulted with her concerning troublesome matters at the
store, including her own problems, the problem of other
employees, and the problem of management. Dr. Green-
berg corrected some of the grievances which she brought to
his attention. Such an individual does not normally engage
in flagrant falsehood. I credit her testimony in the instant
case . I do so with some reluctance because I realize Spies
and Nattan are both responsible management officials. It
would have been helpful if Respondent had produced the
business record in its possession identifying the date in
June when the store held its semiannual inventory. The fact
that that record was not produced must be held against
Respondent. I am also influenced by Nattan's testimony
that he did not learn of union activity in the store until
some time after August 13. It is difficult for me to believe
that Spies, who admittedly learned of union activity on
June 25, did not immediately inform Nattan, who was
physically present in Salisbury, that Spies had seen Mead
leaving the store with Slate and that union activity was
again a problem for Respondent. Certainly, by August 13,
a period of almost 2 months when Slate was openly
soliciting and collecting cards for the Union, Spies would
have notified his superior, Nattan, of this fact.
Respondent argues that, even if the allegations of the
complaint are proved, the complaint should be dismissed
as de minimis on the ground that the incidents involved a
single employee in a voting unit of over 1,500 employees
and two supervisors in a supervisory complement of over
200. I do not agree . This is not a case of an insignificant
number of minor acts of interrogation or similar conduct.
Although Doris Slate was the only employee involved, she
was the most active employee organizer on the Eastern
Shore. The allegations that Respondent attempted to wean
her away from the Union by promising her a management
position and, when that attempt failed, attempted to coerce
her into a cessation of her union activity are unfair labor
practices of a serious nature. If successful, they would have
had an impact far beyond Slate's own vote. She had
solicited 70 employees for the Union and could be
expected to continue her efforts on its behalf. Moreover, as
indicated above, Respondent had previously been found
by the Board to have violated the Act. In several additional
cases Respondent had posted notices that it would not
engage in conduct violative of Section 8(axl). Such notices
have not deterred Respondent from the conduct set forth
above. I also take into consideration the Board's reversal of
Judge Winkler's approval of an informal settlement
agreement , which, in my opinion, indicates that the Board
is of the view that the allegations of the complaint, if
proved, are not de minimis and warrant an appropriate
remedy.
I find that Respondent violated Section 8(a)(1) of the Act
in the following respects:
(1) Spies' interrogation of Slate in May with respect to
the presence of union representatives in or outside the store
and whether or not Mead was handing out union literature.
(2) Nattan's promise to Slate on August 13 of a
management position, which I find was for the purpose of
weaning her away from the Union.
(3) Nattan's statement to Slate on October 30 that
Respondent knew she was talking to truckdrivers and
employees about the Union and having lunch with union
representatives, and that her name was the first to come up
whenever anything was mentioned about the Union,
thereby creating the impression that she was under
constant surveillance with respect to her union activity.
(4) Nattan's threat on October 30 that union sympathiz-
ers would be laid off if the Union got into the store.
(5) Nattan's statement on October 30 that Slate would
have a job after the election if she gave up her union
campaign, thereby suggesting that she would not have a job
if she did not give up her union activity.
I find that Respondent did not violate the Act by the
following conduct of Spies:
READ'S, INC. 1405
(1) Spies' comment to Slate on June 11 following Slate's
comment, "Maybe we needed a union," that Slate thought
a union was the answer to all her problems.
(2) Spies' conduct on September 3 in watching from the
store window Slate leave the store with Mead.
(3) Spies' comment to Slate on September 3 after she
returned from lunch with Mead, asking if Slate had had a
good time.
None of these three incidents, in my opinion, amounts to
unlawful conduct within the meaning of Section 8(a)(1). As
to (1), Spies' remark was in reply to a prounion remark by
Slate and merely indicated Spies' contrary view. As to (2),
the Act does not preclude a store manager from observing
and noting the presence of a nonemployee union organizer
on or about the store premises. As to (3), Slate testified that
Spies' comment was made in a sarcastic tone, which was in
keeping with his unfriendly attitude toward Slate at this
time. However, the remark in and of itself was not
threatening and, at most, an indication to Slate that Spies
was not happy with her union activity.
I agree with the General Counsel that an appropriate
remedy in this case requires the posting of notices in all of
Respondent's stores, and I shall so recommend.
Upon the foregoing findings of fact and conclusions I
hereby issue the following recommended:
ORDERS
The Respondent, Read's, Inc., Salisbury, Maryland, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees with respect to the presence
of union representatives in or outside its stores or with
respect to the handing out of union literature.
(b) Promising employees management positions for the
purpose of weaning them away from the Union.
(c) Creating the impression of surveillance by informing
employees that their activities in talking to other employees
about the Union are known to management.
(d) Threatening employees by informing them that union
sympathizers are laid off when unions get into stores.
(e) Informing employees they will have jobs after the
Union campaign if they give up their union activity,
thereby suggesting that they will not have jobs if they do
not give up their union activity.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its retail drugstores in the State of Maryland
and other locations, including Store No. 11 at 807 South
Salisbury Boulevard, Salisbury, Maryland, copies of the
attached notice marked "Appendix."4 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations other than those
specifically found herein.
3 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 waived for all purposes
4 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees with respect
to the presence of union representatives in or outside
our stores or with respect to the handing out of union
literature.
WE WILL NOT promise employees management
positions for the purpose of weaning them away from a
union.
WE WILL NOT create the impression of surveillance
by informing employees that their union activities in
talking to other employees about a union are known to
management.
WE WILL NOT threaten our employees by informing
them that union sympathizers are laid off when unions
get into stores.
WE WILL NOT inform employees that they will have
jobs after the union campaign if they give up their
union activity, thereby suggesting that they will not
have jobs if they do not give up their union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them in Section 7 of the National
Labor Relations Act. All our employees are free to
become or remain members of Retail Stores Employees
Union Local 692, AFL-CIO, affiliated with Retail
Clerks International Association, AFL-CIO, or any
other labor organization.
READ'S INC.